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Ajay G. Podar Vs. Official Liquidator Of J.S.&W.M | Section 458A is not applicable to misfeasance proceedings instituted by the O.L. as such proceedings are not in the name and on behalf of a company which is being wound up by the Court. In this connection, reliance is placed on Section 458A which prescribes the mode of computation of the period of limitation for any suit or an application in the name and on behalf of a company which is being wound up by the Court. Therefore, it is sought to be argued that misfeasance proceedings instituted by the O.L. is neither a suit nor an application in the name and on behalf of a company which is being wound up by the Court. We find no merit in this argument. If book-debt is assigned by the company to a bank which fails to file a suit for recovery of money within the time prescribed under the Limitation Act, it would not be open to O.L. to institute the suit under Section 458A because in that event the O.L. is said to have filed a suit not on behalf of the company but on behalf of the bank. It is to such cases that Section 458A will not apply. In the present case, the O.L. was authorized to take steps to recover assets both financial and other assets by the company court under the winding up order. It is pursuant to that authority that the O.L. has instituted the misfeasance proceedings for recovery on 1.12.89. The said proceedings have been initiated in the name of the company and on behalf of the company to be wound up. The name of the applicant, indicated at page no.27 of the appeal paper book, shows that the O.L. has filed misfeasance proceedings in the name of the company and on behalf of the company. Therefore, in our view, Section 458A is squarely applicable to misfeasance proceedings instituted by the O.L. in the name of the company and on behalf of the company in liquidation. Once an application is made in the name and on behalf of the company, Section 458A would become applicable. On this aspect more provision needs to be mentioned. Section 457 deals with powers of liquidator. Under Section 457(1) the liquidator, in a winding up by the Court, has the power with the sanction of the Court to institute any suit prosecution or legal proceedings in the name and on behalf of the company. In the present case the winding up order indicates that the company court had granted such a sanction and the misfeasance proceedings have been instituted by the O.L. in terms of Section 457(1)(a) of the Limitation Act. The claim on behalf of a company (in liquidation) filed by the O.L. is in the form of application though it is really a plaint and hence it cannot be stated that the misfeasance proceedings are proceedings instituted by the O.L. in his own independent right. Once it is held that the said application is in the nature of a plaint then Section 457 of the Companies Act would apply. Section 458A of the Companies Act is intended to extend the limitation period for the benefit of the company (in liquidation) and the O.L. appointed to carry on its winding up process by collecting the assets and distributing the same among those entitled to the same. The underlying object in extending the limitation is to enable the O.L. to take charge of the affairs of the company, to examine the records, account books, to study the annual statements and accordingly proceed to recover and collect the assets. He has also to find resources for conducting the proceedings. The proceedings initiated by him by way of judges summons or suit for enforcement of the recoveries, cannot but be on behalf of the company having regard to his source of authority, viz., the provisions of the Companies Act and the statutory obligation in discharge of which he has to act in this behalf. The said Act does not contemplate his acting in the matter of recoveries excepting as O.L. and excepting on behalf of the company. 16. Before concluding, we may state that learned counsel for the appellant placed reliance on the judgment of the Orissa High Court in the case of B. Pattnaik Mines (Pvt.) Ltd. vs. Bijoyananda Pattnaik and others - 1994 (80) CompCas 237, in which it has been held that when the liquidator or a creditor or a contributory makes an application under Section 543 he does not do so as representing the company but in his own independent right. As against this judgment, learned counsel for the respondents (O.L.) cited before us the judgment of the Bombay High Court in the case of Gleitlargor (India) P. Ltd. and H.S. Kamlani, Official Liquidator vs. Mazagaon Dock Ltd. and others - 1985 (57) CompCas 742 , which has taken the view that the proceedings initiated by the O.L. for recovery cannot but be on behalf of the company and that the Companies Act does not contemplate his acting in the matter of recoveries excepting as O.L. and excepting on behalf of the company. In our view, in the light of what is stated above we approve the judgment of the Bombay High Court in the case of Gleitlargor (India) P. Ltd. (supra) and we further hold that the judgment of the Orissa High Court in the case of . Pattnaik Mines (Pvt.) Ltd. (supra) is not correct. We may further state that the view taken by the Bombay High Court also finds support in the case of Official Liquidator vs. T.J. Swamy and others - 1992 (73) CompCas 583 in which the Andhra Pradesh High Court has held that misfeasance proceedings are proceedings initiated by the O.L. in the name of and on behalf of the company (in liquidation).17. Therefore, in our view, Section 458A of the Companies Act, dealing with computation of the period of limitation, has to be read with Section 543(2) of that Act. | 0[ds]9. On reading the provisions of Section 458A and Section 543(2) of the Limitation Act, we find that there is a clear dichotomy between the concept of the "period of limitation" on one hand and the concept of "computation of that period". Section 543(2) limits the time after which misfeasance or breach of trust proceedings, retainer proceedings and misapplication proceedings becomes time barred. This dichotomy finds place not only in the above provisions of the Companies Act but also under the provisions of Limitation Act. Under Section 2(f) of the Limitation Act, the period of limitation is required to be computed in accordance with the provisions of that Act. Further, the Limitation Act not only prescribes the period of limitation for different types of suits and applications but it also further provides for computation. If any period of limitation is to be excluded from the prescribed period of limitation the party has to satisfy any of the appropriate provisions in Sections 4 to 24 of the Limitation Act. The law of limitation is a procedural law. It is addressed to the commencement of a proceeding.Coming to the provisions of the Companies Act, we find that although Section 543(1) & (2) provides for locus and forum, there is no provision for computation of the period of limitation. We are proceeding on the basis that Section 543(2) provides for a different limitation than the limitation prescribed under Article 137 of the Limitation Act. However, Section 543(2) does not rule out the applicability of Sections 12 to 24 in Part III of the Limitation Act. Part II of the Limitation Act deals with limitation of suits, appeals and applications whereas Part III deals with the computation of period of limitation. Similarly, in our view Section 543(2) deals with limitation for applications/claims mentioned in Section 543(1) which includes misfeasance proceedings whereas the computation of the period of five years is contemplated by Section 458A of the Companies Act.12. In our view, there is no merit in the contention advanced on behalf of the appellant that by virtue of Section 458A the period of limitation is extended by one year. Part III of the Limitation Act excludes certain circumstances mentioned in Sections 12 to 24 for computation of the period of limitation. Similarly, Section 458A provides for an additional circumstance which is not there in the Limitation Act which is required to be taken into account as an item of exclusion in the matter of computation of the period of Limitation of five years prescribed by Section 543(2). That circumstance is a period spent between the date of commencement of winding up of the company and the date on which the winding up order is passed plus one year therefrom. If this period of limitation is to stand excluded it is only by virtue of Section 458A which circumstance is not contemplated by Sections 12 to 24 of the Limitation Act. Just as a different period of limitation is prescribed for misfeasance proceedings vide Section 543(2) so also vide Section 458A a special circumstance is indicated as an item of exclusion of certain time in computing the period of limitation. Therefore, there is no conflict between Section 458A and Section 543(2) of the Companies Act. If so read, there is no extension of the period of limitation of five years as contended on behalf of the appellant. In our view, Section 458A excludes the period between the date of commencement of winding up of the company and the date on which the winding up order is passed plus one year therefrom. Therefore, it is a case of exclusion and not extension of the period of limitation of five years prescribed under Section 543(2) of the Companiesfind no merit in this argument. If book-debt is assigned by the company to a bank which fails to file a suit for recovery of money within the time prescribed under the Limitation Act, it would not be open to O.L. to institute the suit under Section 458A because in that event the O.L. is said to have filed a suit not on behalf of the company but on behalf of the bank. It is to such cases that Section 458A will not apply. In the present case, the O.L. was authorized to take steps to recover assets both financial and other assets by the company court under the winding up order. It is pursuant to that authority that the O.L. has instituted the misfeasance proceedings for recovery on 1.12.89. The said proceedings have been initiated in the name of the company and on behalf of the company to be wound up. The name of the applicant, indicated at page no.27 of the appeal paper book, shows that the O.L. has filed misfeasance proceedings in the name of the company and on behalf of the company. Therefore, in our view, Section 458A is squarely applicable to misfeasance proceedings instituted by the O.L. in the name of the company and on behalf of the company in liquidation. Once an application is made in the name and on behalf of the company, Section 458A would become applicable. On this aspect more provision needs to be mentioned. Section 457 deals with powers of liquidator. Under Section 457(1) the liquidator, in a winding up by the Court, has the power with the sanction of the Court to institute any suit prosecution or legal proceedings in the name and on behalf of the company. In the present case the winding up order indicates that the company court had granted such a sanction and the misfeasance proceedings have been instituted by the O.L. in terms of Section 457(1)(a) of the Limitation Act. The claim on behalf of a company (in liquidation) filed by the O.L. is in the form of application though it is really a plaint and hence it cannot be stated that the misfeasance proceedings are proceedings instituted by the O.L. in his own independent right. Once it is held that the said application is in the nature of a plaint then Section 457 of the Companies Act would apply. Section 458A of the Companies Act is intended to extend the limitation period for the benefit of the company (in liquidation) and the O.L. appointed to carry on its winding up process by collecting the assets and distributing the same among those entitled to the same. The underlying object in extending the limitation is to enable the O.L. to take charge of the affairs of the company, to examine the records, account books, to study the annual statements and accordingly proceed to recover and collect the assets. He has also to find resources for conducting the proceedings. The proceedings initiated by him by way of judges summons or suit for enforcement of the recoveries, cannot but be on behalf of the company having regard to his source of authority, viz., the provisions of the Companies Act and the statutory obligation in discharge of which he has to act in this behalf. The said Act does not contemplate his acting in the matter of recoveries excepting as O.L. and excepting on behalf of theour view, in the light of what is stated above we approve the judgment of the Bombay High Court in the case of Gleitlargor (India) P. Ltd. (supra) and we further hold that the judgment of the Orissa High Court in the case of . Pattnaik Mines (Pvt.) Ltd. (supra) is not correct. We may further state that the view taken by the Bombay High Court also finds support in the case of Official Liquidator vs. T.J. Swamy and others - 1992 (73) CompCas 583 in which the Andhra Pradesh High Court has held that misfeasance proceedings are proceedings initiated by the O.L. in the name of and on behalf of the company (in liquidation).17. Therefore, in our view, Section 458A of the Companies Act, dealing with computation of the period of limitation, has to be read with Section 543(2) of that Act. | 0 | 3,936 | 1,501 | ### 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:
Section 458A is not applicable to misfeasance proceedings instituted by the O.L. as such proceedings are not in the name and on behalf of a company which is being wound up by the Court. In this connection, reliance is placed on Section 458A which prescribes the mode of computation of the period of limitation for any suit or an application in the name and on behalf of a company which is being wound up by the Court. Therefore, it is sought to be argued that misfeasance proceedings instituted by the O.L. is neither a suit nor an application in the name and on behalf of a company which is being wound up by the Court. We find no merit in this argument. If book-debt is assigned by the company to a bank which fails to file a suit for recovery of money within the time prescribed under the Limitation Act, it would not be open to O.L. to institute the suit under Section 458A because in that event the O.L. is said to have filed a suit not on behalf of the company but on behalf of the bank. It is to such cases that Section 458A will not apply. In the present case, the O.L. was authorized to take steps to recover assets both financial and other assets by the company court under the winding up order. It is pursuant to that authority that the O.L. has instituted the misfeasance proceedings for recovery on 1.12.89. The said proceedings have been initiated in the name of the company and on behalf of the company to be wound up. The name of the applicant, indicated at page no.27 of the appeal paper book, shows that the O.L. has filed misfeasance proceedings in the name of the company and on behalf of the company. Therefore, in our view, Section 458A is squarely applicable to misfeasance proceedings instituted by the O.L. in the name of the company and on behalf of the company in liquidation. Once an application is made in the name and on behalf of the company, Section 458A would become applicable. On this aspect more provision needs to be mentioned. Section 457 deals with powers of liquidator. Under Section 457(1) the liquidator, in a winding up by the Court, has the power with the sanction of the Court to institute any suit prosecution or legal proceedings in the name and on behalf of the company. In the present case the winding up order indicates that the company court had granted such a sanction and the misfeasance proceedings have been instituted by the O.L. in terms of Section 457(1)(a) of the Limitation Act. The claim on behalf of a company (in liquidation) filed by the O.L. is in the form of application though it is really a plaint and hence it cannot be stated that the misfeasance proceedings are proceedings instituted by the O.L. in his own independent right. Once it is held that the said application is in the nature of a plaint then Section 457 of the Companies Act would apply. Section 458A of the Companies Act is intended to extend the limitation period for the benefit of the company (in liquidation) and the O.L. appointed to carry on its winding up process by collecting the assets and distributing the same among those entitled to the same. The underlying object in extending the limitation is to enable the O.L. to take charge of the affairs of the company, to examine the records, account books, to study the annual statements and accordingly proceed to recover and collect the assets. He has also to find resources for conducting the proceedings. The proceedings initiated by him by way of judges summons or suit for enforcement of the recoveries, cannot but be on behalf of the company having regard to his source of authority, viz., the provisions of the Companies Act and the statutory obligation in discharge of which he has to act in this behalf. The said Act does not contemplate his acting in the matter of recoveries excepting as O.L. and excepting on behalf of the company. 16. Before concluding, we may state that learned counsel for the appellant placed reliance on the judgment of the Orissa High Court in the case of B. Pattnaik Mines (Pvt.) Ltd. vs. Bijoyananda Pattnaik and others - 1994 (80) CompCas 237, in which it has been held that when the liquidator or a creditor or a contributory makes an application under Section 543 he does not do so as representing the company but in his own independent right. As against this judgment, learned counsel for the respondents (O.L.) cited before us the judgment of the Bombay High Court in the case of Gleitlargor (India) P. Ltd. and H.S. Kamlani, Official Liquidator vs. Mazagaon Dock Ltd. and others - 1985 (57) CompCas 742 , which has taken the view that the proceedings initiated by the O.L. for recovery cannot but be on behalf of the company and that the Companies Act does not contemplate his acting in the matter of recoveries excepting as O.L. and excepting on behalf of the company. In our view, in the light of what is stated above we approve the judgment of the Bombay High Court in the case of Gleitlargor (India) P. Ltd. (supra) and we further hold that the judgment of the Orissa High Court in the case of . Pattnaik Mines (Pvt.) Ltd. (supra) is not correct. We may further state that the view taken by the Bombay High Court also finds support in the case of Official Liquidator vs. T.J. Swamy and others - 1992 (73) CompCas 583 in which the Andhra Pradesh High Court has held that misfeasance proceedings are proceedings initiated by the O.L. in the name of and on behalf of the company (in liquidation).17. Therefore, in our view, Section 458A of the Companies Act, dealing with computation of the period of limitation, has to be read with Section 543(2) of that Act.
### Response:
0
### Explanation:
in the contention advanced on behalf of the appellant that by virtue of Section 458A the period of limitation is extended by one year. Part III of the Limitation Act excludes certain circumstances mentioned in Sections 12 to 24 for computation of the period of limitation. Similarly, Section 458A provides for an additional circumstance which is not there in the Limitation Act which is required to be taken into account as an item of exclusion in the matter of computation of the period of Limitation of five years prescribed by Section 543(2). That circumstance is a period spent between the date of commencement of winding up of the company and the date on which the winding up order is passed plus one year therefrom. If this period of limitation is to stand excluded it is only by virtue of Section 458A which circumstance is not contemplated by Sections 12 to 24 of the Limitation Act. Just as a different period of limitation is prescribed for misfeasance proceedings vide Section 543(2) so also vide Section 458A a special circumstance is indicated as an item of exclusion of certain time in computing the period of limitation. Therefore, there is no conflict between Section 458A and Section 543(2) of the Companies Act. If so read, there is no extension of the period of limitation of five years as contended on behalf of the appellant. In our view, Section 458A excludes the period between the date of commencement of winding up of the company and the date on which the winding up order is passed plus one year therefrom. Therefore, it is a case of exclusion and not extension of the period of limitation of five years prescribed under Section 543(2) of the Companiesfind no merit in this argument. If book-debt is assigned by the company to a bank which fails to file a suit for recovery of money within the time prescribed under the Limitation Act, it would not be open to O.L. to institute the suit under Section 458A because in that event the O.L. is said to have filed a suit not on behalf of the company but on behalf of the bank. It is to such cases that Section 458A will not apply. In the present case, the O.L. was authorized to take steps to recover assets both financial and other assets by the company court under the winding up order. It is pursuant to that authority that the O.L. has instituted the misfeasance proceedings for recovery on 1.12.89. The said proceedings have been initiated in the name of the company and on behalf of the company to be wound up. The name of the applicant, indicated at page no.27 of the appeal paper book, shows that the O.L. has filed misfeasance proceedings in the name of the company and on behalf of the company. Therefore, in our view, Section 458A is squarely applicable to misfeasance proceedings instituted by the O.L. in the name of the company and on behalf of the company in liquidation. Once an application is made in the name and on behalf of the company, Section 458A would become applicable. On this aspect more provision needs to be mentioned. Section 457 deals with powers of liquidator. Under Section 457(1) the liquidator, in a winding up by the Court, has the power with the sanction of the Court to institute any suit prosecution or legal proceedings in the name and on behalf of the company. In the present case the winding up order indicates that the company court had granted such a sanction and the misfeasance proceedings have been instituted by the O.L. in terms of Section 457(1)(a) of the Limitation Act. The claim on behalf of a company (in liquidation) filed by the O.L. is in the form of application though it is really a plaint and hence it cannot be stated that the misfeasance proceedings are proceedings instituted by the O.L. in his own independent right. Once it is held that the said application is in the nature of a plaint then Section 457 of the Companies Act would apply. Section 458A of the Companies Act is intended to extend the limitation period for the benefit of the company (in liquidation) and the O.L. appointed to carry on its winding up process by collecting the assets and distributing the same among those entitled to the same. The underlying object in extending the limitation is to enable the O.L. to take charge of the affairs of the company, to examine the records, account books, to study the annual statements and accordingly proceed to recover and collect the assets. He has also to find resources for conducting the proceedings. The proceedings initiated by him by way of judges summons or suit for enforcement of the recoveries, cannot but be on behalf of the company having regard to his source of authority, viz., the provisions of the Companies Act and the statutory obligation in discharge of which he has to act in this behalf. The said Act does not contemplate his acting in the matter of recoveries excepting as O.L. and excepting on behalf of theour view, in the light of what is stated above we approve the judgment of the Bombay High Court in the case of Gleitlargor (India) P. Ltd. (supra) and we further hold that the judgment of the Orissa High Court in the case of . Pattnaik Mines (Pvt.) Ltd. (supra) is not correct. We may further state that the view taken by the Bombay High Court also finds support in the case of Official Liquidator vs. T.J. Swamy and others - 1992 (73) CompCas 583 in which the Andhra Pradesh High Court has held that misfeasance proceedings are proceedings initiated by the O.L. in the name of and on behalf of the company (in liquidation).17. Therefore, in our view, Section 458A of the Companies Act, dealing with computation of the period of limitation, has to be read with Section 543(2) of that Act.
|
Narayan Chetanram Chaudhary Vs. State Of Maharashtra | the rest, there is nothing on record. Killing of adults as possible witnesses can be explained away by the accused but the manner in which each of them were dealt with several blows coupled with cruelty done to the children which was totally wanton and senseless, and blows given in the stomach of a pregnant woman, who has been inflicted a fatal wound, it all taken together along with the position culled out from the various judicial pronouncements referred to above, in our opinion there is no escape from coming to the conclusion that they fall in the category of the rarest of the rare cases. Referring to the judgment delivered in Bachan Singh v. State of Punjab (Bachan Singh v. State of Punjab, 1980 SC 586 this Court in Ramdeo Chauhan v. State of Assam (2000 SC (2000) 5 ST 312) has held : * 10. Commission of the crime in a brutal manner or on a helpless child or a woman or the like were held to be such circumstances which justify the imposition of maximum penalty. In Maghar Singh v. State of Punjab (1975 SC 563) this Court held that for pre-planned cold-blooded murder death sentence is proper. 11. The trial court, after referring to various judgments, concluded : In the case in our hand, it is apparently a pre-planned, cold-blooded, brutal quadruple murder. It is relevant that the murder was committed in the most brutal manner with severe cruelty inflicting number of injuries on each victim including a female baby hardly of 2-1/2 years of age and two helpless women. They were murdered while they were in deep sleep after lunch keeping the doors and windows of the house open without suspecting any foul play from any quarter. It is, in my view, a rarest of the rare cases which is of exceptional nature. Facts and circumstances of the case justify the extreme penalty provided under Section 302 IPC. The accused seems to be a menace to the society and in my view, sentence of life imprisonment would be altogether inadequate, because the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community. Extreme penalty, in my view, is necessary in such cases to protect the community and to deter others from committing such crime. 12. The High Court also referred to various judgments of this Court and found on facts : There cannot be any manner of doubt that in the present case murders have been committed by the accused after premeditation with a motive to commit a theft. The crime can be described to be heinous, dastardly, gruesome and cruel. The persons asleep have been killed in a merciless manner by the accused who has no value for human lives. The crime committed by the accused falls within the aggravating circumstances as it has been committed after previous planning involving extreme cruelty. The murders in the present case involve exceptional depravity. In view of all this the question arises whether the single circumstance of the accused being too young should be good enough for us to award lighter punishment or not. We have not been able to lay our hands upon any observations of the Apex Court and none has been brought to our notice during the course of arguments that even if all the aggravating circumstances are present in a particular given case, single circumstance of the accused being too young or too old would outweigh other aggravating circumstances and the court must on the basis of a single circumstance grant lighter punishment. Having given our deep and thoughtful consideration and after giving due weight to the mitigating as well as aggravating circumstances which have been referred to above, we are of the view that the accused in the present case must be given death sentence. The present is one of the rarest of rare cases in which infliction of extreme penalty is called for. 13. It is true that in a civilised society a tooth for a tooth, and a nail for a nail or death for death is not the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life according to the procedure established by law, as the Constitution itself has recognised the death sentence as a permissible punishment for which sufficient constitutional provision for an appeal, reprieve and the like have been provided under the law. It is true that life sentence is the rule and death sentence is an exception. We are satisfied that the present case is an exceptional case which warrants the awarding of maximum penalty under the law to the appellant-accused. The crime committed by the appellant is not only shocking but it has also jeopardised the society. The awarding of lesser sentence only on the ground of the appellant being a youth at the time of occurrence cannot be considered as a mitigating circumstance in view of our findings that the murders committed by him were most cruel, heinous and dastardly. We have no doubt that the present case is the rarest of the rare requiring the maximum penalty, imposable under law. After going through whole of the evidence, perusing the record, thoughtfully considering the submissions made before us and before the trial court as well as the High Court, we have come to an unmistakable conclusion that the present case is one of the rarest of rare cases warranting the extreme penalty imposable by law. The case of Appellant 2 Jitu is not distinguishable. But for his active participation in the conspiracy and its execution, Accused 1 could not have succeeded in committing the murder of six persons including a pregnant woman and a teenaged (sic) child. The manner in which Jitu, Appellant 2 committed the murder of Pratik is not only ghastly but reflects his beast-like mental attitude. The appellants do not deserve any sympathy from the law and society. 14. | 0[ds]We, therefore, do not find any substance in the submissions of the learned defence counsel that as the statement of the approver was recorded after a prolonged delay, no reliance could be placed upon it. The delay in granting the pardon may be a just criticism, where it is found that the pardon had been tendered at the end of the trial and in effect was intended to fill up the lacunae in the prosecution case. Such is not the present case13. It is true that in a civilised society a tooth for a tooth, and a nail for a nail or death for death is not the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life according to the procedure established by law, as the Constitution itself has recognised the death sentence as a permissible punishment for which sufficient constitutional provision for an appeal, reprieve and the like have been provided under the law. It is true that life sentence is the rule and death sentence is an exception. We are satisfied that the present case is an exceptional case which warrants the awarding of maximum penalty under the law to the appellant-accused. The crime committed by the appellant is not only shocking but it has also jeopardised the society. The awarding of lesser sentence only on the ground of the appellant being a youth at the time of occurrence cannot be considered as a mitigating circumstance in view of our findings that the murders committed by him were most cruel, heinous and dastardly. We have no doubt that the present case is the rarest of the rare requiring the maximum penalty, imposable under law. After going through whole of the evidence, perusing the record, thoughtfully considering the submissions made before us and before the trial court as well as the High Court, we have come to an unmistakable conclusion that the present case is one of the rarest of rare cases warranting the extreme penalty imposable by law. The case of Appellant 2 Jitu is not distinguishable. But for his active participation in the conspiracy and its execution, Accused 1 could not have succeeded in committing the murder of six persons including a pregnant woman and a teenaged (sic) child. The manner in which Jitu, Appellant 2 committed the murder of Pratik is not only ghastly but reflects his beast-like mental attitude. The appellants do not deserve any sympathy from the law and society. | 0 | 15,839 | 458 | ### 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 rest, there is nothing on record. Killing of adults as possible witnesses can be explained away by the accused but the manner in which each of them were dealt with several blows coupled with cruelty done to the children which was totally wanton and senseless, and blows given in the stomach of a pregnant woman, who has been inflicted a fatal wound, it all taken together along with the position culled out from the various judicial pronouncements referred to above, in our opinion there is no escape from coming to the conclusion that they fall in the category of the rarest of the rare cases. Referring to the judgment delivered in Bachan Singh v. State of Punjab (Bachan Singh v. State of Punjab, 1980 SC 586 this Court in Ramdeo Chauhan v. State of Assam (2000 SC (2000) 5 ST 312) has held : * 10. Commission of the crime in a brutal manner or on a helpless child or a woman or the like were held to be such circumstances which justify the imposition of maximum penalty. In Maghar Singh v. State of Punjab (1975 SC 563) this Court held that for pre-planned cold-blooded murder death sentence is proper. 11. The trial court, after referring to various judgments, concluded : In the case in our hand, it is apparently a pre-planned, cold-blooded, brutal quadruple murder. It is relevant that the murder was committed in the most brutal manner with severe cruelty inflicting number of injuries on each victim including a female baby hardly of 2-1/2 years of age and two helpless women. They were murdered while they were in deep sleep after lunch keeping the doors and windows of the house open without suspecting any foul play from any quarter. It is, in my view, a rarest of the rare cases which is of exceptional nature. Facts and circumstances of the case justify the extreme penalty provided under Section 302 IPC. The accused seems to be a menace to the society and in my view, sentence of life imprisonment would be altogether inadequate, because the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community. Extreme penalty, in my view, is necessary in such cases to protect the community and to deter others from committing such crime. 12. The High Court also referred to various judgments of this Court and found on facts : There cannot be any manner of doubt that in the present case murders have been committed by the accused after premeditation with a motive to commit a theft. The crime can be described to be heinous, dastardly, gruesome and cruel. The persons asleep have been killed in a merciless manner by the accused who has no value for human lives. The crime committed by the accused falls within the aggravating circumstances as it has been committed after previous planning involving extreme cruelty. The murders in the present case involve exceptional depravity. In view of all this the question arises whether the single circumstance of the accused being too young should be good enough for us to award lighter punishment or not. We have not been able to lay our hands upon any observations of the Apex Court and none has been brought to our notice during the course of arguments that even if all the aggravating circumstances are present in a particular given case, single circumstance of the accused being too young or too old would outweigh other aggravating circumstances and the court must on the basis of a single circumstance grant lighter punishment. Having given our deep and thoughtful consideration and after giving due weight to the mitigating as well as aggravating circumstances which have been referred to above, we are of the view that the accused in the present case must be given death sentence. The present is one of the rarest of rare cases in which infliction of extreme penalty is called for. 13. It is true that in a civilised society a tooth for a tooth, and a nail for a nail or death for death is not the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life according to the procedure established by law, as the Constitution itself has recognised the death sentence as a permissible punishment for which sufficient constitutional provision for an appeal, reprieve and the like have been provided under the law. It is true that life sentence is the rule and death sentence is an exception. We are satisfied that the present case is an exceptional case which warrants the awarding of maximum penalty under the law to the appellant-accused. The crime committed by the appellant is not only shocking but it has also jeopardised the society. The awarding of lesser sentence only on the ground of the appellant being a youth at the time of occurrence cannot be considered as a mitigating circumstance in view of our findings that the murders committed by him were most cruel, heinous and dastardly. We have no doubt that the present case is the rarest of the rare requiring the maximum penalty, imposable under law. After going through whole of the evidence, perusing the record, thoughtfully considering the submissions made before us and before the trial court as well as the High Court, we have come to an unmistakable conclusion that the present case is one of the rarest of rare cases warranting the extreme penalty imposable by law. The case of Appellant 2 Jitu is not distinguishable. But for his active participation in the conspiracy and its execution, Accused 1 could not have succeeded in committing the murder of six persons including a pregnant woman and a teenaged (sic) child. The manner in which Jitu, Appellant 2 committed the murder of Pratik is not only ghastly but reflects his beast-like mental attitude. The appellants do not deserve any sympathy from the law and society. 14.
### Response:
0
### Explanation:
We, therefore, do not find any substance in the submissions of the learned defence counsel that as the statement of the approver was recorded after a prolonged delay, no reliance could be placed upon it. The delay in granting the pardon may be a just criticism, where it is found that the pardon had been tendered at the end of the trial and in effect was intended to fill up the lacunae in the prosecution case. Such is not the present case13. It is true that in a civilised society a tooth for a tooth, and a nail for a nail or death for death is not the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life according to the procedure established by law, as the Constitution itself has recognised the death sentence as a permissible punishment for which sufficient constitutional provision for an appeal, reprieve and the like have been provided under the law. It is true that life sentence is the rule and death sentence is an exception. We are satisfied that the present case is an exceptional case which warrants the awarding of maximum penalty under the law to the appellant-accused. The crime committed by the appellant is not only shocking but it has also jeopardised the society. The awarding of lesser sentence only on the ground of the appellant being a youth at the time of occurrence cannot be considered as a mitigating circumstance in view of our findings that the murders committed by him were most cruel, heinous and dastardly. We have no doubt that the present case is the rarest of the rare requiring the maximum penalty, imposable under law. After going through whole of the evidence, perusing the record, thoughtfully considering the submissions made before us and before the trial court as well as the High Court, we have come to an unmistakable conclusion that the present case is one of the rarest of rare cases warranting the extreme penalty imposable by law. The case of Appellant 2 Jitu is not distinguishable. But for his active participation in the conspiracy and its execution, Accused 1 could not have succeeded in committing the murder of six persons including a pregnant woman and a teenaged (sic) child. The manner in which Jitu, Appellant 2 committed the murder of Pratik is not only ghastly but reflects his beast-like mental attitude. The appellants do not deserve any sympathy from the law and society.
|
TATA HOUSING DEVELOPMENT COMPANY LIMITED Vs. AALOK JAGGA | closure of certain hazardous industries, the directions for closure of slaughterhouse and its relocation, the various directions issued for the protection of the Ridge area in Delhi, the directions for setting up effluent treatment plants to the industries located in Delhi, the directions to tanneries etc., are all judgments which seek to protect the environment. 10. In the matter of enforcement of fundamental rights under Article 21, under public law domain, the Court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the POLLUTER-PAYS PRINCIPLE which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. 34. In M.C. Mehta (Badkhal and Surajkund Lakes matter) vs. Union of India and others, (1997) 3 SCC 715 , this Court had observed: 6. Mr. Shanti Bhushan, learned Senior Advocate, appearing for some of the builders had vehemently contended that banning construction within one km radius from Badkhal and Surajkund is arbitrary. According to him, it is not based on technical reasons. He has referred to the directions issued by the Government of India under the Environment Protection Act and has contended that the construction can at the most be banned within 200 to 500 metres as was done by the Government of India in the coastal areas. He has also contended that restriction on construction only in the areas surrounding Surajkund and Badkhal lakes is hit by Article 14 of the Constitution of India as it is not being extended to other lakes in the country. We do not agree with Mr. Shanti Bhushan. The functioning of ecosystems and the status of environment cannot be the same in the country. Preventive measures have to be taken, keeping in view the carrying capacity of the ecosystems operating in the environmental surroundings under consideration. Badkhal and Surajkund lakes are popular tourist resorts almost next door to the capital city of Delhi. We have on record the Inspection Report in respect of these lakes by the National Environmental Engineering Research Institute (NEERI) dated 20-4-1996, indicating the surroundings, geological features, land use, and soil types and archaeological significance of the areas surrounding the lakes. According to the report, Surajkund lake impounds water from rain and natural springs. Badkhal Lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types, as explained in the report, show that the Badkhal Lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large- scale construction in the vicinity of these tourist resorts may disturb the rainwater drains, which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed. 35. In Indian Council for Enviro-Legal Action vs. Union of India and others, (1996) 5 SCC 281 , this Court has made the following observations: 41. With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby seeking to protect the fundamental rights of the citizens is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental-related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The courts, in a way, act as the guardian of the peoples fundamental rights, but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though it is not the function of the Court to see the day-to-day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law. 36. In the aforesaid facts and circumstances of the case, considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, in ouropinion, no such project can be allowed to come up in the area in question. The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so. The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco-sensitive zone around a Wildlife and has permitted setting up of high-rise buildings up to 92 meters in the area in question, which is not at all permissible. | 1[ds]19. The Notification makes it clear that no new commercial construction of any kind shall be permitted within 0.5 km. from the boundary of protected area or up to the boundary of the eco-sensitive zone. Construction of all types of new buildings and houses up to a distance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2 km, construction of low density (ground coverage less than half of the plot size) and low rise building about 15 feet can be permitted20. Given the findings above, recorded by the High Court as to the distance from the Wildlife Sanctuary, we have heard learned counsel for the parties on the issue at length21. It is not in dispute that proposal, which was sent by the Government of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from Sukhna Wildlife Sanctuary, had not been accepted and the direction was issued to resubmit the proposal for at least 1 km Buffer Zone has not been forwarded by State of Punjab23. It was incumbent upon the State of Punjab to send a proposal to the MoEF, as required but it appears that it has not chosen to do so for a reason precious project concerning the MLAs is involved, and MoEF has not accepted its proposal for keeping Buffer Zone to 100 meters. It has also been pointed out from the respondent side that Naya Gaon forms part of the Greater Mohali Region in the State of Punjab. In the statutory, Greater Mohali Area Development Authority, Regional Plan for Greater Mohali Region in paragraph 14.3.1, it has been mentioned that no development is possible within 5 kms buffer distance from existing forest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are several pockets of forests distributed all over the Greater Mohali Region. These have to be conserved, and the buffer zone recommended should be protected against urban development24. It is also clear that 2-2.75 km area has been ordered as eco-sensitive zone by the MoEF and the notification dated 18.1.2017 has been issued as to the adjacent area towards Chandigarh side of the Sukhna Wildlife Sanctuary27. The Directive Principles of State Policy provide that protection and improvement of environment, safeguarding forest and wildlife have been duly enjoined upon the Government. Those principles have found statutory expression in various enactments i.e., Wildlife (Protection) Act, E.P. Act etc., which have been enforced by this Court in various decisions. The inaction of State to constitutional and statutory duties cannot be permitted. The Court has to issue appropriate directions to fulfil the mandate25. The most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala. The climate change is impacting wildlife by disrupting the timing of natural events. With warmer temperatures, flowering plants are blooming earlier in the year and migratory birds are returning from their wintering grounds earlier in the spring. Wildlife conservation in India has a long history, dating back to the colonial period when it was rather very restrictive to only targeted species and that too in a defined geographical area. Then, the formation of the Wildlife Board at the national level and enactment of Wildlife Act in 1972 laid the foundation of present day wildlife conservation era in post-independent India. Project Tiger in the 1970s and the Project Elephant in 1992–both with flagship species–attracted global attention. India then also became a member of all major international conservation treaties related to habitat, species and environment like Ramsar Convention, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973; Convention on Migratory Species, 1979; Convention on Biological Diversity, 1992, among others26. The human as well as the wildlife are completely dependent upon environment for their survival. Human is completely dependent on the environment. Like the human, the wild life is also dependent on the environment for its survival and also get effected by the environment. The relationship between the human and animal can be understood by the food-chain and food-web. The wildlife is affected by several reasons such as population, deforestation, urbanization, high number of industries, chemical effluents, unplanned land-use policies, and reckless use of natural resources etc. | 1 | 9,726 | 843 | ### 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:
closure of certain hazardous industries, the directions for closure of slaughterhouse and its relocation, the various directions issued for the protection of the Ridge area in Delhi, the directions for setting up effluent treatment plants to the industries located in Delhi, the directions to tanneries etc., are all judgments which seek to protect the environment. 10. In the matter of enforcement of fundamental rights under Article 21, under public law domain, the Court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the POLLUTER-PAYS PRINCIPLE which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. 34. In M.C. Mehta (Badkhal and Surajkund Lakes matter) vs. Union of India and others, (1997) 3 SCC 715 , this Court had observed: 6. Mr. Shanti Bhushan, learned Senior Advocate, appearing for some of the builders had vehemently contended that banning construction within one km radius from Badkhal and Surajkund is arbitrary. According to him, it is not based on technical reasons. He has referred to the directions issued by the Government of India under the Environment Protection Act and has contended that the construction can at the most be banned within 200 to 500 metres as was done by the Government of India in the coastal areas. He has also contended that restriction on construction only in the areas surrounding Surajkund and Badkhal lakes is hit by Article 14 of the Constitution of India as it is not being extended to other lakes in the country. We do not agree with Mr. Shanti Bhushan. The functioning of ecosystems and the status of environment cannot be the same in the country. Preventive measures have to be taken, keeping in view the carrying capacity of the ecosystems operating in the environmental surroundings under consideration. Badkhal and Surajkund lakes are popular tourist resorts almost next door to the capital city of Delhi. We have on record the Inspection Report in respect of these lakes by the National Environmental Engineering Research Institute (NEERI) dated 20-4-1996, indicating the surroundings, geological features, land use, and soil types and archaeological significance of the areas surrounding the lakes. According to the report, Surajkund lake impounds water from rain and natural springs. Badkhal Lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types, as explained in the report, show that the Badkhal Lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large- scale construction in the vicinity of these tourist resorts may disturb the rainwater drains, which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed. 35. In Indian Council for Enviro-Legal Action vs. Union of India and others, (1996) 5 SCC 281 , this Court has made the following observations: 41. With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby seeking to protect the fundamental rights of the citizens is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental-related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The courts, in a way, act as the guardian of the peoples fundamental rights, but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though it is not the function of the Court to see the day-to-day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law. 36. In the aforesaid facts and circumstances of the case, considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, in ouropinion, no such project can be allowed to come up in the area in question. The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so. The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco-sensitive zone around a Wildlife and has permitted setting up of high-rise buildings up to 92 meters in the area in question, which is not at all permissible.
### Response:
1
### Explanation:
19. The Notification makes it clear that no new commercial construction of any kind shall be permitted within 0.5 km. from the boundary of protected area or up to the boundary of the eco-sensitive zone. Construction of all types of new buildings and houses up to a distance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2 km, construction of low density (ground coverage less than half of the plot size) and low rise building about 15 feet can be permitted20. Given the findings above, recorded by the High Court as to the distance from the Wildlife Sanctuary, we have heard learned counsel for the parties on the issue at length21. It is not in dispute that proposal, which was sent by the Government of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from Sukhna Wildlife Sanctuary, had not been accepted and the direction was issued to resubmit the proposal for at least 1 km Buffer Zone has not been forwarded by State of Punjab23. It was incumbent upon the State of Punjab to send a proposal to the MoEF, as required but it appears that it has not chosen to do so for a reason precious project concerning the MLAs is involved, and MoEF has not accepted its proposal for keeping Buffer Zone to 100 meters. It has also been pointed out from the respondent side that Naya Gaon forms part of the Greater Mohali Region in the State of Punjab. In the statutory, Greater Mohali Area Development Authority, Regional Plan for Greater Mohali Region in paragraph 14.3.1, it has been mentioned that no development is possible within 5 kms buffer distance from existing forest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are several pockets of forests distributed all over the Greater Mohali Region. These have to be conserved, and the buffer zone recommended should be protected against urban development24. It is also clear that 2-2.75 km area has been ordered as eco-sensitive zone by the MoEF and the notification dated 18.1.2017 has been issued as to the adjacent area towards Chandigarh side of the Sukhna Wildlife Sanctuary27. The Directive Principles of State Policy provide that protection and improvement of environment, safeguarding forest and wildlife have been duly enjoined upon the Government. Those principles have found statutory expression in various enactments i.e., Wildlife (Protection) Act, E.P. Act etc., which have been enforced by this Court in various decisions. The inaction of State to constitutional and statutory duties cannot be permitted. The Court has to issue appropriate directions to fulfil the mandate25. The most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala. The climate change is impacting wildlife by disrupting the timing of natural events. With warmer temperatures, flowering plants are blooming earlier in the year and migratory birds are returning from their wintering grounds earlier in the spring. Wildlife conservation in India has a long history, dating back to the colonial period when it was rather very restrictive to only targeted species and that too in a defined geographical area. Then, the formation of the Wildlife Board at the national level and enactment of Wildlife Act in 1972 laid the foundation of present day wildlife conservation era in post-independent India. Project Tiger in the 1970s and the Project Elephant in 1992–both with flagship species–attracted global attention. India then also became a member of all major international conservation treaties related to habitat, species and environment like Ramsar Convention, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973; Convention on Migratory Species, 1979; Convention on Biological Diversity, 1992, among others26. The human as well as the wildlife are completely dependent upon environment for their survival. Human is completely dependent on the environment. Like the human, the wild life is also dependent on the environment for its survival and also get effected by the environment. The relationship between the human and animal can be understood by the food-chain and food-web. The wildlife is affected by several reasons such as population, deforestation, urbanization, high number of industries, chemical effluents, unplanned land-use policies, and reckless use of natural resources etc.
|
Commissioner Of Central Excise, Calcutta Vs. Tisco Ltd | different prices to different classes of buyers. It is a fact that the expression class of buyers is not defined under S.4 of the said Act. But keeping in view the definition of wholesale trade in terms of S.4(4)(e) it can be held that dealers, industrial consumers, government, local authorities, etc. constitute different class of buyers. As per stipulations of S.4(1)(a)(i) if an assessee sells its goods at different prices to different classes of buyers such prices would be deemed to be the normal prices of such goods if such buyers are not related persons. I like to stress on the connotation, not being related person within the bracket immediately after different classes of buyers stipulated in S.4(1)(a)(i), and with a view to deny the facility of having Part II prices, the approving authority should have some clinching evidence to the effect that such buyers are related persons. In the purported case the Assistant Collector could not establish any relationship between M/s TELCO and the appellant. Moreover, whether a particular buyer constitutes a class of buyers or not will depend upon trade practice. Each buyer is a class within itself since he can be distinguished from other buyers. Hence, prices charged to a buyer treating it as a different class of buyers should be normal prices until and unless there is evidence to hold that such buyer is a related person of the assessee. 6. We are unable to agree with the reasoning. Merely because parties are not related persons does not mean that each buyer becomes a class within itself. The normal rule, under S.4, is that the value which shall be deemed to be the price at which such goods are ordinarily sold by the assessee in the wholesale trade, where the buyer is not a related person and the price is the sole consideration for sale. Admittedly, in this case the normal price was the price in List 1. This was the price at which the goods were proposed to be sold in the wholesale trade. The proviso to this section is an exception to the general rule. The proviso comes into play in cases (a) where there is a normal practice in the wholesale trade in such goods, and (b) such goods are sold by the assessee at different prices to different, classes of buyers. To claim benefit of this proviso, a trade practice must be averred and shown to exist and it must be shown that there is a different class of buyer. As set out above, the Collector (Appeals) notes: Whether a particular buyer constitutes a class of buyers or not, will depend upon the trade practice. 7. Yet the Collector (Appeals) then ignores the fact that there is no averment nor proof of any trade practice. Further, the observations of the Collector (Appeals) that the price charged to a buyer treating it as a different class of buyer should be the normal price unless there is an evidence to hold that such buyer is a related person of the assessee, is a wrong proposition of law. Cogent reasons must be shown as to how the buyer is a different class of buyer. There can be various reasons why a buyer becomes a different class of buyer. A bulk purchaser or persons situated in different locations or different industries, for example, one being a car manufacturing industry and another being a heavy duty machinery manufacturing industry or a third being an electric motor manufacturing industry could all be different classes of buyers. But these are facts which must first be averred and then proved. It is only on the basis of facts averred and shown that a conclusion can be reached that the sale is to a different class of buyer. In this case except for broadly stating that the sale is to a different class of buyer, the Collector (Appeals) has not given any reason as to how he concludes that TELCO was a different class of buyer. The only reason for concluding that TELCO was a different class of buyer appears to be because a different price was charged from it. That by itself is not sufficient. On the facts of this case it is clear that there was no material to show that TELCO was a different class of buyer. 8. The appellant herein carried the matter in appeal to the Tribunal which appeal has been dismissed by the impugned judgment. The impugned judgment is virtually a one paragraph judgment which reads as follows: 4. After hearing the learned JDR, we observe that the Commissioner (Appeals) in the impugned order has observed that if an assessee sells their goods at different prices to different classes of buyers, such prices would be deemed to be normal prices of such goods, if such buyers are not related persons; that the Assistant Commissioner could not establish any relationship between M/s TELCO and the assessee. The Commissioner (Appeals) also observed that whether a particular buyer constitutes a class of buyers or not, will depend upon the trade practice. Each buyer is a class by itself since he can be distinguished from other buyers. The Commissioner (Appeals), therefore, set aside the Assistant Commissioners order. The very fact is that the law provides for filing of different prices for different classes of buyers and also the different forms for filing the price lists. There is no reason not to accept the price filed in Part II until and unless it is shown that the low prices have been charged on extraneous circumstances. 9. The Tribunal, has laid down a general proposition of law. But it has not applied its mind whether that law can be applied to the facts of this case. The Tribunal also does not indicate how and what material was there to show that TELCO was a different class of buyer. 10. Both the orders of the Collector (Appeals) and the Tribunal are unfortunately bereft of any reasoning. Neither of them can be sustained. | 1[ds]6. We are unable to agree with the reasoning. Merely because parties are not related persons does not mean that each buyer becomes a class within itselfThe proviso comes into play in cases (a) where there is a normal practice in the wholesale trade in such goods, and (b) such goods are sold by the assessee at different prices to different, classes of buyers. To claim benefit of this proviso, a trade practice must be averred and shown to exist and it must be shown that there is a different class of buyerThat by itself is not sufficient. On the facts of this case it is clear that there was no material to show that TELCO was a different class of buyerTribunal, has laid down a general proposition of law. But it has not applied its mind whether that law can be applied to the facts of this case. The Tribunal also does not indicate how and what material was there to show that TELCO was a different class of buyerBoth the orders of the Collector (Appeals) and the Tribunal are unfortunately bereft of any reasoning. Neither of them can be sustained. | 1 | 1,716 | 214 | ### 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:
different prices to different classes of buyers. It is a fact that the expression class of buyers is not defined under S.4 of the said Act. But keeping in view the definition of wholesale trade in terms of S.4(4)(e) it can be held that dealers, industrial consumers, government, local authorities, etc. constitute different class of buyers. As per stipulations of S.4(1)(a)(i) if an assessee sells its goods at different prices to different classes of buyers such prices would be deemed to be the normal prices of such goods if such buyers are not related persons. I like to stress on the connotation, not being related person within the bracket immediately after different classes of buyers stipulated in S.4(1)(a)(i), and with a view to deny the facility of having Part II prices, the approving authority should have some clinching evidence to the effect that such buyers are related persons. In the purported case the Assistant Collector could not establish any relationship between M/s TELCO and the appellant. Moreover, whether a particular buyer constitutes a class of buyers or not will depend upon trade practice. Each buyer is a class within itself since he can be distinguished from other buyers. Hence, prices charged to a buyer treating it as a different class of buyers should be normal prices until and unless there is evidence to hold that such buyer is a related person of the assessee. 6. We are unable to agree with the reasoning. Merely because parties are not related persons does not mean that each buyer becomes a class within itself. The normal rule, under S.4, is that the value which shall be deemed to be the price at which such goods are ordinarily sold by the assessee in the wholesale trade, where the buyer is not a related person and the price is the sole consideration for sale. Admittedly, in this case the normal price was the price in List 1. This was the price at which the goods were proposed to be sold in the wholesale trade. The proviso to this section is an exception to the general rule. The proviso comes into play in cases (a) where there is a normal practice in the wholesale trade in such goods, and (b) such goods are sold by the assessee at different prices to different, classes of buyers. To claim benefit of this proviso, a trade practice must be averred and shown to exist and it must be shown that there is a different class of buyer. As set out above, the Collector (Appeals) notes: Whether a particular buyer constitutes a class of buyers or not, will depend upon the trade practice. 7. Yet the Collector (Appeals) then ignores the fact that there is no averment nor proof of any trade practice. Further, the observations of the Collector (Appeals) that the price charged to a buyer treating it as a different class of buyer should be the normal price unless there is an evidence to hold that such buyer is a related person of the assessee, is a wrong proposition of law. Cogent reasons must be shown as to how the buyer is a different class of buyer. There can be various reasons why a buyer becomes a different class of buyer. A bulk purchaser or persons situated in different locations or different industries, for example, one being a car manufacturing industry and another being a heavy duty machinery manufacturing industry or a third being an electric motor manufacturing industry could all be different classes of buyers. But these are facts which must first be averred and then proved. It is only on the basis of facts averred and shown that a conclusion can be reached that the sale is to a different class of buyer. In this case except for broadly stating that the sale is to a different class of buyer, the Collector (Appeals) has not given any reason as to how he concludes that TELCO was a different class of buyer. The only reason for concluding that TELCO was a different class of buyer appears to be because a different price was charged from it. That by itself is not sufficient. On the facts of this case it is clear that there was no material to show that TELCO was a different class of buyer. 8. The appellant herein carried the matter in appeal to the Tribunal which appeal has been dismissed by the impugned judgment. The impugned judgment is virtually a one paragraph judgment which reads as follows: 4. After hearing the learned JDR, we observe that the Commissioner (Appeals) in the impugned order has observed that if an assessee sells their goods at different prices to different classes of buyers, such prices would be deemed to be normal prices of such goods, if such buyers are not related persons; that the Assistant Commissioner could not establish any relationship between M/s TELCO and the assessee. The Commissioner (Appeals) also observed that whether a particular buyer constitutes a class of buyers or not, will depend upon the trade practice. Each buyer is a class by itself since he can be distinguished from other buyers. The Commissioner (Appeals), therefore, set aside the Assistant Commissioners order. The very fact is that the law provides for filing of different prices for different classes of buyers and also the different forms for filing the price lists. There is no reason not to accept the price filed in Part II until and unless it is shown that the low prices have been charged on extraneous circumstances. 9. The Tribunal, has laid down a general proposition of law. But it has not applied its mind whether that law can be applied to the facts of this case. The Tribunal also does not indicate how and what material was there to show that TELCO was a different class of buyer. 10. Both the orders of the Collector (Appeals) and the Tribunal are unfortunately bereft of any reasoning. Neither of them can be sustained.
### Response:
1
### Explanation:
6. We are unable to agree with the reasoning. Merely because parties are not related persons does not mean that each buyer becomes a class within itselfThe proviso comes into play in cases (a) where there is a normal practice in the wholesale trade in such goods, and (b) such goods are sold by the assessee at different prices to different, classes of buyers. To claim benefit of this proviso, a trade practice must be averred and shown to exist and it must be shown that there is a different class of buyerThat by itself is not sufficient. On the facts of this case it is clear that there was no material to show that TELCO was a different class of buyerTribunal, has laid down a general proposition of law. But it has not applied its mind whether that law can be applied to the facts of this case. The Tribunal also does not indicate how and what material was there to show that TELCO was a different class of buyerBoth the orders of the Collector (Appeals) and the Tribunal are unfortunately bereft of any reasoning. Neither of them can be sustained.
|
M.N. Clubwala & Another Vs. Fida Hussain Saheb & Others | mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a lease. Indeed, S. 62 (c) of the Indian Easements Act, 1882 itself provides that a licence is deemed to be revoked where it has been either granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled. In the agreements in question the requirement of a notice is a condition and if that condition is fulfilled the licence will be deemed to be revoked under S. 62.It would seem that it is this particular requirement in the agreements which has gone a long way to influence the High Courts finding that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. (Ibid p. 427).Here the terms of the document evidencing the agreement between the parties are not clear anu so the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. Again, as already stated, the documents relied upon being merely agreements executed unilaterally by the stall-holders in favour of the landlords they cannot be said to be formal agreements between the parties. We must, therefore, look at the surrounding circumstances. One of those circumstances is whether actual possession of the stalls can be said to have continued with the landlords or whether it had passed on to the stall-holders. Even if it had passed to a person, his right to exclusive possession would not be conclusive evidence of the existence of a tenancy though that would be a consideration of first importance. That is what was held in Errington v. Errington and Woods, 1952-1 KB 290 and Cobb v. Lane, 1952-1 All ER l199. These decisions reiterate the view which was taken in two earlier decisions. Clore v. Theatrical propertics Ltd. and Westby and Co. Ltd., 1936-3 All ER 483 and Smith and Son v. Assessment Committee for thc Parish of Lambeth, (1882) 10 QBD 327 at p. 330. Mr. S. T. Desai appearing for the appellants also relied on the decision of the High Court of Andhra Pradesh in Vurum Subba Rao v. Eluru Municipal Council, ILR (1956) Andhra 515 at p. 520-4 as laying down the same proposition. That was a case in which the High Court held that stall-holders in the municipal market were liable to pay what was called rent to the municipality, were not lessees but merely licensees. The fact, therefore, that a stall-holder has exclusive possession of the stall is not conclusive evidence of his being a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. (see Associated Hotels of India Ltd., v. R. N. Kapoor, 1960 1 SCR 368 : (AIR 1959 SC 1262 )). In the case before us, however, while it is true that each stall-holder is entitled to the exclusive use of his stall from day to day it is clear that he has no right to use it as and when he chooses to do so or to sleep in the stall during the night after closure of the market or enter the stall during the night after 11.00 p.m. at his pleasure. He can use it only during a stated period every day and subject to several conditions. These circumstances, coupled with the fact that the responsibility for cleaning the stalls, disinfecting them and of closing the market in which the stalls are situate is placed by the Act, the regulations made thereunder and the licence issued to the landlords is on the landlords would indicate that the legal possession of the stalls must also be deemed to have been with the landlords and not with the stall-holders. The right which the stall-holders had was to the exclusive use of the stalls during stated hours and nothing more. Looking at the matter in a slightly different way it would seem that it could never have been the intention of the parties to grant anything more than a licence to the stall-holders. The duties cast on the landlord by the Act are onerous and for performing those duties they were entitled to free and easy access to the stalls. They are also required to see to it that the market functioned only within the stated hours and not beyond them and also that the premises were used for no purpose other than of vending comestibles. A further duty which lay upon the landlords was to guard the entrance to the market. These duties could not be effectively carried out by the landlord by parting with possession in favour of the stall-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-holders adopted an unreasonable attitude. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could in such circumstances the landlords have ever intended to part with possession in favour of the stall-holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word rent was used loosely for fee. | 1[ds]But if that were so, the absence of a registered instrument would stand in their way and they would not be permitted to prove the existence of that lease by parol evidence. From the fact, however, that with every change in the contractor a fresh agreement was executed by the stall-holders it would be legitimate to infer that whatever the nature of the right conferred by the agreement upon the stall-holders, it could not be said to be one which entitled them to permanent occupation of the stalls. It could either be a licence as contended for by the appellant or a tenancy from month to month. In either case there would be no necessity for the execution of a written agreement signed by both the parties. Here, the agreements in question are in writing, though they have been signed by the stall-holders alone. All the same, oral evidence to prove their terms would be excluded by S. 92 of the Evidence Act. To that extent Mr. Gopalakrishnan is right. Though that is so, under the 6th proviso to that Section the surrounding circumstances can be taken into consideration for ascertaining the meaning of the word rent used in the agreements. Indeed, the very circumstance that rent is to fall due every day and in default of payment of rent for three days the stall-holder is liable to be evicted by being given only 24 hours notice it would not be easy to say that this rent is payable in respect of a lease. On the other hand, what is called rent may well be only a fee payable under a licence. At any rate this circumstance shows that there is ambiguity in the document and on this ground also surrounding circumstances could be looked into for ascertaining the real relationship between the parties.The High Court, however, has based itself upon the agreements themselves. To start with it pointed outand in our opinion rightlythat the use of the word rent in Ex.did not carry the respondents casethe case before us, however, while it is true that each stall-holder is entitled to the exclusive use of his stall from day to day it is clear that he has no right to use it as and when he chooses to do so or to sleep in the stall during the night after closure of the market or enter the stall during the night after 11.00 p.m. at his pleasure. He can use it only during a stated period every day and subject to several conditions. These circumstances, coupled with the fact that the responsibility for cleaning the stalls, disinfecting them and of closing the market in which the stalls are situate is placed by the Act, the regulations made thereunder and the licence issued to the landlords is on the landlords would indicate that the legal possession of the stalls must also be deemed to have been with the landlords and not with the stall-holders. The right which the stall-holders had was to the exclusive use of the stalls during stated hours and nothing more. Looking at the matter in a slightly different way it would seem that it could never have been the intention of the parties to grant anything more than a licence to the stall-holders. The duties cast on the landlord by the Act are onerous and for performing those duties they were entitled to free and easy access to the stalls. They are also required to see to it that the market functioned only within the stated hours and not beyond them and also that the premises were used for no purpose other than of vending comestibles. A further duty which lay upon the landlords was to guard the entrance to the market. These duties could not be effectively carried out by the landlord by parting with possession in favour of the stall-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-holders adopted an unreasonable attitude. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could in such circumstances the landlords have ever intended to part with possession in favour of the stall-holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word rent was used loosely for fee. | 1 | 4,098 | 805 | ### 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:
mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a lease. Indeed, S. 62 (c) of the Indian Easements Act, 1882 itself provides that a licence is deemed to be revoked where it has been either granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled. In the agreements in question the requirement of a notice is a condition and if that condition is fulfilled the licence will be deemed to be revoked under S. 62.It would seem that it is this particular requirement in the agreements which has gone a long way to influence the High Courts finding that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. (Ibid p. 427).Here the terms of the document evidencing the agreement between the parties are not clear anu so the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. Again, as already stated, the documents relied upon being merely agreements executed unilaterally by the stall-holders in favour of the landlords they cannot be said to be formal agreements between the parties. We must, therefore, look at the surrounding circumstances. One of those circumstances is whether actual possession of the stalls can be said to have continued with the landlords or whether it had passed on to the stall-holders. Even if it had passed to a person, his right to exclusive possession would not be conclusive evidence of the existence of a tenancy though that would be a consideration of first importance. That is what was held in Errington v. Errington and Woods, 1952-1 KB 290 and Cobb v. Lane, 1952-1 All ER l199. These decisions reiterate the view which was taken in two earlier decisions. Clore v. Theatrical propertics Ltd. and Westby and Co. Ltd., 1936-3 All ER 483 and Smith and Son v. Assessment Committee for thc Parish of Lambeth, (1882) 10 QBD 327 at p. 330. Mr. S. T. Desai appearing for the appellants also relied on the decision of the High Court of Andhra Pradesh in Vurum Subba Rao v. Eluru Municipal Council, ILR (1956) Andhra 515 at p. 520-4 as laying down the same proposition. That was a case in which the High Court held that stall-holders in the municipal market were liable to pay what was called rent to the municipality, were not lessees but merely licensees. The fact, therefore, that a stall-holder has exclusive possession of the stall is not conclusive evidence of his being a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. (see Associated Hotels of India Ltd., v. R. N. Kapoor, 1960 1 SCR 368 : (AIR 1959 SC 1262 )). In the case before us, however, while it is true that each stall-holder is entitled to the exclusive use of his stall from day to day it is clear that he has no right to use it as and when he chooses to do so or to sleep in the stall during the night after closure of the market or enter the stall during the night after 11.00 p.m. at his pleasure. He can use it only during a stated period every day and subject to several conditions. These circumstances, coupled with the fact that the responsibility for cleaning the stalls, disinfecting them and of closing the market in which the stalls are situate is placed by the Act, the regulations made thereunder and the licence issued to the landlords is on the landlords would indicate that the legal possession of the stalls must also be deemed to have been with the landlords and not with the stall-holders. The right which the stall-holders had was to the exclusive use of the stalls during stated hours and nothing more. Looking at the matter in a slightly different way it would seem that it could never have been the intention of the parties to grant anything more than a licence to the stall-holders. The duties cast on the landlord by the Act are onerous and for performing those duties they were entitled to free and easy access to the stalls. They are also required to see to it that the market functioned only within the stated hours and not beyond them and also that the premises were used for no purpose other than of vending comestibles. A further duty which lay upon the landlords was to guard the entrance to the market. These duties could not be effectively carried out by the landlord by parting with possession in favour of the stall-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-holders adopted an unreasonable attitude. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could in such circumstances the landlords have ever intended to part with possession in favour of the stall-holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word rent was used loosely for fee.
### Response:
1
### Explanation:
But if that were so, the absence of a registered instrument would stand in their way and they would not be permitted to prove the existence of that lease by parol evidence. From the fact, however, that with every change in the contractor a fresh agreement was executed by the stall-holders it would be legitimate to infer that whatever the nature of the right conferred by the agreement upon the stall-holders, it could not be said to be one which entitled them to permanent occupation of the stalls. It could either be a licence as contended for by the appellant or a tenancy from month to month. In either case there would be no necessity for the execution of a written agreement signed by both the parties. Here, the agreements in question are in writing, though they have been signed by the stall-holders alone. All the same, oral evidence to prove their terms would be excluded by S. 92 of the Evidence Act. To that extent Mr. Gopalakrishnan is right. Though that is so, under the 6th proviso to that Section the surrounding circumstances can be taken into consideration for ascertaining the meaning of the word rent used in the agreements. Indeed, the very circumstance that rent is to fall due every day and in default of payment of rent for three days the stall-holder is liable to be evicted by being given only 24 hours notice it would not be easy to say that this rent is payable in respect of a lease. On the other hand, what is called rent may well be only a fee payable under a licence. At any rate this circumstance shows that there is ambiguity in the document and on this ground also surrounding circumstances could be looked into for ascertaining the real relationship between the parties.The High Court, however, has based itself upon the agreements themselves. To start with it pointed outand in our opinion rightlythat the use of the word rent in Ex.did not carry the respondents casethe case before us, however, while it is true that each stall-holder is entitled to the exclusive use of his stall from day to day it is clear that he has no right to use it as and when he chooses to do so or to sleep in the stall during the night after closure of the market or enter the stall during the night after 11.00 p.m. at his pleasure. He can use it only during a stated period every day and subject to several conditions. These circumstances, coupled with the fact that the responsibility for cleaning the stalls, disinfecting them and of closing the market in which the stalls are situate is placed by the Act, the regulations made thereunder and the licence issued to the landlords is on the landlords would indicate that the legal possession of the stalls must also be deemed to have been with the landlords and not with the stall-holders. The right which the stall-holders had was to the exclusive use of the stalls during stated hours and nothing more. Looking at the matter in a slightly different way it would seem that it could never have been the intention of the parties to grant anything more than a licence to the stall-holders. The duties cast on the landlord by the Act are onerous and for performing those duties they were entitled to free and easy access to the stalls. They are also required to see to it that the market functioned only within the stated hours and not beyond them and also that the premises were used for no purpose other than of vending comestibles. A further duty which lay upon the landlords was to guard the entrance to the market. These duties could not be effectively carried out by the landlord by parting with possession in favour of the stall-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-holders adopted an unreasonable attitude. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could in such circumstances the landlords have ever intended to part with possession in favour of the stall-holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word rent was used loosely for fee.
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State Of Punjab & Ors Vs. Labhu Ram & Ors | lien.3.12. Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post an d ceases to hold any lien previously acquired on any other post.3.13. Unless his lien is suspended under rule 3.14 or transferred under rule 3.16, a Government servant holding substantively a permanent post retains a lien on that post-(a) while performing the duties of that post;(b) while on foreign service, or holding a temporary post, or officiating in another post;(c) during joining time on transfer to another post, unless he is transferred substantively to a post on lower pay, in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the old post;(d) except as provided in Note below while on leave; and(e) while under suspension.3.14. (a) A competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively, if he is appointed in a substantive capacity:(1) to a tenure post, or(2) to a permanent post outside the cadre on which he is borne. Or(3) provisionally, to a post on which another Government servant would hold a lien, had his lien not been suspended under rule.(b) A competent authority may, at its option, suspend the lien of a Government servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this rule, is transferred, whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent fro m the post on which he holds a lien, for a period of not less than three years.(c) Notwithstanding anything contained in clause (a) or (b) of this rule, a Government servants lien on a tenure post may, in no circumstances, be suspended. If he is appointed substantively to another permanent post, his lien on the tenure post must be terminated.(d) If a Government servants lien on a post is suspended under clause (a) or (b) of this rule, the post may be filled substantively, and the Government servant appointed to hold it substantively shall acquire a lien on it: Provided that the arrangements shall be reversed as soon as the suspended lien revives.(e) A Government servants lien which has been suspended under clause (a) of this rule shall revive as soon as he ceases to hold a lien on a post of the nature specified in sub-clause (1), (2) or (3) of that clause.(f) A Government servants lien which has been suspended under clause (b) of this rule shall revive as soon as he ceases to be on deputation out of India or on foreign service or to hold a post in another cadre: Provided that a suspended lien shall not revive because the Government servant takes leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified in sub-clause (1), (2) or (3) of clause (a).3.15. (a) Except as provided in clause (c) of this rule and in note under rule 3.13, a Government servants lien on a post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.(b) In a case covered by sub-clause (2) of clause (a) rule 3.14 the suspended lien may not, except on the written request of the Government servant concerned, be terminated while the Government servant remains in Government service.(c) Notwithstanding the provisions of rule 3.14(a). the lien of a Government servant holding substantively a permanent post shah be terminated on his appointment substantively to the post of Chief Engineer of the Public Works Department.3.16. Subject to the provisions of rule 3.17, a competent authority may transfer to another permanent post in the same cadre the lien of a Government servant who is not performing the duties of a post to which the lien relates, even if that lien has been suspended."According to the rules set out above, the lien of the petitioners in the junior vernacular cadre was retained by them and it could not be suspended by the mere fact that they were performing the duties of teachers working in the senior vernacular cadre. Nothing beyond this was disclosed by the facts of these cases.The definition of a probationer, given in rule 2.49 is as follows:"2.49. Probationer means a Government servant employed on probation in or against a substantive vacancy in the cadre of a department. This term does not, however, cover a Government servant who holds substantively a permanent post in a cadre and is merely appointed on probation to another post".3. Learned Counsel for the State was unable to substantiate the submission that the petitioners respondents were merely probationers the senior vernacular cadre and not really persons whose substantive posts were in the junior vernacular cadre, appointed to perform the duties of persons put in another cadre. Their duties in the senior cadre involved teaching somewhat higher classes. This additional experience could not reasonably be looked up as a disqualification for the selection grade. The High Court had, therefore, given the petitioner-respondents the benefits of the cadre on which their names should have been retained. Moreover, this is not a question which can arise again as the two different cadres have been merged with retrospective effect from 1st October, 1957. It meant that they were entitled to be considered for the selection grade, and, if they satisfy the requirements for selection to get the benefits of it.4. | 0[ds]Learned Counsel for the State was unable to substantiate the submission that the petitioners respondents were merely probationers the senior vernacular cadre and not really persons whose substantive posts were in the junior vernacular cadre, appointed to perform the duties of persons put in another cadre. Their duties in the senior cadre involved teaching somewhat higher classes. This additional experience could not reasonably be looked up as a disqualification for the selection grade. The High Court had, therefore, given the petitioner-respondents the benefits of the cadre on which their names should have been retained. Moreover, this is not a question which can arise again as the two different cadres have been merged with retrospective effect from 1st October, 1957. It meant that they were entitled to be considered for the selection grade, and, if they satisfy the requirements for selection to get the benefits of it. | 0 | 2,111 | 163 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
lien.3.12. Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post an d ceases to hold any lien previously acquired on any other post.3.13. Unless his lien is suspended under rule 3.14 or transferred under rule 3.16, a Government servant holding substantively a permanent post retains a lien on that post-(a) while performing the duties of that post;(b) while on foreign service, or holding a temporary post, or officiating in another post;(c) during joining time on transfer to another post, unless he is transferred substantively to a post on lower pay, in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the old post;(d) except as provided in Note below while on leave; and(e) while under suspension.3.14. (a) A competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively, if he is appointed in a substantive capacity:(1) to a tenure post, or(2) to a permanent post outside the cadre on which he is borne. Or(3) provisionally, to a post on which another Government servant would hold a lien, had his lien not been suspended under rule.(b) A competent authority may, at its option, suspend the lien of a Government servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this rule, is transferred, whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent fro m the post on which he holds a lien, for a period of not less than three years.(c) Notwithstanding anything contained in clause (a) or (b) of this rule, a Government servants lien on a tenure post may, in no circumstances, be suspended. If he is appointed substantively to another permanent post, his lien on the tenure post must be terminated.(d) If a Government servants lien on a post is suspended under clause (a) or (b) of this rule, the post may be filled substantively, and the Government servant appointed to hold it substantively shall acquire a lien on it: Provided that the arrangements shall be reversed as soon as the suspended lien revives.(e) A Government servants lien which has been suspended under clause (a) of this rule shall revive as soon as he ceases to hold a lien on a post of the nature specified in sub-clause (1), (2) or (3) of that clause.(f) A Government servants lien which has been suspended under clause (b) of this rule shall revive as soon as he ceases to be on deputation out of India or on foreign service or to hold a post in another cadre: Provided that a suspended lien shall not revive because the Government servant takes leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified in sub-clause (1), (2) or (3) of clause (a).3.15. (a) Except as provided in clause (c) of this rule and in note under rule 3.13, a Government servants lien on a post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.(b) In a case covered by sub-clause (2) of clause (a) rule 3.14 the suspended lien may not, except on the written request of the Government servant concerned, be terminated while the Government servant remains in Government service.(c) Notwithstanding the provisions of rule 3.14(a). the lien of a Government servant holding substantively a permanent post shah be terminated on his appointment substantively to the post of Chief Engineer of the Public Works Department.3.16. Subject to the provisions of rule 3.17, a competent authority may transfer to another permanent post in the same cadre the lien of a Government servant who is not performing the duties of a post to which the lien relates, even if that lien has been suspended."According to the rules set out above, the lien of the petitioners in the junior vernacular cadre was retained by them and it could not be suspended by the mere fact that they were performing the duties of teachers working in the senior vernacular cadre. Nothing beyond this was disclosed by the facts of these cases.The definition of a probationer, given in rule 2.49 is as follows:"2.49. Probationer means a Government servant employed on probation in or against a substantive vacancy in the cadre of a department. This term does not, however, cover a Government servant who holds substantively a permanent post in a cadre and is merely appointed on probation to another post".3. Learned Counsel for the State was unable to substantiate the submission that the petitioners respondents were merely probationers the senior vernacular cadre and not really persons whose substantive posts were in the junior vernacular cadre, appointed to perform the duties of persons put in another cadre. Their duties in the senior cadre involved teaching somewhat higher classes. This additional experience could not reasonably be looked up as a disqualification for the selection grade. The High Court had, therefore, given the petitioner-respondents the benefits of the cadre on which their names should have been retained. Moreover, this is not a question which can arise again as the two different cadres have been merged with retrospective effect from 1st October, 1957. It meant that they were entitled to be considered for the selection grade, and, if they satisfy the requirements for selection to get the benefits of it.4.
### Response:
0
### Explanation:
Learned Counsel for the State was unable to substantiate the submission that the petitioners respondents were merely probationers the senior vernacular cadre and not really persons whose substantive posts were in the junior vernacular cadre, appointed to perform the duties of persons put in another cadre. Their duties in the senior cadre involved teaching somewhat higher classes. This additional experience could not reasonably be looked up as a disqualification for the selection grade. The High Court had, therefore, given the petitioner-respondents the benefits of the cadre on which their names should have been retained. Moreover, this is not a question which can arise again as the two different cadres have been merged with retrospective effect from 1st October, 1957. It meant that they were entitled to be considered for the selection grade, and, if they satisfy the requirements for selection to get the benefits of it.
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State Of H.P Vs. Raja Mahendra Pal | property and that he was merely an officer appointed by the Government in exercise of its sovereign power. But for his position as a Forest Officer, he had no jurisdiction to deal with the forest or even enter into it. The arrangements made earlier in the form of conferment of rights upon his forefather stood extinguished and merged with his position as a Forest Officer of the State Government. He was entitled only to such benefits to which the forest officer is entitled. His entitlement in the present case was restricted only to the extent of sharing of the royalty and not for anything more. Even in the settlement report of 1916 which was amended on 30.7.1945 regarding Kutlehar Forest it was provided that all trees growing in the protected forest subject to the rights of Burtandars and to the other conditions and exceptions specified therein belonged to the Government which were assigned to the Raja so long as he abides the conditions of management or such other conditions as were specified at the time or which might be substituted by other terms at any time. 12. Reliance upon the judgment of this Court in State of Orissa and others v. Titaghur Paper Mills Co. Ltd. and another, AIR 1985 SC 1293 is also of no help to respondent No. 1. In that case it was observed that "royalty" is not a term used in legal parlance for the price of goods sold." It was observed that the royalty was defined to mean, a payment reserved by the grantor of a patent, lease of a mine or similar right, and payable proportionately to the use made of the right by the grantee, which shall on payment of money, but may be a payment in kind being the part of the produce of the exercise of the right. The judicial Committee of the Privy Council in Raja Bahadur Kamakshya Narain Singh v. Commissioner of Income Tax Bihar and Orissa, AIR 1943 PC 153 had held that royalty was an income flowing from the convenant in the lease. While dealing with the question of royalty. It was held : "These are periodical payments, to be made by the lessee under his convenants in consideration of the benefits which he is granted by the lessor. What these benefits may be is shown by the extract from the lease quoted above, which illustrates how inadequate and fallacious it is to envisage the royalties as merely the price of the actual tons of coal. The tonnage royalty is indeed only payable when the coal or coke is gotton and despatched : but that is merely the last stage. As preliminary and ancillary to that culminating act, liberties are granted to enter on the land and search, to dig and sink pits, to erect engines and machinery, coke ovens furnaces and form railways and roads. All these and the like liberties show how fallacious it is to treat the lease as merely one for the acquisition of a certain number of tons of coal, or the agreed item of royalty as merely the price of each ton of coal." Neither the Judicial Committee of the Privy council nor this Court had held or referred to that the item like extension fee, interest, interest on interest, and payment for damage caused could be included within the ambit of them `royalty. The aforesaid payments were thus recoverable only on the basis of the contract or the statutory provisions. In Inderjeet Singh Sial and another v. Karamchand Thapar and others, 1995(6) SCC 166 it was held : "In its primary and natural sense `royalty, in the legal world, is known as the equivalent or translation of jura regalia or jura regia. Royal rights and prerogatives of a sovereign are covered thereunder. It its secondary sense the word `royalty would signity, as in mining leases, that part of the reddendum, variable though, payable in cash or kind, for rights and privileges obtained. It is found in the clause of the deed by which the grantor reserves something to himself out of that which he grants. But "What is in a name ? A rose by any other name would smell as sweet." So said Shakespeare." 13. The Court further held that the commodity goes by its value and not by the wrapper in which it is packed. If the thought is clear, its translation in words, spoken or written, may more often than not, tend to be faulty. The same substance under the facts of the particular case has to be understood before applying it in legal manner. This Court has very clearly held that royalty in general connotes the States share in the goods upon which the rights of its exploitation are conferred upon any person or the group of persons. If the royalty cannot be claimed by any individual, much less the controvercial items being its attribute, even if assumed, can be claimed by a citizen.14. The subjects covered by item Nos. XI, XII, XIII and XVII have thus to be understood in this context which leave no doubt in our mind that the said claims against the forest corporation covered by the aforesaid items owed their origin to the exercise of the sovereign rights vested in the appellant State. No private citizen, unless specifically authorised in that behalf under the provisions of law could prefer such claims. The High Court was, therefore, not justified in allowing the aforesaid claims in favour of the respondent No. 1. The observations in Para No. 21 of the impugned judgment are, therefore, benefit of any legal substance and thus cannot be upheld.15. We, are, therefore, satisfied that the impugned judgment of the High Court cannot be sustained even on merits and is liable to be quashed inasmuch as no statutory right enforceable under law existed in favour of the respondent No. 1 regarding the enforcement of which a command could have been issued in the form of a writ of mandamus. | 1[ds]13. The Court further held that the commodity goes by its value and not by the wrapper in which it is packed. If the thought is clear, its translation in words, spoken or written, may more often than not, tend to be faulty. The same substance under the facts of the particular case has to be understood before applying it in legal manner. This Court has very clearly held that royalty in general connotes the States share in the goods upon which the rights of its exploitation are conferred upon any person or the group of persons. If the royalty cannot be claimed by any individual, much less the controvercial items being its attribute, even if assumed, can be claimed by a citizen.14. The subjects covered by item Nos. XI, XII, XIII and XVII have thus to be understood in this context which leave no doubt in our mind that the said claims against the forest corporation covered by the aforesaid items owed their origin to the exercise of the sovereign rights vested in the appellant State. No private citizen, unless specifically authorised in that behalf under the provisions of law could prefer such claims. The High Court was, therefore, not justified in allowing the aforesaid claims in favour of the respondent No. 1. The observations in Para No. 21 of the impugned judgment are, therefore, benefit of any legal substance and thus cannot be upheld.15. We, are, therefore, satisfied that the impugned judgment of the High Court cannot be sustained even on merits and is liable to be quashed inasmuch as no statutory right enforceable under law existed in favour of the respondent No. 1 regarding the enforcement of which a command could have been issued in the form of a writ of mandamus. | 1 | 6,957 | 334 | ### 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:
property and that he was merely an officer appointed by the Government in exercise of its sovereign power. But for his position as a Forest Officer, he had no jurisdiction to deal with the forest or even enter into it. The arrangements made earlier in the form of conferment of rights upon his forefather stood extinguished and merged with his position as a Forest Officer of the State Government. He was entitled only to such benefits to which the forest officer is entitled. His entitlement in the present case was restricted only to the extent of sharing of the royalty and not for anything more. Even in the settlement report of 1916 which was amended on 30.7.1945 regarding Kutlehar Forest it was provided that all trees growing in the protected forest subject to the rights of Burtandars and to the other conditions and exceptions specified therein belonged to the Government which were assigned to the Raja so long as he abides the conditions of management or such other conditions as were specified at the time or which might be substituted by other terms at any time. 12. Reliance upon the judgment of this Court in State of Orissa and others v. Titaghur Paper Mills Co. Ltd. and another, AIR 1985 SC 1293 is also of no help to respondent No. 1. In that case it was observed that "royalty" is not a term used in legal parlance for the price of goods sold." It was observed that the royalty was defined to mean, a payment reserved by the grantor of a patent, lease of a mine or similar right, and payable proportionately to the use made of the right by the grantee, which shall on payment of money, but may be a payment in kind being the part of the produce of the exercise of the right. The judicial Committee of the Privy Council in Raja Bahadur Kamakshya Narain Singh v. Commissioner of Income Tax Bihar and Orissa, AIR 1943 PC 153 had held that royalty was an income flowing from the convenant in the lease. While dealing with the question of royalty. It was held : "These are periodical payments, to be made by the lessee under his convenants in consideration of the benefits which he is granted by the lessor. What these benefits may be is shown by the extract from the lease quoted above, which illustrates how inadequate and fallacious it is to envisage the royalties as merely the price of the actual tons of coal. The tonnage royalty is indeed only payable when the coal or coke is gotton and despatched : but that is merely the last stage. As preliminary and ancillary to that culminating act, liberties are granted to enter on the land and search, to dig and sink pits, to erect engines and machinery, coke ovens furnaces and form railways and roads. All these and the like liberties show how fallacious it is to treat the lease as merely one for the acquisition of a certain number of tons of coal, or the agreed item of royalty as merely the price of each ton of coal." Neither the Judicial Committee of the Privy council nor this Court had held or referred to that the item like extension fee, interest, interest on interest, and payment for damage caused could be included within the ambit of them `royalty. The aforesaid payments were thus recoverable only on the basis of the contract or the statutory provisions. In Inderjeet Singh Sial and another v. Karamchand Thapar and others, 1995(6) SCC 166 it was held : "In its primary and natural sense `royalty, in the legal world, is known as the equivalent or translation of jura regalia or jura regia. Royal rights and prerogatives of a sovereign are covered thereunder. It its secondary sense the word `royalty would signity, as in mining leases, that part of the reddendum, variable though, payable in cash or kind, for rights and privileges obtained. It is found in the clause of the deed by which the grantor reserves something to himself out of that which he grants. But "What is in a name ? A rose by any other name would smell as sweet." So said Shakespeare." 13. The Court further held that the commodity goes by its value and not by the wrapper in which it is packed. If the thought is clear, its translation in words, spoken or written, may more often than not, tend to be faulty. The same substance under the facts of the particular case has to be understood before applying it in legal manner. This Court has very clearly held that royalty in general connotes the States share in the goods upon which the rights of its exploitation are conferred upon any person or the group of persons. If the royalty cannot be claimed by any individual, much less the controvercial items being its attribute, even if assumed, can be claimed by a citizen.14. The subjects covered by item Nos. XI, XII, XIII and XVII have thus to be understood in this context which leave no doubt in our mind that the said claims against the forest corporation covered by the aforesaid items owed their origin to the exercise of the sovereign rights vested in the appellant State. No private citizen, unless specifically authorised in that behalf under the provisions of law could prefer such claims. The High Court was, therefore, not justified in allowing the aforesaid claims in favour of the respondent No. 1. The observations in Para No. 21 of the impugned judgment are, therefore, benefit of any legal substance and thus cannot be upheld.15. We, are, therefore, satisfied that the impugned judgment of the High Court cannot be sustained even on merits and is liable to be quashed inasmuch as no statutory right enforceable under law existed in favour of the respondent No. 1 regarding the enforcement of which a command could have been issued in the form of a writ of mandamus.
### Response:
1
### Explanation:
13. The Court further held that the commodity goes by its value and not by the wrapper in which it is packed. If the thought is clear, its translation in words, spoken or written, may more often than not, tend to be faulty. The same substance under the facts of the particular case has to be understood before applying it in legal manner. This Court has very clearly held that royalty in general connotes the States share in the goods upon which the rights of its exploitation are conferred upon any person or the group of persons. If the royalty cannot be claimed by any individual, much less the controvercial items being its attribute, even if assumed, can be claimed by a citizen.14. The subjects covered by item Nos. XI, XII, XIII and XVII have thus to be understood in this context which leave no doubt in our mind that the said claims against the forest corporation covered by the aforesaid items owed their origin to the exercise of the sovereign rights vested in the appellant State. No private citizen, unless specifically authorised in that behalf under the provisions of law could prefer such claims. The High Court was, therefore, not justified in allowing the aforesaid claims in favour of the respondent No. 1. The observations in Para No. 21 of the impugned judgment are, therefore, benefit of any legal substance and thus cannot be upheld.15. We, are, therefore, satisfied that the impugned judgment of the High Court cannot be sustained even on merits and is liable to be quashed inasmuch as no statutory right enforceable under law existed in favour of the respondent No. 1 regarding the enforcement of which a command could have been issued in the form of a writ of mandamus.
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Pares Nath Thakur Vs. Smt. Mohani Dasi And Others | fact, even when it is an inference from other facts found on evidence is not a question of law, except in certain specified cases. The case before us certainly is not one of those specified cases.These observations are sufficient completely to displace the decision of the High Court, but we shall examine the reasons of the High Court for setting aside the concurrent findings of fact of the courts below, to see whether the High Court was right in its conclusions, assuming all the time that the High Court was competent to go into those questions of fact. The High Court was considerably influenced by certain recitals in the deed, as will appear from the following observations :"Above all, there is a further significant recital which appears to have escaped the notice of both the courts below, and that is that the trustees can dispose of the properties if ever they think it necessary, and may also appoint a Pujari for conducting the daily worship of the deity." In making these observations, the High Court has completely missed the real significance of the following paragraph towards the end of the deed :"Be it stated that if it will be required at any time, you the trustees according to your unanimous opinion will sell the property situated at Mouzas Baramunda, Siripur and Muapalli etc., in Killa Khurda and Zilla Dandimal out of the immovable properties described in schedule kha of this deed and will appoint any servant etc., for the purpose of worship." It will be noticed from the above-quoted provision in the deed that the trustees were specifically empowered by the deed to alienate certain specific properties which, according to the evidence, were very inconveniently situated. The properties in dispute in this case are not in that category. The properties are land and house in the town of Cuttack, where the deity is located. Hence, in the first instance, the specific power of alienation granted to the trustees, did not apply to the properties in dispute. Secondly, such a provision in a deed of trust is not wholly out of place, which could lend itself to the inference that the document was not intended to be acted upon. 5. The High Court then examined in detail the evidence of D. W. 3, who, on its own findings, is a respectable person. About this witness, the High Court observed:"Undoubtedly, the testimony of this witness is entitled to great respect and the courts below have accepted it as reliable." While dealing with the evidence of this witness, the High Court proceeded to make the further remarks: "We are here concerned with the determination of the sole question as to whether there has, in fact, been a dedication in favour of the deity. No witness has been called to prove the gift of any single item of the properties in suit. Even the evidence relating to the installation of the idol is extremely obscure." Here again, the High Court appears to have overlooked the evidence of D. W. 1, Kunjabehari Lal, who has stated as follows:"The disputed shop house belongs to the Thakur. In 1870 or 1872, one person probably of the name of Maniklal gifted the disputed shop house to the Thakur." 6. While dealing with the question whether the deed of trust had been given effect to, the High Court made the following significant observations:"There is no evidence of the appropriation of the rents and profits of the properties up to the year 1938, and even the accounts, which are alleged to have been maintained, have not been produced. The High Court, here again, appears to have overlooked some material evidence, bearing on this aspect of the matter. Particularly significant is the evidence of one Dhaneswar Lal who was examined by the executing court in the claim case aforesaid, on behalf of the claimant. The following statement in his evidence, which was marked as Ext. M at the trial because the witness was dead, is pertinent:"I look after the Thakurs affair. I am a Panchayat member of the Thakur. I also perform its Puja and get a pay of Rs. 12 for it. Since 1934, I work as Thakurs Pujhari, and look after the Thakurs land since 1936. I regularly maintain accounts. These accounts have been filed in the 2nd Munsiffs Court in connection with Suit No. 94 of 1941. The disputed property relates to lots 1 and 2 of the trust deed. Plot 216 is Thakurs temple. It is a two-storeyed building." The witness had been cross-examined by the plaintiffs who were opposing the claim, and in his cross-examination, it was brought out that the accounts which the witness stated had been filed in the 2nd Munsifs court, also included expenditure made in the temple. In this connection, it is noteworthy that the plaintiffs had not called upon the contesting defendant to produce those account-books in respect of the properties in dispute. If that party had been called upon to produce those documents and it had failed to produce them, an adverse inference might have been permissible to a court of fact. But apparently, the High Court was inclined, on the second appeal, to law such an adverse inference even though no foundation had been laid at the trial for justifying such an inference. To the same effect are the following observations of the High Court:-"On the other hand, the other facts and circumstances of the case raise a strong presumption that there had, in fact, been no such endowment." 7. It is clear, therefore, that the decision of the High Court on the second appeal, reversing the concurrent findings of fact of the two courts below, is based upon inferences drawn from evidence oral and documentary, after misplacing the onus of proof. This, the High Court was not entitled to do. Besides, as we have already indicated, even on the merits, the findings of the High Court are open to serious criticism and must be held to be unsound. | 1[ds]In our opinion, the High Court has completely misdirected itself both in law and on facts, as will presently appear, even assuming that it was open to it to go behind findings of facts4. In the first place, the High Court has misplaced the onus of proof, as will appear from the conclusion just quoted above. The onus of proof loses much of its importance where both the parties have adduced their evidence.But the High Court seems to have laid some emphasis on onus of proof, with a view to examining for itself whether that onus had been discharged by the contesting defendant, the deityWith due respect to the High Court, it must be remarked that it appears to have lost sight of the well-established rule applicable to suits of the kind it was dealing with,that the burden of proof is heavy on a plaintiff who sues for a declaration of a document solemnly executed and registered, as a fictitious transaction. The burden becomes doubly heavy when the plaintiff seeks to set aside the order of the civil court, passed in execution proceedings, upholding the claim of a third party to a property sought to be proceed against in execution. The plaintiff, who seeks to get rid of the effect of the adverse order against him, has to show affirmatively that the order passed on due inquiry by the executing court, was erroneous.Hence, in this case, apart from the fact that the respondents were the plaintiffs, there was an initial heavy burden on them not only to show that the order of the civil court in the claim case was erroneous, but also that the deed of trust relied upon by the contesting defendant was fictitiousThe case before us certainly is not one of those specified cases.These observations are sufficient completely to displace the decision of the High Court, but we shall examine the reasons of the High Court for setting aside the concurrent findings of fact of the courts below, to see whether the High Court was right in its conclusions, assuming all the time that the High Court was competent to go into those questions of factIt will be noticed from the above-quoted provision in the deed that the trustees were specifically empowered by the deed to alienate certain specific properties which, according to the evidence, were very inconveniently situated. The properties in dispute in this case are not in that category. The properties are land and house in the town of Cuttack, where the deity is located. Hence, in the first instance, the specific power of alienation granted to the trustees, did not apply to the properties in dispute. Secondly, such a provision in a deed of trust is not wholly out of place, which could lend itself to the inference that the document was not intended to be acted uponHere again, the High Court appears to have overlooked the evidence of D. W. 1, Kunjabehari LalThe High Court, here again, appears to have overlooked some material evidence, bearing on this aspect of the matter. Particularly significant is the evidence of one Dhaneswar Lal who was examined by the executing court in the claim case aforesaid, on behalf of the claimant7. It is clear, therefore, that the decision of the High Court on the second appeal, reversing the concurrent findings of fact of the two courts below, is based upon inferences drawn from evidence oral and documentary, after misplacing the onus of proof. This, the High Court was not entitled to do. Besides, as we have already indicated, even on the merits, the findings of the High Court are open to serious criticism and must be held to be unsound | 1 | 2,703 | 675 | ### 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:
fact, even when it is an inference from other facts found on evidence is not a question of law, except in certain specified cases. The case before us certainly is not one of those specified cases.These observations are sufficient completely to displace the decision of the High Court, but we shall examine the reasons of the High Court for setting aside the concurrent findings of fact of the courts below, to see whether the High Court was right in its conclusions, assuming all the time that the High Court was competent to go into those questions of fact. The High Court was considerably influenced by certain recitals in the deed, as will appear from the following observations :"Above all, there is a further significant recital which appears to have escaped the notice of both the courts below, and that is that the trustees can dispose of the properties if ever they think it necessary, and may also appoint a Pujari for conducting the daily worship of the deity." In making these observations, the High Court has completely missed the real significance of the following paragraph towards the end of the deed :"Be it stated that if it will be required at any time, you the trustees according to your unanimous opinion will sell the property situated at Mouzas Baramunda, Siripur and Muapalli etc., in Killa Khurda and Zilla Dandimal out of the immovable properties described in schedule kha of this deed and will appoint any servant etc., for the purpose of worship." It will be noticed from the above-quoted provision in the deed that the trustees were specifically empowered by the deed to alienate certain specific properties which, according to the evidence, were very inconveniently situated. The properties in dispute in this case are not in that category. The properties are land and house in the town of Cuttack, where the deity is located. Hence, in the first instance, the specific power of alienation granted to the trustees, did not apply to the properties in dispute. Secondly, such a provision in a deed of trust is not wholly out of place, which could lend itself to the inference that the document was not intended to be acted upon. 5. The High Court then examined in detail the evidence of D. W. 3, who, on its own findings, is a respectable person. About this witness, the High Court observed:"Undoubtedly, the testimony of this witness is entitled to great respect and the courts below have accepted it as reliable." While dealing with the evidence of this witness, the High Court proceeded to make the further remarks: "We are here concerned with the determination of the sole question as to whether there has, in fact, been a dedication in favour of the deity. No witness has been called to prove the gift of any single item of the properties in suit. Even the evidence relating to the installation of the idol is extremely obscure." Here again, the High Court appears to have overlooked the evidence of D. W. 1, Kunjabehari Lal, who has stated as follows:"The disputed shop house belongs to the Thakur. In 1870 or 1872, one person probably of the name of Maniklal gifted the disputed shop house to the Thakur." 6. While dealing with the question whether the deed of trust had been given effect to, the High Court made the following significant observations:"There is no evidence of the appropriation of the rents and profits of the properties up to the year 1938, and even the accounts, which are alleged to have been maintained, have not been produced. The High Court, here again, appears to have overlooked some material evidence, bearing on this aspect of the matter. Particularly significant is the evidence of one Dhaneswar Lal who was examined by the executing court in the claim case aforesaid, on behalf of the claimant. The following statement in his evidence, which was marked as Ext. M at the trial because the witness was dead, is pertinent:"I look after the Thakurs affair. I am a Panchayat member of the Thakur. I also perform its Puja and get a pay of Rs. 12 for it. Since 1934, I work as Thakurs Pujhari, and look after the Thakurs land since 1936. I regularly maintain accounts. These accounts have been filed in the 2nd Munsiffs Court in connection with Suit No. 94 of 1941. The disputed property relates to lots 1 and 2 of the trust deed. Plot 216 is Thakurs temple. It is a two-storeyed building." The witness had been cross-examined by the plaintiffs who were opposing the claim, and in his cross-examination, it was brought out that the accounts which the witness stated had been filed in the 2nd Munsifs court, also included expenditure made in the temple. In this connection, it is noteworthy that the plaintiffs had not called upon the contesting defendant to produce those account-books in respect of the properties in dispute. If that party had been called upon to produce those documents and it had failed to produce them, an adverse inference might have been permissible to a court of fact. But apparently, the High Court was inclined, on the second appeal, to law such an adverse inference even though no foundation had been laid at the trial for justifying such an inference. To the same effect are the following observations of the High Court:-"On the other hand, the other facts and circumstances of the case raise a strong presumption that there had, in fact, been no such endowment." 7. It is clear, therefore, that the decision of the High Court on the second appeal, reversing the concurrent findings of fact of the two courts below, is based upon inferences drawn from evidence oral and documentary, after misplacing the onus of proof. This, the High Court was not entitled to do. Besides, as we have already indicated, even on the merits, the findings of the High Court are open to serious criticism and must be held to be unsound.
### Response:
1
### Explanation:
In our opinion, the High Court has completely misdirected itself both in law and on facts, as will presently appear, even assuming that it was open to it to go behind findings of facts4. In the first place, the High Court has misplaced the onus of proof, as will appear from the conclusion just quoted above. The onus of proof loses much of its importance where both the parties have adduced their evidence.But the High Court seems to have laid some emphasis on onus of proof, with a view to examining for itself whether that onus had been discharged by the contesting defendant, the deityWith due respect to the High Court, it must be remarked that it appears to have lost sight of the well-established rule applicable to suits of the kind it was dealing with,that the burden of proof is heavy on a plaintiff who sues for a declaration of a document solemnly executed and registered, as a fictitious transaction. The burden becomes doubly heavy when the plaintiff seeks to set aside the order of the civil court, passed in execution proceedings, upholding the claim of a third party to a property sought to be proceed against in execution. The plaintiff, who seeks to get rid of the effect of the adverse order against him, has to show affirmatively that the order passed on due inquiry by the executing court, was erroneous.Hence, in this case, apart from the fact that the respondents were the plaintiffs, there was an initial heavy burden on them not only to show that the order of the civil court in the claim case was erroneous, but also that the deed of trust relied upon by the contesting defendant was fictitiousThe case before us certainly is not one of those specified cases.These observations are sufficient completely to displace the decision of the High Court, but we shall examine the reasons of the High Court for setting aside the concurrent findings of fact of the courts below, to see whether the High Court was right in its conclusions, assuming all the time that the High Court was competent to go into those questions of factIt will be noticed from the above-quoted provision in the deed that the trustees were specifically empowered by the deed to alienate certain specific properties which, according to the evidence, were very inconveniently situated. The properties in dispute in this case are not in that category. The properties are land and house in the town of Cuttack, where the deity is located. Hence, in the first instance, the specific power of alienation granted to the trustees, did not apply to the properties in dispute. Secondly, such a provision in a deed of trust is not wholly out of place, which could lend itself to the inference that the document was not intended to be acted uponHere again, the High Court appears to have overlooked the evidence of D. W. 1, Kunjabehari LalThe High Court, here again, appears to have overlooked some material evidence, bearing on this aspect of the matter. Particularly significant is the evidence of one Dhaneswar Lal who was examined by the executing court in the claim case aforesaid, on behalf of the claimant7. It is clear, therefore, that the decision of the High Court on the second appeal, reversing the concurrent findings of fact of the two courts below, is based upon inferences drawn from evidence oral and documentary, after misplacing the onus of proof. This, the High Court was not entitled to do. Besides, as we have already indicated, even on the merits, the findings of the High Court are open to serious criticism and must be held to be unsound
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Bhalchandra Nivrutti Donge Vs. Mohan Gnlanchand Butala | a finding that the truck was not insured at the time of accident. ( 5 ) MR. Kotak, the learned Counsel for the appellants, submits that the finding of the Tribunal that the truck was not insured is completely erroneous and perverse. Mr. Kotak draws our attention to the entries made in the tax payments and registration books of the Respondent No. 2 and the report prepared by the Inspector of Motor Vehicles in support of the case of appellants that the truck was insured with the Respondent no. 4. Mr. Kotak also relies upon the evidence of Madhukar Banke, an r. T, O. Officer and Vinayak Ghunakikar, the Inspector of Motor Vehicles to further support, the appellants claim against the Respondent No. 4. Mr. Kotak also critisized the finding of the Tribunal that the appellants are entitled to a sum of Rs. 35,000 as against Rs. One Lac. Mr. Kotak submits that the Tribunal Committed an error in fixing of the dependency at a paltry sum of Rs. 250 per month and applying multiplier of ten years. According to Mr. Kotak, the dependency is much more and 25 years multiplier should have been applied in the facts and circumstances of the case. In reply Mr. Kundroli, the learned Counsel for Respondent No. 4 and Mr. Dhakephalkar, the learned Counsel for Respondent No. 2 maintained that the Award passed by the Tribunal is correct and just.( 6 ) THE first question, which falls for our consideration is whether the amount of compensation awarded by the Tribunal is just and proper. The appellant No. 1 the father of the deceased has deposed that he is a tailor by profession and that the deceased, who had learnt upto VIIth Standard, was helping him in tailoring profession. He has further deposed that before the deceased joined him in his profession, he was getting only Rs. 250 to rs. 300 per month, but soon-after the joining of the deceased the income was Increased to Rs. 800 to Rs. 900 per month. Thus, according to the appellants, the dependency was around Rs. 500 to Rs. 600 per month. The tribunal has taken the dependency at Rs. 250 per month On perusal of the evidence, we are of the opinion that the dependency should be fixed at Rs. 375 per month. Considering the age of the appellants, we find that the Tribunal correctly applied the multiplier of ten years. At the rate of Rs. 375 per month, the yearly dependency comes to Rs. 4,500. Using the multiplier of ten years, the total amount comes to Rs. 45,000. The appellants have been deprived of the love and affection of their only son and, therefore, the appellants are entitled to rs. 5,000 on that count. We, therefore, hold that the appellants are entitled to Rs, 50,000 by way of compensation.( 7 ) NEXT question, which falls for our consideration, is whether the respondent No. 4 Insurance Company is liable. In their application for compensation, the appellants have stated that the truck was insured with the respondent No. 4 under the cover note No. 60585 for the period from December 26, 1979 to December 25, 1980. In his written statement, respondent No. 2 stated that the correct cover note number is 60588. The respondent No. 2, however, failed to produce the insurance policy. The respondent No. 4 contended that the truck was not insured at all. The appellants produced material on record to show that at the relevant time, the truck was insured with the Respondent No. 4. Madhukar Banke, an Officer working with the R. T. O. , deposed on the basis of entries made in the record that the Respondent No. 4 was the insurer in respect of the truck under policy bearing No. 59955. for the period between December 18,1979 and December 17,1980 and that again the truck was insured for the period between December 26, 1979 and December 25, 1980 under policy bearing No. 65085. Vinayak Ghunakikar, the Inspector of Motor Vehicles, deposed that he examined the offending truck after the accident and prepared report (Exhibit 154 ). This report shows that the truck was insured with Respondent No. 4 under coyer note No. 60588. He said that he has prepared the report on the basis of the papers, which were found with the vehicle at the time of the inspection. We see no reason to disbelieve the record of the R, T. O. Office and the report of the Motor Vehicles inspector. It is true that there is some confusion about the exact policy number, but it is not possible to discard the evidence solely on that ground. The owner of the vehicle, namely, Respondent No. 2 has given the correct policy number in the written statement. The R. T. O. Officer has produced original register and deposed that two numbers of cover note/policy were issued by the Respondent No. 4 The Inspector of Motor Vehicles has deposed that he had inspected the vehicle and its papers after the accident and he found a policy copy issued by the Respondent No. 4. In our opinion, this evidence is sufficient to hold that the truck was insured with the Respondent No. 4 at the time of accident. Turning now to the evidence of Respondent No. 4. Their Officer Prabbakar Kulkarni has deposed that a vehicle can be insured in any office of insurer and "it is possible that the truck MTL-634 could have been insured by any other branch of our company. " "it is also pertinent to note that the Respondent No. 4 has failed to produce the cover note/policy in question to show that it was issued to some-one other than Respondent No. 2 or for a different vehicle. The respondent No. 4 has not alleged or proved that they never issued a cover note/policy of such number. We have, therefore, no hesitation to accept the appellants case that the truck was insured with the Respondent No. 4 at the time of accident. | 1[ds]The appellant No. 1 the father of the deceased has deposed that he is a tailor by profession and that the deceased, who had learnt upto VIIth Standard, was helping him in tailoring profession. He has further deposed that before the deceased joined him in his profession, he was getting only Rs. 250 to rs. 300 per month, butthe joining of the deceased the income was Increased to Rs. 800 to Rs. 900 per month. Thus, according to the appellants, the dependency was around Rs. 500 to Rs. 600 per month. The tribunal has taken the dependency at Rs. 250 per month On perusal of the evidence, we are of the opinion that the dependency should be fixed at Rs. 375 per month. Considering the age of the appellants, we find that the Tribunal correctly applied the multiplier of ten years. At the rate of Rs. 375 per month, the yearly dependency comes to Rs. 4,500. Using the multiplier of ten years, the total amount comes to Rs. 45,000. The appellants have been deprived of the love and affection of their only son and, therefore, the appellants are entitled to rs. 5,000 on that count. We, therefore, hold that the appellants are entitled to Rs, 50,000 by way ofappellants produced material on record to show that at the relevant time, the truck was insured with the Respondent No. 4. Madhukar Banke, an Officer working with the R. T. O. , deposed on the basis of entries made in the record that the Respondent No. 4 was the insurer in respect of the truck under policy bearing No. 59955. for the period between December 18,1979 and December 17,1980 and that again the truck was insured for the period between December 26, 1979 and December 25, 1980 under policy bearing No. 65085. Vinayak Ghunakikar, the Inspector of Motor Vehicles, deposed that he examined the offending truck after the accident and prepared report (Exhibit 154 ). This report shows that the truck was insured with Respondent No. 4 under coyer note No. 60588. He said that he has prepared the report on the basis of the papers, which were found with the vehicle at the time of the inspection. We see no reason to disbelieve the record of the R, T. O. Office and the report of the Motor Vehicles inspector. It is true that there is some confusion about the exact policy number, but it is not possible to discard the evidence solely on that ground. The owner of the vehicle, namely, Respondent No. 2 has given the correct policy number in the written statement. The R. T. O. Officer has produced original register and deposed that two numbers of cover note/policy were issued by the Respondent No. 4 The Inspector of Motor Vehicles has deposed that he had inspected the vehicle and its papers after the accident and he found a policy copy issued by the Respondent No. 4. In our opinion, this evidence is sufficient to hold that the truck was insured with the Respondent No. 4 at the time of accident. Turning now to the evidence of Respondent No. 4. Their Officer Prabbakar Kulkarni has deposed that a vehicle can be insured in any office of insurer and "it is possible that the truckcould have been insured by any other branch of our company. " "it is also pertinent to note that the Respondent No. 4 has failed to produce the cover note/policy in question to show that it was issued toother than Respondent No. 2 or for a different vehicle. The respondent No. 4 has not alleged or proved that they never issued a cover note/policy of such number. We have, therefore, no hesitation to accept the appellants case that the truck was insured with the Respondent No. 4 at the time of accident. | 1 | 1,660 | 724 | ### Instruction:
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a finding that the truck was not insured at the time of accident. ( 5 ) MR. Kotak, the learned Counsel for the appellants, submits that the finding of the Tribunal that the truck was not insured is completely erroneous and perverse. Mr. Kotak draws our attention to the entries made in the tax payments and registration books of the Respondent No. 2 and the report prepared by the Inspector of Motor Vehicles in support of the case of appellants that the truck was insured with the Respondent no. 4. Mr. Kotak also relies upon the evidence of Madhukar Banke, an r. T, O. Officer and Vinayak Ghunakikar, the Inspector of Motor Vehicles to further support, the appellants claim against the Respondent No. 4. Mr. Kotak also critisized the finding of the Tribunal that the appellants are entitled to a sum of Rs. 35,000 as against Rs. One Lac. Mr. Kotak submits that the Tribunal Committed an error in fixing of the dependency at a paltry sum of Rs. 250 per month and applying multiplier of ten years. According to Mr. Kotak, the dependency is much more and 25 years multiplier should have been applied in the facts and circumstances of the case. In reply Mr. Kundroli, the learned Counsel for Respondent No. 4 and Mr. Dhakephalkar, the learned Counsel for Respondent No. 2 maintained that the Award passed by the Tribunal is correct and just.( 6 ) THE first question, which falls for our consideration is whether the amount of compensation awarded by the Tribunal is just and proper. The appellant No. 1 the father of the deceased has deposed that he is a tailor by profession and that the deceased, who had learnt upto VIIth Standard, was helping him in tailoring profession. He has further deposed that before the deceased joined him in his profession, he was getting only Rs. 250 to rs. 300 per month, but soon-after the joining of the deceased the income was Increased to Rs. 800 to Rs. 900 per month. Thus, according to the appellants, the dependency was around Rs. 500 to Rs. 600 per month. The tribunal has taken the dependency at Rs. 250 per month On perusal of the evidence, we are of the opinion that the dependency should be fixed at Rs. 375 per month. Considering the age of the appellants, we find that the Tribunal correctly applied the multiplier of ten years. At the rate of Rs. 375 per month, the yearly dependency comes to Rs. 4,500. Using the multiplier of ten years, the total amount comes to Rs. 45,000. The appellants have been deprived of the love and affection of their only son and, therefore, the appellants are entitled to rs. 5,000 on that count. We, therefore, hold that the appellants are entitled to Rs, 50,000 by way of compensation.( 7 ) NEXT question, which falls for our consideration, is whether the respondent No. 4 Insurance Company is liable. In their application for compensation, the appellants have stated that the truck was insured with the respondent No. 4 under the cover note No. 60585 for the period from December 26, 1979 to December 25, 1980. In his written statement, respondent No. 2 stated that the correct cover note number is 60588. The respondent No. 2, however, failed to produce the insurance policy. The respondent No. 4 contended that the truck was not insured at all. The appellants produced material on record to show that at the relevant time, the truck was insured with the Respondent No. 4. Madhukar Banke, an Officer working with the R. T. O. , deposed on the basis of entries made in the record that the Respondent No. 4 was the insurer in respect of the truck under policy bearing No. 59955. for the period between December 18,1979 and December 17,1980 and that again the truck was insured for the period between December 26, 1979 and December 25, 1980 under policy bearing No. 65085. Vinayak Ghunakikar, the Inspector of Motor Vehicles, deposed that he examined the offending truck after the accident and prepared report (Exhibit 154 ). This report shows that the truck was insured with Respondent No. 4 under coyer note No. 60588. He said that he has prepared the report on the basis of the papers, which were found with the vehicle at the time of the inspection. We see no reason to disbelieve the record of the R, T. O. Office and the report of the Motor Vehicles inspector. It is true that there is some confusion about the exact policy number, but it is not possible to discard the evidence solely on that ground. The owner of the vehicle, namely, Respondent No. 2 has given the correct policy number in the written statement. The R. T. O. Officer has produced original register and deposed that two numbers of cover note/policy were issued by the Respondent No. 4 The Inspector of Motor Vehicles has deposed that he had inspected the vehicle and its papers after the accident and he found a policy copy issued by the Respondent No. 4. In our opinion, this evidence is sufficient to hold that the truck was insured with the Respondent No. 4 at the time of accident. Turning now to the evidence of Respondent No. 4. Their Officer Prabbakar Kulkarni has deposed that a vehicle can be insured in any office of insurer and "it is possible that the truck MTL-634 could have been insured by any other branch of our company. " "it is also pertinent to note that the Respondent No. 4 has failed to produce the cover note/policy in question to show that it was issued to some-one other than Respondent No. 2 or for a different vehicle. The respondent No. 4 has not alleged or proved that they never issued a cover note/policy of such number. We have, therefore, no hesitation to accept the appellants case that the truck was insured with the Respondent No. 4 at the time of accident.
### Response:
1
### Explanation:
The appellant No. 1 the father of the deceased has deposed that he is a tailor by profession and that the deceased, who had learnt upto VIIth Standard, was helping him in tailoring profession. He has further deposed that before the deceased joined him in his profession, he was getting only Rs. 250 to rs. 300 per month, butthe joining of the deceased the income was Increased to Rs. 800 to Rs. 900 per month. Thus, according to the appellants, the dependency was around Rs. 500 to Rs. 600 per month. The tribunal has taken the dependency at Rs. 250 per month On perusal of the evidence, we are of the opinion that the dependency should be fixed at Rs. 375 per month. Considering the age of the appellants, we find that the Tribunal correctly applied the multiplier of ten years. At the rate of Rs. 375 per month, the yearly dependency comes to Rs. 4,500. Using the multiplier of ten years, the total amount comes to Rs. 45,000. The appellants have been deprived of the love and affection of their only son and, therefore, the appellants are entitled to rs. 5,000 on that count. We, therefore, hold that the appellants are entitled to Rs, 50,000 by way ofappellants produced material on record to show that at the relevant time, the truck was insured with the Respondent No. 4. Madhukar Banke, an Officer working with the R. T. O. , deposed on the basis of entries made in the record that the Respondent No. 4 was the insurer in respect of the truck under policy bearing No. 59955. for the period between December 18,1979 and December 17,1980 and that again the truck was insured for the period between December 26, 1979 and December 25, 1980 under policy bearing No. 65085. Vinayak Ghunakikar, the Inspector of Motor Vehicles, deposed that he examined the offending truck after the accident and prepared report (Exhibit 154 ). This report shows that the truck was insured with Respondent No. 4 under coyer note No. 60588. He said that he has prepared the report on the basis of the papers, which were found with the vehicle at the time of the inspection. We see no reason to disbelieve the record of the R, T. O. Office and the report of the Motor Vehicles inspector. It is true that there is some confusion about the exact policy number, but it is not possible to discard the evidence solely on that ground. The owner of the vehicle, namely, Respondent No. 2 has given the correct policy number in the written statement. The R. T. O. Officer has produced original register and deposed that two numbers of cover note/policy were issued by the Respondent No. 4 The Inspector of Motor Vehicles has deposed that he had inspected the vehicle and its papers after the accident and he found a policy copy issued by the Respondent No. 4. In our opinion, this evidence is sufficient to hold that the truck was insured with the Respondent No. 4 at the time of accident. Turning now to the evidence of Respondent No. 4. Their Officer Prabbakar Kulkarni has deposed that a vehicle can be insured in any office of insurer and "it is possible that the truckcould have been insured by any other branch of our company. " "it is also pertinent to note that the Respondent No. 4 has failed to produce the cover note/policy in question to show that it was issued toother than Respondent No. 2 or for a different vehicle. The respondent No. 4 has not alleged or proved that they never issued a cover note/policy of such number. We have, therefore, no hesitation to accept the appellants case that the truck was insured with the Respondent No. 4 at the time of accident.
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Messrs Jeetmal Ram Gopal Vs. Union of India | unless it shows that it took such care as a person of ordinarily prudence would under similar circumstances take of his own goods of the same bulk, quality and value. It is, however, open to the railway administration by agreement with the consignor to limit its responsibility as a bailee, provided the agreement is executed in the manner prescribed by sub-section (2) of Section 72. The case of the Railway Administration is that it had booked the consignment under Risk Note Form A i.e., at owners risk. The appellants denied that the consignment was booked under Risk Note Form A. Witness Lala Ram examined on their behalf deposed that a risk note restricting the liability of railway administration was even executed. Lala Ram stated that he had taken the forwarding note to the station, that after getting the tins of ghee loaded, he took them to Hathras station and that he had the goods booked, but he did not remember who filled up the risk note form and whether it was filled up or not. He did not see O.R.A. (Owners risk) written on the railway receipt, that the goods were loaded on the day it was booked, that he got loaded the goods and that he was not told that the goods were sent at the owners risk. 4. Mr. Gupta for the appellants contended that in fact no risk note was even executed by the appellant and on that account, the liability of the railway administration was under Section 72(l) of the Indian Railways Act, 1890 as in force in 1948 that of an ordinary bailee. But the appellants in their plaint have expressly referred to the railway receipt No. 721200 dated August 28, 1948. They have not produced the railway receipt. The railway administration has tendered in evidence a copy of the railway receipt which is printed at p. 76 of the record. They have also produced the form of risk note "A". We do not think there is any substance in the contention raised by Mr. Gupta that these documents were not properly exhibited in the Court of the first instance. The risk note was tendered in evidence by the railway administration and there is an endorsement of the Civil Judge, Aligarh directing that the document be exhibited. Once the document which is not otherwise inadmissible is admitted in evidence, and is exhibited, it is not open to the appellate Court to allow a contention to be raised as of its proper proof. The risk note was admitted without any objection. The risk note form is statutory and needs no formal proof. The risk note (which is printed at p. 77) of the record states :"Whereas the consignment of 357 tins ghee tendered by me/us as per Forwarding Order No. 992 of August 28, 1948 (date) for despatch by the Railway Administration to Cawnpore Grain Shop station under Railway Receipt No. 721200 of August 28, 1948 ....... it is liable to damage, leakage or wastage in transit as follows : Tins unpacked soldering defective P/c not complied with. I/We the undersigned do hereby agree and undertake to hold the said railway administration over whose Railway the said goods may be carried in transit from HRF station to Cawnpore Junction Station harmless and free from all responsibility for the conditions in which the aforesaid goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administrations servants." By this risk note the appellants had clearly undertaken that in respect of the consignment of ghee the railway administration will be free from all liability for the condition in which the goods may be delivered to the consignee at the destination, unless it be proved that the loss arose from misconduct on the part of the railway administration. The burden of proof of misconduct under the terms of the risk note clearly lay upon the appellants. 5. Mr. Gupta then contended that in any case there was evidence to prove that the servants of the railway administration were guilty of misconduct. He again relied upon the testimony of Lala Ram who stated that he the witness had been informed "by the gunner that the carriage had been taken to Central mounted on the hump and therefore damage had been caused to the consignment". But this was clearly hearsay. The witness had no personal knowledge. Mr. Gupta contended that the railway administration was called upon to produce documentary evidence in their possession relating to movements of the wagon in which the goods were loaded. The record does not appear to have been clear on what steps were taken, but from the findings of the High Court is appears that there was no evidence which suggested that the servants of the railway administration were guilty of negligence in the course of the movements of the goods from the place of lading to the destination. 6. Mr. Gupta also urged that the wagon which was originally loaded at Hathras railway station was carried first to Jamuhi area and then to the grain shop siding, then back to Jamuhi and it was finally taken to the Kanpur Central Station where delivery was given. The High Court has pointed out that the wagon had reached Kanpur Central Station by the normal route. It was only taken to the Kanpur Central for unloading first and then to another platform of the same station. It could not be said that on that account the protection of the risk note in Form "A" came to an end. In the absence of any clear evidence to prove that by reason of the wagon being taken to Jamuhi and then to the grain shop siding, then back to Jamuhi and finally to the Kanpur Central Station, any damage was caused, the claim made by the appellants for damages arising from misconduct of the railway administration is not proved. | 0[ds]We do not think there is any substance in the contention raised by Mr. Gupta that these documents were not properly exhibited in the Court of the first instance. The risk note was tendered in evidence by the railway administration and there is an endorsement of the Civil Judge, Aligarh directing that the document be exhibited. Once the document which is not otherwise inadmissible is admitted in evidence, and is exhibited, it is not open to the appellate Court to allow a contention to be raised as of its proper proof. The risk note was admitted without any objection. The risk note form is statutory and needs no formal proofBy this risk note the appellants had clearly undertaken that in respect of the consignment of ghee the railway administration will be free from all liability for the condition in which the goods may be delivered to the consignee at the destination, unless it be proved that the loss arose from misconduct on the part of the railway administration. The burden of proof of misconduct under the terms of the risk note clearly lay upon the appellantsBut this was clearly hearsay. The witness had no personal knowledgeIt could not be said that on that account the protection of the risk note in Form "A" came to an end. In the absence of any clear evidence to prove that by reason of the wagon being taken to Jamuhi and then to the grain shop siding, then back to Jamuhi and finally to the Kanpur Central Station, any damage was caused, the claim made by the appellants for damages arising from misconduct of the railway administration is not proved. | 0 | 1,530 | 297 | ### Instruction:
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unless it shows that it took such care as a person of ordinarily prudence would under similar circumstances take of his own goods of the same bulk, quality and value. It is, however, open to the railway administration by agreement with the consignor to limit its responsibility as a bailee, provided the agreement is executed in the manner prescribed by sub-section (2) of Section 72. The case of the Railway Administration is that it had booked the consignment under Risk Note Form A i.e., at owners risk. The appellants denied that the consignment was booked under Risk Note Form A. Witness Lala Ram examined on their behalf deposed that a risk note restricting the liability of railway administration was even executed. Lala Ram stated that he had taken the forwarding note to the station, that after getting the tins of ghee loaded, he took them to Hathras station and that he had the goods booked, but he did not remember who filled up the risk note form and whether it was filled up or not. He did not see O.R.A. (Owners risk) written on the railway receipt, that the goods were loaded on the day it was booked, that he got loaded the goods and that he was not told that the goods were sent at the owners risk. 4. Mr. Gupta for the appellants contended that in fact no risk note was even executed by the appellant and on that account, the liability of the railway administration was under Section 72(l) of the Indian Railways Act, 1890 as in force in 1948 that of an ordinary bailee. But the appellants in their plaint have expressly referred to the railway receipt No. 721200 dated August 28, 1948. They have not produced the railway receipt. The railway administration has tendered in evidence a copy of the railway receipt which is printed at p. 76 of the record. They have also produced the form of risk note "A". We do not think there is any substance in the contention raised by Mr. Gupta that these documents were not properly exhibited in the Court of the first instance. The risk note was tendered in evidence by the railway administration and there is an endorsement of the Civil Judge, Aligarh directing that the document be exhibited. Once the document which is not otherwise inadmissible is admitted in evidence, and is exhibited, it is not open to the appellate Court to allow a contention to be raised as of its proper proof. The risk note was admitted without any objection. The risk note form is statutory and needs no formal proof. The risk note (which is printed at p. 77) of the record states :"Whereas the consignment of 357 tins ghee tendered by me/us as per Forwarding Order No. 992 of August 28, 1948 (date) for despatch by the Railway Administration to Cawnpore Grain Shop station under Railway Receipt No. 721200 of August 28, 1948 ....... it is liable to damage, leakage or wastage in transit as follows : Tins unpacked soldering defective P/c not complied with. I/We the undersigned do hereby agree and undertake to hold the said railway administration over whose Railway the said goods may be carried in transit from HRF station to Cawnpore Junction Station harmless and free from all responsibility for the conditions in which the aforesaid goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administrations servants." By this risk note the appellants had clearly undertaken that in respect of the consignment of ghee the railway administration will be free from all liability for the condition in which the goods may be delivered to the consignee at the destination, unless it be proved that the loss arose from misconduct on the part of the railway administration. The burden of proof of misconduct under the terms of the risk note clearly lay upon the appellants. 5. Mr. Gupta then contended that in any case there was evidence to prove that the servants of the railway administration were guilty of misconduct. He again relied upon the testimony of Lala Ram who stated that he the witness had been informed "by the gunner that the carriage had been taken to Central mounted on the hump and therefore damage had been caused to the consignment". But this was clearly hearsay. The witness had no personal knowledge. Mr. Gupta contended that the railway administration was called upon to produce documentary evidence in their possession relating to movements of the wagon in which the goods were loaded. The record does not appear to have been clear on what steps were taken, but from the findings of the High Court is appears that there was no evidence which suggested that the servants of the railway administration were guilty of negligence in the course of the movements of the goods from the place of lading to the destination. 6. Mr. Gupta also urged that the wagon which was originally loaded at Hathras railway station was carried first to Jamuhi area and then to the grain shop siding, then back to Jamuhi and it was finally taken to the Kanpur Central Station where delivery was given. The High Court has pointed out that the wagon had reached Kanpur Central Station by the normal route. It was only taken to the Kanpur Central for unloading first and then to another platform of the same station. It could not be said that on that account the protection of the risk note in Form "A" came to an end. In the absence of any clear evidence to prove that by reason of the wagon being taken to Jamuhi and then to the grain shop siding, then back to Jamuhi and finally to the Kanpur Central Station, any damage was caused, the claim made by the appellants for damages arising from misconduct of the railway administration is not proved.
### Response:
0
### Explanation:
We do not think there is any substance in the contention raised by Mr. Gupta that these documents were not properly exhibited in the Court of the first instance. The risk note was tendered in evidence by the railway administration and there is an endorsement of the Civil Judge, Aligarh directing that the document be exhibited. Once the document which is not otherwise inadmissible is admitted in evidence, and is exhibited, it is not open to the appellate Court to allow a contention to be raised as of its proper proof. The risk note was admitted without any objection. The risk note form is statutory and needs no formal proofBy this risk note the appellants had clearly undertaken that in respect of the consignment of ghee the railway administration will be free from all liability for the condition in which the goods may be delivered to the consignee at the destination, unless it be proved that the loss arose from misconduct on the part of the railway administration. The burden of proof of misconduct under the terms of the risk note clearly lay upon the appellantsBut this was clearly hearsay. The witness had no personal knowledgeIt could not be said that on that account the protection of the risk note in Form "A" came to an end. In the absence of any clear evidence to prove that by reason of the wagon being taken to Jamuhi and then to the grain shop siding, then back to Jamuhi and finally to the Kanpur Central Station, any damage was caused, the claim made by the appellants for damages arising from misconduct of the railway administration is not proved.
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Sunil Vasudeva and Ors Vs. Sundar Gupta and Ors | a fresh civil suit in respect of the subject property in Delhi and either party has not brought to the notice of the Court the mandate of law as envisaged Under Section 293 of the Income Tax Act, 1961 that the civil suit against the Income tax Department is not maintainable under the law, which appears to be mistakenly omitted by the Court in arriving at the rival claims of the parties. 27. It was taken note of by the High Court in its review jurisdiction and arrived to the conclusion that there appears to be an error apparent on the face of record and consequently allowed the application for review, recalled the Order dated 19th October, 2012 and set aside the Judgment and Order dated 31st March, 2006 passed in miscellaneous application and for restoration of Writ Petition No. 18500(W) of 1985 to be heard on its own merits under the impugned judgment dated 24th September, 2014. 28. The basic principles in which the review application could be entertained have been eloquently examined by this Court in Kamlesh Verma (supra) wherein this Court held as under: 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words any other sufficient reason have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526 to mean a reason sufficient on grounds at least analogous to those specified in the rule. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337. 20.2. When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. 29. Taking note of the exposition of the above principles let us consider the facts on record and it reveals that the effect of Section 293 of the Income Tax Act has been mistakenly omitted under the judgment in review and that apart, the consequential effect of the order of the High Court on an application filed by the Union of India in Civil Suit No. 1451 of 1957 dated 8th September, 1965 was open to be examined in the writ proceedings and it was the defence of the Income Tax Department in the reply to the review application and also before this Court in their counter affidavit that in the auction sale which was held in the month of August, 1964, the permission from the Court was not obtained and after the order came to be passed on their application by the Single Judge of the High Court in Suit No. 1451 of 1957 dated 8th September, 1965, it will certainly affect the auction sale held by the Income Tax Department in reference to the subject property in question and it was their stand throughout in the proceedings. 30. We find that the Single Judge of the High Court of Calcutta heard and reserved the judgment in Writ Petition No. 18500(W) of 1985 in March/April 1986 and after nearly four and half years, the judgment pronounced on 26th October, 1990 relegating the parties to raise all the contentions to their defence in the pending civil suit before the District Judge, Delhi itself indicates that the Single Judge was not inclined to express its opinion on merits obviously for the reason that if the finding was recorded, it would have prejudiced the rights of the parties to the litigation to be examined in the alleged pending civil suit in the District Court, Delhi which although was dismissed on 3rd October, 1986 much before the pronouncement of the judgment dated 26th October, 1990 by the Single Judge of the High Court. 31. In the given facts and circumstances, we are not inclined to dilate the issues on merits raised in the Writ Petition No. 18500(w) of 1985 filed at the instance of the Respondents before the High Court of Calcutta, but if the civil suit was not maintainable as alleged in view of Section 293 of the Income Tax Act and this was the purported defence of the Respondents and of the Income Tax Department and consequential effect to the Order dated 8th September, 1965 of which a reference has been made by us, no party could be left remediless and whatever the grievance the party has raised before the Court of law, has to be examined on its own merits. In our considered view, there appears no error being committed by the High Court in passing the impugned judgment dated 24th September, 2014 in exercise of its review jurisdiction and that needs no interference by this Court. | 0[ds]29. Taking note of the exposition of the above principles let us consider the facts on record and it reveals that the effect of Section 293 of the Income Tax Act has been mistakenly omitted under the judgment in review and that apart, the consequential effect of the order of the High Court on an application filed by the Union of India in Civil Suit No. 1451 of 1957 dated 8th September, 1965 was open to be examined in the writ proceedings and it was the defence of the Income Tax Department in the reply to the review application and also before this Court in their counter affidavit that in the auction sale which was held in the month of August, 1964, the permission from the Court was not obtained and after the order came to be passed on their application by the Single Judge of the High Court in Suit No. 1451 of 1957 dated 8th September, 1965, it will certainly affect the auction sale held by the Income Tax Department in reference to the subject property in question and it was their stand throughout in the proceedings30. We find that the Single Judge of the High Court of Calcutta heard and reserved the judgment in Writ Petition No. 18500(W) of 1985 in March/April 1986 and after nearly four and half years, the judgment pronounced on 26th October, 1990 relegating the parties to raise all the contentions to their defence in the pending civil suit before the District Judge, Delhi itself indicates that the Single Judge was not inclined to express its opinion on merits obviously for the reason that if the finding was recorded, it would have prejudiced the rights of the parties to the litigation to be examined in the alleged pending civil suit in the District Court, Delhi which although was dismissed on 3rd October, 1986 much before the pronouncement of the judgment dated 26th October, 1990 by the Single Judge of the High Court31. In the given facts and circumstances, we are not inclined to dilate the issues on merits raised in the Writ Petition No. 18500(w) of 1985 filed at the instance of the Respondents before the High Court of Calcutta, but if the civil suit was not maintainable as alleged in view of Section 293 of the Income Tax Act and this was the purported defence of the Respondents and of the Income Tax Department and consequential effect to the Order dated 8th September, 1965 of which a reference has been made by us, no party could be left remediless and whatever the grievance the party has raised before the Court of law, has to be examined on its own merits. In our considered view, there appears no error being committed by the High Court in passing the impugned judgment dated 24th September, 2014 in exercise of its review jurisdiction and that needs no interference by this Court. | 0 | 4,809 | 524 | ### Instruction:
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a fresh civil suit in respect of the subject property in Delhi and either party has not brought to the notice of the Court the mandate of law as envisaged Under Section 293 of the Income Tax Act, 1961 that the civil suit against the Income tax Department is not maintainable under the law, which appears to be mistakenly omitted by the Court in arriving at the rival claims of the parties. 27. It was taken note of by the High Court in its review jurisdiction and arrived to the conclusion that there appears to be an error apparent on the face of record and consequently allowed the application for review, recalled the Order dated 19th October, 2012 and set aside the Judgment and Order dated 31st March, 2006 passed in miscellaneous application and for restoration of Writ Petition No. 18500(W) of 1985 to be heard on its own merits under the impugned judgment dated 24th September, 2014. 28. The basic principles in which the review application could be entertained have been eloquently examined by this Court in Kamlesh Verma (supra) wherein this Court held as under: 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words any other sufficient reason have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526 to mean a reason sufficient on grounds at least analogous to those specified in the rule. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337. 20.2. When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. 29. Taking note of the exposition of the above principles let us consider the facts on record and it reveals that the effect of Section 293 of the Income Tax Act has been mistakenly omitted under the judgment in review and that apart, the consequential effect of the order of the High Court on an application filed by the Union of India in Civil Suit No. 1451 of 1957 dated 8th September, 1965 was open to be examined in the writ proceedings and it was the defence of the Income Tax Department in the reply to the review application and also before this Court in their counter affidavit that in the auction sale which was held in the month of August, 1964, the permission from the Court was not obtained and after the order came to be passed on their application by the Single Judge of the High Court in Suit No. 1451 of 1957 dated 8th September, 1965, it will certainly affect the auction sale held by the Income Tax Department in reference to the subject property in question and it was their stand throughout in the proceedings. 30. We find that the Single Judge of the High Court of Calcutta heard and reserved the judgment in Writ Petition No. 18500(W) of 1985 in March/April 1986 and after nearly four and half years, the judgment pronounced on 26th October, 1990 relegating the parties to raise all the contentions to their defence in the pending civil suit before the District Judge, Delhi itself indicates that the Single Judge was not inclined to express its opinion on merits obviously for the reason that if the finding was recorded, it would have prejudiced the rights of the parties to the litigation to be examined in the alleged pending civil suit in the District Court, Delhi which although was dismissed on 3rd October, 1986 much before the pronouncement of the judgment dated 26th October, 1990 by the Single Judge of the High Court. 31. In the given facts and circumstances, we are not inclined to dilate the issues on merits raised in the Writ Petition No. 18500(w) of 1985 filed at the instance of the Respondents before the High Court of Calcutta, but if the civil suit was not maintainable as alleged in view of Section 293 of the Income Tax Act and this was the purported defence of the Respondents and of the Income Tax Department and consequential effect to the Order dated 8th September, 1965 of which a reference has been made by us, no party could be left remediless and whatever the grievance the party has raised before the Court of law, has to be examined on its own merits. In our considered view, there appears no error being committed by the High Court in passing the impugned judgment dated 24th September, 2014 in exercise of its review jurisdiction and that needs no interference by this Court.
### Response:
0
### Explanation:
29. Taking note of the exposition of the above principles let us consider the facts on record and it reveals that the effect of Section 293 of the Income Tax Act has been mistakenly omitted under the judgment in review and that apart, the consequential effect of the order of the High Court on an application filed by the Union of India in Civil Suit No. 1451 of 1957 dated 8th September, 1965 was open to be examined in the writ proceedings and it was the defence of the Income Tax Department in the reply to the review application and also before this Court in their counter affidavit that in the auction sale which was held in the month of August, 1964, the permission from the Court was not obtained and after the order came to be passed on their application by the Single Judge of the High Court in Suit No. 1451 of 1957 dated 8th September, 1965, it will certainly affect the auction sale held by the Income Tax Department in reference to the subject property in question and it was their stand throughout in the proceedings30. We find that the Single Judge of the High Court of Calcutta heard and reserved the judgment in Writ Petition No. 18500(W) of 1985 in March/April 1986 and after nearly four and half years, the judgment pronounced on 26th October, 1990 relegating the parties to raise all the contentions to their defence in the pending civil suit before the District Judge, Delhi itself indicates that the Single Judge was not inclined to express its opinion on merits obviously for the reason that if the finding was recorded, it would have prejudiced the rights of the parties to the litigation to be examined in the alleged pending civil suit in the District Court, Delhi which although was dismissed on 3rd October, 1986 much before the pronouncement of the judgment dated 26th October, 1990 by the Single Judge of the High Court31. In the given facts and circumstances, we are not inclined to dilate the issues on merits raised in the Writ Petition No. 18500(w) of 1985 filed at the instance of the Respondents before the High Court of Calcutta, but if the civil suit was not maintainable as alleged in view of Section 293 of the Income Tax Act and this was the purported defence of the Respondents and of the Income Tax Department and consequential effect to the Order dated 8th September, 1965 of which a reference has been made by us, no party could be left remediless and whatever the grievance the party has raised before the Court of law, has to be examined on its own merits. In our considered view, there appears no error being committed by the High Court in passing the impugned judgment dated 24th September, 2014 in exercise of its review jurisdiction and that needs no interference by this Court.
|
Union Of India Vs. Tantia Construction Pvt.Ltd | consultant for designing the plan for execution. During the above process, it was found that each earth filled approach road could not be raised above 7 meters and, as a result, the remaining 8 meters was to be made of complete cement casting known as a Viaduct. The Railways got the matter examined by its own associate, RITES, and, thereafter, approved the plan. The consequence of the said change was that the Tender which was of 19 crores stood increased to 36 crores on account of the additional work which was to be undertaken as a result of the modified design. In fact, the Railways themselves decided to float a fresh Tender for the additional work at an estimated cost of 24.50 crores separately. As a result, the work relating to construction of the Rail Over-Bridge now consisted of two parts, one of which the Respondent Company was executing and the other to be executed by a different contractor. However, as mentioned hereinbefore, there was hardly any response to the Tender floated. Seeing that the quantum of work under Tender No.76 of 06-07 stood reduced, the Respondent Company wrote to the Petitioners on 12th April, 2008, agreeing to undertake the varied work at the same rate and on the same terms and conditions, subject to the Price Variation Clause. The problem appears to have begun at this stage when, on the basis of the said letter dated 12th April, 2008, the Petitioners directed the Respondent Company to continue with the unfinished portion of the plan. 23. Admittedly, the work which had to be completed within 15 months from the date of issuance of the letter of acceptance, could not be completed within the said period and, on the other hand, a new element was introduced into the design of the Rail Over-Bridge. It is the case of the Respondent Company that any item of work directed to be performed could not be covered by the original contract dated 12th/13th February, 2007, and realizing the same, the Railways themselves floated a fresh Tender No.189 of 2008 for the additional work of the extended portion of the Viaduct.24. We are of the view that the letter dated 12th April, 2008, did not cover the extended work on account of the alteration of the design and was confined to the work originally contracted for. We cannot lose sight of the fact that while the initial cost of the Tender was accepted for 19,11,01,221.84p., the costs for the extended work only was assessed at 24.50 crores and that two offers were received, which were for 34,11,16,279.39p. and 35,89,93,215.66p. respectively. This was only with regard to the extended portion of the work on account of change in design. The Respondent Company was expected to complete the entire work which comprised both the work covered under the initial Tender and the extended work covered by the second Tender. The Respondent had all along expressed its unwillingness to take up the extended work and for whatever reason, it agreed to complete the balance work of the initial contract at the same rates as quoted earlier, despite the fact that a long time had elapsed between the awarding of the contract and the actual execution thereof.25. In our view, the Respondent Company has satisfactorily explained their position regarding their offer being confined only to the balance work of the original Tender and not to the extended work. The delay occasioned in starting the work was not on account of any fault or lapses on the part of the Respondent Company, but on account of the fact that the project design of the work to be undertaken could not be completed and ultimately involved change in the design itself. The Respondent Company appears to have agreed to complete the varied work of Tender No.76 of 06-07 which variation had been occasioned on account of the change in the design as against the entire work covering both the first and second Tenders. To proceed on the basis that the Respondent Company was willing to undertake the entire work at the old rates was an error of judgment and the termination of the contract in relation to Tender No.76 of 06- 07 on the basis of said supposition was unjustified and was rightly set aside by the learned Single Judge of the High Court, which order was affirmed by the Division Bench. 26. The submissions made on behalf of the Petitioners that in terms of Clause 23(2) of the Agreement, the Petitioners were entitled to alter and increase/decrease the scope of the work is not attracted to the facts of this case where the entire design of the Rail Over-Bridge was altered, converting the same into a completely new project. It was not merely a case of increase or decrease in the scope of the work of the original work schedule covered under Tender No.76 of 06-07, but a case of substantial alteration of the plan itself. 27. Apart from the above, even on the question of maintainability of the writ petition on account of the Arbitration Clause included in the agreement between the parties, it is now well-established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. We endorse the view of the High Court that notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company. | 0[ds]23. Admittedly, the work which had to be completed within 15 months from the date of issuance of the letter of acceptance, could not be completed within the said period and, on the other hand, a new element was introduced into the design of the Rail Over-Bridge. It is the case of the Respondent Company that any item of work directed to be performed could not be covered by the original contract dated 12th/13th February, 2007, and realizing theves floated a fresh Tender No.189 of 2008 for the additional work of the extended portion of the Viaduct.24. We are of the view that the letter dated 12th April, 2008, did not cover the extended work on account of the alteration of the design and was. We cannot lose sight of the fact that while the initial cost of the Tender was., the costs for the extended work only was assessed at 24.50 crores and that two offers were received, which were for 34,11,16,279.39p. and 35,89,93,215.66p. respectively. This was only withto the extendedportion of the work on account of change in design. The Respondent Company was expected to complete the entire work which comprised both the work covered under the initial Tender and the extended work covered by the second Tender. The Respondent had all along expressed its unwillingness to take up the extended work and for whatever reason, it agreed to complete the balance work of the initial contract at the same rates as quoted earlier, despite the fact that a long time had elapsed between the awarding of the contract and the actual execution thereof.25. In our view, the Respondent Company has satisfactorily explained their position regarding their offer being confined only to the balance work of the original Tender and notto the extendedwork. The delay occasioned in starting the work was not on account of any fault or lapses on the part of the Respondent Company, but on account of the fact that the project design of the work to be undertaken could not be completed and ultimately involved change in the design itself. The Respondent Company appears to have agreed to complete the varied work of Tender No.76 of 06-07 which variation had been occasioned on account of the change in the design as against the entire work covering both the first and second Tenders. To proceed on the basis that the Respondent Company was willing to undertake the entire work at the old rates was an error of judgment and the termination of the contract in relation to Tender No.76 of 06- 07 on the basis of said supposition was unjustified and was rightly set aside by the learned Single Judge of the High Court, which order was affirmed by the Division Bench.Apart from the above, even on the question of maintainability of the writ petition on account of the Arbitration Clause included in the agreement between the parties, it is now well-established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. We endorse the view of the High Court that notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company. | 0 | 4,431 | 673 | ### Instruction:
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consultant for designing the plan for execution. During the above process, it was found that each earth filled approach road could not be raised above 7 meters and, as a result, the remaining 8 meters was to be made of complete cement casting known as a Viaduct. The Railways got the matter examined by its own associate, RITES, and, thereafter, approved the plan. The consequence of the said change was that the Tender which was of 19 crores stood increased to 36 crores on account of the additional work which was to be undertaken as a result of the modified design. In fact, the Railways themselves decided to float a fresh Tender for the additional work at an estimated cost of 24.50 crores separately. As a result, the work relating to construction of the Rail Over-Bridge now consisted of two parts, one of which the Respondent Company was executing and the other to be executed by a different contractor. However, as mentioned hereinbefore, there was hardly any response to the Tender floated. Seeing that the quantum of work under Tender No.76 of 06-07 stood reduced, the Respondent Company wrote to the Petitioners on 12th April, 2008, agreeing to undertake the varied work at the same rate and on the same terms and conditions, subject to the Price Variation Clause. The problem appears to have begun at this stage when, on the basis of the said letter dated 12th April, 2008, the Petitioners directed the Respondent Company to continue with the unfinished portion of the plan. 23. Admittedly, the work which had to be completed within 15 months from the date of issuance of the letter of acceptance, could not be completed within the said period and, on the other hand, a new element was introduced into the design of the Rail Over-Bridge. It is the case of the Respondent Company that any item of work directed to be performed could not be covered by the original contract dated 12th/13th February, 2007, and realizing the same, the Railways themselves floated a fresh Tender No.189 of 2008 for the additional work of the extended portion of the Viaduct.24. We are of the view that the letter dated 12th April, 2008, did not cover the extended work on account of the alteration of the design and was confined to the work originally contracted for. We cannot lose sight of the fact that while the initial cost of the Tender was accepted for 19,11,01,221.84p., the costs for the extended work only was assessed at 24.50 crores and that two offers were received, which were for 34,11,16,279.39p. and 35,89,93,215.66p. respectively. This was only with regard to the extended portion of the work on account of change in design. The Respondent Company was expected to complete the entire work which comprised both the work covered under the initial Tender and the extended work covered by the second Tender. The Respondent had all along expressed its unwillingness to take up the extended work and for whatever reason, it agreed to complete the balance work of the initial contract at the same rates as quoted earlier, despite the fact that a long time had elapsed between the awarding of the contract and the actual execution thereof.25. In our view, the Respondent Company has satisfactorily explained their position regarding their offer being confined only to the balance work of the original Tender and not to the extended work. The delay occasioned in starting the work was not on account of any fault or lapses on the part of the Respondent Company, but on account of the fact that the project design of the work to be undertaken could not be completed and ultimately involved change in the design itself. The Respondent Company appears to have agreed to complete the varied work of Tender No.76 of 06-07 which variation had been occasioned on account of the change in the design as against the entire work covering both the first and second Tenders. To proceed on the basis that the Respondent Company was willing to undertake the entire work at the old rates was an error of judgment and the termination of the contract in relation to Tender No.76 of 06- 07 on the basis of said supposition was unjustified and was rightly set aside by the learned Single Judge of the High Court, which order was affirmed by the Division Bench. 26. The submissions made on behalf of the Petitioners that in terms of Clause 23(2) of the Agreement, the Petitioners were entitled to alter and increase/decrease the scope of the work is not attracted to the facts of this case where the entire design of the Rail Over-Bridge was altered, converting the same into a completely new project. It was not merely a case of increase or decrease in the scope of the work of the original work schedule covered under Tender No.76 of 06-07, but a case of substantial alteration of the plan itself. 27. Apart from the above, even on the question of maintainability of the writ petition on account of the Arbitration Clause included in the agreement between the parties, it is now well-established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. We endorse the view of the High Court that notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company.
### Response:
0
### Explanation:
23. Admittedly, the work which had to be completed within 15 months from the date of issuance of the letter of acceptance, could not be completed within the said period and, on the other hand, a new element was introduced into the design of the Rail Over-Bridge. It is the case of the Respondent Company that any item of work directed to be performed could not be covered by the original contract dated 12th/13th February, 2007, and realizing theves floated a fresh Tender No.189 of 2008 for the additional work of the extended portion of the Viaduct.24. We are of the view that the letter dated 12th April, 2008, did not cover the extended work on account of the alteration of the design and was. We cannot lose sight of the fact that while the initial cost of the Tender was., the costs for the extended work only was assessed at 24.50 crores and that two offers were received, which were for 34,11,16,279.39p. and 35,89,93,215.66p. respectively. This was only withto the extendedportion of the work on account of change in design. The Respondent Company was expected to complete the entire work which comprised both the work covered under the initial Tender and the extended work covered by the second Tender. The Respondent had all along expressed its unwillingness to take up the extended work and for whatever reason, it agreed to complete the balance work of the initial contract at the same rates as quoted earlier, despite the fact that a long time had elapsed between the awarding of the contract and the actual execution thereof.25. In our view, the Respondent Company has satisfactorily explained their position regarding their offer being confined only to the balance work of the original Tender and notto the extendedwork. The delay occasioned in starting the work was not on account of any fault or lapses on the part of the Respondent Company, but on account of the fact that the project design of the work to be undertaken could not be completed and ultimately involved change in the design itself. The Respondent Company appears to have agreed to complete the varied work of Tender No.76 of 06-07 which variation had been occasioned on account of the change in the design as against the entire work covering both the first and second Tenders. To proceed on the basis that the Respondent Company was willing to undertake the entire work at the old rates was an error of judgment and the termination of the contract in relation to Tender No.76 of 06- 07 on the basis of said supposition was unjustified and was rightly set aside by the learned Single Judge of the High Court, which order was affirmed by the Division Bench.Apart from the above, even on the question of maintainability of the writ petition on account of the Arbitration Clause included in the agreement between the parties, it is now well-established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. We endorse the view of the High Court that notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company.
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THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE & ANR. ETC Vs. DR. SUSMI C.T. & ANR. ETC | and concern that the benefit of appointment of all those who could be given appointment during the currency of the ranked list, was provided. Even as late as on 17.11.2017, vacancies were reported; between 19.10.2017 and 17.11.2017; 37 vacancies were advised. There is also no dispute that the advice led to further appointment of successful candidates. This being the position, the KAT, in this courts opinion, without any material, proceeded to direct the department to advise 28 vacancies on 14.11.2017. There is nothing on record to suggest that the government was tardy in reporting or advising, or was intentionally dragging its feet. This order was made at the first hearing, without providing the department with any opportunity to respond to the demand for an interim order. 22. In the final order, the KAT virtually confirmed the interim order, and proceeded to entirely discount the departments stand that the promotion of some medical officers to the higher grade, did not automatically lead to existence of vacancies. The department had explained, in its affidavit, that the entire cadre of Medical Officers (714) with senior medical officers (237), was 951. The departments affidavit had stated that the promotions were not perceived as ratio promotions, as a result of which vacancies in the cadre of Medical Officers could not be inferred. Further, according to the department, as in June 2017, the strength of Medical Officers was 851, in excess of the sanctioned cadre strength. It was contended that for these reasons, no vacancies could be said to have arisen. However, the KAT rejected that submission; and the High Court confirmed its orders. 23. This court is of the opinion that the approach of the High Court was to put it mildly, cavalier. When the department approached the High Court under Article 226 of the Constitution, its petition was rejected on the ground of laches, despite the fact that the main order of the KAT was given just a year before presentation of the petition; furthermore, the department had also filed a review petition. As far as the other writ petitions are concerned, the High Court gave them a short shrift saying that in one of the applications allowed by the KAT, the order had been allowed to become final. This approach was wrong, because the department had approached the KAT with a review, which was pending. Furthermore, even if that were so, the High Court should have considered the matter on merits, given that the issue involved, had large ramifications. Shenoy & Co v. Commercial Tax Officer (1985) 2 SCC 512 is an authority for the proposition that the state or any public agency, cannot be precluded from challenging a judgment, on the ground that it approaches this court, filing an appeal against only one party. Even if in that case, the normative basis of the judgment under appeal is disturbed, and the issue concerns a matter having public ramifications, such as tax, or – in this case, recruitment, the final judgment would bind all concerned. In the present case too, therefore, the High Courts reasoning that the state had not filed petitions against other persons, was flawed; that ipso facto should not have precluded an examination of the merits of the KATs orders. 24. As noticed earlier, the right of those who find a position in the ranked list, is to be advised against vacancies which arise during the currency of the list, and which are reported. In this case, the candidates complained that some vacancies had been kept back and not reported. 25. The right of selected candidates (as those in a ranked list are) was explained by a five-judge bench of this court in Shankersan Dash v. Union of India 1991 (2) SCR 567 in the following manner: It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.…. 26. It, is therefore, as against vacancies that are reported to the KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se. It is possible that in given situations, the state may be lethargic, or even may not wish to report vacancies. In such situations, undoubtedly the individuals awaiting appointment may have recourse to judicial remedies. In such proceedings, the government or the concerned agency can furnish a suitable explanation. If that is found to be arbitrary, appropriate directions may follow. However, the procedure in all such cases, would be to consider the states response. In the present case, the KAT in this courts opinion, entirely misdirected itself in making an inquiry whether vacancies had arisen in June 2017, with promotion of some Medical Officers. As the department explained, those promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls. Furthermore, the KAT in our opinion, should not have inquired into the matter, once it was reported that all vacancies that could be reported, had been reported- as is evident from the reply filed by the department, as well as the tabular chart in it. | 1[ds]19. In the present case, the departments clear position in its affidavit, before the KAT was that all vacancies were reported, and that only 5 vacancies that had to be filled from amongst candidates with disabilities, were unfilled. This is quite apparent from the tabular chart, which disclosed the particulars of the vacancies that had arisen- during the currency of the ranked list, as well as those reported, and the final tally of vacancies which existed, as on the date when the ranked list expired, i.e 18.11.201720. The basic premise for the KATs direction – which was affirmed by the High Court - was that 28 vacancies were not reported and that 15 others arose. The KAT also formed the opinion that a large number of vacancies arose in the Medical Officers cadre, on account of promotion orders dated 20.6.2017.21. This court notices that there was no dispute about the figures provided by the department, in the tabular chart. These reflected the governments ongoing engagement, and concern that the benefit of appointment of all those who could be given appointment during the currency of the ranked list, was provided. Even as late as on 17.11.2017, vacancies were reported; between 19.10.2017 and 17.11.2017; 37 vacancies were advised. There is also no dispute that the advice led to further appointment of successful candidates. This being the position, the KAT, in this courts opinion, without any material, proceeded to direct the department to advise 28 vacancies on 14.11.2017. There is nothing on record to suggest that the government was tardy in reporting or advising, or was intentionally dragging its feet. This order was made at the first hearing, without providing the department with any opportunity to respond to the demand for an interim order.22. In the final order, the KAT virtually confirmed the interim order, and proceeded to entirely discount the departments stand that the promotion of some medical officers to the higher grade, did not automatically lead to existence of vacancies. The department had explained, in its affidavit, that the entire cadre of Medical Officers (714) with senior medical officers (237), was 951. The departments affidavit had stated that the promotions were not perceived as ratio promotions, as a result of which vacancies in the cadre of Medical Officers could not be inferred. Further, according to the department, as in June 2017, the strength of Medical Officers was 851, in excess of the sanctioned cadre strength. It was contended that for these reasons, no vacancies could be said to have arisen. However, the KAT rejected that submission; and the High Court confirmed its orders.23. This court is of the opinion that the approach of the High Court was to put it mildly, cavalier. When the department approached the High Court under Article 226 of the Constitution, its petition was rejected on the ground of laches, despite the fact that the main order of the KAT was given just a year before presentation of the petition; furthermore, the department had also filed a review petition. As far as the other writ petitions are concerned, the High Court gave them a short shrift saying that in one of the applications allowed by the KAT, the order had been allowed to become final. This approach was wrong, because the department had approached the KAT with a review, which was pending. Furthermore, even if that were so, the High Court should have considered the matter on merits, given that the issue involved, had large ramifications. Shenoy & Co v. Commercial Tax Officer (1985) 2 SCC 512 is an authority for the proposition that the state or any public agency, cannot be precluded from challenging a judgment, on the ground that it approaches this court, filing an appeal against only one party. Even if in that case, the normative basis of the judgment under appeal is disturbed, and the issue concerns a matter having public ramifications, such as tax, or – in this case, recruitment, the final judgment would bind all concerned. In the present case too, therefore, the High Courts reasoning that the state had not filed petitions against other persons, was flawed; that ipso facto should not have precluded an examination of the merits of the KATs orders.24. As noticed earlier, the right of those who find a position in the ranked list, is to be advised against vacancies which arise during the currency of the list, and which are reported. In this case, the candidates complained that some vacancies had been kept back and not reported.25. The right of selected candidates (as those in a ranked list are) was explained by a five-judge bench of this court in Shankersan Dash v. Union of India 1991 (2) SCR 567 in the following manner:It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.….26. It, is therefore, as against vacancies that are reported to the KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se. It is possible that in given situations, the state may be lethargic, or even may not wish to report vacancies. In such situations, undoubtedly the individuals awaiting appointment may have recourse to judicial remedies. In such proceedings, the government or the concerned agency can furnish a suitable explanation. If that is found to be arbitrary, appropriate directions may follow. However, the procedure in all such cases, would be to consider the states response. In the present case, the KAT in this courts opinion, entirely misdirected itself in making an inquiry whether vacancies had arisen in June 2017, with promotion of some Medical Officers. As the department explained, those promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls. Furthermore, the KAT in our opinion, should not have inquired into the matter, once it was reported that all vacancies that could be reported, had been reported- as is evident from the reply filed by the department, as well as the tabular chart in it. | 1 | 4,373 | 1,317 | ### 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:
and concern that the benefit of appointment of all those who could be given appointment during the currency of the ranked list, was provided. Even as late as on 17.11.2017, vacancies were reported; between 19.10.2017 and 17.11.2017; 37 vacancies were advised. There is also no dispute that the advice led to further appointment of successful candidates. This being the position, the KAT, in this courts opinion, without any material, proceeded to direct the department to advise 28 vacancies on 14.11.2017. There is nothing on record to suggest that the government was tardy in reporting or advising, or was intentionally dragging its feet. This order was made at the first hearing, without providing the department with any opportunity to respond to the demand for an interim order. 22. In the final order, the KAT virtually confirmed the interim order, and proceeded to entirely discount the departments stand that the promotion of some medical officers to the higher grade, did not automatically lead to existence of vacancies. The department had explained, in its affidavit, that the entire cadre of Medical Officers (714) with senior medical officers (237), was 951. The departments affidavit had stated that the promotions were not perceived as ratio promotions, as a result of which vacancies in the cadre of Medical Officers could not be inferred. Further, according to the department, as in June 2017, the strength of Medical Officers was 851, in excess of the sanctioned cadre strength. It was contended that for these reasons, no vacancies could be said to have arisen. However, the KAT rejected that submission; and the High Court confirmed its orders. 23. This court is of the opinion that the approach of the High Court was to put it mildly, cavalier. When the department approached the High Court under Article 226 of the Constitution, its petition was rejected on the ground of laches, despite the fact that the main order of the KAT was given just a year before presentation of the petition; furthermore, the department had also filed a review petition. As far as the other writ petitions are concerned, the High Court gave them a short shrift saying that in one of the applications allowed by the KAT, the order had been allowed to become final. This approach was wrong, because the department had approached the KAT with a review, which was pending. Furthermore, even if that were so, the High Court should have considered the matter on merits, given that the issue involved, had large ramifications. Shenoy & Co v. Commercial Tax Officer (1985) 2 SCC 512 is an authority for the proposition that the state or any public agency, cannot be precluded from challenging a judgment, on the ground that it approaches this court, filing an appeal against only one party. Even if in that case, the normative basis of the judgment under appeal is disturbed, and the issue concerns a matter having public ramifications, such as tax, or – in this case, recruitment, the final judgment would bind all concerned. In the present case too, therefore, the High Courts reasoning that the state had not filed petitions against other persons, was flawed; that ipso facto should not have precluded an examination of the merits of the KATs orders. 24. As noticed earlier, the right of those who find a position in the ranked list, is to be advised against vacancies which arise during the currency of the list, and which are reported. In this case, the candidates complained that some vacancies had been kept back and not reported. 25. The right of selected candidates (as those in a ranked list are) was explained by a five-judge bench of this court in Shankersan Dash v. Union of India 1991 (2) SCR 567 in the following manner: It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.…. 26. It, is therefore, as against vacancies that are reported to the KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se. It is possible that in given situations, the state may be lethargic, or even may not wish to report vacancies. In such situations, undoubtedly the individuals awaiting appointment may have recourse to judicial remedies. In such proceedings, the government or the concerned agency can furnish a suitable explanation. If that is found to be arbitrary, appropriate directions may follow. However, the procedure in all such cases, would be to consider the states response. In the present case, the KAT in this courts opinion, entirely misdirected itself in making an inquiry whether vacancies had arisen in June 2017, with promotion of some Medical Officers. As the department explained, those promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls. Furthermore, the KAT in our opinion, should not have inquired into the matter, once it was reported that all vacancies that could be reported, had been reported- as is evident from the reply filed by the department, as well as the tabular chart in it.
### Response:
1
### Explanation:
governments ongoing engagement, and concern that the benefit of appointment of all those who could be given appointment during the currency of the ranked list, was provided. Even as late as on 17.11.2017, vacancies were reported; between 19.10.2017 and 17.11.2017; 37 vacancies were advised. There is also no dispute that the advice led to further appointment of successful candidates. This being the position, the KAT, in this courts opinion, without any material, proceeded to direct the department to advise 28 vacancies on 14.11.2017. There is nothing on record to suggest that the government was tardy in reporting or advising, or was intentionally dragging its feet. This order was made at the first hearing, without providing the department with any opportunity to respond to the demand for an interim order.22. In the final order, the KAT virtually confirmed the interim order, and proceeded to entirely discount the departments stand that the promotion of some medical officers to the higher grade, did not automatically lead to existence of vacancies. The department had explained, in its affidavit, that the entire cadre of Medical Officers (714) with senior medical officers (237), was 951. The departments affidavit had stated that the promotions were not perceived as ratio promotions, as a result of which vacancies in the cadre of Medical Officers could not be inferred. Further, according to the department, as in June 2017, the strength of Medical Officers was 851, in excess of the sanctioned cadre strength. It was contended that for these reasons, no vacancies could be said to have arisen. However, the KAT rejected that submission; and the High Court confirmed its orders.23. This court is of the opinion that the approach of the High Court was to put it mildly, cavalier. When the department approached the High Court under Article 226 of the Constitution, its petition was rejected on the ground of laches, despite the fact that the main order of the KAT was given just a year before presentation of the petition; furthermore, the department had also filed a review petition. As far as the other writ petitions are concerned, the High Court gave them a short shrift saying that in one of the applications allowed by the KAT, the order had been allowed to become final. This approach was wrong, because the department had approached the KAT with a review, which was pending. Furthermore, even if that were so, the High Court should have considered the matter on merits, given that the issue involved, had large ramifications. Shenoy & Co v. Commercial Tax Officer (1985) 2 SCC 512 is an authority for the proposition that the state or any public agency, cannot be precluded from challenging a judgment, on the ground that it approaches this court, filing an appeal against only one party. Even if in that case, the normative basis of the judgment under appeal is disturbed, and the issue concerns a matter having public ramifications, such as tax, or – in this case, recruitment, the final judgment would bind all concerned. In the present case too, therefore, the High Courts reasoning that the state had not filed petitions against other persons, was flawed; that ipso facto should not have precluded an examination of the merits of the KATs orders.24. As noticed earlier, the right of those who find a position in the ranked list, is to be advised against vacancies which arise during the currency of the list, and which are reported. In this case, the candidates complained that some vacancies had been kept back and not reported.25. The right of selected candidates (as those in a ranked list are) was explained by a five-judge bench of this court in Shankersan Dash v. Union of India 1991 (2) SCR 567 in the following manner:It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.….26. It, is therefore, as against vacancies that are reported to the KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se. It is possible that in given situations, the state may be lethargic, or even may not wish to report vacancies. In such situations, undoubtedly the individuals awaiting appointment may have recourse to judicial remedies. In such proceedings, the government or the concerned agency can furnish a suitable explanation. If that is found to be arbitrary, appropriate directions may follow. However, the procedure in all such cases, would be to consider the states response. In the present case, the KAT in this courts opinion, entirely misdirected itself in making an inquiry whether vacancies had arisen in June 2017, with promotion of some Medical Officers. As the department explained, those promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls. Furthermore, the KAT in our opinion, should not have inquired into the matter, once it was reported that all vacancies that could be reported, had been reported- as is evident from the reply filed by the department, as well as the tabular chart in it.
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T. C. Appanda Mudaliar (Dead) By L.Rs Vs. State of Madras | Department. The contention of the appellant before the High Court was based on Article 14 that there were no guidelines to apply the provisions of the Tamil Nadu Religious and Charitable Endowments Act, 1959 (hereinafter called the Act) to the Jain institutions. The High Court did not accept the contention of the appellants.3. for the appellant with fairness realised that there was no force in the contention based on Article 14. He also pointed out that the reason why he did press it was that the notification was made eleven years ago and there was an order of stay of operation of the impeached order. Counsel submitted that the stay order for over eleven years should not be continued for a further period if the matter were to be adjourned again on the ground of Article 14 being involved in the appeal. Counsel, therefore, did not rely on Article 14.4. Counsel for the appellant contended that real submission was that section 2 of the Act could not be applied to an individual Jain institution. This point was not canvassed in the High Court. This is one of the points mentioned in the special leave petition. Ordinarily this Court does not allow a new point to the taken because this Court would always like to have the views of the High Court. In view of the fair attitude of counsel for the appellant we gave him leave to urge this new point because it is a pure question of the construction of the statute.5. The contention based on Section 2 of the Act is that the provisions can be applied to all Jain institutions and not to one isolated Jain institution. The reason advanced is that this Act does not apply to Jain institutions and if this has to be applied there has to be a notification. The historical background for which the Jain institutions were excluded from the operation of the Act save by notification has principally three features. First, Jain institutions have always been managed by elected bodies and have by and large been very well run. Cases of mismanagement have been very few (vide para 14 of Chapter IX of the Report of the H.R.E. Commission, 1960). Second, Jain institutions do not have any mahant in charge of religious institutions in order to do anything corresponding to the shebaits of Hindu temples and their acharyas so not own any property or accept any offerings (see paragraph 6 of the same Report). Third, hereditary trusteeship is not prevalent among the Jains.6. The provisions of the Act are clear and plain. The Government may, by notification, under Section 2 of the Act extend to Jain public institutions and endowments, all or any of the provisions of the Act, and thereupon the provisions so extended shall apply to any institution. If the Act is to be applied to one Jain institution on the ground of mismanagement of a particular institution it is not reasonable to suppose that the Act will therefore have to be applied to all Jain institutions. The reason is obvious. All the institutions may not be mismanaged like the one to which the Act is being applied.7. Another contention which was brought in aid by counsel for the appellants was that Section 2 (2) if the Act said that wherever the word Hindu occurred, it shall, in respect of Jain public religious institutions and endowments to which the provisions of the Act have been extended, be construed to mean Jain. Counsel referred to Sections 9, 10, 12, 14, 96 and 107 of the Act and submitted that a Jain Commissioner would have to be appointed. The appellant submitted that it would be difficult and impracticable to get a Jain Commissioner from the members of Judicial Service. It was also said that special fund would have to be created.8. Counsel for the respondent rightly submitted that the provision in Section 2 (2) of the Act said that the word Hindu would be construed to mean Jain unless the context otherwise requires. He relied on the decision of this Court in C.W.T., West Bengal v. Champa Kumari Singhi ((1972) 3 SCR 118 : (1972) 1 SCC 508 ), where this Court has held that Jains are Hindus. The provisions of the Act particularly those relating to appointment of Commissioner or creation of a fund pertain to administration and working of the Act. It has not been disputed that there is any interference with any religious ceremonies of the institution. Therefore, even a Hindu Commissioner in the context of the provisions of the Act is competent to perform the duties contemplated by the Act.9. It has to be seen as to why this notification was made in this particulars case. The Government exercised the power under Section 2(1) of the Act for the reasons that the accounts were not account were not maintained properly, that surplus funds of the temple were not invested in banks and that temple funds were being utilised for the personal interests of the trustees. These are serious charges relating to the accounts of the temple. It can hardly be said that the notification proposing to apply the Act to an institution in these circumstances requires assistance of a Jain Commissioner or a Jain to administer the institution.10. Counsel for the respondent rightly submitted that the reason why the Act was not to apply to Jains was to confer a benefit on Jains because of the report relating to Jain institutions. There were no instance of mismanagement or maladministration of Jain institution. This benefit given to Jain institutions can be departed from when the Act is applied to a Jain institution as has happened in the present case. We have already pointed out that the Act can apply to one institution because there is no compelling reason to read the Act in plurality in relation to Jain institution. Mismanagement or mishandling of accounts is not a ubiquitous feature. It may be found only in a single instance. | 1[ds]9. It has to be seen as to why this notification was made in this particulars case. The Government exercised the power under Section 2(1) of the Act for the reasons that the accounts were not account were not maintained properly, that surplus funds of the temple were not invested in banks and that temple funds were being utilised for the personal interests of the trustees. These are serious charges relating to the accounts of the temple. It can hardly be said that the notification proposing to apply the Act to an institution in these circumstances requires assistance of a Jain Commissioner or a Jain to administer the institution.10. Counsel for the respondent rightly submitted that the reason why the Act was not to apply to Jains was to confer a benefit on Jains because of the report relating to Jain institutions. There were no instance of mismanagement or maladministration of Jain institution. This benefit given to Jain institutions can be departed from when the Act is applied to a Jain institution as has happened in the present case. We have already pointed out that the Act can apply to one institution because there is no compelling reason to read the Act in plurality in relation to Jain institution. Mismanagement or mishandling of accounts is not a ubiquitous feature. It may be found only in a single instance. | 1 | 1,125 | 247 | ### 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:
Department. The contention of the appellant before the High Court was based on Article 14 that there were no guidelines to apply the provisions of the Tamil Nadu Religious and Charitable Endowments Act, 1959 (hereinafter called the Act) to the Jain institutions. The High Court did not accept the contention of the appellants.3. for the appellant with fairness realised that there was no force in the contention based on Article 14. He also pointed out that the reason why he did press it was that the notification was made eleven years ago and there was an order of stay of operation of the impeached order. Counsel submitted that the stay order for over eleven years should not be continued for a further period if the matter were to be adjourned again on the ground of Article 14 being involved in the appeal. Counsel, therefore, did not rely on Article 14.4. Counsel for the appellant contended that real submission was that section 2 of the Act could not be applied to an individual Jain institution. This point was not canvassed in the High Court. This is one of the points mentioned in the special leave petition. Ordinarily this Court does not allow a new point to the taken because this Court would always like to have the views of the High Court. In view of the fair attitude of counsel for the appellant we gave him leave to urge this new point because it is a pure question of the construction of the statute.5. The contention based on Section 2 of the Act is that the provisions can be applied to all Jain institutions and not to one isolated Jain institution. The reason advanced is that this Act does not apply to Jain institutions and if this has to be applied there has to be a notification. The historical background for which the Jain institutions were excluded from the operation of the Act save by notification has principally three features. First, Jain institutions have always been managed by elected bodies and have by and large been very well run. Cases of mismanagement have been very few (vide para 14 of Chapter IX of the Report of the H.R.E. Commission, 1960). Second, Jain institutions do not have any mahant in charge of religious institutions in order to do anything corresponding to the shebaits of Hindu temples and their acharyas so not own any property or accept any offerings (see paragraph 6 of the same Report). Third, hereditary trusteeship is not prevalent among the Jains.6. The provisions of the Act are clear and plain. The Government may, by notification, under Section 2 of the Act extend to Jain public institutions and endowments, all or any of the provisions of the Act, and thereupon the provisions so extended shall apply to any institution. If the Act is to be applied to one Jain institution on the ground of mismanagement of a particular institution it is not reasonable to suppose that the Act will therefore have to be applied to all Jain institutions. The reason is obvious. All the institutions may not be mismanaged like the one to which the Act is being applied.7. Another contention which was brought in aid by counsel for the appellants was that Section 2 (2) if the Act said that wherever the word Hindu occurred, it shall, in respect of Jain public religious institutions and endowments to which the provisions of the Act have been extended, be construed to mean Jain. Counsel referred to Sections 9, 10, 12, 14, 96 and 107 of the Act and submitted that a Jain Commissioner would have to be appointed. The appellant submitted that it would be difficult and impracticable to get a Jain Commissioner from the members of Judicial Service. It was also said that special fund would have to be created.8. Counsel for the respondent rightly submitted that the provision in Section 2 (2) of the Act said that the word Hindu would be construed to mean Jain unless the context otherwise requires. He relied on the decision of this Court in C.W.T., West Bengal v. Champa Kumari Singhi ((1972) 3 SCR 118 : (1972) 1 SCC 508 ), where this Court has held that Jains are Hindus. The provisions of the Act particularly those relating to appointment of Commissioner or creation of a fund pertain to administration and working of the Act. It has not been disputed that there is any interference with any religious ceremonies of the institution. Therefore, even a Hindu Commissioner in the context of the provisions of the Act is competent to perform the duties contemplated by the Act.9. It has to be seen as to why this notification was made in this particulars case. The Government exercised the power under Section 2(1) of the Act for the reasons that the accounts were not account were not maintained properly, that surplus funds of the temple were not invested in banks and that temple funds were being utilised for the personal interests of the trustees. These are serious charges relating to the accounts of the temple. It can hardly be said that the notification proposing to apply the Act to an institution in these circumstances requires assistance of a Jain Commissioner or a Jain to administer the institution.10. Counsel for the respondent rightly submitted that the reason why the Act was not to apply to Jains was to confer a benefit on Jains because of the report relating to Jain institutions. There were no instance of mismanagement or maladministration of Jain institution. This benefit given to Jain institutions can be departed from when the Act is applied to a Jain institution as has happened in the present case. We have already pointed out that the Act can apply to one institution because there is no compelling reason to read the Act in plurality in relation to Jain institution. Mismanagement or mishandling of accounts is not a ubiquitous feature. It may be found only in a single instance.
### Response:
1
### Explanation:
9. It has to be seen as to why this notification was made in this particulars case. The Government exercised the power under Section 2(1) of the Act for the reasons that the accounts were not account were not maintained properly, that surplus funds of the temple were not invested in banks and that temple funds were being utilised for the personal interests of the trustees. These are serious charges relating to the accounts of the temple. It can hardly be said that the notification proposing to apply the Act to an institution in these circumstances requires assistance of a Jain Commissioner or a Jain to administer the institution.10. Counsel for the respondent rightly submitted that the reason why the Act was not to apply to Jains was to confer a benefit on Jains because of the report relating to Jain institutions. There were no instance of mismanagement or maladministration of Jain institution. This benefit given to Jain institutions can be departed from when the Act is applied to a Jain institution as has happened in the present case. We have already pointed out that the Act can apply to one institution because there is no compelling reason to read the Act in plurality in relation to Jain institution. Mismanagement or mishandling of accounts is not a ubiquitous feature. It may be found only in a single instance.
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THE REGIONAL PROVIDENT FUND COMMISSIONER (II),WEST BENGAL Vs. VIVEKANANDA VIDYAMANDIR | To this the exclusion of dearness allowance in clause (ii) is an exception. But that exception has been corrected by including dearness allowance in s. 6 for the purpose of contribution. Dearness allowance which is an exception in the definition of "basic wages", is included for the propose of contribution by s. 6 and the real exceptions therefore in clause (ii) are the other exceptions beside dearness allowance, which has been included through S. 6.? 10. Any variable earning which may vary from individual to individual according to their efficiency and diligence will stand excluded from the term ?basic wages? was considered in Muir Mills Co. Ltd., Kanpur Vs. Its Workmen, AIR 1960 SC 985 observing: ?11. Thus understood "basic wage" never includes the additional emoluments which some workmen may earn, on the basis of a system of bonuses related to the production. The quantum of earning in such bonuses varies from individual to individual according to their efficiency and diligence; it will vary sometimes from season to season with the variations of working conditions in the factory or other place where the work is done; it will vary also with variations in the rate of supplies of raw material or in the assistance obtainable from machinery. This very element of variation, excludes this part of workmens emoluments from the connotation of "basic wages"…? 11. In Manipal Academy of Higher Education vs. Provident Fund Commissioner, (2008) 5 SCC 428 , relying upon Bridge Roof?s case it was observed: ?10. The basic principles as laid down in Bridge Roofs case (supra) on a combined reading of Sections 2(b) and 6 are as follows: (a) Where the wage is universally, necessarily and ordinarily paid to all across the board such emoluments are basic wages. (b) Where the payment is available to be specially paid to those who avail of the opportunity is not basic wages. By way of example it was held that overtime allowance, though it is generally in force in all concerns is not earned by all employees of a concern. It is also earned in accordance with the terms of the contract of employment but because it may not be earned by all employees of a concern, it is excluded from basic wages. (c) Conversely, any payment by way of a special incentive or work is not basic wages.? 12. The term basic wage has not been defined under the Act. Adverting to the dictionary meaning of the same in Kichha Sugar Company Limited through General Manager vs. Tarai Chini Mill Majdoor Union, Uttarakhand, (2014) 4 SCC 37 , it was observed as follows: ?9. According to http://www.merriam¬ webster.com (Merriam Webster Dictionary) the word basic wage means as follows: 1. A wage or salary based on the cost of living and used as a standard for calculating rates of pay 2. A rate of pay for a standard work period exclusive of such additional payments as bonuses and overtime. 10. When an expression is not defined, one can take into account the definition given to such expression in a statute as also the dictionary meaning. In our opinion, those wages which are universally, necessarily and ordinarily paid to all the employees across the board are basic wage. Where the payment is available to those who avail the opportunity more than others, the amount paid for that cannot be included in the basic wage. As for example, the overtime allowance, though it is generally enforced across the board but not earned by all employees equally. Overtime wages or for that matter, leave encashment may be available to each workman but it may vary from one workman to other. The extra bonus depends upon the extra hour of work done by the workman whereas leave encashment shall depend upon the number of days of leave available to workman. Both are variable. In view of what we have observed above, we are of the opinion that the amount received as leave encashment and overtime wages is not fit to be included for calculating 15% of the Hill Development Allowance.? 13. That the Act was a piece of beneficial social welfare legislation and must be interpreted as such was considered in The Daily Partap vs. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. 14. Applying the aforesaid tests to the facts of the present appeals, no material has been placed by the establishments to demonstrate that the allowances in question being paid to its employees were either variable or were linked to any incentive for production resulting in greater output by an employee and that the allowances in question were not paid across the board to all employees in a particular category or were being paid especially to those who avail the opportunity. In order that the amount goes beyond the basic wages, it has to be shown that the workman concerned had become eligible to get this extra amount beyond the normal work which he was otherwise required to put in. There is no data available on record to show what were the norms of work prescribed for those workmen during the relevant period. It is therefore not possible to ascertain whether extra amounts paid to the workmen were in fact paid for the extra work which had exceeded the normal output prescribed for the workmen. The wage structure and the components of salary have been examined on facts, both by the authority and the appellate authority under the Act, who have arrived at a factual conclusion that the allowances in question were essentially a part of the basic wage camouflaged as part of an allowance so as to avoid deduction and contribution accordingly to the provident fund account of the employees. There is no occasion for us to interfere with the concurrent conclusions of facts. The appeals by the establishments therefore merit no interference. Conversely, for the same reason the appeal preferred by the Regional Provident Fund Commissioner deserves to be allowed. | 1[ds]4. Shri Vikramajit Banerjee, learned Additional Solicitor General appearing for the appellant in Civil Appeal No. 6221 of 2011, submitted that the special allowance paid to the teaching and non-teaching staff of the respondent school was nothing but camouflaged dearness allowance liable to deduction as part of basic wage.Section 2(b)(ii) defined dearness allowance as all cash payment by whatever name called paid to an employee on account of a rise in the cost of living. The allowance shall therefore fall within the term dearness allowance, irrespective of the nomenclature, it being paid to all employees on account of rise in the cost of living. The special allowance had all the indices of a dearness allowance. A bare perusal of the breakup of the different ingredients of the salary noticed in the earlier order of the Division Bench dated 13.01.2005 makes it apparent that it formed part of the component of pay falling within dearness allowance. The special allowance was also subject to increment on a time scale. The Act was a social beneficial welfare legislation meant for protection of the weaker sections of the society, i.e. the workmen, and was therefore, required to be interpreted in a manner to sub-serve and advance the purpose of the legislation. Under Section 6 of the Act, the appellant was liable to pay contribution to the provident fund on basic wages, dearness allowance, and retaining allowance (if any). To exclude any incentive wage from basic wage, it should have a direct nexus and linkage with the amount of extra output. Relying on Bridge and Roof Co. (India) Ltd. vs. Union of India, (1963) 3 SCR 978 , it was submitted that whatever is payable by all concerns or earned by all permanent employees had to be included in basic wage for the purpose of deduction under Section 6 of the Act. It is only such allowances not payable by all concerns or may not be earned by all employees of the concern, that would stand excluded from deduction. It is only when a worker produces beyond the base standard, what he earns would not be a basic wage but a production bonus or incentive wage which would then fall outside the purview of basic wage under Section 2(b) of the Act. Since the special allowance was earned by all teaching and non¬teaching staff of the respondent school, it has to be included for the purpose of deduction under Section 6 of the Act. The special allowance in the present case was a part of the salary breakup payable to all employees and did not have any nexus with extra output produced by the employee out of his allowance, and thus it fell within the definition of ?basic wage?.The common submission on behalf of the appellants in the remaining appeals was that basic wages defined under Section 2(b) contains exceptions and will not include what would ordinarily not be earned in accordance with the terms of the contract of employment.Even with regard to the payments earned by an employee in accordance with the terms of contract of employment, the basis of inclusion in Section 6 and exclusion in Section 2(b)(ii) is that whatever is payable in all concerns and is earned by all permanent employees is included for the purpose of contribution under Section 6. But whatever is not payable by all concerns or may not be earned by all employees of a concern are excluded for the purposes of contribution. Dearness allowance was payable in all concerns either as an addition to basic wage or as part of consolidated wages. Retaining allowance was payable to all permanent employees in seasonal factories and was therefore included in Section 6. But, house rent allowance is not paid in many concerns and sometimes in the same concern, it is paid to some employees but not to others, and would therefore stand excluded from basic wage. Likewise overtime allowance though in force in all concerns, is not earned by all employees and would again stand excluded from basic wage. It is only those emoluments earned by an employee in accordance with the terms of employment which would qualify as basic wage and discretionary allowances not earned in accordance with the terms of employment would not be covered by basic wage. The statute itself excludes certain allowance from the term basic wages. The exclusion of dearness allowance in Section 2(b)(ii) is an exception but that exception has been corrected by including dearness allowance in Section 6 for the purpose of contribution.Attendance incentive was not paid in terms of the contract of employment and was not legally enforceable by an employee. It would therefore not fall within basic wage as it was not paid to all employees of the concern. Likewise, transport/conveyance allowance was similar to house rent allowance, as it was reimbursement to an employee. Such payments are ordinarily not made universally, ordinarily and necessarily to all employees and therefore will not fall within the definition of basic wage. To hold that canteen allowance was paid only to some employees, being optional was not to be included in basic wage while conveyance allowance was paid to all employees without any proof in respect thereof was unsustainable.Basic wage, would not ipso¬facto take within its ambit the salary breakup structure to hold it liable for provident fund deductions when it was paid as special incentive or production bonus given to more meritorious workmen who put in extra output which has a direct nexus and linkage with the output by the eligible workmen. When a worker produces beyond the base or standard, what he earns was not basic wage. This incentive wage will fall outside the purview of basic wage.Basic wage, under the Act, has been defined as all emoluments paid in cash to an employee in accordance with the terms of his contract of employment. But it carves out certain exceptions which would not fall within the definition of basic wage and which includes dearness allowance apart from other allowances mentioned therein. But this exclusion of dearness allowance finds inclusion in Section 6. The test adopted to determine if any payment was to be excluded from basic wage is that the payment under the scheme must have a direct access and linkage to the payment of such special allowance as not being common to all. The crucial test is one of universality. The employer, under the Act, has a statutory obligation to deduct the specified percentage of the contribution from the employee?s salary and make matching contribution. The entire amount is then required to be deposited in the fund within 15 days from the date of such collection.Any variable earning which may vary from individual to individual according to their efficiency and diligence will stand excluded from the term ?basic wages? was considered in Muir Mills Co. Ltd., Kanpur Vs. Its Workmen, AIR 1960 SC 985 Thus understood "basic wage" never includes the additional emoluments which some workmen may earn, on the basis of a system of bonuses related to the production. The quantum of earning in such bonuses varies from individual to individual according to their efficiency and diligence; it will vary sometimes from season to season with the variations of working conditions in the factory or other place where the work is done; it will vary also with variations in the rate of supplies of raw material or in the assistance obtainable from machinery. This very element of variation, excludes this part of workmens emoluments from the connotation of "basicApplying the aforesaid tests to the facts of the present appeals, no material has been placed by the establishments to demonstrate that the allowances in question being paid to its employees were either variable or were linked to any incentive for production resulting in greater output by an employee and that the allowances in question were not paid across the board to all employees in a particular category or were being paid especially to those who avail the opportunity. In order that the amount goes beyond the basic wages, it has to be shown that the workman concerned had become eligible to get this extra amount beyond the normal work which he was otherwise required to put in. There is no data available on record to show what were the norms of work prescribed for those workmen during the relevant period. It is therefore not possible to ascertain whether extra amounts paid to the workmen were in fact paid for the extra work which had exceeded the normal output prescribed for the workmen. The wage structure and the components of salary have been examined on facts, both by the authority and the appellate authority under the Act, who have arrived at a factual conclusion that the allowances in question were essentially a part of the basic wage camouflaged as part of an allowance so as to avoid deduction and contribution accordingly to the provident fund account of the employees. There is no occasion for us to interfere with the concurrent conclusions of facts. The appeals by the establishments therefore merit no interference. Conversely, for the same reason the appeal preferred by the Regional Provident Fund Commissioner deserves to be allowed. | 1 | 4,662 | 1,661 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
To this the exclusion of dearness allowance in clause (ii) is an exception. But that exception has been corrected by including dearness allowance in s. 6 for the purpose of contribution. Dearness allowance which is an exception in the definition of "basic wages", is included for the propose of contribution by s. 6 and the real exceptions therefore in clause (ii) are the other exceptions beside dearness allowance, which has been included through S. 6.? 10. Any variable earning which may vary from individual to individual according to their efficiency and diligence will stand excluded from the term ?basic wages? was considered in Muir Mills Co. Ltd., Kanpur Vs. Its Workmen, AIR 1960 SC 985 observing: ?11. Thus understood "basic wage" never includes the additional emoluments which some workmen may earn, on the basis of a system of bonuses related to the production. The quantum of earning in such bonuses varies from individual to individual according to their efficiency and diligence; it will vary sometimes from season to season with the variations of working conditions in the factory or other place where the work is done; it will vary also with variations in the rate of supplies of raw material or in the assistance obtainable from machinery. This very element of variation, excludes this part of workmens emoluments from the connotation of "basic wages"…? 11. In Manipal Academy of Higher Education vs. Provident Fund Commissioner, (2008) 5 SCC 428 , relying upon Bridge Roof?s case it was observed: ?10. The basic principles as laid down in Bridge Roofs case (supra) on a combined reading of Sections 2(b) and 6 are as follows: (a) Where the wage is universally, necessarily and ordinarily paid to all across the board such emoluments are basic wages. (b) Where the payment is available to be specially paid to those who avail of the opportunity is not basic wages. By way of example it was held that overtime allowance, though it is generally in force in all concerns is not earned by all employees of a concern. It is also earned in accordance with the terms of the contract of employment but because it may not be earned by all employees of a concern, it is excluded from basic wages. (c) Conversely, any payment by way of a special incentive or work is not basic wages.? 12. The term basic wage has not been defined under the Act. Adverting to the dictionary meaning of the same in Kichha Sugar Company Limited through General Manager vs. Tarai Chini Mill Majdoor Union, Uttarakhand, (2014) 4 SCC 37 , it was observed as follows: ?9. According to http://www.merriam¬ webster.com (Merriam Webster Dictionary) the word basic wage means as follows: 1. A wage or salary based on the cost of living and used as a standard for calculating rates of pay 2. A rate of pay for a standard work period exclusive of such additional payments as bonuses and overtime. 10. When an expression is not defined, one can take into account the definition given to such expression in a statute as also the dictionary meaning. In our opinion, those wages which are universally, necessarily and ordinarily paid to all the employees across the board are basic wage. Where the payment is available to those who avail the opportunity more than others, the amount paid for that cannot be included in the basic wage. As for example, the overtime allowance, though it is generally enforced across the board but not earned by all employees equally. Overtime wages or for that matter, leave encashment may be available to each workman but it may vary from one workman to other. The extra bonus depends upon the extra hour of work done by the workman whereas leave encashment shall depend upon the number of days of leave available to workman. Both are variable. In view of what we have observed above, we are of the opinion that the amount received as leave encashment and overtime wages is not fit to be included for calculating 15% of the Hill Development Allowance.? 13. That the Act was a piece of beneficial social welfare legislation and must be interpreted as such was considered in The Daily Partap vs. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. 14. Applying the aforesaid tests to the facts of the present appeals, no material has been placed by the establishments to demonstrate that the allowances in question being paid to its employees were either variable or were linked to any incentive for production resulting in greater output by an employee and that the allowances in question were not paid across the board to all employees in a particular category or were being paid especially to those who avail the opportunity. In order that the amount goes beyond the basic wages, it has to be shown that the workman concerned had become eligible to get this extra amount beyond the normal work which he was otherwise required to put in. There is no data available on record to show what were the norms of work prescribed for those workmen during the relevant period. It is therefore not possible to ascertain whether extra amounts paid to the workmen were in fact paid for the extra work which had exceeded the normal output prescribed for the workmen. The wage structure and the components of salary have been examined on facts, both by the authority and the appellate authority under the Act, who have arrived at a factual conclusion that the allowances in question were essentially a part of the basic wage camouflaged as part of an allowance so as to avoid deduction and contribution accordingly to the provident fund account of the employees. There is no occasion for us to interfere with the concurrent conclusions of facts. The appeals by the establishments therefore merit no interference. Conversely, for the same reason the appeal preferred by the Regional Provident Fund Commissioner deserves to be allowed.
### Response:
1
### Explanation:
in all concerns and is earned by all permanent employees is included for the purpose of contribution under Section 6. But whatever is not payable by all concerns or may not be earned by all employees of a concern are excluded for the purposes of contribution. Dearness allowance was payable in all concerns either as an addition to basic wage or as part of consolidated wages. Retaining allowance was payable to all permanent employees in seasonal factories and was therefore included in Section 6. But, house rent allowance is not paid in many concerns and sometimes in the same concern, it is paid to some employees but not to others, and would therefore stand excluded from basic wage. Likewise overtime allowance though in force in all concerns, is not earned by all employees and would again stand excluded from basic wage. It is only those emoluments earned by an employee in accordance with the terms of employment which would qualify as basic wage and discretionary allowances not earned in accordance with the terms of employment would not be covered by basic wage. The statute itself excludes certain allowance from the term basic wages. The exclusion of dearness allowance in Section 2(b)(ii) is an exception but that exception has been corrected by including dearness allowance in Section 6 for the purpose of contribution.Attendance incentive was not paid in terms of the contract of employment and was not legally enforceable by an employee. It would therefore not fall within basic wage as it was not paid to all employees of the concern. Likewise, transport/conveyance allowance was similar to house rent allowance, as it was reimbursement to an employee. Such payments are ordinarily not made universally, ordinarily and necessarily to all employees and therefore will not fall within the definition of basic wage. To hold that canteen allowance was paid only to some employees, being optional was not to be included in basic wage while conveyance allowance was paid to all employees without any proof in respect thereof was unsustainable.Basic wage, would not ipso¬facto take within its ambit the salary breakup structure to hold it liable for provident fund deductions when it was paid as special incentive or production bonus given to more meritorious workmen who put in extra output which has a direct nexus and linkage with the output by the eligible workmen. When a worker produces beyond the base or standard, what he earns was not basic wage. This incentive wage will fall outside the purview of basic wage.Basic wage, under the Act, has been defined as all emoluments paid in cash to an employee in accordance with the terms of his contract of employment. But it carves out certain exceptions which would not fall within the definition of basic wage and which includes dearness allowance apart from other allowances mentioned therein. But this exclusion of dearness allowance finds inclusion in Section 6. The test adopted to determine if any payment was to be excluded from basic wage is that the payment under the scheme must have a direct access and linkage to the payment of such special allowance as not being common to all. The crucial test is one of universality. The employer, under the Act, has a statutory obligation to deduct the specified percentage of the contribution from the employee?s salary and make matching contribution. The entire amount is then required to be deposited in the fund within 15 days from the date of such collection.Any variable earning which may vary from individual to individual according to their efficiency and diligence will stand excluded from the term ?basic wages? was considered in Muir Mills Co. Ltd., Kanpur Vs. Its Workmen, AIR 1960 SC 985 Thus understood "basic wage" never includes the additional emoluments which some workmen may earn, on the basis of a system of bonuses related to the production. The quantum of earning in such bonuses varies from individual to individual according to their efficiency and diligence; it will vary sometimes from season to season with the variations of working conditions in the factory or other place where the work is done; it will vary also with variations in the rate of supplies of raw material or in the assistance obtainable from machinery. This very element of variation, excludes this part of workmens emoluments from the connotation of "basicApplying the aforesaid tests to the facts of the present appeals, no material has been placed by the establishments to demonstrate that the allowances in question being paid to its employees were either variable or were linked to any incentive for production resulting in greater output by an employee and that the allowances in question were not paid across the board to all employees in a particular category or were being paid especially to those who avail the opportunity. In order that the amount goes beyond the basic wages, it has to be shown that the workman concerned had become eligible to get this extra amount beyond the normal work which he was otherwise required to put in. There is no data available on record to show what were the norms of work prescribed for those workmen during the relevant period. It is therefore not possible to ascertain whether extra amounts paid to the workmen were in fact paid for the extra work which had exceeded the normal output prescribed for the workmen. The wage structure and the components of salary have been examined on facts, both by the authority and the appellate authority under the Act, who have arrived at a factual conclusion that the allowances in question were essentially a part of the basic wage camouflaged as part of an allowance so as to avoid deduction and contribution accordingly to the provident fund account of the employees. There is no occasion for us to interfere with the concurrent conclusions of facts. The appeals by the establishments therefore merit no interference. Conversely, for the same reason the appeal preferred by the Regional Provident Fund Commissioner deserves to be allowed.
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Dwarka Nath Vs. Shri Lal Chand And Others | deeds should have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right, but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not recited in the documents, one would expect at least the oral will to make the endowments to be mentioned. This shows that the whole story about oral directions to Rani Gomti Bibi was untrue. 8. Mr. Agarwala then seeks to use the statements made by Gaya Prasad and the witnesses before Mr. Thompson. In the High Court this claim was based upon Ss. 11, 32 and 157 of the Indian Evidence Act. The High Court rejected these statements and declined to attach any value to them. Section 11 was not relied upon before us; but the other two Sections were referred to in an effort to have that evidence read. Section 157 of the Indian Evidence Act lays down :"157. Former statements of witness may be proved to corroborate later testimony as to same fact: In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate that fact may be proved." Two circumstances, which are alternative, are conditions precedent to the proof of earlier statements under this Section. The first is that the statements must have been made at or about the time when a fact took place. The fact here is the authority said to have been given by the husband in 1901. The statements were made on December 18, 1928, 27 years after the event. They cannot be said to have been made "at or about the time when the fact took place". Further, as rightly pointed out by the High Court, the Court of Wards was making an enquiry for the purpose of according its consent. It was not enquiring into the fact of the giving of authority as an authority legally competent. That authority, as we have pointed out already, is the civil Court for the civil Court alone can finally decide such a question. It can do so even after the Court of Wards had reached a conclusion, and contrary to that conclusion. Section 157, therefore, cannot make the statements provable. 9. Mr. Agarwala next relies on S. 32(7) of the Indian Evidence Act to introduce the earlier statements. That sub-section reads :"32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the fallowing cases:- * * * * * * * * (7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in S. 13, clause (a): * * * * Clause (7) makes relevant statements made in deeds, wills and such other documents which relate to transactions by which a right or custom in question "was created, claimed, modified, recognised, asserted or denied" [to add the words of cl. (a) of S. 13]. The clause does not allow introduction of parole evidence, see Field on the Law of Evidence 8th Edn. P. 202. Such parole evidence may be relevant under cl. (5) of S. 32 but that is not relied upon. We questioned Mr. Agarwala whether he wished to rely upon clause (5), but he did not wish to put his case under that clause and we need not therefore, consider the application of that clause. We think Mr. Agarwala is right in taking this course, because cl. (5) requires that such a statement should have been made before the question in dispute was raised. The statements in question were definitely made after the question in dispute in the suit had already arisen, because one enquiry had already been made by Mr. Knox and the statements now relied upon were made in the second enquiry before Mr. Thompson. 10. Mr. Agarwala next wishes to use the statements made by Gaya Prasad on March 14, 1926 "Ex 72" : but that clearly is not admissible, because when it was made in the suit, Gaya Prasad was being examined as a party before issues were framed. In fairness to Mr. Agarwala it may be mentioned that he did not press the point after noticing the above fact. 11. Mr. Agarwala contends lastly that as Dwarka Nath was adopted on November 28, 1929 and the present suit was filed on May 21, 1945, after more than 15 years; and as during this time, Dwarka Nath had been considered by everyone to be legally and validly adopted the suit ought to have been dismissed. It may be pointed out that Parmeshwar Dayal never accepted the adoption of Dwarka Nath. He had filed an earlier suit and questioned the competence of Rani Gomti Bibi to make the adoption of Bindeshwari Prasad. In that suit he had denied that Rai Pratap Chand had given authority to his wife to make the adoption of a son after his death. He consistently denied the validity of the second adoption and in these circumstances, it cannot be said that he was concluded by any rule of law from questioning the adoption of Dwarka Nath after Rani Gomti Bibis death. 12. On an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the questions of fact are concerned, we have already stated that we do not propose to go into them as it did not appear to us that there was any legal reason for reaching a different conclusion. | 0[ds]The Section obviously places a hurdle in the way of adoptions by the wards which must be removed before the adoption can be valid. The Section affects the competence of the Wards to make the adoption and as the consent is a prerequisite, any adoption made without such consent must be ineffective. The Section, however, does not make the sanction of the Court of Wards to cure illegalities or breaches of the personal law. Nor does the sanction make up for incompetence arising under the personal law. It is obvious that if the adoption is void by reason of the personal law of the person adopting, the consent of the Court of Wards cannot cure it. Nor would the consent take the place of the essential ceremonies or the religious observance where necessary. Those matters would have to be determined according to the personal law in Civil Court of competent jurisdiction7. In deciding the question of authority, the High Court rejected the oral evidence led before it and affirmed the conclusions of the trial Judge. The High Court considered this evidence both intrinsically and in the light of the attending circumstances and found it unacceptable. The trial Judge pointed out that as lawyers were present when Rai Pratap Chand is alleged to have given authority to his widow and as it was also suggested that that fact should be recorded, it was unbelievable, if the statements were true, that written authority would not have been prepared then and there. The High Court did not content itself with accepting the opinion of the trial Judge but discussed the evidence de novo and rejected it. The High Court pointed out that Rai Pratap Chand was only 30 years old at the time of his death and his wife was 25 years old and he could not have abandoned the hope of having an issue. Evidence shows that the writing was put off because it was not thought that Rai Pratap Chand was dying. The High Court also pointed out that Rani Gomti Bibi executed between November 24, 1901 and August 19, 1904 four doecuments making different endowments. In none of these documents, she mentioned that she had been asked by her husband to make them. The High Court pertinently pointed out that the oral evidence showed that the declaration of the authority to his wife and the oral will to make the endowments, were made by Rai Pratap Chand at the same time and these facts would have figured as the reason for the endowments in these documents. Mr. Agarwala contends that even if the reasons for the endowments might be expected to be expressed, it is not logical to say that the deeds should have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right, but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not recited in the documents, one would expect at least the oral will to make the endowments to be mentioned. This shows that the whole story about oral directions to Rani Gomti Bibi was untrue12. On an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the questions of fact are concerned, we have already stated that we do not propose to go into them as it did not appear to us that there was any legal reason for reaching a different conclusion. | 0 | 3,118 | 642 | ### 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:
deeds should have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right, but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not recited in the documents, one would expect at least the oral will to make the endowments to be mentioned. This shows that the whole story about oral directions to Rani Gomti Bibi was untrue. 8. Mr. Agarwala then seeks to use the statements made by Gaya Prasad and the witnesses before Mr. Thompson. In the High Court this claim was based upon Ss. 11, 32 and 157 of the Indian Evidence Act. The High Court rejected these statements and declined to attach any value to them. Section 11 was not relied upon before us; but the other two Sections were referred to in an effort to have that evidence read. Section 157 of the Indian Evidence Act lays down :"157. Former statements of witness may be proved to corroborate later testimony as to same fact: In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate that fact may be proved." Two circumstances, which are alternative, are conditions precedent to the proof of earlier statements under this Section. The first is that the statements must have been made at or about the time when a fact took place. The fact here is the authority said to have been given by the husband in 1901. The statements were made on December 18, 1928, 27 years after the event. They cannot be said to have been made "at or about the time when the fact took place". Further, as rightly pointed out by the High Court, the Court of Wards was making an enquiry for the purpose of according its consent. It was not enquiring into the fact of the giving of authority as an authority legally competent. That authority, as we have pointed out already, is the civil Court for the civil Court alone can finally decide such a question. It can do so even after the Court of Wards had reached a conclusion, and contrary to that conclusion. Section 157, therefore, cannot make the statements provable. 9. Mr. Agarwala next relies on S. 32(7) of the Indian Evidence Act to introduce the earlier statements. That sub-section reads :"32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the fallowing cases:- * * * * * * * * (7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in S. 13, clause (a): * * * * Clause (7) makes relevant statements made in deeds, wills and such other documents which relate to transactions by which a right or custom in question "was created, claimed, modified, recognised, asserted or denied" [to add the words of cl. (a) of S. 13]. The clause does not allow introduction of parole evidence, see Field on the Law of Evidence 8th Edn. P. 202. Such parole evidence may be relevant under cl. (5) of S. 32 but that is not relied upon. We questioned Mr. Agarwala whether he wished to rely upon clause (5), but he did not wish to put his case under that clause and we need not therefore, consider the application of that clause. We think Mr. Agarwala is right in taking this course, because cl. (5) requires that such a statement should have been made before the question in dispute was raised. The statements in question were definitely made after the question in dispute in the suit had already arisen, because one enquiry had already been made by Mr. Knox and the statements now relied upon were made in the second enquiry before Mr. Thompson. 10. Mr. Agarwala next wishes to use the statements made by Gaya Prasad on March 14, 1926 "Ex 72" : but that clearly is not admissible, because when it was made in the suit, Gaya Prasad was being examined as a party before issues were framed. In fairness to Mr. Agarwala it may be mentioned that he did not press the point after noticing the above fact. 11. Mr. Agarwala contends lastly that as Dwarka Nath was adopted on November 28, 1929 and the present suit was filed on May 21, 1945, after more than 15 years; and as during this time, Dwarka Nath had been considered by everyone to be legally and validly adopted the suit ought to have been dismissed. It may be pointed out that Parmeshwar Dayal never accepted the adoption of Dwarka Nath. He had filed an earlier suit and questioned the competence of Rani Gomti Bibi to make the adoption of Bindeshwari Prasad. In that suit he had denied that Rai Pratap Chand had given authority to his wife to make the adoption of a son after his death. He consistently denied the validity of the second adoption and in these circumstances, it cannot be said that he was concluded by any rule of law from questioning the adoption of Dwarka Nath after Rani Gomti Bibis death. 12. On an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the questions of fact are concerned, we have already stated that we do not propose to go into them as it did not appear to us that there was any legal reason for reaching a different conclusion.
### Response:
0
### Explanation:
The Section obviously places a hurdle in the way of adoptions by the wards which must be removed before the adoption can be valid. The Section affects the competence of the Wards to make the adoption and as the consent is a prerequisite, any adoption made without such consent must be ineffective. The Section, however, does not make the sanction of the Court of Wards to cure illegalities or breaches of the personal law. Nor does the sanction make up for incompetence arising under the personal law. It is obvious that if the adoption is void by reason of the personal law of the person adopting, the consent of the Court of Wards cannot cure it. Nor would the consent take the place of the essential ceremonies or the religious observance where necessary. Those matters would have to be determined according to the personal law in Civil Court of competent jurisdiction7. In deciding the question of authority, the High Court rejected the oral evidence led before it and affirmed the conclusions of the trial Judge. The High Court considered this evidence both intrinsically and in the light of the attending circumstances and found it unacceptable. The trial Judge pointed out that as lawyers were present when Rai Pratap Chand is alleged to have given authority to his widow and as it was also suggested that that fact should be recorded, it was unbelievable, if the statements were true, that written authority would not have been prepared then and there. The High Court did not content itself with accepting the opinion of the trial Judge but discussed the evidence de novo and rejected it. The High Court pointed out that Rai Pratap Chand was only 30 years old at the time of his death and his wife was 25 years old and he could not have abandoned the hope of having an issue. Evidence shows that the writing was put off because it was not thought that Rai Pratap Chand was dying. The High Court also pointed out that Rani Gomti Bibi executed between November 24, 1901 and August 19, 1904 four doecuments making different endowments. In none of these documents, she mentioned that she had been asked by her husband to make them. The High Court pertinently pointed out that the oral evidence showed that the declaration of the authority to his wife and the oral will to make the endowments, were made by Rai Pratap Chand at the same time and these facts would have figured as the reason for the endowments in these documents. Mr. Agarwala contends that even if the reasons for the endowments might be expected to be expressed, it is not logical to say that the deeds should have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right, but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not recited in the documents, one would expect at least the oral will to make the endowments to be mentioned. This shows that the whole story about oral directions to Rani Gomti Bibi was untrue12. On an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the questions of fact are concerned, we have already stated that we do not propose to go into them as it did not appear to us that there was any legal reason for reaching a different conclusion.
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Vip Industries Limited Vs. Vip Industries Shramik Sangh & Another | the purpose of bringing about the settlement of the dispute, the Conciliation Officer is empowered to investigate the dispute & do all such things as he thinks fit for the purpose of inducing a party to come to a fair and amicable settlement. Under the provisions of Section 33 of the Act, the Conciliation Officer is empowered to grant permission to the employer in writing to alter the conditions of service applicable to the parties before commencement of the conciliation proceedings and discharge of workman concerned in the dispute. Section 33A of the Act provides that an employee aggrieved by the contravention of the provisions of Section 33 may make a complaint in writing, to the Conciliation Officer or Board and the Conciliation Officer is expected to take such a complaint into account in mediating & promoting the settlement of the industrial dispute. The provisions of Section 33A(b) of the Act speak of a complaint by an employee aggrieved by the contravention of Section 33 to an Arbitrator, Labour Court, Tribunal or National Tribunal and empower these authorities to adjudicate upon the complaint as if it were a dispute referred to or pending before it. Under Section 33A(b) of the Act, the Labour Court, Tribunal or National Tribunal is empowered to pass an award after adjudicating the complaint pending before it. There is a clear distinction between the provisions of Section 33A(a) & Section 33A(b) of the Industrial Disputes Act. Section 33A(a) does not give any adjudicatory power to the Conciliation Officer and provides that the Conciliation Officer shall take the complaint filed by the employee into account while mediating in and promoting the settlement of the industrial dispute, whereas, Section 33A(b) of the Act empowers the Arbitrator, Labour Court, Tribunal, or National Tribunal to adjudicate upon the complaint pending before it in accordance with the provisions of the Industrial Disputes Act and also pass an award therein. It is, thus, clear from the provisions of Section 33A that though the arbitrator, Labour Court, Tribunal, or National Tribunal is empowered to adjudicate upon the complaint as if it were a dispute the Conciliation Officer is not empowered to adjudicate upon the complaint. The Conciliation Officer is only empowered to consider the complaint and take it into account while mediating in and promoting the settlement of the industrial dispute. The provisions of the Industrial Disputes Act, specially the provisions of Section 33A, do not empower the Conciliation Officer to adjudicate the complaint filed by the employee for the alleged contravention of the provisions of Section 33 of the Industrial Disputes Act by the employer. It would be necessary to refer to the decisions relied on by the learned counsel for the appellant in this regard.The Honble Supreme Court in Automobile Products of India Vs. Rukmaji Bais & oth., reported in AIR 1955 SC 258 , while considering the provisions of Section 33 and 33A of the Industrial Disputes Act, observed thus :There is no reason to think that the Legislature, by a side wind as it were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in S. 33A of the 1947 Act or S. 23 of the 1950 ActThere is no machinery provided in S. 33 of the 1947 Act or S. 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban. .A Division Bench of this Court has in the judgment in Mah. General Kamgar Union Vs. P.T. Ltd., reported in 2011 (1) Mh.L.J. 601 observed that, on a plain reading of clause (a) of Section 33A, it is clear that the said clause does not confer any power of adjudication on a Conciliation Officer and therefore, to interfere with the action of an employer. The Court went on to add that the Conciliation Officer is entitled only to take into account a complaint made by the employee while mediating in and promoting the settlement of the industrial disputes.11. There is nothing in the provisions of Rule 65 of the Industrial Disputes (Bombay Rules) 1957 to hold that the Conciliation Officer is empowered to adjudicate the complaint received under Section 33A of the Act. In fact, Rule 65 of the Rules merely speaks of the issuance of a show cause notice by the Conciliation Officer on the receipt of an application under Section 33 of the Industrial Disputes Act for express permission in writing before taking action contemplated by the provisions of Section 33A(1)(a) and (b) of the Act. The submission made on behalf of the respondent No.1 that Rule 65 shows that the Conciliation Officer is empowered to adjudicate the dispute is not well founded and is liable to be rejected. Since it is clear from the reading of the provisions of the Act and the Rules that the Conciliation Officer is mainly charged with the duty of mediating in and promoting the settlement of the industrial disputes and is not empowered to adjudicate the dispute, the Conciliation Officer could not have adjudicated the complaint filed by the respondent No.1 under Section 33A(a) of the Act. Consequently, the Conciliation Officer could not have stayed the order transferring the 140 employees from the companys unit at Nagpur to Sinnar and Haridwar. Since the order dated 21.07.2011 suffers from a jurisdictional error, the same is liable to be set aside. | 1[ds]The Honble Supreme Court in Automobile Products of India Vs. Rukmaji Baisoth., reported in AIR 1955 SC 258 , while considering the provisions of Section 33 and 33A of the Industrial Disputes Act, observed thus :There is no reason to think that the Legislature, by a side wind as it were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in S. 33A of the 1947 Act or S. 23 of the 1950 ActThere is no machinery provided in S. 33 of the 1947 Act or S. 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban.Division Bench of this Court has in the judgment in Mah. General Kamgar Union Vs. P.T. Ltd., reported in 2011 (1) Mh.L.J. 601 observed that, on a plain reading of clause (a) of Section 33A, it is clear that the said clause does not confer any power of adjudication on a Conciliation Officer and therefore, to interfere with the action of an employer. The Court went on to add that the Conciliation Officer is entitled only to take into account a complaint made by the employee while mediating in and promoting the settlement of the industrial disputes.11. There is nothing in the provisions of Rule 65 of the Industrial Disputes (Bombay Rules) 1957 to hold that the Conciliation Officer is empowered to adjudicate the complaint received under Section 33A of the Act. In fact, Rule 65 of the Rules merely speaks of the issuance of a show cause notice by the Conciliation Officer on the receipt of an application under Section 33 of the Industrial Disputes Act for express permission in writing before taking action contemplated by the provisions of Section 33A(1)(a) and (b) of the Act. The submission made on behalf of the respondent No.1 that Rule 65 shows that the Conciliation Officer is empowered to adjudicate the dispute is not well founded and is liable to be rejected. Since it is clear from the reading of the provisions of the Act and the Rules that the Conciliation Officer is mainly charged with the duty of mediating in and promoting the settlement of the industrial disputes and is not empowered to adjudicate the dispute, the Conciliation Officer could not have adjudicated the complaint filed by the respondent No.1 under Section 33A(a) of the Act. Consequently, the Conciliation Officer could not have stayed the order transferring the 140 employees from the companys unit at Nagpur to Sinnar and Haridwar. Since the order dated 21.07.2011 suffers from a jurisdictional error, the same is liable to be set aside. | 1 | 2,912 | 593 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the purpose of bringing about the settlement of the dispute, the Conciliation Officer is empowered to investigate the dispute & do all such things as he thinks fit for the purpose of inducing a party to come to a fair and amicable settlement. Under the provisions of Section 33 of the Act, the Conciliation Officer is empowered to grant permission to the employer in writing to alter the conditions of service applicable to the parties before commencement of the conciliation proceedings and discharge of workman concerned in the dispute. Section 33A of the Act provides that an employee aggrieved by the contravention of the provisions of Section 33 may make a complaint in writing, to the Conciliation Officer or Board and the Conciliation Officer is expected to take such a complaint into account in mediating & promoting the settlement of the industrial dispute. The provisions of Section 33A(b) of the Act speak of a complaint by an employee aggrieved by the contravention of Section 33 to an Arbitrator, Labour Court, Tribunal or National Tribunal and empower these authorities to adjudicate upon the complaint as if it were a dispute referred to or pending before it. Under Section 33A(b) of the Act, the Labour Court, Tribunal or National Tribunal is empowered to pass an award after adjudicating the complaint pending before it. There is a clear distinction between the provisions of Section 33A(a) & Section 33A(b) of the Industrial Disputes Act. Section 33A(a) does not give any adjudicatory power to the Conciliation Officer and provides that the Conciliation Officer shall take the complaint filed by the employee into account while mediating in and promoting the settlement of the industrial dispute, whereas, Section 33A(b) of the Act empowers the Arbitrator, Labour Court, Tribunal, or National Tribunal to adjudicate upon the complaint pending before it in accordance with the provisions of the Industrial Disputes Act and also pass an award therein. It is, thus, clear from the provisions of Section 33A that though the arbitrator, Labour Court, Tribunal, or National Tribunal is empowered to adjudicate upon the complaint as if it were a dispute the Conciliation Officer is not empowered to adjudicate upon the complaint. The Conciliation Officer is only empowered to consider the complaint and take it into account while mediating in and promoting the settlement of the industrial dispute. The provisions of the Industrial Disputes Act, specially the provisions of Section 33A, do not empower the Conciliation Officer to adjudicate the complaint filed by the employee for the alleged contravention of the provisions of Section 33 of the Industrial Disputes Act by the employer. It would be necessary to refer to the decisions relied on by the learned counsel for the appellant in this regard.The Honble Supreme Court in Automobile Products of India Vs. Rukmaji Bais & oth., reported in AIR 1955 SC 258 , while considering the provisions of Section 33 and 33A of the Industrial Disputes Act, observed thus :There is no reason to think that the Legislature, by a side wind as it were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in S. 33A of the 1947 Act or S. 23 of the 1950 ActThere is no machinery provided in S. 33 of the 1947 Act or S. 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban. .A Division Bench of this Court has in the judgment in Mah. General Kamgar Union Vs. P.T. Ltd., reported in 2011 (1) Mh.L.J. 601 observed that, on a plain reading of clause (a) of Section 33A, it is clear that the said clause does not confer any power of adjudication on a Conciliation Officer and therefore, to interfere with the action of an employer. The Court went on to add that the Conciliation Officer is entitled only to take into account a complaint made by the employee while mediating in and promoting the settlement of the industrial disputes.11. There is nothing in the provisions of Rule 65 of the Industrial Disputes (Bombay Rules) 1957 to hold that the Conciliation Officer is empowered to adjudicate the complaint received under Section 33A of the Act. In fact, Rule 65 of the Rules merely speaks of the issuance of a show cause notice by the Conciliation Officer on the receipt of an application under Section 33 of the Industrial Disputes Act for express permission in writing before taking action contemplated by the provisions of Section 33A(1)(a) and (b) of the Act. The submission made on behalf of the respondent No.1 that Rule 65 shows that the Conciliation Officer is empowered to adjudicate the dispute is not well founded and is liable to be rejected. Since it is clear from the reading of the provisions of the Act and the Rules that the Conciliation Officer is mainly charged with the duty of mediating in and promoting the settlement of the industrial disputes and is not empowered to adjudicate the dispute, the Conciliation Officer could not have adjudicated the complaint filed by the respondent No.1 under Section 33A(a) of the Act. Consequently, the Conciliation Officer could not have stayed the order transferring the 140 employees from the companys unit at Nagpur to Sinnar and Haridwar. Since the order dated 21.07.2011 suffers from a jurisdictional error, the same is liable to be set aside.
### Response:
1
### Explanation:
The Honble Supreme Court in Automobile Products of India Vs. Rukmaji Baisoth., reported in AIR 1955 SC 258 , while considering the provisions of Section 33 and 33A of the Industrial Disputes Act, observed thus :There is no reason to think that the Legislature, by a side wind as it were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in S. 33A of the 1947 Act or S. 23 of the 1950 ActThere is no machinery provided in S. 33 of the 1947 Act or S. 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban.Division Bench of this Court has in the judgment in Mah. General Kamgar Union Vs. P.T. Ltd., reported in 2011 (1) Mh.L.J. 601 observed that, on a plain reading of clause (a) of Section 33A, it is clear that the said clause does not confer any power of adjudication on a Conciliation Officer and therefore, to interfere with the action of an employer. The Court went on to add that the Conciliation Officer is entitled only to take into account a complaint made by the employee while mediating in and promoting the settlement of the industrial disputes.11. There is nothing in the provisions of Rule 65 of the Industrial Disputes (Bombay Rules) 1957 to hold that the Conciliation Officer is empowered to adjudicate the complaint received under Section 33A of the Act. In fact, Rule 65 of the Rules merely speaks of the issuance of a show cause notice by the Conciliation Officer on the receipt of an application under Section 33 of the Industrial Disputes Act for express permission in writing before taking action contemplated by the provisions of Section 33A(1)(a) and (b) of the Act. The submission made on behalf of the respondent No.1 that Rule 65 shows that the Conciliation Officer is empowered to adjudicate the dispute is not well founded and is liable to be rejected. Since it is clear from the reading of the provisions of the Act and the Rules that the Conciliation Officer is mainly charged with the duty of mediating in and promoting the settlement of the industrial disputes and is not empowered to adjudicate the dispute, the Conciliation Officer could not have adjudicated the complaint filed by the respondent No.1 under Section 33A(a) of the Act. Consequently, the Conciliation Officer could not have stayed the order transferring the 140 employees from the companys unit at Nagpur to Sinnar and Haridwar. Since the order dated 21.07.2011 suffers from a jurisdictional error, the same is liable to be set aside.
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Kum.Nagina Vs. Regl. Mgr, The Oriental Ins. Co.Ltd & Another | Leave granted. This appeal is directed against judgment dated 19.10.2010 of the Division Bench of the Karnataka High Court whereby compensation awarded to the appellant by Motor Accident Claims Tribunal, Bangalore (for short, the Tribunal) in MVC Nos.536 of 2005 was enhanced by a nominal amount of Rs.20,000/-. While issuing notice of the special leave petition on 23.9.2011, this Court passed the following order:"Issue notice on the petitioners prayer for condonation of delay and also on the main petition, returnable in 12 weeks. Dasti, in addition, is permitted.It should be indicated in the notice that this Court is likely to grant leave and remit the matter to the High Court for fresh disposal of the appeal filed by the petitioner under section 173 of the Motor Vehicles Act, 1988."We have heard learned counsel for the parties and carefully scanned the record. In an accident which occurred on 8.12.2004, the appellant suffered grievous injuries on different parts of her body including dislocation of L2 vertebra. She filed petition under Section 166 of the Motor Vehicles Act, 1988 (for short, the Act) and claimed compensation of Rs.6,00,000/- with interest. The Tribunal held that the accident was caused due to rash and negligent driving of maxi cab bearing registration No.KA-18-4965; that the appellant had suffered grievous injuries and that as a result of accident, She had suffered physically, mentally and financially. The Tribunal awarded total compensation of Rs.1,08,000/- and directed the owner and the insurance company to pay the amount of compensation with interest at the rate of 6% per annum.On an appeal filed by the appellant under Section 173 of the Act, the High Court enhanced the compensation by a small amount of Rs.20,000/-. The casual manner in which the High Court decided the appeal filed under Section 173 of the Motor Vehicles Act, 1988 is evinced from paragraphs 6 and 7 of the impugned judgment, which are extracted below:"After careful perusal of the oral and documentary evidence and other relevant material available on the file and impugned judgment and award passed by the Tribunal, what emerges is that the Tribunal has rightly awarded Rs.30.000/-towards pain and sufferings, Rs.22,000/- towards medical expenses and conveyance, nourishing food and attendant charges and Rs.36,000/- towards future loss of income and hence, interference of this court is uncalled for.However, the Tribunal erred in awarding only Rs. 10,000/- towards loss of amenities, discomforts, unhappiness and Rs.10,000/- towards loss of marriage prospects. The compensation awarded by the Tribunal is insufficient for the reason that she has undergone treatment for a period of 2 day in Victoria Hospital and 15 day in Nimhans Hospital. She has also underwent a surgery and a rod has been fixed and same was removed from the leg. Doctor has assessed the disability at 46% to the spain and 23% to the whole body, she was aged about 16 years and was selling masala items, this aspect of the matter is neither considered nor appreciated by the Tribunal. Therefore, we deem it fit to award a sum of Rs.20,000/- towards loss of amenities, discomforts and unhappiness and Rs.20,000/- towards loss of marriage prospects as against Rs.10,000/- each towards the said head awarded by the Tribunal." In our considered view, while adjudicating the appellants prayer for enhancement of compensation, the Division Bench of the High Court was duty bound to consider the factual matrix of the case, analyze the evidence produced before the Motor Accident Claims Tribunal and then decided whether or not the appellant is entitled to higher compensation. Its failure to do so has resulted in manifest injustice more so because the Division Bench of the High Court ignored the law laid down in several judgments including Sarla Verma v. DTC (2009) 6 SCC 121. | 1[ds]In our considered view, while adjudicating the appellants prayer for enhancement of compensation, the Division Bench of the High Court was duty bound to consider the factual matrix of the case, analyze the evidence produced before the Motor Accident Claims Tribunal and then decided whether or not the appellant is entitled to higher compensation. Its failure to do so has resulted in manifest injustice more so because the Division Bench of the High Court ignored the law laid down in several judgments including Sarla Verma v. DTC (2009) 6 SCC 121. | 1 | 687 | 102 | ### 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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Leave granted. This appeal is directed against judgment dated 19.10.2010 of the Division Bench of the Karnataka High Court whereby compensation awarded to the appellant by Motor Accident Claims Tribunal, Bangalore (for short, the Tribunal) in MVC Nos.536 of 2005 was enhanced by a nominal amount of Rs.20,000/-. While issuing notice of the special leave petition on 23.9.2011, this Court passed the following order:"Issue notice on the petitioners prayer for condonation of delay and also on the main petition, returnable in 12 weeks. Dasti, in addition, is permitted.It should be indicated in the notice that this Court is likely to grant leave and remit the matter to the High Court for fresh disposal of the appeal filed by the petitioner under section 173 of the Motor Vehicles Act, 1988."We have heard learned counsel for the parties and carefully scanned the record. In an accident which occurred on 8.12.2004, the appellant suffered grievous injuries on different parts of her body including dislocation of L2 vertebra. She filed petition under Section 166 of the Motor Vehicles Act, 1988 (for short, the Act) and claimed compensation of Rs.6,00,000/- with interest. The Tribunal held that the accident was caused due to rash and negligent driving of maxi cab bearing registration No.KA-18-4965; that the appellant had suffered grievous injuries and that as a result of accident, She had suffered physically, mentally and financially. The Tribunal awarded total compensation of Rs.1,08,000/- and directed the owner and the insurance company to pay the amount of compensation with interest at the rate of 6% per annum.On an appeal filed by the appellant under Section 173 of the Act, the High Court enhanced the compensation by a small amount of Rs.20,000/-. The casual manner in which the High Court decided the appeal filed under Section 173 of the Motor Vehicles Act, 1988 is evinced from paragraphs 6 and 7 of the impugned judgment, which are extracted below:"After careful perusal of the oral and documentary evidence and other relevant material available on the file and impugned judgment and award passed by the Tribunal, what emerges is that the Tribunal has rightly awarded Rs.30.000/-towards pain and sufferings, Rs.22,000/- towards medical expenses and conveyance, nourishing food and attendant charges and Rs.36,000/- towards future loss of income and hence, interference of this court is uncalled for.However, the Tribunal erred in awarding only Rs. 10,000/- towards loss of amenities, discomforts, unhappiness and Rs.10,000/- towards loss of marriage prospects. The compensation awarded by the Tribunal is insufficient for the reason that she has undergone treatment for a period of 2 day in Victoria Hospital and 15 day in Nimhans Hospital. She has also underwent a surgery and a rod has been fixed and same was removed from the leg. Doctor has assessed the disability at 46% to the spain and 23% to the whole body, she was aged about 16 years and was selling masala items, this aspect of the matter is neither considered nor appreciated by the Tribunal. Therefore, we deem it fit to award a sum of Rs.20,000/- towards loss of amenities, discomforts and unhappiness and Rs.20,000/- towards loss of marriage prospects as against Rs.10,000/- each towards the said head awarded by the Tribunal." In our considered view, while adjudicating the appellants prayer for enhancement of compensation, the Division Bench of the High Court was duty bound to consider the factual matrix of the case, analyze the evidence produced before the Motor Accident Claims Tribunal and then decided whether or not the appellant is entitled to higher compensation. Its failure to do so has resulted in manifest injustice more so because the Division Bench of the High Court ignored the law laid down in several judgments including Sarla Verma v. DTC (2009) 6 SCC 121.
### Response:
1
### Explanation:
In our considered view, while adjudicating the appellants prayer for enhancement of compensation, the Division Bench of the High Court was duty bound to consider the factual matrix of the case, analyze the evidence produced before the Motor Accident Claims Tribunal and then decided whether or not the appellant is entitled to higher compensation. Its failure to do so has resulted in manifest injustice more so because the Division Bench of the High Court ignored the law laid down in several judgments including Sarla Verma v. DTC (2009) 6 SCC 121.
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B. Venkata Reddy and Others Etc Vs. State of Andhra Pradesh and Others | in Representation Petition 595 of 1977.There is no question of this Court striking down Rule 13 (1) of the Adhoc Rules on the ground that any other rub which in the opinion of the Court would have been better or more appropriate. Therefore, the decision in Reserve Bank of India v. N.C. Paliwal(1) relied on for the private respondents 3 to 8 in Representation Petition 595 of 1977 before the Tribunal is not relevant. It is only a question of interpretation of Rule 13 (1) read with Rule 3 (1) and (2) of the Adhoc Rules, 1973.15. In these circumstances we hold that Rule 13(1) of the Adhoc Rules, 1973 has to be interpreted in the manner indicated above, and seniority has to be fixed accordingly and there is no need to quash that rule and that the impugned seniority list of 1976 has to be quashed and the seniority list of 1974 has to be restored. It would follow that the first prayer in Civil Appeal 415 of 1979 regarding fixing of seniority as prayed for by third class Post Graduate Junior Lecturers has to be rejected and it is accordingly rejected.16. Coming now to the only point argued by Mr. S. N. Kackar, Senior Advocate for the petitioners in Transferred Writ Petition 941 of 1976 (Civil Appeal 415 of 1979) that Rule 6 of the Adhoc Rules, 1974 prescribing a first or second class Post Graduate Degree for a Junior Lecturers promotion as Principal of a Junior College, thereby excluding third class Post-Graduate Junior Lecturers from eligibility for promotion as Principals, we would like to state at the outset that the contention put forward before the Tribunal that the posts of Principals are administrative posts and no teaching experience is required is incorrect. The Director of Public Instructions has stated in his Proceedings Rc. No. 1068/IC-4/70 dated 16.1.1971 that Principals of Junior Colleges must take at least six periods of work per week if not more. Therefore, Principals of Junior Colleges have to take up teaching work in addition to their administrative duties. They are administrative heads of Junior Colleges where first, second and third class Post Graduates work as Junior Lecturers. They have to exercise administrative control over first, second and third class Post-Graduate Junior Lecturers. I. is therefore very desirable that the Principals should be first or second class Post Graduates . Post of Principals of Junior Colleges are gazetted while those of Junior Lecturers of those colleges are not gazetted. According to G.O.Ms. 2068, Education, dated 25.8.1969 Principals of Junior Colleges will have the status of Senior Lecturers in Degree Colleges and their pay scale is Rs. 400-800 while the pay scale of Junior Lecturers is Rs. 200-15-320-20-500. The object of achieving excellence in educational institutions like Junior Colleges is a laudable one, and excellence in academic attainments of heads of such institutions is a relevant fact. Promotion of Junior lecturers as Principals is based only on merit judged by their academic distinction which cannot be said to be discriminatory. The ratio of t his Courts decision in S. M. Pandit v. State of Gujarat(1) referred to above cannot be applied to the facts of the present case. Prescribing a first or second class Post- Graduate Degree for the head of an educational institution has a direct nexus with the object of excellence sought to be achieved, and it cannot be said to be discriminatory. Therefore, we do not think that Rule 6 of the Adhoc Rules, 1974 is liable to be struck down as being discriminatory and illegal.Pending the framing of Adhoc Rules for the temporary posts of Principals of Junior Colleges, the Director of Public Instructions issued proceedings in Rc 775-Cl/2/74 dated 14.3.1974 promoting under Rule 10(a) (i) of the State and Subordinate Service Rules seven third class Post Graduate Junior Lecturers as Principals of Junior Colleges. The third prayer in Transferred Writ Petition 7146 of 1976 is that those appointments should be declared as illegal. Under Rule 6(ii) of the Adhoc Rules, 1974 framed subsequently in G.O.Ms. 502, Education, dated 19.6.1974 three years service in the Andhra Pradesh Educational Subordinate Service is prescribed as a qualification for promotion of Junior Lecturers as Principals of Junior Colleges in addition to a first or second class Post Graduate Degree. It is not known whether when those promotions of seven 4 third class Post-Graduate Junior Lecturers as Principals were made first or second class Post-Graduate Junior Lecturers were not available for promotion or why after the Adhoc Rules, 1974 were framed within about three months thereafter those third class Post-Graduate Junior Lecturers were not reverted as Junior Lecturers. Their promotions were irregular having regard to the fact that even for appointment as Junior Lecturers preference has to be given to first and second class Post- Graduate School Assistants. The irregularity has been sought to be overlooked by providing a saving clause by way of Rule 8 of the Adhoc Rules, 1974 where it is stated that notwithstanding anything contained in those rules a person who F held the post of Principal of a Junior College immediately before the issue of those rules and who was not appointed in accordance with those rules, shall be continued as Principal and he is given an option either to continue in the post of Principal or to revert to his original post. We do not think that there could have been any valid necessity to continue those adhoc promotions made even after the Adhoc Rules, 1974 were framed within about three months of those promotions. We think that there is no meaning in providing for the option in that rule as it is not likely that a person who has been promoted as Principal in the grade of Rs. 400-800 would voluntarily opt for reverting to his original post of Junior Lecturer in the grade of Rs. 200-15-320-20-500. However, having regard to the long lapse of time we do not think it desirable to declare those appointments as illegal. | 1[ds]In these circumstances we hold that Rule 13(1) of the Adhoc Rules, 1973 has to be interpreted in the manner indicated above, and seniority has to be fixed accordingly and there is no need to quash that rule and that the impugned seniority list of 1976 has to be quashed and the seniority list of 1974 has to be restored. It would follow that the first prayer in Civil Appeal 415 of 1979 regarding fixing of seniority as prayed for by third class Post Graduate Junior Lecturers has to be rejected and it is accordinglynow to the only point argued by Mr. S. N. Kackar, Senior Advocate for the petitioners in Transferred Writ Petition 941 of 1976 (Civil Appeal 415 of 1979) that Rule 6 of the Adhoc Rules, 1974 prescribing a first or second class Post Graduate Degree for a Junior Lecturers promotion as Principal of a Junior College, thereby excluding third class Post-Graduate Junior Lecturers from eligibility for promotion as Principals, we would like to state at the outset that the contention put forward before the Tribunal that the posts of Principals are administrative posts and no teaching experience is required is incorrect. The Director of Public Instructions has stated in his Proceedings Rc. No. 1068/IC-4/70 dated 16.1.1971 that Principals of Junior Colleges must take at least six periods of work per week if not more. Therefore, Principals of Junior Colleges have to take up teaching work in addition to their administrative duties. They are administrative heads of Junior Colleges where first, second and third class Post Graduates work as Junior Lecturers. They have to exercise administrative control over first, second and third class Post-Graduate Junior Lecturers. I. is therefore very desirable that the Principals should be first or second class Post Graduates . Post of Principals of Junior Colleges are gazetted while those of Junior Lecturers of those colleges are not gazetted. According to G.O.Ms. 2068, Education, dated 25.8.1969 Principals of Junior Colleges will have the status of Senior Lecturers in Degree Colleges and their pay scale is Rs. 400-800 while the pay scale of Junior Lecturers is Rs. 200-15-320-20-500. The object of achieving excellence in educational institutions like Junior Colleges is a laudable one, and excellence in academic attainments of heads of such institutions is a relevant fact. Promotion of Junior lecturers as Principals is based only on merit judged by their academic distinction which cannot be said to be discriminatory. The ratio of t his Courts decision in S. M. Pandit v. State of Gujarat(1) referred to above cannot be applied to the facts of the present case. Prescribing a first or second class Post- Graduate Degree for the head of an educational institution has a direct nexus with the object of excellence sought to be achieved, and it cannot be said to be discriminatory. Therefore, we do not think that Rule 6 of the Adhoc Rules, 1974 is liable to be struck down as being discriminatory and illegal.Pending the framing of Adhoc Rules for the temporary posts of Principals of Junior Colleges, the Director of Public Instructions issued proceedings in Rc 775-Cl/2/74 dated 14.3.1974 promoting under Rule 10(a) (i) of the State and Subordinate Service Rules seven third class Post Graduate Junior Lecturers as Principals of Junior Colleges. The third prayer in Transferred Writ Petition 7146 of 1976 is that those appointments should be declared as illegal. Under Rule 6(ii) of the Adhoc Rules, 1974 framed subsequently in G.O.Ms. 502, Education, dated 19.6.1974 three years service in the Andhra Pradesh Educational Subordinate Service is prescribed as a qualification for promotion of Junior Lecturers as Principals of Junior Colleges in addition to a first or second class Post Graduate Degree. It is not known whether when those promotions of seven 4 third class Post-Graduate Junior Lecturers as Principals were made first or second class Post-Graduate Junior Lecturers were not available for promotion or why after the Adhoc Rules, 1974 were framed within about three months thereafter those third class Post-Graduate Junior Lecturers were not reverted as Junior Lecturers. Their promotions were irregular having regard to the fact that even for appointment as Junior Lecturers preference has to be given to first and second class Post- Graduate School Assistants. The irregularity has been sought to be overlooked by providing a saving clause by way of Rule 8 of the Adhoc Rules, 1974 where it is stated that notwithstanding anything contained in those rules a person who F held the post of Principal of a Junior College immediately before the issue of those rules and who was not appointed in accordance with those rules, shall be continued as Principal and he is given an option either to continue in the post of Principal or to revert to his original post. We do not think that there could have been any valid necessity to continue those adhoc promotions made even after the Adhoc Rules, 1974 were framed within about three months of those promotions. We think that there is no meaning in providing for the option in that rule as it is not likely that a person who has been promoted as Principal in the grade of Rs. 400-800 would voluntarily opt for reverting to his original post of Junior Lecturer in the grade of Rs. 200-15-320-20-500. However, having regard to the long lapse of time we do not think it desirable to declare those appointments as illegal. | 1 | 10,521 | 976 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
in Representation Petition 595 of 1977.There is no question of this Court striking down Rule 13 (1) of the Adhoc Rules on the ground that any other rub which in the opinion of the Court would have been better or more appropriate. Therefore, the decision in Reserve Bank of India v. N.C. Paliwal(1) relied on for the private respondents 3 to 8 in Representation Petition 595 of 1977 before the Tribunal is not relevant. It is only a question of interpretation of Rule 13 (1) read with Rule 3 (1) and (2) of the Adhoc Rules, 1973.15. In these circumstances we hold that Rule 13(1) of the Adhoc Rules, 1973 has to be interpreted in the manner indicated above, and seniority has to be fixed accordingly and there is no need to quash that rule and that the impugned seniority list of 1976 has to be quashed and the seniority list of 1974 has to be restored. It would follow that the first prayer in Civil Appeal 415 of 1979 regarding fixing of seniority as prayed for by third class Post Graduate Junior Lecturers has to be rejected and it is accordingly rejected.16. Coming now to the only point argued by Mr. S. N. Kackar, Senior Advocate for the petitioners in Transferred Writ Petition 941 of 1976 (Civil Appeal 415 of 1979) that Rule 6 of the Adhoc Rules, 1974 prescribing a first or second class Post Graduate Degree for a Junior Lecturers promotion as Principal of a Junior College, thereby excluding third class Post-Graduate Junior Lecturers from eligibility for promotion as Principals, we would like to state at the outset that the contention put forward before the Tribunal that the posts of Principals are administrative posts and no teaching experience is required is incorrect. The Director of Public Instructions has stated in his Proceedings Rc. No. 1068/IC-4/70 dated 16.1.1971 that Principals of Junior Colleges must take at least six periods of work per week if not more. Therefore, Principals of Junior Colleges have to take up teaching work in addition to their administrative duties. They are administrative heads of Junior Colleges where first, second and third class Post Graduates work as Junior Lecturers. They have to exercise administrative control over first, second and third class Post-Graduate Junior Lecturers. I. is therefore very desirable that the Principals should be first or second class Post Graduates . Post of Principals of Junior Colleges are gazetted while those of Junior Lecturers of those colleges are not gazetted. According to G.O.Ms. 2068, Education, dated 25.8.1969 Principals of Junior Colleges will have the status of Senior Lecturers in Degree Colleges and their pay scale is Rs. 400-800 while the pay scale of Junior Lecturers is Rs. 200-15-320-20-500. The object of achieving excellence in educational institutions like Junior Colleges is a laudable one, and excellence in academic attainments of heads of such institutions is a relevant fact. Promotion of Junior lecturers as Principals is based only on merit judged by their academic distinction which cannot be said to be discriminatory. The ratio of t his Courts decision in S. M. Pandit v. State of Gujarat(1) referred to above cannot be applied to the facts of the present case. Prescribing a first or second class Post- Graduate Degree for the head of an educational institution has a direct nexus with the object of excellence sought to be achieved, and it cannot be said to be discriminatory. Therefore, we do not think that Rule 6 of the Adhoc Rules, 1974 is liable to be struck down as being discriminatory and illegal.Pending the framing of Adhoc Rules for the temporary posts of Principals of Junior Colleges, the Director of Public Instructions issued proceedings in Rc 775-Cl/2/74 dated 14.3.1974 promoting under Rule 10(a) (i) of the State and Subordinate Service Rules seven third class Post Graduate Junior Lecturers as Principals of Junior Colleges. The third prayer in Transferred Writ Petition 7146 of 1976 is that those appointments should be declared as illegal. Under Rule 6(ii) of the Adhoc Rules, 1974 framed subsequently in G.O.Ms. 502, Education, dated 19.6.1974 three years service in the Andhra Pradesh Educational Subordinate Service is prescribed as a qualification for promotion of Junior Lecturers as Principals of Junior Colleges in addition to a first or second class Post Graduate Degree. It is not known whether when those promotions of seven 4 third class Post-Graduate Junior Lecturers as Principals were made first or second class Post-Graduate Junior Lecturers were not available for promotion or why after the Adhoc Rules, 1974 were framed within about three months thereafter those third class Post-Graduate Junior Lecturers were not reverted as Junior Lecturers. Their promotions were irregular having regard to the fact that even for appointment as Junior Lecturers preference has to be given to first and second class Post- Graduate School Assistants. The irregularity has been sought to be overlooked by providing a saving clause by way of Rule 8 of the Adhoc Rules, 1974 where it is stated that notwithstanding anything contained in those rules a person who F held the post of Principal of a Junior College immediately before the issue of those rules and who was not appointed in accordance with those rules, shall be continued as Principal and he is given an option either to continue in the post of Principal or to revert to his original post. We do not think that there could have been any valid necessity to continue those adhoc promotions made even after the Adhoc Rules, 1974 were framed within about three months of those promotions. We think that there is no meaning in providing for the option in that rule as it is not likely that a person who has been promoted as Principal in the grade of Rs. 400-800 would voluntarily opt for reverting to his original post of Junior Lecturer in the grade of Rs. 200-15-320-20-500. However, having regard to the long lapse of time we do not think it desirable to declare those appointments as illegal.
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### Explanation:
In these circumstances we hold that Rule 13(1) of the Adhoc Rules, 1973 has to be interpreted in the manner indicated above, and seniority has to be fixed accordingly and there is no need to quash that rule and that the impugned seniority list of 1976 has to be quashed and the seniority list of 1974 has to be restored. It would follow that the first prayer in Civil Appeal 415 of 1979 regarding fixing of seniority as prayed for by third class Post Graduate Junior Lecturers has to be rejected and it is accordinglynow to the only point argued by Mr. S. N. Kackar, Senior Advocate for the petitioners in Transferred Writ Petition 941 of 1976 (Civil Appeal 415 of 1979) that Rule 6 of the Adhoc Rules, 1974 prescribing a first or second class Post Graduate Degree for a Junior Lecturers promotion as Principal of a Junior College, thereby excluding third class Post-Graduate Junior Lecturers from eligibility for promotion as Principals, we would like to state at the outset that the contention put forward before the Tribunal that the posts of Principals are administrative posts and no teaching experience is required is incorrect. The Director of Public Instructions has stated in his Proceedings Rc. No. 1068/IC-4/70 dated 16.1.1971 that Principals of Junior Colleges must take at least six periods of work per week if not more. Therefore, Principals of Junior Colleges have to take up teaching work in addition to their administrative duties. They are administrative heads of Junior Colleges where first, second and third class Post Graduates work as Junior Lecturers. They have to exercise administrative control over first, second and third class Post-Graduate Junior Lecturers. I. is therefore very desirable that the Principals should be first or second class Post Graduates . Post of Principals of Junior Colleges are gazetted while those of Junior Lecturers of those colleges are not gazetted. According to G.O.Ms. 2068, Education, dated 25.8.1969 Principals of Junior Colleges will have the status of Senior Lecturers in Degree Colleges and their pay scale is Rs. 400-800 while the pay scale of Junior Lecturers is Rs. 200-15-320-20-500. The object of achieving excellence in educational institutions like Junior Colleges is a laudable one, and excellence in academic attainments of heads of such institutions is a relevant fact. Promotion of Junior lecturers as Principals is based only on merit judged by their academic distinction which cannot be said to be discriminatory. The ratio of t his Courts decision in S. M. Pandit v. State of Gujarat(1) referred to above cannot be applied to the facts of the present case. Prescribing a first or second class Post- Graduate Degree for the head of an educational institution has a direct nexus with the object of excellence sought to be achieved, and it cannot be said to be discriminatory. Therefore, we do not think that Rule 6 of the Adhoc Rules, 1974 is liable to be struck down as being discriminatory and illegal.Pending the framing of Adhoc Rules for the temporary posts of Principals of Junior Colleges, the Director of Public Instructions issued proceedings in Rc 775-Cl/2/74 dated 14.3.1974 promoting under Rule 10(a) (i) of the State and Subordinate Service Rules seven third class Post Graduate Junior Lecturers as Principals of Junior Colleges. The third prayer in Transferred Writ Petition 7146 of 1976 is that those appointments should be declared as illegal. Under Rule 6(ii) of the Adhoc Rules, 1974 framed subsequently in G.O.Ms. 502, Education, dated 19.6.1974 three years service in the Andhra Pradesh Educational Subordinate Service is prescribed as a qualification for promotion of Junior Lecturers as Principals of Junior Colleges in addition to a first or second class Post Graduate Degree. It is not known whether when those promotions of seven 4 third class Post-Graduate Junior Lecturers as Principals were made first or second class Post-Graduate Junior Lecturers were not available for promotion or why after the Adhoc Rules, 1974 were framed within about three months thereafter those third class Post-Graduate Junior Lecturers were not reverted as Junior Lecturers. Their promotions were irregular having regard to the fact that even for appointment as Junior Lecturers preference has to be given to first and second class Post- Graduate School Assistants. The irregularity has been sought to be overlooked by providing a saving clause by way of Rule 8 of the Adhoc Rules, 1974 where it is stated that notwithstanding anything contained in those rules a person who F held the post of Principal of a Junior College immediately before the issue of those rules and who was not appointed in accordance with those rules, shall be continued as Principal and he is given an option either to continue in the post of Principal or to revert to his original post. We do not think that there could have been any valid necessity to continue those adhoc promotions made even after the Adhoc Rules, 1974 were framed within about three months of those promotions. We think that there is no meaning in providing for the option in that rule as it is not likely that a person who has been promoted as Principal in the grade of Rs. 400-800 would voluntarily opt for reverting to his original post of Junior Lecturer in the grade of Rs. 200-15-320-20-500. However, having regard to the long lapse of time we do not think it desirable to declare those appointments as illegal.
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Jyoti Harshad Mehta Vs. Custodian | the Special Court seeking attachment of the said funds due to them by LS Synthetics. It was argued on behalf of the debtors, LS Synthetics, that the loans due to the respondents had no nexus to the nature of securities transactions specified under the Special Act and they were therefore not liable to be attached. This Court while rejecting the said contention noted that having regard to the provisions of the Act, it was not required that the properties in question must have a nexus to the illegal securities transaction. Accordingly all assets of the notified parties including the loans advanced by them in the case at hand were found liable to be attached. The Court however in LS Synthetics (supra) was not concerned with the issue of whether the properties in question had been acquired before the window period or not. The loans in that case had admittedly been advanced within the window period and accordingly the only question before the court was whether the loan would be liable to be attached despite not having a nexus to the illegal security transactions. This accordingly brings us to the next submissions as regards the statutory window period.STATUTORY WINDOW PERIODIt was contended on behalf of the Appellants, that the properties in question had been purchased much before the statutory window period provided under the Special Act. It is argued that the jurisdiction of the Special Court is strictly confined to the period from 01.04.1991 to 06.06.1992 and as such the Court would not have the power to investigate and give any findings pertaining to any transaction entered into prior to the statutory period. The appellants state that, the fact, no claims have been received by the custodian from any bank pertaining to the pre-statutory period, should be conclusive evidence that no monies were siphoned off in that period as falsely alleged.In our opinion the interpretation advanced by the appellants on the provisions would be a clear misreading of the Act. We must in this regard refer to the relevant provisions of the Act.Provisions of Section 3(2) should not be read into Section 3(3). Though Section 3 (3) is dependent on Section 3(2) for its operation, but once Section 3(2) comes into operation, Section 3(3) becomes independent of it and accordingly the qualifications of Section 3(2) cannot be read into Section 3(3). We must place emphasis on a plain reading of the said section. Had it been the intention of the legislature to attach only those properties acquired within the statutory period, it would have clearly said so. The statutory window period is only a relevant criterion for application of Section 3(2) and therefore has no bearing on the application of Section 3(3).A plain reading of Section 3(3) would suggest that all properties of the notified persons on the date of the said notification would automatically stand attached irrespective of the fact as to whether they had been acquired before, during or even after the statutory period. A logical corollary of this would be that all income accruing or arising from the said property even after the date of attachment would also automatically stand attached.However property acquired by a notified person after the notification under the Special Act cannot be attached. That property does not come within the purview of the Section 3(3). [See Tej Kumar Balakrishna Ruja v. A K Menon, (1997) 9 SCC 123 para 6]The cut off date for the attachment of the property accordingly is the date of notification. All properties of the persons on the said date automatically stand attached. The statutory window period is irrelevant for the attachment of the property. It would have no bearing on the said attachment.It is true that to such an extent all properties would be liable to be sold which are needed for redemption and not beyond the same. What should be kept uppermost in the mind of the Court is to see that the liabilities are discharged and not beyond the same. It is with that end in view that the powers of the Special Court contained in Sections 9A and 11 must be construed.It is an accepted fact that the reports of the Jankiraman Committee, the Joint Parliamentary Committee and the Inter Disciplinary Group (IDG) are admissible only for the purpose of tracing the legal history of the Act alone. The contents of the report should not have been used by the ld. Judge of the Special Court as evidence.However, a lot of documents have been filed before us with regard to Audited Reports. Vyas and Vyas had filed an Audited Report in 2003. Copies whereof were supplied in 2005. Audited Report of Vyas and Vyas related only to Harshad Mehta. A Report on the Assets and Liabilities of the Appellants by M/s. Vinod K. Agarwala and Co. as on November, 2007 has also been placed on record. It does not appear that the Special Judge had considered this aspect of the matter in great detail. The learned Judge, Special Court, should consider the aforementioned two audit reports so as to arrive at a positive finding with regard to the liabilities and assets possessed by them so as to enable to pass appropriate orders.The learned Judge, Special Court, in his judgment has mainly dealt with the contentions raised by the custodian in terms of the written submission filed on its behalf. The contentions of the appellants have not been considered in the impugned judgment. It is furthermore contended on behalf of the appellants, that out of the twenty six paragraphs of the impugned judgment, 15 paragraphs are near verbatim reproductions.In our opinion this clearly shows the non-application of mind of the learned Judge, Special Court. He was required to weigh the submissions and counter-submissions of both the parties in his proper perspective and then arrive at a well reasoned opinion, which doesnt seem to be the case before us. It is well settled that "Justice must not only be done, but also must be seem to be done". | 1[ds]Mr. Syed, therefore, in our opinion is not correct in contending that the advances made by Harshad Metha to the appellants herein for the purpose of purchase of properties would amount to benami transactions whereof(1) of Section 4 of the Special Act shallhas also been made with regard to the application of the doctrine of lifting the corporate veil which was not supposed to be made applicable to the individual. The said doctrine was applied by the learned Judge of the Special Court in the instant case in respect of the company M/s. Aatur Holding Pvt. Ltd. The abovementioned company purchased a flat, although its paid up capital was only Rs.10,000/and the highest salary paid to the employee by it was only Rs.4000/per month. Despite this the said company allegedly entered into security trading transactions amounting to crores.The appellants were members of an H.U.F. and were seen to be working in tandem. Harshad Methathe appellants was, thus, not a third party.ISSUE OF DENOTIFICATIONAppellants contend that they had withdrawn the denotification applications in 2000 although the same had been filed in 1993. The delay in disposal of the said applications is sought as a reason assigned in support of the same. We fail to see any justification in the said stand. Appellants contend that they wanted to file fresh applications. If that be so the reason why the earlier applications were withdrawn had not been properly and sufficiently explained. The reason assigned is hardly a ground for withdrawal of the applications. We have been informed by the appellants that fresh applications for denotifications have been filed and the same have been withdrawn in the year 2009. The same issue may have to be dealt with by the Special Court. We wonder, why it took nine years to file these fresh applications.We may notice that applications for denotification were filed by Raseela Mehta and Rina Mehta which were rejected by the Special Court. The order rejecting the same have been challenged before this Court by way of Appeals which are numbered as Civil Appeal Nos. 2915 of 2008 and 2924 of 2008 and are pending.NEXUS OF THE PROPERTIES WITH THE ILLEGALSECURITIES TRANSACTIONItis contended by the learned counsel for the appellants Mr Syed that if any of the properties or assets of the notified parties have no nexus with the illegal security transactions, the same can be released from attachment or at least need not be sold. It has further been argued that no evidence has been adduced that loans given by M/s Harshad S Mehta to his family members or monies used by Shri Harshad Mehta for purchase of his flat were acquired from the tainted funds. It is submitted by the appellants that unless it can be shown that the properties in question were acquired from the tainted funds they would be liable to be released from attachment. It is argued that the fact that the properties had been purchased much before the securities scam would go on to show that they had no nexus with the funds diverted therefrom.In our opinion the arguments advanced on behalf of the appellants need to be rejected at the outset because a plain reading of the sections of the Special Act would clearly point otherwise. In our opinion the attachment of all the properties in terms of subsection (3) of Section 3 of the Special Act is automatic. The attachment restricts sale of the properties which have been acquired from illegal securities transaction. Thespecifically mentions that on and from the date of the notification, `any property, movable or immovable, or both, belonging to any person notified under the Act shall stand attached. The saiddoes not provide for any qualification that the properties which are liable to be attached should relate to the illegal securities transactions in respect of which the Act was enacted. Had the intention of the Parliament been so, it would have clearly mentioned it. It is well settled that when the meaning of the words used in an Act is plain and clear, effect must be given thereto.This is supported by the decision of this court in LS Synthetics Ltd. v. Fairgrowth Financial Services Ltd. [ (2004) 11 SCC 465 ]. Therein the appellants had taken a loan from the respondents, Fairgrowth who had admittedly been notified under the Act. The respondent therein, Fairgrowth thereafter filed an application before the Special Court seeking attachment of the said funds due to them by LS Synthetics. It was argued on behalf of the debtors, LS Synthetics, that the loans due to the respondents had no nexus to the nature of securities transactions specified under the Special Act and they were therefore not liable to be attached. This Court while rejecting the said contention noted that having regard to the provisions of the Act, it was not required that the properties in question must have a nexus to the illegal securities transaction. Accordingly all assets of the notified parties including the loans advanced by them in the case at hand were found liable to be attached. The Court however in LS Synthetics (supra) was not concerned with the issue of whether the properties in question had been acquired before the window period or not. The loans in that case had admittedly been advanced within the window period and accordingly the only question before the court was whether the loan would be liable to be attached despite not having a nexus to the illegal security transactions. This accordingly brings us to the next submissions as regards the statutory window period.STATUTORY WINDOW PERIODIt was contended on behalf of the Appellants, that the properties in question had been purchased much before the statutory window period provided under the Special Act. It is argued that the jurisdiction of the Special Court is strictly confined to the period from 01.04.1991 to 06.06.1992 and as such the Court would not have the power to investigate and give any findings pertaining to any transaction entered into prior to the statutory period. The appellants state that, the fact, no claims have been received by the custodian from any bank pertaining to theperiod, should be conclusive evidence that no monies were siphoned off in that period as falsely alleged.In our opinion the interpretation advanced by the appellants on the provisions would be a clear misreading of the Act. We must in this regard refer to the relevant provisions of the Act.Provisions of Section 3(2) should not be read into Section 3(3). Though Section 3 (3) is dependent on Section 3(2) for its operation, but once Section 3(2) comes into operation, Section 3(3) becomes independent of it and accordingly the qualifications of Section 3(2) cannot be read into Section 3(3). We must place emphasis on a plain reading of the said section. Had it been the intention of the legislature to attach only those properties acquired within the statutory period, it would have clearly said so. The statutory window period is only a relevant criterion for application of Section 3(2) and therefore has no bearing on the application of Section 3(3).A plain reading of Section 3(3) would suggest that all properties of the notified persons on the date of the said notification would automatically stand attached irrespective of the fact as to whether they had been acquired before, during or even after the statutory period. A logical corollary of this would be that all income accruing or arising from the said property even after the date of attachment would also automatically stand attached.However property acquired by a notified person after the notification under the Special Act cannot be attached. That property does not come within the purview of the Section 3(3). [See Tej Kumar Balakrishna Ruja v. A K Menon, (1997) 9 SCC 123 para 6]The cut off date for the attachment of the property accordingly is the date of notification. All properties of the persons on the said date automatically stand attached. The statutory window period is irrelevant for the attachment of the property. It would have no bearing on the said attachment.It is true that to such an extent all properties would be liable to be sold which are needed for redemption and not beyond the same. What should be kept uppermost in the mind of the Court is to see that the liabilities are discharged and not beyond the same. It is with that end in view that the powers of the Special Court contained in Sections 9A and 11 must be construed.It is an accepted fact that the reports of the Jankiraman Committee, the Joint Parliamentary Committee and the Inter Disciplinary Group (IDG) are admissible only for the purpose of tracing the legal history of the Act alone. The contents of the report should not have been used by the ld. Judge of the Special Court as evidence.However, a lot of documents have been filed before us with regard to Audited Reports. Vyas and Vyas had filed an Audited Report in 2003. Copies whereof were supplied in 2005. Audited Report of Vyas and Vyas related only to Harshad Mehta. A Report on the Assets and Liabilities of the Appellants by M/s. Vinod K. Agarwala and Co. as on November, 2007 has also been placed on record. It does not appear that the Special Judge had considered this aspect of the matter in great detail. The learned Judge, Special Court, should consider the aforementioned two audit reports so as to arrive at a positive finding with regard to the liabilities and assets possessed by them so as to enable to pass appropriate orders.The learned Judge, Special Court, in his judgment has mainly dealt with the contentions raised by the custodian in terms of the written submission filed on its behalf. The contentions of the appellants have not been considered in the impugned judgment. It is furthermore contended on behalf of the appellants, that out of the twenty six paragraphs of the impugned judgment, 15 paragraphs are near verbatim reproductions.In our opinion this clearly shows theof mind of the learned Judge, Special Court. He was required to weigh the submissions andof both the parties in his proper perspective and then arrive at a well reasoned opinion, which doesnt seem to be the case before us. It is well settled that "Justice must not only be done, but also must be seem to be done". | 1 | 8,029 | 1,885 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the Special Court seeking attachment of the said funds due to them by LS Synthetics. It was argued on behalf of the debtors, LS Synthetics, that the loans due to the respondents had no nexus to the nature of securities transactions specified under the Special Act and they were therefore not liable to be attached. This Court while rejecting the said contention noted that having regard to the provisions of the Act, it was not required that the properties in question must have a nexus to the illegal securities transaction. Accordingly all assets of the notified parties including the loans advanced by them in the case at hand were found liable to be attached. The Court however in LS Synthetics (supra) was not concerned with the issue of whether the properties in question had been acquired before the window period or not. The loans in that case had admittedly been advanced within the window period and accordingly the only question before the court was whether the loan would be liable to be attached despite not having a nexus to the illegal security transactions. This accordingly brings us to the next submissions as regards the statutory window period.STATUTORY WINDOW PERIODIt was contended on behalf of the Appellants, that the properties in question had been purchased much before the statutory window period provided under the Special Act. It is argued that the jurisdiction of the Special Court is strictly confined to the period from 01.04.1991 to 06.06.1992 and as such the Court would not have the power to investigate and give any findings pertaining to any transaction entered into prior to the statutory period. The appellants state that, the fact, no claims have been received by the custodian from any bank pertaining to the pre-statutory period, should be conclusive evidence that no monies were siphoned off in that period as falsely alleged.In our opinion the interpretation advanced by the appellants on the provisions would be a clear misreading of the Act. We must in this regard refer to the relevant provisions of the Act.Provisions of Section 3(2) should not be read into Section 3(3). Though Section 3 (3) is dependent on Section 3(2) for its operation, but once Section 3(2) comes into operation, Section 3(3) becomes independent of it and accordingly the qualifications of Section 3(2) cannot be read into Section 3(3). We must place emphasis on a plain reading of the said section. Had it been the intention of the legislature to attach only those properties acquired within the statutory period, it would have clearly said so. The statutory window period is only a relevant criterion for application of Section 3(2) and therefore has no bearing on the application of Section 3(3).A plain reading of Section 3(3) would suggest that all properties of the notified persons on the date of the said notification would automatically stand attached irrespective of the fact as to whether they had been acquired before, during or even after the statutory period. A logical corollary of this would be that all income accruing or arising from the said property even after the date of attachment would also automatically stand attached.However property acquired by a notified person after the notification under the Special Act cannot be attached. That property does not come within the purview of the Section 3(3). [See Tej Kumar Balakrishna Ruja v. A K Menon, (1997) 9 SCC 123 para 6]The cut off date for the attachment of the property accordingly is the date of notification. All properties of the persons on the said date automatically stand attached. The statutory window period is irrelevant for the attachment of the property. It would have no bearing on the said attachment.It is true that to such an extent all properties would be liable to be sold which are needed for redemption and not beyond the same. What should be kept uppermost in the mind of the Court is to see that the liabilities are discharged and not beyond the same. It is with that end in view that the powers of the Special Court contained in Sections 9A and 11 must be construed.It is an accepted fact that the reports of the Jankiraman Committee, the Joint Parliamentary Committee and the Inter Disciplinary Group (IDG) are admissible only for the purpose of tracing the legal history of the Act alone. The contents of the report should not have been used by the ld. Judge of the Special Court as evidence.However, a lot of documents have been filed before us with regard to Audited Reports. Vyas and Vyas had filed an Audited Report in 2003. Copies whereof were supplied in 2005. Audited Report of Vyas and Vyas related only to Harshad Mehta. A Report on the Assets and Liabilities of the Appellants by M/s. Vinod K. Agarwala and Co. as on November, 2007 has also been placed on record. It does not appear that the Special Judge had considered this aspect of the matter in great detail. The learned Judge, Special Court, should consider the aforementioned two audit reports so as to arrive at a positive finding with regard to the liabilities and assets possessed by them so as to enable to pass appropriate orders.The learned Judge, Special Court, in his judgment has mainly dealt with the contentions raised by the custodian in terms of the written submission filed on its behalf. The contentions of the appellants have not been considered in the impugned judgment. It is furthermore contended on behalf of the appellants, that out of the twenty six paragraphs of the impugned judgment, 15 paragraphs are near verbatim reproductions.In our opinion this clearly shows the non-application of mind of the learned Judge, Special Court. He was required to weigh the submissions and counter-submissions of both the parties in his proper perspective and then arrive at a well reasoned opinion, which doesnt seem to be the case before us. It is well settled that "Justice must not only be done, but also must be seem to be done".
### Response:
1
### Explanation:
Fairgrowth thereafter filed an application before the Special Court seeking attachment of the said funds due to them by LS Synthetics. It was argued on behalf of the debtors, LS Synthetics, that the loans due to the respondents had no nexus to the nature of securities transactions specified under the Special Act and they were therefore not liable to be attached. This Court while rejecting the said contention noted that having regard to the provisions of the Act, it was not required that the properties in question must have a nexus to the illegal securities transaction. Accordingly all assets of the notified parties including the loans advanced by them in the case at hand were found liable to be attached. The Court however in LS Synthetics (supra) was not concerned with the issue of whether the properties in question had been acquired before the window period or not. The loans in that case had admittedly been advanced within the window period and accordingly the only question before the court was whether the loan would be liable to be attached despite not having a nexus to the illegal security transactions. This accordingly brings us to the next submissions as regards the statutory window period.STATUTORY WINDOW PERIODIt was contended on behalf of the Appellants, that the properties in question had been purchased much before the statutory window period provided under the Special Act. It is argued that the jurisdiction of the Special Court is strictly confined to the period from 01.04.1991 to 06.06.1992 and as such the Court would not have the power to investigate and give any findings pertaining to any transaction entered into prior to the statutory period. The appellants state that, the fact, no claims have been received by the custodian from any bank pertaining to theperiod, should be conclusive evidence that no monies were siphoned off in that period as falsely alleged.In our opinion the interpretation advanced by the appellants on the provisions would be a clear misreading of the Act. We must in this regard refer to the relevant provisions of the Act.Provisions of Section 3(2) should not be read into Section 3(3). Though Section 3 (3) is dependent on Section 3(2) for its operation, but once Section 3(2) comes into operation, Section 3(3) becomes independent of it and accordingly the qualifications of Section 3(2) cannot be read into Section 3(3). We must place emphasis on a plain reading of the said section. Had it been the intention of the legislature to attach only those properties acquired within the statutory period, it would have clearly said so. The statutory window period is only a relevant criterion for application of Section 3(2) and therefore has no bearing on the application of Section 3(3).A plain reading of Section 3(3) would suggest that all properties of the notified persons on the date of the said notification would automatically stand attached irrespective of the fact as to whether they had been acquired before, during or even after the statutory period. A logical corollary of this would be that all income accruing or arising from the said property even after the date of attachment would also automatically stand attached.However property acquired by a notified person after the notification under the Special Act cannot be attached. That property does not come within the purview of the Section 3(3). [See Tej Kumar Balakrishna Ruja v. A K Menon, (1997) 9 SCC 123 para 6]The cut off date for the attachment of the property accordingly is the date of notification. All properties of the persons on the said date automatically stand attached. The statutory window period is irrelevant for the attachment of the property. It would have no bearing on the said attachment.It is true that to such an extent all properties would be liable to be sold which are needed for redemption and not beyond the same. What should be kept uppermost in the mind of the Court is to see that the liabilities are discharged and not beyond the same. It is with that end in view that the powers of the Special Court contained in Sections 9A and 11 must be construed.It is an accepted fact that the reports of the Jankiraman Committee, the Joint Parliamentary Committee and the Inter Disciplinary Group (IDG) are admissible only for the purpose of tracing the legal history of the Act alone. The contents of the report should not have been used by the ld. Judge of the Special Court as evidence.However, a lot of documents have been filed before us with regard to Audited Reports. Vyas and Vyas had filed an Audited Report in 2003. Copies whereof were supplied in 2005. Audited Report of Vyas and Vyas related only to Harshad Mehta. A Report on the Assets and Liabilities of the Appellants by M/s. Vinod K. Agarwala and Co. as on November, 2007 has also been placed on record. It does not appear that the Special Judge had considered this aspect of the matter in great detail. The learned Judge, Special Court, should consider the aforementioned two audit reports so as to arrive at a positive finding with regard to the liabilities and assets possessed by them so as to enable to pass appropriate orders.The learned Judge, Special Court, in his judgment has mainly dealt with the contentions raised by the custodian in terms of the written submission filed on its behalf. The contentions of the appellants have not been considered in the impugned judgment. It is furthermore contended on behalf of the appellants, that out of the twenty six paragraphs of the impugned judgment, 15 paragraphs are near verbatim reproductions.In our opinion this clearly shows theof mind of the learned Judge, Special Court. He was required to weigh the submissions andof both the parties in his proper perspective and then arrive at a well reasoned opinion, which doesnt seem to be the case before us. It is well settled that "Justice must not only be done, but also must be seem to be done".
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Managing Director, K.S.R.T.C Vs. New India Assurance Co.Ltd | “22. In the present case, as the facts have been unfurled, the appellant Bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the Bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was the subject of an agreement of hypothecation and was in possession and control of Respondent 2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Mohan Benefit (P) Ltd. V. Kachraji Raymalji (1997) 9 SCC 103 , in our considered opinion, was inappropriate because in the instant case all the documents were filed by the Bank. In the said case, the two-Judge Bench of this Court had doubted the relationship between the appellant and the respondent therein from the hire-purchase agreement. Be that as it may, the said case rested on its own facts. In the decision in Rajasthan SRTC v. Kailash Nath Kothari,(1997) 7 SCC 481 the Court fastened the liability on the Corporation regard being had to the definition of the “owner” who was in control and possession of the vehicle. Similar to the effect is the judgment in National Insurance Co. Ltd. V. Deepa Devi, (2008) 1 SCC 414. Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the insurance company. In Pushpa v. Shakuntala case, (2011) 2 SCC 240 the learned Judges distinguished the ratio in Deepa Devi on the ground that it hinged on its special facts and fastened the liability on the insurer. In UPSRTC v. Kulsum, (2011) 8 SCC 142 , the principle stated in Kailash Nath Kothari was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the owner.23. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration.24. In Purnya Kala Devi v. State of Assam, (2014) 14 SCC 142 , a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-in-interest of the appellant, Centurion Bank, was the registered owner along with Respondent 2. Respondent 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of Respondent 2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that Respondent 2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable.” This Court has held that even when there was an agreement of and vehicle has been insured and agreement holder is treated an owner, the insurer cannot escape the liability to make indemnification. 33. In view of the decision in HDFC Bank Limited v. Reshma & Ors. (supra), the insurer cannot escape the liability, when ownership changes due to the hypothecation agreement. In the case of hire also, it cannot escape the liability, even if the ownership changes. Even though, KSRTC is treated as owner under Section 2(30) of the Act of 1988, the registered owner continues to remain liable as per terms and conditions of lease agreement lawfully entered into with KSRTC.34. In view of the aforesaid discussion, we hold that registered owner, insurer as well as KSRTC would be liable to make the payment of compensation jointly and severally to the claimants and the KSRTC in terms of the lease agreement entered into with the registered owner would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer. | 1[ds]In our opinion, decision of High Court is not sustainable. The provisions contained in the Act are clear. No vehicle can be driven without insurance as provided in Section 147 whereas clause 14 of lease agreement between KSRTC and the owner clearly stipulate that it shall be the liability of the owner to provide the comprehensive insurance covers for all kind of accidental risks to the passengers, other persons/property. The provisions of said clause of the agreement are not shown to be opposed to any provision in the Contract Act or any of the provisions contained under the Act of 1988. Hiring of public service vehicles is not prohibited under any of the provisions of the aforesaid laws. It could not be said to be inconsistent user by KSRTC. The agreement is not shown to be illegal in any manner whatsoever nor shown to be opposed to the publicthe instant case it is not complete transfer of the vehicle it has been given on hire for which there is no prohibition and no condition/policy of insurance as shown to prohibit plying of vehicle on hire. The vehicle was not used for inconsistent purpose. Thus, in the absence of any legal prohibition and any violation of terms and conditions of the policy, more so, in view of the provisions of Section 157 of the Act of 1988, we are of considered opinion that the insurer cannot escape the liability.Now, we come to the question of exclusion of contractual liability under second proviso to Section 147(1). When we read provisions of Section 147 with Section 157 together, it leaves no room for any doubt that there is deemed transfer of policy in case of transfer of vehicle. Hence, liability of insurer continues notwithstanding the contract of transfer of vehicle, such contractual liability cannot be said to be excluded by virtue of second proviso to Section 147(1) of Act of 1988. Higher purchase agreement, an agreement for lease or an agreement for hypothecation are covered under Section 2(30) of the Act of 1988. A person in possession is considered to be an owner of the vehicle under such agreements. In case such contractual liability is excluded then anomalous results would occur and financer under higher purchase agreement would be held liable and so on. In our view, an agreement for lease on hire cannot be said to be contract envisaged for exclusion under contractual liability in second proviso to Section 147(1) of the Act of 1988. The High Court has erred in holding otherwise.27. The KSRTC can also be treated as owner for the purposes of Section 2(30) of the Act of 1988 plying the buses under lease agreement. The insurance company admittedly has insured the vehicle and taken the requisite premium and it is not a case set up by the insurer that intimation was not given to the insurance company of the hiring arrangement. Even if the intimation had not been given, in our opinion, the insurer cannot escape the liability to indemnify as in the case of hiring of vehicle intimation is not required to be given. It is only in the case of complete transfer of the vehicle when change of registration particulars are required under Section 157 of the Act, an intimation has to be given by the transferee for effecting necessary changes in the policy. Even otherwise, that would be a ministerial act and the insurer cannot escape the liability for that reason. When the KSRTC has become the owner of the vehicle during the period it was on hire with it for the purpose of Section 2(30) of the Act by virtue of provisions contained in Section 157 of the Act, the insurance policy shall be deemed to be transferred. As such, insurer is liable to make indemnification and cannot escape the liability so incurred by the KSRTC.Reliance placed by learned counsel for the appellant on Condition No. 15 of the agreement (supra) in our view is misconceived. Apart from the fact that this clause in the agreement between the owner and the RSRTC, to the extent it shifts the liability for the accident from the RSRTC to the owner, may be against the public policy as opined by the High Court, though we are not inclined to test the correctness of that proposition of law because on facts, we find that RSRTC cannot escape its liability to pay compensation. The second part of Condition No. 15 makes it abundantly clear that the RSRTC did not completely shift the liability to the owner of the bus because it provided for reimbursement to it in case it has to pay compensation arising out of an accident. The wordsthe Corporation is required to make any payment or incur any expenses through some court or under some mutual compromise, the Corporation shall be able to recover such amounts from the owner of the bus after deducting the same from the amounts payable toin the later part of Condition No. 15 leave no ambiguity in that behalf and clearly go to show the intention of the parties. Thus, RSRTC cannot escape its liability under Condition No. 15 of the agreement either. Thus, both on facts and in law the liability to pay compensation for the accident must fall on theis apparent that question of the liability of the insurer did not come up for consideration and also the relevant statutory provisions relating thereto in aforesaid decision. This Court, considering clause 16 of the agreement entered into by RSRTC and owner, held that RSRTC did not completely shift the liability to the owner of the bus in case it has to pay compensation arising out of an accident. In the instant cases also there are certain clauses referred to above which indicate that if the KSRTC has to make the payment, it can recover the same from the owner out of the amount payable by it or from the amount payable by the insurer to the owner. On the strength of decision in RSRTC v. Kailash Nath Kothari (supra), the KSRTC being in actual control of the vehicle would also be liable to make the compensation, however, in our opinion it can recover the amount from the registered owner or insurer, as the case may be. In fact of the case, vis-à-vis, theliability would be joint and several upon the KSRTC, registered owner and the insurer.The liability to pay compensation is based on a statutory provision. Compulsory insurance of the vehicle is meant for the benefit of the third parties. The liability of the owner to have compulsory insurance is only in regard to third party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate insurance policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justice.On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration.In view of the decision in HDFC Bank Limited v. Reshma & Ors. (supra), the insurer cannot escape the liability, when ownership changes due to the hypothecation agreement. In the case of hire also, it cannot escape the liability, even if the ownership changes. Even though, KSRTC is treated as owner under Section 2(30) of the Act of 1988, the registered owner continues to remain liable as per terms and conditions of lease agreement lawfully entered into with KSRTC.34. In view of the aforesaid discussion, we hold that registered owner, insurer as well as KSRTC would be liable to make the payment of compensation jointly and severally to the claimants and the KSRTC in terms of the lease agreement entered into with the registered owner would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer. | 1 | 7,885 | 1,525 | ### 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:
“22. In the present case, as the facts have been unfurled, the appellant Bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the Bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was the subject of an agreement of hypothecation and was in possession and control of Respondent 2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Mohan Benefit (P) Ltd. V. Kachraji Raymalji (1997) 9 SCC 103 , in our considered opinion, was inappropriate because in the instant case all the documents were filed by the Bank. In the said case, the two-Judge Bench of this Court had doubted the relationship between the appellant and the respondent therein from the hire-purchase agreement. Be that as it may, the said case rested on its own facts. In the decision in Rajasthan SRTC v. Kailash Nath Kothari,(1997) 7 SCC 481 the Court fastened the liability on the Corporation regard being had to the definition of the “owner” who was in control and possession of the vehicle. Similar to the effect is the judgment in National Insurance Co. Ltd. V. Deepa Devi, (2008) 1 SCC 414. Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the insurance company. In Pushpa v. Shakuntala case, (2011) 2 SCC 240 the learned Judges distinguished the ratio in Deepa Devi on the ground that it hinged on its special facts and fastened the liability on the insurer. In UPSRTC v. Kulsum, (2011) 8 SCC 142 , the principle stated in Kailash Nath Kothari was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the owner.23. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration.24. In Purnya Kala Devi v. State of Assam, (2014) 14 SCC 142 , a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-in-interest of the appellant, Centurion Bank, was the registered owner along with Respondent 2. Respondent 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of Respondent 2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that Respondent 2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable.” This Court has held that even when there was an agreement of and vehicle has been insured and agreement holder is treated an owner, the insurer cannot escape the liability to make indemnification. 33. In view of the decision in HDFC Bank Limited v. Reshma & Ors. (supra), the insurer cannot escape the liability, when ownership changes due to the hypothecation agreement. In the case of hire also, it cannot escape the liability, even if the ownership changes. Even though, KSRTC is treated as owner under Section 2(30) of the Act of 1988, the registered owner continues to remain liable as per terms and conditions of lease agreement lawfully entered into with KSRTC.34. In view of the aforesaid discussion, we hold that registered owner, insurer as well as KSRTC would be liable to make the payment of compensation jointly and severally to the claimants and the KSRTC in terms of the lease agreement entered into with the registered owner would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer.
### Response:
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### Explanation:
cannot be said to be contract envisaged for exclusion under contractual liability in second proviso to Section 147(1) of the Act of 1988. The High Court has erred in holding otherwise.27. The KSRTC can also be treated as owner for the purposes of Section 2(30) of the Act of 1988 plying the buses under lease agreement. The insurance company admittedly has insured the vehicle and taken the requisite premium and it is not a case set up by the insurer that intimation was not given to the insurance company of the hiring arrangement. Even if the intimation had not been given, in our opinion, the insurer cannot escape the liability to indemnify as in the case of hiring of vehicle intimation is not required to be given. It is only in the case of complete transfer of the vehicle when change of registration particulars are required under Section 157 of the Act, an intimation has to be given by the transferee for effecting necessary changes in the policy. Even otherwise, that would be a ministerial act and the insurer cannot escape the liability for that reason. When the KSRTC has become the owner of the vehicle during the period it was on hire with it for the purpose of Section 2(30) of the Act by virtue of provisions contained in Section 157 of the Act, the insurance policy shall be deemed to be transferred. As such, insurer is liable to make indemnification and cannot escape the liability so incurred by the KSRTC.Reliance placed by learned counsel for the appellant on Condition No. 15 of the agreement (supra) in our view is misconceived. Apart from the fact that this clause in the agreement between the owner and the RSRTC, to the extent it shifts the liability for the accident from the RSRTC to the owner, may be against the public policy as opined by the High Court, though we are not inclined to test the correctness of that proposition of law because on facts, we find that RSRTC cannot escape its liability to pay compensation. The second part of Condition No. 15 makes it abundantly clear that the RSRTC did not completely shift the liability to the owner of the bus because it provided for reimbursement to it in case it has to pay compensation arising out of an accident. The wordsthe Corporation is required to make any payment or incur any expenses through some court or under some mutual compromise, the Corporation shall be able to recover such amounts from the owner of the bus after deducting the same from the amounts payable toin the later part of Condition No. 15 leave no ambiguity in that behalf and clearly go to show the intention of the parties. Thus, RSRTC cannot escape its liability under Condition No. 15 of the agreement either. Thus, both on facts and in law the liability to pay compensation for the accident must fall on theis apparent that question of the liability of the insurer did not come up for consideration and also the relevant statutory provisions relating thereto in aforesaid decision. This Court, considering clause 16 of the agreement entered into by RSRTC and owner, held that RSRTC did not completely shift the liability to the owner of the bus in case it has to pay compensation arising out of an accident. In the instant cases also there are certain clauses referred to above which indicate that if the KSRTC has to make the payment, it can recover the same from the owner out of the amount payable by it or from the amount payable by the insurer to the owner. On the strength of decision in RSRTC v. Kailash Nath Kothari (supra), the KSRTC being in actual control of the vehicle would also be liable to make the compensation, however, in our opinion it can recover the amount from the registered owner or insurer, as the case may be. In fact of the case, vis-à-vis, theliability would be joint and several upon the KSRTC, registered owner and the insurer.The liability to pay compensation is based on a statutory provision. Compulsory insurance of the vehicle is meant for the benefit of the third parties. The liability of the owner to have compulsory insurance is only in regard to third party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate insurance policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justice.On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration.In view of the decision in HDFC Bank Limited v. Reshma & Ors. (supra), the insurer cannot escape the liability, when ownership changes due to the hypothecation agreement. In the case of hire also, it cannot escape the liability, even if the ownership changes. Even though, KSRTC is treated as owner under Section 2(30) of the Act of 1988, the registered owner continues to remain liable as per terms and conditions of lease agreement lawfully entered into with KSRTC.34. In view of the aforesaid discussion, we hold that registered owner, insurer as well as KSRTC would be liable to make the payment of compensation jointly and severally to the claimants and the KSRTC in terms of the lease agreement entered into with the registered owner would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer.
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Raghavan Sasikumar Vs. Parameswaran Nadar Sathyananadhan Nadar Kanakottu Padippura Veedu and Ors | The defendants filed the written statement disputing the description of the plaint schedule properties. They also contended that they are in possession of properties in excess of kudikidappu right and they are legally entitled to possess the same. It was the case on behalf of the defendants that they have perfected their title over a property having more than 10 cents in extent. A Court Commissioner was appointed, who submitted his report - Court Commissioners Report (Exts. C1 and C2). On appreciation of evidence, the learned Trial Court dismissed the suit, which came to be confirmed by the First Appellate Court. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court dismissing the suit and which was confirmed by the First Appellate Court, the original plaintiffs filed the Second Appeal No. 39 of 2000 before the High Court. The appeal was admitted on the following substantial questions of law:- 1. When the lower court has found that the defendants have not perfected their title over plaint D schedule by adverse possession and limitation, should not the lower court grant a decree to the plaintiff allowing the p put up boundary to separate plaint D schedule from B and C schedule properties? 2. Is the finding of the lower court dismissing the suit valid on the ground that the plaintiff has not prayed for recovery of the property from the receiver? 3. If the title of the plaintiff over the plaint D schedule property is found in favour of the plaintiff, can the prayer for putting up boundary be rejected on the ground that the said property is in the possession of the receiver on behalf of the plaintiff? 4. When the plaintiff has admitted that the defendants are in the possession of B and C schedule, can the suit be dismissed on the ground that defendants have not obtained pattayam for the said properties from the Land Tribunal? 5. Can the suit be dismissed on the ground that defendants have not obtained pattayam from the Land Tribunal? 2.3 By the impugned judgment and order, the High Court has allowed the said second appeal and has decreed the suit by upsetting the concurrent findings recorded by both the Courts below and holding that defendant Nos. 1 to 3 cannot have more than 10 cents of land as a kudikidappukars and therefore, plaintiffs are entitled to put up the boundary as per the Commissioners Plan and Report beyond the excess of 10 cents land. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court allowing the second appeal and quashing and setting aside the judgment and decree passed by the learned Trial Court dismissing the suit and consequently decreeing the suit, original respondent No.4 before the High Court has preferred the present appeal. 3. We have heard Shri C.N. Sreekumar, learned Senior Advocate appearing on behalf of the appellant and Mr. Jose Abraham, learned counsel appearing on behalf of the respondents – appellants before the High Court – original plaintiffs. 4. Having heard the learned counsel for the respective parties and considered the evidence on record, more particularly, the fact that in the earlier round of litigation instituted by the original landowner - Parameswaran Nadar – predecessor-in-title of the plaintiffs, being O.S. No. 833 of 1961, he was held to be entitled to plaint A schedule land to the extent of 2 acres and 35 cents. Therefore, the predecessor-in-title of the plaintiffs, was having the title to and possession over the plaint A schedule land admeasuring 2 acres and 35 cents only. Therefore, to that extent only the plaintiffs can protect their possession by putting up the boundary wall/fence and not beyond 2 acres and 35 cents. Therefore, the original plaintiffs can put up the boundary wall/fence within 2 acres and 35 cents. They have no right to put up any boundary wall/fence beyond 2 acres and 35 cents. If the plaintiffs are permitted to put up the boundary wall beyond 2 acres and 35 cents, in that case, it would be contrary to the earlier judgment and decree passed in O.S. No. 833 of 1961. Also, if the plaintiffs are permitted to put up the boundary wall/fence beyond 2 acres and 35 cents, in that case, it can be said to be conferring title on them beyond 2 acres and 35 cents contrary to the judgment and decree passed in O.S. No.833 of 1961 in which they were held to be entitled to plaint A schedule land admeasuring 2 acres and 35 cents only. 5. Now, so far as the reliance placed upon the Commissioners Report, which suggests that the plaintiffs were in possession of 2 acres and 77 cents is concerned, it is to be noted that plaintiffs may be found to be in possession of 2 acres and 77 cents. However, any possession beyond 2 acres and 35 cents can be said to be unauthorized possession. 6. As observed hereinabove, the plaintiffs can protect their possession by putting up the boundary wall/fence to the extent of 2 acres and 35 cents only. By praying to permit the plaintiffs to put up the boundary wall/fence beyond 2 acres and 35 cents, the plaintiffs are asking for the reliefs permitting them to retain the possession of land beyond 2 acres and 35 cents, which otherwise they are not entitled to in view of the specific findings recorded by the Civil Court in the earlier round of litigation namely O.S. No. 833 of 1961. 7. From the impugned judgment and order passed by the High Court, it appears that what is weighed with the High Court is that the defendant Nos. 1 to 3 are entitled to only 10 cents as kudikidappukars. However, in a suit praying for putting up a boundary wall/fence filed by the plaintiffs, the High Court in a second appeal could not have given the findings that the defendants were entitled to only 10 cents as kudikidappukars. | 1[ds]4. Having heard the learned counsel for the respective parties and considered the evidence on record, more particularly, the fact that in the earlier round of litigation instituted by the original landowner - Parameswaran Nadar – predecessor-in-title of the plaintiffs, being O.S. No. 833 of 1961, he was held to be entitled to plaint A schedule land to the extent of 2 acres and 35 cents. Therefore, the predecessor-in-title of the plaintiffs, was having the title to and possession over the plaint A schedule land admeasuring 2 acres and 35 cents only. Therefore, to that extent only the plaintiffs can protect their possession by putting up the boundary wall/fence and not beyond 2 acres and 35 cents. Therefore, the original plaintiffs can put up the boundary wall/fence within 2 acres and 35 cents. They have no right to put up any boundary wall/fence beyond 2 acres and 35 cents. If the plaintiffs are permitted to put up the boundary wall beyond 2 acres and 35 cents, in that case, it would be contrary to the earlier judgment and decree passed in O.S. No. 833 of 1961. Also, if the plaintiffs are permitted to put up the boundary wall/fence beyond 2 acres and 35 cents, in that case, it can be said to be conferring title on them beyond 2 acres and 35 cents contrary to the judgment and decree passed in O.S. No.833 of 1961 in which they were held to be entitled to plaint A schedule land admeasuring 2 acres and 35 cents only.5. Now, so far as the reliance placed upon the Commissioners Report, which suggests that the plaintiffs were in possession of 2 acres and 77 cents is concerned, it is to be noted that plaintiffs may be found to be in possession of 2 acres and 77 cents. However, any possession beyond 2 acres and 35 cents can be said to be unauthorized possession.6. As observed hereinabove, the plaintiffs can protect their possession by putting up the boundary wall/fence to the extent of 2 acres and 35 cents only. By praying to permit the plaintiffs to put up the boundary wall/fence beyond 2 acres and 35 cents, the plaintiffs are asking for the reliefs permitting them to retain the possession of land beyond 2 acres and 35 cents, which otherwise they are not entitled to in view of the specific findings recorded by the Civil Court in the earlier round of litigation namely O.S. No. 833 of 1961.7. From the impugned judgment and order passed by the High Court, it appears that what is weighed with the High Court is that the defendant Nos. 1 to 3 are entitled to only 10 cents as kudikidappukars. However, in a suit praying for putting up a boundary wall/fence filed by the plaintiffs, the High Court in a second appeal could not have given the findings that the defendants were entitled to only 10 cents as kudikidappukars. | 1 | 1,569 | 537 | ### 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:
The defendants filed the written statement disputing the description of the plaint schedule properties. They also contended that they are in possession of properties in excess of kudikidappu right and they are legally entitled to possess the same. It was the case on behalf of the defendants that they have perfected their title over a property having more than 10 cents in extent. A Court Commissioner was appointed, who submitted his report - Court Commissioners Report (Exts. C1 and C2). On appreciation of evidence, the learned Trial Court dismissed the suit, which came to be confirmed by the First Appellate Court. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court dismissing the suit and which was confirmed by the First Appellate Court, the original plaintiffs filed the Second Appeal No. 39 of 2000 before the High Court. The appeal was admitted on the following substantial questions of law:- 1. When the lower court has found that the defendants have not perfected their title over plaint D schedule by adverse possession and limitation, should not the lower court grant a decree to the plaintiff allowing the p put up boundary to separate plaint D schedule from B and C schedule properties? 2. Is the finding of the lower court dismissing the suit valid on the ground that the plaintiff has not prayed for recovery of the property from the receiver? 3. If the title of the plaintiff over the plaint D schedule property is found in favour of the plaintiff, can the prayer for putting up boundary be rejected on the ground that the said property is in the possession of the receiver on behalf of the plaintiff? 4. When the plaintiff has admitted that the defendants are in the possession of B and C schedule, can the suit be dismissed on the ground that defendants have not obtained pattayam for the said properties from the Land Tribunal? 5. Can the suit be dismissed on the ground that defendants have not obtained pattayam from the Land Tribunal? 2.3 By the impugned judgment and order, the High Court has allowed the said second appeal and has decreed the suit by upsetting the concurrent findings recorded by both the Courts below and holding that defendant Nos. 1 to 3 cannot have more than 10 cents of land as a kudikidappukars and therefore, plaintiffs are entitled to put up the boundary as per the Commissioners Plan and Report beyond the excess of 10 cents land. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court allowing the second appeal and quashing and setting aside the judgment and decree passed by the learned Trial Court dismissing the suit and consequently decreeing the suit, original respondent No.4 before the High Court has preferred the present appeal. 3. We have heard Shri C.N. Sreekumar, learned Senior Advocate appearing on behalf of the appellant and Mr. Jose Abraham, learned counsel appearing on behalf of the respondents – appellants before the High Court – original plaintiffs. 4. Having heard the learned counsel for the respective parties and considered the evidence on record, more particularly, the fact that in the earlier round of litigation instituted by the original landowner - Parameswaran Nadar – predecessor-in-title of the plaintiffs, being O.S. No. 833 of 1961, he was held to be entitled to plaint A schedule land to the extent of 2 acres and 35 cents. Therefore, the predecessor-in-title of the plaintiffs, was having the title to and possession over the plaint A schedule land admeasuring 2 acres and 35 cents only. Therefore, to that extent only the plaintiffs can protect their possession by putting up the boundary wall/fence and not beyond 2 acres and 35 cents. Therefore, the original plaintiffs can put up the boundary wall/fence within 2 acres and 35 cents. They have no right to put up any boundary wall/fence beyond 2 acres and 35 cents. If the plaintiffs are permitted to put up the boundary wall beyond 2 acres and 35 cents, in that case, it would be contrary to the earlier judgment and decree passed in O.S. No. 833 of 1961. Also, if the plaintiffs are permitted to put up the boundary wall/fence beyond 2 acres and 35 cents, in that case, it can be said to be conferring title on them beyond 2 acres and 35 cents contrary to the judgment and decree passed in O.S. No.833 of 1961 in which they were held to be entitled to plaint A schedule land admeasuring 2 acres and 35 cents only. 5. Now, so far as the reliance placed upon the Commissioners Report, which suggests that the plaintiffs were in possession of 2 acres and 77 cents is concerned, it is to be noted that plaintiffs may be found to be in possession of 2 acres and 77 cents. However, any possession beyond 2 acres and 35 cents can be said to be unauthorized possession. 6. As observed hereinabove, the plaintiffs can protect their possession by putting up the boundary wall/fence to the extent of 2 acres and 35 cents only. By praying to permit the plaintiffs to put up the boundary wall/fence beyond 2 acres and 35 cents, the plaintiffs are asking for the reliefs permitting them to retain the possession of land beyond 2 acres and 35 cents, which otherwise they are not entitled to in view of the specific findings recorded by the Civil Court in the earlier round of litigation namely O.S. No. 833 of 1961. 7. From the impugned judgment and order passed by the High Court, it appears that what is weighed with the High Court is that the defendant Nos. 1 to 3 are entitled to only 10 cents as kudikidappukars. However, in a suit praying for putting up a boundary wall/fence filed by the plaintiffs, the High Court in a second appeal could not have given the findings that the defendants were entitled to only 10 cents as kudikidappukars.
### Response:
1
### Explanation:
4. Having heard the learned counsel for the respective parties and considered the evidence on record, more particularly, the fact that in the earlier round of litigation instituted by the original landowner - Parameswaran Nadar – predecessor-in-title of the plaintiffs, being O.S. No. 833 of 1961, he was held to be entitled to plaint A schedule land to the extent of 2 acres and 35 cents. Therefore, the predecessor-in-title of the plaintiffs, was having the title to and possession over the plaint A schedule land admeasuring 2 acres and 35 cents only. Therefore, to that extent only the plaintiffs can protect their possession by putting up the boundary wall/fence and not beyond 2 acres and 35 cents. Therefore, the original plaintiffs can put up the boundary wall/fence within 2 acres and 35 cents. They have no right to put up any boundary wall/fence beyond 2 acres and 35 cents. If the plaintiffs are permitted to put up the boundary wall beyond 2 acres and 35 cents, in that case, it would be contrary to the earlier judgment and decree passed in O.S. No. 833 of 1961. Also, if the plaintiffs are permitted to put up the boundary wall/fence beyond 2 acres and 35 cents, in that case, it can be said to be conferring title on them beyond 2 acres and 35 cents contrary to the judgment and decree passed in O.S. No.833 of 1961 in which they were held to be entitled to plaint A schedule land admeasuring 2 acres and 35 cents only.5. Now, so far as the reliance placed upon the Commissioners Report, which suggests that the plaintiffs were in possession of 2 acres and 77 cents is concerned, it is to be noted that plaintiffs may be found to be in possession of 2 acres and 77 cents. However, any possession beyond 2 acres and 35 cents can be said to be unauthorized possession.6. As observed hereinabove, the plaintiffs can protect their possession by putting up the boundary wall/fence to the extent of 2 acres and 35 cents only. By praying to permit the plaintiffs to put up the boundary wall/fence beyond 2 acres and 35 cents, the plaintiffs are asking for the reliefs permitting them to retain the possession of land beyond 2 acres and 35 cents, which otherwise they are not entitled to in view of the specific findings recorded by the Civil Court in the earlier round of litigation namely O.S. No. 833 of 1961.7. From the impugned judgment and order passed by the High Court, it appears that what is weighed with the High Court is that the defendant Nos. 1 to 3 are entitled to only 10 cents as kudikidappukars. However, in a suit praying for putting up a boundary wall/fence filed by the plaintiffs, the High Court in a second appeal could not have given the findings that the defendants were entitled to only 10 cents as kudikidappukars.
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Union Of India Vs. M/S Talson Builders | 1. Delay of 264 days in filing the special leave petition is condoned. 2. Leave granted. 3. This appeal is directed against the judgment and final order dated 24th of February, 2006 passed by the High Court of Judicature at Allahabad in Original Arbitration Petition No.117 of 2003 whereby the Chief Justice of the High Court had appointed a retired Judge of the Allahabad High Court as Arbitrator to decide the dispute raised by the parties. The order passed by the High Court runs as under: "For the purpose of acting as Arbitrator in this matter, Honble R.K.Gulati of 11, Taskhand Marg, Allahabad, a retired Judge of this Honble Court is hereby nominated and appointed." 4. It is not in dispute that the respondents filed an application for appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996. The respondent was granted certain contracts for Military Engineering service out of which, we are only concerned relating to CA NO.CWE/KAN/22 of 1996-97. After completion of contract work, the respondent submitted its final bill wherein it was specifically certified that the final bill included all claims raised by it from time to time irrespective of the fact whether they were admitted by the department or not and that there were no more claims in respect of the contract and the amount so claimed must be held to be full and final settlement of the claim of the respondent under the contract agreement. According to the appellants, the respondent submitted its final bill and received full payment without any protest. However, on 14th of August, 2000, the respondent sent a letter to the appellants for appointment of an Arbitrator which was not agreed to by them with the observation that the final bill in respect of the subject work had been signed and the amount had already been paid in full and final settlement and therefore, there was no dispute to be referred to the Arbitrator as prayed for by the respondent. By the aforesaid order and without going into the question whether there was any dispute pending between the parties, the High Court, by the impugned order, appointed a retired Judge of the High Court as an Arbitrator to decide the dispute between the parties. Now, the question is - when such objections were raised against the appointment of an arbitrator on the ground that the claim could not be referred to the Arbitrator because of full and final settlement and the claim stood liquidated, the High Court ought not to have referred such dispute by appointing an Arbitrator without deciding the objections so raised, or it would be left open to the Arbitrator to go into this question after the parties had entered appearance before him. This question has already been decided by a three-Judge Bench of this Court in Northern Railway Administration, Ministry of Railway, New Delhi vs. Patel Engineering Company Ltd. dated 18th of August, 2008. This Court after giving due consideration of the expression "due regard" has observed in paragraph 13 as follows: "In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of sub-section (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above. " | 1[ds]This question has already been decided by ae Bench of this Court in Northern Railway Administration, Ministry of Railway, New Delhi vs. Patel Engineering Company Ltd. dated 18th of August, 2008. This Court after giving due consideration of the expression "due regard" has observed in paragraph 13 as follows:"In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements ofn (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above. " | 1 | 695 | 198 | ### 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:
1. Delay of 264 days in filing the special leave petition is condoned. 2. Leave granted. 3. This appeal is directed against the judgment and final order dated 24th of February, 2006 passed by the High Court of Judicature at Allahabad in Original Arbitration Petition No.117 of 2003 whereby the Chief Justice of the High Court had appointed a retired Judge of the Allahabad High Court as Arbitrator to decide the dispute raised by the parties. The order passed by the High Court runs as under: "For the purpose of acting as Arbitrator in this matter, Honble R.K.Gulati of 11, Taskhand Marg, Allahabad, a retired Judge of this Honble Court is hereby nominated and appointed." 4. It is not in dispute that the respondents filed an application for appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996. The respondent was granted certain contracts for Military Engineering service out of which, we are only concerned relating to CA NO.CWE/KAN/22 of 1996-97. After completion of contract work, the respondent submitted its final bill wherein it was specifically certified that the final bill included all claims raised by it from time to time irrespective of the fact whether they were admitted by the department or not and that there were no more claims in respect of the contract and the amount so claimed must be held to be full and final settlement of the claim of the respondent under the contract agreement. According to the appellants, the respondent submitted its final bill and received full payment without any protest. However, on 14th of August, 2000, the respondent sent a letter to the appellants for appointment of an Arbitrator which was not agreed to by them with the observation that the final bill in respect of the subject work had been signed and the amount had already been paid in full and final settlement and therefore, there was no dispute to be referred to the Arbitrator as prayed for by the respondent. By the aforesaid order and without going into the question whether there was any dispute pending between the parties, the High Court, by the impugned order, appointed a retired Judge of the High Court as an Arbitrator to decide the dispute between the parties. Now, the question is - when such objections were raised against the appointment of an arbitrator on the ground that the claim could not be referred to the Arbitrator because of full and final settlement and the claim stood liquidated, the High Court ought not to have referred such dispute by appointing an Arbitrator without deciding the objections so raised, or it would be left open to the Arbitrator to go into this question after the parties had entered appearance before him. This question has already been decided by a three-Judge Bench of this Court in Northern Railway Administration, Ministry of Railway, New Delhi vs. Patel Engineering Company Ltd. dated 18th of August, 2008. This Court after giving due consideration of the expression "due regard" has observed in paragraph 13 as follows: "In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of sub-section (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above. "
### Response:
1
### Explanation:
This question has already been decided by ae Bench of this Court in Northern Railway Administration, Ministry of Railway, New Delhi vs. Patel Engineering Company Ltd. dated 18th of August, 2008. This Court after giving due consideration of the expression "due regard" has observed in paragraph 13 as follows:"In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements ofn (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above. "
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Union Of India Vs. Mahadeolal Prabhudayal | There is the further evidence of the guard as to what happened between Mughalsarai and Buxar. It appears between these two stations the train stops only at Dildarnagar. The evidence of the guard, however, is that the train suddenly stopped between the warner and home signals before it reached Dildarnagar. He, therefore, got down to find out what the trouble was. He found that the hosepipe between two wagons had got disconnected and this resulted in the stoppage of the train. The evidence further is that the hosepipe was intact when the train started from Mughalsarai. He made a note of this in his rough memo book which was produced. It is noted by him that the northern flapdoor of this wagon was open. He reconnected the hosepipe and went up to Dildarnagar. There he reported the matter to the station staff. His further evidence is that there were three escorts with the train and that they were guarding the train when the train was standing between the warner and the home signals before it reached Dildarnagar. Nothing untoward was reported to him by these escorts. It was at this stop between the two signals that the guard noticed that the rivets and seals of this wagon on one side had been broken. The case of the railway is that there was theft in the running train between Mughalsarai and Buxar and that is how part of the consignment was lost. The evidence of the guard does suggest that some thing happened between Mughalsarai and Dildarnagar and then between Dildarnagar and Buxar. In addition to this the evidence of the station staff at Dildarnagar is that the flapdoors of this wagon were found open when the train arrived at Dildarnagar. The contents were not checked at Dildarnagar as there was no arrangement for checking at that station. The wagon was re-sealed at Dildarnagar and the fact was noted in the station masters diary. It may be mentioned that the evidence of the station staff was that the wagon was rivetted also at Dildarnagar. The entry in the guards rough memo, however, is only that the wagon was resealed. The guard certainly says that it was rivetted also at Dildarnagar but that is not supported by the station staff and the entry in the guards rough memo. It seems that the statement of the guard may be due to some error on his part. That may also explain why, when the train arrived at Buxar, the flapdoor again was found open, for it had not been rivetted at Dildarnagar. Then the evidence of the Buxar station staff is that the northern flapdoors of this wagon were open when the train arrived at Buxar. It was then resealed and rivetted and was detached for checking. The checking took place on December 14th at Buxar. It was then found that one side had the original seals of Wadibunder while the other side had the seals of Buxar, on checking the wagon, 27 bales were found intact, covering of one bale was torn and one bale was found loose and slack. This evidence as to what happened between Mughalsarai and Buxar thus makes it probable that there was theft in the running train between Mughalsarai and Buxar and that may account for the loss of part of the consignment. 20. It is, however, contended on behalf of the respondent that no evidence was produced from Mughalsarai as to what happened while the wagon was in the marshalling yard and that the seal book which is kept at every railway station containing entries of re-sealing when a wagon is resealed was not produced from Mughalsarai and an adverse inference should be drawn from this non-production. We are, however of opinion that the evidence of the guard to the effect that the seals were intact when he left Mughalsarai with the train is sufficient to show that the wagon was intact with the original seals when it left Mughalsarai and, therefore, it is not possible to draw any adverse inference from the non-production of the watch and ward staff or the seal book of Mughalsarai in the circumstances of this case. It would have been a different matter if the respondent had asked for the production of the seal book as well as the evidence of the watch and ward staff. But the respondent contended itself merely with the suggestion that a theft might have taken place at Mughalsarai which was denied by the guard and did not ask the Court to order the railway to produce this evidence. In these circumstances in the face of the evidence of the guard and the fact that one seal on the southern side of the door was of the original station, we do not think that it is possible to draw an adverse inference against the railway on the ground that the evidence of the watch and ward staff and the seal book at Mughalsarai were not produced. The seal book would have been of value only if the wagon had been resealed at Mughalsarai but there is, in our opinion, no reason to think that the wagon had been resealed at Mughalsarai after the evidence of the guard that he found the seals and rivets intact when he left Mughalsarai with the train. On a careful consideration of the evidence, therefore, we are of opinion that a fair inference cannot be drawn from the evidence of the railway that there was misconduct by the railway or its servants at Mughalsarai during the time when the wagon was there. If the evidence of the guard is accepted, and we do accept it, there can be no doubt that the loss of the goods took place because of theft in the running train between Mughalsarai and Buxar. There is no evidence on behalf of the respondent to prove misconduct and as misconduct cannot fairly be inferred from the evidence produced on behalf of the railway, the suit must fail. | 1[ds]12. With respect we are of opinion that this exposition of the law relating to risk note B applies also to risk note Z and we accept it as correct. Thus the responsibility of the railway administration to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control arises at once under the agreement in either of the cases (a) or (b) and is not confined to the stage of litigation. But we are not prepared to accept the contention on behalf of the respondent that this responsibility to make full disclosure arises immediately the claim is made by the consignor and if the railway immediately on such claim being made does not disclose all the facts to the consignor, there is immediately a breach of this term of the contract contained in the risk note. It is true that the railway is bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession even before any litigation starts; but we are of opinion that such disclosure is necessary only where the consignor specifically asks the Railway to make the disclosure. If no such disclosure is asked for, the administration need not make it before the litigation. In the present case there is no proof that any disclosure was asked for in this behalf by the consignor at any time before the suit was filed. Therefore, if the railway did not disclose how the consignment was dealt with throughout before the suit was filed, it cannot be said to have committed breach of this term of the contract. The disclosure envisages a precise statement of how the consignment was dealt with by the railway or its servants. If the disclosure is asked for before the litigation commences and is not given or the disclosure is given but it is not considered to be sufficient by the consignor, the dispute has to be judicially decided and it is for the Court then to say if a suit is brought whether there has been a breach of this term of the contract13. After this, comes the stage where the consignor or the consignee being dissatisfied brings a suit for compensation. At that stage evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation to the consignor or which might have been made in the written statement in reply to the suit. When the railway administration has given its evidence in proof of the disclosure and the plaintiff is not satisfied with the disclosure made in the evidence, the plaintiff is entitled to ask the Court to call upon the railway to fulfil its obligation under the contract and the railway should then have the opportunity of meeting the demands of the plaintiff before its case is closed. Thus in addition to the evidence that the railway may adduce on its own (and in doing so the railway has necessarily to keep in mind the provisions of S. 114 of the Indian Evidence Act) the plaintiff can and should draw the attention of the Court if he feels that full disclosure has not been made. In that case he can ask the Court to require the railway to make further disclosure and should tell the Court what further disclosure he wants. It is then for the Court to decide whether the further disclosure desired by the plaintiff should be made by the railway, and if the Court decides that such further disclosure should be made the railway has to make such further disclosure as the Court orders it to make on the request of the plaintiff. If the railway fails to take the opportunity so given to satisfy the demands of the plaintiff, endorsed by the Court, the railway would be in breach of its contractual obligation of disclosure. It is at this stage, therefore, that the railway can be truly said to be in breach of its contractual obligation of disclosure, and that breach arises because the railway failed to disclose matters which the Court on the request of the plaintiff asks it to disclose. The question then is what is the effect of this breach14. It is remarkable that the Privy Council did not lay down that as soon as the breach is made as above the risk note comes to an end and the responsibility of the railway is that of a bailee under S. 72 (1) of the Act. In the observations already quoted, the Privy Council has gone on to say that after this stage is over, the question may arise whether misconduct may be fairly inferred from the evidence of the railway. It seems to us, therefore, that even if there is a breach of the term as to full disclosure it does not bring the contract to an end and throw the responsibility on the railway as if the case was a simple case, of responsibility under S. 72 (1) of the Act; the case is thus not assimilated to a case where goods are carried at the ordinary rates at railway risk. The reason for this seems to be that the goods have already been carried at the reduced rates and the consignor has taken advantage of that term in the contract. Therefore, even though there may be a breach of the term as to complete disclosure by the railway the consignor cannot fall back on the ordinary responsibility of the railway under S. 72 (1) of the Act as if the goods had been carried at railways risk at ordinary rates, for he has derived the advantage of the goods having been carried at a specially reduced rates. The risk note would in our opinion continue to apply and the Court would still have to decide whether misconduct can be fairly inferred from the evidence of the railway with this difference that where the railway has been in breach of its obligation to make full disclosure misconduct may be more readily inferred and S. 114 of the Indian Evidence Act more readily applied. But we do not think that the conditions in the risk note can be completely ignored simply because there has been a breach of the condition of complete disclosure. The view of the Patna High Court that as soon as there is breach of the condition relating to complete disclosure the risk note can be completely ignored and the responsibility of the railway judged purely on the basis of S. 72 (1) as if the goods were carried at the ordinary rates on railways risk cannot, therefore, be accepted as correct15. We may point out that in Surat Cotton Spinning and Weaving Mills Ltd.s case, 64 Ind App 176: (AIR 1937 PC 152 ), the plaintiffs wanted the guard of the train to be examined and he was undoubtedly a material witness. Even so the witness was not examined by the railway. Finally, therefore, the Privy Council allowed the appeal with these observations at p. 189 (of Ind App): (at p. 157 of AIR):"While their Lordships would be inclined to hold that the respondent, by his failure to submit the evidence of Rohead, was in breach of his contractual obligation to give the evidence necessary for disclosure of how the consignment was dealt with, they are clearly of opinion that the failure to submit the evidence of Rohead, in the circumstances of this case, entitles the Court to presume, in terms of S. 114 (g) of the Evidence Act, that Roheads evidence, if produced, would be unfavourable to the respondent, and that, in consequence, misconduct by complicity in the theft of some servant or servants of the respondent may be fairly inferred from the respondents evidence."These observations show that even though there may be a breach of the obligation to give full disclosure that does not mean that the risk note form Z or form B can be ignored and the responsibility of the railway fixed on the basis of S. 72 (1) as a simple bailee. If that was the effect of the breach, the Privy Council would not have come to the conclusion after applying S. 114 (g) of the Evidence Act in the case of Rohead that misconduct by complicity in the theft of some servant or servants of the railway may be fairly inferred from the railways evidence. The appeal was allowed by the Privy Council after coming to the conclusion that misconduct by the servant or servants of the railway might be fairly inferred from the evidence including the presumption under S. 114(g) of the Evidence Act. It seems to us clear, therefore that even if there is a breach of the obligation to make full disclosure in the sense that the railway does not produce the evidence desired by the plaintiff in the suit even though the request of the plaintiff is endorsed by the Court, the effect of such breach is not that the risk note is completely out of the way, the reason for this as we have already indicated bring that the consignor has already taken advantage of the reduced rates and, therefore, cannot be allowed to ignore the risk note altogether. But where there is a breach by the railway of the obligation to make full disclosure the Court may more readily infer misconduct on the part of the railway or its servants or more readily presume under S. 114(g) of the Evidence Act against the railway. This in our opinion is the effect of the decision of the Privy Council in Surat Cotton Spinning and Weaving Mills Limiteds case, 64 Ind App 176 : (AIR 1937 PC 152 ). As we have already said we are in respectful agreement with the law as laid down there16. So far as the present appeal is concerned, there was no demand by the consignor for disclosure before the suit Even after the suit was filed there was no statement by the respondent at any stage that the disclosure made by the appellant in the evidence was in any way inadequate. The respondent never told the Court after the evidence of the railway was over that he was not satisfied with the disclosure and that the railway be asked to make further disclosure by producing such further evidence as the respondent wanted. In these circumstances it cannot be said in the present case that there was any breach by the railway of its responsibility to make full disclosure. In the circumstance, we are of opinion that the risk note would still apply and the Court would have to decide whether misconduct on the part of the railway can be fairly inferred from the evidence produced by it. If the Court cannot fairly infer misconduct from the evidence adduced by the railway, the burden will be on the respondent to prove misconduct. That burden, if it arises, has clearly not been discharged for the respondent led no evidence on his behalf to discharge the burden. We, therefore, turn to the evidence to see whether from the evidence produced by the railway a fair inference of misconduct of the railway or its servants can be drawn on the facts of this caseWe are, however of opinion that the evidence of the guard to the effect that the seals were intact when he left Mughalsarai with the train is sufficient to show that the wagon was intact with the original seals when it left Mughalsarai and, therefore, it is not possible to draw any adverse inference from then of the watch and ward staff or the seal book of Mughalsarai in the circumstances of this case. It would have been a different matter if the respondent had asked for the production of the seal book as well as the evidence of the watch and ward staff. But the respondent contended itself merely with the suggestion that a theft might have taken place at Mughalsarai which was denied by the guard and did not ask the Court to order the railway to produce this evidence. In these circumstances in the face of the evidence of the guard and the fact that one seal on the southern side of the door was of the original station, we do not think that it is possible to draw an adverse inference against the railway on the ground that the evidence of the watch and ward staff and the seal book at Mughalsarai were not produced. The seal book would have been of value only if the wagon had been resealed at Mughalsarai but there is, in our opinion, no reason to think that the wagon had been resealed at Mughalsarai after the evidence of the guard that he found the seals and rivets intact when he left Mughalsarai with the train. On a careful consideration of the evidence, therefore, we are of opinion that a fair inference cannot be drawn from the evidence of the railway that there was misconduct by the railway or its servants at Mughalsarai during the time when the wagon was there. If the evidence of the guard is accepted, and we do accept it, there can be no doubt that the loss of the goods took place because of theft in the running train between Mughalsarai and Buxar. There is no evidence on behalf of the respondent to prove misconduct and as misconduct cannot fairly be inferred from the evidence produced on behalf of the railway, the suit must fail. | 1 | 7,669 | 2,434 | ### Instruction:
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There is the further evidence of the guard as to what happened between Mughalsarai and Buxar. It appears between these two stations the train stops only at Dildarnagar. The evidence of the guard, however, is that the train suddenly stopped between the warner and home signals before it reached Dildarnagar. He, therefore, got down to find out what the trouble was. He found that the hosepipe between two wagons had got disconnected and this resulted in the stoppage of the train. The evidence further is that the hosepipe was intact when the train started from Mughalsarai. He made a note of this in his rough memo book which was produced. It is noted by him that the northern flapdoor of this wagon was open. He reconnected the hosepipe and went up to Dildarnagar. There he reported the matter to the station staff. His further evidence is that there were three escorts with the train and that they were guarding the train when the train was standing between the warner and the home signals before it reached Dildarnagar. Nothing untoward was reported to him by these escorts. It was at this stop between the two signals that the guard noticed that the rivets and seals of this wagon on one side had been broken. The case of the railway is that there was theft in the running train between Mughalsarai and Buxar and that is how part of the consignment was lost. The evidence of the guard does suggest that some thing happened between Mughalsarai and Dildarnagar and then between Dildarnagar and Buxar. In addition to this the evidence of the station staff at Dildarnagar is that the flapdoors of this wagon were found open when the train arrived at Dildarnagar. The contents were not checked at Dildarnagar as there was no arrangement for checking at that station. The wagon was re-sealed at Dildarnagar and the fact was noted in the station masters diary. It may be mentioned that the evidence of the station staff was that the wagon was rivetted also at Dildarnagar. The entry in the guards rough memo, however, is only that the wagon was resealed. The guard certainly says that it was rivetted also at Dildarnagar but that is not supported by the station staff and the entry in the guards rough memo. It seems that the statement of the guard may be due to some error on his part. That may also explain why, when the train arrived at Buxar, the flapdoor again was found open, for it had not been rivetted at Dildarnagar. Then the evidence of the Buxar station staff is that the northern flapdoors of this wagon were open when the train arrived at Buxar. It was then resealed and rivetted and was detached for checking. The checking took place on December 14th at Buxar. It was then found that one side had the original seals of Wadibunder while the other side had the seals of Buxar, on checking the wagon, 27 bales were found intact, covering of one bale was torn and one bale was found loose and slack. This evidence as to what happened between Mughalsarai and Buxar thus makes it probable that there was theft in the running train between Mughalsarai and Buxar and that may account for the loss of part of the consignment. 20. It is, however, contended on behalf of the respondent that no evidence was produced from Mughalsarai as to what happened while the wagon was in the marshalling yard and that the seal book which is kept at every railway station containing entries of re-sealing when a wagon is resealed was not produced from Mughalsarai and an adverse inference should be drawn from this non-production. We are, however of opinion that the evidence of the guard to the effect that the seals were intact when he left Mughalsarai with the train is sufficient to show that the wagon was intact with the original seals when it left Mughalsarai and, therefore, it is not possible to draw any adverse inference from the non-production of the watch and ward staff or the seal book of Mughalsarai in the circumstances of this case. It would have been a different matter if the respondent had asked for the production of the seal book as well as the evidence of the watch and ward staff. But the respondent contended itself merely with the suggestion that a theft might have taken place at Mughalsarai which was denied by the guard and did not ask the Court to order the railway to produce this evidence. In these circumstances in the face of the evidence of the guard and the fact that one seal on the southern side of the door was of the original station, we do not think that it is possible to draw an adverse inference against the railway on the ground that the evidence of the watch and ward staff and the seal book at Mughalsarai were not produced. The seal book would have been of value only if the wagon had been resealed at Mughalsarai but there is, in our opinion, no reason to think that the wagon had been resealed at Mughalsarai after the evidence of the guard that he found the seals and rivets intact when he left Mughalsarai with the train. On a careful consideration of the evidence, therefore, we are of opinion that a fair inference cannot be drawn from the evidence of the railway that there was misconduct by the railway or its servants at Mughalsarai during the time when the wagon was there. If the evidence of the guard is accepted, and we do accept it, there can be no doubt that the loss of the goods took place because of theft in the running train between Mughalsarai and Buxar. There is no evidence on behalf of the respondent to prove misconduct and as misconduct cannot fairly be inferred from the evidence produced on behalf of the railway, the suit must fail.
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the Evidence Act, that Roheads evidence, if produced, would be unfavourable to the respondent, and that, in consequence, misconduct by complicity in the theft of some servant or servants of the respondent may be fairly inferred from the respondents evidence."These observations show that even though there may be a breach of the obligation to give full disclosure that does not mean that the risk note form Z or form B can be ignored and the responsibility of the railway fixed on the basis of S. 72 (1) as a simple bailee. If that was the effect of the breach, the Privy Council would not have come to the conclusion after applying S. 114 (g) of the Evidence Act in the case of Rohead that misconduct by complicity in the theft of some servant or servants of the railway may be fairly inferred from the railways evidence. The appeal was allowed by the Privy Council after coming to the conclusion that misconduct by the servant or servants of the railway might be fairly inferred from the evidence including the presumption under S. 114(g) of the Evidence Act. It seems to us clear, therefore that even if there is a breach of the obligation to make full disclosure in the sense that the railway does not produce the evidence desired by the plaintiff in the suit even though the request of the plaintiff is endorsed by the Court, the effect of such breach is not that the risk note is completely out of the way, the reason for this as we have already indicated bring that the consignor has already taken advantage of the reduced rates and, therefore, cannot be allowed to ignore the risk note altogether. But where there is a breach by the railway of the obligation to make full disclosure the Court may more readily infer misconduct on the part of the railway or its servants or more readily presume under S. 114(g) of the Evidence Act against the railway. This in our opinion is the effect of the decision of the Privy Council in Surat Cotton Spinning and Weaving Mills Limiteds case, 64 Ind App 176 : (AIR 1937 PC 152 ). As we have already said we are in respectful agreement with the law as laid down there16. So far as the present appeal is concerned, there was no demand by the consignor for disclosure before the suit Even after the suit was filed there was no statement by the respondent at any stage that the disclosure made by the appellant in the evidence was in any way inadequate. The respondent never told the Court after the evidence of the railway was over that he was not satisfied with the disclosure and that the railway be asked to make further disclosure by producing such further evidence as the respondent wanted. In these circumstances it cannot be said in the present case that there was any breach by the railway of its responsibility to make full disclosure. In the circumstance, we are of opinion that the risk note would still apply and the Court would have to decide whether misconduct on the part of the railway can be fairly inferred from the evidence produced by it. If the Court cannot fairly infer misconduct from the evidence adduced by the railway, the burden will be on the respondent to prove misconduct. That burden, if it arises, has clearly not been discharged for the respondent led no evidence on his behalf to discharge the burden. We, therefore, turn to the evidence to see whether from the evidence produced by the railway a fair inference of misconduct of the railway or its servants can be drawn on the facts of this caseWe are, however of opinion that the evidence of the guard to the effect that the seals were intact when he left Mughalsarai with the train is sufficient to show that the wagon was intact with the original seals when it left Mughalsarai and, therefore, it is not possible to draw any adverse inference from then of the watch and ward staff or the seal book of Mughalsarai in the circumstances of this case. It would have been a different matter if the respondent had asked for the production of the seal book as well as the evidence of the watch and ward staff. But the respondent contended itself merely with the suggestion that a theft might have taken place at Mughalsarai which was denied by the guard and did not ask the Court to order the railway to produce this evidence. In these circumstances in the face of the evidence of the guard and the fact that one seal on the southern side of the door was of the original station, we do not think that it is possible to draw an adverse inference against the railway on the ground that the evidence of the watch and ward staff and the seal book at Mughalsarai were not produced. The seal book would have been of value only if the wagon had been resealed at Mughalsarai but there is, in our opinion, no reason to think that the wagon had been resealed at Mughalsarai after the evidence of the guard that he found the seals and rivets intact when he left Mughalsarai with the train. On a careful consideration of the evidence, therefore, we are of opinion that a fair inference cannot be drawn from the evidence of the railway that there was misconduct by the railway or its servants at Mughalsarai during the time when the wagon was there. If the evidence of the guard is accepted, and we do accept it, there can be no doubt that the loss of the goods took place because of theft in the running train between Mughalsarai and Buxar. There is no evidence on behalf of the respondent to prove misconduct and as misconduct cannot fairly be inferred from the evidence produced on behalf of the railway, the suit must fail.
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State Of Uttar Pradesh & Anr Vs. Murari Lal & Brothers Ltd | Constitution S. 230 (3) would be applicable and defendant No. 3, who was apparently acting as an agent of the State Government, would become personally liable under the contract. Certain observations in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817 = (AIR 1954 SC 236 ) appear to lend support to this view. In that case also no formal contract had been entered into as required by Art. 299 (1) of the Constitution. The court observed that the Chairman of the Board of Administration had acted on behalf of the Union Government and his authority to contract in that capacity had not been questioned. Both sides acted in the belief and on the assumption that the goods were intended for Government purposes. The only flaw was that the contracts were not in proper form and because of this technical difficulty the principal could not have been sued. But that was just the kind of case that S. 230 (3) of the Indian Contract Act was designed to meet. The Government might not be bound by the contract but it was very difficult to say that such contracts were void and of no effect. There would be nothing to prevent ratification especially if that was for the benefit of the Government. However, in a subsequent decision in State of West Bengal v. M/s. B. K. Mondal and Sons, (1962) Supp 1 SCR 876 = (AIR 1962 SC 779 ) Gajendragadkar J., as he then was, delivering the majority judgment of the Constitution Bench said at page 885 with reference to the above observation;"The contract which is void may not be capable of ratification, but, since according to the Court the contract in question could have been ratified it was not void in that technical sense. That is all that was intended by the observation in question. We are not prepared to read the said observation or the final decision in the case of Chatturbhuj, 1954 SCR 817 = (AIR 1954 SC 236 ) as supporting the proposition that notwithstanding the failure of the parties to comply with Art. 299 (1) the contract would not be invalid. Indeed, Bose, J., has expressly stated that such a contract cannot be enforced against the Government and is not binding on it." The effect of the reference to S. 230 (3) of the Contract Act in Chatturbhujs case, 1954 SCR 817 = (AIR 1954 SC 236 ) was not directly considered but in a large number of subsequent decisions this court has taken the view that the provisions of Art. 299 (1) (corresponding to S. 175 (3) of the Government of India Act 1935) are mandatory and contain a prohibition against a contract being entered into except in the manner prescribed by the aforesaid provisions. We need only refer to the recent judgment in Mulamchand v. State of Madhya Pradesh, (1968) 3 SCR 214 = (AIR 1968 SC 1218 ). After referring to the earlier decisions, Ramaswami J. observed at page 221:"The principle is that the provisions of S. 175 (3) of the Government of India Act, 1935 or the corresponding provisions of Art. 299 (1) of the Constitution of India are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification in such a case." It is clear that the observations in Chatturbhujs case, 1954 SCR 817 = (AIR 1954 SC 236 ) have been regarded either as not laying down the law correctly or as being confined to facts of that case. The consensus of opinion is that a contract entered into without complying with the conditions laid down in Art. 299 (1) is void. If there is no contract in the eye of the law it is difficult to see how S. 230 (3) of the Contract Act would become applicable. 4. Although the High Court did not rely on S. 235 of the Contract Act the trial court had held that the defendants had no authority to enter into a contract on behalf of the State Government but still they purported to do so. There was an implied warranty of authority which had to be presumed and the plaintiff was entitled to receive compensation for breach of that warranty under S. 235 of the Contract Act. Section 235 provides that a person untruly representing himself to be the authorised agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing. The High Court did not base its decision on the above section. But it seems that S. 235 also can become applicable only if there is a valid contract in existence. This appears to follow from the words "if his alleged employer does not ratify his acts". The contract should thus be such that it is capable of ratification. In the present case where the contract was entered into without complying with the requirements of Art. 299 (1) of the Constitution the question of ratification could not arise because on the view which has already been followed such a contract is void and is not capable of ratification. However, we do not wish to express any final opinion on the applicability of S. 235 of the Contract Act to cases where the contract suffers from the infirmity that the requirements of Art. 299 (1) of the Constitution have not been complied with. The reason is that before the High Court no contention appears to have been advanced on behalf of the plaintiff based on S. 235 of the Contract Act nor has the plaintiffs counsel chosen to satisfy us that even if Section 230 (3) was not applicable the decree should be sustained on. the ground that relief could be granted by virtue of S. 235 of the Contract Act. | 1[ds]According to the High Court the entire transaction had been entered into by the defendant on behalf of the Government. As the State Government was not liable by virtue of Art. 299 of the Constitution S. 230 (3) would be applicable and defendant No. 3, who was apparently acting as an agent of the State Government, would become personally liable under the contract. Certain observations in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817 = (AIR 1954 SC 236 ) appear to lend support to this view. In that case also no formal contract had been entered into as required by Art. 299 (1) of the Constitution. The court observed that the Chairman of the Board of Administration had acted on behalf of the Union Government and his authority to contract in that capacity had not been questioned. Both sides acted in the belief and on the assumption that the goods were intended for Government purposes. The only flaw was that the contracts were not in proper form and because of this technical difficulty the principal could not have been sued. But that was just the kind of case that S. 230 (3) of the Indian Contract Act was designed to meet. The Government might not be bound by the contract but it was very difficult to say that such contracts were void and of no effect. There would be nothing to prevent ratification especially if that was for the benefit of the GovernmentIt is clear that the observations in Chatturbhujs case, 1954 SCR 817 = (AIR 1954 SC 236 ) have been regarded either as not laying down the law correctly or as being confined to facts of that case. The consensus of opinion is that a contract entered into without complying with the conditions laid down in Art. 299 (1) is void. If there is no contract in the eye of the law it is difficult to see how S. 230 (3) of the Contract Act would become applicable4. Although the High Court did not rely on S. 235 of the Contract Act the trial court had held that the defendants had no authority to enter into a contract on behalf of the State Government but still they purported to do so. There was an implied warranty of authority which had to be presumed and the plaintiff was entitled to receive compensation for breach of that warranty under S. 235 of the Contract Act. Section 235 provides that a person untruly representing himself to be the authorised agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing. The High Court did not base its decision on the above section. But it seems that S. 235 also can become applicable only if there is a valid contract in existence. This appears to follow from the words "if his alleged employer does not ratify his acts". The contract should thus be such that it is capable of ratification. In the present case where the contract was entered into without complying with the requirements of Art. 299 (1) of the Constitution the question of ratification could not arise because on the view which has already been followed such a contract is void and is not capable of ratification. However, we do not wish to express any final opinion on the applicability of S. 235 of the Contract Act to cases where the contract suffers from the infirmity that the requirements of Art. 299 (1) of the Constitution have not been complied with. The reason is that before the High Court no contention appears to have been advanced on behalf of the plaintiff based on S. 235 of the Contract Act nor has the plaintiffs counsel chosen to satisfy us that even if Section 230 (3) was not applicable the decree should be sustained on. the ground that relief could be granted by virtue of S. 235 of the Contract Act. | 1 | 1,695 | 749 | ### Instruction:
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Constitution S. 230 (3) would be applicable and defendant No. 3, who was apparently acting as an agent of the State Government, would become personally liable under the contract. Certain observations in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817 = (AIR 1954 SC 236 ) appear to lend support to this view. In that case also no formal contract had been entered into as required by Art. 299 (1) of the Constitution. The court observed that the Chairman of the Board of Administration had acted on behalf of the Union Government and his authority to contract in that capacity had not been questioned. Both sides acted in the belief and on the assumption that the goods were intended for Government purposes. The only flaw was that the contracts were not in proper form and because of this technical difficulty the principal could not have been sued. But that was just the kind of case that S. 230 (3) of the Indian Contract Act was designed to meet. The Government might not be bound by the contract but it was very difficult to say that such contracts were void and of no effect. There would be nothing to prevent ratification especially if that was for the benefit of the Government. However, in a subsequent decision in State of West Bengal v. M/s. B. K. Mondal and Sons, (1962) Supp 1 SCR 876 = (AIR 1962 SC 779 ) Gajendragadkar J., as he then was, delivering the majority judgment of the Constitution Bench said at page 885 with reference to the above observation;"The contract which is void may not be capable of ratification, but, since according to the Court the contract in question could have been ratified it was not void in that technical sense. That is all that was intended by the observation in question. We are not prepared to read the said observation or the final decision in the case of Chatturbhuj, 1954 SCR 817 = (AIR 1954 SC 236 ) as supporting the proposition that notwithstanding the failure of the parties to comply with Art. 299 (1) the contract would not be invalid. Indeed, Bose, J., has expressly stated that such a contract cannot be enforced against the Government and is not binding on it." The effect of the reference to S. 230 (3) of the Contract Act in Chatturbhujs case, 1954 SCR 817 = (AIR 1954 SC 236 ) was not directly considered but in a large number of subsequent decisions this court has taken the view that the provisions of Art. 299 (1) (corresponding to S. 175 (3) of the Government of India Act 1935) are mandatory and contain a prohibition against a contract being entered into except in the manner prescribed by the aforesaid provisions. We need only refer to the recent judgment in Mulamchand v. State of Madhya Pradesh, (1968) 3 SCR 214 = (AIR 1968 SC 1218 ). After referring to the earlier decisions, Ramaswami J. observed at page 221:"The principle is that the provisions of S. 175 (3) of the Government of India Act, 1935 or the corresponding provisions of Art. 299 (1) of the Constitution of India are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification in such a case." It is clear that the observations in Chatturbhujs case, 1954 SCR 817 = (AIR 1954 SC 236 ) have been regarded either as not laying down the law correctly or as being confined to facts of that case. The consensus of opinion is that a contract entered into without complying with the conditions laid down in Art. 299 (1) is void. If there is no contract in the eye of the law it is difficult to see how S. 230 (3) of the Contract Act would become applicable. 4. Although the High Court did not rely on S. 235 of the Contract Act the trial court had held that the defendants had no authority to enter into a contract on behalf of the State Government but still they purported to do so. There was an implied warranty of authority which had to be presumed and the plaintiff was entitled to receive compensation for breach of that warranty under S. 235 of the Contract Act. Section 235 provides that a person untruly representing himself to be the authorised agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing. The High Court did not base its decision on the above section. But it seems that S. 235 also can become applicable only if there is a valid contract in existence. This appears to follow from the words "if his alleged employer does not ratify his acts". The contract should thus be such that it is capable of ratification. In the present case where the contract was entered into without complying with the requirements of Art. 299 (1) of the Constitution the question of ratification could not arise because on the view which has already been followed such a contract is void and is not capable of ratification. However, we do not wish to express any final opinion on the applicability of S. 235 of the Contract Act to cases where the contract suffers from the infirmity that the requirements of Art. 299 (1) of the Constitution have not been complied with. The reason is that before the High Court no contention appears to have been advanced on behalf of the plaintiff based on S. 235 of the Contract Act nor has the plaintiffs counsel chosen to satisfy us that even if Section 230 (3) was not applicable the decree should be sustained on. the ground that relief could be granted by virtue of S. 235 of the Contract Act.
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### Explanation:
According to the High Court the entire transaction had been entered into by the defendant on behalf of the Government. As the State Government was not liable by virtue of Art. 299 of the Constitution S. 230 (3) would be applicable and defendant No. 3, who was apparently acting as an agent of the State Government, would become personally liable under the contract. Certain observations in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817 = (AIR 1954 SC 236 ) appear to lend support to this view. In that case also no formal contract had been entered into as required by Art. 299 (1) of the Constitution. The court observed that the Chairman of the Board of Administration had acted on behalf of the Union Government and his authority to contract in that capacity had not been questioned. Both sides acted in the belief and on the assumption that the goods were intended for Government purposes. The only flaw was that the contracts were not in proper form and because of this technical difficulty the principal could not have been sued. But that was just the kind of case that S. 230 (3) of the Indian Contract Act was designed to meet. The Government might not be bound by the contract but it was very difficult to say that such contracts were void and of no effect. There would be nothing to prevent ratification especially if that was for the benefit of the GovernmentIt is clear that the observations in Chatturbhujs case, 1954 SCR 817 = (AIR 1954 SC 236 ) have been regarded either as not laying down the law correctly or as being confined to facts of that case. The consensus of opinion is that a contract entered into without complying with the conditions laid down in Art. 299 (1) is void. If there is no contract in the eye of the law it is difficult to see how S. 230 (3) of the Contract Act would become applicable4. Although the High Court did not rely on S. 235 of the Contract Act the trial court had held that the defendants had no authority to enter into a contract on behalf of the State Government but still they purported to do so. There was an implied warranty of authority which had to be presumed and the plaintiff was entitled to receive compensation for breach of that warranty under S. 235 of the Contract Act. Section 235 provides that a person untruly representing himself to be the authorised agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing. The High Court did not base its decision on the above section. But it seems that S. 235 also can become applicable only if there is a valid contract in existence. This appears to follow from the words "if his alleged employer does not ratify his acts". The contract should thus be such that it is capable of ratification. In the present case where the contract was entered into without complying with the requirements of Art. 299 (1) of the Constitution the question of ratification could not arise because on the view which has already been followed such a contract is void and is not capable of ratification. However, we do not wish to express any final opinion on the applicability of S. 235 of the Contract Act to cases where the contract suffers from the infirmity that the requirements of Art. 299 (1) of the Constitution have not been complied with. The reason is that before the High Court no contention appears to have been advanced on behalf of the plaintiff based on S. 235 of the Contract Act nor has the plaintiffs counsel chosen to satisfy us that even if Section 230 (3) was not applicable the decree should be sustained on. the ground that relief could be granted by virtue of S. 235 of the Contract Act.
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GELUS RAM SAHU AND OTHERS Vs. DR. SURENDRA KUMAR SINGH AND OTHERS | in reality a clarificatory or declaratory provision or whether it is an amendment which is intended to change the law and which applies to future periods. (emphasis supplied) 26. The present case is one where except for the title, nothing contained therein indicates that the 2016 AICTE Notification was clarificatory in nature. The said Notification is framed in a question- answer style and merely restates what has already been made explicit in the 2010 AICTE Regulations. There seems to be no intent to alter the position of law but instead only to simplify what the AICTE had resolved through its original regulation. The 2016 AICTE Notification is a response to the doubts put forth to AICTE by the public. This is evident from the stand put forth by AICTE before us in its reply as well as during the course of hearing, namely, that there is no retrospective alteration in the qualification prescribed for the post of Principal. 27. Even if the 2016 AICTE Notification was clarificatory, it must be demonstrated that there was an ambiguity in the criteria for appointment to the posts of Principal, which needed to be remedied. Clarificatory notifications are distinct from amendatory notifications, and the former ought not to be a surreptitious tool of achieving the ends of the latter. If there exists no ambiguity, there arises no question of making use of a clarificatory notification. Hence, in the absence of any omission in the 2010 AICTE Regulations, the 2016 AICTE Notification despite being generally clarificatory must be held to have reiterated the existing position of law. 28. As discussed earlier, there were no two interpretations possible, and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in no uncertain terms, reprised the substance of 2010 AICTE Regulations. (iii) Whether retrospective changes in qualificatory requirements can affect the existing appointments? 29. Having held that the 2016 AICTE Notification is only complementary to what the AICTE had laid down in 2010, we may hasten to add that even in a situation where eligibility conditions are clarified from an anterior date, it may not be prudent to affect the appointments which had been made on the basis of a possible understanding of the eligibility conditions. 30. This Court in a range of decisions including TR Kapur v. State of Haryana 1986 Supp SCC 584, K Ravindranath Pai v. State of Karnataka 1995 Supp (2) SCC 246. and K Narayanan v. State of Karnataka 1994 Supp (1) SCC 44, has opined that vested rights cannot be impaired by enacting law with retrospective effect and that such statutory rules ought not to result in any discrimination or violation of constitutional rights. 31. The law on vested rights in service matters has exhaustively been elaborated in Railway Board v. Rangadhamiah, (1997) 6 SCC 623 wherein it has been stated: 20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. xxx 24. In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. ... 32. The aforestated principle would apply with equal force on the outcome of judicial review also and any new meaning given to a set of Rules/Regulations by the court of law would not ordinarily unsettle the settled appointments or conferment of other service benefits. We are, nevertheless, fully conscious of the legal position that appointment of a candidate who has erroneously secured public employment without fulfillment of minimum qualifications can always be annulled upon discovery of mistake. An appointment which is erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions. 33. There is no quarrel that the appellants herein do not possess Ph.D. However, they satisfied the requirement of having fifteen years experience (of which at least three years was as HOD) under the 2014 Chhattisgarh Rules and were found suitable for promotion by the Departmental Promotion Committee on the basis of various other material. They have also been found in possession of one of the eligibility criteria prescribed under the 2010 AICTE Regulations. We are, thus, of the considered opinion that the appellants appointments ought to remain undisturbed in any eventuality. 34. This takes us to the last objection taken by the High Court regarding conflict of interest. It is not in dispute that the State Government had inducted Appellant No. 1 in a Committee which submitted the draft service rules. It is, however, difficult to accept (nor has it been alleged) that the said appellant held a position through which he could influence the rule-making authority to exercise its powers under Proviso to Article 309 of the Constitution as per his wishes. He was holding too small a position that no inference of his dominance in the decision making process can be drawn. CONCLUSION | 1[ds]It is not a matter of dispute that AICTE is a creation of the said statute and the Regulations framed by it in exercise of the powers under the AICTE Act, 1987 carry the force of law. Indeed, it has been accepted by learned counsel for the parties that the 2010 AICTE Regulations would be the governing law, holding the field, and would bind all parties, including the State of Chhattisgarh15. A perusal of the qualification table makes it obvious that there can be multiple HODs for different departments (like Engineering, Architecture, Hotel Management, Pharmacy etc). In order to be HOD of any such Department, a prospective candidate needs to have both Masters and Bachelors degrees in the relevant field. Whereas candidates with a Ph.D must have had 5 years of experience in the allied field, others without it must have worked for 10 years. Phrased differently, Ph.D is not mandatory for HOD, and instead results in a 5- year relaxation in requisite work experience. In other words, Ph.D has been treated equivalent to 5 years teaching experience16. The interpretation as propounded by Respondent No. 1 would necessarily mean that there is no power with a State Government to make Ph.D optional, and that the higher of the two alternate criteria specified under the 2010 AICTE Regulations would be binding on all. We find such a plea is problematic on two counts. Firstly, it implies that Ph.D, specifically in Engineering only, would be compulsory for all principals. This creates an inconsistency as such a restriction would be in conflict with the nature of experience specified by the AICTE, like recognition of Experience Certificate granted by the Council for Architecture, which undoubtedly shows that there can be candidates other than from the field of Engineering eligible for appointment as Principal. Secondly, such a contention would be iniquitous in so far as it disenfranchises HODs from multiple recognised departments from applying to the posts of Principal, and arbitrarily restricts the zone of consideration to Engineering HODs only. Such seems to be neither the intent of the 2010 AICTE Regulations nor is it supported by any cogent reasoning17. We are also not inclined to read down the rules to omit the in Engineering part and only selectively insist upon a Ph.D, for in the present facts it would amount to crossing the fine line between interpretation and legislation. Hence, the only permissible way to read the AICTE criteria would be to lay emphasis on the phrase or and hence interpret Ph.D in Engineering as being optional and it being discretionary upon the adopting institution/State Government to specify either of the two criteria18. This does not mean that we have not given due weightage to Ph.D degree while interpreting the 2010 AICTE Regulations. A candidate with Ph.D degree can become HOD with merely 5 years of work experience, whereas candidates without Ph.D need to work for 10 years. Although, requirement of experience for becoming Principal is 10 years uniformly, it comes with a stipulation that 3 years must have been spent as HOD or in an equivalent position. Thus, a candidate without Ph.D would compulsorily need 10 years experience for HOD and would need to work further 3 years in that capacity, i.e. for minimum of 13 years experience to become Principal. Those with a Ph.D on the other hand, can apply for principal-ship within 10 years, as they would have become eligible for HOD with 5 years experience, and could have completed the further 3 years term as HOD in the interregnum. Hence, hypothetically, there is a 5-year eligibility relaxation granted under AICTE Regulations to those with a Ph.D19. The afore-stated advantage is only further exacerbated under the 2014 Chhattisgarh Rules, where those without a Ph.D need 15 years experience and those with such higher degree, can be appointed within 10 years20. Additionally, construction of 2010 AICTE Regulations this way, avoids conflict with the 2014 Chhattisgarh Rules, as extracted above. Even otherwise, given a choice between two interpretations, one which restricts the pool of applicants for public employment and another which enfranchises many, it would befit the spirit of Article 16 that the expansive interpretation is adopted. Such a recourse would both provide opportunities to a wider meritorious class, will increase competition and concomitantly ensure meritorious selections(ii) Does the 2016 AICTE Notification retrospectively clarify eligibility conditions for appointment as Principal?24. After going through the contents of the 2016 AICTE Notification in its entirety, we are of the opinion that the conclusion drawn by the High Court is erroneous for a variety of reasons. At the very outset, no attempt appears to have been made to determine the nature of the 2016 AICTE Notification, as to whether it supplements an obvious omission in the 2010 AICTE Regulations and most importantly its effect on those who have meanwhile acquired vested rights25. Clarificatory legislations are an exception to the general rule of presuming prospective application of laws, unless given retrospective effect either expressly or by necessary implication. In order to attract this exception, mere mention in the title or in any provision that the legislation is clarificatory would not suffice26. The present case is one where except for the title, nothing contained therein indicates that the 2016 AICTE Notification was clarificatory in nature. The said Notification is framed in a question- answer style and merely restates what has already been made explicit in the 2010 AICTE Regulations. There seems to be no intent to alter the position of law but instead only to simplify what the AICTE had resolved through its original regulation. The 2016 AICTE Notification is a response to the doubts put forth to AICTE by the public. This is evident from the stand put forth by AICTE before us in its reply as well as during the course of hearing, namely, that there is no retrospective alteration in the qualification prescribed for the post of Principal27. Even if the 2016 AICTE Notification was clarificatory, it must be demonstrated that there was an ambiguity in the criteria for appointment to the posts of Principal, which needed to be remedied. Clarificatory notifications are distinct from amendatory notifications, and the former ought not to be a surreptitious tool of achieving the ends of the latter. If there exists no ambiguity, there arises no question of making use of a clarificatory notification. Hence, in the absence of any omission in the 2010 AICTE Regulations, the 2016 AICTE Notification despite being generally clarificatory must be held to have reiterated the existing position of law28. As discussed earlier, there were no two interpretations possible, and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in no uncertain terms, reprised the substance of 2010 AICTE Regulations(iii) Whether retrospective changes in qualificatory requirements can affect the existing appointments?29. Having held that the 2016 AICTE Notification is only complementary to what the AICTE had laid down in 2010, we may hasten to add that even in a situation where eligibility conditions are clarified from an anterior date, it may not be prudent to affect the appointments which had been made on the basis of a possible understanding of the eligibility conditions32. The aforestated principle would apply with equal force on the outcome of judicial review also and any new meaning given to a set of Rules/Regulations by the court of law would not ordinarily unsettle the settled appointments or conferment of other service benefits. We are, nevertheless, fully conscious of the legal position that appointment of a candidate who has erroneously secured public employment without fulfillment of minimum qualifications can always be annulled upon discovery of mistake. An appointment which is erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions33. There is no quarrel that the appellants herein do not possess Ph.D. However, they satisfied the requirement of having fifteen years experience (of which at least three years was as HOD) under the 2014 Chhattisgarh Rules and were found suitable for promotion by the Departmental Promotion Committee on the basis of various other material. They have also been found in possession of one of the eligibility criteria prescribed under the 2010 AICTE Regulations. We are, thus, of the considered opinion that the appellants appointments ought to remain undisturbed in any eventuality34. This takes us to the last objection taken by the High Court regarding conflict of interest. It is not in dispute that the State Government had inducted Appellant No. 1 in a Committee which submitted the draft service rules. It is, however, difficult to accept (nor has it been alleged) that the said appellant held a position through which he could influence the rule-making authority to exercise its powers under Proviso to Article 309 of the Constitution as per his wishes. He was holding too small a position that no inference of his dominance in the decision making process can be drawn. | 1 | 3,970 | 1,633 | ### 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:
in reality a clarificatory or declaratory provision or whether it is an amendment which is intended to change the law and which applies to future periods. (emphasis supplied) 26. The present case is one where except for the title, nothing contained therein indicates that the 2016 AICTE Notification was clarificatory in nature. The said Notification is framed in a question- answer style and merely restates what has already been made explicit in the 2010 AICTE Regulations. There seems to be no intent to alter the position of law but instead only to simplify what the AICTE had resolved through its original regulation. The 2016 AICTE Notification is a response to the doubts put forth to AICTE by the public. This is evident from the stand put forth by AICTE before us in its reply as well as during the course of hearing, namely, that there is no retrospective alteration in the qualification prescribed for the post of Principal. 27. Even if the 2016 AICTE Notification was clarificatory, it must be demonstrated that there was an ambiguity in the criteria for appointment to the posts of Principal, which needed to be remedied. Clarificatory notifications are distinct from amendatory notifications, and the former ought not to be a surreptitious tool of achieving the ends of the latter. If there exists no ambiguity, there arises no question of making use of a clarificatory notification. Hence, in the absence of any omission in the 2010 AICTE Regulations, the 2016 AICTE Notification despite being generally clarificatory must be held to have reiterated the existing position of law. 28. As discussed earlier, there were no two interpretations possible, and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in no uncertain terms, reprised the substance of 2010 AICTE Regulations. (iii) Whether retrospective changes in qualificatory requirements can affect the existing appointments? 29. Having held that the 2016 AICTE Notification is only complementary to what the AICTE had laid down in 2010, we may hasten to add that even in a situation where eligibility conditions are clarified from an anterior date, it may not be prudent to affect the appointments which had been made on the basis of a possible understanding of the eligibility conditions. 30. This Court in a range of decisions including TR Kapur v. State of Haryana 1986 Supp SCC 584, K Ravindranath Pai v. State of Karnataka 1995 Supp (2) SCC 246. and K Narayanan v. State of Karnataka 1994 Supp (1) SCC 44, has opined that vested rights cannot be impaired by enacting law with retrospective effect and that such statutory rules ought not to result in any discrimination or violation of constitutional rights. 31. The law on vested rights in service matters has exhaustively been elaborated in Railway Board v. Rangadhamiah, (1997) 6 SCC 623 wherein it has been stated: 20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. xxx 24. In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. ... 32. The aforestated principle would apply with equal force on the outcome of judicial review also and any new meaning given to a set of Rules/Regulations by the court of law would not ordinarily unsettle the settled appointments or conferment of other service benefits. We are, nevertheless, fully conscious of the legal position that appointment of a candidate who has erroneously secured public employment without fulfillment of minimum qualifications can always be annulled upon discovery of mistake. An appointment which is erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions. 33. There is no quarrel that the appellants herein do not possess Ph.D. However, they satisfied the requirement of having fifteen years experience (of which at least three years was as HOD) under the 2014 Chhattisgarh Rules and were found suitable for promotion by the Departmental Promotion Committee on the basis of various other material. They have also been found in possession of one of the eligibility criteria prescribed under the 2010 AICTE Regulations. We are, thus, of the considered opinion that the appellants appointments ought to remain undisturbed in any eventuality. 34. This takes us to the last objection taken by the High Court regarding conflict of interest. It is not in dispute that the State Government had inducted Appellant No. 1 in a Committee which submitted the draft service rules. It is, however, difficult to accept (nor has it been alleged) that the said appellant held a position through which he could influence the rule-making authority to exercise its powers under Proviso to Article 309 of the Constitution as per his wishes. He was holding too small a position that no inference of his dominance in the decision making process can be drawn. CONCLUSION
### Response:
1
### Explanation:
becoming Principal is 10 years uniformly, it comes with a stipulation that 3 years must have been spent as HOD or in an equivalent position. Thus, a candidate without Ph.D would compulsorily need 10 years experience for HOD and would need to work further 3 years in that capacity, i.e. for minimum of 13 years experience to become Principal. Those with a Ph.D on the other hand, can apply for principal-ship within 10 years, as they would have become eligible for HOD with 5 years experience, and could have completed the further 3 years term as HOD in the interregnum. Hence, hypothetically, there is a 5-year eligibility relaxation granted under AICTE Regulations to those with a Ph.D19. The afore-stated advantage is only further exacerbated under the 2014 Chhattisgarh Rules, where those without a Ph.D need 15 years experience and those with such higher degree, can be appointed within 10 years20. Additionally, construction of 2010 AICTE Regulations this way, avoids conflict with the 2014 Chhattisgarh Rules, as extracted above. Even otherwise, given a choice between two interpretations, one which restricts the pool of applicants for public employment and another which enfranchises many, it would befit the spirit of Article 16 that the expansive interpretation is adopted. Such a recourse would both provide opportunities to a wider meritorious class, will increase competition and concomitantly ensure meritorious selections(ii) Does the 2016 AICTE Notification retrospectively clarify eligibility conditions for appointment as Principal?24. After going through the contents of the 2016 AICTE Notification in its entirety, we are of the opinion that the conclusion drawn by the High Court is erroneous for a variety of reasons. At the very outset, no attempt appears to have been made to determine the nature of the 2016 AICTE Notification, as to whether it supplements an obvious omission in the 2010 AICTE Regulations and most importantly its effect on those who have meanwhile acquired vested rights25. Clarificatory legislations are an exception to the general rule of presuming prospective application of laws, unless given retrospective effect either expressly or by necessary implication. In order to attract this exception, mere mention in the title or in any provision that the legislation is clarificatory would not suffice26. The present case is one where except for the title, nothing contained therein indicates that the 2016 AICTE Notification was clarificatory in nature. The said Notification is framed in a question- answer style and merely restates what has already been made explicit in the 2010 AICTE Regulations. There seems to be no intent to alter the position of law but instead only to simplify what the AICTE had resolved through its original regulation. The 2016 AICTE Notification is a response to the doubts put forth to AICTE by the public. This is evident from the stand put forth by AICTE before us in its reply as well as during the course of hearing, namely, that there is no retrospective alteration in the qualification prescribed for the post of Principal27. Even if the 2016 AICTE Notification was clarificatory, it must be demonstrated that there was an ambiguity in the criteria for appointment to the posts of Principal, which needed to be remedied. Clarificatory notifications are distinct from amendatory notifications, and the former ought not to be a surreptitious tool of achieving the ends of the latter. If there exists no ambiguity, there arises no question of making use of a clarificatory notification. Hence, in the absence of any omission in the 2010 AICTE Regulations, the 2016 AICTE Notification despite being generally clarificatory must be held to have reiterated the existing position of law28. As discussed earlier, there were no two interpretations possible, and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in no uncertain terms, reprised the substance of 2010 AICTE Regulations(iii) Whether retrospective changes in qualificatory requirements can affect the existing appointments?29. Having held that the 2016 AICTE Notification is only complementary to what the AICTE had laid down in 2010, we may hasten to add that even in a situation where eligibility conditions are clarified from an anterior date, it may not be prudent to affect the appointments which had been made on the basis of a possible understanding of the eligibility conditions32. The aforestated principle would apply with equal force on the outcome of judicial review also and any new meaning given to a set of Rules/Regulations by the court of law would not ordinarily unsettle the settled appointments or conferment of other service benefits. We are, nevertheless, fully conscious of the legal position that appointment of a candidate who has erroneously secured public employment without fulfillment of minimum qualifications can always be annulled upon discovery of mistake. An appointment which is erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions33. There is no quarrel that the appellants herein do not possess Ph.D. However, they satisfied the requirement of having fifteen years experience (of which at least three years was as HOD) under the 2014 Chhattisgarh Rules and were found suitable for promotion by the Departmental Promotion Committee on the basis of various other material. They have also been found in possession of one of the eligibility criteria prescribed under the 2010 AICTE Regulations. We are, thus, of the considered opinion that the appellants appointments ought to remain undisturbed in any eventuality34. This takes us to the last objection taken by the High Court regarding conflict of interest. It is not in dispute that the State Government had inducted Appellant No. 1 in a Committee which submitted the draft service rules. It is, however, difficult to accept (nor has it been alleged) that the said appellant held a position through which he could influence the rule-making authority to exercise its powers under Proviso to Article 309 of the Constitution as per his wishes. He was holding too small a position that no inference of his dominance in the decision making process can be drawn.
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Management, Ghaziabad Engineering Co (P) Ltd Vs. Its Workmen | makes a departure from the normal rule which is adopted in industrial awards. In British Paints (India) Ltd. v. Its Workmen, (1966) 2 SCR 523 = (AIR 1966 SC 732 ) this Court while introducing a gratuity scheme for the first time in the concern directed that the amount of gratuity shall be related to the basic wage or salary and not to the consolidated wage including dearness allowance. A similar order was made in May and Baker (India) Ltd. v. Their Workmen, (1961) 2 Lab LJ 94=(AIR 1967 SC 678 ). It is true that in British Indian Corporation v. The Workmen, (1965) 10 Fax LR 244 (SC), an award made by the Tribunal fixing quantum of gratuity on gross salary i.e., basic wage plus dearness allowance was upheld by this Court. The Court affirmed that the usual pattern in fixing the gratuity is to relate it to the basic wage, but refused to interfere with the order because the practice in that concern was to fix gratuity on the consolidated wage.8. Similarly, in Hindustan Antibiotics Ltd. v Their Workmen, (1967) 1 Lab. LJ 114=(AIR 1967 SC 948 ), the Tribunal directed the employer to pay gratuity at the rate of one half of wages for each month including dearness allowance but excluding house rent and all other allowances for each completed year of service subject to a maximum of wages for ten months. In rejecting the claim of the employers for relating gratuity to the basic wage, this Court observed:"If the industry is a flourishing one, we do not see any reason why the labour shall not have the benefit of both the schemes i.e., the employees, provident fund and the gratuity scheme. Gratuity is an additional form of relief for the workmen to fall back upon. If the industry can bear the burden, there is no reason why he shall not be entitled to both the retirement benefits. The Tribunal considered all the relevant circumstances the stability of the concern, the profits made by it in the past, its future prospects and its capacity and came to the conclusion that, in the concern in question, the labour should be provided with a gratuity scheme in addition to that of a provident fund scheme. There was no justification to disturb this conclusion."9. In The Remington Rand of India Ltd. v. The Workmen C. A. 2105 of 1967, D/- 11-8-1967 (SC) this Court declined to interfere with the order of the Tribunal awarding gratuity related to the consolidated wage including dearness allowance "in view of the flourishing nature of the concern, the enormous profits it was making, the reserves it had built up as also in view of the fact that it was paying gratuity to executives on the basis of consolidated wages." In Delhi Cloth and General Mills Co., Ltd. v. The Workmen C. A. No. 2168 of 1967, D/- 27-9-1968 (SC) this Court had to consider whether gratuity payable to workmen in the textile industry in the Delhi region should be related to the consolidated wage. After referring to the decisions which were brought to the notice of the Court, it was observed that:"it is not easy to extract any principle from these cases: as precedents they are conflicting.....The Tribunal has failed to take into account the prevailing pattern in the textile industry all over the country...It is a countrywide industry: and in that industry except in one case to be presently noticed, gratuity has never been granted on the basis of consolidated wages."10. The Court after referring to the schemes framed in respect of the industries in Bombay and Ahmedabad and other industries concluded that"determination of gratuity is not based on any definite rules. In each case it must depend upon the prosperity of the concern, needs of the workmen and the prevailing economic conditions examined in the light of the auxiliary benefits which the workmen may get on determination of employment."11. There is no clear evidence on the record, and no precedents have been brought to our notice, to justify a departure from the normal rule that the quantum of gratuity is related not to the consolidated wage packet but to the basic wage. A departure may be made from the normal rule, if there be some strong evidence or precedent in the industry. or conduct of the employer or other exception circumstances to justify that course. In the absence of such evidence, we are of the view that gratuity should be related to the basic wage and not to the consolidated wage packet. In the present case it is found that the financial position of the Company is sound but there is no evidence that the company is "making abnormally high profits" nor is there any evidence that in its sister concerns or in other engineering concerns in the region there is a practice of awarding gratuity related to consolidated wages.12. It was urged on behalf of the company that even though the workmen had, in the claim made by them, demanded a scheme of gratuity benefit at the rate of 15 days wages for each year of service in case of death or retirement on attaining the age of superanuation or on becoming mentally or physically unfit for further service, the Tribunal had awarded gratuity at the rate of one months wages for each year of service subject to a maximum of 15 months wages. But the claim was made on the footing that the wages were to include dearness allowance. When that claim is not accepted, we cannot hold theworkmen bound by the multiples.13. We make no modification in cl. (1) of the scheme. We modify the scheme in so far as it relates to the dearness allowance and direct that for the last sentence of the gratuity scheme the following shall be substituted."The word wages in the scheme shall mean basic salary or emoluments excluding dearness allowance and other allowances and benefits payable to the workman which he had last drawn". | 0[ds]6. The Tribunal has awarded dearness allowance at the flat rate of Rs. 3 for every 10 point rise in the cost of Consumer Price Index. The rise is not related to the quantum of basic wage or consolidated wage. It is a flat uniform rate applicable to every workman.The Tribunal was of the view that the allocation between the basic wage and the dearness allowance was "not fair", but for the purpose of the present reference, the question is academic because dearness allowance is not related to the quantum of salary that the workmen receive. The argument that the rise will operate to give to the workmen besides the additional dearness allowance, percentage increase in dearness allowance already paid as part of the consolidated wage cannot be accepted. We do not therefore see any reason to interfere with the order passed by the Tribunal with regard to the dearness allowance "at the rate of Rs. 3 for every 10 point rise in the Consumer Price Index".The Court after referring to the schemes framed in respect of the industries in Bombay and Ahmedabad and other industries concluded that"determination of gratuity is not based on any definite rules. In each case it must depend upon the prosperity of the concern, needs of the workmen and the prevailing economic conditions examined in the light of the auxiliary benefits which the workmen may get on determination of. There is no clear evidence on the record, and no precedents have been brought to our notice, to justify a departure from the normal rule that the quantum of gratuity is related not to the consolidated wage packet but to the basic wage. A departure may be made from the normal rule, if there be some strong evidence or precedent in the industry. or conduct of the employer or other exception circumstances to justify that course. In the absence of such evidence, we are of the view that gratuity should be related to the basic wage and not to the consolidated wage packet. In the present case it is found that the financial position of the Company is sound but there is no evidence that the company is "making abnormally high profits" nor is there any evidence that in its sister concerns or in other engineering concerns in the region there is a practice of awarding gratuity related to consolidated wages.We make no modification in cl. (1) of the scheme. We modify the scheme in so far as it relates to the dearness allowance and direct that for the last sentence of the gratuity scheme the following shall beword wages in the scheme shall mean basic salary or emoluments excluding dearness allowance and other allowances and benefits payable to the workman which he had last drawn". | 0 | 2,354 | 501 | ### Instruction:
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makes a departure from the normal rule which is adopted in industrial awards. In British Paints (India) Ltd. v. Its Workmen, (1966) 2 SCR 523 = (AIR 1966 SC 732 ) this Court while introducing a gratuity scheme for the first time in the concern directed that the amount of gratuity shall be related to the basic wage or salary and not to the consolidated wage including dearness allowance. A similar order was made in May and Baker (India) Ltd. v. Their Workmen, (1961) 2 Lab LJ 94=(AIR 1967 SC 678 ). It is true that in British Indian Corporation v. The Workmen, (1965) 10 Fax LR 244 (SC), an award made by the Tribunal fixing quantum of gratuity on gross salary i.e., basic wage plus dearness allowance was upheld by this Court. The Court affirmed that the usual pattern in fixing the gratuity is to relate it to the basic wage, but refused to interfere with the order because the practice in that concern was to fix gratuity on the consolidated wage.8. Similarly, in Hindustan Antibiotics Ltd. v Their Workmen, (1967) 1 Lab. LJ 114=(AIR 1967 SC 948 ), the Tribunal directed the employer to pay gratuity at the rate of one half of wages for each month including dearness allowance but excluding house rent and all other allowances for each completed year of service subject to a maximum of wages for ten months. In rejecting the claim of the employers for relating gratuity to the basic wage, this Court observed:"If the industry is a flourishing one, we do not see any reason why the labour shall not have the benefit of both the schemes i.e., the employees, provident fund and the gratuity scheme. Gratuity is an additional form of relief for the workmen to fall back upon. If the industry can bear the burden, there is no reason why he shall not be entitled to both the retirement benefits. The Tribunal considered all the relevant circumstances the stability of the concern, the profits made by it in the past, its future prospects and its capacity and came to the conclusion that, in the concern in question, the labour should be provided with a gratuity scheme in addition to that of a provident fund scheme. There was no justification to disturb this conclusion."9. In The Remington Rand of India Ltd. v. The Workmen C. A. 2105 of 1967, D/- 11-8-1967 (SC) this Court declined to interfere with the order of the Tribunal awarding gratuity related to the consolidated wage including dearness allowance "in view of the flourishing nature of the concern, the enormous profits it was making, the reserves it had built up as also in view of the fact that it was paying gratuity to executives on the basis of consolidated wages." In Delhi Cloth and General Mills Co., Ltd. v. The Workmen C. A. No. 2168 of 1967, D/- 27-9-1968 (SC) this Court had to consider whether gratuity payable to workmen in the textile industry in the Delhi region should be related to the consolidated wage. After referring to the decisions which were brought to the notice of the Court, it was observed that:"it is not easy to extract any principle from these cases: as precedents they are conflicting.....The Tribunal has failed to take into account the prevailing pattern in the textile industry all over the country...It is a countrywide industry: and in that industry except in one case to be presently noticed, gratuity has never been granted on the basis of consolidated wages."10. The Court after referring to the schemes framed in respect of the industries in Bombay and Ahmedabad and other industries concluded that"determination of gratuity is not based on any definite rules. In each case it must depend upon the prosperity of the concern, needs of the workmen and the prevailing economic conditions examined in the light of the auxiliary benefits which the workmen may get on determination of employment."11. There is no clear evidence on the record, and no precedents have been brought to our notice, to justify a departure from the normal rule that the quantum of gratuity is related not to the consolidated wage packet but to the basic wage. A departure may be made from the normal rule, if there be some strong evidence or precedent in the industry. or conduct of the employer or other exception circumstances to justify that course. In the absence of such evidence, we are of the view that gratuity should be related to the basic wage and not to the consolidated wage packet. In the present case it is found that the financial position of the Company is sound but there is no evidence that the company is "making abnormally high profits" nor is there any evidence that in its sister concerns or in other engineering concerns in the region there is a practice of awarding gratuity related to consolidated wages.12. It was urged on behalf of the company that even though the workmen had, in the claim made by them, demanded a scheme of gratuity benefit at the rate of 15 days wages for each year of service in case of death or retirement on attaining the age of superanuation or on becoming mentally or physically unfit for further service, the Tribunal had awarded gratuity at the rate of one months wages for each year of service subject to a maximum of 15 months wages. But the claim was made on the footing that the wages were to include dearness allowance. When that claim is not accepted, we cannot hold theworkmen bound by the multiples.13. We make no modification in cl. (1) of the scheme. We modify the scheme in so far as it relates to the dearness allowance and direct that for the last sentence of the gratuity scheme the following shall be substituted."The word wages in the scheme shall mean basic salary or emoluments excluding dearness allowance and other allowances and benefits payable to the workman which he had last drawn".
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6. The Tribunal has awarded dearness allowance at the flat rate of Rs. 3 for every 10 point rise in the cost of Consumer Price Index. The rise is not related to the quantum of basic wage or consolidated wage. It is a flat uniform rate applicable to every workman.The Tribunal was of the view that the allocation between the basic wage and the dearness allowance was "not fair", but for the purpose of the present reference, the question is academic because dearness allowance is not related to the quantum of salary that the workmen receive. The argument that the rise will operate to give to the workmen besides the additional dearness allowance, percentage increase in dearness allowance already paid as part of the consolidated wage cannot be accepted. We do not therefore see any reason to interfere with the order passed by the Tribunal with regard to the dearness allowance "at the rate of Rs. 3 for every 10 point rise in the Consumer Price Index".The Court after referring to the schemes framed in respect of the industries in Bombay and Ahmedabad and other industries concluded that"determination of gratuity is not based on any definite rules. In each case it must depend upon the prosperity of the concern, needs of the workmen and the prevailing economic conditions examined in the light of the auxiliary benefits which the workmen may get on determination of. There is no clear evidence on the record, and no precedents have been brought to our notice, to justify a departure from the normal rule that the quantum of gratuity is related not to the consolidated wage packet but to the basic wage. A departure may be made from the normal rule, if there be some strong evidence or precedent in the industry. or conduct of the employer or other exception circumstances to justify that course. In the absence of such evidence, we are of the view that gratuity should be related to the basic wage and not to the consolidated wage packet. In the present case it is found that the financial position of the Company is sound but there is no evidence that the company is "making abnormally high profits" nor is there any evidence that in its sister concerns or in other engineering concerns in the region there is a practice of awarding gratuity related to consolidated wages.We make no modification in cl. (1) of the scheme. We modify the scheme in so far as it relates to the dearness allowance and direct that for the last sentence of the gratuity scheme the following shall beword wages in the scheme shall mean basic salary or emoluments excluding dearness allowance and other allowances and benefits payable to the workman which he had last drawn".
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The Goa Foundation Vs. M/s. Sesa Sterlite Ltd. & Others | For no apparent reason and after EIA 2006, the issue of the validity of an environmental clearance granted under EIA 1994 was raked up and a notification was issued by the MoEF on 21st August, 2013 in which it was noted that the notification of 4th May, 1994 provided that “the clearance granted shall be valid for a period of five years from commencement of the construction or operation”. Another notification of 21st August, 2013 goes on to say that the intent of the Central Government has been and has always been that the validity of the environmental clearance is for five years “for” commencement of the construction or operation and not that the environment clearance is only for five years “from” the commencement of construction or operation. Therefore, the Central Government clarified in the notification of 21st August, 2013 that the expression “for a period of five years” shall mean “for a period of five years for commencement of the construction or operation and not five years from commencement of the construction or operation.” We do not see how this controversy really arises or its relevance to the present case, but we refer to it since submissions were made to explain the distinction between “for” five years and “from” five years in respect of the validity of an environmental clearance.145. It is perhaps sought to be contended that if environmental clearance is granted and mining operations commence within the five year period, then the environmental clearance under EIA 1994 is valid till the project or the mining lease period is over. We cannot see how such an inference can be drawn. Moreover, this submission overlooks the decisions in M.C. Mehta and Common Cause which accept the view that the validity of an environmental clearance granted under EIA 1994 is only five years as also the view that a valid environmental clearance is necessary for the renewal of a mining lease. No notification of the MoEF can overrule decisions of this Court. As far as EIA 2006 is concerned this submission is academic and not relevant since paragraph 9 of EIA 2006 provides that the environmental clearance would be valid for the estimated project life subject to a maximum of 30 years.146. Learned counsel for the mining lease holders also relied upon a decision of the Delhi High Court in S. N. Mohanty v. Union of India (2012 SCC OnLine Del 4000)to contend that notwithstanding a notification issued by MoEF on 4th April, 2011 it was not obligatory for a mining lease holder to obtain a fresh environmental clearance at the time of renewal of a lease, if the environmental clearance was subsisting. In that case, the petitioner had an environmental clearance obtained under EIA 2006 on 15th January, 2007 and the first renewal of the mining lease was due on 2nd April, 2012. In that context, it was submitted that it was not necessary for the petitioner to obtain environmental clearance for renewal of the mining lease. The Delhi High Court took the view that: “… if a person has a valid and subsisting EC [environmental clearance] at the point of time he seeks a renewal of the mining lease, he would still be required to obtain another EC prior to the grant of renewal by the respondents. That, in our view, is not the intent and purport of the Supreme Court directions in M.C. Mehta.” This question does not arise in the context of EIA 1994.147. One final submission before us was that these cases be referred to a Bench of 9 learned judges since the constitutional validity of the Goa, Daman & Diu Mining Concessions (Abolition & Declaration of Mining Leases) Act, 1987 was under challenge in some cases and the decision in those cases would perhaps render the present proceedings infructuous. In some of these pending cases, this Court had passed an order on 29th October, 2002 to await the decision of 9 learned judges in Property Owners’ Association v. State of Maharashtra. (2013) 7 SCC 522 dated 20th February, 2002)We are not at all inclined to accept this request and mention it only to reject it. Correctness of the decision of the High Court in Lithoferro 148. As far as the SLPs are concerned (SLP (C) No. 32138 of 2015 and SLP (C) Nos. 32699-32727 of 2015) we set aside the judgment and order dated 13th August, 2014 of the High Court in view of our conclusion that the State of Goa was required to grant fresh licences in terms of the decision of this Court in Goa Foundation. The High Court proceeded on the erroneous basis that it could direct the State of Goa to grant a second renewal of the mining leases notwithstanding the direction in Goa Foundation. Conclusions and directions 149. In view of our discussion, we arrive at the following conclusions:1. As a result of the decision, declaration and directions of this Court in Goa Foundation, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders.2. The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.3. The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not in the interests of mineral development. The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act. The second renewal of the mining leases granted by the State of Goa is liable to be set aside and is quashed.4. The Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012. | 1[ds]41. The Court was quite obviously aware that it was concerned, inter alia, with the second renewal of mining leases and yet it chose to recount the factual situation, make a declaration and pass a direction without adverting to the possibility of a second renewal of a mining lease. The Court was also conscious that the mining lease holders had carried out indiscriminate and illegal mining for about five years (from November 2007 to September 2012) and had made profits out of the illegal mining. The Court, in our opinion, was rather charitable in not penalizing the mining lease holders for the illegal mining carried out by them. But be that as it may, quite clearly, the sequence of events from September 2012 onwards, the appointment of a Monitoring Committee to dispose of the illegally mined ore, the declaration and direction unmistakably point to the intention of the Court to end the sordid chapter of illegal mining by the lease holders and start on a clean slate. Viewed in this perspective, we have no doubt that the Court really did intend the State of Goa to consider the grant of fresh leases in accordance with law.Unfortunately, the State of Goa was overtaken by events in that the High Court delivered its judgment in Lithoferro on 13th August, 2014 and while doing so, it misunderstood or incorrectly appreciated the decision of this Court in Goa Foundation and disagreed with the view of the State of Goa. While this Court had required the State of Goa to grant fresh mining leases and the State of Goa was willing to comply with this direction, the High Court instead directed it to execute mining leases under Section 8(3) of the MMDR Act in respect of those who had paid the renewal fees or stamp duty. The High Court also directed the State of Goa to decide their pending second renewal applications within a period of three months keeping in mind the provisions of Section 8(3) of the MMDR Act (presumably after paying the renewal fees or stamp duty in terms of the Government order of 21st February, 2013). The understanding by the High Court of the decision of this Court in Goa Foundation is totally incorrect.There is no doubt that the renewal of a lease is virtually the same as the grant of a fresh lease but a converse direction to grant a mining lease cannot be understood to mean granting a renewal of a mining lease. Obviously, the grant of a fresh lease is not the same as the renewal of a lease and when the Court in Goa Foundation required the State of Goa to grant a fresh lease, it did not require the State to renew the existing (expired) lease. The Court could have explicitly declared and directed the State of Goa to grant a second renewal of the mining leases rather than to say it in a roundabout manner that it should do so by granting a fresh lease equivalent to a renewal. We simply cannot accept the submissions made by learned counsel for the mining lease holders in this regard.Learned counsel for the mining lease holders contended that the very same learned judges that decided Goa Foundation permitted the State Government in Common Cause v. Union of India (2014) 14 SCC 155 )to consider granting a second renewal of mining leases under Section 8(3) of the MMDR Act. Therefore the requirement in Goa Foundation for the grant of? must be understood in a manner similar to what was directed in Common Cause.We are unable to accept this contention. The direction given in Common Cause was an interim direction and not a final direction as in Goa Foundation. Moreover, the facts in both cases are not at all similar so as to warrant a similar order being passed or understood. Finally, the fact that the same set of learned judges thought it fit to direct the grant of „fresh leases? in one set of cases and thought it fit to direct consideration of a „second renewal? in another set of cases indicates that the learned judges were aware of the difference in directions. Therefore when the leaned judges directed the grant of „fresh leases? in Goa Foundation it was a deliberate and conscious decision distinct and different from granting a second renewal of expired mining leases.58. In our opinion, the direction in Goa Foundation is quite clear and instead of considering the grant of a second renewal of the mining leases, the State of Goa was required to consider the grant of fresh mining leases. Therefore the decision of the State of Goa to grant a second renewal of the mining leases is erroneous, contrary to the decision in Goa Foundation and must be and is quashed.As mentioned in the Grant of Mining Leases Policy there were several options available to the State of Goa. It took the view that all its options were foreclosed post the decision of the High Court and it was obliged to grant a second renewal of the mining leases. We have already held that this was not so and that the decision to grant a second renewal of the mining leases was erroneous and fresh leases were required to be granted in accordance with the decision in Goa Foundation. In view of our conclusion, the discussion on whetherthe State of Goa should have auctioned the miningleases through a process of competitive bidding is now rendered academic. However, since detailed submissions were made by learned counsel on both sides, including by the learned Additional Solicitor General, we propose to express our views on the subject.It is therefore more than explicit that there is no constitutional requirement (let alone a mandate) for allocation of natural resources through the auction method (other than spectrum) but at the same time the auction process should not be given awithout any justification – the decision to give ais judicially reviewable though the scope of judicial review might be rather restricted. The melting pot of allocation of a natural resource, a social or welfare purpose and adherence to the requirements of Articles 14 and 39(b) of the Constitution in matters of policy was a great leap forward fashioned by the Constitution Bench. Consequently, while there is no mandate, constitutional or otherwise, that natural resource allocation must be only by auction, it is certainlyThere are exceptions, such as when the natural resource allocation is for aOn the other hand if the natural resource allocation iscommercial pursuits of profit maximising privatede hors any social or welfare purpose, then judicial review would be permissible and Article 14 of the Constitution would be attracted and if the executive action is found to be arbitrary, it would be struck down. Therefore, when it comes to natural resource allocation, the executive has a somewhat limited elbow room.Notwithstanding this, a Court must exercise restraint and not set aside Government policy only because it disagrees with it or because a better policy could be framed or simply because it has the power to set aside the policy. Policies framed by the State, after due consideration, must be respected and given enough elbow room and flexibility for implementation. Of course, there would be occasions when the implementation of a policy has teething problems or some lacuna is discovered at a slightly later stage, but that does not mean that policy itself is defective. Therefore, Courts must be very cautious and circumspect in diluting or setting aside a policy and must do so only if it is constitutionally unavoidable, otherwise good governance could be a casualty.76. The conclusions that could be drawn from all these decisions are: (i) It is not obligatory, constitutionally or otherwise, that a natural resource (other than spectrum) must be disposed of or alienated or allocated only through an auction or through competitive bidding; (ii) Where the distribution, allocation, alienation or disposal of a natural resource is to a private party for a commercial pursuit of maximizing profits, then an auction is a more preferable method of such allotment; (iii) A decision to not auction a natural resource is liable to challenge and subject to restricted and limited judicial review under Article 14 of the Constitution; (iv) A decision to not auction a natural resource and sacrifice maximization of revenues might be justifiable if the decision is taken, inter alia, for the social good or the public good or the common good; (v) Unless the alienation or disposal of a natural resource is for the common good or a social or welfare purpose, it cannot be dissipated in favour of a private entrepreneur virtually free of cost or for a consideration not commensurate with its worth without attracting Article 14 and Article 39(b) of the Constitution.As far as the environment, the fragile ecology of Goa and theof the average Goan and the rule of law is concerned, the Mineral Policy categorically states that the State had witnessed, from12 the peak of chaotic and unregulated mining without any concern for the fragile ecology and environment of the State or for the generalof an average Goan. Surely, all this cannot be ignored or brushed aside particularly since the exploitation of mineral resources for five years had no element of social or public purpose, no concern for society and no regard for the environment and the laws.A reading of the report of the EAC is disturbing and acutely highlights the damage to the environment and ecology by the mining lease holders. The complete indifference by all concerned is evident from a careful reading of the report.88. The decision of the High Court does not at all discuss the options available to the State of Goa, namely, second renewal of the mining leases versus auction of a natural resource. In fact it appears that the High Court was not at all alive to the possibility of an auction of the mining leases, notwithstanding the view canvassed by the learned Advocate General of the State of Goa.A consideration of the contemporaneous facts beginning with the Budget Speech given by the Hon?ble Minister of Finance of the Government of India on 10th July, 2014 makes it clear that an amendment to the MMDR Act was to be effected sooner than later. The Grant of Mining Leases Policy overlooks that and proceeds on the basis that the judgment of the High Court delivered on 13th August, 2014 left the Government of Goa with no choice but to abandon the grant of mining leases through competitive bidding, even though that might be the most appropriate method of obtaining the best revenue for the public good. The Government of Goa had thereforeruled out the process of going in for competitive bidding keeping also in mind that the State was virtually starved of funds and had to balance the equities and needs of all, including the labour class, working class and other staff, markets in mining localities, public sector, mining lease holders, welfare needs of the State, environment and fragile ecology of the State and generalof the average Goan.Be that as it may, there is no doubt that iron ore mining in Goa was solely for commercial purposes – it was extracted primarily for export to China and Japan without any value addition to the domestic industry. True this brought in considerable foreign exchange – nevertheless iron ore extraction gave insignificant value addition (if at all) to Indian industry. The only advantage that iron ore extraction gave to the State was in terms of royalty, but the larger benefit accrued to the private mining lease holder who could obtain a mining lease on renewal virtually free and without any social or welfare purpose. In other words, the State sacrificed maximizing revenue for no apparent positive reason, virtually surrendering itself to the commercial and profit making motives of private entrepreneurs and ignoring the interests of Goan society in general. Therefore, in principle, the decision of the State of Goa to not auction the grant of mining leases was flawed in that it did not serve the common or public or social good but primarily assisted in filling the coffers of private entrepreneurs. We are not inclined to go so far as to describe the decision as arbitrary since it is not necessary to do so.94. However, we make it clear that we have dealt with this issue because it was canvassed before us. We are not inclined to quash the decision of the State of Goa of not going in for competitive bidding for the grant of fresh mining leases since it is not necessary in view of our conclusion that fresh mining leases were required to be granted by the State of Goa.The controversy in Sandur Manganese related to the grant of mining leases contrary to the provisions of Section 11 of the MMDR Act in that acriterion was taken into consideration de hors Section 11 of the MMDR Act for evaluating the applications and seeking approval of the Central Government for granting a mining lease. This was held to be impermissible and it may be so. In any event, paragraph 44 of the Report makes it clear that there is a distinction between the requirements of Section 11(3) of the MMDR Act and Section 8(3) of the MMDR Act. Sandur Manganese is not applicable to the facts of the present case.97. Similarly, reference was made to the Statement of Objects and Reasons for the Bill introduced in 2015 to amend the MMDR Act. It was stated therein thatpresent legal framework of the MMDR Act, 1957, does not permit the auctioning of mineral concessions.This submission need not detain us since we are not required to adjudicate whetherthe State of Goa should have auctioned the miningleases or not. The State of Goa decided to renew the mining leases and we are only called upon to decide (i) Whether the policy decision not to auction the grant of mining leases was arbitrary (we have already held that we are not required to express a final opinion on this). We may, however, recall en passant that the Goa Grant of Mining Leases Policy proceeded on the basis that the auction of mining leases was permissible and that had the sanction of the Court in Goa Foundation. It may be added that the MMDR Act did not prohibit the auction of mining leases. (ii) Whether the second renewals were in accordance with law and the constitutional principles.In view of decisions of this Court, including in Natural Resources Allocation it is permissible for this Court to judicially review, to a limited and restricted extent, the Grant of Mining Leases Policy, among other things, if it falls foul of Article 14 read with Article 39(b) of the Constitution and if it ignores the common or public or social good but benefits private entrepreneurs, particularly when it involves the natural resources, by sacrificing the maximization of revenue for the State.Despite the dicta of the Constitution Bench and the declaration made by this Court in Goa Foundation we do not propose to judicially review the Grant of Mining Leases Policy but to consider on merits whether the grant of second renewal to the mining leases was in accordance with the Grant of Mining Leases Policy and the law.104. In our opinion, in renewing the mining leases, the State of Goa completely ignored several relevant and important and significant factors giving the impression that the renewals were not quite fair or reasonable.105. For one, the State ignored the fact that every single mining lease holder had committed some illegality or the other in varying degrees. To identify these illegalities (although they had already been identified by the Justice Shah Commission and by the EAC), a Special Investigation Team had been set up as also a team of Chartered Accountants. Instead of waiting for a report from any one of these teams, the State acted in violation of the Grant of Mining Leases Policy and renewed the mining leases.Unfortunately, the undue haste in which the State acted gives the impression that it was willing to sacrifice the rule of law for the benefit of the mining lease holders and the explanation of satisfying the needs of some sections of society for their livelihood (after keeping them in the lurch for more than two years) was a mere fig leaf. The real intention of the second renewal was to satisfy the avariciousness of the mining lease holders who were motivated by profits to be made through the exploitation of naturalpolicy of the Government of India proposed to introduce Section 10B by way of an amendment to the MMDR Act and the proposed amendment made it very clear that if it were to be accepted, auction of mining leases in respect of notified minerals (including iron ore) would become a reality if not an obligation. It appears that to circumvent this rather uncomfortable policy, the State pressed the accelerator on the renewal of mining leases from December 2014 onward to benefit mining lease holders. So much so that in respect of 5 mining leases, the State overstepped the law and granted a second renewal in early January 2015 to some entities without even waiting for any approval or deemed approval of the mining plan from the Indian Bureau of Mines or any other authority.109. This sequence of events acquires further significance when it is recalled that an Ordinance to amend the MMDR Act was made known to the general public on 5th January, 2015 and promulgated by the President on 12th January, 2015 thereby mandating competitive bidding or auction for the grant of mining leases. The State of Goa perhaps anticipated this in view of the publication of the draft Mines and Minerals (Development and Regulation) Act, 2014 and therefore hurried into the second renewal of mining leases (notwithstanding the Grant of Mining Leases Policy) to defeat the introduction of the auction process. In fact in the period from 5th January, 2015 to 12th January, 2015 the Government of Goa granted a second renewal to as many as 56 mining leases and from 17th November, 2014 the State of Goa granted a second renewal to as many as 75 mining leases. The sudden spurt of renewal of mining leases is beyond comprehension. The judgment and order of the High Court in Lithoferro cannot be used as a shield for explaining the haste.110. These facts must also be appreciated in the context that mining operations were suspended in Goa with effect from 10th September, 2012 due to an order passed by the State of Goa. Therefore, mining operations having been suspended for more than two years, the State could have certainly waited for a few weeks more and taken an informed and reasoned decision on granting a second renewal to mining leases – but waiting for a few weeks could have led to an uncomfortable situation that would have compelled the State of Goa to auction the mining leases, hence theis not at all clear from the records before us that the State had applied its mind to these and other factors including the report of Justice Shah, the report of the EAC, the absence of any value addition to the domestic industry and the degradation of the environment as noted by the Expert Committee appointed by this Court in concluding that a second renewal was „in the interests of mineral development?. Mere reliance on the acceptance or deemed acceptance of the Indian Bureau of Mines is not enough, as imagined by the State of Goa. The matter of „interests of mineral development? has to be considered holistically and not in an isolationist manner.What is unfortunate about the entire commercial activity of the mining lease holders is that there was no social or public purpose attached to the mining operations. There was one and only one objective behind the mining activity and that was profit maximization. The renewal of the mining leases would give considerable profits to the mining lease holders well beyond the benefits that could accrue to the State or to the average resident of Goa. It was observed by Justice Khehar in Natural Resources Allocation that material resources of the country should not be dissipated free of cost or at a consideration lower than their actual worth. This was not kept in mind and mining leases were renewed for a small payment of stamp duty and royalty. It is therefore clear that the considerations that weighed with the State were not for the people of Goa but were for the mining lease holders. This certainly cannot be described as beingthe interests of mineral development.With the mining lease holders violating virtually every applicable law or legal requirement, it is clear that the rule of law was not their concern. The list of violations and their variety was documented by the EAC and it makes for some very sad reading. To make matters worse, it was clearly mentioned in the Grant of Mining Leases Policy that a Special Investigating Team and a team of Chartered Accountants would look into all the violations but the State chose not to wait for any of the reports. There is no explanation for this.116. In this background, there is little to suggest that the State considered the requirements of Section 8(3) of the MMDR Act in that the interests of mineral development was secondary while granting the second renewal of mining leases. The entire exercise undertaken by the State was a hasty charade, regardless of violations of the law by the mining lease holders, without any benefit to the Indian industry and without any concern for the healthof the average Goan.The undue haste with which the State granted the second renewal of mining leases particularly after the amendments proposed to the MMDR Act were placed in the public domain by the Government of India (relating to the auction of mining leases) is a clear indication that the decision of the State was not based on relevant material and not necessarily triggered bythe interests of mineral development.The very large number of renewals granted over a comparatively brief period is a clear indication that the State did not have „mineral development? in mind but had some otherinterests while taking its decision to grant a second renewal to the mining leases. The haste with which the State took its decision also needs to be understood in the background of the fact that mining had been suspended by the State in September 2012 that is more than two years prior to the grant of second renewals. The urgency suddenly exhibited by the State therefore seems to beand motivated rather than genuine.It may be recalled that the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 came into force on 12th January, 2015 and on that day as many as 31 mining leases were renewed. In respect of 5 mining leases renewed in January, 2015 the report from the Indian Bureau of Mines was called for in January, 2015 itself and the mining leases were renewed without receipt of the report from the Indian Bureau of Mines and before expiry of the mandatory period for submitting the report in terms of the second proviso to Rule 24A(3) of the Mineral Concession Rules, 1960. In other words, without even receipt of any report from the Indian Bureau of Mines and even before the expiry of the statutory waiting period, the State of Goa renewed some mining leases. This is patently illegal.The State has projected virtual chaos (which could be an exaggeration) but that is why we have left open the issue of arbitrariness of the policy decision. Nevertheless the State is bound by the law, however uncomfortable it might be in granting a second renewal in terms of Section 8(3) of the MMDR Act. Therefore, on an overall consideration of all aspects of the case, we are of opinion that the decision of the State of Goa to quickly renew the mining leases while ostensibly complying with the requirements of Section 8(3) of the MMDR Act and thereby jettisoning the rule of law was unjustified.The question whether the mining lease holders required fresh environmental clearances arises in the context of paragraph 82 of the decision rendered in Goa Foundation quoted above. It must be stated that some mining lease holders had environmental clearances under EIA 1994 while others under EIA 2006. Notwithstanding this, since we have held that fresh mining leases were required to be granted, it follows that fresh environmental clearance is required to be obtained by those who are granted a fresh mining lease.The second order of 20th March, 2015 is an Office Memorandum to the effect that a project proponent will not be required to obtain a fresh environmental clearance at the time of renewal of the mining lease. This is misleading information and contrary to the decision of this Court in M.C. Mehta v. Union of India (2004)12 SCC 118) as well as the decision rendered in Common Cause v. Union of India. (2017) 9 SCCAs mentioned above and as held in M.C. Mehta and Common Cause, the renewal of a lease after 27th January, 1994 would require an environmental clearance. Therefore, a mining lease holder having a valid environmental clearance obtained under EIA 1994 would still require a fresh environmental clearance for renewal of the mining lease inas the case may be. That being so there is no doubt at all that the 35 cases referred to in the third order of 20th March, 2015 who had an environmental clearance under EIA 1994 did require a fresh environmental clearance at the time of renewal of the mining lease. Since they did not have such a fresh environmental clearance the renewal of these 35 mining leases is clearly bad in law. Moreover, as held in M.C. Mehta and Common Cause the validity of an environmental clearance granted under EIA 1994 is only for five years. Therefore all environmental clearances granted under EIA 1994 had lost their validity before 2015, EIA 1994 having been replaced by EIA 2006.135. As regards the 37 mining leases that had obtained environmental clearance under EIA 2006, since the validity of the environmental clearance is for the estimated project life or a maximum of 30 years in terms of paragraph 9 of EIA 2006 therefore no violation can be found on the ground of validity for the time period. To this limited extent, no interference is necessary at this stage in respect of these 37 mining leases. We make it clear, however, that this is subject to our conclusion that fresh mining leases were required to be granted by the State of Goa. Consequently, a mining lease holder obtaining a fresh mining lease would require a fresh environmental clearance in terms of EIA 2006.136. What is disturbing is that notwithstanding several and various violations, the MoEF granted environmental clearance to 72 mining leases. It seems to us that the MoEF acted without any application of mind in lifting the order placing all the environmental clearances in abeyance. Since the entire exercise carried out by the MoEF on 20th March, 2015 was mechanical, at the behest of the State of Goa, without due application of mind, without considering the multiple illegalities and irregularities committed by the mining lease holders or passing on the buck to the State of Goa and without considering relevant material such as the report of the EAC and the Expert Committee appointed by this Court, the exercise of lifting the abeyance order on 20th March, 2015 by the MoEF must be held void and as directed by the Court in Goa Foundation all the mining lease holders must obtain fresh environmental clearance for their mining project.137. We were informed by the learned Additional Solicitor General that show cause notices have now been issued to some mining lease holders demanding huge amountssome running into hundreds of crores of rupees towards value of ore extracted in excess of the environmental clearance. We were handed over some sample show cause notices (about 12) issued in September and October 2017 and the figures are quite staggering – the demand raised being about Rs. 1500 crores! Similarly, from the Summary of Mining Audit Report submitted by the auditors (and handed over to us by the learned Additional Solicitor General – for the period July 2016 to December 2016) the amount demanded (including interest) by the State of Goa from the mining lease holders through show cause notices issued is about Rs. 1500 crores! And without making any serious attempt to recover such huge amounts, the State of Goa has granted second renewal of mining leases and the MoEF played ball by lifting the abeyance order in respect of the environment clearances. The inferences that can be drawn are quitethere is no doubt that the Mineral Policy, the Grant of Mining Leases Policy, the amendment to the MMDR Act, the report of the EAC and the report of the Expert Committee must be considered in the larger context of constitutionalism, the rule of law, environmental jurisprudence as well as the fundamental right of the people of Goa to have clean air and protection of the fragile ecology. Governance cannot and should not be carried out de hors the interests of the people and some uncomfortable decisions may be inevitable for balancing the equities.139. Finally, a controversy (wholly unnecessary in our view) was raised with regard to the period of validity of the environmental clearance granted under EIA 1994. Firstly, in the view that we have taken, the validity period of an environmental clearance under EIA 1994 is academic since a fresh environmental clearance was necessary at the time of renewal of a lease. Secondly, the period of validity of an environmental clearance was considered in M.C. Mehta and it was clearly held that it is valid for 5 years only.For no apparent reason and after EIA 2006, the issue of the validity of an environmental clearance granted under EIA 1994 was raked up and a notification was issued by the MoEF on 21st August, 2013 in which it was noted that the notification of 4th May, 1994 provided thatclearance granted shall be valid for a period of five years from commencement of the construction orAnother notification of 21st August, 2013 goes on to say that the intent of the Central Government has been and has always been that the validity of the environmental clearance is for five yearscommencement of the construction or operation and not that the environment clearance is only for five yearsthe commencement of construction or operation. Therefore, the Central Government clarified in the notification of 21st August, 2013 that the expressiona period of fivefor a periodrs for commencement of the construction or operation and not five years from commencement of the construction orWe do not see how this controversy really arises or its relevance to the present case, but we refer to it since submissions were made to explain the distinction betweenfive years andfive years in respect of the validity of an environmental clearance.145.It is perhaps sought to be contended that if environmental clearance is granted and mining operations commence within the five year period, then the environmental clearance under EIA 1994 is valid till the project or the mining lease period is over.We cannot see how such an inference can be drawn. Moreover, this submission overlooks the decisions in M.C. Mehta and Common Cause which accept the view that the validity of an environmental clearance granted under EIA 1994 is only five years as also the view that a valid environmental clearance is necessary for the renewal of a mining lease. No notification of the MoEF can overrule decisions of this Court. As far as EIA 2006 is concerned this submission is academic and not relevant since paragraph 9 of EIA 2006 provides that the environmental clearance would be valid for the estimated project life subject to a maximum of 30 years.146.Learned counsel for the mining lease holders also relied upon a decision of the Delhi High Court in S. N. Mohanty v. Union of India (2012 SCC OnLine Del 4000)to contend that notwithstanding a notification issued by MoEF on 4th April, 2011 it was not obligatory for a mining lease holder to obtain a fresh environmental clearance at the time of renewal of a lease, if the environmental clearance was subsisting.In that case, the petitioner had an environmental clearance obtained under EIA 2006 on 15th January, 2007 and the first renewal of the mining lease was due on 2nd April, 2012. In that context, it was submitted that it was not necessary for the petitioner to obtain environmental clearance for renewal of the mining lease. The Delhi High Court took the view that:if a person has a valid and subsisting EC [environmental clearance] at the point of time he seeks a renewal of the mining lease, he would still be required to obtain another EC prior to the grant of renewal by the respondents. That, in our view, is not the intent and purport of the Supreme Court directions in M.C.This question does not arise in the context of EIA 1994.147.One final submission before us was that these cases be referred to a Bench of 9 learned judges since the constitutional validity of the Goa, Daman & Diu Mining Concessions (Abolition & Declaration of Mining Leases) Act, 1987 was under challenge in some cases and the decision in those cases would perhaps render the present proceedings infructuous. In some of these pending cases, this Court had passed an order on 29th October, 2002 to await the decision of 9 learned judges in Propertyn v. State of Maharashtra. (2013) 7 SCC 522 dated 20th February,are not at all inclined to accept this request and mention it only to reject it. Correctness of the decision of the High Court in Lithoferro148. As far as the SLPs are concerned (SLP (C) No. 32138 of 2015 and SLP (C) Nos.of 2015) we set aside the judgment and order dated 13th August, 2014 of the High Court in view of our conclusion that the State of Goa was required to grant fresh licences in terms of the decision of this Court in Goa Foundation. The High Court proceeded on the erroneous basis that it could direct the State of Goa to grant a second renewal of the mining leases notwithstanding the direction in Goa49. In view of our discussion, we arrive at the following conclusions:1. As a result of the decision, declaration and directions of this Court in Goa Foundation, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders.2. The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.3. The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not inthe interests of mineral development.The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act. The second renewal of the mining leases granted by the State of Goa is liable to be set aside and is quashed.4. The Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012. | 1 | 28,454 | 6,405 | ### 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:
For no apparent reason and after EIA 2006, the issue of the validity of an environmental clearance granted under EIA 1994 was raked up and a notification was issued by the MoEF on 21st August, 2013 in which it was noted that the notification of 4th May, 1994 provided that “the clearance granted shall be valid for a period of five years from commencement of the construction or operation”. Another notification of 21st August, 2013 goes on to say that the intent of the Central Government has been and has always been that the validity of the environmental clearance is for five years “for” commencement of the construction or operation and not that the environment clearance is only for five years “from” the commencement of construction or operation. Therefore, the Central Government clarified in the notification of 21st August, 2013 that the expression “for a period of five years” shall mean “for a period of five years for commencement of the construction or operation and not five years from commencement of the construction or operation.” We do not see how this controversy really arises or its relevance to the present case, but we refer to it since submissions were made to explain the distinction between “for” five years and “from” five years in respect of the validity of an environmental clearance.145. It is perhaps sought to be contended that if environmental clearance is granted and mining operations commence within the five year period, then the environmental clearance under EIA 1994 is valid till the project or the mining lease period is over. We cannot see how such an inference can be drawn. Moreover, this submission overlooks the decisions in M.C. Mehta and Common Cause which accept the view that the validity of an environmental clearance granted under EIA 1994 is only five years as also the view that a valid environmental clearance is necessary for the renewal of a mining lease. No notification of the MoEF can overrule decisions of this Court. As far as EIA 2006 is concerned this submission is academic and not relevant since paragraph 9 of EIA 2006 provides that the environmental clearance would be valid for the estimated project life subject to a maximum of 30 years.146. Learned counsel for the mining lease holders also relied upon a decision of the Delhi High Court in S. N. Mohanty v. Union of India (2012 SCC OnLine Del 4000)to contend that notwithstanding a notification issued by MoEF on 4th April, 2011 it was not obligatory for a mining lease holder to obtain a fresh environmental clearance at the time of renewal of a lease, if the environmental clearance was subsisting. In that case, the petitioner had an environmental clearance obtained under EIA 2006 on 15th January, 2007 and the first renewal of the mining lease was due on 2nd April, 2012. In that context, it was submitted that it was not necessary for the petitioner to obtain environmental clearance for renewal of the mining lease. The Delhi High Court took the view that: “… if a person has a valid and subsisting EC [environmental clearance] at the point of time he seeks a renewal of the mining lease, he would still be required to obtain another EC prior to the grant of renewal by the respondents. That, in our view, is not the intent and purport of the Supreme Court directions in M.C. Mehta.” This question does not arise in the context of EIA 1994.147. One final submission before us was that these cases be referred to a Bench of 9 learned judges since the constitutional validity of the Goa, Daman & Diu Mining Concessions (Abolition & Declaration of Mining Leases) Act, 1987 was under challenge in some cases and the decision in those cases would perhaps render the present proceedings infructuous. In some of these pending cases, this Court had passed an order on 29th October, 2002 to await the decision of 9 learned judges in Property Owners’ Association v. State of Maharashtra. (2013) 7 SCC 522 dated 20th February, 2002)We are not at all inclined to accept this request and mention it only to reject it. Correctness of the decision of the High Court in Lithoferro 148. As far as the SLPs are concerned (SLP (C) No. 32138 of 2015 and SLP (C) Nos. 32699-32727 of 2015) we set aside the judgment and order dated 13th August, 2014 of the High Court in view of our conclusion that the State of Goa was required to grant fresh licences in terms of the decision of this Court in Goa Foundation. The High Court proceeded on the erroneous basis that it could direct the State of Goa to grant a second renewal of the mining leases notwithstanding the direction in Goa Foundation. Conclusions and directions 149. In view of our discussion, we arrive at the following conclusions:1. As a result of the decision, declaration and directions of this Court in Goa Foundation, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders.2. The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.3. The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not in the interests of mineral development. The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act. The second renewal of the mining leases granted by the State of Goa is liable to be set aside and is quashed.4. The Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012.
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EIA 1994 is academic since a fresh environmental clearance was necessary at the time of renewal of a lease. Secondly, the period of validity of an environmental clearance was considered in M.C. Mehta and it was clearly held that it is valid for 5 years only.For no apparent reason and after EIA 2006, the issue of the validity of an environmental clearance granted under EIA 1994 was raked up and a notification was issued by the MoEF on 21st August, 2013 in which it was noted that the notification of 4th May, 1994 provided thatclearance granted shall be valid for a period of five years from commencement of the construction orAnother notification of 21st August, 2013 goes on to say that the intent of the Central Government has been and has always been that the validity of the environmental clearance is for five yearscommencement of the construction or operation and not that the environment clearance is only for five yearsthe commencement of construction or operation. Therefore, the Central Government clarified in the notification of 21st August, 2013 that the expressiona period of fivefor a periodrs for commencement of the construction or operation and not five years from commencement of the construction orWe do not see how this controversy really arises or its relevance to the present case, but we refer to it since submissions were made to explain the distinction betweenfive years andfive years in respect of the validity of an environmental clearance.145.It is perhaps sought to be contended that if environmental clearance is granted and mining operations commence within the five year period, then the environmental clearance under EIA 1994 is valid till the project or the mining lease period is over.We cannot see how such an inference can be drawn. Moreover, this submission overlooks the decisions in M.C. Mehta and Common Cause which accept the view that the validity of an environmental clearance granted under EIA 1994 is only five years as also the view that a valid environmental clearance is necessary for the renewal of a mining lease. No notification of the MoEF can overrule decisions of this Court. As far as EIA 2006 is concerned this submission is academic and not relevant since paragraph 9 of EIA 2006 provides that the environmental clearance would be valid for the estimated project life subject to a maximum of 30 years.146.Learned counsel for the mining lease holders also relied upon a decision of the Delhi High Court in S. N. Mohanty v. Union of India (2012 SCC OnLine Del 4000)to contend that notwithstanding a notification issued by MoEF on 4th April, 2011 it was not obligatory for a mining lease holder to obtain a fresh environmental clearance at the time of renewal of a lease, if the environmental clearance was subsisting.In that case, the petitioner had an environmental clearance obtained under EIA 2006 on 15th January, 2007 and the first renewal of the mining lease was due on 2nd April, 2012. In that context, it was submitted that it was not necessary for the petitioner to obtain environmental clearance for renewal of the mining lease. The Delhi High Court took the view that:if a person has a valid and subsisting EC [environmental clearance] at the point of time he seeks a renewal of the mining lease, he would still be required to obtain another EC prior to the grant of renewal by the respondents. That, in our view, is not the intent and purport of the Supreme Court directions in M.C.This question does not arise in the context of EIA 1994.147.One final submission before us was that these cases be referred to a Bench of 9 learned judges since the constitutional validity of the Goa, Daman & Diu Mining Concessions (Abolition & Declaration of Mining Leases) Act, 1987 was under challenge in some cases and the decision in those cases would perhaps render the present proceedings infructuous. In some of these pending cases, this Court had passed an order on 29th October, 2002 to await the decision of 9 learned judges in Propertyn v. State of Maharashtra. (2013) 7 SCC 522 dated 20th February,are not at all inclined to accept this request and mention it only to reject it. Correctness of the decision of the High Court in Lithoferro148. As far as the SLPs are concerned (SLP (C) No. 32138 of 2015 and SLP (C) Nos.of 2015) we set aside the judgment and order dated 13th August, 2014 of the High Court in view of our conclusion that the State of Goa was required to grant fresh licences in terms of the decision of this Court in Goa Foundation. The High Court proceeded on the erroneous basis that it could direct the State of Goa to grant a second renewal of the mining leases notwithstanding the direction in Goa49. In view of our discussion, we arrive at the following conclusions:1. As a result of the decision, declaration and directions of this Court in Goa Foundation, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders.2. The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.3. The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not inthe interests of mineral development.The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act. The second renewal of the mining leases granted by the State of Goa is liable to be set aside and is quashed.4. The Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012.
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Bachan Singh & Ors Vs. State Of Punjab & Ors | interest on the amount of compensation unlike that provided under the provisions of the Land Acquisition Act. It is true that the finalisation of the scheme will take time but under the provisions of sub-see. (2) of S. 12 the submission of the Scheme by the Trust is not to be later than 3 years which does not mean necessarily that it will take 3 years and may even take less if not obstructed by persons affected. In any case as we have said where the scheme is for the benefit of all those who have properties in the areas which are covered by the scheme and is on a profit sharing basis, there is no hardship or disadvantage, particularly when the Petitioners as we shall point out presently are assured of alternative accommodation and the allotment of newly built shops under the scheme. 12. Though the actual schemes are not before us, it is stated in the counter of Respondent No. 2 the Chairman of the Amritsar Improvement Trust that the Petitioners have been assured in writing by the Trust that allotment of pacca shops as soon as the commercial building in Dharam Singh Market which is being constructed at an estimated cost of Rupees 26 lakhs is completed. In fact Ahata Bishan Dass and the adjoining scheme areas are ready. In the meanwhile many of the persons who have applied for alternate accommodation have for the time being been accommodated by the Trust in the stalls recently set up in Kesribagh in the immediate vicinity of the Trust Office. Though the Petitioners 1 and 3 have not applied for alternative accommodation they have been assured that they will be treated alike with the said displaced occupiers of shops in case they apply for alternative accommodation. In so far as the Petitioner No. 2 is concerned it is alleged that he is not an occupier of the building, as such there is no question of an alternative accommodation being given to him but this matter will have to be decided under the provisions of the Act. Be that as it may in fact the Chairman of the Amritsar Improvement Trust has appended to the counter a letter addressed to one Inder Singh Arora who has a shop in Bazar Jallianwala in Amritsar and who is also similarly situated like the petitioners. In that letter of 6-1-1970 he has stated as follows:"Reference your discussion with the undersigned. It has been decided to offer you accommodation on the lines of commitments made by the Trust in High Court in Letters Patent Appeal No. 187 of 1969 (Punj) (Mulk Raj v. Trust) i.e. as soon as commercial buildings in Dharam Singh Market, Ahata Bishan Dass and the adjoining Scheme areas are ready, the Trust would give preference to the oustees from the scheme area (Chowk Phowara to Jallianwala Bagh in Main Bazar and other Markets) who are 5 years old to occupy shops of their choice at the rent which is fixed by the Trust for the particular shop. The rent fixed by the improvement Trust may be the highest that can be fetched in the Market. At that rent the tenants may exercise their option to get tenancy rights in preference to others and in case they refuse to take the shops on rent so fixed by the Trust, the same would be given to others." 13. These assurances are commitments and would equally apply to the Petitioners. We cannot envisage a more reasonable and fair treatment accorded to the persons who have been displaced as a result of the Improvement Schemes. The Petitioners in spite of all these assurances have taken an unreasonable attitude in litigating and holding up a scheme that is beneficial for all those are affected in the damaged areas by the two impugned schemes. In our view the compensation payable is neither inadequate nor illusory but on the other hand is not less than the market value and may even be more. There is therefore no violation of Art. 31 (2) of the Constitution. 14. The further contention that S. 2 (d) is discriminatory or vague in that it does not indicate the criteria for determining what is a damaged area appears to us to be without force. We have seen the purpose for which the Act was passed by the Legislature which leaves little doubt that it was the damage caused by wholesale and serious rioting to buildings in certain urban areas in the State of Punjab and particularly in the area within the walled city of Amritsar which necessitated the framing and execution of schemes of improvement in those areas. In so far as the present petition is concerned it relates to two of the areas within the walled city of Amritsar. It is therefore not difficult to determine what is a damaged area for, if the whole of the walled city of Amritsar is a damaged area, any part thereof is equally a damaged area. There is nothing arbitrary nor is the power conferred on the State Government unguided or uncanalised nor for that matter can it be said that the Notification issued on the 26 June 1962 is vague. 15. In so far as the contention that the impugned Notification sanctioning the two schemes are void as the power under S. 5 of the Act was exhausted because the Government had already exercised its power when it sanctioned Dharam Singh Market Scheme, the learned Advocate has not chosen to address any arguments or to substantiate that contention. As such we find it unnecessary to deal with it. 16. In our view none of the objections are sustainable either on the ground of discrimination under Art.14 or on the scheme being unreasonable or not in the interest of general public violating Art. 19 (1) (f) and (g) nor on the ground of the compensation payable being inadequate or insufficient so as to infringe the guarantee under Art. 31(2) of the Constitution of India. | 0[ds]The compensation payable under the Act is also determined on principles similar to those under the Land Acquisition Act or the Punjab Town Improvement Act. There is however no justification in the submission that option is given to acquire the area either under the Act or under the Punjab Town Improvement Act according to the discretion of the Trust which is without guidelines and arbitrary. This argument is devoid of force because what Section 3 empowers is that the Trust in framing a scheme may provide for all or any of the matters mentioned in S. 28 of the Punjab Town Improvement Act. It further declares that any scheme already framed under the Punjab Town Improvement Act is deemed to have been framed under the Act. This is far from saying that a discretion is given to the Trust to frame a Scheme either under the provisitions of the Act or under the provisions of the Punjab Town Improvement Act or that the provisions of the latter Act are more advantageous in the matter of compensation or in respect of any other matter. The section merely incorporates by reference to some of the provisions of the other Act and is also an enabling one. There is also no validity in the contention that compensation is not payable for the buildings but only for the land because the definition of land under the Act is similar to that under S. 3 (a) of the Land Acquisition Act and is comprehensive enough to include buildings alsoIt is true that the finalisation of the scheme will take time but under the provisions of sub-see. (2) of S. 12 the submission of the Scheme by the Trust is not to be later than 3 years which does not mean necessarily that it will take 3 years and may even take less if not obstructed by persons affected. In any case as we have said where the scheme is for the benefit of all those who have properties in the areas which are covered by the scheme and is on a profit sharing basis, there is no hardship or disadvantage, particularly when the Petitioners as we shall point out presently are assured of alternative accommodation and the allotment of newly built shops under the scheme13. These assurances are commitments and would equally apply to the Petitioners. We cannot envisage a more reasonable and fair treatment accorded to the persons who have been displaced as a result of the Improvement Schemes. The Petitioners in spite of all these assurances have taken an unreasonable attitude in litigating and holding up a scheme that is beneficial for all those are affected in the damaged areas by the two impugned schemes. In our view the compensation payable is neither inadequate nor illusory but on the other hand is not less than the market value and may even be more. There is therefore no violation of Art. 31 (2) of the Constitution14. The further contention that S. 2 (d) is discriminatory or vague in that it does not indicate the criteria for determining what is a damaged area appears to us to be without force. We have seen the purpose for which the Act was passed by the Legislature which leaves little doubt that it was the damage caused by wholesale and serious rioting to buildings in certain urban areas in the State of Punjab and particularly in the area within the walled city of Amritsar which necessitated the framing and execution of schemes of improvement in those areas. In so far as the present petition is concerned it relates to two of the areas within the walled city of Amritsar. It is therefore not difficult to determine what is a damaged area for, if the whole of the walled city of Amritsar is a damaged area, any part thereof is equally a damaged area. There is nothing arbitrary nor is the power conferred on the State Government unguided or uncanalised nor for that matter can it be said that the Notification issued on the 26 June 1962 is vague15. In so far as the contention that the impugned Notification sanctioning the two schemes are void as the power under S. 5 of the Act was exhausted because the Government had already exercised its power when it sanctioned Dharam Singh Market Scheme, the learned Advocate has not chosen to address any arguments or to substantiate that contention. As such we find it unnecessary to deal with it16. In our view none of the objections are sustainable either on the ground of discrimination under Art.14 or on the scheme being unreasonable or not in the interest of general public violating Art. 19 (1) (f) and (g) nor on the ground of the compensation payable being inadequate or insufficient so as to infringe the guarantee under Art. 31(2) of the Constitution of India. | 0 | 4,928 | 863 | ### 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:
interest on the amount of compensation unlike that provided under the provisions of the Land Acquisition Act. It is true that the finalisation of the scheme will take time but under the provisions of sub-see. (2) of S. 12 the submission of the Scheme by the Trust is not to be later than 3 years which does not mean necessarily that it will take 3 years and may even take less if not obstructed by persons affected. In any case as we have said where the scheme is for the benefit of all those who have properties in the areas which are covered by the scheme and is on a profit sharing basis, there is no hardship or disadvantage, particularly when the Petitioners as we shall point out presently are assured of alternative accommodation and the allotment of newly built shops under the scheme. 12. Though the actual schemes are not before us, it is stated in the counter of Respondent No. 2 the Chairman of the Amritsar Improvement Trust that the Petitioners have been assured in writing by the Trust that allotment of pacca shops as soon as the commercial building in Dharam Singh Market which is being constructed at an estimated cost of Rupees 26 lakhs is completed. In fact Ahata Bishan Dass and the adjoining scheme areas are ready. In the meanwhile many of the persons who have applied for alternate accommodation have for the time being been accommodated by the Trust in the stalls recently set up in Kesribagh in the immediate vicinity of the Trust Office. Though the Petitioners 1 and 3 have not applied for alternative accommodation they have been assured that they will be treated alike with the said displaced occupiers of shops in case they apply for alternative accommodation. In so far as the Petitioner No. 2 is concerned it is alleged that he is not an occupier of the building, as such there is no question of an alternative accommodation being given to him but this matter will have to be decided under the provisions of the Act. Be that as it may in fact the Chairman of the Amritsar Improvement Trust has appended to the counter a letter addressed to one Inder Singh Arora who has a shop in Bazar Jallianwala in Amritsar and who is also similarly situated like the petitioners. In that letter of 6-1-1970 he has stated as follows:"Reference your discussion with the undersigned. It has been decided to offer you accommodation on the lines of commitments made by the Trust in High Court in Letters Patent Appeal No. 187 of 1969 (Punj) (Mulk Raj v. Trust) i.e. as soon as commercial buildings in Dharam Singh Market, Ahata Bishan Dass and the adjoining Scheme areas are ready, the Trust would give preference to the oustees from the scheme area (Chowk Phowara to Jallianwala Bagh in Main Bazar and other Markets) who are 5 years old to occupy shops of their choice at the rent which is fixed by the Trust for the particular shop. The rent fixed by the improvement Trust may be the highest that can be fetched in the Market. At that rent the tenants may exercise their option to get tenancy rights in preference to others and in case they refuse to take the shops on rent so fixed by the Trust, the same would be given to others." 13. These assurances are commitments and would equally apply to the Petitioners. We cannot envisage a more reasonable and fair treatment accorded to the persons who have been displaced as a result of the Improvement Schemes. The Petitioners in spite of all these assurances have taken an unreasonable attitude in litigating and holding up a scheme that is beneficial for all those are affected in the damaged areas by the two impugned schemes. In our view the compensation payable is neither inadequate nor illusory but on the other hand is not less than the market value and may even be more. There is therefore no violation of Art. 31 (2) of the Constitution. 14. The further contention that S. 2 (d) is discriminatory or vague in that it does not indicate the criteria for determining what is a damaged area appears to us to be without force. We have seen the purpose for which the Act was passed by the Legislature which leaves little doubt that it was the damage caused by wholesale and serious rioting to buildings in certain urban areas in the State of Punjab and particularly in the area within the walled city of Amritsar which necessitated the framing and execution of schemes of improvement in those areas. In so far as the present petition is concerned it relates to two of the areas within the walled city of Amritsar. It is therefore not difficult to determine what is a damaged area for, if the whole of the walled city of Amritsar is a damaged area, any part thereof is equally a damaged area. There is nothing arbitrary nor is the power conferred on the State Government unguided or uncanalised nor for that matter can it be said that the Notification issued on the 26 June 1962 is vague. 15. In so far as the contention that the impugned Notification sanctioning the two schemes are void as the power under S. 5 of the Act was exhausted because the Government had already exercised its power when it sanctioned Dharam Singh Market Scheme, the learned Advocate has not chosen to address any arguments or to substantiate that contention. As such we find it unnecessary to deal with it. 16. In our view none of the objections are sustainable either on the ground of discrimination under Art.14 or on the scheme being unreasonable or not in the interest of general public violating Art. 19 (1) (f) and (g) nor on the ground of the compensation payable being inadequate or insufficient so as to infringe the guarantee under Art. 31(2) of the Constitution of India.
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The compensation payable under the Act is also determined on principles similar to those under the Land Acquisition Act or the Punjab Town Improvement Act. There is however no justification in the submission that option is given to acquire the area either under the Act or under the Punjab Town Improvement Act according to the discretion of the Trust which is without guidelines and arbitrary. This argument is devoid of force because what Section 3 empowers is that the Trust in framing a scheme may provide for all or any of the matters mentioned in S. 28 of the Punjab Town Improvement Act. It further declares that any scheme already framed under the Punjab Town Improvement Act is deemed to have been framed under the Act. This is far from saying that a discretion is given to the Trust to frame a Scheme either under the provisitions of the Act or under the provisions of the Punjab Town Improvement Act or that the provisions of the latter Act are more advantageous in the matter of compensation or in respect of any other matter. The section merely incorporates by reference to some of the provisions of the other Act and is also an enabling one. There is also no validity in the contention that compensation is not payable for the buildings but only for the land because the definition of land under the Act is similar to that under S. 3 (a) of the Land Acquisition Act and is comprehensive enough to include buildings alsoIt is true that the finalisation of the scheme will take time but under the provisions of sub-see. (2) of S. 12 the submission of the Scheme by the Trust is not to be later than 3 years which does not mean necessarily that it will take 3 years and may even take less if not obstructed by persons affected. In any case as we have said where the scheme is for the benefit of all those who have properties in the areas which are covered by the scheme and is on a profit sharing basis, there is no hardship or disadvantage, particularly when the Petitioners as we shall point out presently are assured of alternative accommodation and the allotment of newly built shops under the scheme13. These assurances are commitments and would equally apply to the Petitioners. We cannot envisage a more reasonable and fair treatment accorded to the persons who have been displaced as a result of the Improvement Schemes. The Petitioners in spite of all these assurances have taken an unreasonable attitude in litigating and holding up a scheme that is beneficial for all those are affected in the damaged areas by the two impugned schemes. In our view the compensation payable is neither inadequate nor illusory but on the other hand is not less than the market value and may even be more. There is therefore no violation of Art. 31 (2) of the Constitution14. The further contention that S. 2 (d) is discriminatory or vague in that it does not indicate the criteria for determining what is a damaged area appears to us to be without force. We have seen the purpose for which the Act was passed by the Legislature which leaves little doubt that it was the damage caused by wholesale and serious rioting to buildings in certain urban areas in the State of Punjab and particularly in the area within the walled city of Amritsar which necessitated the framing and execution of schemes of improvement in those areas. In so far as the present petition is concerned it relates to two of the areas within the walled city of Amritsar. It is therefore not difficult to determine what is a damaged area for, if the whole of the walled city of Amritsar is a damaged area, any part thereof is equally a damaged area. There is nothing arbitrary nor is the power conferred on the State Government unguided or uncanalised nor for that matter can it be said that the Notification issued on the 26 June 1962 is vague15. In so far as the contention that the impugned Notification sanctioning the two schemes are void as the power under S. 5 of the Act was exhausted because the Government had already exercised its power when it sanctioned Dharam Singh Market Scheme, the learned Advocate has not chosen to address any arguments or to substantiate that contention. As such we find it unnecessary to deal with it16. In our view none of the objections are sustainable either on the ground of discrimination under Art.14 or on the scheme being unreasonable or not in the interest of general public violating Art. 19 (1) (f) and (g) nor on the ground of the compensation payable being inadequate or insufficient so as to infringe the guarantee under Art. 31(2) of the Constitution of India.
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Kaliamma Vs. Janardhanan Pillai & Ors | number of persons in each."Their Lordships, therefore, approached the evidence in that case with a knowledge that such a custom does exist, and was not an improbable one in the particular case, and after examining the evidence came to the conclusion that the custom of Patnibhaga was proved.6. We may now refer to the decisions that were cited before the Court below and were relied upon before this Court. The earliest one is a decision of the year 1890, in Ayikutti Bhagavathi v. Chithambarathanu Mathevan, reported in (1890) 8 TLR 51 where the effect of the evidence was stated as follows :"From the evidence on both sides, it is clear to us that Krishnanvakakkar to which the parties belong, follow the Hindu law with one or two points of divergence from it, viz. the widow cohabiting with the brother of her deceased husband and the existence of Pathini Bhagam."The next decision is of the year 1904, in Ramaswami Sadasivan v. Thanu Gouri, reported in Kolappa Pillais unreported important cases, p. 179. Here again on a consideration of the evidence it was held that the preponderance of evidence as a whole was in favour of Pathni Bhagam. But one of the learned Judges observed :"The Pathni Bhagam which prevails in this community seems to go even beyond the usual custom known as Pathni Bhagam..............that it is not only sons of different mothers that take per stripes (according to the number of mothers) but when one mother has got only female issue and another a male issue the female issue gets a half share in their fathers properties and the male issue by the other wife of the father takes the other half."It is upon this decision that the plaintiff based her whole case. It must be pointed out, however, that the learned Judge did not go into the evidence regarding the particular type of pathnibhagam which was stated to be prevalent among this community. Nor was it necessary to decide that question for the purpose of that case. It was a mere passing observation and this is a solitary case in which such a special custom is mentioned.7. We then come to another decision of the year 1944, in Nagaru Pillai Saraswathi Amma v. Thanu Pillai reported in 1944 T.L.R. 710. In that case also the special custom pleaded by the plaintiff did not arise for decision. What was urged was the right of absolute ownership for a widow of a member of a Krishnanvaka community. The argument was that the existence of Pathnibhagam in the community implied the principle that on the death of the husband of a Krishnavakakar woman, in the absence of his children, she was entitled to inherit her husbands property absolutely. This contention was rejected but the decision proceeded on the basis that the custom of Pathnibhagam was prevalent in this community.8. There is a decision of the District Court of Negercoil in O. S. No. 109 of 1096 M. E. dated 22-12-1923, marked Ex. A-6, wherein it was observed :"But it has been held in Kolappa Pillay, page 179 that in the community Krishnavakakars to which the parties belong that when a man dies leaving two wives even though one wife might have only female issues such female issues are entitled to a half share as the Pathinibhagam to their mother. It appears to me therefore that under the ruling in Kolappa Pillays Select Decisions cited before in which 8 T.L.R. 51 and (1889) I.L.R. 16, Cal 758 (759) have been cited and followed, Plaintiffs are also entitled to a half share in the assets of Kunchan."There is another decision of the District Munsiffs Court of Kuzhithurai in C. S. No. 18 of 1959, dated 2nd January, 1960, wherein it was observed :"Ex. B. 26 judgment proceeded on the basis that as the parties belonged to Krishnan Vakakkar community per capita division among them is not allowable. That community does not follow Hindu Mithakshara Law. There is authority for the proposition that this community follows the system known as Patnibagam under which property of the deceased is inherited according to the number of widows he had irrespective of the existence of the children to the deceased."This decision recognised the existence of Pathnibhagam but not the special custom pleaded by the plaintiff.9. It is thus seen that most of the decisions either expressly or implicitly recognised the existence of custom of Pathnibhagam in this community, but the decision found in Ext. A-6 is the only one on the special kind of pathnibhagam pleaded by the plaintiff and is directly in point. But even this decision did not proceed on the basis of the evidence in the case. It relied on the observation of the learned Chief Justice in the decision already referred to, in 1944 TLR 710. This observation was not, however, based on a discussion of the evidence and was not necessary for the decision in that case, as already pointed out.10. While it is true that this community is a very small community found within a small local area and the cases that are likely to arise in that community, which will reach the courts may not be many, we cannot merely on the ground ignore the well established principle that before a custom can be held as having been proved merely on the basis of earlier decisions, those decisions should have been based on evidence adduced in respect of the cases. That test is not satisfied in this case. Neither of the two decisions which refer to the special kind of pathnibhagam pleaded by the plaintiff was based on the evidence in the case. Thus while the existence of the custom of pathnibhagam in the community may be said to have been established, the special kind of pathnibhagam pleaded by the plaintiff cannot be said to have been established and the appellant cannot succeed unless she establishes the latter. In this view it is unnecessary to go into the question of family arrangement. | 0[ds]9. It is thus seen that most of the decisions either expressly or implicitly recognised the existence of custom of Pathnibhagam in this community, but the decision found in Ext. A-6 is the only one on the special kind of pathnibhagam pleaded by the plaintiff and is directly in point. But even this decision did not proceed on the basis of the evidence in the case. It relied on the observation of the learned Chief Justice in the decision already referred to, in 1944 TLR 710. This observation was not, however, based on a discussion of the evidence and was not necessary for the decision in that case, as already pointed out.10. While it is true that this community is a very small community found within a small local area and the cases that are likely to arise in that community, which will reach the courts may not be many, we cannot merely on the ground ignore the well established principle that before a custom can be held as having been proved merely on the basis of earlier decisions, those decisions should have been based on evidence adduced in respect of the cases. That test is not satisfied in this case. Neither of the two decisions which refer to the special kind of pathnibhagam pleaded by the plaintiff was based on the evidence in the case. Thus while the existence of the custom of pathnibhagam in the community may be said to have been established, the special kind of pathnibhagam pleaded by the plaintiff cannot be said to have been established and the appellant cannot succeed unless she establishes the latter. In this view it is unnecessary to go into the question of family arrangement. | 0 | 2,298 | 312 | ### 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:
number of persons in each."Their Lordships, therefore, approached the evidence in that case with a knowledge that such a custom does exist, and was not an improbable one in the particular case, and after examining the evidence came to the conclusion that the custom of Patnibhaga was proved.6. We may now refer to the decisions that were cited before the Court below and were relied upon before this Court. The earliest one is a decision of the year 1890, in Ayikutti Bhagavathi v. Chithambarathanu Mathevan, reported in (1890) 8 TLR 51 where the effect of the evidence was stated as follows :"From the evidence on both sides, it is clear to us that Krishnanvakakkar to which the parties belong, follow the Hindu law with one or two points of divergence from it, viz. the widow cohabiting with the brother of her deceased husband and the existence of Pathini Bhagam."The next decision is of the year 1904, in Ramaswami Sadasivan v. Thanu Gouri, reported in Kolappa Pillais unreported important cases, p. 179. Here again on a consideration of the evidence it was held that the preponderance of evidence as a whole was in favour of Pathni Bhagam. But one of the learned Judges observed :"The Pathni Bhagam which prevails in this community seems to go even beyond the usual custom known as Pathni Bhagam..............that it is not only sons of different mothers that take per stripes (according to the number of mothers) but when one mother has got only female issue and another a male issue the female issue gets a half share in their fathers properties and the male issue by the other wife of the father takes the other half."It is upon this decision that the plaintiff based her whole case. It must be pointed out, however, that the learned Judge did not go into the evidence regarding the particular type of pathnibhagam which was stated to be prevalent among this community. Nor was it necessary to decide that question for the purpose of that case. It was a mere passing observation and this is a solitary case in which such a special custom is mentioned.7. We then come to another decision of the year 1944, in Nagaru Pillai Saraswathi Amma v. Thanu Pillai reported in 1944 T.L.R. 710. In that case also the special custom pleaded by the plaintiff did not arise for decision. What was urged was the right of absolute ownership for a widow of a member of a Krishnanvaka community. The argument was that the existence of Pathnibhagam in the community implied the principle that on the death of the husband of a Krishnavakakar woman, in the absence of his children, she was entitled to inherit her husbands property absolutely. This contention was rejected but the decision proceeded on the basis that the custom of Pathnibhagam was prevalent in this community.8. There is a decision of the District Court of Negercoil in O. S. No. 109 of 1096 M. E. dated 22-12-1923, marked Ex. A-6, wherein it was observed :"But it has been held in Kolappa Pillay, page 179 that in the community Krishnavakakars to which the parties belong that when a man dies leaving two wives even though one wife might have only female issues such female issues are entitled to a half share as the Pathinibhagam to their mother. It appears to me therefore that under the ruling in Kolappa Pillays Select Decisions cited before in which 8 T.L.R. 51 and (1889) I.L.R. 16, Cal 758 (759) have been cited and followed, Plaintiffs are also entitled to a half share in the assets of Kunchan."There is another decision of the District Munsiffs Court of Kuzhithurai in C. S. No. 18 of 1959, dated 2nd January, 1960, wherein it was observed :"Ex. B. 26 judgment proceeded on the basis that as the parties belonged to Krishnan Vakakkar community per capita division among them is not allowable. That community does not follow Hindu Mithakshara Law. There is authority for the proposition that this community follows the system known as Patnibagam under which property of the deceased is inherited according to the number of widows he had irrespective of the existence of the children to the deceased."This decision recognised the existence of Pathnibhagam but not the special custom pleaded by the plaintiff.9. It is thus seen that most of the decisions either expressly or implicitly recognised the existence of custom of Pathnibhagam in this community, but the decision found in Ext. A-6 is the only one on the special kind of pathnibhagam pleaded by the plaintiff and is directly in point. But even this decision did not proceed on the basis of the evidence in the case. It relied on the observation of the learned Chief Justice in the decision already referred to, in 1944 TLR 710. This observation was not, however, based on a discussion of the evidence and was not necessary for the decision in that case, as already pointed out.10. While it is true that this community is a very small community found within a small local area and the cases that are likely to arise in that community, which will reach the courts may not be many, we cannot merely on the ground ignore the well established principle that before a custom can be held as having been proved merely on the basis of earlier decisions, those decisions should have been based on evidence adduced in respect of the cases. That test is not satisfied in this case. Neither of the two decisions which refer to the special kind of pathnibhagam pleaded by the plaintiff was based on the evidence in the case. Thus while the existence of the custom of pathnibhagam in the community may be said to have been established, the special kind of pathnibhagam pleaded by the plaintiff cannot be said to have been established and the appellant cannot succeed unless she establishes the latter. In this view it is unnecessary to go into the question of family arrangement.
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9. It is thus seen that most of the decisions either expressly or implicitly recognised the existence of custom of Pathnibhagam in this community, but the decision found in Ext. A-6 is the only one on the special kind of pathnibhagam pleaded by the plaintiff and is directly in point. But even this decision did not proceed on the basis of the evidence in the case. It relied on the observation of the learned Chief Justice in the decision already referred to, in 1944 TLR 710. This observation was not, however, based on a discussion of the evidence and was not necessary for the decision in that case, as already pointed out.10. While it is true that this community is a very small community found within a small local area and the cases that are likely to arise in that community, which will reach the courts may not be many, we cannot merely on the ground ignore the well established principle that before a custom can be held as having been proved merely on the basis of earlier decisions, those decisions should have been based on evidence adduced in respect of the cases. That test is not satisfied in this case. Neither of the two decisions which refer to the special kind of pathnibhagam pleaded by the plaintiff was based on the evidence in the case. Thus while the existence of the custom of pathnibhagam in the community may be said to have been established, the special kind of pathnibhagam pleaded by the plaintiff cannot be said to have been established and the appellant cannot succeed unless she establishes the latter. In this view it is unnecessary to go into the question of family arrangement.
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Emp.,Mgmt.Of Ramkanali Coll.Of M/S.Bccl Vs. Workmen By Secy.Rasht.Coll.Maz.Sangh&Anr | us is that Section 14 of the Act stood substituted by an amendment made to it by deleting several provisions thereof. Section 14(1) of the Act provided as follows : "14. Employment of certain employees to continue - (1) Every person who is a workmen within the meaning of the Industrial Disputes Act, 1947, and has been immediately before the appointed date, an employee of the Central Government, in which the right, title and interest of such mine have vested under this Act, and shall hold office or service in the coal mine with the same rights would have been admissible to him if the rights in relation to such coal mine had not been transferred to, and vested in, the Central Government or the Government Company, as the case may be, and continue to do so unless and until his employment in such Coal Mine is duly terminated or until his remuneration, terms and conditions of employment are duly altered by the Central Government or the Government Company." (Rest of the provisions not extracted since unnecessary) 6. The said provision stood deleted and substituted by the following provision : "14. Liability of officer or other employee of a coal mine for transfer to any other coal mine. Notwithstanding anything contained in the Industrial Disputes Act, 1947, or in any other law for the time being in force, the service of any officer or other employee employed in a coal mine shall be liable to be transferred to any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority." 7. The argument advanced now is that protection available under Section 14 is no longer available on the date when the award was made and, therefore, contended that the award is nullity. The decision in Bhubaneshwar Singh & Anr. v. Union of India & Ors., 1994(6) SCC 77, is in the context of enactment of law reviewing the defect pointed out in a judgment and retrospectively enacting the law so as to render the judgment of the court ineffective thus enacting a validating provision was considered. What happened in that case was courts took the view that the sale price of the stock of extracted coal lying at the commencement of the appointed date had to be taken into account for determining the profit and loss during the period of management of the mine by Central Government. Thereafter, the Coal Mines Nationalisation Laws (Amendment) Ordinance and Act, 1986 was issued. Section 19(2) of the Principal Act as introduced by the Amending Act and Section 19 of the Amending Act providing that the amount payable as compensation shall be deemed to include and deemed always payable as compensation shall be deemed to include and deemed always to have included in the amount required to be paid to the owner in respect of all coal in stock on the date immediately before the appointed date. The said Amending Act was held to be valid as it altered the basis of the principle Act with retrospective effect as a result of which Court" judgment was rendered ineffective and, therefore, this Court upheld the said provision. That decision can have no application to the present case nor are we concerned with the validity of the provisions of the enactment in question. What we are concerned in the present case is the effect of the expression "substituted" used in the context of deletion of sub-clause of Section 14, as was original enacted. In Bhagat Ram Sharma v. Union of India & Ors., 1988 Supp. SCC 30, this Court stated that it is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. If there is both repeal and introduction of another provision in place thereof by a single exercise, the expression "substituted" is used. Such deletion has the effect of the repeal of the existing provision and also provide for introduction of new provision. In our view there is thus no real distinction between repeal and amendment or substitution in such cases. If that aspect is borne in mind, we have to apply the usual principles of finding out the rights of the parties flowing from an amendment of a provision. If there is a vested right and that right is to be taken away, necessarily the law will have to be retrospective in effect and if such a law retrospectively takes away such a right, it can no longer be contended that the right should be enforced. However, that legal position, in the present case, does not affect the rights of the parties as such. 8. The Act came into force on 1.5.1973 and the employees (including former employees whose services were terminated) will continue to hold such employment as it nationalisation had not taken place. In the present case, the finding of the Tribunal is that the employees in question had not ceased to be employees but were merely not allowed to do work. This finding of fact arrived at on appreciation of evidence, cannot be faulted with at all. Hence, the right enforced by the employees will not attract the amended provision of the Act which came into force on 15.12.1986. 9. In that view of the matter, we do not think that the award made by the Tribunal is in any way wrong particularly, when the decision has been given on facts that as on the date of the take over the concerned workmen were employees of the appellant management. If that is so, they never ceased to be employees. All that happened was they were prevented from working in the Colliery, which was set right by the award. We find no substance in this appeal. The same shall, therefore, stand dismissed. No costs. C.A. 7596/99 : 10. The questions arising for consideration being identical this appeal is also dismissed. | 0[ds]8. The Act came into force on 1.5.1973 and the employees (including former employees whose services were terminated) will continue to hold such employment as it nationalisation had not taken place. In the present case, the finding of the Tribunal is that the employees in question had not ceased to be employees but were merely not allowed to do work. This finding of fact arrived at on appreciation of evidence, cannot be faulted with at all. Hence, the right enforced by the employees will not attract the amended provision of the Act which came into force on 15.12.1986.In that view of the matter, we do not think that the award made by the Tribunal is in any way wrong particularly, when the decision has been given on facts that as on the date of the take over the concerned workmen were employees of the appellant management. If that is so, they never ceased to be employees. All that happened was they were prevented from working in the Colliery, which was set right by the award. We find no substance in this appeal. | 0 | 2,122 | 204 | ### 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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us is that Section 14 of the Act stood substituted by an amendment made to it by deleting several provisions thereof. Section 14(1) of the Act provided as follows : "14. Employment of certain employees to continue - (1) Every person who is a workmen within the meaning of the Industrial Disputes Act, 1947, and has been immediately before the appointed date, an employee of the Central Government, in which the right, title and interest of such mine have vested under this Act, and shall hold office or service in the coal mine with the same rights would have been admissible to him if the rights in relation to such coal mine had not been transferred to, and vested in, the Central Government or the Government Company, as the case may be, and continue to do so unless and until his employment in such Coal Mine is duly terminated or until his remuneration, terms and conditions of employment are duly altered by the Central Government or the Government Company." (Rest of the provisions not extracted since unnecessary) 6. The said provision stood deleted and substituted by the following provision : "14. Liability of officer or other employee of a coal mine for transfer to any other coal mine. Notwithstanding anything contained in the Industrial Disputes Act, 1947, or in any other law for the time being in force, the service of any officer or other employee employed in a coal mine shall be liable to be transferred to any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority." 7. The argument advanced now is that protection available under Section 14 is no longer available on the date when the award was made and, therefore, contended that the award is nullity. The decision in Bhubaneshwar Singh & Anr. v. Union of India & Ors., 1994(6) SCC 77, is in the context of enactment of law reviewing the defect pointed out in a judgment and retrospectively enacting the law so as to render the judgment of the court ineffective thus enacting a validating provision was considered. What happened in that case was courts took the view that the sale price of the stock of extracted coal lying at the commencement of the appointed date had to be taken into account for determining the profit and loss during the period of management of the mine by Central Government. Thereafter, the Coal Mines Nationalisation Laws (Amendment) Ordinance and Act, 1986 was issued. Section 19(2) of the Principal Act as introduced by the Amending Act and Section 19 of the Amending Act providing that the amount payable as compensation shall be deemed to include and deemed always payable as compensation shall be deemed to include and deemed always to have included in the amount required to be paid to the owner in respect of all coal in stock on the date immediately before the appointed date. The said Amending Act was held to be valid as it altered the basis of the principle Act with retrospective effect as a result of which Court" judgment was rendered ineffective and, therefore, this Court upheld the said provision. That decision can have no application to the present case nor are we concerned with the validity of the provisions of the enactment in question. What we are concerned in the present case is the effect of the expression "substituted" used in the context of deletion of sub-clause of Section 14, as was original enacted. In Bhagat Ram Sharma v. Union of India & Ors., 1988 Supp. SCC 30, this Court stated that it is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. If there is both repeal and introduction of another provision in place thereof by a single exercise, the expression "substituted" is used. Such deletion has the effect of the repeal of the existing provision and also provide for introduction of new provision. In our view there is thus no real distinction between repeal and amendment or substitution in such cases. If that aspect is borne in mind, we have to apply the usual principles of finding out the rights of the parties flowing from an amendment of a provision. If there is a vested right and that right is to be taken away, necessarily the law will have to be retrospective in effect and if such a law retrospectively takes away such a right, it can no longer be contended that the right should be enforced. However, that legal position, in the present case, does not affect the rights of the parties as such. 8. The Act came into force on 1.5.1973 and the employees (including former employees whose services were terminated) will continue to hold such employment as it nationalisation had not taken place. In the present case, the finding of the Tribunal is that the employees in question had not ceased to be employees but were merely not allowed to do work. This finding of fact arrived at on appreciation of evidence, cannot be faulted with at all. Hence, the right enforced by the employees will not attract the amended provision of the Act which came into force on 15.12.1986. 9. In that view of the matter, we do not think that the award made by the Tribunal is in any way wrong particularly, when the decision has been given on facts that as on the date of the take over the concerned workmen were employees of the appellant management. If that is so, they never ceased to be employees. All that happened was they were prevented from working in the Colliery, which was set right by the award. We find no substance in this appeal. The same shall, therefore, stand dismissed. No costs. C.A. 7596/99 : 10. The questions arising for consideration being identical this appeal is also dismissed.
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8. The Act came into force on 1.5.1973 and the employees (including former employees whose services were terminated) will continue to hold such employment as it nationalisation had not taken place. In the present case, the finding of the Tribunal is that the employees in question had not ceased to be employees but were merely not allowed to do work. This finding of fact arrived at on appreciation of evidence, cannot be faulted with at all. Hence, the right enforced by the employees will not attract the amended provision of the Act which came into force on 15.12.1986.In that view of the matter, we do not think that the award made by the Tribunal is in any way wrong particularly, when the decision has been given on facts that as on the date of the take over the concerned workmen were employees of the appellant management. If that is so, they never ceased to be employees. All that happened was they were prevented from working in the Colliery, which was set right by the award. We find no substance in this appeal.
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L. M. Chhabda and Sons Vs. Commissioner of Income Tax, Gujarat | was not carried on in that year, the assessee can obviously not seek to debit the expenditure incurred for carrying on that business, against his other income, for the outgoings are chargeable only against the income of a business which was carried on in the previous year. It follows that if an assessee carries on several distinct and independent businesses, and one of such businesses is closed before the previous year, he cannot claim allowance under section 10 of the Act of an outgoing attributable to the business which is closed against the income of his other businesses in that year5. The only question which therefore fell to be determined is whether the business in respect of which the allowance is claimed was carried on in the year of account 1954. The appellants were carrying on business of exhibiting cinematograph films in Ahmedabad and Bombay. The appellants, contended that they were carrying on only one business of exhibiting cinematograph films, and in the course of that business they conducted three theatres in Ahmedabad and one in Bombay. The business of exhibiting films in the Prakash Talkies was according to the appellants a part of that business and was not an independent business, and the outgoing attributable to the business of Prakash Talkies was a permissible deduction in the computation of total taxable income of the appellants from the business of exhibiting cinematograph films carried on by them in the year of account. In support of that contention counsel submitted that where an assessee is carrying on business ventures of the same character at different places it must be held as a matter of law that the ventures are parts of a single business. In our view, no such broad proposition of law can be accepted. Whether different ventures carried on by an assessee form parts of the same business must depend on the facts and circumstances of each caseCounsel for the appellants then contended that in any event there was one business carried on by the appellants of exhibiting cinematograph films at different places. He contended that the question whether different ventures carried on by an individual or a company form the same business or different businesses is a mixed question of law and fact and not a pure question of fact. Counsel relied upon the judgment of this court in Setabganj Sugar Mills Ltd. v. Commissioner of Income-tax. It is true that the question whether different ventures and activities of business carried on by an individual constitute one business or different businesses is not a pure question of fact. As pointed out by this court in Setabganj Sugar Mills Ltd.s case in determining whether different ventures may be said to constitute the same business it has to be seen whether there was any interconnection, any interlacing, any interdependence, any unity embracing the ventures, and whether the different ventures were so interlaced and so dovetailed into each other as to make them into the same business. These principles have to be applied to the facts before a legal inference can be drawn that different business ventures constitute one business. In the determination of the question, findings of fact are involved, because a variety of matters bearing on the unity of the business have to be investigated, such as unity of control and management, conduct of the business through the same agency, the inter-relation of the business, the employment of the same staff to run the business, the nature of the different transactions, the possibility of one being closed without affecting the texture of the other and so forth.6. The Tribunal proceeded to found its conclusion substantially upon two principal facts. They observed that the cinema theatres acquired by the appellants from time to time on lease or otherwise were run independently of one another with " separate identifiable books " and that the opening of a new theatre or closure of another did not affect the working of the remaining theatres. Counsel for the appellants contended that in raising an inference that Prakash Talkies constituted an independent business, the Tribunal ignored certain other relevant facts. Counsel said that the books of account in respect of the business in different theatres were separately maintained, but the result of the accounts was incorporated in the head office at Ahmedabad, and that the Appellate Assistant Commissioner had held that the litigation expenses in connection with the dispute relating to mesne profits were properly allowable as expenditure against the business income of the appellantsIt is true that the appellants were conducting cinema theatres in Ahmedabad and Bombay, and the result of the accounts of the different ventures was entered in the accounts maintained at the head office, but from that circumstance no inference necessarily arises that the exhibition of films in different theatres constituted the same business. It was for the appellants to establish that different ventures constitute parts of the same business. There is in this case no evidence about unity of control and management, or inter-relation of the business, or employment of the same staff to run the business, or the possibility of one theatre being closed with out affecting the rest of the business. The Appellate Assistant Commissioner did, it appears, in the computation of taxable income allow certain litigation expenses in connection with the suit relating to the Prakash Talkies. But the Appellate Assistant Commissioner did not expressly find that the business of Prakash Talkies was part of a larger business carried on by the appellants, and no such inference may be raised by implication. From the fact that no appeal was filed by the revenue against the allowance of litigation expenses it does not follow that the department acquiesced in the contention of the appellants7. On the facts found by the Tribunal it is difficult to hold that the appellants have made out their case that the venture of Prakash Talkies was a part of a general business of exhibiting films in cinema theatres carried on by the appellants | 0[ds]For income of a business to be taxable under section 10 of the Act it is one of the conditions that the assessee must carry on the business in the relevant year of account. If the business is discontinued before the cornmencement of the accounting year, the income attributable to that business received in the year cannot be taxed under section 10, because the source of income had ceased to exist. If the income of a business is not taxable under section 10 as income of a particular year because the business was not carried on in that year, the assessee can obviously not seek to debit the expenditure incurred for carrying on that business, against his other income, for the outgoings are chargeable only against the income of a business which was carried on in the previous year. It follows that if an assessee carries on several distinct and independent businesses, and one of such businesses is closed before the previous year, he cannot claim allowance under section 10 of the Act of an outgoing attributable to the business which is closed against the income of his other businesses in thatour view, no such broad proposition of law can be accepted. Whether different ventures carried on by an assessee form parts of the same business must depend on the facts and circumstances of eachfor the appellants then contended that in any event there was one business carried on by the appellants of exhibiting cinematograph films at different places. He contended that the question whether different ventures carried on by an individual or a company form the same business or different businesses is a mixed question of law and fact and not a pure question of fact. Counsel relied upon the judgment of this court in Setabganj Sugar Mills Ltd. v. Commissioner ofIt is true that the question whether different ventures and activities of business carried on by an individual constitute one business or different businesses is not a pure question of fact. As pointed out by this court in Setabganj Sugar Mills Ltd.s case in determining whether different ventures may be said to constitute the same business it has to be seen whether there was any interconnection, any interlacing, any interdependence, any unity embracing the ventures, and whether the different ventures were so interlaced and so dovetailed into each other as to make them into the same business. These principles have to be applied to the facts before a legal inference can be drawn that different business ventures constitute one business. In the determination of the question, findings of fact are involved, because a variety of matters bearing on the unity of the business have to be investigated, such as unity of control and management, conduct of the business through the same agency, theof the business, the employment of the same staff to run the business, the nature of the different transactions, the possibility of one being closed without affecting the texture of the other and sois true that the appellants were conducting cinema theatres in Ahmedabad and Bombay, and the result of the accounts of the different ventures was entered in the accounts maintained at the head office, but from that circumstance no inference necessarily arises that the exhibition of films in different theatres constituted the same business. It was for the appellants to establish that different ventures constitute parts of the same business. There is in this case no evidence about unity of control and management, orof the business, or employment of the same staff to run the business, or the possibility of one theatre being closed with out affecting the rest of the business. The Appellate Assistant Commissioner did, it appears, in the computation of taxable income allow certain litigation expenses in connection with the suit relating to the Prakash Talkies. But the Appellate Assistant Commissioner did not expressly find that the business of Prakash Talkies was part of a larger business carried on by the appellants, and no such inference may be raised by implication. From the fact that no appeal was filed by the revenue against the allowance of litigation expenses it does not follow that the department acquiesced in the contention of the appellants7. On the facts found by the Tribunal it is difficult to hold that the appellants have made out their case that the venture of Prakash Talkies was a part of a general business of exhibiting films in cinema theatres carried on by the appellants | 0 | 1,906 | 794 | ### 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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was not carried on in that year, the assessee can obviously not seek to debit the expenditure incurred for carrying on that business, against his other income, for the outgoings are chargeable only against the income of a business which was carried on in the previous year. It follows that if an assessee carries on several distinct and independent businesses, and one of such businesses is closed before the previous year, he cannot claim allowance under section 10 of the Act of an outgoing attributable to the business which is closed against the income of his other businesses in that year5. The only question which therefore fell to be determined is whether the business in respect of which the allowance is claimed was carried on in the year of account 1954. The appellants were carrying on business of exhibiting cinematograph films in Ahmedabad and Bombay. The appellants, contended that they were carrying on only one business of exhibiting cinematograph films, and in the course of that business they conducted three theatres in Ahmedabad and one in Bombay. The business of exhibiting films in the Prakash Talkies was according to the appellants a part of that business and was not an independent business, and the outgoing attributable to the business of Prakash Talkies was a permissible deduction in the computation of total taxable income of the appellants from the business of exhibiting cinematograph films carried on by them in the year of account. In support of that contention counsel submitted that where an assessee is carrying on business ventures of the same character at different places it must be held as a matter of law that the ventures are parts of a single business. In our view, no such broad proposition of law can be accepted. Whether different ventures carried on by an assessee form parts of the same business must depend on the facts and circumstances of each caseCounsel for the appellants then contended that in any event there was one business carried on by the appellants of exhibiting cinematograph films at different places. He contended that the question whether different ventures carried on by an individual or a company form the same business or different businesses is a mixed question of law and fact and not a pure question of fact. Counsel relied upon the judgment of this court in Setabganj Sugar Mills Ltd. v. Commissioner of Income-tax. It is true that the question whether different ventures and activities of business carried on by an individual constitute one business or different businesses is not a pure question of fact. As pointed out by this court in Setabganj Sugar Mills Ltd.s case in determining whether different ventures may be said to constitute the same business it has to be seen whether there was any interconnection, any interlacing, any interdependence, any unity embracing the ventures, and whether the different ventures were so interlaced and so dovetailed into each other as to make them into the same business. These principles have to be applied to the facts before a legal inference can be drawn that different business ventures constitute one business. In the determination of the question, findings of fact are involved, because a variety of matters bearing on the unity of the business have to be investigated, such as unity of control and management, conduct of the business through the same agency, the inter-relation of the business, the employment of the same staff to run the business, the nature of the different transactions, the possibility of one being closed without affecting the texture of the other and so forth.6. The Tribunal proceeded to found its conclusion substantially upon two principal facts. They observed that the cinema theatres acquired by the appellants from time to time on lease or otherwise were run independently of one another with " separate identifiable books " and that the opening of a new theatre or closure of another did not affect the working of the remaining theatres. Counsel for the appellants contended that in raising an inference that Prakash Talkies constituted an independent business, the Tribunal ignored certain other relevant facts. Counsel said that the books of account in respect of the business in different theatres were separately maintained, but the result of the accounts was incorporated in the head office at Ahmedabad, and that the Appellate Assistant Commissioner had held that the litigation expenses in connection with the dispute relating to mesne profits were properly allowable as expenditure against the business income of the appellantsIt is true that the appellants were conducting cinema theatres in Ahmedabad and Bombay, and the result of the accounts of the different ventures was entered in the accounts maintained at the head office, but from that circumstance no inference necessarily arises that the exhibition of films in different theatres constituted the same business. It was for the appellants to establish that different ventures constitute parts of the same business. There is in this case no evidence about unity of control and management, or inter-relation of the business, or employment of the same staff to run the business, or the possibility of one theatre being closed with out affecting the rest of the business. The Appellate Assistant Commissioner did, it appears, in the computation of taxable income allow certain litigation expenses in connection with the suit relating to the Prakash Talkies. But the Appellate Assistant Commissioner did not expressly find that the business of Prakash Talkies was part of a larger business carried on by the appellants, and no such inference may be raised by implication. From the fact that no appeal was filed by the revenue against the allowance of litigation expenses it does not follow that the department acquiesced in the contention of the appellants7. On the facts found by the Tribunal it is difficult to hold that the appellants have made out their case that the venture of Prakash Talkies was a part of a general business of exhibiting films in cinema theatres carried on by the appellants
### Response:
0
### Explanation:
For income of a business to be taxable under section 10 of the Act it is one of the conditions that the assessee must carry on the business in the relevant year of account. If the business is discontinued before the cornmencement of the accounting year, the income attributable to that business received in the year cannot be taxed under section 10, because the source of income had ceased to exist. If the income of a business is not taxable under section 10 as income of a particular year because the business was not carried on in that year, the assessee can obviously not seek to debit the expenditure incurred for carrying on that business, against his other income, for the outgoings are chargeable only against the income of a business which was carried on in the previous year. It follows that if an assessee carries on several distinct and independent businesses, and one of such businesses is closed before the previous year, he cannot claim allowance under section 10 of the Act of an outgoing attributable to the business which is closed against the income of his other businesses in thatour view, no such broad proposition of law can be accepted. Whether different ventures carried on by an assessee form parts of the same business must depend on the facts and circumstances of eachfor the appellants then contended that in any event there was one business carried on by the appellants of exhibiting cinematograph films at different places. He contended that the question whether different ventures carried on by an individual or a company form the same business or different businesses is a mixed question of law and fact and not a pure question of fact. Counsel relied upon the judgment of this court in Setabganj Sugar Mills Ltd. v. Commissioner ofIt is true that the question whether different ventures and activities of business carried on by an individual constitute one business or different businesses is not a pure question of fact. As pointed out by this court in Setabganj Sugar Mills Ltd.s case in determining whether different ventures may be said to constitute the same business it has to be seen whether there was any interconnection, any interlacing, any interdependence, any unity embracing the ventures, and whether the different ventures were so interlaced and so dovetailed into each other as to make them into the same business. These principles have to be applied to the facts before a legal inference can be drawn that different business ventures constitute one business. In the determination of the question, findings of fact are involved, because a variety of matters bearing on the unity of the business have to be investigated, such as unity of control and management, conduct of the business through the same agency, theof the business, the employment of the same staff to run the business, the nature of the different transactions, the possibility of one being closed without affecting the texture of the other and sois true that the appellants were conducting cinema theatres in Ahmedabad and Bombay, and the result of the accounts of the different ventures was entered in the accounts maintained at the head office, but from that circumstance no inference necessarily arises that the exhibition of films in different theatres constituted the same business. It was for the appellants to establish that different ventures constitute parts of the same business. There is in this case no evidence about unity of control and management, orof the business, or employment of the same staff to run the business, or the possibility of one theatre being closed with out affecting the rest of the business. The Appellate Assistant Commissioner did, it appears, in the computation of taxable income allow certain litigation expenses in connection with the suit relating to the Prakash Talkies. But the Appellate Assistant Commissioner did not expressly find that the business of Prakash Talkies was part of a larger business carried on by the appellants, and no such inference may be raised by implication. From the fact that no appeal was filed by the revenue against the allowance of litigation expenses it does not follow that the department acquiesced in the contention of the appellants7. On the facts found by the Tribunal it is difficult to hold that the appellants have made out their case that the venture of Prakash Talkies was a part of a general business of exhibiting films in cinema theatres carried on by the appellants
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JACOB PUNNEN & ANR Vs. UNITED INDIA INSURANCE CO. LTD | nations are seeking viable answers to the question of how to offer health care to their citizens. The World Health Organization (WHO) defines health as a dynamic state of complete physical, mental, spiritual and social well-being and not merely the absence of disease or infirmity. Healthy living conditions and good quality health is not only a necessary requirement it is also recognized as a fundamental right. Article 25 of the Universal Declaration of Human Rights 1948 lays down that everyone has the right to a standard of living, adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care. The International Covenant on Economic, Social and Cultural Rights, 1976, too recognizes the right to health, of citizens of every nation. 37. Part IV of the Indian Constitution which contain the Directive Principles of State Policy imposes duties on the state. Some of its provisions directly or indirectly are associated with public health. These principles direct the state to take measures to improve the condition of health care of the people. Articles 38 imposes duty on state that state secure a social order for the promotion of welfare of the people. Without an overall viable framework of public health, the state cannot achieve this obligation, in a meaningful manner. Article 39(e) relates to workers and enjoins the state to protect their health. Article 41 imposes the duty on the state to public assistance essentially for those who are sick and disabled. Article 42 casts primary responsibility upon the state to protect the health of infants and mother through maternity benefit. Article 47 spells out the duty of the state to raise the level of nutrition and standard of living of its people. Other provisions relating to health fall in this Part of the Constitution. The state is asked in particular, to direct its policies towards securing health of workers. 38. For a long time, state policy in this country was to involve only public sector entities in the insurance sector. All this changed, with the opening up of the economy and entry of private sector insurers. To regulate entities in the insurance business, the Insurance Regulatory and Development Authority Act, 1999 (the IRDA Act) was enacted. Its provisions, together with that of the Insurance Act, 1938, and regulations framed under both enactments, regulate all insurance related activities (except marine and certain kinds of insurance) in India. Section 2 (6C) of the Insurance Act defines health insurance business and defines it as follows: (6C) health insurance business means the effecting of contracts which provide for sickness benefits or medical, surgical or hospital expense benefits, whether in-patient or out-patient travel cover and personal accident cover;]. The IRDA (Health Insurance) Regulations, 2016, (which replaced the previously applicable regulations of 2013- which were preceded by guidelines regulating health insurance products contains regulations which are relevant for the purpose of this case. Chapter III of these regulations contains general provisions relating to Health Insurance. The relevant part of Regulation 11 reads as follows: 11. Designing of Health Insurance Policies a. Subject to Regulation 3 as applicable, Health insurance product may be designed to offer various covers; i. For specific age or gender groups ii. For different age groups iii. For treatment in all hospitals throughout the country, provided the hospitals comply with the definition specified iv. For treatment in specific hospitals only, provided the morbidity rates used are representative v. For treatment in specific geographies only, provided the morbidity rates used are representative Provided, such specifications are disclosed clearly upfront in the product prospectus, documents and during sale process. And provided that no insurer shall offer any benefit or service without any insurance element. ********** ********** ********** c. Insurer shall not compel the insured to migrate to other health insurance products. In case of migration from a withdrawn product, the insurer shall offer the policyholder an alternative available product subject to portability conditions. d. Insurers shall ensure adequate dissemination of product information on all their health insurance products on their websites. This information shall include a description of the product, copies of the prospectus as approved under the Product Filing Guidelines, proposal form, policy document wordings and premium rates inclusive and exclusive of Service Tax as applicable…. Regulation 13 is relevant for the purposes of this appeal; it deals with renewal of policies, and reads as follows: 13. Renewal of Health Policies issued by General Insurers and Health Insurers (not applicable for travel and personal accident policies) i. A health insurance policy shall ordinarily be renewable except on grounds of fraud, moral hazard or misrepresentation or non-cooperation by the insured, provided the policy is not withdrawn. ii. An insurer shall not deny the renewal of a health insurance policy on the ground that the insured had made a claim or claims in the preceding policy years, except for benefit based policies where the policy terminates following payment of the benefit covered under the policy like critical illness policy. iii. The insurer shall provide for a mechanism to condone a delay in renewal up to 30 days from the due date of renewal without deeming such condonation as a break in policy. However, coverage need not be available for such period. 8 [Provided the renewal premium shall not be accepted more than 90 days in advance of the due date of the premium payment.] iv. The promotion material and the policy document shall explicitly state the conditions under which a policy terminates, such as on the payment of the benefit in case of critical illness benefits policies. 39. These regulations only underline expressly what was implicit, i.e., the insurers obligation to inform every policy holder, about any important changes that would affect her or his choice of product. These have been given statutory shape. Yet, the obligation of the insurer to provide information to existing and policy holders, for them to exercise choice, meaningfully, and choose products suited to their needs, existed. In this case, that obligation was breached. | 0[ds]12. The previous policy (Effective for 2006-2007) indicated a limit of Rs.3 lakhs each for the appellants, and Rs. 1 lakh cover to Ajay Punnen Jacob (their son). The policy in question, i.e., for 2008-09 covered an overall limit of Rs. 8 lakhs (Rs. 4,25,000/- for the first appellant and Rs. 3,75,000/- for the second appellant, his wife). A copy of the policy which has been produced indicates that the premium (including service tax) paid was Rs.17,705/. The period of insurance was from 00.00 hrs of 28.03.2008 to midnight of 27.03.2009.14. What is apparent from the record is that upon receipt of the renewed notice, sometime in March 2008, the appellants issued a cheque dated 26.03.2008 which was duly received. That the cheque was encashed and a policy document issued by the insurer is not in dispute. Both parties, i.e., the first appellant and the Divisional Manager of the insurer have filed affidavits in evidence. However, the pleadings as well as these affidavits are unclear as to when the policy document was actually despatched and received by the insurer and on which date it was received by the appellants. Clearly, the policy containing the fresh terms was issued after receipt of the premium for the year 2008-09.16. In the facts of the present appeal, the insurer insisted that the 2008-09 Gold policy was in fact a new one, and not a renewal, which was available with the appellants, before the second appellants surgery took place.18. In such a situation, there can be said to be no consensus ad idem on the introduction of the cap on the coverage by the insurer, as the appellants were not informed that they had paid premium for a new policy, but were led to believe that they had in fact renewed a pre-existing policy on the same terms, with only difference being the removal of their son as a beneficiary and a higher coverage (from Rupees 6 lakhs to Rupees 8 lakhs in total) for the appellants, which was accepted by the insurer. The general rule of acceptance of an insurance proposal by the assured involves unconditional acceptance of all the terms [LIC v. Raja Vasireddy Komalavalli Kamba, (1984) 2 SCC 719 (para 15)]. Thus the cap on the coverage placed by the insurer without prior intimation to the assured and without providing an opportunity to the assured to seek alternate insurance policies that were more favourable to their needs was restrictive, and thus not enforceable.19. In these circumstances, this Court is of the opinion that the eventuality contemplated in Biman Krishna Bose (supra), i.e., inapplicability of old terms, in the cases of renewal, when the contracts provide or otherwise, has to be applied contextually. If the renewed contract is agreed, in all respects, by both parties, undoubtedly the fresh terms (with restrictions) would be binding. However, that would not be the case when a new term is introduced unilaterally about which the policy holder is in the dark. Further, the allusion to continuation of the terms of the Gold policy in respect of senior citizens (who were not to be compelled to migrate to another policy) but were to be subject to the same terms, upon payment of a different rate of premia, reinforces the conclusion that there was in fact, a renewal of the existing terms.20. Arguendo, assuming the appellants had received the policy documents on time, i.e., requisite disclosure had been made, and then the appellants had in fact misunderstood the terms and mistaken the new Gold policy for the previous policy, the question is, post payment of premium, were they in a position to protest, or do anything about it.The general law on avoidance of a contract was explained by this court in Canara Bank v. United India Insurance Co. Ltd. (2020) 3 SCC 455 in the following terms:[T]o make a contract void, the non-disclosure should be of some very material fact. No doubt, it would have been better if the Bank and the insured had given at least one tripartite agreement to the Insurance Company but, in our view, in the peculiar facts of this case, not disclosing the tripartite agreement or the names of the owners cannot be said to be such a material fact as to make the policy void or voidable. We are clearly of the view that there is no fraudulent claim made. There is no false declaration made and neither is the loss and damage occasioned by any wilful act or connivance of the insured.[Para. 45, emphasis supplied]22. In Tarsem Singh v. Sukhminder Singh (1998) 3 SCC 471, this court clarified that a unilateral mistake would not render a contract void under Indian contract law:20. Section 20 of the Act lays down as under:20. Agreement void where both parties are under mistake as to matter of fact.—Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void. Explanation. —An erroneous opinion as to the value of the thing which forms the subject-matter of the agreement, is not to be deemed a mistake as to a matter of fact.21. This section provides that an agreement would be void if both the parties to the agreement were under a mistake as to a matter of fact essential to the agreement. The mistake has to be mutual and in order that the agreement be treated as void, both the parties must be shown to be suffering from mistake of fact. Unilateral mistake is outside the scope of this section.Therefore, the law in India is that unless the unilateral mistake about the terms of a contract is so serious as to adversely undermine the entire bargain, it does not result in automatic avoidance of a contract. Applied to the facts of this case, it is evident that the appellants could insist on the old insurance policy, on the premise that it renewed the pre-existing policy. The other conclusion would be cold comfort to the party seeking insurance cover, as the choice would be to avoid it altogether- too drastic as to constitute a choice. The first point is answered accordingly, in favour of the appellants.24. A striking feature of insurance law, is the principle of uberrima fide (duty of utmost good faith) which applies to both the insured as well as one who seeks indemnity and cover. In United India Insurance Co. Ltd. v. M.K.J. Corpn. 1996 (6) SCC 428 this court underlined the importance of this principle, and its application to the insurer, in the following terms:It is a fundamental principle of Insurance law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured. The duty of good faith is of a continuing nature. After the completion of the contract, no material alteration can be made in its terms except by mutual consent. The materiality of a fact is judged by the circumstances existing at the time when the contract is concluded.28. The courts remedial power, to refuse enforcement of such contracts, or contractual terms, finds support in a few decisions of this Court. Recently, while deciding a consumer dispute, this Court applied the principle that unfair terms in a contract, cannot be enforced, if there is absence of free choice, on the part of a consumer, in Pioneer Urban Land & Infrastructure Ltd v Govindan Raghavan 2019 (5) SCC 525. It was held that a term introduced in a standard form contract can be unfair, as to constitute an unfair trade practice under the Consumer Protection Act, 1986, and observed as follows:A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one- sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.In the present case, the standard form contract, renewed year after year, left the appellants only with the choice of raising the insurance cover. The last renewal, of course, resulted in the deletion of their son as a beneficiary. However, even with this little choice, the result of their being kept in the dark about the new terms which placed limits on individual surgical procedures meant that had any other information with respect to the increased coverage which could have resulted in the higher individual limits (for surgical procedures) from they might have benefitted was denied to them. For that reason, the informational blackout, so to say, on the part of the insurer, was a crucial omission.30. During the hearings, it was urged on behalf of the insurer that the agent would have ordinarily informed the policy holder as she or he was in touch with them. The insurer did not lead evidence in this regard. Its agent was not asked to affirm any affidavit. In these circumstances, the inference to be drawn is that the agent did not inform – at the time of renewal of the policy, in 2008, about the limits in regard to coverage of individual procedures but also omitted them any information that there could have been possibility of higher coverage by payment of higher premium which might have resulted in a higher limit for the various surgeries or procedures covered by the policy.31. There is no doubt that insurance business is run through brokers and agents. The role of an agent in this regard is to be examined. This Court has spelt out, in the context of insurance business the role of insurance agents and the liability or responsibility of insurance companies in the event of failure to discharge the duties cast upon agents, and the likely vicarious responsibility or liability of the insurer.32. In Delhi Electric Supply Undertaking v. Basanti Devi (1999) 8 SCC 229 the insurer, Life Insurance Corporation, had floated a Salary Savings Scheme in which the employer deducted premium from its employees salaries and paid them to LIC on the employees behalf. The premium for a period of time was not deducted from an employees salary. On the death of the employee, his legal representatives claimed the insured amount. LIC rejected the claim on the grounds of lapse of the policy due to non-payment of premium, and that the actions of the employer did not bind LIC given that it was not an agent of LIC. This Court turned down the argument, and held that11. In the present case we are not concerned with the insurance agent. It is not the case of LIC that DESU could be permitted as an insurance agent within the meaning of the Insurance Act and the regulations. DESU is not procuring or soliciting any business for LIC. DESU is certainly not an insurance agent within the meaning of the aforesaid Insurance Act and the regulations but DESU is certainly an agent as defined in Section 182 of the Contract Act. The mode of collection of premium has been indicated in the Scheme itself and the employer has been assigned the role of collecting premium and remitting the same to LIC. As far as the employee as such is concerned, the employer will be an agent of LIC. It is a matter of common knowledge that insurance companies employ agents. When there is no insurance agent as defined in the regulations and the Insurance Act, the general principles of the law of agency as contained in the Contract Act are to be applied.12. Agent in Section 182 means a person employed to do any act for another, or to represent another in dealings with third persons and the person for whom such act is done, or who is so represented, is called the principal. Under Section 185 no consideration is necessary to create an agency. As far as Bhim Singh is concerned, there was no obligation cast on him to pay premium direct to LIC. Under the agreement between LIC and DESU, premium was payable to DESU who was to deduct every month from the salary of Bhim Singh and to transmit the same to LIC. DESU had, therefore, implied authority to collect premium from Bhim Singh on behalf of LIC. There was, thus, valid payment of premium by Bhim Singh. The authority of DESU to collect premium on behalf of LIC is implied. In any case, DESU had ostensible authority to collect premium from Bhim Singh on behalf of LIC. So far as Bhim Singh is concerned DESU was an agent of LIC to collect premium on its behalf.In the present case, even if, for arguments sake, one was to accept the submissions of the insurer which is that their agent should have informed the appellant policy holders, the absence of any evidence that he did or any evidence adduced by the insurer that despite information the appellants chose to accept the policy in the terms which they eventually were furnished, the only consequence would be that as principal the insurer is liable.35. The special status of senior citizens in general was taken cognizance of by the insurer as well, when it relied on guidelines (applicable for new insurance products, with effect from 28.1.2017) which inter alia, stated thatIn respect of Senior Citizens who are our existing policyholders, they will be allowed to renew the policy on existing terms and conditions but at revised rates of premium under Gold Policy. They should not be compelled to migrate to the new Scheme. If they so desire to enter the new Scheme, the same may be allowed on collection of fresh proposal.The insurers argument here was that no existing senior citizen policy holder could be compelled to migrate to a new Scheme. However, in the present case, the Mediclaim holders were kept in the dark, and asked to renew a policy, the terms of which had undergone a significant change in that its cover was radically different, and imposed limitations on the insurers liability. The argument of the insurer has no merit and is not acceptable.39. These regulations only underline expressly what was implicit, i.e., the insurers obligation to inform every policy holder, about any important changes that would affect her or his choice of product. These have been given statutory shape. Yet, the obligation of the insurer to provide information to existing and policy holders, for them to exercise choice, meaningfully, and choose products suited to their needs, existed. In this case, that obligation was breached. | 0 | 9,166 | 2,809 | ### 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:
nations are seeking viable answers to the question of how to offer health care to their citizens. The World Health Organization (WHO) defines health as a dynamic state of complete physical, mental, spiritual and social well-being and not merely the absence of disease or infirmity. Healthy living conditions and good quality health is not only a necessary requirement it is also recognized as a fundamental right. Article 25 of the Universal Declaration of Human Rights 1948 lays down that everyone has the right to a standard of living, adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care. The International Covenant on Economic, Social and Cultural Rights, 1976, too recognizes the right to health, of citizens of every nation. 37. Part IV of the Indian Constitution which contain the Directive Principles of State Policy imposes duties on the state. Some of its provisions directly or indirectly are associated with public health. These principles direct the state to take measures to improve the condition of health care of the people. Articles 38 imposes duty on state that state secure a social order for the promotion of welfare of the people. Without an overall viable framework of public health, the state cannot achieve this obligation, in a meaningful manner. Article 39(e) relates to workers and enjoins the state to protect their health. Article 41 imposes the duty on the state to public assistance essentially for those who are sick and disabled. Article 42 casts primary responsibility upon the state to protect the health of infants and mother through maternity benefit. Article 47 spells out the duty of the state to raise the level of nutrition and standard of living of its people. Other provisions relating to health fall in this Part of the Constitution. The state is asked in particular, to direct its policies towards securing health of workers. 38. For a long time, state policy in this country was to involve only public sector entities in the insurance sector. All this changed, with the opening up of the economy and entry of private sector insurers. To regulate entities in the insurance business, the Insurance Regulatory and Development Authority Act, 1999 (the IRDA Act) was enacted. Its provisions, together with that of the Insurance Act, 1938, and regulations framed under both enactments, regulate all insurance related activities (except marine and certain kinds of insurance) in India. Section 2 (6C) of the Insurance Act defines health insurance business and defines it as follows: (6C) health insurance business means the effecting of contracts which provide for sickness benefits or medical, surgical or hospital expense benefits, whether in-patient or out-patient travel cover and personal accident cover;]. The IRDA (Health Insurance) Regulations, 2016, (which replaced the previously applicable regulations of 2013- which were preceded by guidelines regulating health insurance products contains regulations which are relevant for the purpose of this case. Chapter III of these regulations contains general provisions relating to Health Insurance. The relevant part of Regulation 11 reads as follows: 11. Designing of Health Insurance Policies a. Subject to Regulation 3 as applicable, Health insurance product may be designed to offer various covers; i. For specific age or gender groups ii. For different age groups iii. For treatment in all hospitals throughout the country, provided the hospitals comply with the definition specified iv. For treatment in specific hospitals only, provided the morbidity rates used are representative v. For treatment in specific geographies only, provided the morbidity rates used are representative Provided, such specifications are disclosed clearly upfront in the product prospectus, documents and during sale process. And provided that no insurer shall offer any benefit or service without any insurance element. ********** ********** ********** c. Insurer shall not compel the insured to migrate to other health insurance products. In case of migration from a withdrawn product, the insurer shall offer the policyholder an alternative available product subject to portability conditions. d. Insurers shall ensure adequate dissemination of product information on all their health insurance products on their websites. This information shall include a description of the product, copies of the prospectus as approved under the Product Filing Guidelines, proposal form, policy document wordings and premium rates inclusive and exclusive of Service Tax as applicable…. Regulation 13 is relevant for the purposes of this appeal; it deals with renewal of policies, and reads as follows: 13. Renewal of Health Policies issued by General Insurers and Health Insurers (not applicable for travel and personal accident policies) i. A health insurance policy shall ordinarily be renewable except on grounds of fraud, moral hazard or misrepresentation or non-cooperation by the insured, provided the policy is not withdrawn. ii. An insurer shall not deny the renewal of a health insurance policy on the ground that the insured had made a claim or claims in the preceding policy years, except for benefit based policies where the policy terminates following payment of the benefit covered under the policy like critical illness policy. iii. The insurer shall provide for a mechanism to condone a delay in renewal up to 30 days from the due date of renewal without deeming such condonation as a break in policy. However, coverage need not be available for such period. 8 [Provided the renewal premium shall not be accepted more than 90 days in advance of the due date of the premium payment.] iv. The promotion material and the policy document shall explicitly state the conditions under which a policy terminates, such as on the payment of the benefit in case of critical illness benefits policies. 39. These regulations only underline expressly what was implicit, i.e., the insurers obligation to inform every policy holder, about any important changes that would affect her or his choice of product. These have been given statutory shape. Yet, the obligation of the insurer to provide information to existing and policy holders, for them to exercise choice, meaningfully, and choose products suited to their needs, existed. In this case, that obligation was breached.
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0
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have benefitted was denied to them. For that reason, the informational blackout, so to say, on the part of the insurer, was a crucial omission.30. During the hearings, it was urged on behalf of the insurer that the agent would have ordinarily informed the policy holder as she or he was in touch with them. The insurer did not lead evidence in this regard. Its agent was not asked to affirm any affidavit. In these circumstances, the inference to be drawn is that the agent did not inform – at the time of renewal of the policy, in 2008, about the limits in regard to coverage of individual procedures but also omitted them any information that there could have been possibility of higher coverage by payment of higher premium which might have resulted in a higher limit for the various surgeries or procedures covered by the policy.31. There is no doubt that insurance business is run through brokers and agents. The role of an agent in this regard is to be examined. This Court has spelt out, in the context of insurance business the role of insurance agents and the liability or responsibility of insurance companies in the event of failure to discharge the duties cast upon agents, and the likely vicarious responsibility or liability of the insurer.32. In Delhi Electric Supply Undertaking v. Basanti Devi (1999) 8 SCC 229 the insurer, Life Insurance Corporation, had floated a Salary Savings Scheme in which the employer deducted premium from its employees salaries and paid them to LIC on the employees behalf. The premium for a period of time was not deducted from an employees salary. On the death of the employee, his legal representatives claimed the insured amount. LIC rejected the claim on the grounds of lapse of the policy due to non-payment of premium, and that the actions of the employer did not bind LIC given that it was not an agent of LIC. This Court turned down the argument, and held that11. In the present case we are not concerned with the insurance agent. It is not the case of LIC that DESU could be permitted as an insurance agent within the meaning of the Insurance Act and the regulations. DESU is not procuring or soliciting any business for LIC. DESU is certainly not an insurance agent within the meaning of the aforesaid Insurance Act and the regulations but DESU is certainly an agent as defined in Section 182 of the Contract Act. The mode of collection of premium has been indicated in the Scheme itself and the employer has been assigned the role of collecting premium and remitting the same to LIC. As far as the employee as such is concerned, the employer will be an agent of LIC. It is a matter of common knowledge that insurance companies employ agents. When there is no insurance agent as defined in the regulations and the Insurance Act, the general principles of the law of agency as contained in the Contract Act are to be applied.12. Agent in Section 182 means a person employed to do any act for another, or to represent another in dealings with third persons and the person for whom such act is done, or who is so represented, is called the principal. Under Section 185 no consideration is necessary to create an agency. As far as Bhim Singh is concerned, there was no obligation cast on him to pay premium direct to LIC. Under the agreement between LIC and DESU, premium was payable to DESU who was to deduct every month from the salary of Bhim Singh and to transmit the same to LIC. DESU had, therefore, implied authority to collect premium from Bhim Singh on behalf of LIC. There was, thus, valid payment of premium by Bhim Singh. The authority of DESU to collect premium on behalf of LIC is implied. In any case, DESU had ostensible authority to collect premium from Bhim Singh on behalf of LIC. So far as Bhim Singh is concerned DESU was an agent of LIC to collect premium on its behalf.In the present case, even if, for arguments sake, one was to accept the submissions of the insurer which is that their agent should have informed the appellant policy holders, the absence of any evidence that he did or any evidence adduced by the insurer that despite information the appellants chose to accept the policy in the terms which they eventually were furnished, the only consequence would be that as principal the insurer is liable.35. The special status of senior citizens in general was taken cognizance of by the insurer as well, when it relied on guidelines (applicable for new insurance products, with effect from 28.1.2017) which inter alia, stated thatIn respect of Senior Citizens who are our existing policyholders, they will be allowed to renew the policy on existing terms and conditions but at revised rates of premium under Gold Policy. They should not be compelled to migrate to the new Scheme. If they so desire to enter the new Scheme, the same may be allowed on collection of fresh proposal.The insurers argument here was that no existing senior citizen policy holder could be compelled to migrate to a new Scheme. However, in the present case, the Mediclaim holders were kept in the dark, and asked to renew a policy, the terms of which had undergone a significant change in that its cover was radically different, and imposed limitations on the insurers liability. The argument of the insurer has no merit and is not acceptable.39. These regulations only underline expressly what was implicit, i.e., the insurers obligation to inform every policy holder, about any important changes that would affect her or his choice of product. These have been given statutory shape. Yet, the obligation of the insurer to provide information to existing and policy holders, for them to exercise choice, meaningfully, and choose products suited to their needs, existed. In this case, that obligation was breached.
|
Sirajul Haq Khan & Others Vs. The Sunni Central Board Of Waqf,U. P. & Others | have already noticed that Civil Suit No. 1 of 1940 had been instituted against the appellants with the sanction of the Advocate-General for their removal and for the settlement of a fresh scheme. The appellants were ordered to be removed by the learned trial Judge on October 16, 1941; but on appeal the decree of the trial court was set aside on March 7, 1946. It is the period between October 16, 1941, and March 7, 1946, that is sought to be excluded by the appellants under S. 15 of the Limitation Act. Mr. Dar contends that the order passed by the trial Judge on October 16, 1941, made it impossible for the appellants to file the present suit until the final decision of the appeal. By this order the appellants were told that they should not in any way interfere with the affairs of the Darga Sharif as members of the committee and should comply with the decree of the court by which they were removed from the office. It is obvious that this order cannot be construed as an order or an injunction staying the institution of the present suit. In fact the present suit is the result of the notification issued by respondent 1 on February 26, 1944, and the subsequent steps taken by it in the purported exercise of its authority under the Act. The cause of action for the suit has thus arisen subsequent to the making of the order on which Mr. Dar relies; and on the plain construction of the order it is impossible to hold that it is an order which can attract the application of S. 15 of the Limitation Act. We have already held that the relevant words used in S. 15 must be strictly construed without any consideration of equity, and so construed, we have no. doubt that the order on which Mr. Dar has placed reliance before us is wholly outside S. 51 of the Limitation Act. We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit. The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely. We must, accordingly, hold that the High Court was right in taking the view that S. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by S. 5 (2) of the Act.25. That takes us to the consideration of the next preliminary objection against the competence of the suit under S. 53 of the Act. Section 53 provides that"no suit shall be instituted against a Central Board in respect of any act purporting to be done by such Central Board under colour of this Act or for any relief in respect of any waqf until the expiration of two months next after notice in writing has been delivered to the Secretary, or left at the office of such Central Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left".This section is similar to S. 80 of the Civil Procedure Code. It is conceded by Mr. Dar that if S. 53 applies to the present suit the decision of the High Court cannot be successfully challenged because the notice required by S. 53 has not been given by the appellants before the institution of the present suit. His argument, however, is that the notification issued by respondent 1 on February 26, 1944 did not refer to the Darga and offerings made by the devotees before the Darga and he contends that the present suit in respect of these properties is outside the provisions of S. 53 and cannot be held to be barred on the ground that the requisite notice had not been given by the appellants. We are not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar. Mahsood Ghazi. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly, mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under S. 5(1). In regard to the offerings we do not see how offerings could have been mentioned in the notification. They are made from time to time by the devotees who visit the Darga and by their very nature they constitute the income of the Darga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under S. 5 (1). We must, therefore, reject the argument that any of the suit properties have not been dully notified by respondent 1. under S. 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under S. 53 before instituting the present suit. The requirement as to notice applies to suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of S. 53 if the argument that the Darga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellants failure to comply with the requirements of S. 5 | 0[ds]Since we have reached the conclusion that the High Court was right in holding that the suit was barred under S. 5(2) and was also incompetent under S. 53 of the Act, we do not propose to decide the question as to whether the properties in dispute are waqf within the meaning of the Act. The plea of limitation under S. 5(2) as well as the plea of the bar under S. 53 are in substance preliminary objections to the maintainability or competence of the suit and we propose to deal with these objections on the basis that the properties in dispute are outside the purview of the Act as alleged by the appellants.Thus there can be no. doubt that if the one years limitation prescribed by S. 5(2) applies to the present suit it would be barred by time unless the appellants are able to invoke the assistance of S. 15 of the Limitationis well settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no. doubt that the expression "any person interested in a waqf" must mean "any person interested in what is held to be a waqf". It is only persons who are interested in a transaction which is held to be a waqf who would sue for a declaration that the decision of the Commissioner of the Waqfs in that behalf is wrong, and that the transaction in fact is not a waqf under the Act. We must accordingly hold that the relevant clause on which Mr. Dar has placed his argument in repelling the application of S. 5 (2) to the present suit must not be strictly or literally construed, and that it should be taken to mean any person interested in a transaction which is held to be a waqf. On this construction the appellants are obviously interested in the suit properties which are notified to be waqf by the notification issued by respondent 1, and so the suit instituted by them would be governed by S. 5,(2) and as such it would be barred by time unless it is saved under S. 15 of the Limitationon the pleadings there can be no. doubt that the appellants case was that the Darga and its properties no. doubt constituted a waqf under the Act, but they did not fall within the purview of the Act because they belong to the category of waqfs which are excepted by S. 2 (ii) (a) and (c). The argument based on the application of S. 2 has not been raised before us and so on a consideration of the pleadings of the appellants it would be open to respondent 1 to contend that the appellants are admittedly interested in the waqf and their suit falls within the mischief of S. 5 even if the words "any person interested in a waqf" are literally and strictly construed.We have already held that the relevant words used in S. 15 must be strictly construed without any consideration of equity, and so construed, we have no. doubt that the order on which Mr. Dar has placed reliance before us is wholly outside S. 51 of the Limitation Act. We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit. The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely. We must, accordingly, hold that the High Court was right in taking the view that S. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by S. 5 (2) of theare not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar. Mahsood Ghazi. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly, mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under S. 5(1). In regard to the offerings we do not see how offerings could have been mentioned in the notification. They are made from time to time by the devotees who visit the Darga and by their very nature they constitute the income of the Darga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under S. 5 (1). We must, therefore, reject the argument that any of the suit properties have not been dully notified by respondent 1. under S. 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under S. 53 before instituting the present suit. The requirement as to notice applies to suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of S. 53 if the argument that the Darga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellants failure to comply with the requirements of S. 5 | 0 | 8,452 | 1,084 | ### 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:
have already noticed that Civil Suit No. 1 of 1940 had been instituted against the appellants with the sanction of the Advocate-General for their removal and for the settlement of a fresh scheme. The appellants were ordered to be removed by the learned trial Judge on October 16, 1941; but on appeal the decree of the trial court was set aside on March 7, 1946. It is the period between October 16, 1941, and March 7, 1946, that is sought to be excluded by the appellants under S. 15 of the Limitation Act. Mr. Dar contends that the order passed by the trial Judge on October 16, 1941, made it impossible for the appellants to file the present suit until the final decision of the appeal. By this order the appellants were told that they should not in any way interfere with the affairs of the Darga Sharif as members of the committee and should comply with the decree of the court by which they were removed from the office. It is obvious that this order cannot be construed as an order or an injunction staying the institution of the present suit. In fact the present suit is the result of the notification issued by respondent 1 on February 26, 1944, and the subsequent steps taken by it in the purported exercise of its authority under the Act. The cause of action for the suit has thus arisen subsequent to the making of the order on which Mr. Dar relies; and on the plain construction of the order it is impossible to hold that it is an order which can attract the application of S. 15 of the Limitation Act. We have already held that the relevant words used in S. 15 must be strictly construed without any consideration of equity, and so construed, we have no. doubt that the order on which Mr. Dar has placed reliance before us is wholly outside S. 51 of the Limitation Act. We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit. The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely. We must, accordingly, hold that the High Court was right in taking the view that S. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by S. 5 (2) of the Act.25. That takes us to the consideration of the next preliminary objection against the competence of the suit under S. 53 of the Act. Section 53 provides that"no suit shall be instituted against a Central Board in respect of any act purporting to be done by such Central Board under colour of this Act or for any relief in respect of any waqf until the expiration of two months next after notice in writing has been delivered to the Secretary, or left at the office of such Central Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left".This section is similar to S. 80 of the Civil Procedure Code. It is conceded by Mr. Dar that if S. 53 applies to the present suit the decision of the High Court cannot be successfully challenged because the notice required by S. 53 has not been given by the appellants before the institution of the present suit. His argument, however, is that the notification issued by respondent 1 on February 26, 1944 did not refer to the Darga and offerings made by the devotees before the Darga and he contends that the present suit in respect of these properties is outside the provisions of S. 53 and cannot be held to be barred on the ground that the requisite notice had not been given by the appellants. We are not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar. Mahsood Ghazi. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly, mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under S. 5(1). In regard to the offerings we do not see how offerings could have been mentioned in the notification. They are made from time to time by the devotees who visit the Darga and by their very nature they constitute the income of the Darga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under S. 5 (1). We must, therefore, reject the argument that any of the suit properties have not been dully notified by respondent 1. under S. 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under S. 53 before instituting the present suit. The requirement as to notice applies to suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of S. 53 if the argument that the Darga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellants failure to comply with the requirements of S. 5
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0
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Since we have reached the conclusion that the High Court was right in holding that the suit was barred under S. 5(2) and was also incompetent under S. 53 of the Act, we do not propose to decide the question as to whether the properties in dispute are waqf within the meaning of the Act. The plea of limitation under S. 5(2) as well as the plea of the bar under S. 53 are in substance preliminary objections to the maintainability or competence of the suit and we propose to deal with these objections on the basis that the properties in dispute are outside the purview of the Act as alleged by the appellants.Thus there can be no. doubt that if the one years limitation prescribed by S. 5(2) applies to the present suit it would be barred by time unless the appellants are able to invoke the assistance of S. 15 of the Limitationis well settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no. doubt that the expression "any person interested in a waqf" must mean "any person interested in what is held to be a waqf". It is only persons who are interested in a transaction which is held to be a waqf who would sue for a declaration that the decision of the Commissioner of the Waqfs in that behalf is wrong, and that the transaction in fact is not a waqf under the Act. We must accordingly hold that the relevant clause on which Mr. Dar has placed his argument in repelling the application of S. 5 (2) to the present suit must not be strictly or literally construed, and that it should be taken to mean any person interested in a transaction which is held to be a waqf. On this construction the appellants are obviously interested in the suit properties which are notified to be waqf by the notification issued by respondent 1, and so the suit instituted by them would be governed by S. 5,(2) and as such it would be barred by time unless it is saved under S. 15 of the Limitationon the pleadings there can be no. doubt that the appellants case was that the Darga and its properties no. doubt constituted a waqf under the Act, but they did not fall within the purview of the Act because they belong to the category of waqfs which are excepted by S. 2 (ii) (a) and (c). The argument based on the application of S. 2 has not been raised before us and so on a consideration of the pleadings of the appellants it would be open to respondent 1 to contend that the appellants are admittedly interested in the waqf and their suit falls within the mischief of S. 5 even if the words "any person interested in a waqf" are literally and strictly construed.We have already held that the relevant words used in S. 15 must be strictly construed without any consideration of equity, and so construed, we have no. doubt that the order on which Mr. Dar has placed reliance before us is wholly outside S. 51 of the Limitation Act. We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit. The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely. We must, accordingly, hold that the High Court was right in taking the view that S. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by S. 5 (2) of theare not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar. Mahsood Ghazi. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly, mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under S. 5(1). In regard to the offerings we do not see how offerings could have been mentioned in the notification. They are made from time to time by the devotees who visit the Darga and by their very nature they constitute the income of the Darga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under S. 5 (1). We must, therefore, reject the argument that any of the suit properties have not been dully notified by respondent 1. under S. 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under S. 53 before instituting the present suit. The requirement as to notice applies to suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of S. 53 if the argument that the Darga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellants failure to comply with the requirements of S. 5
|
Balwan Singh Vs. Prakash Chand and Others (Vice-Versa) | other use of the tractor on the date of the poll if that was within his special knowledge, but he has not done so. On the other hand, as has been shown, his attempt to prove that the tractor had been sent to the National Sugar Institute met with dismal failure. His wife Smt. Vimla did not even appear as a witness and no attempt was made even to examine the driver of the tractor although the appellant has stated that tractor UPG 9962 was driven by a driver whose name was Rangilal.22. It is not always possible for an election petitioner to adduce direct evidence to p rove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from . the proved circumstances where such inference is justifiable. Reference in this connection may be made to the decisions of this Court in Bhagwan Datta Shastri v. Badri Narayan Singh and others(A.I.R. 1960 S.C. 200.) and Shri Umed v. Raj Singh and others(A.I.R. 1975 S.C. 43.). In the present case, it has been proved by clear and reliable evidence that tractor UPG 9962 was used for the conveyance of electors to and from the Naubasta 1 a polling station, and r that it was so used by the workers of the appellant. Then there is the further fact that the voters were conveyed free of cost. It has also been proved that the tractor belonged to the appellants wife and he could not succeed in his effort to prove that it was used elsewhere or for some other purpose. In these facts and circumstances, it would be quite permissible to draw the inference that the tractor had been procured, by the appellant for the free conveyance of the electors.For the reasons mentioned above, we have no doubt that the finding of the High Court that appellant Balwan Singh procured `tractor No. UPG 9962 with trolly and that they were used for the purpose of transporting the voters to the Naubasta polling station, and he thereby committed a corrupt practice within the meaning of section 123(5) of the Acts. is correct and must be upheld. In view of this categorical finding it is not necessary for us to examine the allegation regarding the hiring or procuring of tractor No. UTE 5865 and jeep No. UPW 359 for the free conveyance of electors to two other polling stations.23. It may be mentioned that in arriving at the above finding we have taken due note of the view expressed by this Court in Ram Awadesh Singh v. Sumitra Devi and others([1972] 2 S.C.R. 674.) in regard to the generation of factious feelings during elections and their continuance even after the election enabling the parties to produce a large number of witnesses some of whom may be seemingly disinterested, and the view expressed in Rahim Khan v. Khurshid Ahmed and others(19751 S.C.R. 643.) that an election once held should not be treated in a light-hearted manner and the court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate. So also, we have noticed the view expressed in Baburao Ragaji Karem ore and others v. Govind and others([1974] 2 S.C.R. 429.) that the Court should examine the evidence having regard to the fact that where the electorate has chosen their candidate at an election, their choice ought not to be lightly upset. We have also taken notice of the view expressed by Ray C.J. in Smt. Indira Nehru Gandhi v. Raj Narain(A.I.R. 1975 S.C. 299.) that in an election contest it is the public interest, not the parties claims, which is the paramount concern. Mr. Bindra has placed consider " able reliance on these decisions. But, as has been shown, the finding of the High Court regarding the aforesaid corrupt practice is based on clear, cogent and convincing evidence and there is no justification for interfering with it.Mr. Bindra has laid much stress on the fact that the appellant was successful at the election to the U.P. Legislative Assembly from another constituency in 1957, but his election was set aside on the round, inter alia, that he and/or his election agent and/or other persons with his consent, had committed corrupt practice, including the corrupt practice of hiring a tractor for the conveyance of electors. He has argued that in view of this Courts decision against him in Balwan Singh v. Shri Lakshmi Narain and others (supra) he could not possibly have taken the risk of committing another similar corrupt practice at the election in question. The argument is based on mere conjecture and cannot disprove or rebut the clear, cogent and reliable evidence on which the appellant has been held guilty of committing the corrupt practice in this case.24. Mr. Bindra tried to argue further that the High Court committed an illegality in setting aside the appellants election without finding that the result of the election had been materially affected thereby. The argument is misconceived, for it is not the requirement of section 100(1) (b) which has been found to be applicable to the corrupt practice in question, that the High Court should declare the election of the returned candidate to be void only if the result of the election has been materially affected by it.25. Another argument of Mr. Bindra was that the corrupt practice in question should not have been found to have been committed as the election petitioners did not examine themselves during the course of the trial in the High Court. There was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely. | 0[ds]In view of this categorical finding it is not necessary for us to examine the allegation regarding the hiring or procuring of tractor No. UTE 5865 and jeep No. UPW 359 for the free conveyance of electors to two other pollingmay be mentioned that in arriving at the above finding we have taken due note of the view expressed by this Court in Ram Awadesh Singh v. Sumitra Devi and others([1972] 2 S.C.R. 674.) in regard to the generation of factious feelings during elections and their continuance even after the election enabling the parties to produce a large number of witnesses some of whom may be seemingly disinterested, and the view expressed in Rahim Khan v. Khurshid Ahmed and others(19751 S.C.R. 643.) that an election once held should not be treated in a light-hearted manner and the court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate. So also, we have noticed the view expressed in Baburao Ragaji Karem ore and others v. Govind and others([1974] 2 S.C.R. 429.) that the Court should examine the evidence having regard to the fact that where the electorate has chosen their candidate at an election, their choice ought not to be lightly upset. We have also taken notice of the view expressed by Ray C.J. in Smt. Indira Nehru Gandhi v. Raj Narain(A.I.R. 1975 S.C. 299.) that in an election contest it is the public interest, not the parties claims, which is the paramount concern. Mr. Bindra has placed consider " able reliance on these decisions. But, as has been shown, the finding of the High Court regarding the aforesaid corrupt practice is based on clear, cogent and convincing evidence and there is no justification for interfering with it.Mr. Bindra has laid much stress on the fact that the appellant was successful at the election to the U.P. Legislative Assembly from another constituency in 1957, but his election was set aside on the round, inter alia, that he and/or his election agent and/or other persons with his consent, had committed corrupt practice, including the corrupt practice of hiring a tractor for the conveyance of electors. He has argued that in view of this Courts decision against him in Balwan Singh v. Shri Lakshmi Narain and others (supra) he could not possibly have taken the risk of committing another similar corrupt practice at the election in question. The argument is based on mere conjecture and cannot disprove or rebut the clear, cogent and reliable evidence on which the appellant has been held guilty of committing the corrupt practice in this case.Bindra tried to argue further that the High Court committed an illegality in setting aside the appellants election without finding that the result of the election had been materially affected thereby. The argument is misconceived, for it is not the requirement of section 100(1) (b) which has been found to be applicable to the corrupt practice in question, that the High Court should declare the election of the returned candidate to be void only if the result of the election has been materially affected byargument of Mr. Bindra was that the corrupt practice in question should not have been found to have been committed as the election petitioners did not examine themselves during the course of the trial in the High Court. There was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely. | 0 | 8,288 | 683 | ### 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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other use of the tractor on the date of the poll if that was within his special knowledge, but he has not done so. On the other hand, as has been shown, his attempt to prove that the tractor had been sent to the National Sugar Institute met with dismal failure. His wife Smt. Vimla did not even appear as a witness and no attempt was made even to examine the driver of the tractor although the appellant has stated that tractor UPG 9962 was driven by a driver whose name was Rangilal.22. It is not always possible for an election petitioner to adduce direct evidence to p rove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from . the proved circumstances where such inference is justifiable. Reference in this connection may be made to the decisions of this Court in Bhagwan Datta Shastri v. Badri Narayan Singh and others(A.I.R. 1960 S.C. 200.) and Shri Umed v. Raj Singh and others(A.I.R. 1975 S.C. 43.). In the present case, it has been proved by clear and reliable evidence that tractor UPG 9962 was used for the conveyance of electors to and from the Naubasta 1 a polling station, and r that it was so used by the workers of the appellant. Then there is the further fact that the voters were conveyed free of cost. It has also been proved that the tractor belonged to the appellants wife and he could not succeed in his effort to prove that it was used elsewhere or for some other purpose. In these facts and circumstances, it would be quite permissible to draw the inference that the tractor had been procured, by the appellant for the free conveyance of the electors.For the reasons mentioned above, we have no doubt that the finding of the High Court that appellant Balwan Singh procured `tractor No. UPG 9962 with trolly and that they were used for the purpose of transporting the voters to the Naubasta polling station, and he thereby committed a corrupt practice within the meaning of section 123(5) of the Acts. is correct and must be upheld. In view of this categorical finding it is not necessary for us to examine the allegation regarding the hiring or procuring of tractor No. UTE 5865 and jeep No. UPW 359 for the free conveyance of electors to two other polling stations.23. It may be mentioned that in arriving at the above finding we have taken due note of the view expressed by this Court in Ram Awadesh Singh v. Sumitra Devi and others([1972] 2 S.C.R. 674.) in regard to the generation of factious feelings during elections and their continuance even after the election enabling the parties to produce a large number of witnesses some of whom may be seemingly disinterested, and the view expressed in Rahim Khan v. Khurshid Ahmed and others(19751 S.C.R. 643.) that an election once held should not be treated in a light-hearted manner and the court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate. So also, we have noticed the view expressed in Baburao Ragaji Karem ore and others v. Govind and others([1974] 2 S.C.R. 429.) that the Court should examine the evidence having regard to the fact that where the electorate has chosen their candidate at an election, their choice ought not to be lightly upset. We have also taken notice of the view expressed by Ray C.J. in Smt. Indira Nehru Gandhi v. Raj Narain(A.I.R. 1975 S.C. 299.) that in an election contest it is the public interest, not the parties claims, which is the paramount concern. Mr. Bindra has placed consider " able reliance on these decisions. But, as has been shown, the finding of the High Court regarding the aforesaid corrupt practice is based on clear, cogent and convincing evidence and there is no justification for interfering with it.Mr. Bindra has laid much stress on the fact that the appellant was successful at the election to the U.P. Legislative Assembly from another constituency in 1957, but his election was set aside on the round, inter alia, that he and/or his election agent and/or other persons with his consent, had committed corrupt practice, including the corrupt practice of hiring a tractor for the conveyance of electors. He has argued that in view of this Courts decision against him in Balwan Singh v. Shri Lakshmi Narain and others (supra) he could not possibly have taken the risk of committing another similar corrupt practice at the election in question. The argument is based on mere conjecture and cannot disprove or rebut the clear, cogent and reliable evidence on which the appellant has been held guilty of committing the corrupt practice in this case.24. Mr. Bindra tried to argue further that the High Court committed an illegality in setting aside the appellants election without finding that the result of the election had been materially affected thereby. The argument is misconceived, for it is not the requirement of section 100(1) (b) which has been found to be applicable to the corrupt practice in question, that the High Court should declare the election of the returned candidate to be void only if the result of the election has been materially affected by it.25. Another argument of Mr. Bindra was that the corrupt practice in question should not have been found to have been committed as the election petitioners did not examine themselves during the course of the trial in the High Court. There was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely.
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0
### Explanation:
In view of this categorical finding it is not necessary for us to examine the allegation regarding the hiring or procuring of tractor No. UTE 5865 and jeep No. UPW 359 for the free conveyance of electors to two other pollingmay be mentioned that in arriving at the above finding we have taken due note of the view expressed by this Court in Ram Awadesh Singh v. Sumitra Devi and others([1972] 2 S.C.R. 674.) in regard to the generation of factious feelings during elections and their continuance even after the election enabling the parties to produce a large number of witnesses some of whom may be seemingly disinterested, and the view expressed in Rahim Khan v. Khurshid Ahmed and others(19751 S.C.R. 643.) that an election once held should not be treated in a light-hearted manner and the court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate. So also, we have noticed the view expressed in Baburao Ragaji Karem ore and others v. Govind and others([1974] 2 S.C.R. 429.) that the Court should examine the evidence having regard to the fact that where the electorate has chosen their candidate at an election, their choice ought not to be lightly upset. We have also taken notice of the view expressed by Ray C.J. in Smt. Indira Nehru Gandhi v. Raj Narain(A.I.R. 1975 S.C. 299.) that in an election contest it is the public interest, not the parties claims, which is the paramount concern. Mr. Bindra has placed consider " able reliance on these decisions. But, as has been shown, the finding of the High Court regarding the aforesaid corrupt practice is based on clear, cogent and convincing evidence and there is no justification for interfering with it.Mr. Bindra has laid much stress on the fact that the appellant was successful at the election to the U.P. Legislative Assembly from another constituency in 1957, but his election was set aside on the round, inter alia, that he and/or his election agent and/or other persons with his consent, had committed corrupt practice, including the corrupt practice of hiring a tractor for the conveyance of electors. He has argued that in view of this Courts decision against him in Balwan Singh v. Shri Lakshmi Narain and others (supra) he could not possibly have taken the risk of committing another similar corrupt practice at the election in question. The argument is based on mere conjecture and cannot disprove or rebut the clear, cogent and reliable evidence on which the appellant has been held guilty of committing the corrupt practice in this case.Bindra tried to argue further that the High Court committed an illegality in setting aside the appellants election without finding that the result of the election had been materially affected thereby. The argument is misconceived, for it is not the requirement of section 100(1) (b) which has been found to be applicable to the corrupt practice in question, that the High Court should declare the election of the returned candidate to be void only if the result of the election has been materially affected byargument of Mr. Bindra was that the corrupt practice in question should not have been found to have been committed as the election petitioners did not examine themselves during the course of the trial in the High Court. There was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely.
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Management of Hindustan Steel Limited Vs. Workmen & Others | normal or ordinary sense in an existing or continuous industry by adopting a simple yard-stick of the length of service of the retrenched workmen doing away with the perplexing variety of factors for determining the appropriate relief in each case.In Hari Prasad Shiv Shankar Shukla v. A. D. Divekar, 1957 SCR 121 = (AIR 1957 SC 121 )it was held that this section was not intended by the Legislature to be applicable to bona fide closure of business. This decision led to amendment of the Act by the Parliament. In 1957 S. 25FFF was inserted in order to give benefit of S. 25F to the retrenched workmen where an undertaking is closed down "for any reason whatsoever". We need not refer to the amendment of S. 25FFF because that section does not directly concern us. According to sub-s. (2) of S. 25FFF it is quite clear that in case of closure of the categories of undertakings as mentioned therein, no workman employed in those undertakings can claim compensation under cl. (b) of S. 25F. The language of S. 25FFF (2) is plain and unambiguous. Indeed, the learned counsel for the respondent also did not dispute that if it were to be held in this case that the undertaking had been closed down then cl. (b) of Section 25F would not be attracted and Shri Naidu would not be entitled to claim relief under that clause. According to Shri Madan Mohan, however, the present was not a case of closure of the undertaking. His submission was that only the work of the Housing Project at Ranchi had been completed. It was argued that unless the entire undertaking of the appellant was closed down S. 25FFF (2) could not apply. This submission is, in our opinion, not acceptable.10. The word undertaking as used in S. 25FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondents. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. The question has indeed to be decided on the facts of each case. In the present case the Ranchi Housing Project was clearly a distinct venture undertaken by the appellant and it had a distinct beginning and an end. Separate Office was apparently s up for this venture and on the completion of the project or enterprise that undertaking was closed down. The Tribunal has actually so found. Its conclusion has not been shown to be wrong and were have no hesitation in agreeing with its view. There is no cogent ground for reopening the Tribunals conclusion under Article 136 of the Constitution. It is also noteworthy that Shri Naidu had been recruited to the work-charged establishment of the Ranchi Housing Project. In Workmen of the Indian Leaf Tobacco Development Co. Ltd. v. Management, (1969) 2 SCR 282 =(AIR 1970 SC 860 ) closure of eight out of 21 depots of the company though not amounting to closure of its entire business was considered to amount to a closure within the contemplation of Section 25-FFF. In Parry and Co. Ltd. v. P. C. Lal, (1969) 2 SCR 976 = (AIR 1970 SC 1334 ) it was observed that it was within the managerial discretion of an employer to organise and arrange his business in the manner he considers best and that if a bona fide scheme for such re-organisation results in surplusage of employees, no employer is expected to carry on the burden of such economic deadweight and retrenchment has to be accepted as inevitable however unfortunate. The reasoning and ratio of these decisions support the appellants argument.11. Now, under Sec. 25-FFF (1) which creates a statutory fiction, all that Shri Naidu was entitled to, was notice and compensation in accordance with the provisions of Section 25-F as if he had been retrenched. Retrenchment notice, Ex. 7, dated June 29, 1968, quite clearly complies with this requirement. On behalf of the respondent, as already noticed, it is not disputed that there has been no failure to give notice as required by Section 25F, in case Clause (b) is held inapplicable.12. It is also clear that the respondent had not specifically raised any plea of defect in the notice given to Shri Naidu. The Tribunal, however, allowed the objection of the notice Ex. 7 being conditional to be argued on the view that the notice was infirm on the face of it and that the objection was covered by the general plea in the written statement filed on behalf of Shri Naidu, to the effect that the grounds given in the retrenchment notice were all false and cooked up. On this view the notice was held to be conditional and, therefore, invalid and Shri Naidu was held entitled to be reinstated.13. In our view, Shri Setalvad was fully justified in submitting that the management had been taken by surprise and that the Tribunal was in error in holding the general ground in the written statement to cover the specific plea of infirmity of the notice because of its being conditional. The plea of the statutory defect in the notice should, in our opinion, have been reasonably specific and precise so as to enable the appellant to meet it. The general plea could not serve the object of putting the appellant on guard about the precise case to be met at the trial and tell the management the precise nature of the plea with respect to the defect in the notice, to enable them to meet it. In our view, if Clause (b) of Section 25-F is excluded from consideration and the plea relating to infirmity of the notice is ruled out, as we hold on these two points in agreement with Shri Setalvad, then, the impugned order is clearly insupportable. | 1[ds]We need not refer to the amendment of S. 25FFF because that section does not directly concern us. According to sub-s. (2) of S. 25FFF it is quite clear that in case of closure of the categories of undertakings as mentioned therein, no workman employed in those undertakings can claim compensation under cl. (b) of S. 25F. The language of S. 25FFF (2) is plain and unambiguous. Indeed, the learned counsel for the respondent also did not dispute that if it were to be held in this case that the undertaking had been closed down then cl. (b) of Section 25F would not be attracted and Shri Naidu would not be entitled to claim relief under that clause.The word undertaking as used in S. 25FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondents. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. The question has indeed to be decided on the facts of each case. In the present case the Ranchi Housing Project was clearly a distinct venture undertaken by the appellant and it had a distinct beginning and an end. Separate Office was apparently s up for this venture and on the completion of the project or enterprise that undertaking was closed down. The Tribunal has actually so found. Its conclusion has not been shown to be wrong and were have no hesitation in agreeing with its view. There is no cogent ground for reopening the Tribunals conclusion under Article 136 of the Constitution. It is also noteworthy that Shri Naidu had been recruited to the work-charged establishment of the Ranchi Housing Project.Now, under Sec. 25-FFF (1) which creates a statutory fiction, all that Shri Naidu was entitled to, was notice and compensation in accordance with the provisions of Section 25-F as if he had been retrenched. Retrenchment notice, Ex. 7, dated June 29, 1968, quite clearly complies with this requirement. On behalf of the respondent, as already noticed, it is not disputed that there has been no failure to give notice as required by Section 25F, in case Clause (b) is held inapplicable.12. It is also clear that the respondent had not specifically raised any plea of defect in the notice given to Shri Naidu. The Tribunal, however, allowed the objection of the notice Ex. 7 being conditional to be argued on the view that the notice was infirm on the face of it and that the objection was covered by the general plea in the written statement filed on behalf of Shri Naidu, to the effect that the grounds given in the retrenchment notice were all false and cooked up. On this view the notice was held to be conditional and, therefore, invalid and Shri Naidu was held entitled to be reinstated.13. In our view, Shri Setalvad was fully justified in submitting that the management had been taken by surprise and that the Tribunal was in error in holding the general ground in the written statement to cover the specific plea of infirmity of the notice because of its being conditional. The plea of the statutory defect in the notice should, in our opinion, have been reasonably specific and precise so as to enable the appellant to meet it. The general plea could not serve the object of putting the appellant on guard about the precise case to be met at the trial and tell the management the precise nature of the plea with respect to the defect in the notice, to enable them to meet it. In our view, if Clause (b) of Section 25-F is excluded from consideration and the plea relating to infirmity of the notice is ruled out, as we hold on these two points in agreement with Shri Setalvad, then, the impugned order is clearly insupportable. | 1 | 3,876 | 746 | ### 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:
normal or ordinary sense in an existing or continuous industry by adopting a simple yard-stick of the length of service of the retrenched workmen doing away with the perplexing variety of factors for determining the appropriate relief in each case.In Hari Prasad Shiv Shankar Shukla v. A. D. Divekar, 1957 SCR 121 = (AIR 1957 SC 121 )it was held that this section was not intended by the Legislature to be applicable to bona fide closure of business. This decision led to amendment of the Act by the Parliament. In 1957 S. 25FFF was inserted in order to give benefit of S. 25F to the retrenched workmen where an undertaking is closed down "for any reason whatsoever". We need not refer to the amendment of S. 25FFF because that section does not directly concern us. According to sub-s. (2) of S. 25FFF it is quite clear that in case of closure of the categories of undertakings as mentioned therein, no workman employed in those undertakings can claim compensation under cl. (b) of S. 25F. The language of S. 25FFF (2) is plain and unambiguous. Indeed, the learned counsel for the respondent also did not dispute that if it were to be held in this case that the undertaking had been closed down then cl. (b) of Section 25F would not be attracted and Shri Naidu would not be entitled to claim relief under that clause. According to Shri Madan Mohan, however, the present was not a case of closure of the undertaking. His submission was that only the work of the Housing Project at Ranchi had been completed. It was argued that unless the entire undertaking of the appellant was closed down S. 25FFF (2) could not apply. This submission is, in our opinion, not acceptable.10. The word undertaking as used in S. 25FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondents. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. The question has indeed to be decided on the facts of each case. In the present case the Ranchi Housing Project was clearly a distinct venture undertaken by the appellant and it had a distinct beginning and an end. Separate Office was apparently s up for this venture and on the completion of the project or enterprise that undertaking was closed down. The Tribunal has actually so found. Its conclusion has not been shown to be wrong and were have no hesitation in agreeing with its view. There is no cogent ground for reopening the Tribunals conclusion under Article 136 of the Constitution. It is also noteworthy that Shri Naidu had been recruited to the work-charged establishment of the Ranchi Housing Project. In Workmen of the Indian Leaf Tobacco Development Co. Ltd. v. Management, (1969) 2 SCR 282 =(AIR 1970 SC 860 ) closure of eight out of 21 depots of the company though not amounting to closure of its entire business was considered to amount to a closure within the contemplation of Section 25-FFF. In Parry and Co. Ltd. v. P. C. Lal, (1969) 2 SCR 976 = (AIR 1970 SC 1334 ) it was observed that it was within the managerial discretion of an employer to organise and arrange his business in the manner he considers best and that if a bona fide scheme for such re-organisation results in surplusage of employees, no employer is expected to carry on the burden of such economic deadweight and retrenchment has to be accepted as inevitable however unfortunate. The reasoning and ratio of these decisions support the appellants argument.11. Now, under Sec. 25-FFF (1) which creates a statutory fiction, all that Shri Naidu was entitled to, was notice and compensation in accordance with the provisions of Section 25-F as if he had been retrenched. Retrenchment notice, Ex. 7, dated June 29, 1968, quite clearly complies with this requirement. On behalf of the respondent, as already noticed, it is not disputed that there has been no failure to give notice as required by Section 25F, in case Clause (b) is held inapplicable.12. It is also clear that the respondent had not specifically raised any plea of defect in the notice given to Shri Naidu. The Tribunal, however, allowed the objection of the notice Ex. 7 being conditional to be argued on the view that the notice was infirm on the face of it and that the objection was covered by the general plea in the written statement filed on behalf of Shri Naidu, to the effect that the grounds given in the retrenchment notice were all false and cooked up. On this view the notice was held to be conditional and, therefore, invalid and Shri Naidu was held entitled to be reinstated.13. In our view, Shri Setalvad was fully justified in submitting that the management had been taken by surprise and that the Tribunal was in error in holding the general ground in the written statement to cover the specific plea of infirmity of the notice because of its being conditional. The plea of the statutory defect in the notice should, in our opinion, have been reasonably specific and precise so as to enable the appellant to meet it. The general plea could not serve the object of putting the appellant on guard about the precise case to be met at the trial and tell the management the precise nature of the plea with respect to the defect in the notice, to enable them to meet it. In our view, if Clause (b) of Section 25-F is excluded from consideration and the plea relating to infirmity of the notice is ruled out, as we hold on these two points in agreement with Shri Setalvad, then, the impugned order is clearly insupportable.
### Response:
1
### Explanation:
We need not refer to the amendment of S. 25FFF because that section does not directly concern us. According to sub-s. (2) of S. 25FFF it is quite clear that in case of closure of the categories of undertakings as mentioned therein, no workman employed in those undertakings can claim compensation under cl. (b) of S. 25F. The language of S. 25FFF (2) is plain and unambiguous. Indeed, the learned counsel for the respondent also did not dispute that if it were to be held in this case that the undertaking had been closed down then cl. (b) of Section 25F would not be attracted and Shri Naidu would not be entitled to claim relief under that clause.The word undertaking as used in S. 25FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondents. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. The question has indeed to be decided on the facts of each case. In the present case the Ranchi Housing Project was clearly a distinct venture undertaken by the appellant and it had a distinct beginning and an end. Separate Office was apparently s up for this venture and on the completion of the project or enterprise that undertaking was closed down. The Tribunal has actually so found. Its conclusion has not been shown to be wrong and were have no hesitation in agreeing with its view. There is no cogent ground for reopening the Tribunals conclusion under Article 136 of the Constitution. It is also noteworthy that Shri Naidu had been recruited to the work-charged establishment of the Ranchi Housing Project.Now, under Sec. 25-FFF (1) which creates a statutory fiction, all that Shri Naidu was entitled to, was notice and compensation in accordance with the provisions of Section 25-F as if he had been retrenched. Retrenchment notice, Ex. 7, dated June 29, 1968, quite clearly complies with this requirement. On behalf of the respondent, as already noticed, it is not disputed that there has been no failure to give notice as required by Section 25F, in case Clause (b) is held inapplicable.12. It is also clear that the respondent had not specifically raised any plea of defect in the notice given to Shri Naidu. The Tribunal, however, allowed the objection of the notice Ex. 7 being conditional to be argued on the view that the notice was infirm on the face of it and that the objection was covered by the general plea in the written statement filed on behalf of Shri Naidu, to the effect that the grounds given in the retrenchment notice were all false and cooked up. On this view the notice was held to be conditional and, therefore, invalid and Shri Naidu was held entitled to be reinstated.13. In our view, Shri Setalvad was fully justified in submitting that the management had been taken by surprise and that the Tribunal was in error in holding the general ground in the written statement to cover the specific plea of infirmity of the notice because of its being conditional. The plea of the statutory defect in the notice should, in our opinion, have been reasonably specific and precise so as to enable the appellant to meet it. The general plea could not serve the object of putting the appellant on guard about the precise case to be met at the trial and tell the management the precise nature of the plea with respect to the defect in the notice, to enable them to meet it. In our view, if Clause (b) of Section 25-F is excluded from consideration and the plea relating to infirmity of the notice is ruled out, as we hold on these two points in agreement with Shri Setalvad, then, the impugned order is clearly insupportable.
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P.S. Ranakrishna Reddy Vs. M.K.Bhagyalakshmi | to sell. As we read the agreement, it contemplates that on or before 15-4-1972 the sale deed would be executed. But what is important is that the agreement itself provides at to what is to happen if either the seller refuses to sell or the purchaser refuses to buy. In that event the agreement provides that in addition to the earnest money of Rs 1000 a sum of Rs 500 was to be given back to Tukaram Devsarkar and that no sale deed will be executed. The agreement is very categorical in envisaging that a sale deed is to be executed only if both the parties agree to do so and in the event of any one of them resiling from the same there was to be no question of the other party being compelled to go ahead with the execution of the sale deed. In the event of the sale deed not being executed, Rs 500 in addition to the return of Rs 1000, was the sum payable. This sum of Rs 500 perhaps represented the amount of quantified damages or, as the defendants would have it, interest payable on Rs. 1000. 7. If the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the Court for a decree of specific perforamance but here the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs 1000 plus pay Rs 500 in addition thereto. There was thus no obligation on Balwantrao to complete the sale transaction. 36. Apart from the fact that the agreement of sale did not contain a similar clause, Dadarao does not create a binding precedent having not noticed the statutory provisions as also an earlier binding precedent. 17. We may furthermore notice that recently in Jai Narain Parasrampuria (Dead) and Others vs. Pushpa Devi Saraf and Others [(2006) 7 SCC 756] , this Court categorically opined that a stipulation in regard to payment of damages by one party of the contract to the other does not establish that the same was not an agreement for sale stating: 59. One of the learned Judges of the High Court also held that the said agreement dated 12-61984 was in fact an agreement for obtaining loan. There was no warrant for such a proposition. Clause 7 of the agreement on the basis whereof such a finding was arrived at reads as under: (7) That it is further agreed that in case any defect in the right or title of the parties of the first part or the said Company is found or any other encumbrance or legal hurdle is found in respect of the said house property then in both the circumstances the second party shall have option for the refund of advance money of Rs. 10 lakhs together with interest @ 18% annum. 60. It is interesting to note that the sale deed dated 24-2-1979 whereby Sarafs purchased the property also contains an identical clause. Such types of clauses normally are found in the agreement so as to enable the vendee to protect his interest against the defects in the vendors title, if any. The agreement records the valuation of property at Rs. 11 lakhs. The respondents relying on or on the basis of another purported agreement dated 4-6-1984 executed by Sarafs in favour of their son-in-law, Original Defendant 5, S.K. Mittal stated that the property was worth Rs. 25 lakhs. The trial court, in our opinion, correctly arrived at an opinion that the said agreement was a sham one. Original Defendant 5 did not file any suit for specific performance of contract. The said agreement for sale had not been acted upon by the parties. Reliance placed on the said agreement by a learned Judge of the High Court was, therefore, unwarranted. 18. The contention of the appellant has been rejected both by the learned Trial Judge as also by the High Court upon assigning sufficient and cogent reasons. The agreement has been held to have been executed by the parties in support whereof large number of witnesses had been examined. The High Court, in particular in its judgment, has categorically opined that when the respondents served a notice upon the appellant on 29.05.1981, it was expected of the appellant to raise a contention that the said agreement was a sham one or nominal one and was not meant to be acted upon but it was not done. Failure on the part of the appellant to do so would give rise to an inference that the plea raised in the suit was an afterthought. 19. The findings of facts by both the Courts are concurrent ones and in our opinion no case has been made out to interfere therewith by this Court. 20. Submission of Mr. Chandrashekhar to the effect that having regard to the rise in price of an immovable property in Bangalore, the Court ought not to have exercised its discretionary jurisdiction under Section 20 of the Specific Relief Act is stated to be rejected. We have noticed hereinbefore that the appellant had entered into an agreement for sale with others also. He had, even after 11.5.1979, received a sum of Rs. 5,000/- from the respondent. He with a view to defeat the lawful claim of Respondent No. 1 had raised a plea of having executed a prior agreement for sale in respect of self-same property in favour his son-in-law who had never claimed any right there under or filed a suit for specific performance of contract. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in the price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. [See P.D Souza (supra) and Jai Narain Parasrampuria (supra)] | 0[ds]15. The purported default clause, to which our attention has been drawn by Mr. Chandrashekhar, does not lead to the conclusion that the same was a contract of loan. By reason thereof, the respective liabilities of the parties were fixed. In the event, provisions of the said contract were breached, the damage which might have been suffered by one party by reason of act of omission or commission on the part of the other in the matter of performance of the terms and conditions thereof had been quantified. The quantum of damages fixed therein was the same for both the parties. The submission of Mr. Chandrashekhar that in view of the fact that parties had agreed that in the event of breach on the part of the appellant, the respondent would be entitled to claim damages for a sum of Rs. 10,000/only and, thus, the said agreement for sale was not meant to be acted upon cannot be accepted. If the said contention is accepted, the damages quantified in the event of any breach on the part of Respondent No. 1 cannot be explained. It is clear that in the event of commission of any breach on the part of respondent, the appellant was entitled to forfeit the entire amount of advance. The very fact that the parties intentionally incorporated such default clause clearly goes to show that they intended to lay down their rights and obligations under the contract explicitly. They, therefore, knew the terms thereof. They understood the same. There is no uncertainty or vagueness therein18. The contention of the appellant has been rejected both by the learned Trial Judge as also by the High Court upon assigning sufficient and cogent reasons. The agreement has been held to have been executed by the parties in support whereof large number of witnesses had been examined. The High Court, in particular in its judgment, has categorically opined that when the respondents served a notice upon the appellant on 29.05.1981, it was expected of the appellant to raise a contention that the said agreement was a sham one or nominal one and was not meant to be acted upon but it was not done. Failure on the part of the appellant to do so would give rise to an inference that the plea raised in the suit was an afterthought19. The findings of facts by both the Courts are concurrent ones and in our opinion no case has been made out to interfere therewith by this Court20. Submission of Mr. Chandrashekhar to the effect that having regard to the rise in price of an immovable property in Bangalore, the Court ought not to have exercised its discretionary jurisdiction under Section 20 of the Specific Relief Act is stated to be rejected. We have noticed hereinbefore that the appellant had entered into an agreement for sale with others also. He had, even after 11.5.1979, received a sum of Rs. 5,000/from the respondent. He with a view to defeat the lawful claim of Respondent No. 1 had raised a plea of having executed a prior agreement for sale in respect ofe property in favour hisw who had never claimed any right there under or filed a suit for specific performance of contract. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in the price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. [See P.D Souza (supra) and Jai Narain Parasrampuria (supra)] | 0 | 3,168 | 647 | ### 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:
to sell. As we read the agreement, it contemplates that on or before 15-4-1972 the sale deed would be executed. But what is important is that the agreement itself provides at to what is to happen if either the seller refuses to sell or the purchaser refuses to buy. In that event the agreement provides that in addition to the earnest money of Rs 1000 a sum of Rs 500 was to be given back to Tukaram Devsarkar and that no sale deed will be executed. The agreement is very categorical in envisaging that a sale deed is to be executed only if both the parties agree to do so and in the event of any one of them resiling from the same there was to be no question of the other party being compelled to go ahead with the execution of the sale deed. In the event of the sale deed not being executed, Rs 500 in addition to the return of Rs 1000, was the sum payable. This sum of Rs 500 perhaps represented the amount of quantified damages or, as the defendants would have it, interest payable on Rs. 1000. 7. If the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the Court for a decree of specific perforamance but here the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs 1000 plus pay Rs 500 in addition thereto. There was thus no obligation on Balwantrao to complete the sale transaction. 36. Apart from the fact that the agreement of sale did not contain a similar clause, Dadarao does not create a binding precedent having not noticed the statutory provisions as also an earlier binding precedent. 17. We may furthermore notice that recently in Jai Narain Parasrampuria (Dead) and Others vs. Pushpa Devi Saraf and Others [(2006) 7 SCC 756] , this Court categorically opined that a stipulation in regard to payment of damages by one party of the contract to the other does not establish that the same was not an agreement for sale stating: 59. One of the learned Judges of the High Court also held that the said agreement dated 12-61984 was in fact an agreement for obtaining loan. There was no warrant for such a proposition. Clause 7 of the agreement on the basis whereof such a finding was arrived at reads as under: (7) That it is further agreed that in case any defect in the right or title of the parties of the first part or the said Company is found or any other encumbrance or legal hurdle is found in respect of the said house property then in both the circumstances the second party shall have option for the refund of advance money of Rs. 10 lakhs together with interest @ 18% annum. 60. It is interesting to note that the sale deed dated 24-2-1979 whereby Sarafs purchased the property also contains an identical clause. Such types of clauses normally are found in the agreement so as to enable the vendee to protect his interest against the defects in the vendors title, if any. The agreement records the valuation of property at Rs. 11 lakhs. The respondents relying on or on the basis of another purported agreement dated 4-6-1984 executed by Sarafs in favour of their son-in-law, Original Defendant 5, S.K. Mittal stated that the property was worth Rs. 25 lakhs. The trial court, in our opinion, correctly arrived at an opinion that the said agreement was a sham one. Original Defendant 5 did not file any suit for specific performance of contract. The said agreement for sale had not been acted upon by the parties. Reliance placed on the said agreement by a learned Judge of the High Court was, therefore, unwarranted. 18. The contention of the appellant has been rejected both by the learned Trial Judge as also by the High Court upon assigning sufficient and cogent reasons. The agreement has been held to have been executed by the parties in support whereof large number of witnesses had been examined. The High Court, in particular in its judgment, has categorically opined that when the respondents served a notice upon the appellant on 29.05.1981, it was expected of the appellant to raise a contention that the said agreement was a sham one or nominal one and was not meant to be acted upon but it was not done. Failure on the part of the appellant to do so would give rise to an inference that the plea raised in the suit was an afterthought. 19. The findings of facts by both the Courts are concurrent ones and in our opinion no case has been made out to interfere therewith by this Court. 20. Submission of Mr. Chandrashekhar to the effect that having regard to the rise in price of an immovable property in Bangalore, the Court ought not to have exercised its discretionary jurisdiction under Section 20 of the Specific Relief Act is stated to be rejected. We have noticed hereinbefore that the appellant had entered into an agreement for sale with others also. He had, even after 11.5.1979, received a sum of Rs. 5,000/- from the respondent. He with a view to defeat the lawful claim of Respondent No. 1 had raised a plea of having executed a prior agreement for sale in respect of self-same property in favour his son-in-law who had never claimed any right there under or filed a suit for specific performance of contract. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in the price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. [See P.D Souza (supra) and Jai Narain Parasrampuria (supra)]
### Response:
0
### Explanation:
15. The purported default clause, to which our attention has been drawn by Mr. Chandrashekhar, does not lead to the conclusion that the same was a contract of loan. By reason thereof, the respective liabilities of the parties were fixed. In the event, provisions of the said contract were breached, the damage which might have been suffered by one party by reason of act of omission or commission on the part of the other in the matter of performance of the terms and conditions thereof had been quantified. The quantum of damages fixed therein was the same for both the parties. The submission of Mr. Chandrashekhar that in view of the fact that parties had agreed that in the event of breach on the part of the appellant, the respondent would be entitled to claim damages for a sum of Rs. 10,000/only and, thus, the said agreement for sale was not meant to be acted upon cannot be accepted. If the said contention is accepted, the damages quantified in the event of any breach on the part of Respondent No. 1 cannot be explained. It is clear that in the event of commission of any breach on the part of respondent, the appellant was entitled to forfeit the entire amount of advance. The very fact that the parties intentionally incorporated such default clause clearly goes to show that they intended to lay down their rights and obligations under the contract explicitly. They, therefore, knew the terms thereof. They understood the same. There is no uncertainty or vagueness therein18. The contention of the appellant has been rejected both by the learned Trial Judge as also by the High Court upon assigning sufficient and cogent reasons. The agreement has been held to have been executed by the parties in support whereof large number of witnesses had been examined. The High Court, in particular in its judgment, has categorically opined that when the respondents served a notice upon the appellant on 29.05.1981, it was expected of the appellant to raise a contention that the said agreement was a sham one or nominal one and was not meant to be acted upon but it was not done. Failure on the part of the appellant to do so would give rise to an inference that the plea raised in the suit was an afterthought19. The findings of facts by both the Courts are concurrent ones and in our opinion no case has been made out to interfere therewith by this Court20. Submission of Mr. Chandrashekhar to the effect that having regard to the rise in price of an immovable property in Bangalore, the Court ought not to have exercised its discretionary jurisdiction under Section 20 of the Specific Relief Act is stated to be rejected. We have noticed hereinbefore that the appellant had entered into an agreement for sale with others also. He had, even after 11.5.1979, received a sum of Rs. 5,000/from the respondent. He with a view to defeat the lawful claim of Respondent No. 1 had raised a plea of having executed a prior agreement for sale in respect ofe property in favour hisw who had never claimed any right there under or filed a suit for specific performance of contract. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in the price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. [See P.D Souza (supra) and Jai Narain Parasrampuria (supra)]
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Rainbow Steels Ltd. Muzaffarnagar and Vs. C.S.T., U.P. and State of U.P | Mazdoor Sabha &Ors. and The Corporation of the City of Nagpur v. Its Employees this Court refused to apply the said principle while construing the definition of `industry given in s.2(j) of Industrial Disputes Act, 1947 and in s.2(14) of the C.P. and Berar Industrial Disputes Settlement Act, 1947 respectively, and that in Letang v. Cooper Diplock, L. J., has observed thus:"The maxim noscitur a sociis is always a treacherous one unless you know the societas to whic h the socii belong." According to him further the ejusdem generis principle would be clearly inapplicable inasmuch as it was not a case where some general words follow any particular, generic or specific words. 7. Having given our anxious consideration to the rival contentions urged before us, we are clearly of the view that the principle of noscitur a sociis is clearly applicable to the construction of the expression `old occurring in Entry No. 15, and that expression will have to be give a restricted meaning-a sense analogous to that of the less general words clubbed with it. The principle is explained in Maxwell on the Interpretation of Statutes (12th Edn.) at page 289 thus:"Where two or more words which are susceptible of analogous meaning are coupled together, noscitur a sociis, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general." 8. Moreover, even in the two decisions relied upon by counsel for the respondents where this Court refused to apply the principle of noscitur a sociis while construing the definition of `industry in the two concerned enactments because the Legislature had deliberately used wider words in order to make the scope of defined word correspondingly wider, the Court has observed that:"it is only when the intention of the Legislature in associating wider words with words of narrower significance is doubtful or is otherwise not clear that the present rule of construction can be usefully applied." In other words if the wider words used are in themselves vague, imprecise or ambiguous and there is no indication that these have been deliberately used to infuse wider meaning then this rule of construction can be invoked. 9. Dealing with the Entry in question, in the first place it cannot be disputed that the four adjectives which are susceptible to analogous meaning are clubbed together while qualifying `machinery in the Entry. Secondly, it cannot be disputed that the first adjective `old is clearly more general than the other three a nd as such all the four would take their colour from each other, the meaning of the more general adjective `old being restricted to a sense analogous to that of the less general, namely, "discarded, unserviceable or obsolete". Thirdly, it is true that all the four adjectives which qualify the word `machinery have been used disjunctively but it is precisely for that reason that the adjective `old becomes vague, imprecise and ambiguous, being too general. The adjective `old by itself is certainly vague, imprecise and ambiguous, for there is no indication as to how much old the machinery should be before it could be described as old machinery. A machinery could be one day old, one month old, one year old, five years old o r even ten years old, (the degree of oldness being a relative concept) and which one is intended to be included in the Entry has not been made clear at all. And, lastly, there is nothing in the Entry to indicate that the adjective `old has been deliberately used in a wider sense. In the absence of any indication to that effect and when the expression `old is by itself vague, imprecise, and ambiguous, being too general, the principle of noscitur a sociis will have to be applied i.e. all the associated words will take colour from each other, the meaning of the more general, adjective viz. `old being restricted to a sense analogous to the less general adjectives "discarded, unserviceable or obsolete". In other words in order to fall within the expression `old machinery occurring in the Entry, the machinery must be old machinery in the sense that it has become nonfunctional or non-usable. In our view, therefore, on true construction the sale of the Thermal Power Plant which at the time of sale by appellant No. 1 to appellant No. 2 was in perfect running condition and which was sold as such would not fall within the aforesaid Entry No. 15 of the concerned Notification dated May 30, 1975. 10. The English decision of the Court of Appeal in Letang v. Cooper (supra) relied upon by counsel for the respondents is clearly distinguishable inasmuch as it dealt with a statute which referred to "negligence, nuisance or breach of duty (whether the duty exist s by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision), " and when it was argued that because the cause of action in both nuisance and negligence included the infliction of actual damage as an essential element, "breach of duty" should also be understood as confined to causes of action in which actual damage was likewise essential the said contention was rejected by Diplock, L.J., by observing thus:"It is clear, however, that `breach of duty cannot be restricted to those giving rise to causes of action in which the infliction of actual damage is an essential element, for the words in parentheses expressly ext end to a duty which exists by virtue of a contract and the infliction of actual damage is not an essential element in an action for breach of contractual duty." 11. In other words, it was a case of a statute where the parent hetical portion occurring therein expressly indicated the contrary intention-contrary to the contention urged and, therefore, the principle of noscitur a sociis was not applied. 12. | 1[ds]Having given our anxious consideration to the rival contentions urged before us, we are clearly of the view that the principle of noscitur a sociis is clearly applicable to the construction of the expression `old occurring in Entry No. 15, and that expression will have to be give a restricted meaning-a sense analogous to that of the less general words clubbed with itDealing with the Entry in question, in the first place it cannot be disputed that the four adjectives which are susceptible to analogous meaning are clubbed together while qualifying `machinery in the Entry. Secondly, it cannot be disputed that the first adjective `old is clearly more general than the other three a nd as such all the four would take their colour from each other, the meaning of the more general adjective `old being restricted to a sense analogous to that of the less general, namely, "discarded, unserviceable or obsolete". Thirdly, it is true that all the four adjectives which qualify the word `machinery have been used disjunctively but it is precisely for that reason that the adjective `old becomes vague, imprecise and ambiguous, being too general. The adjective `old by itself is certainly vague, imprecise and ambiguous, for there is no indication as to how much old the machinery should be before it could be described as old machinery. A machinery could be one day old, one month old, one year old, five years old o r even ten years old, (the degree of oldness being a relative concept) and which one is intended to be included in the Entry has not been made clear at all. And, lastly, there is nothing in the Entry to indicate that the adjective `old has been deliberately used in a wider sense. In the absence of any indication to that effect and when the expression `old is by itself vague, imprecise, and ambiguous, being too general, the principle of noscitur a sociis will have to be applied i.e. all the associated words will take colour from each other, the meaning of the more general, adjective viz. `old being restricted to a sense analogous to the less general adjectives "discarded, unserviceable or obsolete". In other words in order to fall within the expression `old machinery occurring in the Entry, the machinery must be old machinery in the sense that it has become nonfunctional or non-usable. In our view, therefore, on true construction the sale of the Thermal Power Plant which at the time of sale by appellant No. 1 to appellant No. 2 was in perfect running condition and which was sold as such would not fall within the aforesaid Entry No. 15 of the concerned Notification dated May 30,e English decision of the Court of Appeal in Letang v. Cooper (supra) relied upon by counsel for the respondents is clearly distinguishable inasmuch as it dealt with a statute which referred to "negligence, nuisance or breach of duty (whether the duty exist s by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision), " and when it was argued that because the cause of action in both nuisance and negligence included the infliction of actual damage as an essential element, "breach of duty" should also be understood as confined to causes of action in which actual damage was likewise essential the said contention was rejected by Diplock, L.J., by observing thus:In other words, it was a case of a statute where the parent hetical portion occurring therein expressly indicated the contrary intention-contrary to the contention urged and, therefore, the principle of noscitur a sociis was not applied. | 1 | 2,655 | 695 | ### 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:
Mazdoor Sabha &Ors. and The Corporation of the City of Nagpur v. Its Employees this Court refused to apply the said principle while construing the definition of `industry given in s.2(j) of Industrial Disputes Act, 1947 and in s.2(14) of the C.P. and Berar Industrial Disputes Settlement Act, 1947 respectively, and that in Letang v. Cooper Diplock, L. J., has observed thus:"The maxim noscitur a sociis is always a treacherous one unless you know the societas to whic h the socii belong." According to him further the ejusdem generis principle would be clearly inapplicable inasmuch as it was not a case where some general words follow any particular, generic or specific words. 7. Having given our anxious consideration to the rival contentions urged before us, we are clearly of the view that the principle of noscitur a sociis is clearly applicable to the construction of the expression `old occurring in Entry No. 15, and that expression will have to be give a restricted meaning-a sense analogous to that of the less general words clubbed with it. The principle is explained in Maxwell on the Interpretation of Statutes (12th Edn.) at page 289 thus:"Where two or more words which are susceptible of analogous meaning are coupled together, noscitur a sociis, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general." 8. Moreover, even in the two decisions relied upon by counsel for the respondents where this Court refused to apply the principle of noscitur a sociis while construing the definition of `industry in the two concerned enactments because the Legislature had deliberately used wider words in order to make the scope of defined word correspondingly wider, the Court has observed that:"it is only when the intention of the Legislature in associating wider words with words of narrower significance is doubtful or is otherwise not clear that the present rule of construction can be usefully applied." In other words if the wider words used are in themselves vague, imprecise or ambiguous and there is no indication that these have been deliberately used to infuse wider meaning then this rule of construction can be invoked. 9. Dealing with the Entry in question, in the first place it cannot be disputed that the four adjectives which are susceptible to analogous meaning are clubbed together while qualifying `machinery in the Entry. Secondly, it cannot be disputed that the first adjective `old is clearly more general than the other three a nd as such all the four would take their colour from each other, the meaning of the more general adjective `old being restricted to a sense analogous to that of the less general, namely, "discarded, unserviceable or obsolete". Thirdly, it is true that all the four adjectives which qualify the word `machinery have been used disjunctively but it is precisely for that reason that the adjective `old becomes vague, imprecise and ambiguous, being too general. The adjective `old by itself is certainly vague, imprecise and ambiguous, for there is no indication as to how much old the machinery should be before it could be described as old machinery. A machinery could be one day old, one month old, one year old, five years old o r even ten years old, (the degree of oldness being a relative concept) and which one is intended to be included in the Entry has not been made clear at all. And, lastly, there is nothing in the Entry to indicate that the adjective `old has been deliberately used in a wider sense. In the absence of any indication to that effect and when the expression `old is by itself vague, imprecise, and ambiguous, being too general, the principle of noscitur a sociis will have to be applied i.e. all the associated words will take colour from each other, the meaning of the more general, adjective viz. `old being restricted to a sense analogous to the less general adjectives "discarded, unserviceable or obsolete". In other words in order to fall within the expression `old machinery occurring in the Entry, the machinery must be old machinery in the sense that it has become nonfunctional or non-usable. In our view, therefore, on true construction the sale of the Thermal Power Plant which at the time of sale by appellant No. 1 to appellant No. 2 was in perfect running condition and which was sold as such would not fall within the aforesaid Entry No. 15 of the concerned Notification dated May 30, 1975. 10. The English decision of the Court of Appeal in Letang v. Cooper (supra) relied upon by counsel for the respondents is clearly distinguishable inasmuch as it dealt with a statute which referred to "negligence, nuisance or breach of duty (whether the duty exist s by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision), " and when it was argued that because the cause of action in both nuisance and negligence included the infliction of actual damage as an essential element, "breach of duty" should also be understood as confined to causes of action in which actual damage was likewise essential the said contention was rejected by Diplock, L.J., by observing thus:"It is clear, however, that `breach of duty cannot be restricted to those giving rise to causes of action in which the infliction of actual damage is an essential element, for the words in parentheses expressly ext end to a duty which exists by virtue of a contract and the infliction of actual damage is not an essential element in an action for breach of contractual duty." 11. In other words, it was a case of a statute where the parent hetical portion occurring therein expressly indicated the contrary intention-contrary to the contention urged and, therefore, the principle of noscitur a sociis was not applied. 12.
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Having given our anxious consideration to the rival contentions urged before us, we are clearly of the view that the principle of noscitur a sociis is clearly applicable to the construction of the expression `old occurring in Entry No. 15, and that expression will have to be give a restricted meaning-a sense analogous to that of the less general words clubbed with itDealing with the Entry in question, in the first place it cannot be disputed that the four adjectives which are susceptible to analogous meaning are clubbed together while qualifying `machinery in the Entry. Secondly, it cannot be disputed that the first adjective `old is clearly more general than the other three a nd as such all the four would take their colour from each other, the meaning of the more general adjective `old being restricted to a sense analogous to that of the less general, namely, "discarded, unserviceable or obsolete". Thirdly, it is true that all the four adjectives which qualify the word `machinery have been used disjunctively but it is precisely for that reason that the adjective `old becomes vague, imprecise and ambiguous, being too general. The adjective `old by itself is certainly vague, imprecise and ambiguous, for there is no indication as to how much old the machinery should be before it could be described as old machinery. A machinery could be one day old, one month old, one year old, five years old o r even ten years old, (the degree of oldness being a relative concept) and which one is intended to be included in the Entry has not been made clear at all. And, lastly, there is nothing in the Entry to indicate that the adjective `old has been deliberately used in a wider sense. In the absence of any indication to that effect and when the expression `old is by itself vague, imprecise, and ambiguous, being too general, the principle of noscitur a sociis will have to be applied i.e. all the associated words will take colour from each other, the meaning of the more general, adjective viz. `old being restricted to a sense analogous to the less general adjectives "discarded, unserviceable or obsolete". In other words in order to fall within the expression `old machinery occurring in the Entry, the machinery must be old machinery in the sense that it has become nonfunctional or non-usable. In our view, therefore, on true construction the sale of the Thermal Power Plant which at the time of sale by appellant No. 1 to appellant No. 2 was in perfect running condition and which was sold as such would not fall within the aforesaid Entry No. 15 of the concerned Notification dated May 30,e English decision of the Court of Appeal in Letang v. Cooper (supra) relied upon by counsel for the respondents is clearly distinguishable inasmuch as it dealt with a statute which referred to "negligence, nuisance or breach of duty (whether the duty exist s by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision), " and when it was argued that because the cause of action in both nuisance and negligence included the infliction of actual damage as an essential element, "breach of duty" should also be understood as confined to causes of action in which actual damage was likewise essential the said contention was rejected by Diplock, L.J., by observing thus:In other words, it was a case of a statute where the parent hetical portion occurring therein expressly indicated the contrary intention-contrary to the contention urged and, therefore, the principle of noscitur a sociis was not applied.
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C.I.T., CENTRAL-III, N.DELHI Vs. HCL TECHNOLOGIES LTD | turnover has been defined in Section 80HHC and 80HHE of the IT Act. As discussed earlier, the definition of total turnover has not been defined under Section 10A of the IT Act. 14. In the above backdrop, we are of the opinion that the definition of total turnover given under Sections 80HHC and 80HHE cannot be adopted for the purpose of Section 10A as the technical meaning of total turnover, which does not envisage the reduction of any expenses from the total amount, is to be taken into consideration for computing the deduction under Section 10A. When the meaning is clear, there is no necessity of importing the meaning of total turnover from the other provisions. If a term is defined under Section 2 of the IT Act, then the definition would be applicable to all the provisions wherein the same term appears. As the term total turnover has been defined in the Explanation to Section 80HHC and 80HHE, wherein it has been clearly stated that for the purposes of this Section only, it would be applicable only for the purposes of that Sections and not for the purpose of Section 10A. If denominator includes certain amount of certain type which numerator does not include, the formula would render undesirable results. 15. A Statute is the intention of the legislature who enacts it after having regard to various facts and circumstances. It is a cardinal principle of law that the interpretation by the Court shall be done in such a way that the intention of the legislature shall prevail and no injustice occurred with the parties. The rule of harmonious construction is the thumb rule to interpretation of any statute. An interpretation which makes the enactment a consistent whole, should be the aim of the Courts and a construction which avoids inconsistency or repugnancy between the various sections or parts of the statue should be adopted. 16. In Commissioner of Income Tax vs. J.H. Gotla, (1985) 23 Taxman 14J (SC) this Court has held as under: 46. Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction. The task of interpretation of statutory provision is an attempt to discover the intention of the Legislature from the language use the purpose of a particular provision is easily discernible from the whole scheme of the Act which, in the present case, was to counteract, the effect of the transfer of assets so far as computation of income of the Respondent was concerned, then bearing that purpose in mind, the intention should be found out from the language used by the Legislature and if strict literal, construction leads to an absurd result, i.e. result not intended to be subserved by the object of the legislation found out in the manner indicated above, then if other construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. Though equity an taxation are often strangers , attempt should be made that these do not remain so always so and if a construction results in equity rather than in injustice , then such construction should be preferred to the literal construction. Furthermore, in the instant case, we are dealing with an artificial liability created for counteracting the effect only of attempts by the assessee to reduce tax liability by transfer…. 17. The similar nature of controversy, akin this case, arose before the Karnataka High Court in CIT vs. Tata Elxsi Ltd. (2012) 204 Taxman 321/17. The issue before the Karnataka High Court was whether the Tribunal was correct in holding that while computing relief under Section10A of the IT Act, the amount of communication expenses should be excluded from the total turnover if the same are reduced from the export turnover? While giving the answer to the issue, the High Court, inter-alia, held that when a particular word is not defined by the legislature and an ordinary meaning is to be attributed to it, the said ordinary meaning is to be in conformity with the context in which it is used. Hence, what is excluded from export turnover must also be excluded from total turnover, since one of the components of total turnover is export turnover. Any other interpretation would run counter to the legislative intent and would be impermissible. 18. Accordingly, the formula for computation of the deduction under Section10A of the Act would be as follows: Export turnover as defined in Explanation 2(IV) of Section 10A of IT Act Export Profit = total Profit of the Business Export turnover as defined in Explanation 2(IV) of Section 10A of the IT Act + domestic sale proceeds 19. In the instant case, if the deductions on freight, telecommunication and insurance attributable to the delivery of computer software under Section10A of the IT Act are allowed only in Export Turnover but not from the Total Turnover then, it would give rise to inadvertent, unlawful, meaningless and illogical result which would cause grave injustice to the Respondent which could have never been the intention of the legislature. 20. Even in common parlance, when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well. 21. On the issue of expenses on technical services provided outside, we have to follow the same principle of interpretation as followed in the case of expenses of freight, telecommunication etc., otherwise the formula of calculation would be futile. Hence, in the same way, expenses incurred in foreign exchange for providing the technical services outside shall be allowed to exclude from the total turnover. | 0[ds]7. On the other hand, learned senior counsel appearing for the Respondent submitted that the export turnover is the numerator whereas the total turnover is the denominator in the formula for computing profit from exports. The export turnover as defined in Section 10A of the IT Act would not include freight, telecommunication charges or insurance attributable to the delivery of goods outside India and the expenses incurred in foreign exchange for providing technical services outside India. The same cannot be included in the total turnover as if numerator included the aforesaid amount, which the denominator doesnt include, the formula would render undesirable results. Therefore, the Respondent is legally entitled to exclude the above said expenses from the total turnover as well. Hence, these appeals deserve to be dismissed at the outset.It is an undisputed fact that neither Section 10A nor Section 2 of the IT Act define the term total turnover. However, the term total turnover is given in clause (ba) of the Explanation to Section 80 HHC of the IT Act which defines the meaning of total turnoverSection 10A of the IT Act is a special beneficial provision and the purpose of deduction under such Section is to encourage and boost the new business undertakings situated in the free trade zone of this Nation by providing suitable deductions to such business entities. Sometimes, while calculating the deduction, disputes arise regarding the methodology of deduction which ought to be followed. Undisputedly, it is a matter of record that the Respondent is engaged in the activity of trading of generic software and providing customized software development services for domestic as well as for foreign clients through its two units situated in Software Technology Park, Gurgaon (Now Gurugram) which falls under the definition of the Section 10A of the IT Act. The contention of the Respondent is that it incurred expenditure in foreign exchange in sending professionals abroad as per the agreements with the foreign constituents.12. It is undisputed fact that the Respondent was engaged in the business of software development for its customers engaged in different activities at software development centres of the Respondent. However, in the process of such customized software development, certain activities were required to be carried out at the sight of customers on site, located outside India for which the employees of the branches of the Respondent located in the country of the customers are deployed. It is true that it is not defined that which activity will be termed as providing technical services outside India. Moreover, after delivery of such softwares as per requirement, in order to make it fully functional and hassle free functioning subsequent to the delivery of softwares in many cases, there can be requirement of technical personnel to visit the client on site. The Assessing Officer could not bring any evidence that the Respondent was engaged in providing simply technical services independent to software development for the client for which the expenditures were incurred outside India in foreign currency. | 0 | 3,148 | 538 | ### Instruction:
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turnover has been defined in Section 80HHC and 80HHE of the IT Act. As discussed earlier, the definition of total turnover has not been defined under Section 10A of the IT Act. 14. In the above backdrop, we are of the opinion that the definition of total turnover given under Sections 80HHC and 80HHE cannot be adopted for the purpose of Section 10A as the technical meaning of total turnover, which does not envisage the reduction of any expenses from the total amount, is to be taken into consideration for computing the deduction under Section 10A. When the meaning is clear, there is no necessity of importing the meaning of total turnover from the other provisions. If a term is defined under Section 2 of the IT Act, then the definition would be applicable to all the provisions wherein the same term appears. As the term total turnover has been defined in the Explanation to Section 80HHC and 80HHE, wherein it has been clearly stated that for the purposes of this Section only, it would be applicable only for the purposes of that Sections and not for the purpose of Section 10A. If denominator includes certain amount of certain type which numerator does not include, the formula would render undesirable results. 15. A Statute is the intention of the legislature who enacts it after having regard to various facts and circumstances. It is a cardinal principle of law that the interpretation by the Court shall be done in such a way that the intention of the legislature shall prevail and no injustice occurred with the parties. The rule of harmonious construction is the thumb rule to interpretation of any statute. An interpretation which makes the enactment a consistent whole, should be the aim of the Courts and a construction which avoids inconsistency or repugnancy between the various sections or parts of the statue should be adopted. 16. In Commissioner of Income Tax vs. J.H. Gotla, (1985) 23 Taxman 14J (SC) this Court has held as under: 46. Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction. The task of interpretation of statutory provision is an attempt to discover the intention of the Legislature from the language use the purpose of a particular provision is easily discernible from the whole scheme of the Act which, in the present case, was to counteract, the effect of the transfer of assets so far as computation of income of the Respondent was concerned, then bearing that purpose in mind, the intention should be found out from the language used by the Legislature and if strict literal, construction leads to an absurd result, i.e. result not intended to be subserved by the object of the legislation found out in the manner indicated above, then if other construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. Though equity an taxation are often strangers , attempt should be made that these do not remain so always so and if a construction results in equity rather than in injustice , then such construction should be preferred to the literal construction. Furthermore, in the instant case, we are dealing with an artificial liability created for counteracting the effect only of attempts by the assessee to reduce tax liability by transfer…. 17. The similar nature of controversy, akin this case, arose before the Karnataka High Court in CIT vs. Tata Elxsi Ltd. (2012) 204 Taxman 321/17. The issue before the Karnataka High Court was whether the Tribunal was correct in holding that while computing relief under Section10A of the IT Act, the amount of communication expenses should be excluded from the total turnover if the same are reduced from the export turnover? While giving the answer to the issue, the High Court, inter-alia, held that when a particular word is not defined by the legislature and an ordinary meaning is to be attributed to it, the said ordinary meaning is to be in conformity with the context in which it is used. Hence, what is excluded from export turnover must also be excluded from total turnover, since one of the components of total turnover is export turnover. Any other interpretation would run counter to the legislative intent and would be impermissible. 18. Accordingly, the formula for computation of the deduction under Section10A of the Act would be as follows: Export turnover as defined in Explanation 2(IV) of Section 10A of IT Act Export Profit = total Profit of the Business Export turnover as defined in Explanation 2(IV) of Section 10A of the IT Act + domestic sale proceeds 19. In the instant case, if the deductions on freight, telecommunication and insurance attributable to the delivery of computer software under Section10A of the IT Act are allowed only in Export Turnover but not from the Total Turnover then, it would give rise to inadvertent, unlawful, meaningless and illogical result which would cause grave injustice to the Respondent which could have never been the intention of the legislature. 20. Even in common parlance, when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well. 21. On the issue of expenses on technical services provided outside, we have to follow the same principle of interpretation as followed in the case of expenses of freight, telecommunication etc., otherwise the formula of calculation would be futile. Hence, in the same way, expenses incurred in foreign exchange for providing the technical services outside shall be allowed to exclude from the total turnover.
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7. On the other hand, learned senior counsel appearing for the Respondent submitted that the export turnover is the numerator whereas the total turnover is the denominator in the formula for computing profit from exports. The export turnover as defined in Section 10A of the IT Act would not include freight, telecommunication charges or insurance attributable to the delivery of goods outside India and the expenses incurred in foreign exchange for providing technical services outside India. The same cannot be included in the total turnover as if numerator included the aforesaid amount, which the denominator doesnt include, the formula would render undesirable results. Therefore, the Respondent is legally entitled to exclude the above said expenses from the total turnover as well. Hence, these appeals deserve to be dismissed at the outset.It is an undisputed fact that neither Section 10A nor Section 2 of the IT Act define the term total turnover. However, the term total turnover is given in clause (ba) of the Explanation to Section 80 HHC of the IT Act which defines the meaning of total turnoverSection 10A of the IT Act is a special beneficial provision and the purpose of deduction under such Section is to encourage and boost the new business undertakings situated in the free trade zone of this Nation by providing suitable deductions to such business entities. Sometimes, while calculating the deduction, disputes arise regarding the methodology of deduction which ought to be followed. Undisputedly, it is a matter of record that the Respondent is engaged in the activity of trading of generic software and providing customized software development services for domestic as well as for foreign clients through its two units situated in Software Technology Park, Gurgaon (Now Gurugram) which falls under the definition of the Section 10A of the IT Act. The contention of the Respondent is that it incurred expenditure in foreign exchange in sending professionals abroad as per the agreements with the foreign constituents.12. It is undisputed fact that the Respondent was engaged in the business of software development for its customers engaged in different activities at software development centres of the Respondent. However, in the process of such customized software development, certain activities were required to be carried out at the sight of customers on site, located outside India for which the employees of the branches of the Respondent located in the country of the customers are deployed. It is true that it is not defined that which activity will be termed as providing technical services outside India. Moreover, after delivery of such softwares as per requirement, in order to make it fully functional and hassle free functioning subsequent to the delivery of softwares in many cases, there can be requirement of technical personnel to visit the client on site. The Assessing Officer could not bring any evidence that the Respondent was engaged in providing simply technical services independent to software development for the client for which the expenditures were incurred outside India in foreign currency.
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Vellore Electric Corporation Limited and Another Vs. State of Tamil Nadu and Others | already vested in government. There is no substance in this contention eitherRe Contention (f). 28. This contention arises in the context of Section 5(2) (i) of the Act. In computing the amount payable under "Basis B" the aggregate value of the sums specified in several clauses of Section 5(2) has to be taken. Section 5(2)(i) while requiring the book value of all "completed works in beneficial use pertaining to the undertaking and handed over to the government" to be taken, however, excludes therefrom works paid for by the consumers. The contention of the petitioners is that the "works paid for by the consumer" is also the property of the licensee and cannot legitimately be excluded. A substantially similar contention was urged and has been considered and negatived at para 29 of our judgment in W.P. Nos. 457 and 458 of 1972. The reasons stated by us in negativing the contention in that case fully answer the present point. Contention (f) is also insubstantial. Re Contention (g) Section 10(d) envisages deduction from the amount payable towards and on account of arrears of electricity charges payable by the licensee to the government or the Electricity Board as the case may be, for the supply of electricity made by them to the licensee. This is a legitimate item of deduction. But, the point Sri Salve sought to put across is that even a disputed and untenable claim in that behalf becomes entitled to deduction. There is no justification for this apprehension. Section 13(1)(e) makes such a dispute as one of the arbitrable disputes and no deduction of a disputed claim can be justified by government if the arbitrator - who is or has been a District Judge Contention (g) has no substance either. Re Contention (h) 29. The grievance sought to be made out on the matter is that while Section 6(2) of the Act has the effect of vesting all the assets specified in Section 6(2)(i)(b) in government free from encumbrances and the proviso to Section 6(2) renders the amount payable to the licensee as substituted security for the debts, mortgages and obligations in substitution of the assets vesting in government, however, Section 10(e) renders one species or such debt viz., sums due to the government or the Electricity Board, liable to be deducted from the amount. Sri Salve contends that this would make for a double recovery of the same debt. This, we are afraid, is a wrong way of looking at the two provisions. If a debt is deducted from the "amount", the debt is satisfied and is extinguished and no further debt remains outstanding to get itself attached to and become an encumbrance upon the substituted security viz., the amount". Section 6(2) and Section 10(e) must be construed harmoniously and in a reasonable manner. There is no scope for any apprehension of a possible double recovery of the same debt. There is no substance in contention (h)Re Contention (i). 30. The point of the matter is that Section 10(f) entitles the deduction of the market value of any "property" or "right" which vests in government and which is not delivered by the licensees to government. The grievance of the petitioner is that while recovery of "market value" is sought to be made for non-delivery of the item, however, in computing the "amount" only the "book value" of such "property" or "right" is taken into account. This, it is contended, is an instance of application of double standards and is, therefore, arbitrary. We see no substance in this contention. The measure of the reimbursement for an asset withheld by the licensee is the corresponding expenditure to be incurred by government for replacement which, in eminently conceivable cases, could be the market value of the asset which is so withheld by the licensee and which has to be replaced to keep the undertaking functioning. There is no substance in this contention either. Re Contention (J) 31. Sri Salve submitted that the accredited representative is, under Section 8(1), given only a months time from the date of his appointment to signify the choice under Section 5 as to the basis of determination of the amount. The time granted, it is said, is unreasonably short. The argument clearly overlooks the clause or such further time as may be granted by the government occurring in Section 8(1). If the exercise of this power is arbitrary or capricious the licensee has remedies in Administrative Law. But the provision itself cannot be held to be bad. There is no substance in this contention either. 32. Certain other subsidiary contentions were urged at the hearing. All these matter have been elaborately considered in our judgment in Writ Petition Nos. 457 and 458 of 1972 (Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 ) arising out of the Assam legislation. We have not found any merit in them. 33. However, there is one aspect which merits consideration. Sri Salve submitted that the petitioners in Writ Petition No. 5(N) of 1974, who initially, on January 16, 1974, had opted for Basis A had sought a change to Basis B by their application dated October 4, 1977. On February 2, 1978, government refused to permit the change. Sri Salve submits that a serious and indeed, irreparable hardship has been occasioned to the petitioners by this arbitrary refusal. In these writ petitions we have dealt with questions of constitutionality leaving the questions of construction of the provisions to the appropriate authorities. However, having regard to the chequered history of the proceedings, it appears to us that Sri Salves submission deserves to be accepted. Accordingly the order of the government dated February 2, 1978 refusing a change in the basis for determination of the amount is set aside and the government is directed to consider and dispose of the application dated October 4, 1977 afresh within two months from today. We make it clear that the government shall not unreasonably withhold the permission for the change. 34. | 0[ds]These contentions could be dealt with together. The principal argument is that that there is no rational and direct nexus between the objects of the Act and the Directive Principles of State Policy adumbrated in clauses (b) and (c) of Article 39 inasmuch as the impugned Act was brought forth only to avoid the consequences of the terms of the licenses and the beneficent provisions of Sections 6, 7 and 7-A of the Electricity Act, 1910. If there is, thus, no protection to the law of Article 31-C, then its provisions would clearly violate Articles 14, 19 andThese contentions have to be examined with reference to the provisions of the Constitution as they stood in 1973. Article 31-C was introduced by Section 3 of theAmendment) Act, 1971 with effect from April 20, 1972. Article 31-C, before the expansion of its scope by the 42nd Amendment, protected a law giving effect to the policy of the State towards implementing the principles specified in clauses (b) and (c) of Article 39. Article 31 itself had not then been deleted but its scope had been considerably cut down and a law providing for acquisition of property, even if it did not have the protection of Article 31-C, could not be tested with reference to the adequacy of the amount payable for the acquisition. The just equivalent or full indemnification principle had been done away with and the question of the adequacy of the amount was renderedcontention was not accepted. Repelling it, we observed in the course of the judgment in W.P. Nos. 457 & 458 of 1972 (Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 ) : (SCC p. 735, para 53; p. 737, para 57; p. 738, para 61; pp. 738-39, paraproposition of Sri Sorabjee, in principle, is, therefore, unexceptionable; but the question remains whether, upon the application of the appropriate tests, the impugned statute fails to measure up to the requirements of the Constitution to earn the protection under Article 31-C"It is not disputed that the electricity generated and distributed by the undertakings of the petitioner-companies constitute "material resources of the community" for the purpose and within the meaning of Article 39(b)"... The idea of distribution of the material resources of the community in Article 39(b) is not necessarily limited to the idea of what is taken over for distribution amongst the intended beneficiaries. That is one of the modes of "distribution". Nationalisation is another mode"On an examination of the scheme of the impugned law the conclusion becomes inescapable that the legislative measure is one of nationalisation of the undertakings and the law is eligible for and entitled to the protection of Articleto the contention in that case that not every provision of a law can and need be eligible for the protection of Article 31-C and that, accordingly, the provisions as to the quantification of the amount which were meant to achieve an oblique motive and interdicting and extinguishing rights to receive market value under the 1910 Act would not attract the protection of Article 31-C, it was held : (SCC p. 739, para 63; p. 739, para 64)"... We are afraid this contention proceeds on an impermissible dichotomy of the components integral to the idea of nationalisation. The economic cost of social and economic reform is, perhaps, amongst the most vexed problems of social and economic change and constitute the core element in nationalisation. The need for constitutional immunities for such legislative efforts at social and economic change recognise the otherwise unaffordable economic burden ofis, therefore, not possible to divorce the economic considerations or components from the scheme of the nationalisation with which the former are inextricably in integrated. The financial cost of a scheme of nationalisation lies at its very heart and cannot be isolated. Both the provisions relating to the vestiture of the undertakings in the State and those pertaining to the quantification of the "amount" are integral and inseparable parts of the integral scheme of nationalisation and do not admit of being considered as distinct provisions independent of each other.e observations fully answer the contention of Sri Salve in regard to the question whether impugned Act attracts the protection of Article 31-C or not. If Article 31-C comes in, Articles 14, 19 and 31 goOn a consideration of the matter, we think that all the contentions - (a), (b), (c) and (d) - are covered in one form or the other by our pronouncement in W.P. Nos. 457 and 458 of 1972 (Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 ). We are also of the opinion that Sri Salves contention that what was sought to be acquired was mere "choses-in-action" is not sound. In any event, the decision of this Court in State of Madhya Pradesh v. Ranojirao Shinde ((1968) 3 SCR 489 : AIR 1968 SC 1053 ) relied upon by Sri Salve to contend that choses-in-action could not be acquired would require to be read with later pronouncement in Madan Mohan Pathak v. Union of India (115 US 650). It is not necessary, however, to pronounce on this point as in our view what was acquired were not merely chose-in-action but the undertakingsContentions (a), (b) and (c) accordingly fail and are held and answered against theThe grievance sought to be made out on the matter is that while Section 6(2) of the Act has the effect of vesting all the assets specified in Section 6(2)(i)(b) in government free from encumbrances and the proviso to Section 6(2) renders the amount payable to the licensee as substituted security for the debts, mortgages and obligations in substitution of the assets vesting in government, however, Section 10(e) renders one species or such debt viz., sums due to the government or the Electricity Board, liable to be deducted from the amount. Sri Salve contends that this would make for a double recovery of the same debt. This, we are afraid, is a wrong way of looking at the two provisions. If a debt is deducted from the "amount", the debt is satisfied and is extinguished and no further debt remains outstanding to get itself attached to and become an encumbrance upon the substituted security viz., the amount". Section 6(2) and Section 10(e) must be construed harmoniously and in a reasonable manner. There is no scope for any apprehension of a possible double recovery of the same debt. There is no substance in contention (h)Re ContentionThe point of the matter is that Section 10(f) entitles the deduction of the market value of any "property" or "right" which vests in government and which is not delivered by the licensees to government. The grievance of the petitioner is that while recovery of "market value" is sought to be made for non-delivery of the item, however, in computing the "amount" only the "book value" of such "property" or "right" is taken into account. This, it is contended, is an instance of application of double standards and is, therefore, arbitrary. We see no substance in this contention. The measure of the reimbursement for an asset withheld by the licensee is the corresponding expenditure to be incurred by government for replacement which, in eminently conceivable cases, could be the market value of the asset which is so withheld by the licensee and which has to be replaced to keep the undertaking functioning. There is no substance in this contentionSri Salve submitted that the accredited representative is, under Section 8(1), given only a months time from the date of his appointment to signify the choice under Section 5 as to the basis of determination of the amount. The time granted, it is said, is unreasonably short. The argument clearly overlooks the clause or such further time as may be granted by the government occurring in Section 8(1). If the exercise of this power is arbitrary or capricious the licensee has remedies in Administrative Law. But the provision itself cannot be held to be bad. There is no substance in this contentionCertain other subsidiary contentions were urged at the hearing. All these matter have been elaborately considered in our judgment in Writ Petition Nos. 457 and 458 of 1972 (Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 ) arising out of the Assam legislation. We have not found any merit inHowever, there is one aspect which merits consideration. Sri Salve submitted that the petitioners in Writ Petition No. 5(N) of 1974, who initially, on January 16, 1974, had opted for Basis A had sought a change to Basis B by their application dated October 4, 1977. On February 2, 1978, government refused to permit the change. Sri Salve submits that a serious and indeed, irreparable hardship has been occasioned to the petitioners by this arbitrary refusal. In these writ petitions we have dealt with questions of constitutionality leaving the questions of construction of the provisions to the appropriate authorities. However, having regard to the chequered history of the proceedings, it appears to us that Sri Salves submission deserves to be accepted. Accordingly the order of the government dated February 2, 1978 refusing a change in the basis for determination of the amount is set aside and the government is directed to consider and dispose of the application dated October 4, 1977 afresh within two months from today. We make it clear that the government shall not unreasonably withhold the permission for the change | 0 | 8,016 | 1,828 | ### 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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already vested in government. There is no substance in this contention eitherRe Contention (f). 28. This contention arises in the context of Section 5(2) (i) of the Act. In computing the amount payable under "Basis B" the aggregate value of the sums specified in several clauses of Section 5(2) has to be taken. Section 5(2)(i) while requiring the book value of all "completed works in beneficial use pertaining to the undertaking and handed over to the government" to be taken, however, excludes therefrom works paid for by the consumers. The contention of the petitioners is that the "works paid for by the consumer" is also the property of the licensee and cannot legitimately be excluded. A substantially similar contention was urged and has been considered and negatived at para 29 of our judgment in W.P. Nos. 457 and 458 of 1972. The reasons stated by us in negativing the contention in that case fully answer the present point. Contention (f) is also insubstantial. Re Contention (g) Section 10(d) envisages deduction from the amount payable towards and on account of arrears of electricity charges payable by the licensee to the government or the Electricity Board as the case may be, for the supply of electricity made by them to the licensee. This is a legitimate item of deduction. But, the point Sri Salve sought to put across is that even a disputed and untenable claim in that behalf becomes entitled to deduction. There is no justification for this apprehension. Section 13(1)(e) makes such a dispute as one of the arbitrable disputes and no deduction of a disputed claim can be justified by government if the arbitrator - who is or has been a District Judge Contention (g) has no substance either. Re Contention (h) 29. The grievance sought to be made out on the matter is that while Section 6(2) of the Act has the effect of vesting all the assets specified in Section 6(2)(i)(b) in government free from encumbrances and the proviso to Section 6(2) renders the amount payable to the licensee as substituted security for the debts, mortgages and obligations in substitution of the assets vesting in government, however, Section 10(e) renders one species or such debt viz., sums due to the government or the Electricity Board, liable to be deducted from the amount. Sri Salve contends that this would make for a double recovery of the same debt. This, we are afraid, is a wrong way of looking at the two provisions. If a debt is deducted from the "amount", the debt is satisfied and is extinguished and no further debt remains outstanding to get itself attached to and become an encumbrance upon the substituted security viz., the amount". Section 6(2) and Section 10(e) must be construed harmoniously and in a reasonable manner. There is no scope for any apprehension of a possible double recovery of the same debt. There is no substance in contention (h)Re Contention (i). 30. The point of the matter is that Section 10(f) entitles the deduction of the market value of any "property" or "right" which vests in government and which is not delivered by the licensees to government. The grievance of the petitioner is that while recovery of "market value" is sought to be made for non-delivery of the item, however, in computing the "amount" only the "book value" of such "property" or "right" is taken into account. This, it is contended, is an instance of application of double standards and is, therefore, arbitrary. We see no substance in this contention. The measure of the reimbursement for an asset withheld by the licensee is the corresponding expenditure to be incurred by government for replacement which, in eminently conceivable cases, could be the market value of the asset which is so withheld by the licensee and which has to be replaced to keep the undertaking functioning. There is no substance in this contention either. Re Contention (J) 31. Sri Salve submitted that the accredited representative is, under Section 8(1), given only a months time from the date of his appointment to signify the choice under Section 5 as to the basis of determination of the amount. The time granted, it is said, is unreasonably short. The argument clearly overlooks the clause or such further time as may be granted by the government occurring in Section 8(1). If the exercise of this power is arbitrary or capricious the licensee has remedies in Administrative Law. But the provision itself cannot be held to be bad. There is no substance in this contention either. 32. Certain other subsidiary contentions were urged at the hearing. All these matter have been elaborately considered in our judgment in Writ Petition Nos. 457 and 458 of 1972 (Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 ) arising out of the Assam legislation. We have not found any merit in them. 33. However, there is one aspect which merits consideration. Sri Salve submitted that the petitioners in Writ Petition No. 5(N) of 1974, who initially, on January 16, 1974, had opted for Basis A had sought a change to Basis B by their application dated October 4, 1977. On February 2, 1978, government refused to permit the change. Sri Salve submits that a serious and indeed, irreparable hardship has been occasioned to the petitioners by this arbitrary refusal. In these writ petitions we have dealt with questions of constitutionality leaving the questions of construction of the provisions to the appropriate authorities. However, having regard to the chequered history of the proceedings, it appears to us that Sri Salves submission deserves to be accepted. Accordingly the order of the government dated February 2, 1978 refusing a change in the basis for determination of the amount is set aside and the government is directed to consider and dispose of the application dated October 4, 1977 afresh within two months from today. We make it clear that the government shall not unreasonably withhold the permission for the change. 34.
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for constitutional immunities for such legislative efforts at social and economic change recognise the otherwise unaffordable economic burden ofis, therefore, not possible to divorce the economic considerations or components from the scheme of the nationalisation with which the former are inextricably in integrated. The financial cost of a scheme of nationalisation lies at its very heart and cannot be isolated. Both the provisions relating to the vestiture of the undertakings in the State and those pertaining to the quantification of the "amount" are integral and inseparable parts of the integral scheme of nationalisation and do not admit of being considered as distinct provisions independent of each other.e observations fully answer the contention of Sri Salve in regard to the question whether impugned Act attracts the protection of Article 31-C or not. If Article 31-C comes in, Articles 14, 19 and 31 goOn a consideration of the matter, we think that all the contentions - (a), (b), (c) and (d) - are covered in one form or the other by our pronouncement in W.P. Nos. 457 and 458 of 1972 (Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 ). We are also of the opinion that Sri Salves contention that what was sought to be acquired was mere "choses-in-action" is not sound. In any event, the decision of this Court in State of Madhya Pradesh v. Ranojirao Shinde ((1968) 3 SCR 489 : AIR 1968 SC 1053 ) relied upon by Sri Salve to contend that choses-in-action could not be acquired would require to be read with later pronouncement in Madan Mohan Pathak v. Union of India (115 US 650). It is not necessary, however, to pronounce on this point as in our view what was acquired were not merely chose-in-action but the undertakingsContentions (a), (b) and (c) accordingly fail and are held and answered against theThe grievance sought to be made out on the matter is that while Section 6(2) of the Act has the effect of vesting all the assets specified in Section 6(2)(i)(b) in government free from encumbrances and the proviso to Section 6(2) renders the amount payable to the licensee as substituted security for the debts, mortgages and obligations in substitution of the assets vesting in government, however, Section 10(e) renders one species or such debt viz., sums due to the government or the Electricity Board, liable to be deducted from the amount. Sri Salve contends that this would make for a double recovery of the same debt. This, we are afraid, is a wrong way of looking at the two provisions. If a debt is deducted from the "amount", the debt is satisfied and is extinguished and no further debt remains outstanding to get itself attached to and become an encumbrance upon the substituted security viz., the amount". Section 6(2) and Section 10(e) must be construed harmoniously and in a reasonable manner. There is no scope for any apprehension of a possible double recovery of the same debt. There is no substance in contention (h)Re ContentionThe point of the matter is that Section 10(f) entitles the deduction of the market value of any "property" or "right" which vests in government and which is not delivered by the licensees to government. The grievance of the petitioner is that while recovery of "market value" is sought to be made for non-delivery of the item, however, in computing the "amount" only the "book value" of such "property" or "right" is taken into account. This, it is contended, is an instance of application of double standards and is, therefore, arbitrary. We see no substance in this contention. The measure of the reimbursement for an asset withheld by the licensee is the corresponding expenditure to be incurred by government for replacement which, in eminently conceivable cases, could be the market value of the asset which is so withheld by the licensee and which has to be replaced to keep the undertaking functioning. There is no substance in this contentionSri Salve submitted that the accredited representative is, under Section 8(1), given only a months time from the date of his appointment to signify the choice under Section 5 as to the basis of determination of the amount. The time granted, it is said, is unreasonably short. The argument clearly overlooks the clause or such further time as may be granted by the government occurring in Section 8(1). If the exercise of this power is arbitrary or capricious the licensee has remedies in Administrative Law. But the provision itself cannot be held to be bad. There is no substance in this contentionCertain other subsidiary contentions were urged at the hearing. All these matter have been elaborately considered in our judgment in Writ Petition Nos. 457 and 458 of 1972 (Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 ) arising out of the Assam legislation. We have not found any merit inHowever, there is one aspect which merits consideration. Sri Salve submitted that the petitioners in Writ Petition No. 5(N) of 1974, who initially, on January 16, 1974, had opted for Basis A had sought a change to Basis B by their application dated October 4, 1977. On February 2, 1978, government refused to permit the change. Sri Salve submits that a serious and indeed, irreparable hardship has been occasioned to the petitioners by this arbitrary refusal. In these writ petitions we have dealt with questions of constitutionality leaving the questions of construction of the provisions to the appropriate authorities. However, having regard to the chequered history of the proceedings, it appears to us that Sri Salves submission deserves to be accepted. Accordingly the order of the government dated February 2, 1978 refusing a change in the basis for determination of the amount is set aside and the government is directed to consider and dispose of the application dated October 4, 1977 afresh within two months from today. We make it clear that the government shall not unreasonably withhold the permission for the change
|
M/S. Kailash Nath Associates Vs. Delhi Development Authority | proceeded to consider the applicability of Section 74 of the Contract Act. (At page 143)" 40. From the above, it is clear that this Court held that Maula Buxs case was not, on facts, a case that related to earnest money. Consequently, the observation in Maula Bux that forfeiture of earnest money under a contract if reasonable does not fall within Section 74, and would fall within Section 74 only if earnest money is considered a penalty is not on a matter that directly arose for decision in that case. The law laid down by a Bench of 5 Judges in Fateh Chands case is that all stipulations naming amounts to be paid in case of breach would be covered by Section 74. This is because Section 74 cuts across the rules of the English Common Law by enacting a uniform principle that would apply to all amounts to be paid in case of breach, whether they are in the nature of penalty or otherwise. It must not be forgotten that as has been stated above, forfeiture of earnest money on the facts in Fateh Chands case was conceded. In the circumstances, it would therefore be correct to say that as earnest money is an amount to be paid in case of breach of contract and named in the contract as such, it would necessarily be covered by Section 74. 41. It must, however, be pointed out that in cases where a public auction is held, forfeiture of earnest money may take place even before an agreement is reached, as DDA is to accept the bid only after the earnest money is paid. In the present case, under the terms and conditions of auction, the highest bid (along with which earnest money has to be paid) may well have been rejected. In such cases, Section 74 may not be attracted on its plain language because it applies only "when a contract has been broken". 42. In the present case, forfeiture of earnest money took place longafter an agreement had been reached. It is obvious that the amount sought to be forfeited on the facts of the present case is sought to be forfeited without any loss being shown. In fact it has been shown that far from suffering any loss, DDA has received a much higher amount on re-auction of the same plot of land. 43. On a conspectus of the above authorities, the law on compensation for breach of contract under Section 74 can be stated to be as follows:- Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the Court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable compensation. Reasonable compensation will be fixed on well known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the Section. The Section applies whether a person is a plaintiff or a defendant in a suit. The sum spoken of may already be paid or be payable in future. The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application. 44. The Division Bench has gone wrong in principle. As has been pointed out above, there has been no breach of contract by the appellant. Further, we cannot accept the view of the Division Bench that the fact that the DDA made a profit from re-auction is irrelevant, as that would fly in the face of the most basic principle on the award of damages - namely, that compensation can only be given for damage or loss suffered. If damage or loss is not suffered, the law does not provide for a windfall.45. A great deal of the argument before us turned on notings in files that were produced during cross-examination of various witnesses. We have not referred to any of these notings and, consequently, to any case law cited by both parties as we find it unnecessary for the decision of this case.46. Mr. Sharan submitted that in case we were against him, the earnest money that should be refunded should only be refunded with 7% per annum and not 9% per annum interest as was done in other cases. We are afraid we are not able to agree as others were offered the refund of earnest money way back in 1989 with 7% per annum interest which they accepted. The DDA having chosen to fight the present appellant tooth and nail even on refund of earnest money, when there was no breach of contract or loss caused to it, stands on a different footing. We, therefore, turn down this plea as well. | 1[ds]15. Having heard learned counsel for the parties, it is important at the very outset to notice that earnest money can be forfeited under sub-clause (iv) set out hereinabove, only in the case of default, breach, or non-compliance of any of the terms and conditions of the auction, or on misrepresentation by the bidder. It may be noted that the balance 75% which had to be paid within three months of the acceptance of the bid, was not insisted upon by the DDA. On the contrary, after setting up two High Powered Committees which were instructed to look into the grievances of the appellant, the DDA extended time at least twice. It is, therefore, very difficult to say that there was a breach of any terms and conditions of the auction, as the period of three months which the DDA could have insisted upon had specifically been waived. It is nobodys case that there is any misrepresentation here by the bidder. Therefore, under sub-clause (iv), without more, earnest money could not have been forfeited.16. The other noticeable feature of this case on facts is that DDA specifically requested the appellant to give their consent to make the balance payable along with 18% interest charges on belated payment. This was on the footing that the Nazul Rules of 1981 would be relaxed by the Central Government. The reason why the letter is marked "without prejudice" and the DDA made it clear that the letter does not carry any commitment, is obviously because the Central Government may not relax the provision of the Nazul Rules, in which case nothing further could be done by the DDA. If, however, the Central Government was willing to condone the delay, DDA would be willing to take 75% of the outstanding amount along with 18% interest.17. Mr. Sharan argued that since the Central Government ultimately found that this was not a Nazul land, the letter was obviously based on a mistake of fact and would be void under Section 20 of the Contract Act. We are afraid we are not able to accept this plea. Long after the Central Government informed DDA (on 1.3.1990) that the property involved in the present case is not Nazul land, the DDA by its letter of 6.10.1993 cancelled the allotment of the plot because the appellant had failed to deposit the balance 75%. DDAs understanding, therefore, was that what was important was payment of the balance 75% which was insisted upon by the letter dated 1.12.1987 and which was acceded to by the respondent immediately on the same date. Further, Mr. Sharans argument that since the letter was "without prejudice" and since no commitment had been made, they were not bound by the terms of the letter also fails to impress us. The letter was without prejudice and no commitment could have been given by the DDA because the Central Government may well not relax the Nazul Rules. On the other hand, if the Central Government had, later on, relaxed the Nazul Rules, DDA could not be heard to say that despite this having been done, DDA would yet cancel the allotment of the plot. That this could not have been done is clear because of the aforesaid construction of the letter dated 1.12.1987 and also because DDA is a public authority bound by Article 14 and cannot behave arbitrarily.Based on the facts of this case, it would be arbitrary for the DDA to forfeit the earnest money on two fundamental grounds. First, there is no breach of contract on the part of the appellant as has been held above. And second, DDA not having been put to any loss, even if DDA could insist on a contractual stipulation in its favour, it would be arbitrary to allow DDA as a public authority to appropriate Rs.78,00,000/- (Rupees Seventy Eight Lakhs) without any loss being caused. It is clear, therefore, that Article 14 would apply in the field of contract in this case and the finding of the Division Bench on this aspect is hereby reversed.From the above, it is clear that this Court held that Maula Buxs case was not, on facts, a case that related to earnest money. Consequently, the observation in Maula Bux that forfeiture of earnest money under a contract if reasonable does not fall within Section 74, and would fall within Section 74 only if earnest money is considered a penalty is not on a matter that directly arose for decision in that case. The law laid down by a Bench of 5 Judges in Fateh Chands case is that all stipulations naming amounts to be paid in case of breach would be covered by Section 74. This is because Section 74 cuts across the rules of the English Common Law by enacting a uniform principle that would apply to all amounts to be paid in case of breach, whether they are in the nature of penalty or otherwise. It must not be forgotten that as has been stated above, forfeiture of earnest money on the facts in Fateh Chands case was conceded. In the circumstances, it would therefore be correct to say that as earnest money is an amount to be paid in case of breach of contract and named in the contract as such, it would necessarily be covered by Section 74.The Division Bench has gone wrong in principle. As has been pointed out above, there has been no breach of contract by the appellant. Further, we cannot accept the view of the Division Bench that the fact that the DDA made a profit from re-auction is irrelevant, as that would fly in the face of the most basic principle on the award of damages - namely, that compensation can only be given for damage or loss suffered. If damage or loss is not suffered, the law does not provide for a windfall.45. A great deal of the argument before us turned on notings in files that were produced during cross-examination of various witnesses. We have not referred to any of these notings and, consequently, to any case law cited by both parties as we find it unnecessary for the decision of this case.46. Mr. Sharan submitted that in case we were against him, the earnest money that should be refunded should only be refunded with 7% per annum and not 9% per annum interest as was done in other cases. We are afraid we are not able to agree as others were offered the refund of earnest money way back in 1989 with 7% per annum interest which they accepted. The DDA having chosen to fight the present appellant tooth and nail even on refund of earnest money, when there was no breach of contract or loss caused to it, stands on a different footing. We, therefore, turn down this plea as well. | 1 | 11,296 | 1,261 | ### Instruction:
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proceeded to consider the applicability of Section 74 of the Contract Act. (At page 143)" 40. From the above, it is clear that this Court held that Maula Buxs case was not, on facts, a case that related to earnest money. Consequently, the observation in Maula Bux that forfeiture of earnest money under a contract if reasonable does not fall within Section 74, and would fall within Section 74 only if earnest money is considered a penalty is not on a matter that directly arose for decision in that case. The law laid down by a Bench of 5 Judges in Fateh Chands case is that all stipulations naming amounts to be paid in case of breach would be covered by Section 74. This is because Section 74 cuts across the rules of the English Common Law by enacting a uniform principle that would apply to all amounts to be paid in case of breach, whether they are in the nature of penalty or otherwise. It must not be forgotten that as has been stated above, forfeiture of earnest money on the facts in Fateh Chands case was conceded. In the circumstances, it would therefore be correct to say that as earnest money is an amount to be paid in case of breach of contract and named in the contract as such, it would necessarily be covered by Section 74. 41. It must, however, be pointed out that in cases where a public auction is held, forfeiture of earnest money may take place even before an agreement is reached, as DDA is to accept the bid only after the earnest money is paid. In the present case, under the terms and conditions of auction, the highest bid (along with which earnest money has to be paid) may well have been rejected. In such cases, Section 74 may not be attracted on its plain language because it applies only "when a contract has been broken". 42. In the present case, forfeiture of earnest money took place longafter an agreement had been reached. It is obvious that the amount sought to be forfeited on the facts of the present case is sought to be forfeited without any loss being shown. In fact it has been shown that far from suffering any loss, DDA has received a much higher amount on re-auction of the same plot of land. 43. On a conspectus of the above authorities, the law on compensation for breach of contract under Section 74 can be stated to be as follows:- Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the Court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable compensation. Reasonable compensation will be fixed on well known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the Section. The Section applies whether a person is a plaintiff or a defendant in a suit. The sum spoken of may already be paid or be payable in future. The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application. 44. The Division Bench has gone wrong in principle. As has been pointed out above, there has been no breach of contract by the appellant. Further, we cannot accept the view of the Division Bench that the fact that the DDA made a profit from re-auction is irrelevant, as that would fly in the face of the most basic principle on the award of damages - namely, that compensation can only be given for damage or loss suffered. If damage or loss is not suffered, the law does not provide for a windfall.45. A great deal of the argument before us turned on notings in files that were produced during cross-examination of various witnesses. We have not referred to any of these notings and, consequently, to any case law cited by both parties as we find it unnecessary for the decision of this case.46. Mr. Sharan submitted that in case we were against him, the earnest money that should be refunded should only be refunded with 7% per annum and not 9% per annum interest as was done in other cases. We are afraid we are not able to agree as others were offered the refund of earnest money way back in 1989 with 7% per annum interest which they accepted. The DDA having chosen to fight the present appellant tooth and nail even on refund of earnest money, when there was no breach of contract or loss caused to it, stands on a different footing. We, therefore, turn down this plea as well.
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could have insisted upon had specifically been waived. It is nobodys case that there is any misrepresentation here by the bidder. Therefore, under sub-clause (iv), without more, earnest money could not have been forfeited.16. The other noticeable feature of this case on facts is that DDA specifically requested the appellant to give their consent to make the balance payable along with 18% interest charges on belated payment. This was on the footing that the Nazul Rules of 1981 would be relaxed by the Central Government. The reason why the letter is marked "without prejudice" and the DDA made it clear that the letter does not carry any commitment, is obviously because the Central Government may not relax the provision of the Nazul Rules, in which case nothing further could be done by the DDA. If, however, the Central Government was willing to condone the delay, DDA would be willing to take 75% of the outstanding amount along with 18% interest.17. Mr. Sharan argued that since the Central Government ultimately found that this was not a Nazul land, the letter was obviously based on a mistake of fact and would be void under Section 20 of the Contract Act. We are afraid we are not able to accept this plea. Long after the Central Government informed DDA (on 1.3.1990) that the property involved in the present case is not Nazul land, the DDA by its letter of 6.10.1993 cancelled the allotment of the plot because the appellant had failed to deposit the balance 75%. DDAs understanding, therefore, was that what was important was payment of the balance 75% which was insisted upon by the letter dated 1.12.1987 and which was acceded to by the respondent immediately on the same date. Further, Mr. Sharans argument that since the letter was "without prejudice" and since no commitment had been made, they were not bound by the terms of the letter also fails to impress us. The letter was without prejudice and no commitment could have been given by the DDA because the Central Government may well not relax the Nazul Rules. On the other hand, if the Central Government had, later on, relaxed the Nazul Rules, DDA could not be heard to say that despite this having been done, DDA would yet cancel the allotment of the plot. That this could not have been done is clear because of the aforesaid construction of the letter dated 1.12.1987 and also because DDA is a public authority bound by Article 14 and cannot behave arbitrarily.Based on the facts of this case, it would be arbitrary for the DDA to forfeit the earnest money on two fundamental grounds. First, there is no breach of contract on the part of the appellant as has been held above. And second, DDA not having been put to any loss, even if DDA could insist on a contractual stipulation in its favour, it would be arbitrary to allow DDA as a public authority to appropriate Rs.78,00,000/- (Rupees Seventy Eight Lakhs) without any loss being caused. It is clear, therefore, that Article 14 would apply in the field of contract in this case and the finding of the Division Bench on this aspect is hereby reversed.From the above, it is clear that this Court held that Maula Buxs case was not, on facts, a case that related to earnest money. Consequently, the observation in Maula Bux that forfeiture of earnest money under a contract if reasonable does not fall within Section 74, and would fall within Section 74 only if earnest money is considered a penalty is not on a matter that directly arose for decision in that case. The law laid down by a Bench of 5 Judges in Fateh Chands case is that all stipulations naming amounts to be paid in case of breach would be covered by Section 74. This is because Section 74 cuts across the rules of the English Common Law by enacting a uniform principle that would apply to all amounts to be paid in case of breach, whether they are in the nature of penalty or otherwise. It must not be forgotten that as has been stated above, forfeiture of earnest money on the facts in Fateh Chands case was conceded. In the circumstances, it would therefore be correct to say that as earnest money is an amount to be paid in case of breach of contract and named in the contract as such, it would necessarily be covered by Section 74.The Division Bench has gone wrong in principle. As has been pointed out above, there has been no breach of contract by the appellant. Further, we cannot accept the view of the Division Bench that the fact that the DDA made a profit from re-auction is irrelevant, as that would fly in the face of the most basic principle on the award of damages - namely, that compensation can only be given for damage or loss suffered. If damage or loss is not suffered, the law does not provide for a windfall.45. A great deal of the argument before us turned on notings in files that were produced during cross-examination of various witnesses. We have not referred to any of these notings and, consequently, to any case law cited by both parties as we find it unnecessary for the decision of this case.46. Mr. Sharan submitted that in case we were against him, the earnest money that should be refunded should only be refunded with 7% per annum and not 9% per annum interest as was done in other cases. We are afraid we are not able to agree as others were offered the refund of earnest money way back in 1989 with 7% per annum interest which they accepted. The DDA having chosen to fight the present appellant tooth and nail even on refund of earnest money, when there was no breach of contract or loss caused to it, stands on a different footing. We, therefore, turn down this plea as well.
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Udai Chand Vs. Shanker Lal & Others | BEG, C.J. 1. The plaintiff landlord had purchased a shop by a sale deed dated 17th May, 1965, and then terminated the tenancy of the defendant-petitioner by a registered notice in July, 1965, coupled with a demand for arrears of rent. Upon the failure of defendant to comply with the notice to quit a suit was filed against the defendant-petitioner on 23rd November, 1965. During the pendency of that suit the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, was made applicable by a notification dated 30th March, 1967, to Rajgarh town where, the shop is situated. 2. The defendant petitioner had denied having executed any rent note in favour of Bhurdas, the predecessor-in-interest of the plaintiff landlord who had also notified the defendant petitioner of the sale in favour of the plaintiff by a registered notice dated 25th June, 1965, received by the defendant petitioner on 29th June, 1965. The defendant petitioner pleaded having taken the shop from another individual. Mahant Ram Ratan Das. 3. In the course of litigation, the defendant-petitioner had asked for an issue to be framed on the, question whether there was legal necessity for the transfer in favour of the plaintiff. In other words, he had questioned, at that stage, the legality of transfer in favour of the plaintiff on the ground of. want of title in the plaintiffs predecessor-in-interest and also on the ground that the sale deed was invalid. The High Court had, however, on a revision application preferred by the defendant-petitioner rejected the demand of the tenant for framing of an issue on the question whether there was legal necessity for the transaction. The ground for this rejection was that, as the defendant petitioner had obtained possess ion under a tenancy from Bhurdas, the predecessor-in-interest of the present landlord, Surajmal, the defendant petitioner Udai Chand, was estopped from questioning the title of his landlord by reason of the principle laid down in Section 116 of the Evidence Act.Ultimately, upon the decree for eviction, the defendant petitioner had again challenged the view that he Was estopped from questioning the title of Bhurdas. On this question the learned judge who heard the second appeal in the High Court observed:"I would like to mention here that the learned- Counsel for the appellant did not challenge the correctness of the finding that the rent notes Ex. 8 and Ex. 10 were executed by the defendant in favour of Bhurdas. The learned Counsel for the appellant also did not challenge the genuineness of the sale deed dated May 17, 1965 executed by Bhurdas in favour of Surajmal". 4. The High Court then quoted the recitals of Ex. 10 showing that the defendant had admitted that the shop was owned by Bhurdas to whom he would pay rent. The defendant- petitioners second appeal was, therefore, dismissed by the High Court. The defendant-petitioner then filed a special leave petition in this Court under Article 136. Ground No. 7 of the grounds of special leave petition was:"That the Honble Court should have appreciated that the rent note Ext. 10 nowhere states that Bhoordas was the owner of the house and hence the inference of the Honble Judge that the petitioner had admitted t hat Bhoordas was the owner of the shop, is not correct and hence the judgment under appeal deserves to be set aside". | 1[ds]We are const rained to observe that the tendency to file appeals in hopeless cases only to gain time and ward off eviction has assumed alarming proportions. We cannot mitigate possible rigours of any law by permitting defaulting tenants to hold up their evictions indefinitely or for inordinately long periods on flimsy or unsustainable grounds. We cannot permit abuses of the process of law and of law Courts. Accordingly, we allow this application for revocation of special leave. We hereby revoke the special leave granted and reject the special leave petition. We also vacate the stay granted. The application for urging additional grounds is rejected. | 1 | 627 | 119 | ### Instruction:
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BEG, C.J. 1. The plaintiff landlord had purchased a shop by a sale deed dated 17th May, 1965, and then terminated the tenancy of the defendant-petitioner by a registered notice in July, 1965, coupled with a demand for arrears of rent. Upon the failure of defendant to comply with the notice to quit a suit was filed against the defendant-petitioner on 23rd November, 1965. During the pendency of that suit the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, was made applicable by a notification dated 30th March, 1967, to Rajgarh town where, the shop is situated. 2. The defendant petitioner had denied having executed any rent note in favour of Bhurdas, the predecessor-in-interest of the plaintiff landlord who had also notified the defendant petitioner of the sale in favour of the plaintiff by a registered notice dated 25th June, 1965, received by the defendant petitioner on 29th June, 1965. The defendant petitioner pleaded having taken the shop from another individual. Mahant Ram Ratan Das. 3. In the course of litigation, the defendant-petitioner had asked for an issue to be framed on the, question whether there was legal necessity for the transfer in favour of the plaintiff. In other words, he had questioned, at that stage, the legality of transfer in favour of the plaintiff on the ground of. want of title in the plaintiffs predecessor-in-interest and also on the ground that the sale deed was invalid. The High Court had, however, on a revision application preferred by the defendant-petitioner rejected the demand of the tenant for framing of an issue on the question whether there was legal necessity for the transaction. The ground for this rejection was that, as the defendant petitioner had obtained possess ion under a tenancy from Bhurdas, the predecessor-in-interest of the present landlord, Surajmal, the defendant petitioner Udai Chand, was estopped from questioning the title of his landlord by reason of the principle laid down in Section 116 of the Evidence Act.Ultimately, upon the decree for eviction, the defendant petitioner had again challenged the view that he Was estopped from questioning the title of Bhurdas. On this question the learned judge who heard the second appeal in the High Court observed:"I would like to mention here that the learned- Counsel for the appellant did not challenge the correctness of the finding that the rent notes Ex. 8 and Ex. 10 were executed by the defendant in favour of Bhurdas. The learned Counsel for the appellant also did not challenge the genuineness of the sale deed dated May 17, 1965 executed by Bhurdas in favour of Surajmal". 4. The High Court then quoted the recitals of Ex. 10 showing that the defendant had admitted that the shop was owned by Bhurdas to whom he would pay rent. The defendant- petitioners second appeal was, therefore, dismissed by the High Court. The defendant-petitioner then filed a special leave petition in this Court under Article 136. Ground No. 7 of the grounds of special leave petition was:"That the Honble Court should have appreciated that the rent note Ext. 10 nowhere states that Bhoordas was the owner of the house and hence the inference of the Honble Judge that the petitioner had admitted t hat Bhoordas was the owner of the shop, is not correct and hence the judgment under appeal deserves to be set aside".
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We are const rained to observe that the tendency to file appeals in hopeless cases only to gain time and ward off eviction has assumed alarming proportions. We cannot mitigate possible rigours of any law by permitting defaulting tenants to hold up their evictions indefinitely or for inordinately long periods on flimsy or unsustainable grounds. We cannot permit abuses of the process of law and of law Courts. Accordingly, we allow this application for revocation of special leave. We hereby revoke the special leave granted and reject the special leave petition. We also vacate the stay granted. The application for urging additional grounds is rejected.
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Suresh Kumar Vs. UOI | of Yashica Palace hotel near Gangwal bus stand at Indore between 1800 and 1900 hrs. on 24.02.2013 by the Intelligence Officer of the Narcotics Control Bureau carrying 610 gms of heroin and 40 gms. of Alprazolum in a bag which was seized by the Officer effecting the arrest. A mobile phone Sim No. 90395020407 was also according to the prosecution, seized from the possession of the appellant. While the trial has yet to commence on the charge sheet filed against the appellant, an application was filed on his behalf before the Special Judge, NDPS, Indore praying for a direction summoning call details that would indicate the locations of three different mobile telephone numbers mentioned in paras 3 and 5 of the said application. Out of these numbers one of the mobile phones admittedly belongs to the appellant-accused while the other two telephone numbers bearing Sim No. 9165077714 issued by the Airtel Company and Sim No. 7145593902 issued by the Tata Docomo Company are said to be of the Officers who are alleged to have arrested the appellant on the date, time and place, mentioned above. The appellants case before the Trial Court and so also before the High Court was that the prosecution story that he was arrested from near about the hotel, mentioned above, was factually incorrect which fact could according to the appellant be proved by the call details of the mobile numbers held by the officers who are alleged to have arrested the appellant. The appellant contended that the telephone numbers of the Officer effecting the arrest and making the seizure would show that the officers concerned were at some other locations during the time the appellants arrest and resultant seizures are alleged to have been made. The Trial Court and the High Court have declined that prayer as noticed above.3. We have heard Ms. Vibha Dutta Makhija, learned senior counsel for the appellant and Mr. Siddharth Luthra, learned ASG for the respondent-UOI. Ms. Makhija contended that the call details which the appellant seeks to summon under the orders of the court will be extremely vital for proving that the appellant was not arrested at the time and place alleged by the prosecution. The fact that the Officers who effected the arrest were during the relevant period at different locations would clearly belie the prosecutions case in that regard. Inasmuch as the trial court and the High Court declined to summon the call details the orders passed by them have the effect of denying to the appellant the opportunity to prove his innocence thereby causing prejudice to him in his defence.4. On behalf of the respondent it was argued by Mr. Luthra that while call details were admissible in terms of Section 65 A and 65 B of the Indian Evidence Act subject to fulfilment of the requirements stipulated in the said provision such details are likely to prejudice the prosecution and in particular the Narcotic Control Bureau inasmuch as the details being summoned would not only indicate the location of the officers concerned but also bring other information into public domain. This would according to Mr. Luthra hamper investigations and may result in exposing sources of information. Once exposed the sources may according to the learned counsel completely dry up to the prejudice of the Bureau. It was submitted that the likely prejudice which the respondents apprehend is a good enough reason for this Court to decline the prayer made by the appellant. Insofar as the call details of the mobile connection held by the accused are concerned the same have according to Mr. Luthra already been produced at the trial clearly showing that the accused was at the relevant point of time at or around the place from where he was arrested. This according to the learned ASG obviates the necessity for proving whether the officers concerned were indeed present in the area from where the petitioner was allegedly arrested along with the narcotics.5. That electronic records are admissible evidence in criminal trials is not in dispute. Sections 65A and 65B of the Indian Evidence Act make such records admissible subject to the fulfilment of the requirements stipulated therein which includes a certificate in terms of Section 65B(4) of the said Act. To that extent the appellant has every right to summon whatever is relevant and admissible in his defence including electronic record relevant to finding out the location of the officers effecting the arrest. Be that as it may we do not at this stage wish to pre-judge the issue which would eventually fall for the consideration of the Trial Court. 6. All that we are concerned with is whether call details which the appellant is demanding can be denied to him on the ground that such details are likely to prejudice the case of the prosecution by exposing their activities in relation to similar other cases and individuals. It is not however in dispute that the call details are being summoned only for purposes of determining the exact location of the officers concerned at the time of the alleged arrest of the appellant from Yashica Palace hotel near the bus stand. Ms. Makhija made a candid concession that any other information contained in the call details will be of no use to the appellant and that the appellant would not insist upon disclosure of such information. That in our opinion simplifies the matter inasmuch as while the call details demanded by the appellant can be summoned in terms of Section 65B of the Indian Evidence Act such details being relevant only to the extent of determining the location of officers concerned need not contain other information concerning such calls received or made from the telephone numbers concerned. In other words if the mobile telephone numbers called or details of the callers are blacked out of the information summoned from the companies concerned it will protect the respondent against any possible prejudice in terms of exposure of sources of information available to the Bureau. | 1[ds]5. That electronic records are admissible evidence in criminal trials is not in dispute. Sections 65A and 65B of the Indian Evidence Act make such records admissible subject to the fulfilment of the requirements stipulated therein which includes a certificate in terms of Section 65B(4) of the said Act. To that extent the appellant has every right to summon whatever is relevant and admissible in his defence including electronic record relevant to finding out the location of the officers effecting the arrest. Be that as it may we do not at this stage wish to pre-judge the issue which would eventually fall for the consideration of the Trial Court.It is not however in dispute that the call details are being summoned only for purposes of determining the exact location of the officers concerned at the time of the alleged arrest of the appellant from Yashica Palace hotel near the bus stand. Ms. Makhija made a candid concession that any other information contained in the call details will be of no use to the appellant and that the appellant would not insist upon disclosure of such information. That in our opinion simplifies the matter inasmuch as while the call details demanded by the appellant can be summoned in terms of Section 65B of the Indian Evidence Act such details being relevant only to the extent of determining the location of officers concerned need not contain other information concerning such calls received or made from the telephone numbers concerned. In other words if the mobile telephone numbers called or details of the callers are blacked out of the information summoned from the companies concerned it will protect the respondent against any possible prejudice in terms of exposure of sources of information available to the Bureau. | 1 | 1,158 | 308 | ### Instruction:
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of Yashica Palace hotel near Gangwal bus stand at Indore between 1800 and 1900 hrs. on 24.02.2013 by the Intelligence Officer of the Narcotics Control Bureau carrying 610 gms of heroin and 40 gms. of Alprazolum in a bag which was seized by the Officer effecting the arrest. A mobile phone Sim No. 90395020407 was also according to the prosecution, seized from the possession of the appellant. While the trial has yet to commence on the charge sheet filed against the appellant, an application was filed on his behalf before the Special Judge, NDPS, Indore praying for a direction summoning call details that would indicate the locations of three different mobile telephone numbers mentioned in paras 3 and 5 of the said application. Out of these numbers one of the mobile phones admittedly belongs to the appellant-accused while the other two telephone numbers bearing Sim No. 9165077714 issued by the Airtel Company and Sim No. 7145593902 issued by the Tata Docomo Company are said to be of the Officers who are alleged to have arrested the appellant on the date, time and place, mentioned above. The appellants case before the Trial Court and so also before the High Court was that the prosecution story that he was arrested from near about the hotel, mentioned above, was factually incorrect which fact could according to the appellant be proved by the call details of the mobile numbers held by the officers who are alleged to have arrested the appellant. The appellant contended that the telephone numbers of the Officer effecting the arrest and making the seizure would show that the officers concerned were at some other locations during the time the appellants arrest and resultant seizures are alleged to have been made. The Trial Court and the High Court have declined that prayer as noticed above.3. We have heard Ms. Vibha Dutta Makhija, learned senior counsel for the appellant and Mr. Siddharth Luthra, learned ASG for the respondent-UOI. Ms. Makhija contended that the call details which the appellant seeks to summon under the orders of the court will be extremely vital for proving that the appellant was not arrested at the time and place alleged by the prosecution. The fact that the Officers who effected the arrest were during the relevant period at different locations would clearly belie the prosecutions case in that regard. Inasmuch as the trial court and the High Court declined to summon the call details the orders passed by them have the effect of denying to the appellant the opportunity to prove his innocence thereby causing prejudice to him in his defence.4. On behalf of the respondent it was argued by Mr. Luthra that while call details were admissible in terms of Section 65 A and 65 B of the Indian Evidence Act subject to fulfilment of the requirements stipulated in the said provision such details are likely to prejudice the prosecution and in particular the Narcotic Control Bureau inasmuch as the details being summoned would not only indicate the location of the officers concerned but also bring other information into public domain. This would according to Mr. Luthra hamper investigations and may result in exposing sources of information. Once exposed the sources may according to the learned counsel completely dry up to the prejudice of the Bureau. It was submitted that the likely prejudice which the respondents apprehend is a good enough reason for this Court to decline the prayer made by the appellant. Insofar as the call details of the mobile connection held by the accused are concerned the same have according to Mr. Luthra already been produced at the trial clearly showing that the accused was at the relevant point of time at or around the place from where he was arrested. This according to the learned ASG obviates the necessity for proving whether the officers concerned were indeed present in the area from where the petitioner was allegedly arrested along with the narcotics.5. That electronic records are admissible evidence in criminal trials is not in dispute. Sections 65A and 65B of the Indian Evidence Act make such records admissible subject to the fulfilment of the requirements stipulated therein which includes a certificate in terms of Section 65B(4) of the said Act. To that extent the appellant has every right to summon whatever is relevant and admissible in his defence including electronic record relevant to finding out the location of the officers effecting the arrest. Be that as it may we do not at this stage wish to pre-judge the issue which would eventually fall for the consideration of the Trial Court. 6. All that we are concerned with is whether call details which the appellant is demanding can be denied to him on the ground that such details are likely to prejudice the case of the prosecution by exposing their activities in relation to similar other cases and individuals. It is not however in dispute that the call details are being summoned only for purposes of determining the exact location of the officers concerned at the time of the alleged arrest of the appellant from Yashica Palace hotel near the bus stand. Ms. Makhija made a candid concession that any other information contained in the call details will be of no use to the appellant and that the appellant would not insist upon disclosure of such information. That in our opinion simplifies the matter inasmuch as while the call details demanded by the appellant can be summoned in terms of Section 65B of the Indian Evidence Act such details being relevant only to the extent of determining the location of officers concerned need not contain other information concerning such calls received or made from the telephone numbers concerned. In other words if the mobile telephone numbers called or details of the callers are blacked out of the information summoned from the companies concerned it will protect the respondent against any possible prejudice in terms of exposure of sources of information available to the Bureau.
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### Explanation:
5. That electronic records are admissible evidence in criminal trials is not in dispute. Sections 65A and 65B of the Indian Evidence Act make such records admissible subject to the fulfilment of the requirements stipulated therein which includes a certificate in terms of Section 65B(4) of the said Act. To that extent the appellant has every right to summon whatever is relevant and admissible in his defence including electronic record relevant to finding out the location of the officers effecting the arrest. Be that as it may we do not at this stage wish to pre-judge the issue which would eventually fall for the consideration of the Trial Court.It is not however in dispute that the call details are being summoned only for purposes of determining the exact location of the officers concerned at the time of the alleged arrest of the appellant from Yashica Palace hotel near the bus stand. Ms. Makhija made a candid concession that any other information contained in the call details will be of no use to the appellant and that the appellant would not insist upon disclosure of such information. That in our opinion simplifies the matter inasmuch as while the call details demanded by the appellant can be summoned in terms of Section 65B of the Indian Evidence Act such details being relevant only to the extent of determining the location of officers concerned need not contain other information concerning such calls received or made from the telephone numbers concerned. In other words if the mobile telephone numbers called or details of the callers are blacked out of the information summoned from the companies concerned it will protect the respondent against any possible prejudice in terms of exposure of sources of information available to the Bureau.
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SHRIPATI LAKHU MANE Vs. THE MEMBER SECRETARY, MAHARASHTRA WATER SUPPLY AND SEWERAGE BOARD & ORS | 1872 makes it clear that if any promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his promise, the promisor is excused by such neglect or refusal. Section 67 together with the illustration contained there under reads as follows:- 67. Effect of neglect of promisee to afford promisor reasonable facilities for performance.—If any promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his promise, the promisor is excused by such neglect or refusal as to any non--performance caused thereby. Illustration A contracts with B to repair Bs house. B neglects or refuses to point out to A the places in which his house requires repair. A is excused for the non--performance of the contract, if it is caused by such neglect or refusal. 18. In the case on hand, the respondents issued the work order on 03.07.1986 but directed the work order to be kept in abeyance by a subsequent letter dated 28.07.1986. After this stalemate was lifted by a letter dated 17.12.1986, two things happened namely, (i) a change in the diameter of the pipes supplied by the respondents for carrying out the contract; and (ii) request for the performance of additional work without finalization of the modified rates. Therefore, the respondents cannot even accuse the appellant of non--performance of the contract. 19. It is fundamental to the Law of Contract that whenever a material alteration takes place in the terms of the original contract, on account of any act of omission or commission on the part of one of the parties to the contract, it is open to the other party not to perform the original contract. This will not amount to abandonment. Moreover, abandonment is normally understood, in the context of a right and not in the context of a liability or obligation. A party to a contract may abandon his rights under the contract leading to a plea of waiver by the other party, but there is no question of abandoning an obligation. In this case, the appellant refused to perform his obligations under the work--order, for reasons stated by him. This refusal to perform the obligations, can perhaps be termed as breach of contract and not abandonment. 20. It is interesting to note that the respondents did not choose, (i) to allege breach of contract against the appellant; and (ii) consequently to invoke the right to rescind the contract under clause 3(a). The respondents, if they were justified in doing so, could have taken recourse to the remedy available under Section 75 of the Contract Act and sought compensation for the damage sustained through the non--fulfillment of the contract. On the contrary they attributed abandonment to the appellant (without understanding the true purport of the word abandonment) and refused to honour the claims made by the appellant. 21. The finding of the High Court that there was abandonment of contract, was on the basis that after the second bill was cleared in May, 1987, the work under the main contract did not progress. This finding goes completely contrary to yet another finding that the period of the contract was up to June, 1989 and that the respondents themselves granted extension of time to complete the contract up to 31.12.1989, despite there being no request from the appellant. We fail to understand as to how a person who abandoned the contract in May, 1987 could be granted extension of time up to December, 1989 on the very understanding of the respondents that the contract was up to June, 1989. In fact, the High Court recorded a finding in paragraph 9 of the impugned judgment that according to DWs 3, 4 and 5, the power to rescind under clause 3(a) of the tender was invoked and the security deposit forfeited. This was not how the respondents pitched their claim even in the written statement. In any case such a finding cannot co-exist with the specific stand of the respondents that the period of contract was extended up to December, 1989. 22. The refusal of a contractor to continue to execute the work, unless the reciprocal promises are performed by the other party, cannot be termed as abandonment of contract. A refusal by one party to a contract, may entitle the other party either to sue for breach or to rescind the contract and sue on a quantum meruit for the work already done. Paragraph 694 of Volume 9, Fourth Edition of Halsburys Laws of England, may be usefully extracted to highlight the remedies available to a party to the contract, if the other party absolutely refuses to perform his part of the contract. 694. Work done under a contract terminated for breach. Where one party has absolutely refused to perform, or has rendered himself incapable of performing, his part of the contract, he puts in the power of the other party either to sue for a breach of it, or to rescind the contract and sue on a quantum meruit for the work actually done. Thus, where a publisher engaged an author to write a work but abandoned the project, the author was entitled to recover reasonable remuneration without tendering the completed work; and where a defendant wrongfully revoked the plaintiffs authority to sell his land after the latter had found a purchaser, the plaintiff recovered reasonable remuneration for his work and labour up to that date. This type of quantum meruit claim is analogous to claims for the repayment of money on total failure of consideration. In both cases, the contract must be at an end before the claim can be brought; but once the contract is at an end there is a logical difficulty in saying that the claim is contractual. The respondents did not choose the option of rescinding the contract and suing for damages in terms of clause 3 (a) and (b). It was the respondents who made it difficult for the appellant to execute the contract as per the terms originally agreed. | 1[ds]13. As could be seen from the above table, what was allowed by the Trial Court under three heads of claims namely, (i) the release of security deposit to the tune of Rs.2,21,000; (ii) over-heads for the period from January 1989 to 30.09.1990 to the tune of Rs. 5,63,115/--; and (iii) loss of profits to the tune of Rs.9,73,250/--, were disallowed by the High Court. Therefore, the appeal before us is actually confined only to these 3 heads of claims.14. The main and perhaps the only reason why the High Court rejected the claims under the aforesaid 3 heads, was that the appellant had abandoned the work under the main contract and that therefore neither the question of release of security deposit nor the question of payment of overheads nor the question of allowing a claim for loss of profit, did arise.16. The entire sequence of events narrated in the preceding paragraph would show that the appellant was not guilty of anything including abandonment. Admittedly, Clause 3(a) of the contract enabled the respondents to rescind the contract, forfeit the security deposit and entrust the work to another contractor at the risk and costs of the appellant. This clause was never invoked by the respondents. Therefore, we are surprised, especially in the light of the communications from February, 1988 up to October, 1989 as to how the High Court could have found the appellant guilty of abandonment.18. In the case on hand, the respondents issued the work order on 03.07.1986 but directed the work order to be kept in abeyance by a subsequent letter dated 28.07.1986. After this stalemate was lifted by a letter dated 17.12.1986, two things happened namely, (i) a change in the diameter of the pipes supplied by the respondents for carrying out the contract; and (ii) request for the performance of additional work without finalization of the modified rates. Therefore, the respondents cannot even accuse the appellant of non--performance of the contract.In this case, the appellant refused to perform his obligations under the work--order, for reasons stated by him. This refusal to perform the obligations, can perhaps be termed as breach of contract and not abandonment.20. It is interesting to note that the respondents did not choose, (i) to allege breach of contract against the appellant; and (ii) consequently to invoke the right to rescind the contract under clause 3(a). The respondents, if they were justified in doing so, could have taken recourse to the remedy available under Section 75 of the Contract Act and sought compensation for the damage sustained through the non--fulfillment of the contract. On the contrary they attributed abandonment to the appellant (without understanding the true purport of the word abandonment) and refused to honour the claims made by the appellant.21. The finding of the High Court that there was abandonment of contract, was on the basis that after the second bill was cleared in May, 1987, the work under the main contract did not progress. This finding goes completely contrary to yet another finding that the period of the contract was up to June, 1989 and that the respondents themselves granted extension of time to complete the contract up to 31.12.1989, despite there being no request from the appellant. We fail to understand as to how a person who abandoned the contract in May, 1987 could be granted extension of time up to December, 1989 on the very understanding of the respondents that the contract was up to June, 1989. In fact, the High Court recorded a finding in paragraph 9 of the impugned judgment that according to DWs 3, 4 and 5, the power to rescind under clause 3(a) of the tender was invoked and the security deposit forfeited. This was not how the respondents pitched their claim even in the written statement. In any case such a finding cannot co-exist with the specific stand of the respondents that the period of contract was extended up to December, 1989.The respondents did not choose the option of rescinding the contract and suing for damages in terms of clause 3 (a) and (b). It was the respondents who made it difficult for the appellant to execute the contract as per the terms originally agreed. | 1 | 3,345 | 805 | ### 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:
1872 makes it clear that if any promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his promise, the promisor is excused by such neglect or refusal. Section 67 together with the illustration contained there under reads as follows:- 67. Effect of neglect of promisee to afford promisor reasonable facilities for performance.—If any promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his promise, the promisor is excused by such neglect or refusal as to any non--performance caused thereby. Illustration A contracts with B to repair Bs house. B neglects or refuses to point out to A the places in which his house requires repair. A is excused for the non--performance of the contract, if it is caused by such neglect or refusal. 18. In the case on hand, the respondents issued the work order on 03.07.1986 but directed the work order to be kept in abeyance by a subsequent letter dated 28.07.1986. After this stalemate was lifted by a letter dated 17.12.1986, two things happened namely, (i) a change in the diameter of the pipes supplied by the respondents for carrying out the contract; and (ii) request for the performance of additional work without finalization of the modified rates. Therefore, the respondents cannot even accuse the appellant of non--performance of the contract. 19. It is fundamental to the Law of Contract that whenever a material alteration takes place in the terms of the original contract, on account of any act of omission or commission on the part of one of the parties to the contract, it is open to the other party not to perform the original contract. This will not amount to abandonment. Moreover, abandonment is normally understood, in the context of a right and not in the context of a liability or obligation. A party to a contract may abandon his rights under the contract leading to a plea of waiver by the other party, but there is no question of abandoning an obligation. In this case, the appellant refused to perform his obligations under the work--order, for reasons stated by him. This refusal to perform the obligations, can perhaps be termed as breach of contract and not abandonment. 20. It is interesting to note that the respondents did not choose, (i) to allege breach of contract against the appellant; and (ii) consequently to invoke the right to rescind the contract under clause 3(a). The respondents, if they were justified in doing so, could have taken recourse to the remedy available under Section 75 of the Contract Act and sought compensation for the damage sustained through the non--fulfillment of the contract. On the contrary they attributed abandonment to the appellant (without understanding the true purport of the word abandonment) and refused to honour the claims made by the appellant. 21. The finding of the High Court that there was abandonment of contract, was on the basis that after the second bill was cleared in May, 1987, the work under the main contract did not progress. This finding goes completely contrary to yet another finding that the period of the contract was up to June, 1989 and that the respondents themselves granted extension of time to complete the contract up to 31.12.1989, despite there being no request from the appellant. We fail to understand as to how a person who abandoned the contract in May, 1987 could be granted extension of time up to December, 1989 on the very understanding of the respondents that the contract was up to June, 1989. In fact, the High Court recorded a finding in paragraph 9 of the impugned judgment that according to DWs 3, 4 and 5, the power to rescind under clause 3(a) of the tender was invoked and the security deposit forfeited. This was not how the respondents pitched their claim even in the written statement. In any case such a finding cannot co-exist with the specific stand of the respondents that the period of contract was extended up to December, 1989. 22. The refusal of a contractor to continue to execute the work, unless the reciprocal promises are performed by the other party, cannot be termed as abandonment of contract. A refusal by one party to a contract, may entitle the other party either to sue for breach or to rescind the contract and sue on a quantum meruit for the work already done. Paragraph 694 of Volume 9, Fourth Edition of Halsburys Laws of England, may be usefully extracted to highlight the remedies available to a party to the contract, if the other party absolutely refuses to perform his part of the contract. 694. Work done under a contract terminated for breach. Where one party has absolutely refused to perform, or has rendered himself incapable of performing, his part of the contract, he puts in the power of the other party either to sue for a breach of it, or to rescind the contract and sue on a quantum meruit for the work actually done. Thus, where a publisher engaged an author to write a work but abandoned the project, the author was entitled to recover reasonable remuneration without tendering the completed work; and where a defendant wrongfully revoked the plaintiffs authority to sell his land after the latter had found a purchaser, the plaintiff recovered reasonable remuneration for his work and labour up to that date. This type of quantum meruit claim is analogous to claims for the repayment of money on total failure of consideration. In both cases, the contract must be at an end before the claim can be brought; but once the contract is at an end there is a logical difficulty in saying that the claim is contractual. The respondents did not choose the option of rescinding the contract and suing for damages in terms of clause 3 (a) and (b). It was the respondents who made it difficult for the appellant to execute the contract as per the terms originally agreed.
### Response:
1
### Explanation:
13. As could be seen from the above table, what was allowed by the Trial Court under three heads of claims namely, (i) the release of security deposit to the tune of Rs.2,21,000; (ii) over-heads for the period from January 1989 to 30.09.1990 to the tune of Rs. 5,63,115/--; and (iii) loss of profits to the tune of Rs.9,73,250/--, were disallowed by the High Court. Therefore, the appeal before us is actually confined only to these 3 heads of claims.14. The main and perhaps the only reason why the High Court rejected the claims under the aforesaid 3 heads, was that the appellant had abandoned the work under the main contract and that therefore neither the question of release of security deposit nor the question of payment of overheads nor the question of allowing a claim for loss of profit, did arise.16. The entire sequence of events narrated in the preceding paragraph would show that the appellant was not guilty of anything including abandonment. Admittedly, Clause 3(a) of the contract enabled the respondents to rescind the contract, forfeit the security deposit and entrust the work to another contractor at the risk and costs of the appellant. This clause was never invoked by the respondents. Therefore, we are surprised, especially in the light of the communications from February, 1988 up to October, 1989 as to how the High Court could have found the appellant guilty of abandonment.18. In the case on hand, the respondents issued the work order on 03.07.1986 but directed the work order to be kept in abeyance by a subsequent letter dated 28.07.1986. After this stalemate was lifted by a letter dated 17.12.1986, two things happened namely, (i) a change in the diameter of the pipes supplied by the respondents for carrying out the contract; and (ii) request for the performance of additional work without finalization of the modified rates. Therefore, the respondents cannot even accuse the appellant of non--performance of the contract.In this case, the appellant refused to perform his obligations under the work--order, for reasons stated by him. This refusal to perform the obligations, can perhaps be termed as breach of contract and not abandonment.20. It is interesting to note that the respondents did not choose, (i) to allege breach of contract against the appellant; and (ii) consequently to invoke the right to rescind the contract under clause 3(a). The respondents, if they were justified in doing so, could have taken recourse to the remedy available under Section 75 of the Contract Act and sought compensation for the damage sustained through the non--fulfillment of the contract. On the contrary they attributed abandonment to the appellant (without understanding the true purport of the word abandonment) and refused to honour the claims made by the appellant.21. The finding of the High Court that there was abandonment of contract, was on the basis that after the second bill was cleared in May, 1987, the work under the main contract did not progress. This finding goes completely contrary to yet another finding that the period of the contract was up to June, 1989 and that the respondents themselves granted extension of time to complete the contract up to 31.12.1989, despite there being no request from the appellant. We fail to understand as to how a person who abandoned the contract in May, 1987 could be granted extension of time up to December, 1989 on the very understanding of the respondents that the contract was up to June, 1989. In fact, the High Court recorded a finding in paragraph 9 of the impugned judgment that according to DWs 3, 4 and 5, the power to rescind under clause 3(a) of the tender was invoked and the security deposit forfeited. This was not how the respondents pitched their claim even in the written statement. In any case such a finding cannot co-exist with the specific stand of the respondents that the period of contract was extended up to December, 1989.The respondents did not choose the option of rescinding the contract and suing for damages in terms of clause 3 (a) and (b). It was the respondents who made it difficult for the appellant to execute the contract as per the terms originally agreed.
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National Institute Of Technology Vs. Pannalal Choudhury | ‘Ratification’ is the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorisedly performed in the first instance.” 37) The law of ratification was applied by this Court in Parmeshwari Prasad Gupta Vs. U.O.I (1973) 2 SCC 543. In that case, the Chairman of the Board of Directors had terminated the services of the General Manager of a Company pursuant to a resolution taken by the Board at a meeting. It was not in dispute that the meeting had been improperly held and consequently the resolution passed in the said meeting terminating the services of General Manager was invalid. However, the Board of Directors then convened subsequent meeting and in this meeting affirmed the earlier resolution, which had been passed in improper meeting. On these facts, the Court held, “Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16-12-1953 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 unauthorised, 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 17-12-1953.” 38) This view was approved by this Court in High Court of Judicature for Rajasthan Vs. P.P. Singh & Anr. (2003) 4 SCC 239. 39) The aforesaid principle of law of ratification was again applied by this Court in Maharashtra State Mining Corpn. Vs. Sunil (2006) 5 SCC 96. In this case, the respondent was an employee of the appellant Corporation. Consequent to a departmental enquiry, he was dismissed by the Managing Director of the appellant. The respondent then filed a writ petition before the High Court. During the pendency of the writ petition, the Board of Directors of the appellant Corporation passed a resolution ratifying the impugned action of the Managing Director and also empowering him to take decision in respect of the officers and staff in the grade of pay the maximum of which did not exceed Rs. 4700 p.m. Earlier, the Managing Director had powers only in respect of those posts where the maximum pay did not exceed Rs.1900 p.m. The respondent at the relevant time was drawing more than Rs.1800 p.m. Therefore, at the relevant time, the Managing Director was incompetent to dismiss the respondent. Accordingly, the High Court held the order of dismissal to be invalid. The High Court further held that the said defect could not be rectified subsequently by the resolution of the Board of Directors. The High Court set aside the dismissal order and granted consequential relief. The appellant then filed the appeal in this Court by special leave. Justice Ruma Pal, speaking for three- Judge Bench, while allowing the appeal and setting aside of the Court held as under : “The High Court rightly held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act could not be subsequently “rectified” by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, “a subsequent ratification of an act is equivalent to a prior authority to perform such act.” Therefore, ratification assumes an invalid act which is retrospectively validated.”“In the present case, the Managing Director’s order dismissing the respondent from service was admittedly ratified by the Board of Directors unquestionably had the power to terminate the services of the respondent. Since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it.” 40) Applying the aforementioned law of ratification to the facts at hand, even if we assume for the sake of argument that the order of dismissal dated 16.08.1996 was passed by the Principal & Secretary who had neither any authority to pass such order under the Rules nor there was any authorization given by the BOG in his favour to pass such order yet in our considered view when the BOG in their meeting held on 22.08.1996 approved the previous actions of the Principal & Secretary in passing the respondents dismissal order dated 16.08.1996, all the irregularities complained of by the respondent in the proceedings including the authority exercised by the Principal & Secretary to dismiss him stood ratified by the Competent Authority (Board of Governors) themselves with retrospective effect from 16.8.1996 thereby making an invalid act a lawful one in conformity with the procedure prescribed in Rules.41) In such circumstances, the respondents grievance that the dismissal order had not been passed by the competent authority, i.e., the BOG is no longer survived.42) In the light of foregoing discussion, we differ with the view taken by the High Court and accordingly hold that the dismissal order dated 16.08.1996 was passed by the Competent Authority, namely, the BOG as prescribed in the Rules and hence it was legal and proper. It is accordingly upheld.43) As already mentioned above, no other point was urged by the respondent in the writ petition and also in intra court appeal of the appellant by filing cross objection therein for assailing the legality and correctness of the dismissal order on other grounds except the one which we have decided. It is, therefore, not necessary to go into any other question. | 1[ds]30) Reading of the aforementioned four Resolutions passed by the BOG in juxtaposition in no uncertain terms show that the BOG monitored, dealt with and eventually decided the case of the respondent in their various meetings since inception and also authorized the Principal & Secretary to deal with the same in consultation with the Chairman of Board of Governors and to do the needful by passing appropriate orders. It is also clear that in the last meeting held on 22.08.1996, the BOG approved the Resolution passed in the earlier 68th meeting held on 11.03.1996, which had dealt with the case of respondent at Item Nos. 6 and 24.31) In our considered view, the expressionto take necessary action as the Chairmanin Item No. 6 and lastly, the expressiondo the needfulin Item No. 24 in the Resolution dated 11.03.1996 were wide enough to clothe the Principal & Secretary with a power to pass the dismissal order, if occasion soIn the light of aforesaid discussion and keeping in mind the contents of the Resolutions, it is difficult to agree with the view taken by the High Court that the BOG did not pass the dismissal order but it was passed by the Principal & Secretary. In other words, keeping in view the contents of the four Resolutions, we have no hesitation to hold that the dismissal order dated 16.08.1996 was passed by the BOG and the Principal & Secretary only signed the order for and on behalf of the BOG on the strength of authorization made in his favour by the BOG vide Resolution dated 11.03.1996.34) That apart, the issue in question could be examined from yet another angle by applying the law relating to "Ratification" which was not taken note of by the HighApplying the aforementioned law of ratification to the facts at hand, even if we assume for the sake of argument that the order of dismissal dated 16.08.1996 was passed by the Principal & Secretary who had neither any authority to pass such order under the Rules nor there was any authorization given by the BOG in his favour to pass such order yet in our considered view when the BOG in their meeting held on 22.08.1996 approved the previous actions of the Principal & Secretary in passing the respondents dismissal order dated 16.08.1996, all the irregularities complained of by the respondent in the proceedings including the authority exercised by the Principal & Secretary to dismiss him stood ratified by the Competent Authority (Board of Governors) themselves with retrospective effect from 16.8.1996 thereby making an invalid act a lawful one in conformity with the procedure prescribed in Rules.41) In such circumstances, the respondents grievance that the dismissal order had not been passed by the competent authority, i.e., the BOG is no longer survived.42) In the light of foregoing discussion, we differ with the view taken by the High Court and accordingly hold that the dismissal order dated 16.08.1996 was passed by the Competent Authority, namely, the BOG as prescribed in the Rules and hence it was legal and proper. It is accordingly upheld.43) As already mentioned above, no other point was urged by the respondent in the writ petition and also in intra court appeal of the appellant by filing cross objection therein for assailing the legality and correctness of the dismissal order on other grounds except the one which we have decided. It is, therefore, not necessary to go into any other question. | 1 | 5,470 | 617 | ### 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:
‘Ratification’ is the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorisedly performed in the first instance.” 37) The law of ratification was applied by this Court in Parmeshwari Prasad Gupta Vs. U.O.I (1973) 2 SCC 543. In that case, the Chairman of the Board of Directors had terminated the services of the General Manager of a Company pursuant to a resolution taken by the Board at a meeting. It was not in dispute that the meeting had been improperly held and consequently the resolution passed in the said meeting terminating the services of General Manager was invalid. However, the Board of Directors then convened subsequent meeting and in this meeting affirmed the earlier resolution, which had been passed in improper meeting. On these facts, the Court held, “Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16-12-1953 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 unauthorised, 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 17-12-1953.” 38) This view was approved by this Court in High Court of Judicature for Rajasthan Vs. P.P. Singh & Anr. (2003) 4 SCC 239. 39) The aforesaid principle of law of ratification was again applied by this Court in Maharashtra State Mining Corpn. Vs. Sunil (2006) 5 SCC 96. In this case, the respondent was an employee of the appellant Corporation. Consequent to a departmental enquiry, he was dismissed by the Managing Director of the appellant. The respondent then filed a writ petition before the High Court. During the pendency of the writ petition, the Board of Directors of the appellant Corporation passed a resolution ratifying the impugned action of the Managing Director and also empowering him to take decision in respect of the officers and staff in the grade of pay the maximum of which did not exceed Rs. 4700 p.m. Earlier, the Managing Director had powers only in respect of those posts where the maximum pay did not exceed Rs.1900 p.m. The respondent at the relevant time was drawing more than Rs.1800 p.m. Therefore, at the relevant time, the Managing Director was incompetent to dismiss the respondent. Accordingly, the High Court held the order of dismissal to be invalid. The High Court further held that the said defect could not be rectified subsequently by the resolution of the Board of Directors. The High Court set aside the dismissal order and granted consequential relief. The appellant then filed the appeal in this Court by special leave. Justice Ruma Pal, speaking for three- Judge Bench, while allowing the appeal and setting aside of the Court held as under : “The High Court rightly held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act could not be subsequently “rectified” by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, “a subsequent ratification of an act is equivalent to a prior authority to perform such act.” Therefore, ratification assumes an invalid act which is retrospectively validated.”“In the present case, the Managing Director’s order dismissing the respondent from service was admittedly ratified by the Board of Directors unquestionably had the power to terminate the services of the respondent. Since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it.” 40) Applying the aforementioned law of ratification to the facts at hand, even if we assume for the sake of argument that the order of dismissal dated 16.08.1996 was passed by the Principal & Secretary who had neither any authority to pass such order under the Rules nor there was any authorization given by the BOG in his favour to pass such order yet in our considered view when the BOG in their meeting held on 22.08.1996 approved the previous actions of the Principal & Secretary in passing the respondents dismissal order dated 16.08.1996, all the irregularities complained of by the respondent in the proceedings including the authority exercised by the Principal & Secretary to dismiss him stood ratified by the Competent Authority (Board of Governors) themselves with retrospective effect from 16.8.1996 thereby making an invalid act a lawful one in conformity with the procedure prescribed in Rules.41) In such circumstances, the respondents grievance that the dismissal order had not been passed by the competent authority, i.e., the BOG is no longer survived.42) In the light of foregoing discussion, we differ with the view taken by the High Court and accordingly hold that the dismissal order dated 16.08.1996 was passed by the Competent Authority, namely, the BOG as prescribed in the Rules and hence it was legal and proper. It is accordingly upheld.43) As already mentioned above, no other point was urged by the respondent in the writ petition and also in intra court appeal of the appellant by filing cross objection therein for assailing the legality and correctness of the dismissal order on other grounds except the one which we have decided. It is, therefore, not necessary to go into any other question.
### Response:
1
### Explanation:
30) Reading of the aforementioned four Resolutions passed by the BOG in juxtaposition in no uncertain terms show that the BOG monitored, dealt with and eventually decided the case of the respondent in their various meetings since inception and also authorized the Principal & Secretary to deal with the same in consultation with the Chairman of Board of Governors and to do the needful by passing appropriate orders. It is also clear that in the last meeting held on 22.08.1996, the BOG approved the Resolution passed in the earlier 68th meeting held on 11.03.1996, which had dealt with the case of respondent at Item Nos. 6 and 24.31) In our considered view, the expressionto take necessary action as the Chairmanin Item No. 6 and lastly, the expressiondo the needfulin Item No. 24 in the Resolution dated 11.03.1996 were wide enough to clothe the Principal & Secretary with a power to pass the dismissal order, if occasion soIn the light of aforesaid discussion and keeping in mind the contents of the Resolutions, it is difficult to agree with the view taken by the High Court that the BOG did not pass the dismissal order but it was passed by the Principal & Secretary. In other words, keeping in view the contents of the four Resolutions, we have no hesitation to hold that the dismissal order dated 16.08.1996 was passed by the BOG and the Principal & Secretary only signed the order for and on behalf of the BOG on the strength of authorization made in his favour by the BOG vide Resolution dated 11.03.1996.34) That apart, the issue in question could be examined from yet another angle by applying the law relating to "Ratification" which was not taken note of by the HighApplying the aforementioned law of ratification to the facts at hand, even if we assume for the sake of argument that the order of dismissal dated 16.08.1996 was passed by the Principal & Secretary who had neither any authority to pass such order under the Rules nor there was any authorization given by the BOG in his favour to pass such order yet in our considered view when the BOG in their meeting held on 22.08.1996 approved the previous actions of the Principal & Secretary in passing the respondents dismissal order dated 16.08.1996, all the irregularities complained of by the respondent in the proceedings including the authority exercised by the Principal & Secretary to dismiss him stood ratified by the Competent Authority (Board of Governors) themselves with retrospective effect from 16.8.1996 thereby making an invalid act a lawful one in conformity with the procedure prescribed in Rules.41) In such circumstances, the respondents grievance that the dismissal order had not been passed by the competent authority, i.e., the BOG is no longer survived.42) In the light of foregoing discussion, we differ with the view taken by the High Court and accordingly hold that the dismissal order dated 16.08.1996 was passed by the Competent Authority, namely, the BOG as prescribed in the Rules and hence it was legal and proper. It is accordingly upheld.43) As already mentioned above, no other point was urged by the respondent in the writ petition and also in intra court appeal of the appellant by filing cross objection therein for assailing the legality and correctness of the dismissal order on other grounds except the one which we have decided. It is, therefore, not necessary to go into any other question.
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Gopal And Sons (Huf) Vs. Cit Kolkata-Xi | therefore, the case is squarely within the provisions of Section 2(22)(e) of the Income Tax Act. 10. The arguments before us remain the same. Mr. S.B. Upadhyay, learned senior counsel appearing for the assessee, argued that the ITAT had correctly explained the legal position that HUF cannot be either beneficial owner or registered owner of the shares and, therefore, no addition could be made under Section 2(22)(e) of the Act. For buttressing this submission, the learned counsel relied upon the following observations in judgment of this Court in CIT, Andhra Pradesh v. C.P. Sarathy Mudaliar, 1972 SCR 1076: "....It is well settled that an HUF cannot be a shareholder of a company. The shareholder of a company is the individual who is registered as the shareholder ion the books of the company. The HUF, the assessee in this case, was not registered as a shareholder in books of the company nor could it have been so registered. Hence there is no gain-saying the fact that the HUF was not the shareholder of the company." 11. Learned Additional Solicitor General, on the other hand, after reading the relevant portions of the orders of AO and CIT(A), submitted that on the facts of this case, the Revenue was justified in making the addition. 12. Section 2(22)(e) of the Act creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. It gives an artificial definition of dividend. It does not take into account that dividend which is actually declared or received. The dividend taken note of by this provision is a deemed dividend and not a real dividend. Loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder. Notwithstanding the same, for certain purposes, the Legislature has deemed such a loan or payment as dividend and made it taxable at the hands of the said shareholder. It is, therefore, not in dispute that such a provision which is a deemed provision and fictionally creates certain kinds of receipts as dividends, is to be given strict interpretation. It follows that unless all the conditions contained in the said provision are fulfilled, the receipt cannot be deemed as dividends. Further, in case of doubt or where two views are possible, benefit shall accrue in favour of the assessee. 13. A reading of clause (e) of Section 2(22) of the Act makes it clear that three types of payments can be brought to tax as dividends in the hands of the share holders. These are as follows: (a) any payment of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder. (b) any payment on behalf of a shareholder, and (c) any payment for the individual benefit of a shareholder. [See: Alagusundaran v. CIT; 252 ITR 893 (SC)] 14. Certain conditions need to be fulfilled in order to attract tax under this clause. It is not necessary to stipulate other conditions. For our purposes, following conditions need to be fulfilled: (a) Payment is to be made by way of advance or loan to any concern in which such shareholder is a member or a partner. (b) In the said concern, such shareholder has a substantial interest. (c) Such advance or loan should have been made after the 31st day of May, 1987. 15. Explanation 3(a) defines "concern" to mean HUF or a firm or an association of persons or a body of individuals or a company. As per Explanation 3(b), a person shall be deemed to have a substantial interest in a HUF if he is, at any time during the previous year, beneficially entitled to not less than 20% of the income of such HUF. 16. In the instant case, the payment in question is made to the assessee which is a HUF. Shares are held by Shri. Gopal Kumar Sanei, who is Karta of this HUF. The said Karta is, undoubtedly, the member of HUF. He also has substantial interest in the assessee/HUF, being its Karta. It was not disputed that he was entitled to not less than 20% of the income of HUF. In view of the aforesaid position, provisions of Section 2(22)(e) of the Act get attracted and it is not even necessary to determine as to whether HUF can, in law, be beneficial shareholder or registered shareholder in a Company. 17. It is also found as a fact, from the audited annual return of the Company filed with ROC that the money towards share holding in the Company was given by the assessee/HUF. Though, the share certificates were issued in the name of the Karta, Shri Gopal Kumar Sanei, but in the annual returns, it is the HUF which was shown as registered and beneficial shareholder. In any case, it cannot be doubted that it is the beneficial shareholder. Even if we presume that it is not a registered shareholder, as per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder (Mr. Sanei, karta, in this case) is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. This is the effect of Explanation 3 to the said Section, as noticed above. Therefore, it is no gainsaying that since HUF itself is not the registered shareholder, the provisions of deemed dividend are not attracted. For this reason, judgment in C.P. Sarathy Mudaliar, relied upon by the learned counsel for the appellant, will have no application. That was a judgment rendered in the context of Section 2(6-A)(e) of the Income Tax Act, 1922 wherein there was no provision like Explanation 3. | 0[ds]12. Section 2(22)(e) of the Act creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. It gives an artificial definition of dividend. It does not take into account that dividend which is actually declared or received. The dividend taken note of by this provision is a deemed dividend and not a real dividend. Loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder. Notwithstanding the same, for certain purposes, the Legislature has deemed such a loan or payment as dividend and made it taxable at the hands of the said shareholder. It is, therefore, not in dispute that such a provision which is a deemed provision and fictionally creates certain kinds of receipts as dividends, is to be given strict interpretation. It follows that unless all the conditions contained in the said provision are fulfilled, the receipt cannot be deemed as dividends. Further, in case of doubt or where two views are possible, benefit shall accrue in favour of the assessee.It is also found as a fact, from the audited annual return of the Company filed with ROC that the money towards share holding in the Company was given by the assessee/HUF. Though, the share certificates were issued in the name of the Karta, Shri Gopal Kumar Sanei, but in the annual returns, it is the HUF which was shown as registered and beneficial shareholder. In any case, it cannot be doubted that it is the beneficial shareholder. Even if we presume that it is not a registered shareholder, as per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder (Mr. Sanei, karta, in this case) is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. This is the effect of Explanation 3 to the said Section, as noticed above. Therefore, it is no gainsaying that since HUF itself is not the registered shareholder, the provisions of deemed dividend are not attracted. For this reason, judgment in C.P. Sarathy Mudaliar, relied upon by the learned counsel for the appellant, will have no application. That was a judgment rendered in the context of Section 2(6-A)(e) of the Income Tax Act, 1922 wherein there was no provision like Explanation 3. | 0 | 2,794 | 516 | ### 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:
therefore, the case is squarely within the provisions of Section 2(22)(e) of the Income Tax Act. 10. The arguments before us remain the same. Mr. S.B. Upadhyay, learned senior counsel appearing for the assessee, argued that the ITAT had correctly explained the legal position that HUF cannot be either beneficial owner or registered owner of the shares and, therefore, no addition could be made under Section 2(22)(e) of the Act. For buttressing this submission, the learned counsel relied upon the following observations in judgment of this Court in CIT, Andhra Pradesh v. C.P. Sarathy Mudaliar, 1972 SCR 1076: "....It is well settled that an HUF cannot be a shareholder of a company. The shareholder of a company is the individual who is registered as the shareholder ion the books of the company. The HUF, the assessee in this case, was not registered as a shareholder in books of the company nor could it have been so registered. Hence there is no gain-saying the fact that the HUF was not the shareholder of the company." 11. Learned Additional Solicitor General, on the other hand, after reading the relevant portions of the orders of AO and CIT(A), submitted that on the facts of this case, the Revenue was justified in making the addition. 12. Section 2(22)(e) of the Act creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. It gives an artificial definition of dividend. It does not take into account that dividend which is actually declared or received. The dividend taken note of by this provision is a deemed dividend and not a real dividend. Loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder. Notwithstanding the same, for certain purposes, the Legislature has deemed such a loan or payment as dividend and made it taxable at the hands of the said shareholder. It is, therefore, not in dispute that such a provision which is a deemed provision and fictionally creates certain kinds of receipts as dividends, is to be given strict interpretation. It follows that unless all the conditions contained in the said provision are fulfilled, the receipt cannot be deemed as dividends. Further, in case of doubt or where two views are possible, benefit shall accrue in favour of the assessee. 13. A reading of clause (e) of Section 2(22) of the Act makes it clear that three types of payments can be brought to tax as dividends in the hands of the share holders. These are as follows: (a) any payment of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder. (b) any payment on behalf of a shareholder, and (c) any payment for the individual benefit of a shareholder. [See: Alagusundaran v. CIT; 252 ITR 893 (SC)] 14. Certain conditions need to be fulfilled in order to attract tax under this clause. It is not necessary to stipulate other conditions. For our purposes, following conditions need to be fulfilled: (a) Payment is to be made by way of advance or loan to any concern in which such shareholder is a member or a partner. (b) In the said concern, such shareholder has a substantial interest. (c) Such advance or loan should have been made after the 31st day of May, 1987. 15. Explanation 3(a) defines "concern" to mean HUF or a firm or an association of persons or a body of individuals or a company. As per Explanation 3(b), a person shall be deemed to have a substantial interest in a HUF if he is, at any time during the previous year, beneficially entitled to not less than 20% of the income of such HUF. 16. In the instant case, the payment in question is made to the assessee which is a HUF. Shares are held by Shri. Gopal Kumar Sanei, who is Karta of this HUF. The said Karta is, undoubtedly, the member of HUF. He also has substantial interest in the assessee/HUF, being its Karta. It was not disputed that he was entitled to not less than 20% of the income of HUF. In view of the aforesaid position, provisions of Section 2(22)(e) of the Act get attracted and it is not even necessary to determine as to whether HUF can, in law, be beneficial shareholder or registered shareholder in a Company. 17. It is also found as a fact, from the audited annual return of the Company filed with ROC that the money towards share holding in the Company was given by the assessee/HUF. Though, the share certificates were issued in the name of the Karta, Shri Gopal Kumar Sanei, but in the annual returns, it is the HUF which was shown as registered and beneficial shareholder. In any case, it cannot be doubted that it is the beneficial shareholder. Even if we presume that it is not a registered shareholder, as per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder (Mr. Sanei, karta, in this case) is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. This is the effect of Explanation 3 to the said Section, as noticed above. Therefore, it is no gainsaying that since HUF itself is not the registered shareholder, the provisions of deemed dividend are not attracted. For this reason, judgment in C.P. Sarathy Mudaliar, relied upon by the learned counsel for the appellant, will have no application. That was a judgment rendered in the context of Section 2(6-A)(e) of the Income Tax Act, 1922 wherein there was no provision like Explanation 3.
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0
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12. Section 2(22)(e) of the Act creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. It gives an artificial definition of dividend. It does not take into account that dividend which is actually declared or received. The dividend taken note of by this provision is a deemed dividend and not a real dividend. Loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder. Notwithstanding the same, for certain purposes, the Legislature has deemed such a loan or payment as dividend and made it taxable at the hands of the said shareholder. It is, therefore, not in dispute that such a provision which is a deemed provision and fictionally creates certain kinds of receipts as dividends, is to be given strict interpretation. It follows that unless all the conditions contained in the said provision are fulfilled, the receipt cannot be deemed as dividends. Further, in case of doubt or where two views are possible, benefit shall accrue in favour of the assessee.It is also found as a fact, from the audited annual return of the Company filed with ROC that the money towards share holding in the Company was given by the assessee/HUF. Though, the share certificates were issued in the name of the Karta, Shri Gopal Kumar Sanei, but in the annual returns, it is the HUF which was shown as registered and beneficial shareholder. In any case, it cannot be doubted that it is the beneficial shareholder. Even if we presume that it is not a registered shareholder, as per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder (Mr. Sanei, karta, in this case) is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. This is the effect of Explanation 3 to the said Section, as noticed above. Therefore, it is no gainsaying that since HUF itself is not the registered shareholder, the provisions of deemed dividend are not attracted. For this reason, judgment in C.P. Sarathy Mudaliar, relied upon by the learned counsel for the appellant, will have no application. That was a judgment rendered in the context of Section 2(6-A)(e) of the Income Tax Act, 1922 wherein there was no provision like Explanation 3.
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Steel Authority Of India Ltd Vs. Shri Ambica Mills Ltd. & Ors | in thinking that SAIL was a department of the Union of India and most of the reasons given in the judgment are based on this wrong premise. 19. The importer in this case, it is an admitted fact, is a registered exporter of steel pipes entitled to priority allotment of steel either through imports or from indigenous plants like the appellant. The allotment of steel was for manufacture of steel pipes for export against advance licence granted to the importer from time to time. During the relevant period, hot rolled strips in coils manufactured by plants under SAIL were available in sufficient quantity and hence the direct imports of the raw materials were banned and the manufacturers were required to obtain the supplies of the raw materials from the appellant against the import licences with them and/or release orders issued by the licensing authority, namely, the Chief Controller of Imports and Exports. 20. Various categories of licences are granted for the purpose of imports to the manufacturers. One such licence was advance licence. Para 149 of the import policy provided for grant of advance licence/imprest licences and the relevant part of para 149 reads. "the term advance licence refers to cases where the import is allowed under the Duty Exemption Scheme whereas the term imprest licence will be used where the import is allowed outside the Duty Exemption Scheme. The advance licences, it is stated, which include release orders are intended to supply import input or inputs in short supply for export production. It is also stated that the licensing authority issuing the advance licences will simultaneously issue the collected Duty Exemption Entitlement Certificate. The policy does not provide for issuance of advance licence without duty exemption" * 21. Bearing the abovesaid facts in mind, let us now consider the issue raised before us. 22. Admittedly when the importer wanted to register the indent for supply of hot rolled strips in coils, the licences/release orders produced lacked in material particulars and relevant enclosures. In other words, the licence did not mention that it was an advance licence and no Duty Exemption Entitlement Certificate was enclosed and legal undertaking/exemption of export bond was also not enclosed. It was on this admitted position, the appellant declined to register the indent of the importer. No doubt, the mistake was committed by the licensing authority. Does that mean that the appellant can ignore the lacuna in the documents and register the indent placed by the importer in contravention of the requirements of the Scheme ? The High Court held that the licensing authority and the appellant being two different wings/departments of the Union of India, the appellant on receipt of rectified documents on 26-8-1983 must register the indent as if it was presented on 20-8-1983. We are afraid, we cannot accept the above reasoning of the High Court as we have pointed out that the basic error committed by the High Court was in assuming that the appellant was a department of the Union of India. We have already noticed that there are number of judgments of this Court taking the view that a company though fully owned by the Union of India when incorporated takes its own entity/identity and cannot be considered as department of the Union of India. Further, it is seen from the records that the importer in this case is not a new entrant to plead ignorance though that may not be an excuse. He has presented applications for registration before and after the application in question and, therefore, it must be taken that the importer knew fully well about the requirements for registering the indent. It is also relevant to note that the appellant on receipt of the application for registration expressly and in writing replied not only pointing out the defects but also stated that they are not taking any action on the Letter of Credit enclosed along with the licence. It is also an admitted fact that the indent was registered only on 26-8-1983 when all the relevant documents after curing the defects was presented on that date. Under these circumstances and in the light of the Scheme published by the appellant, we hold that the importer (Ambica Tubes) cannot claim as of right that its order must be deemed to have been registered for supply of raw materials on 20-8-1983 when the documents with all defects were presented. 23. We cannot agree with the contention of Mr. Parekh that mere presentation of an irrevocable Letter of Credit covering the value of requirement of raw materials is sufficient for registering the indent. We have already set out para 2.3. Para 2.3 of the Scheme announced an 10-6-1983 decides the price to be paid for the indent. Mr. Parekh placed reliance on the last part of para 2.3 to contend that the date of presentation of irrevocable Letter of Credit will be relevant for fixing the price. We have seen that it says price chargeable shall be the price ruling on the date on which acceptable and operative financial arrangements are made in favour of SAIL by import licence-holders eligible to get supplies under this Scheme. Mr. Parekh wants us to ignore the portion italicised above. Mere production of Letter of Credit will not be sufficient to determine the price ruling on the date. It must be given by an import licence-holder eligible to get the supplies under the Scheme. In this case, we have seen that the importer will not fall under the category of "import licence-holder eligible to get supplies under the Scheme" as on the date when the Letter of Credit was presented, the licence/release order was defective. Therefore, we cannot agree with Mr. Parekh that the importer having produced the Letter of Credit well before 25-8-1983, the price payable for the supplies must be a pre-revised one. 24. In view of our above conclusion, it is not necessary for us to consider and decide the other points raised by learned counsel for the appellant. | 1[ds]16. Coming to the merits of the case, we accept the contention of the learned counsel for the appellant that the High Court went wrong in holding that SAIL was a department of the Union of India.In Western Coalfields case this Court held as follows : (SCC p. 136, 7 parais contended by the Attorney General that since the appellant Companies are wholly owned by the Government of India, the lands and buildings owned by the Companies cannot be subjected to property tax. The short answer to this contention is that even though the entire share capital of the appellant Companies has been subscribed by the Government of India, it cannot be predicated that the Companies themselves are owned by the Government of India. The Companies which are incorporated under the Companies Act have a corporate personality of their own, distinct from that of the Government of India. The lands and buildings are vested in and owned by the Companies, the Government of India only owns the share capital."In view of the above decisions of this Court, we have no hesitation to hold that the High Court erred in thinking that SAIL was a department of the Union of India and most of the reasons given in the judgment are based on this wrongare afraid, we cannot accept the above reasoning of the High Court as we have pointed out that the basic error committed by the High Court was in assuming that the appellant was a department of the Union of India. We have already noticed that there are number of judgments of this Court taking the view that a company though fully owned by the Union of India when incorporated takes its own entity/identity and cannot be considered as department of the Union of India. Further, it is seen from the records that the importer in this case is not a new entrant to plead ignorance though that may not be an excuse. He has presented applications for registration before and after the application in question and, therefore, it must be taken that the importer knew fully well about the requirements for registering the indent. It is also relevant to note that the appellant on receipt of the application for registration expressly and in writing replied not only pointing out the defects but also stated that they are not taking any action on the Letter of Credit enclosed along with the licence. It is also an admitted fact that the indent was registered only on 26-8-1983 when all the relevant documents after curing the defects was presented on that date. Under these circumstances and in the light of the Scheme published by the appellant, we hold that the importer (Ambica Tubes) cannot claim as of right that its order must be deemed to have been registered for supply of raw materials on 20-8-1983 when the documents with all defects wereWe cannot agree with the contention of Mr. Parekh that mere presentation of an irrevocable Letter of Credit covering the value of requirement of raw materials is sufficient for registering the indent. We have already set out para 2.3. Para 2.3 of the Scheme announced an 10-6-1983 decides the price to be paid for theproduction of Letter of Credit will not be sufficient to determine the price ruling on the date. It must be given by an import licence-holder eligible to get the supplies under the Scheme. In this case, we have seen that the importer will not fall under the category of "import licence-holder eligible to get supplies under the Scheme" as on the date when the Letter of Credit was presented, the licence/release order was defective. Therefore, we cannot agree with Mr. Parekh that the importer having produced the Letter of Credit well before 25-8-1983, the price payable for the supplies must be a pre-revised one | 1 | 4,149 | 689 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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in thinking that SAIL was a department of the Union of India and most of the reasons given in the judgment are based on this wrong premise. 19. The importer in this case, it is an admitted fact, is a registered exporter of steel pipes entitled to priority allotment of steel either through imports or from indigenous plants like the appellant. The allotment of steel was for manufacture of steel pipes for export against advance licence granted to the importer from time to time. During the relevant period, hot rolled strips in coils manufactured by plants under SAIL were available in sufficient quantity and hence the direct imports of the raw materials were banned and the manufacturers were required to obtain the supplies of the raw materials from the appellant against the import licences with them and/or release orders issued by the licensing authority, namely, the Chief Controller of Imports and Exports. 20. Various categories of licences are granted for the purpose of imports to the manufacturers. One such licence was advance licence. Para 149 of the import policy provided for grant of advance licence/imprest licences and the relevant part of para 149 reads. "the term advance licence refers to cases where the import is allowed under the Duty Exemption Scheme whereas the term imprest licence will be used where the import is allowed outside the Duty Exemption Scheme. The advance licences, it is stated, which include release orders are intended to supply import input or inputs in short supply for export production. It is also stated that the licensing authority issuing the advance licences will simultaneously issue the collected Duty Exemption Entitlement Certificate. The policy does not provide for issuance of advance licence without duty exemption" * 21. Bearing the abovesaid facts in mind, let us now consider the issue raised before us. 22. Admittedly when the importer wanted to register the indent for supply of hot rolled strips in coils, the licences/release orders produced lacked in material particulars and relevant enclosures. In other words, the licence did not mention that it was an advance licence and no Duty Exemption Entitlement Certificate was enclosed and legal undertaking/exemption of export bond was also not enclosed. It was on this admitted position, the appellant declined to register the indent of the importer. No doubt, the mistake was committed by the licensing authority. Does that mean that the appellant can ignore the lacuna in the documents and register the indent placed by the importer in contravention of the requirements of the Scheme ? The High Court held that the licensing authority and the appellant being two different wings/departments of the Union of India, the appellant on receipt of rectified documents on 26-8-1983 must register the indent as if it was presented on 20-8-1983. We are afraid, we cannot accept the above reasoning of the High Court as we have pointed out that the basic error committed by the High Court was in assuming that the appellant was a department of the Union of India. We have already noticed that there are number of judgments of this Court taking the view that a company though fully owned by the Union of India when incorporated takes its own entity/identity and cannot be considered as department of the Union of India. Further, it is seen from the records that the importer in this case is not a new entrant to plead ignorance though that may not be an excuse. He has presented applications for registration before and after the application in question and, therefore, it must be taken that the importer knew fully well about the requirements for registering the indent. It is also relevant to note that the appellant on receipt of the application for registration expressly and in writing replied not only pointing out the defects but also stated that they are not taking any action on the Letter of Credit enclosed along with the licence. It is also an admitted fact that the indent was registered only on 26-8-1983 when all the relevant documents after curing the defects was presented on that date. Under these circumstances and in the light of the Scheme published by the appellant, we hold that the importer (Ambica Tubes) cannot claim as of right that its order must be deemed to have been registered for supply of raw materials on 20-8-1983 when the documents with all defects were presented. 23. We cannot agree with the contention of Mr. Parekh that mere presentation of an irrevocable Letter of Credit covering the value of requirement of raw materials is sufficient for registering the indent. We have already set out para 2.3. Para 2.3 of the Scheme announced an 10-6-1983 decides the price to be paid for the indent. Mr. Parekh placed reliance on the last part of para 2.3 to contend that the date of presentation of irrevocable Letter of Credit will be relevant for fixing the price. We have seen that it says price chargeable shall be the price ruling on the date on which acceptable and operative financial arrangements are made in favour of SAIL by import licence-holders eligible to get supplies under this Scheme. Mr. Parekh wants us to ignore the portion italicised above. Mere production of Letter of Credit will not be sufficient to determine the price ruling on the date. It must be given by an import licence-holder eligible to get the supplies under the Scheme. In this case, we have seen that the importer will not fall under the category of "import licence-holder eligible to get supplies under the Scheme" as on the date when the Letter of Credit was presented, the licence/release order was defective. Therefore, we cannot agree with Mr. Parekh that the importer having produced the Letter of Credit well before 25-8-1983, the price payable for the supplies must be a pre-revised one. 24. In view of our above conclusion, it is not necessary for us to consider and decide the other points raised by learned counsel for the appellant.
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1
### Explanation:
16. Coming to the merits of the case, we accept the contention of the learned counsel for the appellant that the High Court went wrong in holding that SAIL was a department of the Union of India.In Western Coalfields case this Court held as follows : (SCC p. 136, 7 parais contended by the Attorney General that since the appellant Companies are wholly owned by the Government of India, the lands and buildings owned by the Companies cannot be subjected to property tax. The short answer to this contention is that even though the entire share capital of the appellant Companies has been subscribed by the Government of India, it cannot be predicated that the Companies themselves are owned by the Government of India. The Companies which are incorporated under the Companies Act have a corporate personality of their own, distinct from that of the Government of India. The lands and buildings are vested in and owned by the Companies, the Government of India only owns the share capital."In view of the above decisions of this Court, we have no hesitation to hold that the High Court erred in thinking that SAIL was a department of the Union of India and most of the reasons given in the judgment are based on this wrongare afraid, we cannot accept the above reasoning of the High Court as we have pointed out that the basic error committed by the High Court was in assuming that the appellant was a department of the Union of India. We have already noticed that there are number of judgments of this Court taking the view that a company though fully owned by the Union of India when incorporated takes its own entity/identity and cannot be considered as department of the Union of India. Further, it is seen from the records that the importer in this case is not a new entrant to plead ignorance though that may not be an excuse. He has presented applications for registration before and after the application in question and, therefore, it must be taken that the importer knew fully well about the requirements for registering the indent. It is also relevant to note that the appellant on receipt of the application for registration expressly and in writing replied not only pointing out the defects but also stated that they are not taking any action on the Letter of Credit enclosed along with the licence. It is also an admitted fact that the indent was registered only on 26-8-1983 when all the relevant documents after curing the defects was presented on that date. Under these circumstances and in the light of the Scheme published by the appellant, we hold that the importer (Ambica Tubes) cannot claim as of right that its order must be deemed to have been registered for supply of raw materials on 20-8-1983 when the documents with all defects wereWe cannot agree with the contention of Mr. Parekh that mere presentation of an irrevocable Letter of Credit covering the value of requirement of raw materials is sufficient for registering the indent. We have already set out para 2.3. Para 2.3 of the Scheme announced an 10-6-1983 decides the price to be paid for theproduction of Letter of Credit will not be sufficient to determine the price ruling on the date. It must be given by an import licence-holder eligible to get the supplies under the Scheme. In this case, we have seen that the importer will not fall under the category of "import licence-holder eligible to get supplies under the Scheme" as on the date when the Letter of Credit was presented, the licence/release order was defective. Therefore, we cannot agree with Mr. Parekh that the importer having produced the Letter of Credit well before 25-8-1983, the price payable for the supplies must be a pre-revised one
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Bhoju Mandal Vs. Debnath Bhagat | Lexicon, P. Ramanatha Iyer gives the following meanings to the word "kebala; Any deed of conveyance or transfer of right or property, any contract of bargain or sale, a bond, a bill sale, title-deeds, and the like. Even accepting the widest meaning given to that word, the expression can only mean a bond or a contract by way. of. conditional sale. So translated the expression is consistent with a mortgage, as well as with a sale and therefore that is a neutral circum- stance. On the other hand the executant describes the transaction as a sale and respondents as vendees. The amount paid is described as consideration for the sale. Usual covenant of title is given and there is a provision of re-conveyance in case of payment of the prescribed amount within the time agreed upon. No doubt these recitals would be found in a document which purports to be an ostensible sale and they do not in themselves are decisive of the question raised but there is one factor which dispels any doubt in regard to the construction of the document. The total area of the land mortgage in the year 1923 was 13.17 acres and the amount advanced thereunder was Rs. 1, 600/-. Only one year thereafter out of the said extent 12.6 acres was transferred by the document in question for a sum of Rs. 2, 800/-, that is if the contention of the appellant was correct, a smaller extent of land was mortgaged for higher amount. It is improbable that a mortgagee would advance an additional amount and take a mortgage. of a smaller extent in discharge of an earlier mortgage wherounder a larger extent of land was given as security. Unless there are extraordinary reasons for this conduct, this would be a clinchina circumstance in favour of holding that a document was a sale. The learned counsel for the appellant realizing the importance of this: circumstance at tempted to explain it away by a suggestion that under the earlier document the respondents were not put in possession of the land and that the reduction of the extent of the mortgaged property under the subsequent document was-due to the fact that they secured possession of the lands mortgaged thereunder. This was not put either to the witnesses or suggested in any of the three courts below. We cannot therefore accept this argument advanced for the first time before us, for there may have been many e explanations for the respondents in respect of this suggestion. What is more, it is not disputed that the sum of Rs. 2, 800/- represents the real value of the 1 and sold to the respondents and it is high improbable to say the least that a person would aydvance the amount equivalent to the value of the. land mortgaged without keeping a reasonable margin for realizing his amount. This is sought to be explained by throwing a suggestion that as the respondents were put in possession, they would be getting the interest and therefore there was no chance of the debt exceeding the value of the property. Even so a mortgagee in lending mounies would insist upon a reasonable margin in the value of the property to provide against the possible contingency of the pro- perties going down in value and the amount due to him swelling by the addition of cost, damage, etc., in the event of his filing a suit to recover the name. in our view whatever ambiguity there may be in the document, the fact that only a portion of the land already mortgaged was sold for a proper and adequate consideration is a circumstance which stamps the document as an out, and out sale.Reliance:is placed by the learned counsel for the appellants on a judgment of this court in "Pandit Chunohun Jha v. Sheikh Ebadat Ali (1(1955) 1.S.R. 174.). It may be stated at, the outset that for ascertaining the intention of the, parties under one document- a decision on a construction of the terms of another document cannot ordinarily afford any guidance unless the terms are exactly similar to each other. It is true that, some of the terms of the document in that case may be approximated to some of the terms in the present document but the judgment of this Court really turned upon a crucial circumstance. There is one important recital found in the document in that case which does not appear in the document in- question and there is another important recital found here which is not present there. There the document under scrutiny was executed on April 15, 1930. Before the execution of the document the- executants initiated commutation proceedings under s. 40 of the Bihar Tenancy Act. Those proceedings continued till February 18, 1931 i.e. for some ten months after the deed. The executants borrowed Rs. 65/6/- to enable them to carry on the commutation proceedings even after they executed the document. Bose.1., speaking for the court adverting to the said circumstance observed at page 183: "This we think, is crucial. Persons who are selling their property would hardly take the trouble to, borrow money in order to continue revenue proceedings. which could no longer benefit them an could only ensure for the good of their transferees." It is, therefore, obvious that this circumstance clinched the case in favour of the executants. The crucial circumstance in the present case, namely that a smaller extent was- sold for a higher amount in discharge of an earlier mortgage of a larger extent for a smaller amount was not present in that case. The said crucial circumstances make the two cases entirely dissimilar and therefore the said judgment of this court is not of any help in construing the document in question. On a consideration of the cumulative effect of the terms of the document in the context of the surrounding circumstances we hold that the document in question is not a mortgage but a sale with the condition of repurchase. | 1[ds]There is a clear legal distinction, between the two concepts-a mortgage by conditional sale and, a sale with a condition of repurchase. The former is a mortgage, the relationship of debtor and creditor subsists and the right to redeem remains with the debtor. The latter is an out and. out sale whereby the owner transfers all his rights in the, property to the, purchaser reserving a personal right of re-purchase. The question, to which category a document belongs presents a real difficulty which can only be solved by ascertaining the intend of the parties on a consideration of the contents of a document and other, relevant circumstances... Decided cases have laid down many tests to ascertain the intentions of the parties but they are only illustrative and not exhaustive. Let us therefore look at the terms of the document extractedthere was any ambiguity in the rest of the document the argument proceeds that the parties clearly expressed their intention by so describing the nature of the document. It is not accurate to say that the suit document was executed only to discharge the mortgage bond dated March 1, 1923. The document itself narrates that the executants were badly in need of money not only for repaying the debt under the said bond but also for repaying the debts of one Sumeri Kapri and for meeting the expenses in connection with cul- tivation, purchase of bullocks and household. It is, therefore, not a document executed in renewal of an earlier mortgage bond but was brought into existence to meet the pressing demands on the appellants. It is also not correct that the document does not contain words of conveyance or re-conveyance. The document says in express terms that the property "was sold and vended, which are certainly words of conveyance, and that after the prescribed period and after the amount was paid the appellants would "take back the vended property from the respondents which are again words of reconveying. Though the words of "conveyance and reconveyance are not expressed in phraseology found in documents prepared by trained draftsmen, they are expressed in words usually adopted by village document writers. The taking over of the liability to pay the rent by the executable for a short period subsequence to the execution of the document may be due to the fact that the rent had become due before the execution of the document or for some other circumstance which is not clear from the document. This is at best a neutral circumstance. The fact that in case of any defect in title the vendees were dispossessed, the consideration amount with interest was charged on the property is nothing more than an indication of the intention to keep alive The mortgagees rights under the earlier document. The said clause only makes explicit what the respondents would be entitled to in law. The translation of the words tamashuk sarti kebala as mortgage by conditional sale does not appear to be correct. The learned Subordinate juage observes that if those words. were literally translated, they would mean a bond by way of con- ditional sale. If that was the meaning the said expression would be consistent both with a mortgage by conditional sale as well as a sale with a right of repurchase. In law Lexicon, P. Ramanatha Iyer gives the following meanings to the word "kebala; Any deed of conveyance or transfer of right or property, any contract of bargain or sale, a bond, a bill sale, title-deeds, and the like. Even accepting the widest meaning given to that word, the expression can only mean a bond or a contract by way. of. conditional sale. So translated the expression is consistent with a mortgage, as well as with a sale and therefore that is a neutral circum- stance. On the other hand the executant describes the transaction as a sale and respondents as vendees. The amount paid is described as consideration for the sale. Usual covenant of title is given and there is a provision of re-conveyance in case of payment of the prescribed amount within the time agreed upon. No doubt these recitals would be found in a document which purports to be an ostensible sale and they do not in themselves are decisive of the question raised but there is one factor which dispels any doubt in regard to the construction of the document. The total area of the land mortgage in the year 1923 was 13.17 acres and the amount advanced thereunder was Rs. 1, 600/-. Only one year thereafter out of the said extent 12.6 acres was transferred by the document in question for a sum of Rs. 2, 800/-, that is if the contention of the appellant was correct, a smaller extent of land was mortgaged for higher amount. It is improbable that a mortgagee would advance an additional amount and take a mortgage. of a smaller extent in discharge of an earlier mortgage wherounder a larger extent of land was given as security. Unless there are extraordinary reasons for this conduct, this would be a clinchina circumstance in favour of holding that a document was a sale. The learned counsel for the appellant realizing the importance of this: circumstance at tempted to explain it away by a suggestion that under the earlier document the respondents were not put in possession of the land and that the reduction of the extent of the mortgaged property under the subsequent document was-due to the fact that they secured possession of the lands mortgaged thereunder. This was not put either to the witnesses or suggested in any of the three courts below. We cannot therefore accept this argument advanced for the first time before us, for there may have been many e explanations for the respondents in respect of this suggestion. What is more, it is not disputed that the sum of Rs. 2, 800/- represents the real value of the 1 and sold to the respondents and it is high improbable to say the least that a person would aydvance the amount equivalent to the value of the. land mortgaged without keeping a reasonable margin for realizing his amount. This is sought to be explained by throwing a suggestion that as the respondents were put in possession, they would be getting the interest and therefore there was no chance of the debt exceeding the value of the property. Even so a mortgagee in lending mounies would insist upon a reasonable margin in the value of the property to provide against the possible contingency of the pro- perties going down in value and the amount due to him swelling by the addition of cost, damage, etc., in the event of his filing a suit to recover the name. in our view whatever ambiguity there may be in the document, the fact that only a portion of the land already mortgaged was sold for a proper and adequate consideration is a circumstance which stamps the document as an out, and out sale.Reliance:is placed by the learned counsel for the appellants on a judgment of this court in "Pandit Chunohun Jha v. Sheikh Ebadat Ali (1(1955) 1.S.R. 174.). It may be stated at, the outset that for ascertaining the intention of the, parties under one document- a decision on a construction of the terms of another document cannot ordinarily afford any guidance unless the terms are exactly similar to each other. It is true that, some of the terms of the document in that case may be approximated to some of the terms in the present document but the judgment of this Court really turned upon a crucial circumstance. There is one important recital found in the document in that case which does not appear in the document in- question and there is another important recital found here which is not present there. There the document under scrutiny was executed on April 15, 1930. Before the execution of the document the- executants initiated commutation proceedings under s. 40 of the Bihar Tenancy Act. Those proceedings continued till February 18, 1931 i.e. for some ten months after the deed. The executants borrowed Rs. 65/6/- to enable them to carry on the commutation proceedings even after they executed the document. Bose.1., speaking for the court adverting to the said circumstance observed at page 183: "This we think, is crucial. Persons who are selling their property would hardly take the trouble to, borrow money in order to continue revenue proceedings. which could no longer benefit them an could only ensure for the good of their transferees." It is, therefore, obvious that this circumstance clinched the case in favour of the executants. The crucial circumstance in the present case, namely that a smaller extent was- sold for a higher amount in discharge of an earlier mortgage of a larger extent for a smaller amount was not present in that case. The said crucial circumstances make the two cases entirely dissimilar and therefore the said judgment of this court is not of any help in construing the document in question. On a consideration of the cumulative effect of the terms of the document in the context of the surrounding circumstances we hold that the document in question is not a mortgage but a sale with the condition of repurchase. | 1 | 2,811 | 1,684 | ### 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:
Lexicon, P. Ramanatha Iyer gives the following meanings to the word "kebala; Any deed of conveyance or transfer of right or property, any contract of bargain or sale, a bond, a bill sale, title-deeds, and the like. Even accepting the widest meaning given to that word, the expression can only mean a bond or a contract by way. of. conditional sale. So translated the expression is consistent with a mortgage, as well as with a sale and therefore that is a neutral circum- stance. On the other hand the executant describes the transaction as a sale and respondents as vendees. The amount paid is described as consideration for the sale. Usual covenant of title is given and there is a provision of re-conveyance in case of payment of the prescribed amount within the time agreed upon. No doubt these recitals would be found in a document which purports to be an ostensible sale and they do not in themselves are decisive of the question raised but there is one factor which dispels any doubt in regard to the construction of the document. The total area of the land mortgage in the year 1923 was 13.17 acres and the amount advanced thereunder was Rs. 1, 600/-. Only one year thereafter out of the said extent 12.6 acres was transferred by the document in question for a sum of Rs. 2, 800/-, that is if the contention of the appellant was correct, a smaller extent of land was mortgaged for higher amount. It is improbable that a mortgagee would advance an additional amount and take a mortgage. of a smaller extent in discharge of an earlier mortgage wherounder a larger extent of land was given as security. Unless there are extraordinary reasons for this conduct, this would be a clinchina circumstance in favour of holding that a document was a sale. The learned counsel for the appellant realizing the importance of this: circumstance at tempted to explain it away by a suggestion that under the earlier document the respondents were not put in possession of the land and that the reduction of the extent of the mortgaged property under the subsequent document was-due to the fact that they secured possession of the lands mortgaged thereunder. This was not put either to the witnesses or suggested in any of the three courts below. We cannot therefore accept this argument advanced for the first time before us, for there may have been many e explanations for the respondents in respect of this suggestion. What is more, it is not disputed that the sum of Rs. 2, 800/- represents the real value of the 1 and sold to the respondents and it is high improbable to say the least that a person would aydvance the amount equivalent to the value of the. land mortgaged without keeping a reasonable margin for realizing his amount. This is sought to be explained by throwing a suggestion that as the respondents were put in possession, they would be getting the interest and therefore there was no chance of the debt exceeding the value of the property. Even so a mortgagee in lending mounies would insist upon a reasonable margin in the value of the property to provide against the possible contingency of the pro- perties going down in value and the amount due to him swelling by the addition of cost, damage, etc., in the event of his filing a suit to recover the name. in our view whatever ambiguity there may be in the document, the fact that only a portion of the land already mortgaged was sold for a proper and adequate consideration is a circumstance which stamps the document as an out, and out sale.Reliance:is placed by the learned counsel for the appellants on a judgment of this court in "Pandit Chunohun Jha v. Sheikh Ebadat Ali (1(1955) 1.S.R. 174.). It may be stated at, the outset that for ascertaining the intention of the, parties under one document- a decision on a construction of the terms of another document cannot ordinarily afford any guidance unless the terms are exactly similar to each other. It is true that, some of the terms of the document in that case may be approximated to some of the terms in the present document but the judgment of this Court really turned upon a crucial circumstance. There is one important recital found in the document in that case which does not appear in the document in- question and there is another important recital found here which is not present there. There the document under scrutiny was executed on April 15, 1930. Before the execution of the document the- executants initiated commutation proceedings under s. 40 of the Bihar Tenancy Act. Those proceedings continued till February 18, 1931 i.e. for some ten months after the deed. The executants borrowed Rs. 65/6/- to enable them to carry on the commutation proceedings even after they executed the document. Bose.1., speaking for the court adverting to the said circumstance observed at page 183: "This we think, is crucial. Persons who are selling their property would hardly take the trouble to, borrow money in order to continue revenue proceedings. which could no longer benefit them an could only ensure for the good of their transferees." It is, therefore, obvious that this circumstance clinched the case in favour of the executants. The crucial circumstance in the present case, namely that a smaller extent was- sold for a higher amount in discharge of an earlier mortgage of a larger extent for a smaller amount was not present in that case. The said crucial circumstances make the two cases entirely dissimilar and therefore the said judgment of this court is not of any help in construing the document in question. On a consideration of the cumulative effect of the terms of the document in the context of the surrounding circumstances we hold that the document in question is not a mortgage but a sale with the condition of repurchase.
### Response:
1
### Explanation:
Lexicon, P. Ramanatha Iyer gives the following meanings to the word "kebala; Any deed of conveyance or transfer of right or property, any contract of bargain or sale, a bond, a bill sale, title-deeds, and the like. Even accepting the widest meaning given to that word, the expression can only mean a bond or a contract by way. of. conditional sale. So translated the expression is consistent with a mortgage, as well as with a sale and therefore that is a neutral circum- stance. On the other hand the executant describes the transaction as a sale and respondents as vendees. The amount paid is described as consideration for the sale. Usual covenant of title is given and there is a provision of re-conveyance in case of payment of the prescribed amount within the time agreed upon. No doubt these recitals would be found in a document which purports to be an ostensible sale and they do not in themselves are decisive of the question raised but there is one factor which dispels any doubt in regard to the construction of the document. The total area of the land mortgage in the year 1923 was 13.17 acres and the amount advanced thereunder was Rs. 1, 600/-. Only one year thereafter out of the said extent 12.6 acres was transferred by the document in question for a sum of Rs. 2, 800/-, that is if the contention of the appellant was correct, a smaller extent of land was mortgaged for higher amount. It is improbable that a mortgagee would advance an additional amount and take a mortgage. of a smaller extent in discharge of an earlier mortgage wherounder a larger extent of land was given as security. Unless there are extraordinary reasons for this conduct, this would be a clinchina circumstance in favour of holding that a document was a sale. The learned counsel for the appellant realizing the importance of this: circumstance at tempted to explain it away by a suggestion that under the earlier document the respondents were not put in possession of the land and that the reduction of the extent of the mortgaged property under the subsequent document was-due to the fact that they secured possession of the lands mortgaged thereunder. This was not put either to the witnesses or suggested in any of the three courts below. We cannot therefore accept this argument advanced for the first time before us, for there may have been many e explanations for the respondents in respect of this suggestion. What is more, it is not disputed that the sum of Rs. 2, 800/- represents the real value of the 1 and sold to the respondents and it is high improbable to say the least that a person would aydvance the amount equivalent to the value of the. land mortgaged without keeping a reasonable margin for realizing his amount. This is sought to be explained by throwing a suggestion that as the respondents were put in possession, they would be getting the interest and therefore there was no chance of the debt exceeding the value of the property. Even so a mortgagee in lending mounies would insist upon a reasonable margin in the value of the property to provide against the possible contingency of the pro- perties going down in value and the amount due to him swelling by the addition of cost, damage, etc., in the event of his filing a suit to recover the name. in our view whatever ambiguity there may be in the document, the fact that only a portion of the land already mortgaged was sold for a proper and adequate consideration is a circumstance which stamps the document as an out, and out sale.Reliance:is placed by the learned counsel for the appellants on a judgment of this court in "Pandit Chunohun Jha v. Sheikh Ebadat Ali (1(1955) 1.S.R. 174.). It may be stated at, the outset that for ascertaining the intention of the, parties under one document- a decision on a construction of the terms of another document cannot ordinarily afford any guidance unless the terms are exactly similar to each other. It is true that, some of the terms of the document in that case may be approximated to some of the terms in the present document but the judgment of this Court really turned upon a crucial circumstance. There is one important recital found in the document in that case which does not appear in the document in- question and there is another important recital found here which is not present there. There the document under scrutiny was executed on April 15, 1930. Before the execution of the document the- executants initiated commutation proceedings under s. 40 of the Bihar Tenancy Act. Those proceedings continued till February 18, 1931 i.e. for some ten months after the deed. The executants borrowed Rs. 65/6/- to enable them to carry on the commutation proceedings even after they executed the document. Bose.1., speaking for the court adverting to the said circumstance observed at page 183: "This we think, is crucial. Persons who are selling their property would hardly take the trouble to, borrow money in order to continue revenue proceedings. which could no longer benefit them an could only ensure for the good of their transferees." It is, therefore, obvious that this circumstance clinched the case in favour of the executants. The crucial circumstance in the present case, namely that a smaller extent was- sold for a higher amount in discharge of an earlier mortgage of a larger extent for a smaller amount was not present in that case. The said crucial circumstances make the two cases entirely dissimilar and therefore the said judgment of this court is not of any help in construing the document in question. On a consideration of the cumulative effect of the terms of the document in the context of the surrounding circumstances we hold that the document in question is not a mortgage but a sale with the condition of repurchase.
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Prakash Vs. State Of Rajasthan | persons, namely, Pappu, Ramesh and Prakash present in the court were standing at the shop of Pappu. Amongst them, Pappu went to his house and brought scooter and went on the scooter in the same direction in which Kamlesh and Santosh had gone. Thereafter, she went inside her home. At the relevant time, her husband was doing the work of light fitting and he used to go to work spot at 9 ‘O Clock in the morning return home at 8 ‘O Clock in the evening. On the relevant date, when he returned home, she informed him that their son Kamlesh had not come back from the school. Thereafter, her husband PW-1 went in search of Kamlesh along with her brother Prem. She also narrated the incident about Ramesh that 12 months prior from the date of her missing of her son, at 11 O clock, she had seen the accused Ramesh entering the house of Indrammal which is close to her house. Ramesh had relationship with the daughter of Indrammal, namely, Pappuni. The said Ramesh used to enter their house even during night. She informed the same to Indrammal’s wife. She also disclosed this fact to other neighbours. According to her, on coming to know of the said incident, Indrammal and his sister beat her for which she had lodged a complaint with the police due to which they threatened that they would take revenge of it. One month after the said incident, Pappuni died by consuming poison and, thereafter, the accused Ramesh used to quarrel with her and many times threatened her. She also reported the matter to the police. With the assistance of the local people, the matter was compromised with him. However, she complained that after compromise, her son Kamlesh was missing and subsequently murdered. She narrated the motive for killing of her son by the accused persons. She also asserted that Pappu, Ramesh and Prakash had made her son disappear and according to her, they did it on account of the death of Pappuni and thereafter, murdered her son. 11) Apart from the evidence of PWs 1 and 7 with regard to the last seen theory, prosecution examined three persons, namely, Moolchand (PW-3), Gautam Chand (PW-4) both are goldsmiths and Biglaram (PW-10). In his evidence, PW-3 has stated that he was known to Leeladhar, Ramesh and Prakash. He further stated that on the date of the incident, in the afternoon at about 12 he had seen all the accused persons moving towards Panchpati Circle Road on a scooter. He had also seen the son of Leeladhar sitting in between the three accused persons on the scooter. Gautam Chand (PW-4), who is also a goldsmith, in his evidence has stated that on the date of the incident at about 12.15 he had seen the accused moving in a scooter along with the small boy. Though both PWs 3 and 4 did not identify the accused persons in the identification parade, in view of their assertion, we are satisfied that the prosecution has succeeded in establishing the circumstance of last seen theory. 12) The next witness relied on by the prosecution to support the last seen theory is Bijlaram (PW-10). In his evidence, he stated that on 15.04.1998, he had gone to Sujesar Hillock for collecting firewood. While he was returning on Gelu Road, he saw the accused along with a boy moving towards the Hillock. The boy was wearing black pant and white shirt and black shoes. He further narrated that all the three accused and the child moved towards the Hillock. He identified all the accused in the Court. He also admitted that he was known to all the three accused persons and the child. He was cross-examined at length but nothing was elicited disproving his statement relied on by the prosecution. The prosecution very much relied on by PWs 3, 4 and 10 to prove the last seen theory and the courts below rightly accepted their version. 13) The analysis of the above evidence discussed so far clearly show that the prosecution has succeeded in establishing that the relations betweens the family of Leeladhar and the appellants-accused were hostile. In fact, Ramesh Khatri, one of the accused had threatened Leeladhar and his wife of finishing their family. We are satisfied that the prosecution has proved motive on the part of the appellants for committing the murder of Kamlesh, son of PWs 1 and 7. 14) It is true that counsel appearing for the appellant pointed out the discrepancy in the evidence of PWs 11, 12, 16 and 21 about the condition of the dead body. It is relevant to point out that these prosecution witnesses are villagers and further the body was recovered only on 20.04.1998 whereas the incident occurred on 15.04.1998. In fact, PWs 9 and 11 cattle grazers have deposed that the dead body was partly eaten by dog. In view of the same, merely because the prosecution witnesses were not consistent in describing the dead body of 14 year old boy, the entire prosecution case cannot be disbelieved.15) In the course of investigation and in pursuance of the information given by A-1, pant and shirt stained with blood of Ramesh were recovered from his house in the presence of PWs 21 and 23. The pant and shirt were seized and sealed in a packet marked as S-8. It is further seen that as per FSL report, Exh.P-86, the presence of blood on the pant and shirt are of human origin.16) In the light of the above discussion, we hold that the prosecution has established all the circumstances by cogent and acceptable evidence and if we consider all the circumstances it leads to a conclusion that it was the appellants/accused who kidnapped and committed the murder of the deceased Kamlesh. We are satisfied that the trial Court has rightly accepted the prosecution case and awarded life sentence which was affirmed by the High Court. We fully concur with the said conclusion. 17. | 0[ds]It is true that counsel appearing for the appellant pointed out the discrepancy in the evidence of PWs 11, 12, 16 and 21 about the condition of the dead body. It is relevant to point out that these prosecution witnesses are villagers and further the body was recovered only on 20.04.1998 whereas the incident occurred on 15.04.1998. In fact, PWs 9 and 11 cattle grazers have deposed that the dead body was partly eaten by dog. In view of the same, merely because the prosecution witnesses were not consistent in describing the dead body of 14 year old boy, the entire prosecution case cannot be disbelieved.15) In the course of investigation and in pursuance of the information given by A-1, pant and shirt stained with blood of Ramesh were recovered from his house in the presence of PWs 21 and 23. The pant and shirt were seized and sealed in a packet marked as S-8. It is further seen that as per FSL report, Exh.P-86, the presence of blood on the pant and shirt are of human origin.16) In the light of the above discussion, we hold that the prosecution has established all the circumstances by cogent and acceptable evidence and if we consider all the circumstances it leads to a conclusion that it was the appellants/accused who kidnapped and committed the murder of the deceased Kamlesh. We are satisfied that the trial Court has rightly accepted the prosecution case and awarded life sentence which was affirmed by the High Court. We fully concur with the said conclusion. | 0 | 3,258 | 282 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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persons, namely, Pappu, Ramesh and Prakash present in the court were standing at the shop of Pappu. Amongst them, Pappu went to his house and brought scooter and went on the scooter in the same direction in which Kamlesh and Santosh had gone. Thereafter, she went inside her home. At the relevant time, her husband was doing the work of light fitting and he used to go to work spot at 9 ‘O Clock in the morning return home at 8 ‘O Clock in the evening. On the relevant date, when he returned home, she informed him that their son Kamlesh had not come back from the school. Thereafter, her husband PW-1 went in search of Kamlesh along with her brother Prem. She also narrated the incident about Ramesh that 12 months prior from the date of her missing of her son, at 11 O clock, she had seen the accused Ramesh entering the house of Indrammal which is close to her house. Ramesh had relationship with the daughter of Indrammal, namely, Pappuni. The said Ramesh used to enter their house even during night. She informed the same to Indrammal’s wife. She also disclosed this fact to other neighbours. According to her, on coming to know of the said incident, Indrammal and his sister beat her for which she had lodged a complaint with the police due to which they threatened that they would take revenge of it. One month after the said incident, Pappuni died by consuming poison and, thereafter, the accused Ramesh used to quarrel with her and many times threatened her. She also reported the matter to the police. With the assistance of the local people, the matter was compromised with him. However, she complained that after compromise, her son Kamlesh was missing and subsequently murdered. She narrated the motive for killing of her son by the accused persons. She also asserted that Pappu, Ramesh and Prakash had made her son disappear and according to her, they did it on account of the death of Pappuni and thereafter, murdered her son. 11) Apart from the evidence of PWs 1 and 7 with regard to the last seen theory, prosecution examined three persons, namely, Moolchand (PW-3), Gautam Chand (PW-4) both are goldsmiths and Biglaram (PW-10). In his evidence, PW-3 has stated that he was known to Leeladhar, Ramesh and Prakash. He further stated that on the date of the incident, in the afternoon at about 12 he had seen all the accused persons moving towards Panchpati Circle Road on a scooter. He had also seen the son of Leeladhar sitting in between the three accused persons on the scooter. Gautam Chand (PW-4), who is also a goldsmith, in his evidence has stated that on the date of the incident at about 12.15 he had seen the accused moving in a scooter along with the small boy. Though both PWs 3 and 4 did not identify the accused persons in the identification parade, in view of their assertion, we are satisfied that the prosecution has succeeded in establishing the circumstance of last seen theory. 12) The next witness relied on by the prosecution to support the last seen theory is Bijlaram (PW-10). In his evidence, he stated that on 15.04.1998, he had gone to Sujesar Hillock for collecting firewood. While he was returning on Gelu Road, he saw the accused along with a boy moving towards the Hillock. The boy was wearing black pant and white shirt and black shoes. He further narrated that all the three accused and the child moved towards the Hillock. He identified all the accused in the Court. He also admitted that he was known to all the three accused persons and the child. He was cross-examined at length but nothing was elicited disproving his statement relied on by the prosecution. The prosecution very much relied on by PWs 3, 4 and 10 to prove the last seen theory and the courts below rightly accepted their version. 13) The analysis of the above evidence discussed so far clearly show that the prosecution has succeeded in establishing that the relations betweens the family of Leeladhar and the appellants-accused were hostile. In fact, Ramesh Khatri, one of the accused had threatened Leeladhar and his wife of finishing their family. We are satisfied that the prosecution has proved motive on the part of the appellants for committing the murder of Kamlesh, son of PWs 1 and 7. 14) It is true that counsel appearing for the appellant pointed out the discrepancy in the evidence of PWs 11, 12, 16 and 21 about the condition of the dead body. It is relevant to point out that these prosecution witnesses are villagers and further the body was recovered only on 20.04.1998 whereas the incident occurred on 15.04.1998. In fact, PWs 9 and 11 cattle grazers have deposed that the dead body was partly eaten by dog. In view of the same, merely because the prosecution witnesses were not consistent in describing the dead body of 14 year old boy, the entire prosecution case cannot be disbelieved.15) In the course of investigation and in pursuance of the information given by A-1, pant and shirt stained with blood of Ramesh were recovered from his house in the presence of PWs 21 and 23. The pant and shirt were seized and sealed in a packet marked as S-8. It is further seen that as per FSL report, Exh.P-86, the presence of blood on the pant and shirt are of human origin.16) In the light of the above discussion, we hold that the prosecution has established all the circumstances by cogent and acceptable evidence and if we consider all the circumstances it leads to a conclusion that it was the appellants/accused who kidnapped and committed the murder of the deceased Kamlesh. We are satisfied that the trial Court has rightly accepted the prosecution case and awarded life sentence which was affirmed by the High Court. We fully concur with the said conclusion. 17.
### Response:
0
### Explanation:
It is true that counsel appearing for the appellant pointed out the discrepancy in the evidence of PWs 11, 12, 16 and 21 about the condition of the dead body. It is relevant to point out that these prosecution witnesses are villagers and further the body was recovered only on 20.04.1998 whereas the incident occurred on 15.04.1998. In fact, PWs 9 and 11 cattle grazers have deposed that the dead body was partly eaten by dog. In view of the same, merely because the prosecution witnesses were not consistent in describing the dead body of 14 year old boy, the entire prosecution case cannot be disbelieved.15) In the course of investigation and in pursuance of the information given by A-1, pant and shirt stained with blood of Ramesh were recovered from his house in the presence of PWs 21 and 23. The pant and shirt were seized and sealed in a packet marked as S-8. It is further seen that as per FSL report, Exh.P-86, the presence of blood on the pant and shirt are of human origin.16) In the light of the above discussion, we hold that the prosecution has established all the circumstances by cogent and acceptable evidence and if we consider all the circumstances it leads to a conclusion that it was the appellants/accused who kidnapped and committed the murder of the deceased Kamlesh. We are satisfied that the trial Court has rightly accepted the prosecution case and awarded life sentence which was affirmed by the High Court. We fully concur with the said conclusion.
|
Chloro Controls(I) P.Ltd Vs. Severn Trent Water Purification Inc &Ors | International Distributor Agreement as this agreement itself was Appendix II to the Principal Agreement. This Court in the case of M.R. Engineers and Contractors Pvt. Ltd. v. Som Datt Builders Ltd. [(2009) 7 SCC 696] has stated that firstly the subject of reference be enacted by mutual intention, secondly a mere reference to a document may not be sufficient and the reference should be sufficient to bring out the terms and conditions of the referred document and also that the arbitration clause should be capable of application in respect of a dispute under the contract and not repugnant to any term thereof. All these three conditions are satisfied in the present case. 160. The terms and conditions of the International Distribution Agreement were an integral part of the Principal Agreement as Appendix II and the Principal Agreement had an arbitration clause which was wide enough to cover disputes in all the ancillary agreements. It is not necessary for us to examine the choice of forum or legal enforceability of legal system in the present case, as we find no repugnancy even where the main contract is governed by law of some other country and the arbitration clause by Indian law. They both could be invoked, neither party having invoked the former will be no bar for invocation of the latter in view of arbitration clause 30 of the mother agreement. 161. Reliance was also placed on the judgment of this Court in the case of Deutsche Post Bank Home Finance Ltd. v. Taduri Sridhar [AIR 2011 SC 1899 ] where the Court had declined reference of multiple and multi party agreement. That case is of no help to the appellant before us. In that case, there were four parties, the seller of the land, the builder, purchaser of the flat and the bank. The bank had signed an agreement with the purchaser of the flat to finance the flat, but it referred to other agreement stating that it would provide funds directly to the builder. There was an agreement between the builder and the owner of the land and the purchaser of the land to sell the undivided share and that contained an arbitration clause. The question before the Court was whether while referring the disputes to the arbitration, the disputes between the bank on the one hand, and the purchaser of the flat on the other could be referred to arbitration. The Court, in reference to Section 8 of the 1996 Act, held that the bank was a non-party to the arbitration agreement, therefore, neither the reference was permissible nor they could be impleaded at a subsequent stage. This judgment on facts has no application. The distinction between Section 8 and Section 45 has elaborately been dealt with by us above and in view of that, we have no hesitation in holding that this judgment, on facts and law, is not applicable to the present case. 162. Thus, in view of the above, we hold that the disputes referred to and arising from the multi-party agreements are capable of being referred to arbitral tribunal in accordance with the agreement between the parties. 163. Another argument advanced with some vehemence on behalf of the appellant was that respondent Nos.3 and 4 were not party to any of the agreements entered into between the parties and their cause of action is totally different and distinct, and their rights were controlled by the agreement of distribution executed by respondent Nos.1 and 2 in their favour for distribution of products of gas and electro- chlorination. It was contended that there cannot be splitting of parties, splitting of cause of action and remedy by the Court. 164. On the other hand, it was contended on behalf of the respondent No.1 that it is permissible to split cause of action, parties and disputes. The mater referable to arbitration could be segregated from the civil action. The court could pass appropriate orders referring the disputes covered under the arbitration agreement between the signatory party to arbitration and proceed with the claim of respondent Nos. 3 and 4 in accordance with law. 165. As far as this question of law is concerned, we have already answered the same. On facts, there is no occasion for us to deliberate on this issue, because respondent Nos. 3 and 4 had already consented for arbitration. In light of that fact, we do not wish to decide this question on the facts of the present case. 166. Having dealt with all the relevant issues in law, now we would provide answer to the questions framed by us in the beginning of the judgment as follows : Answer 167. Section 45 is a provision falling under Chapter I of Part II of the 1996 Act which is a self-contained Code. The expression person claiming through or under would mean and take within its ambit multiple and multi-party agreements, though in exceptional case. Even non-signatory parties to some of the agreements can pray and be referred to arbitration provided they satisfy the pre-requisites under Sections 44 and 45 read with Schedule I. Reference of non-signatory parties is neither unknown to arbitration jurisprudence nor is it impermissible. 168. In the facts of a given case, the Court is always vested with the power to delete the name of the parties who are neither necessary nor proper to the proceedings before the Court. In the cases of group companies or where various agreements constitute a composite transaction like mother agreement and all other agreements being ancillary to and for effective and complete implementation of the Mother Agreement, the court may have to make reference to arbitration even of the disputes existing between signatory or even non-signatory parties. However, the discretion of the Court has to be exercised in exceptional, limiting, befitting and cases of necessity and very cautiously. 169. Having answered these questions, we do not see any reason to interfere with the judgment of the Division Bench of the Bombay High Court under appeal. | 0[ds]43. As we have already noticed under the head Corporate Structure, the name of Respondent No. 1, Capital Control Co. Inc. was changed to Severn Trent Water Purification Inc. with effect from 1st April, 2002. Later on, respondent no.2, Capital Control (Delaware) Co. Inc. was merged with the respondent no.1 on 31st March, 2003. Thus, for all purposes and intents, in fact and in law, interest of respondent no.1 and 2 was controlled and given effect to by Severn Trent44. On this issue, version of the respondents had been disputed in the earlier round of litigation between the parties where respondent No. 1, Severn Trent Water Purification Co. Inc., USA, had filed a petition for winding up respondent No. 5-Chloro Controls India Pvt. Ltd., the joint venture company, on just and equitable ground under Section 433(j) of the Companies Act. In this petition, specific issue was raised that merger of Capital Controls (Delaware) Co. with Severn Trent was not intimated to the respondent No. 5 company prior to the filing of the arbitration petition by Severn Trent under Section 9 of the 1996 Act as well as that Severn Trent was not a share holder of the joint venture company and thus had no locus standi to file the petition. This Court vide its judgment dated 18th February, 2008 in Civil Appeal No. 1351 of 2008 titled Severn Trent Water Purification Inc. v. Chloro Control (India) Pvt. Ltd. and Anr. held that the winding up petition by Severn Trent Water Purification Inc. was not maintainable as it was not a contributory. But the question whether that company was a creditor of the joint venture company was left open.45. At this very stage, we may make it clear that we do not propose to deal with any of the contentions raised in that petition whether decided or left open, as the judgment has already attained finality. In terms of the settled position of law, the said judgment cannot be brought in challenge in the present proceedings, collaterally or otherwise.The propositions stated in the case of Bhatia International (supra) do not directly arise for consideration of this Court in the facts of the present case. Thus, we are not dealing with the dictum of the Court in Bhatia Internationals case and application of its principles in this judgment.Interpretation of Section 45 of the 1996 Act53. In order to invoke jurisdiction of the Court under Section 45, the applicant should satisfy the pre-requisites stated in Section 44 of the 1996 Act.54. Chapter I, Part II deals with enforcement of certain foreign awards in accordance with the New York Convention, annexed as Schedule I to the 1996 Act. As per Section 44, there has to be an arbitration agreement in writing. To such arbitration agreement the conditions stated in Schedule I would apply. In other words, it must satisfy the requirements of Article II of Schedule I. Each contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration their disputes in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. The arbitration agreement shall include an arbitration clause in a contract or an arbitration agreement signed by the parties or entered in any of the specified modes. Subject to the exceptions stated therein, the reference shall be made55. The language of Section 45 read with Schedule I of the 1996 Act is worded in favour of making a reference to arbitration when a party or any person claiming through or under him approaches the Court and the Court is satisfied that the agreement is valid, enforceable and operative. Because of the legislative intent, the mandate and purpose of the provisions of Section 45 being in favour of arbitration, the relevant provisions would have to be construed liberally to achieve that object56. The 1996 Act makes it abundantly clear that Part I of the Act has been amended to bring these provisions completely in line with the UNCITRAL Model Law on International Commercial Arbitration (for short, the UNCITRAL Mode Law), while Chapter I of Part II is meant to encourage international commercial arbitration by incorporating in India, the provisions of the New York Convention. Further, the protocol on Arbitration Clauses (for short Geneva Convention) was also incorporated as part of Chapter II of Part II57. For proper interpretation and application of Chapter I of Part II, it is necessary that those provisions are read in conjunction with Schedule I of the Act.. The International Council for Commercial Arbitration prepared a Guide to the Interpretation of 1958 New York Convention, which lays/contains the Road Map to Article II. Section 45 is enacted materially on the lines of Article II of this Convention. When the Court is seized with a challenge to the validity of an arbitration agreement, it would be desirable to examine the following aspects :1. Does the arbitration agreement fall under the scope of the Convention?2. Is the arbitration agreement evidenced in writing?3. Does the arbitration agreement exist and is it substantively valid?4. Is there a dispute, does it arise out of a defined legal relationship, whether contractual or not, and did the parties intend to have this particular dispute settled by arbitration?5. Is the arbitration agreement binding on the parties to the dispute that is before the Court?6. Is this dispute arbitrable?. According to this Guide, if these questions are answered in the affirmative, then the parties must be referred to arbitration. Of course, in addition to the above, the Court will have to adjudicate any plea, if taken by a non-applicant that the arbitration agreement is null and void, inoperative or incapable of being performed. In these three situations, if the Court answers such plea in favour of the non-applicant, the question of making a reference to arbitration would not arise and that would put the matter at rest59. If the parties are referred to arbitration and award is made under these provisions of the Convention, then it shall be binding and enforceable in accordance with the provisions of Sections 46 to 49 of the 1996 Act. The procedure prescribed under Chapter I of Part II is to take precedence and would not be affected by the provisions contained under Part I and/or Chapter II of Part II in terms of Section 52. This is the extent of priority that the Legislature had intended to accord to this Chapter 1 of Part II.60. Amongst the initial steps, the Court is required to enquire whether the dispute at issue is covered by the arbitration agreement. Stress has normally been placed upon three characteristics of arbitrations which are as follows –(1) arbitration is consensual. It is based on the parties agreement;(2) arbitration leads to a final and binding resolution of the dispute; and(3) arbitration is regarded as substitute for the court litigation and results in the passing of an binding award.64. We have already noticed that the language of Section 45 is at a substantial variance to the language of Section 8 in this regard. In Section 45, the expression any person clearly refers to the legislative intent of enlarging the scope of the words beyond the parties who are signatory to the arbitration agreement. Of course, such applicant should claim through or under the signatory party. Once this link is established, then the Court shall refer them to arbitration. The use of the word shall would have to be given its proper meaning and cannot be equated with the word may, as liberally understood in its common parlance. The expression shall in the language of the Section 45 is intended to require the Court to necessarily make a reference to arbitration, if the conditions of this provision are satisfied. To that extent, we find merit in the submission that there is a greater obligation upon the judicial authority to make such reference, than it was in comparison to the 1940 Act. However, the right to reference cannot be construed strictly as an indefeasible right. One can claim the reference only upon satisfaction of the pre-requisites stated under Sections 44 and 45 read with Schedule I of the 1996 Act. Thus, it is a legal right which has its own contours and is not an absolute right, free of any obligations/limitations65. Normally, arbitration takes place between the persons who have, from the outset, been parties to both the arbitration agreement as well as the substantive contract underlining that agreement. But, it does occasionally happen that the claim is made against or by someone who is not originally named as a party. These may create some difficult situations, but certainly, they are not absolute obstructions to law/the arbitration agreement. Arbitration, thus, could be possible between a signatory to an arbitration agreement and a third party. Of course, heavy onus lies on that party to show that, in fact and in law, it is claiming through or under the signatory party as contemplated under Section 45 of the 1996 Act. Just to deal with such situations illustratively, reference can be made to the following examples in Law and Practice of Commercial Arbitration in England (Second Edn.) by Sir Michael J. Mustill:1. The claimant was in reality always a party to the contract, although not named in it.. The claimant has succeeded by operation of law to the rights of the named party3. The claimant has become a part to the contract in substitution for the named party by virtue of a statutory or consensual novation4. The original party has assigned to the claimant either the underlying contract, together with the agreement to arbitrate which it incorporates, or the benefit of a claim which has already come into existence.. Though the scope of an arbitration agreement is limited to the parties who entered into it and those claiming under or through them, the Courts under the English Law have, in certain cases, also applied the Group of Companies Doctrine. This doctrine has developed in the international context, whereby an arbitration agreement entered into by a company, being one within a group of companies, can bind its non-signatory affiliates or sister or parent concerns, if the circumstances demonstrate that the mutual intention of all the parties was to bind both the signatories and the non-signatory affiliates. This theory has been applied in a number of arbitrations so as to justify a tribunal taking jurisdiction over a party who is not a signatory to the contract containing the arbitration agreement. [Russell on Arbitration (Twenty Third Edition)]67. This evolves the principle that a non-signatory party could be subjected to arbitration provided these transactions were with group of companies and there was a clear intention of the parties to bind both, the signatory as well as the non-signatory parties. In other words, intention of the parties is a very significant feature which must be established before the scope of arbitration can be said to include the signatory as well as the non-signatory parties68. A non-signatory or third party could be subjected to arbitration without their prior consent, but this would only be in exceptional cases. The Court will examine these exceptions from the touchstone of direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject matter and the agreement between the parties being a composite transaction. The transaction should be of a composite nature where performance of mother agreement may not be feasible without aid, execution and performance of the supplementary or ancillary agreements, for achieving the common object and collectively having bearing on the dispute. Besides all this, the Court would have to examine whether a composite reference of such parties would serve the ends of justice. Once this exercise is completed and the Court answers the same in the affirmative, the reference of even non-signatory parties would fall within the exception afore-discussed69. In a case like the present one, where origin and end of all is with the Mother or the Principal Agreement, the fact that a party was non-signatory to one or other agreement may not be of much significance. The performance of any one of such agreements may be quite irrelevant without the performance and fulfillment of the Principal or the Mother Agreement. Besides designing the corporate management to successfully complete the joint ventures, where the parties execute different agreements but all with one primary object in mind, the Court would normally hold the parties to the bargain of arbitration and not encourage its avoidance. In cases involving execution of such multiple agreements, two essential features exist; firstly, all ancillary agreements are relatable to the mother agreement and secondly, performance of one is so intrinsically inter- linked with the other agreements that they are incapable of being beneficially performed without performance of the others or severed from the rest. The intention of the parties to refer all the disputes between all the parties to the arbitral tribunal is one of the determinative factor70. We may notice that this doctrine does not have universal acceptance. Some jurisdictions, for example, Switzerland, have refused to recognize the doctrine, while others have been equivocal. The doctrine has found favourable consideration in the United States and French jurisdictions. The US Supreme Court in Ruhrgos AG v Marathon Oil Co. [526 US 574 (1999)] discussed this doctrine at some length and relied on more traditional principles, such as, the non- signatory being an alter ego, estoppel, agency and third party beneficiaries to find jurisdiction over the non-signatories71. The Court will have to examine such pleas with greater caution and by definite reference to the language of the contract and intention of the parties. In the case of composite transactions and multiple agreements, it may again be possible to invoke such principle in accepting the pleas of non-signatory parties for reference to arbitration. Where the agreements are consequential and in the nature of a follow-up to the principal or mother agreement, the latter containing the arbitration agreement and such agreements being so intrinsically inter-mingled or inter-dependent that it is their composite performance which shall discharge the parties of their respective mutual obligations and performances, this would be a sufficient indicator of intent of the parties to refer signatory as well as non-signatory parties to arbitration. The principle of composite performance would have to be gathered from the conjoint reading of the principal and supplementary agreements on the one hand and the explicit intention of the parties and the attendant circumstances on the other72. As already noticed, an arbitration agreement, under Section 45 of the 1996 Act, should be evidenced in writing and in terms of Article II of Schedule 1, an agreement in writing shall include an arbitral clause in a contract or an arbitration agreement signed by the parties or contained in an exchange of letters or telegrams. Thus, the requirement that an arbitration agreement be in writing is an expression incapable of strict construction and requires to be construed liberally, as the words of this Article provide. Even in a given circumstance, it may be possible and permissible to construe the arbitration agreement with the aid and principle of incorporation by reference. Though the New York Convention is silent on this matter, in common practice, the main contractual document may refer to standard terms and conditions or other standard forms and documents which may contain an arbitration clause and, therefore, these terms would become part of the contract between the parties by reference. The solution to such issue should be case-specific. The relevant considerations to determine incorporation would be the status of parties, usages within the specific industry, etc. Cases where the main documents explicitly refer to arbitration clause included in standard terms and conditions would be more easily found in compliance with the formal requirements set out in the Article II of the New York Convention than those cases in which the main contract simply refers to the application of standard forms without any express reference to the arbitration clause. For instance, under the American Law, where standard terms and conditions referred to in a purchase order provided that the standard terms would have been attached to or form part of the purchase order, this was considered to be an incorporation of the arbitration agreement by reference. Even in other countries, the recommended criterion for incorporation is whether the parties were or should have been aware of the arbitration agreement. If the Bill of Lading, for example, specifically mentions the arbitration clause in the Charter Party Agreement, it is generally considered sufficient for incorporation. Two different approaches in its interpretation have been adopted, namely, (a) interpretation of documents approach; and (b) conflict of laws approach. Under the latter, the Court could apply either its own national law or the law governing the arbitration73. In India, the law has been construed more liberally, towards accepting incorporation by reference. In the case of Owners and Parties Interested in the Vessel M.V. Baltic Confidence & Anr. v. State Trading Corporation of India Ltd. & Anr. [(2001) 7 SCC 473] , the Court was considering the question as to whether the arbitration clause in a Charter Party Agreement was incorporated by reference in the Bill of Lading and what the intention of the parties to the Bill of Lading was. The primary document was the Bill of Lading, which, if read in the manner provided in the incorporation clause thereof, would include the arbitration clause of the Charter Party Agreement. The Court observed that while ascertaining the intention of the parties, attempt should be made to give meaning and effect to the incorporation clause and not to invalidate or frustrate it by giving it a literal, pedantic and technical reading. This Court, after considering the judgments of the courts in various other countries, held as under :19. From the conspectus of the views expressed by courts in England and also in India, it is clear that in considering the question, whether the arbitration clause in a Charter Party Agreement was incorporated by reference in the Bill of Lading, the principal question is, what was the intention of the parties to the Bill of Lading? For this purpose the primary document is the Bill of Lading into which the arbitration clause in the Charter Party Agreement is to be read in the manner provided in the incorporation clause of the Bill of Lading. While ascertaining the intention of the parties, attempt should be made to give meaning to the incorporation clause and to give effect to the same and not to invalidate or frustrate it giving a literal, pedantic and technical reading of the clause. If on a construction of the arbitration clause of the Charter Party Agreement as incorporated in the Bill of Lading it does not lead to inconsistency or insensibility or absurdity then effect should be given to the intention of the parties and the arbitration clause as agreed should be made binding on parties to the Bill of Lading. If the parties to the Bill of Lading being aware of the arbitration clause in the Charter Party Agreement have specifically incorporated the same in the conditions of the Bill of Lading then the intention of the parties to abide by the arbitration clause is clear. Whether a particular dispute arising between the parties comes within the purview of the arbitration clause as incorporated in the Bill of Lading is a matter to be decided by the arbitrator or the court. But that does not mean that despite incorporation of the arbitration clause in the Bill of Lading by specific reference the parties had not intended that the disputes arising on the Bill of Lading should be resolved by an arbitrator.. Reference can also be made to the judgment of this Court in the case of Olympus Superstructure Pvt. Ltd. v. Meena Vijay Khetan & Ors. [(1999) 5 SCC 651] , where the parties had entered into a purchase agreement for the purchase of flats. The main agreement contained the arbitration clause (clause 39). The parties also entered into three different Interior Design Agreements, which also contained arbitration clauses. The main agreement was terminated due to disputes about payment and non-grant of possession. These disputes were referred to arbitration. A sole arbitrator was appointed to make awards in this respect. Inter alia, the question was raised as to whether the disputes under the Interior Design Agreements were subject to their independent arbitration clauses or whether one and the same reference was permissible under the main agreement. It was argued that the reference under clause 39 of the main agreement could not permit the arbitrator to deal with the disputes relating to Interior Design Agreements and the award was void. The Court, however, took the view that parties had entered into multiple agreements for a common object and the expression other matters…connected with appearing in clause 39 would permit such a reference. The Court held as under :30. If there is a situation where there are disputes and differences in connection with the main agreement and also disputes in regard to other matters connected with the subject-matter of the main agreement then in such a situation, in our view, we are governed by the general arbitration clause 39 of the main agreement under which disputes under the main agreement and disputes connected therewith can be referred to the same arbitral tribunal. This clause 39 no doubt does not refer to any named arbitrators. So far as clause 5 of the Interior Design Agreement is concerned, it refers to disputes and differences arising from that agreement which can be referred to named arbitrators and the said clause 5, in our opinion, comes into play only in a situation where there are no disputes and differences in relation to the main agreement and the disputes and differences are solely confined to the Interior Design Agreement. That, in our view, is the true intention of the parties and that is the only way by which the general arbitration provision in clause 39 of the main agreement and the arbitration provision for a named arbitrator contained in clause 5 of the Interior Design Agreement can be harmonised or reconciled. Therefore, in a case like the present where the disputes and differences cover the main agreement as well as the Interior Design Agreement, — (that there are disputes arising under the main agreement and the Interior Design Agreement is not in dispute) — it is the general arbitration clause 39 in the main agreement that governs because the questions arise also in regard to disputes relating to the overlapping items in the schedule to the main agreement and the Interior Design Agreement, as detailed earlier. There cannot be conflicting awards in regard to items which overlap in the two agreements. Such a situation was never contemplated by the parties. The intention of the parties when they incorporated clause 39 in the main agreement and clause 5 in the Interior Design Agreement was that the former clause was to apply to situations when there were disputes arising under both agreements and the latter was to apply to a situation where there were no disputes or differences arising under the main contract but the disputes and differences were confined only to the Interior Design Agreement. A case containing two agreements with arbitration clauses arose before this Court in Agarwal Engg. Co. v. Technoimpex Hungarian Machine Industries Foreign Trade Co. There were arbitration clauses in two contracts, one for sale of two machines to the appellant and the other appointing the appellant as sales representative. On the facts of the case, it was held that both the clauses operated separately and this conclusion was based on the specific clause in the sale contract that it was the sole repository of the sale transaction of the two machines. Krishna Iyer, J. held that if that were so, then there was no jurisdiction for travelling beyond the sale contract. The language of the other agreement appointing the appellant as sales representative was prospective and related to a sales agency and later purchases, other than the purchases of these two machines. There was therefore no overlapping. The case before us and the above case exemplify contrary situations. In one case the disputes are connected and in the other they are distinct and not connected. Thus, in the present case, clause 39 of the main agreement applies. Points 1 and 2 are decided accordingly in favour of the respondents.. The Court also took the view that a dispute relating to specific performance of a contract in relation to immoveable property could be referred to arbitration and Section 34(2)(b)(i) of the 1996 Act was not attracted. This finding of the Court clearly supports the view that where the law does not prohibit the exercise of a particular power, either the Arbitral Tribunal or the Court could exercise such power. The Court, while taking this view, has obviously rejected the contention that a contract for specific performance was not capable of settlement by arbitration under the Indian law in view of the statutory provisions. Such contention having been rejected, supports the view that we have taken.76. Where the Court which, on its judicial side, is seized of an action in a matter in respect of which the parties have made an arbitration agreement, once the required ingredients are satisfied, it would refer the parties to arbitration but for the situation where it comes to the conclusion that the agreement is null and void, inoperative or incapable of being performed. These expressions have to be construed somewhat strictly so as to ensure that the Court returns a finding with certainty and on the correct premise of law and fact as it has the effect of depriving the party of its right of reference to arbitration. But once the Court finds that the agreement is valid then it must make the reference, without any further exercise of discretion refer General Electric Co. v. Renusagar Power Co. [(1987) 4 SCC 137] . These are the issues which go to the root of the matter and their determination at the threshold would prevent multiplicity of litigation and would even prevent futile exercise of proceedings before the arbitral tribunalA majority of the countries admit to the positive effect of kompetenz kompetenz principle, which requires that the arbitral tribunal must exercise jurisdiction over the dispute under the arbitration agreement. Thus, challenge to the existence or validity of the arbitration agreement will not prevent the arbitral tribunal from proceeding with hearing and ruling upon its jurisdiction. If it retains jurisdiction, making of an award on the substance of the dispute would be permissible without waiting for the outcome of any court action aimed at deciding the issue of the jurisdiction. The negative effect of the kompetenz kompetenz principle is that arbitrators are entitled to be the first to determine their jurisdiction which is later reviewable by the court, when there is action to enforce or set aside the arbitral award. Where the dispute is not before an arbitral tribunal, the Court must also decline jurisdiction unless the arbitration agreement is patently void, inoperative or incapable of being performed78. This is the position of law in France and in some other countries, but as far as the Indian Law is concerned, Section 45 is a legislative mandate and does not admit of any ambiguity. We must take note of the aspect of Indian law that Chapter I of Part II of the 1996 Act does not contain any provision analogous to Section 8(3) under Part I of the Act. In other words, under the Indian Law, greater obligation is cast upon the Courts to determine whether the agreement is valid, operative and capable of being performed at the threshold itself. Such challenge has to be a serious challenge to the substantive contract or to the agreement, as in the absence of such challenge, it has to be found that the agreement was valid, operative and capable of being performed; the dispute would be referred to arbitration. [State of Orissa v. Klockner and Company & Ors. (AIR 1996 SC 2140 )].proceedings before national courts, it is generally possible to join additional parties or to consolidate separate sets of proceedings. In arbitration, however, this is difficult, sometimes impossible, to achieve this because the arbitral process is based upon the agreement of the parties80. Where there is multi-party arbitration, it may be because there are several parties to one contract or it may be because there are several contracts with different parties that have a bearing on the matter in dispute. It is helpful to distinguish between the two. Where there are several parties to one contract, like a joint venture or some other legal relationship of similar kind and the contract contains an arbitration clause, when a dispute arises, the members of the consortium or the joint venture may decide that they would each like to appoint an arbitrator. In distinction thereto, in cases involving several contracts with different parties, a different problem arises. They may have different issues in dispute. Each one of them will be operating under different contracts often with different choice of law and arbitration clauses and yet, any dispute between say the employer and the main contractor is likely to involve or affect one or more of the suppliers or sub-contractors, even under other contracts.This was the issue raised in the Adgas case Abu Dhabi Gas Liquefaction Co. Ltd. v. Eastern Bechtel Corp. [1982] 2 Lloyds Rep. 425, CA. Adgas was the owner of a plant that produced liquefied natural gas in the Arabian Gulf. The company started arbitration in England against the main contractors under an international construction contract, alleging that one of the huge tanks that had been constructed to store the gas was defective. The main contractor denied liability but added that, if the tank was defective, it was the fault of the Japanese sub-contractor. Adgas brought ad hoc arbitration proceedings against the main contractor before a sole arbitrator in London. The main contractor then brought separate arbitration proceedings, also in London, against the Japanese sub-contractor81. There is little doubt that if the matter had been litigated in an English court, the Japanese company would have been joined as a party to the action. However, Adgas did not agree that the Japanese sub-contractor should be brought into its arbitration with the main contractor, since this would have lengthened and complicated the proceedings. The Japanese sub-contractor also did not agree to be joined. It preferred to await the outcome of the main arbitration, to see whether or not there was a case to answer82. Lord Denning, giving judgment in the English Court of Appeal, plainly wished that an order could be made consolidating the two sets of arbitral proceedings so as to save time and money and to avoid the risk of inconsistent awards:As we have often pointed out, there is a danger in having two separate arbitrations in a case like this. You might get inconsistent findings if there were two separate arbitrators. This has been said in many cases…it is most undesirable that there should be inconsistent findings by two separate arbitrators on virtually the self-same question, such as causation. It is very desirable that everything should be done to avoid such a circumstance [Abu Dhabi Gas, op.cit.at 427]. We have already referred to the contention of Mr. Fali S. Nariman, the learned senior counsel appearing for the appellant, that the provisions of Section 45 of the 1996 Act are somewhat similar to Article II(3) of the New York Convention and the expression parties in that Section would mean that all parties to the action before the Court have to be the parties to the arbitration agreement. If some of them are parties to the agreement, while the others are not, Section 45 does not contemplate the applicable procedure and the status of the non-signatories. The consequences of all parties not being common to the action and arbitration proceedings are, as illustrated above, multiplicity of proceedings and frustration of the intended one stop action. The Rule of Mischief would support such interpretation. Even if some unnecessary parties are added to the action, the Court can always strike out such parties and even the cause of action in terms of the provisions of the CPC. However, where such parties cannot be struck off, there the proceedings must continue only before the Court84. Thus, the provisions of Section 45 cannot be effectively applied or even invoked. Unlike Section 24 of the 1940 Act, under the 1996 Act the Court has not been given the power to refer to arbitration some of the parties from amongst the parties to the suit. Section 24 of 1940 Act vested the Court with the discretion that where the Court thought fit, it could refer such matters and parties to arbitration provided the same could be separated from the rest of the subject matter of the suit. Absence of such provision in the 1996 Act clearly suggests that the Legislature intended not to permit bifurcated or partial references of dispute or parties to arbitration. Without prejudice to this contention, it was also the argument that it would not be appropriate and even permissible to make reference to arbitration when the issues and parties in action are not covered by the arbitration agreement. Referring to the consequences of all parties not being common to the action before the Court and arbitration, the disadvantages are:a) There would be multiplicity of litigation;b) Application of principle of one stop action would not be possible; andc) It will frustrate the application of the Rule of Mischief. The Court can prevent the mischief by striking out unnecessary parties or causes of action85. It would, thus, imply that a stranger or a third party cannot ask for arbitration. The expression claiming through or under will have to be construed strictly and restricted to the parties to the arbitration agreement.88. As noticed above, the legislative intent and essence of the 1996 Act was to bring domestic as well as international commercial arbitration in consonance with the UNCITRAL Model Rules, the New York Convention and the Geneva Convention. The New York Convention was physically before the Legislature and available for its consideration when it enacted the 1996 Act. Article II of the Convention provides that each contracting State shall recognise an agreement and submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not concerning a subject matter capable of settlement by arbitration. Once the agreement is there and the Court is seized of an action in relation to such subject matter, then on the request of one of the parties, it would refer the parties to arbitration unless the agreement is null and void, inoperative or incapable of performance89. Still, the legislature opted to word Section 45 somewhat dissimilarly. Section 8 of the 1996 Act also uses the expression parties simpliciter without any extension. In significant contra- distinction, Section 45 uses the expression one of the parties or any person claiming through or under him and refer the parties to arbitration, whereas the rest of the language of Section 45 is similar to that of Article II(3) of the New York Contention. The Court cannot ignore this aspect and has to give due weightage to the legislative intent. It is a settled rule of interpretation that every word used by the Legislature in a provision should be given its due meaning. To us, it appears that the Legislature intended to give a liberal meaning to this expression90. The language of Section 45 has wider import. It refers to the request of a party and then refers to an arbitral tribunal, while under Section 8(3) it is upon the application of one of the parties that the court may refer the parties to arbitration. There is some element of similarity in the language of Section 8 and Section 45 read with Article II(3). The language and expressions used in Section 45, any person claiming through or under him including in legal proceedings may seek reference of all parties to arbitration. Once the words used by the Legislature are of wider connotation or the very language of section is structured with liberal protection then such provision should normally be construed liberally91. Examined from the point of view of the legislative object and the intent of the framers of the statute, i.e., the necessity to encourage arbitration, the Court is required to exercise its jurisdiction in a pending action, to hold the parties to the arbitration clause and not to permit them to avoid their bargain of arbitration by bringing civil action involving multifarious cause of action, parties and prayers.Article II(1) and (3) have to be read in conjunction with Section 45 of the Act. Both these expressions have to be read in harmony with each other. Once they are so read, it will be evident that the expression legal relationship connotes the relationship of the party with the person claiming through or under him. A person may not be signatory to an arbitration agreement, but his cause of action may be directly relatable to that contract and thus, he may be claiming through or under one of those parties. It is also stated in the Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter (supra), that for the purposes of both the New York Convention and the UNCITRAL Model Law, it is sufficient that there should be a defined legal relationship between the parties, whether contractual or not. Plainly there has to be some contractual relationship between the parties, since there must be some arbitration agreement to form the basis of the arbitral proceedings. Given the existence of such an agreement, the dispute submitted to arbitration may be governed by the principles of delictual or tortuous liability rather than by the law of contract.95. Having examined both the above-stated views, we are of the considered opinion that it will be the facts of a given case that would act as precept to the jurisdictional forum as to whether any of the stated principles should be adopted or not. If in the facts of a given case, it is not possible to construe that the person approaching the forum is a party to the arbitration agreement or a person claiming through or under such party, then the case would not fall within the ambit and scope of the provisions of the section and it may not be possible for the Court to permit reference to arbitration at the behest of or against such party96. We have already referred to the judgments of various courts, that state that arbitration could be possible between a signatory to an agreement and a third party. Of course, heavy onus lies on that party to show that in fact and in law, it is claiming under or through a signatory party, as contemplated under Section 45 of the 1996 Act.99. Joinder of non signatory parties to arbitration is not unknown to the arbitration jurisprudence. Even the ICCAs Guide to the Interpretation of the 1958 New York Convention also provides for such situation, stating that when the question arises as to whether binding a non-signatory to an arbitration agreement could be read as being in conflict with the requirement of written agreement under Article I of the Convention, the most compelling answer is no and the same is supported by a number of reasons100. Various legal basis may be applied to bind a non-signatory to an arbitration agreement. The first theory is that of implied consent, third party beneficiaries, guarantors, assignment and other transfer mechanisms of contractual rights. This theory relies on the discernible intentions of the parties and, to a large extent, on good faith principle. They apply to private as well as public legal entities. The second theory includes the legal doctrines of agent- principal relations, apparent authority, piercing of veil (also called the alter ego), joint venture relations, succession and estoppel. They do not rely on the parties intention but rather on the force of the applicable law.102. We have already discussed that under the Group of Companies Doctrine, an arbitration agreement entered into by a company within a group of companies can bind its non-signatory affiliates, if the circumstances demonstrate that the mutual intention of the parties was to bind both the signatory as well as the non-signatory parties103. The question of formal validity of the arbitration agreement is independent of the nature of parties to the agreement, which is a matter that belongs to the merits and is not subject to substantive assessment. Once it is determined that a valid arbitration agreement exists, it is a different step to establish which parties are bound by it. Third parties, who are not explicitly mentioned in an arbitration agreement made in writing, may enter into its ratione personae scope. Furthermore, the Convention does not prevent consent to arbitrate from being provided by a person on behalf of another, a notion which is at the root of the theory of implied consent104. If one analyses the above cases and the authors views, it becomes abundantly clear that reference of even non-signatory parties to arbitration agreement can be made. It may be the result of implied or specific consent or judicial determination. Normally, the parties to the arbitration agreement calling for arbitral reference should be the same as those to the an action. But this general concept is subject to exceptions which are that when a third party, i.e. non-signatory party, is claiming or is sued as being directly affected through a party to the arbitration agreement and there are principal and subsidiary agreements, and such third party is signatory to a subsidiary agreement and not to the mother or principal agreement which contains the arbitration clause, then depending upon the facts and circumstances of the given case, it may be possible to say that even such third party can be referred to arbitration105. In the present case, the corporate structure of the respondent companies as well as that of the appellant companies clearly demonstrates a legal relationship which not only is inter-legal relationship but also intra-legal relationship between the parties to the lis or persons claiming under them. They have contractual relationship which arises out of the various contracts that spell out the terms, obligations and roles of the respective parties which they were expected to perform for attaining the object of successful completion of the joint venture agreement. This joint venture project was not dependant on any single agreement but was capable of being achieved only upon fulfillment of all these agreements. If one floats a joint venture company, one must essentially know-how to manage it and what shall be the methodology adopted for its management. If one manages it well, one must know what goods the said company is to produce and with what technical knowhow. Even if these requisites are satisfied, then also one is required to know, how to create market, distribute and export such goods. It is nothing but one single chain consisting of different components. The parties may choose to sign different agreements to effectively implement various aforementioned facets right from managing to making profits in a joint venture company. A party may not be signatory to an agreement but its execution may directly be relatable to the main contract even though he claims through or under one of the main party to the agreement. In such situations, the parties would aim at achieving the object of making their bargain successful, by execution of various agreements, like in the present case106. The New York Convention clearly postulates that there should be a defined legal relationship between the parties, whether contractual or not, in relation to the differences that may have arisen concerning the subject matter capable of settlement of arbitration. We have referred to a number of judgments of the various courts to emphasize that in given circumstances, if the ingredients above-noted exist, reference to arbitration of a signatory and even a third party is possible. Though heavy onus lies on the person seeking such reference, multiple and multi-party agreements between the parties to the arbitration agreement or persons claiming through or under such parties is neither impracticable nor impermissible.107. Next, we are to examine the issue whether the cause of action in a suit can be bifurcated and a partial reference may be made by the Court. Whatever be the answer to this question, a necessary corollary is as to whether the Court should or should not stay the proceedings in the suit?Further, this may give rise to three different situations. Firstly, while making reference of the subject matter to arbitration, whether the suit may still survive, partially or otherwise; secondly, whether the suit, still pending before the Court, should be stayed completely; and lastly, whether both the arbitration and the suit proceedings could be permitted to proceed simultaneously in accordance with law.109. In the case of Turnock (supra), the Court had stated that it was not right to cut up that litigation into two actions, one to be tried before the arbitrator and the other to be tried elsewhere, as in that case matters in respect of which the damages were claimed by the plaintiff could not be referred to arbitration because questions arising as to the construction of the agreement and provisions in the lease deed were involved and they did not fall within the power of the arbitrator in face of the arbitration agreement. In the case of Taunton-Collins (supra), the Court again expressed the view that it was undesirable that there should be two proceedings before two different tribunals, i.e., the official referee and an Arbitrator, as they may reach inconsistent findings110. This Court dealt with the provisions of the 1940 Act, in the case of Anderson Wright Ltd. v. Moran & Company [1955 SCR 862], and described the conditions to be satisfied before a stay can be granted in terms of Section 34 of the 1940 Act. The Court also held that it was within the jurisdiction of the Court to determine a question whether the plaintiff was a party to the contract containing the arbitration clause or not. Still in the case of Sumitomo Corporation (supra), this Court primarily declined the reference to arbitration for the reason that the disputes stated in the petition did not fall within the ambit of the arbitration clause contained in the agreement between the parties and also that the Joint Venture Agreement did not itself contain a specific arbitration clause. An observation was also made in paragraph 20 of the judgment that the party would mean the party to the judicial proceeding should be a party to the arbitration agreement.As far as Sumitomo Corporation (supra) is concerned, it was a case dealing with the matter where the proceedings under Section 397-398 of the Companies Act had been initiated and the Company Law Board had passed an order. Whether the appeal against such order would lie to the High Court was the principal question involved in that case. The denial of arbitration reference, as already noticed, was based upon the reasoning that disputes related to the joint venture agreement to which the parties were not signatory and the said agreement did not even contain the arbitration clause. On the other hand, it was the other agreement entered into by different parties which contained the arbitration clause. As already noticed, in paragraph 20, the Court had observed that a party to an arbitration agreement has to be a party to the judicial proceedings and then alone it will fall within the ambit of Section 2(h) of the 1996 Act. As far as the first issue is concerned, we shall shortly proceed to discuss it when we discuss the merits of this case, in light of the principles stated in this judgment. However, the observations made by the learned Bench in the case of Sumitomo Corporation (supra) do not appear to be correct. Section 2(h) only says that party means a party to an arbitration agreement. This expression falls in the Chapter dealing with definitions and would have to be construed along with the other relevant provisions of the Act. When we read Section 45 in light of Section 2(h), the interpretation given by the Court in the case of Sumitomo Corporation (supra) does not stand to the test of reasoning. Section 45 in explicit language permits the parties who are claiming through or under a main party to the arbitration agreement to seek reference to arbitration. This is so, by fiction of law, contemplated in the provision of Section 45 of the 1996 Act113. We have already discussed above that the language of Section 45 is incapable of being construed narrowly and must be given expanded meaning to achieve the twin objects of arbitration, i.e., firstly, the parties should be held to their bargain of arbitration and secondly, the legislative intent behind incorporating the New York Convention as part of Section 44 of the Act must be protected. Moreover, paragraph 20 of the judgment of Sumitomo Corporation (supra) does not state any principle of law and in any event it records no reasons for arriving at such a conclusion. In fact, that was not even directly the issue before the Court so as to operate as a binding precedent. For these reasons, respectfully but without hesitation, we are constrained to hold that the conclusion or the statement made in paragraph 20 of this judgment does not enunciate the correct law.114. An application for appointment of arbitral tribunal under Section 45 of the 1996 Act would also be governed by the provisions of Section 11(6) of the Act. This question is no more res integra and has been settled by decision of a Constitution Bench of seven Judges of this Court in the case of SBP and Co. v. Patel Engineering Ltd. and Anr. [(2005) 8 SCC 618] , wherein this Court held that power exercised by the Chief Justice is not an administrative power. It is a judicial power. It is a settled principle that the Chief Justice or his designate Judge will decide preliminary aspects which would attain finality unless otherwise directed to be decided by the arbitral tribunal. In para 39 of the judgment, the Court held as under :39. It is necessary to define what exactly the Chief Justice, approached with an application under Section 11 of the Act, is to decide at that stage. Obviously, he has to decide his own jurisdiction in the sense whether the party making the motion has approached the right High Court. He has to decide whether there is an arbitration agreement, as defined in the Act and whether the person who has made the request before him, is a party to such an agreement. It is necessary to indicate that he can also decide the question whether the claim was a dead one; or a long-barred claim that was sought to be resurrected and whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection. It may not be possible at that stage, to decide whether a live claim made, is one which comes within the purview of the arbitration clause. It will be appropriate to leave that question to be decided by the Arbitral Tribunal on taking evidence, along with the merits of the claims involved in the arbitration. The Chief Justice has to decide whether the applicant has satisfied the conditions for appointing an arbitrator under Section 11(6) of the Act. For the purpose of taking a decision on these aspects, the Chief Justice can either proceed on the basis of affidavits and the documents produced or take such evidence or get such evidence recorded, as may be necessary. We think that adoption of this procedure in the context of the Act would best serve the purpose sought to be achieved by the Act of expediting the process of arbitration, without too many approaches to the court at various stages of the proceedings before the Arbitral Tribunal.. This aspect of the arbitration law was explained by a two Judge Bench of this Court in the case of Shree Ram Mills Ltd. v. Utility Premises (P) Ltd. [(2007) 4 SCC 599] wherein, while referring to the judgment in SBP & Co. (supra) particularly the above paragraph, this Court held that the scope of order under Section 11 of the 1996 Act would take in its ambit the issue regarding territorial jurisdiction and the existence of the arbitration agreement. The Court noticed that if these issues are not decided by the Chief Justice or his designate, there would be no question of proceeding with the arbitration. It held as under:27…Thus, the Chief Justice has to decide about the territorial jurisdiction and also whether there exists an arbitration agreement between the parties and whether such party has approached the court for appointment of the arbitrator. The Chief Justice has to examine as to whether the claim is a dead one or in the sense whether the parties have already concluded the transaction and have recorded satisfaction of their mutual rights and obligations or whether the parties concerned have recorded their satisfaction regarding the financial claims. In examining this if the parties have recorded their satisfaction regarding the financial claims, there will be no question of any issue remaining. It is in this sense that the Chief Justice has to examine as to whether there remains anything to be decided between the parties in respect of the agreement and whether the parties are still at issue on any such matter. If the Chief Justice does not, in the strict sense, decide the issue, in that event it is for him to locate such issue and record his satisfaction that such issue exists between the parties. It is only in that sense that the finding on a live issue is given. Even at the cost of repetition we must state that it is only for the purpose of finding out whether the arbitral procedure has to be started that the Chief Justice has to record satisfaction that there remains a live issue in between the parties. The same thing is about the limitation which is always a mixed question of law and fact. The Chief Justice only has to record his satisfaction that prima facie the issue has not become dead by the lapse of time or that any party to the agreement has not slept over its rights beyond the time permitted by law to agitate those issues covered by the agreement. It is for this reason that it was pointed out in the above para that it would be appropriate sometimes to leave the question regarding the live claim to be decided by the Arbitral Tribunal. All that he has to do is to record his satisfaction that the parties have not closed their rights and the matter has not been barred by limitation. Thus, where the Chief Justice comes to a finding that there exists a live issue, then naturally this finding would include a finding that the respective claims of the parties have not become barred by limitation. Thus, the Bench while explaining the judgment of this Court in SBP & Co. (supra) has stated that the Chief Justice may not decide certain issues finally and upon recording satisfaction that prima facie the issue has not become dead even leave it for the arbitral tribunal to decide117. In National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd. [(2009) 1 SCC 267] , another equi-bench of this Court after discussing various judgments of this Court, explained SBP & Co. (supra) in relation to scope of powers of the Chief Justice and/or his designate while exercising jurisdiction under Section 11(6), held as follows :22. Where the intervention of the court is sought for appointment of an Arbitral Tribunal under Section 11, the duty of the Chief Justice or his designate is defined in SBP & Co. This Court identified and segregated the preliminary issues that may arise for consideration in an application under Section 11 of the Act into three categories, that is, (i) issues which the Chief Justice or his designate is bound to decide; (ii) issues which he can also decide, that is, issues which he may choose to decide; and (iii) issues which should be left to the Arbitral Tribunal to decide22.1. The issues (first category) which the Chief Justice/his designate will have to decide are:(a) Whether the party making the application has approached the appropriate High Court(b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement22.2. The issues (second category) which the Chief Justice/his designate may choose to decide (or leave them to the decision of the Arbitral Tribunal) are:(a) Whether the claim is a dead (long-barred) claim or a live claim(b) Whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection22.3. The issues (third category) which the Chief Justice/his designate should leave exclusively to the Arbitral Tribunal are:(i) Whether a claim made falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration)(ii) Merits or any claim involved in the arbitration.. We may notice that at first blush, the judgment in the case of Shree Ram Mills (supra) is at some variance with the judgment in the case of National Insurance Co. Ltd. (supra) but when examined in depth, keeping in view the judgment in the case of SBP & Co. (supra) and provisions of Section 11(6) of the 1996 Act, both these judgments are found to be free from contradiction and capable of being read in harmony in order to bring them in line with the statutory law declared by the larger Bench in SBP & Co. (supra). The expressions Chief Justice does not in strict sense decide the issue or is prima facie satisfied, will have to be construed in the facts and circumstances of a given case. Where the Chief Justice or his designate actually decides the issue, then it can no longer be prima facie, but would be a decision binding in law. On such an issue, the Arbitral Tribunal will have no jurisdiction to re-determine the issue. In the case of Shree Ram Mills (supra), the Court held that the Chief Justice could record a finding where the issue between the parties was still alive or was dead by lapse of time. Where it prima facie found the issue to be alive, the Court could leave the question of limitation and also open to be decided by the arbitral tribunal119. The above expressions are mere observations of the Court and do not fit into the contours of the principle of ratio decidendi of the judgment. The issues in regard to validity or existence of the arbitration agreement, the application not satisfying the ingredients of Section 11(6) of the 1996 Act and claims being barred by time etc. are the matters which can be adjudicated by the Chief Justice or his designate. Once the parties are heard on such issues and the matter is determined in accordance with law, then such a finding can only be disturbed by the Court of competent jurisdiction and cannot be reopened before the arbitral tribunal. In SBP & Co. (supra), the Seven Judge Bench clearly stated, the finality given to the order of the Chief Justice on the matters within his competence under Section 11 of the Act are incapable of being reopened before the arbitral tribunal. Certainly the Bench dealing with the case of Shree Ram Mills (supra) did not intend to lay down any law in direct conflict with the Seven Judge Bench judgment in SBP & Co. (supra). In the reasoning given in Shree Ram Mills case, the Court has clearly stated that matters of existence and binding nature of arbitration agreement and other matters mentioned therein are to be decided by the Chief Justice or his designate and the same is in line with the judgment of this Court in the case of SBP & Co. (supra). It will neither be permissible nor in consonance with the doctrine of precedent that passing observations by the Bench should be construed as the law while completely ignoring the ratio decidendi of that very judgment. We may also notice that the judgment in Shree Ram Mills (supra) was not brought to the notice of the Bench which pronounced the judgment in the case of National Insurance Co. Ltd. (supra)120. As far as the classification carved out by the Court in the case of National Insurance Co. Ltd. (supra) are concerned, it draws its origin from paragraph 39 of the judgment in the case of SBP & Co. (supra) wherein the Constitution Bench of the Court had observedit may not be possible at that stage to decide whether a live claim made is one which comes within the purview of the arbitration clause. It will be more appropriate to leave the seriously disputed questions to be decided by the Arbitral Tribunal on taking evidence along with the merits of the claim, subject matter of the arbitration.. The foundation for category (2) in para 22 of the National Insurance Company Ltd. (supra) is directly relatable to para 39 of the judgment of this court in SBP & Co. (supra) and matters falling in that category are those which, depending on the facts and circumstances of a given case, could be decided by the Chief Justice or his designate or even may be left for the decision of the arbitrator, provided there exists a binding arbitration agreement between the parties. Similar is the approach of the Bench in the case of Shree Ram Mills (supra) and that is why in paragraph 27 thereof, the Court has recorded that it would be appropriate sometimes to leave the question regarding the claim being alive to be decided by the arbitral tribunal and the Chief Justice may record his satisfaction that parties have not closed their rights and the matter has not been barred by limitation122. As already noticed, the observations made by the Court have to be construed and read to support the ratio decidendi of the judgment. Observations in a judgment which are stared upon by the judgment of a larger bench would not constitute valid precedent as it will be hit by the doctrine of staire decisis. In the case of the Shri Ram Mills (supra) surely the Bench did not intend to lay down the law or state a proposition which is directly in conflict with the judgment of the Constitution Bench of this Court in the case of SBP & Co. (supra)123. We have no reason to differ with the classification carved out in the case of National Insurance Co. (supra) as it is very much in conformity with the judgment of the Constitution Bench in the case of SBP (supra). | 0 | 33,721 | 11,588 | ### Instruction:
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International Distributor Agreement as this agreement itself was Appendix II to the Principal Agreement. This Court in the case of M.R. Engineers and Contractors Pvt. Ltd. v. Som Datt Builders Ltd. [(2009) 7 SCC 696] has stated that firstly the subject of reference be enacted by mutual intention, secondly a mere reference to a document may not be sufficient and the reference should be sufficient to bring out the terms and conditions of the referred document and also that the arbitration clause should be capable of application in respect of a dispute under the contract and not repugnant to any term thereof. All these three conditions are satisfied in the present case. 160. The terms and conditions of the International Distribution Agreement were an integral part of the Principal Agreement as Appendix II and the Principal Agreement had an arbitration clause which was wide enough to cover disputes in all the ancillary agreements. It is not necessary for us to examine the choice of forum or legal enforceability of legal system in the present case, as we find no repugnancy even where the main contract is governed by law of some other country and the arbitration clause by Indian law. They both could be invoked, neither party having invoked the former will be no bar for invocation of the latter in view of arbitration clause 30 of the mother agreement. 161. Reliance was also placed on the judgment of this Court in the case of Deutsche Post Bank Home Finance Ltd. v. Taduri Sridhar [AIR 2011 SC 1899 ] where the Court had declined reference of multiple and multi party agreement. That case is of no help to the appellant before us. In that case, there were four parties, the seller of the land, the builder, purchaser of the flat and the bank. The bank had signed an agreement with the purchaser of the flat to finance the flat, but it referred to other agreement stating that it would provide funds directly to the builder. There was an agreement between the builder and the owner of the land and the purchaser of the land to sell the undivided share and that contained an arbitration clause. The question before the Court was whether while referring the disputes to the arbitration, the disputes between the bank on the one hand, and the purchaser of the flat on the other could be referred to arbitration. The Court, in reference to Section 8 of the 1996 Act, held that the bank was a non-party to the arbitration agreement, therefore, neither the reference was permissible nor they could be impleaded at a subsequent stage. This judgment on facts has no application. The distinction between Section 8 and Section 45 has elaborately been dealt with by us above and in view of that, we have no hesitation in holding that this judgment, on facts and law, is not applicable to the present case. 162. Thus, in view of the above, we hold that the disputes referred to and arising from the multi-party agreements are capable of being referred to arbitral tribunal in accordance with the agreement between the parties. 163. Another argument advanced with some vehemence on behalf of the appellant was that respondent Nos.3 and 4 were not party to any of the agreements entered into between the parties and their cause of action is totally different and distinct, and their rights were controlled by the agreement of distribution executed by respondent Nos.1 and 2 in their favour for distribution of products of gas and electro- chlorination. It was contended that there cannot be splitting of parties, splitting of cause of action and remedy by the Court. 164. On the other hand, it was contended on behalf of the respondent No.1 that it is permissible to split cause of action, parties and disputes. The mater referable to arbitration could be segregated from the civil action. The court could pass appropriate orders referring the disputes covered under the arbitration agreement between the signatory party to arbitration and proceed with the claim of respondent Nos. 3 and 4 in accordance with law. 165. As far as this question of law is concerned, we have already answered the same. On facts, there is no occasion for us to deliberate on this issue, because respondent Nos. 3 and 4 had already consented for arbitration. In light of that fact, we do not wish to decide this question on the facts of the present case. 166. Having dealt with all the relevant issues in law, now we would provide answer to the questions framed by us in the beginning of the judgment as follows : Answer 167. Section 45 is a provision falling under Chapter I of Part II of the 1996 Act which is a self-contained Code. The expression person claiming through or under would mean and take within its ambit multiple and multi-party agreements, though in exceptional case. Even non-signatory parties to some of the agreements can pray and be referred to arbitration provided they satisfy the pre-requisites under Sections 44 and 45 read with Schedule I. Reference of non-signatory parties is neither unknown to arbitration jurisprudence nor is it impermissible. 168. In the facts of a given case, the Court is always vested with the power to delete the name of the parties who are neither necessary nor proper to the proceedings before the Court. In the cases of group companies or where various agreements constitute a composite transaction like mother agreement and all other agreements being ancillary to and for effective and complete implementation of the Mother Agreement, the court may have to make reference to arbitration even of the disputes existing between signatory or even non-signatory parties. However, the discretion of the Court has to be exercised in exceptional, limiting, befitting and cases of necessity and very cautiously. 169. Having answered these questions, we do not see any reason to interfere with the judgment of the Division Bench of the Bombay High Court under appeal.
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the Chief Justice/his designate should leave exclusively to the Arbitral Tribunal are:(i) Whether a claim made falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration)(ii) Merits or any claim involved in the arbitration.. We may notice that at first blush, the judgment in the case of Shree Ram Mills (supra) is at some variance with the judgment in the case of National Insurance Co. Ltd. (supra) but when examined in depth, keeping in view the judgment in the case of SBP & Co. (supra) and provisions of Section 11(6) of the 1996 Act, both these judgments are found to be free from contradiction and capable of being read in harmony in order to bring them in line with the statutory law declared by the larger Bench in SBP & Co. (supra). The expressions Chief Justice does not in strict sense decide the issue or is prima facie satisfied, will have to be construed in the facts and circumstances of a given case. Where the Chief Justice or his designate actually decides the issue, then it can no longer be prima facie, but would be a decision binding in law. On such an issue, the Arbitral Tribunal will have no jurisdiction to re-determine the issue. In the case of Shree Ram Mills (supra), the Court held that the Chief Justice could record a finding where the issue between the parties was still alive or was dead by lapse of time. Where it prima facie found the issue to be alive, the Court could leave the question of limitation and also open to be decided by the arbitral tribunal119. The above expressions are mere observations of the Court and do not fit into the contours of the principle of ratio decidendi of the judgment. The issues in regard to validity or existence of the arbitration agreement, the application not satisfying the ingredients of Section 11(6) of the 1996 Act and claims being barred by time etc. are the matters which can be adjudicated by the Chief Justice or his designate. Once the parties are heard on such issues and the matter is determined in accordance with law, then such a finding can only be disturbed by the Court of competent jurisdiction and cannot be reopened before the arbitral tribunal. In SBP & Co. (supra), the Seven Judge Bench clearly stated, the finality given to the order of the Chief Justice on the matters within his competence under Section 11 of the Act are incapable of being reopened before the arbitral tribunal. Certainly the Bench dealing with the case of Shree Ram Mills (supra) did not intend to lay down any law in direct conflict with the Seven Judge Bench judgment in SBP & Co. (supra). In the reasoning given in Shree Ram Mills case, the Court has clearly stated that matters of existence and binding nature of arbitration agreement and other matters mentioned therein are to be decided by the Chief Justice or his designate and the same is in line with the judgment of this Court in the case of SBP & Co. (supra). It will neither be permissible nor in consonance with the doctrine of precedent that passing observations by the Bench should be construed as the law while completely ignoring the ratio decidendi of that very judgment. We may also notice that the judgment in Shree Ram Mills (supra) was not brought to the notice of the Bench which pronounced the judgment in the case of National Insurance Co. Ltd. (supra)120. As far as the classification carved out by the Court in the case of National Insurance Co. Ltd. (supra) are concerned, it draws its origin from paragraph 39 of the judgment in the case of SBP & Co. (supra) wherein the Constitution Bench of the Court had observedit may not be possible at that stage to decide whether a live claim made is one which comes within the purview of the arbitration clause. It will be more appropriate to leave the seriously disputed questions to be decided by the Arbitral Tribunal on taking evidence along with the merits of the claim, subject matter of the arbitration.. The foundation for category (2) in para 22 of the National Insurance Company Ltd. (supra) is directly relatable to para 39 of the judgment of this court in SBP & Co. (supra) and matters falling in that category are those which, depending on the facts and circumstances of a given case, could be decided by the Chief Justice or his designate or even may be left for the decision of the arbitrator, provided there exists a binding arbitration agreement between the parties. Similar is the approach of the Bench in the case of Shree Ram Mills (supra) and that is why in paragraph 27 thereof, the Court has recorded that it would be appropriate sometimes to leave the question regarding the claim being alive to be decided by the arbitral tribunal and the Chief Justice may record his satisfaction that parties have not closed their rights and the matter has not been barred by limitation122. As already noticed, the observations made by the Court have to be construed and read to support the ratio decidendi of the judgment. Observations in a judgment which are stared upon by the judgment of a larger bench would not constitute valid precedent as it will be hit by the doctrine of staire decisis. In the case of the Shri Ram Mills (supra) surely the Bench did not intend to lay down the law or state a proposition which is directly in conflict with the judgment of the Constitution Bench of this Court in the case of SBP & Co. (supra)123. We have no reason to differ with the classification carved out in the case of National Insurance Co. (supra) as it is very much in conformity with the judgment of the Constitution Bench in the case of SBP (supra).
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Honda Siel Cars India Ltd Vs. Commissioner Of Income Tax, Ghaziabad | purpose of Agreement between the two companies was to set up a joint venture company with aim and objective to establish a unit for manufacture of automobiles and part thereof. As a result of this agreement, assessee company was incorporated which entered into TCA in question for technical collaboration. This technical collaboration included not only transfer of technical information, but, complete assistance, actual, factual and on the spot, for establishment of plant, machinery etc. so as to bring in existence manufacturing unit for the products. Thus, a new business was set up with the technical know-how provided by HMCL, Japan and lumpsum royalty, though in five instalments, was paid therefor.23. No doubt, this technical know-how is for the limited period i.e. for the tenure of the agreement. However, it is important to note that in case of termination of the Agreement, joint venture itself would come to an end and there may not be any further continuation of manufacture of product with technical know-how of foreign collaborator. The High Court has, thus, rightly observed that virtually life of manufacture of product in the plant and machinery, establishes with assistance of foreign company, is co-extensive with the agreement. The Agreement is framed in a manner so as to given a colour of licence for a limited period having no enduring nature but when a close scrutiny into the said Agreement is undertaken, it shows otherwise. It is significant to note in this behalf that the Agreement provides that in the event of expiration or otherwise termination, whatsoever, licensee, i.e., joint venture company/ Assessee shall discontinue manufacture, sale and other disposition of products, parts and residuary products. All these things then shall be at the option of licensor. In other words, licensee in such contingency would hand over unsold product and parts to licensor for sale by him. In case licensor does not exercise such an option and the product is allowed to be sold by licensee, it would continue to pay royalty as per rates agreed under the agreement. Clauses 19 and 21, in our view, make the Agreement in question, i.e., establishment of plant, machinery and manufacture of product with the help of technical know-how, co-extensive, in continuance of Agreement. The Agreement also has a clause of renewal which, in our view, in totality of terms and conditions, will make the unit continue so long as manufacture of product in plant and machinery, established with aid and assistance of foreign company, will continue. Since, it is found that the Agreement in question was crucial for setting up of the plant project in question for manufacturing of the goods, the expenditure in the form of royalty paid would be in the nature of capital expenditure and not revenue expenditure. The Tribunal is conclusion that it is only the other three memoranda which were necessary for setting up the manufacturing facilities and payment thereunder would qualify as capital expenditure, and not the payment of technical fees/royalty on the ground that this Agreement was not in connection with the setting up of a plant or manufacturing facilities, is not correct. It would be interesting to note that even the Tribunal had nurtured doubt on the nature of this expenditure as TCA was signed simultaneously with the other memoranda to facilitate setting up of a new factory and not improvising the earlier set up. This doubt has expressed by the ITAT itself in the following words: ""Our doubt was why the payment, at least of the lump sum technical know-how fees, cannot be considered as being connected to the initial starting up of the business and hence not allowable since the know-how was bring obtained for the first time and was crucial to the setting up of the business of the assessee which undisputedly was to manufacture Honda cars in India. It may be recalled that this was also the view taken by the Assessing Officer. Further, the assessee was not already in the manufacture of cars and was commencing such an activity for the first time. It was not a case of a business already in existence. The payment was an "once for all" payment, though staggered over a period of years." 24. However, discussion that follows thereafter suggests that the ITAT was satisfied with the explanation of the assessee that the High Courts have always applied the test as to whether the expenditure, whether incurred at the time of setting up of business or later, was for acquisition of the technical know-how or was only for the use of know-how for a particular period. ITAT felt satisfied with the said explanation and held that the expenditure was revenue in nature. It is at this stage that the Tribunal erred in not approaching the issue in right perspective.25. Coming to the judgment of the Delhi High Court in the case of this very assessee, it would be noticed that in that case, technical know-how was obtained for improvising scooter segment, which unit was already in existence. On the contrary, in present case, the TCA was for setting up of new plant for the first time to manufacture cars. The Delhi High Court specifically noted this fact in para 14 of the judgment. While analysing the agreement in that case which was for providing technical know-how in relation to the product i.e. two wheelers and three wheelers and the purpose was to introduce `new models of the said product developed by the Japanese Company, the High Court noted that the agreement specifically recorded that the respondent assessee was already engaged in the business of manufacturing, assembling, selling and otherwise dealing with two/three wheelers and their parts as a joint venture. It referred to the earlier collaboration agreement dated January 24, 1984 and the subsequent amendment thereto which conferred and had granted to the respondent assessee a right and licence to manufacture, assemble, sell, distribute, repair and service two/three wheelers. The aforesaid distinction between the two Agreements has made all the difference in the results. | 0[ds]13. We have considered the respective submissions of counsel for the parties on either side. First thing which is discernible in the impugned judgment of the High Court is that the High Court has proceeded entirely on the basis that technicalwas used for setting up of a plant for manufacture of automobiles. Judgment of the ITAT, on the other hand, reveals that it had arrived at a contrary conclusion.14. Record reveals that simultaneously with the signing of TCA, certain other agreements were also entered into between HMCL, Japan and the assessee on May 21, 1996.When we apply the aforesaid parameters to the facts of the present case, the conclusion drawn by the High Court that expenditure incurred was of capital nature, appears to be unblemished. Admittedly, there was no existing business and, thus, question of improvising the existing technicalby borrowing the technicalof the HMCL, Japan did not arise. The assessee was not in existence at all and it was the result of joint venture of HMCL, Japan and M/s. HSCIL, India. The very purpose of Agreement between the two companies was to set up a joint venture company with aim and objective to establish a unit for manufacture of automobiles and part thereof. As a result of this agreement, assessee company was incorporated which entered into TCA in question for technical collaboration. This technical collaboration included not only transfer of technical information, but, complete assistance, actual, factual and on the spot, for establishment of plant, machinery etc. so as to bring in existence manufacturing unit for the products. Thus, a new business was set up with the technicalprovided by HMCL, Japan and lumpsum royalty, though in five instalments, was paid therefor.23. No doubt, this technicalis for the limited period i.e. for the tenure of the agreement. However, it is important to note that in case of termination of the Agreement, joint venture itself would come to an end and there may not be any further continuation of manufacture of product with technicalof foreign collaborator. The High Court has, thus, rightly observed that virtually life of manufacture of product in the plant and machinery, establishes with assistance of foreign company, iswith the agreement. The Agreement is framed in a manner so as to given a colour of licence for a limited period having no enduring nature but when a close scrutiny into the said Agreement is undertaken, it shows otherwise. It is significant to note in this behalf that the Agreement provides that in the event of expiration or otherwise termination, whatsoever, licensee, i.e., joint venture company/ Assessee shall discontinue manufacture, sale and other disposition of products, parts and residuary products. All these things then shall be at the option of licensor. In other words, licensee in such contingency would hand over unsold product and parts to licensor for sale by him. In case licensor does not exercise such an option and the product is allowed to be sold by licensee, it would continue to pay royalty as per rates agreed under the agreement. Clauses 19 and 21, in our view, make the Agreement in question, i.e., establishment of plant, machinery and manufacture of product with the help of technical, in continuance of Agreement. The Agreement also has a clause of renewal which, in our view, in totality of terms and conditions, will make the unit continue so long as manufacture of product in plant and machinery, established with aid and assistance of foreign company, will continue. Since, it is found that the Agreement in question was crucial for setting up of the plant project in question for manufacturing of the goods, the expenditure in the form of royalty paid would be in the nature of capital expenditure and not revenue expenditure. The Tribunal is conclusion that it is only the other three memoranda which were necessary for setting up the manufacturing facilities and payment thereunder would qualify as capital expenditure, and not the payment of technical fees/royalty on the ground that this Agreement was not in connection with the setting up of a plant or manufacturing facilities, is not correct. It would be interesting to note that even the Tribunal had nurtured doubt on the nature of this expenditure as TCA was signed simultaneously with the other memoranda to facilitate setting up of a new factory and not improvising the earlier set up. This doubt has expressed by the ITAT itself in the followingdoubt was why the payment, at least of the lump sum technicalfees, cannot be considered as being connected to the initial starting up of the business and hence not allowable since thewas bring obtained for the first time and was crucial to the setting up of the business of the assessee which undisputedly was to manufacture Honda cars in India. It may be recalled that this was also the view taken by the Assessing Officer. Further, the assessee was not already in the manufacture of cars and was commencing such an activity for the first time. It was not a case of a business already in existence. The payment was an "once for all" payment, though staggered over a period of years.However, discussion that follows thereafter suggests that the ITAT was satisfied with the explanation of the assessee that the High Courts have always applied the test as to whether the expenditure, whether incurred at the time of setting up of business or later, was for acquisition of the technicalor was only for the use offor a particular period. ITAT felt satisfied with the said explanation and held that the expenditure was revenue in nature. It is at this stage that the Tribunal erred in not approaching the issue in right perspective.25. Coming to the judgment of the Delhi High Court in the case of this very assessee, it would be noticed that in that case, technicalwas obtained for improvising scooter segment, which unit was already in existence. On the contrary, in present case, the TCA was for setting up of new plant for the first time to manufacture cars. The Delhi High Court specifically noted this fact in para 14 of the judgment. While analysing the agreement in that case which was for providing technicalin relation to the product i.e. two wheelers and three wheelers and the purpose was to introduce `new models of the said product developed by the Japanese Company, the High Court noted that the agreement specifically recorded that the respondent assessee was already engaged in the business of manufacturing, assembling, selling and otherwise dealing with two/three wheelers and their parts as a joint venture. It referred to the earlier collaboration agreement dated January 24,he subsequent amendment thereto which conferred and had granted to the respondent assessee a right and licence to manufacture, assemble, sell, distribute, repair and service two/three wheelers. The aforesaid distinction between the two Agreements has made all the difference in the results. | 0 | 7,786 | 1,268 | ### 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:
purpose of Agreement between the two companies was to set up a joint venture company with aim and objective to establish a unit for manufacture of automobiles and part thereof. As a result of this agreement, assessee company was incorporated which entered into TCA in question for technical collaboration. This technical collaboration included not only transfer of technical information, but, complete assistance, actual, factual and on the spot, for establishment of plant, machinery etc. so as to bring in existence manufacturing unit for the products. Thus, a new business was set up with the technical know-how provided by HMCL, Japan and lumpsum royalty, though in five instalments, was paid therefor.23. No doubt, this technical know-how is for the limited period i.e. for the tenure of the agreement. However, it is important to note that in case of termination of the Agreement, joint venture itself would come to an end and there may not be any further continuation of manufacture of product with technical know-how of foreign collaborator. The High Court has, thus, rightly observed that virtually life of manufacture of product in the plant and machinery, establishes with assistance of foreign company, is co-extensive with the agreement. The Agreement is framed in a manner so as to given a colour of licence for a limited period having no enduring nature but when a close scrutiny into the said Agreement is undertaken, it shows otherwise. It is significant to note in this behalf that the Agreement provides that in the event of expiration or otherwise termination, whatsoever, licensee, i.e., joint venture company/ Assessee shall discontinue manufacture, sale and other disposition of products, parts and residuary products. All these things then shall be at the option of licensor. In other words, licensee in such contingency would hand over unsold product and parts to licensor for sale by him. In case licensor does not exercise such an option and the product is allowed to be sold by licensee, it would continue to pay royalty as per rates agreed under the agreement. Clauses 19 and 21, in our view, make the Agreement in question, i.e., establishment of plant, machinery and manufacture of product with the help of technical know-how, co-extensive, in continuance of Agreement. The Agreement also has a clause of renewal which, in our view, in totality of terms and conditions, will make the unit continue so long as manufacture of product in plant and machinery, established with aid and assistance of foreign company, will continue. Since, it is found that the Agreement in question was crucial for setting up of the plant project in question for manufacturing of the goods, the expenditure in the form of royalty paid would be in the nature of capital expenditure and not revenue expenditure. The Tribunal is conclusion that it is only the other three memoranda which were necessary for setting up the manufacturing facilities and payment thereunder would qualify as capital expenditure, and not the payment of technical fees/royalty on the ground that this Agreement was not in connection with the setting up of a plant or manufacturing facilities, is not correct. It would be interesting to note that even the Tribunal had nurtured doubt on the nature of this expenditure as TCA was signed simultaneously with the other memoranda to facilitate setting up of a new factory and not improvising the earlier set up. This doubt has expressed by the ITAT itself in the following words: ""Our doubt was why the payment, at least of the lump sum technical know-how fees, cannot be considered as being connected to the initial starting up of the business and hence not allowable since the know-how was bring obtained for the first time and was crucial to the setting up of the business of the assessee which undisputedly was to manufacture Honda cars in India. It may be recalled that this was also the view taken by the Assessing Officer. Further, the assessee was not already in the manufacture of cars and was commencing such an activity for the first time. It was not a case of a business already in existence. The payment was an "once for all" payment, though staggered over a period of years." 24. However, discussion that follows thereafter suggests that the ITAT was satisfied with the explanation of the assessee that the High Courts have always applied the test as to whether the expenditure, whether incurred at the time of setting up of business or later, was for acquisition of the technical know-how or was only for the use of know-how for a particular period. ITAT felt satisfied with the said explanation and held that the expenditure was revenue in nature. It is at this stage that the Tribunal erred in not approaching the issue in right perspective.25. Coming to the judgment of the Delhi High Court in the case of this very assessee, it would be noticed that in that case, technical know-how was obtained for improvising scooter segment, which unit was already in existence. On the contrary, in present case, the TCA was for setting up of new plant for the first time to manufacture cars. The Delhi High Court specifically noted this fact in para 14 of the judgment. While analysing the agreement in that case which was for providing technical know-how in relation to the product i.e. two wheelers and three wheelers and the purpose was to introduce `new models of the said product developed by the Japanese Company, the High Court noted that the agreement specifically recorded that the respondent assessee was already engaged in the business of manufacturing, assembling, selling and otherwise dealing with two/three wheelers and their parts as a joint venture. It referred to the earlier collaboration agreement dated January 24, 1984 and the subsequent amendment thereto which conferred and had granted to the respondent assessee a right and licence to manufacture, assemble, sell, distribute, repair and service two/three wheelers. The aforesaid distinction between the two Agreements has made all the difference in the results.
### Response:
0
### Explanation:
HMCL, Japan did not arise. The assessee was not in existence at all and it was the result of joint venture of HMCL, Japan and M/s. HSCIL, India. The very purpose of Agreement between the two companies was to set up a joint venture company with aim and objective to establish a unit for manufacture of automobiles and part thereof. As a result of this agreement, assessee company was incorporated which entered into TCA in question for technical collaboration. This technical collaboration included not only transfer of technical information, but, complete assistance, actual, factual and on the spot, for establishment of plant, machinery etc. so as to bring in existence manufacturing unit for the products. Thus, a new business was set up with the technicalprovided by HMCL, Japan and lumpsum royalty, though in five instalments, was paid therefor.23. No doubt, this technicalis for the limited period i.e. for the tenure of the agreement. However, it is important to note that in case of termination of the Agreement, joint venture itself would come to an end and there may not be any further continuation of manufacture of product with technicalof foreign collaborator. The High Court has, thus, rightly observed that virtually life of manufacture of product in the plant and machinery, establishes with assistance of foreign company, iswith the agreement. The Agreement is framed in a manner so as to given a colour of licence for a limited period having no enduring nature but when a close scrutiny into the said Agreement is undertaken, it shows otherwise. It is significant to note in this behalf that the Agreement provides that in the event of expiration or otherwise termination, whatsoever, licensee, i.e., joint venture company/ Assessee shall discontinue manufacture, sale and other disposition of products, parts and residuary products. All these things then shall be at the option of licensor. In other words, licensee in such contingency would hand over unsold product and parts to licensor for sale by him. In case licensor does not exercise such an option and the product is allowed to be sold by licensee, it would continue to pay royalty as per rates agreed under the agreement. Clauses 19 and 21, in our view, make the Agreement in question, i.e., establishment of plant, machinery and manufacture of product with the help of technical, in continuance of Agreement. The Agreement also has a clause of renewal which, in our view, in totality of terms and conditions, will make the unit continue so long as manufacture of product in plant and machinery, established with aid and assistance of foreign company, will continue. Since, it is found that the Agreement in question was crucial for setting up of the plant project in question for manufacturing of the goods, the expenditure in the form of royalty paid would be in the nature of capital expenditure and not revenue expenditure. The Tribunal is conclusion that it is only the other three memoranda which were necessary for setting up the manufacturing facilities and payment thereunder would qualify as capital expenditure, and not the payment of technical fees/royalty on the ground that this Agreement was not in connection with the setting up of a plant or manufacturing facilities, is not correct. It would be interesting to note that even the Tribunal had nurtured doubt on the nature of this expenditure as TCA was signed simultaneously with the other memoranda to facilitate setting up of a new factory and not improvising the earlier set up. This doubt has expressed by the ITAT itself in the followingdoubt was why the payment, at least of the lump sum technicalfees, cannot be considered as being connected to the initial starting up of the business and hence not allowable since thewas bring obtained for the first time and was crucial to the setting up of the business of the assessee which undisputedly was to manufacture Honda cars in India. It may be recalled that this was also the view taken by the Assessing Officer. Further, the assessee was not already in the manufacture of cars and was commencing such an activity for the first time. It was not a case of a business already in existence. The payment was an "once for all" payment, though staggered over a period of years.However, discussion that follows thereafter suggests that the ITAT was satisfied with the explanation of the assessee that the High Courts have always applied the test as to whether the expenditure, whether incurred at the time of setting up of business or later, was for acquisition of the technicalor was only for the use offor a particular period. ITAT felt satisfied with the said explanation and held that the expenditure was revenue in nature. It is at this stage that the Tribunal erred in not approaching the issue in right perspective.25. Coming to the judgment of the Delhi High Court in the case of this very assessee, it would be noticed that in that case, technicalwas obtained for improvising scooter segment, which unit was already in existence. On the contrary, in present case, the TCA was for setting up of new plant for the first time to manufacture cars. The Delhi High Court specifically noted this fact in para 14 of the judgment. While analysing the agreement in that case which was for providing technicalin relation to the product i.e. two wheelers and three wheelers and the purpose was to introduce `new models of the said product developed by the Japanese Company, the High Court noted that the agreement specifically recorded that the respondent assessee was already engaged in the business of manufacturing, assembling, selling and otherwise dealing with two/three wheelers and their parts as a joint venture. It referred to the earlier collaboration agreement dated January 24,he subsequent amendment thereto which conferred and had granted to the respondent assessee a right and licence to manufacture, assemble, sell, distribute, repair and service two/three wheelers. The aforesaid distinction between the two Agreements has made all the difference in the results.
|
Soumitra Kumar Sen Vs. Shyamal Kumar Sen & Others | be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that respondent no. 1/plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and respondent no. 2) who are entitled to manage the affairs of M/s. Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defense in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order VII Rule 11, CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff/respondent no. 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defense projected in the written statement cannot be looked into while deciding application under Order VII Rule 11, CPC.10. Therefore, insofar as trial court dismissing the said application of the appellant, which is upheld by the High Court, cannot be faulted with. 11. We may usefully refer to the judgment of this Court in Kamala & Ors. v. K.T. Eshwara Sa & Ors., (2008) 12 SCC 661. That was a case wherein the trial judge allowed an application for rejection of the plaint in a suit for partition of family properties and the same was affirmed by the High Court as well. An appeal against the order of the High Court was filed before this Court. While examining the scope, ambit and exercise of power under Order VII Rule 11 of CPC, this Court held as under: "Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.It was further observed:For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.It is one thing to say that the averments made in the plaint on their face disclose no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law." 12. Before we part with, it is necessary to make certain comments. The appellant has mentioned about the earlier two cases which were filed by respondent no. 1 and wherein he failed. These are judicial records. The appellant can easily demonstrate the correctness of his averments by filing certified copies of the pleadings in the earlier two suits as well as copies of the judgments passed by the courts in those proceedings. In fact, copies of the orders passed in judgement and decree dated March 31, 1997 passed by the Civil Judge (Junior Division), copy of the judgment dated March 31, 1998 passed by the Civil Judge (Senior Division ) upholding the decree passed by the Civil Judge (Junior Division) as well as copy of the judgment and decree dated July 31, 2014 passed by Civil Judge, Junior Division in Suit No. 268 of 2008 are placed on record by the appellant. While deciding the first suit, the trial court gave a categorical finding that as per MoU signed between the parties, respondent no. 1 had accepted a sum of Rs. 2,00,000/- and, therefore, the said suit was barred by principles of estoppel, waiver and acquiescence. In a case like this, though recourse to Order VII Rule 11 CPC by the appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the appellant is ultimately found to be correct in his submissions. | 0[ds]8. The approach of the courts below, in the given facts, appears to be correct.In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that respondent no. 1/plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and respondent no. 2) who are entitled to manage the affairs of M/s. Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defense in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order VII Rule 11, CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff/respondent no. 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defense projected in the written statement cannot be looked into while deciding application under Order VII Rule 11, CPC.10. Therefore, insofar as trial court dismissing the said application of the appellant, which is upheld by the High Court, cannot be faulted with. | 0 | 3,684 | 359 | ### 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:
be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that respondent no. 1/plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and respondent no. 2) who are entitled to manage the affairs of M/s. Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defense in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order VII Rule 11, CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff/respondent no. 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defense projected in the written statement cannot be looked into while deciding application under Order VII Rule 11, CPC.10. Therefore, insofar as trial court dismissing the said application of the appellant, which is upheld by the High Court, cannot be faulted with. 11. We may usefully refer to the judgment of this Court in Kamala & Ors. v. K.T. Eshwara Sa & Ors., (2008) 12 SCC 661. That was a case wherein the trial judge allowed an application for rejection of the plaint in a suit for partition of family properties and the same was affirmed by the High Court as well. An appeal against the order of the High Court was filed before this Court. While examining the scope, ambit and exercise of power under Order VII Rule 11 of CPC, this Court held as under: "Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.It was further observed:For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.It is one thing to say that the averments made in the plaint on their face disclose no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law." 12. Before we part with, it is necessary to make certain comments. The appellant has mentioned about the earlier two cases which were filed by respondent no. 1 and wherein he failed. These are judicial records. The appellant can easily demonstrate the correctness of his averments by filing certified copies of the pleadings in the earlier two suits as well as copies of the judgments passed by the courts in those proceedings. In fact, copies of the orders passed in judgement and decree dated March 31, 1997 passed by the Civil Judge (Junior Division), copy of the judgment dated March 31, 1998 passed by the Civil Judge (Senior Division ) upholding the decree passed by the Civil Judge (Junior Division) as well as copy of the judgment and decree dated July 31, 2014 passed by Civil Judge, Junior Division in Suit No. 268 of 2008 are placed on record by the appellant. While deciding the first suit, the trial court gave a categorical finding that as per MoU signed between the parties, respondent no. 1 had accepted a sum of Rs. 2,00,000/- and, therefore, the said suit was barred by principles of estoppel, waiver and acquiescence. In a case like this, though recourse to Order VII Rule 11 CPC by the appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the appellant is ultimately found to be correct in his submissions.
### Response:
0
### Explanation:
8. The approach of the courts below, in the given facts, appears to be correct.In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that respondent no. 1/plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and respondent no. 2) who are entitled to manage the affairs of M/s. Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defense in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order VII Rule 11, CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff/respondent no. 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defense projected in the written statement cannot be looked into while deciding application under Order VII Rule 11, CPC.10. Therefore, insofar as trial court dismissing the said application of the appellant, which is upheld by the High Court, cannot be faulted with.
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Poshetty & Others Vs. State of Andhra Pradesh | K. Ramaswamy, J. This appeal by leave granted by the High Court of Andhra Pradesh under Article 133 of the Constitution arises from its Full Bench judgment dated February 21, 1991 in Writ Petition No.12604 of 1987. In this appeal, the only controversy is : whether service of notice of award passed under Section 11 of the Land Acquisition Act, 1894 [for short, the Act"] along with its enclosure, is a pre- condition under subsection (2) of Section 12 of the Act. The Full Bench of the High Court by judgment dated September 12, 1990 in Writ Petition No.13203 of 1985 and batch held that service of the award with notice is not necessary. The learned Judges relying upon the omission of second clause in proviso to Section 18 (2) of the Act held that it is not necessary that copy of the award should be served. It is contended by Shri D. P. Reddy, learned counsel for the appellants that sub-section (2) of Section (2) was interpreted by a Division Bench of Andhra Pradesh High Court in Milap Carriers, Transport Contractor and Commission Agent, Hyderabad vs. National Insurance Company ltd., Hyderabad [AIR 1994 A.P 24]. The Full Bench therefore, was not right in its construction The controversy is no longer res integra. This Court in State of Punjab & Anr. vs. Satinder Bir Singh [(1995) 3 SCC 330 ] has considered the scope of sub-section (2) of Section 12 vis-a-vis proviso to sub-section (2) of Section 18 and held as under : "The question then is whether the notice under Section 12(2) is a valid notice. From a conjoint reading of Section 11 and 12, it is clear that notice is only an An intimation of making of the award requiring the owner or person interested to receive compensation awarded under Section 11. On receipt of the notice, if the person interested receives compensation without protest, obviously no reference need be made. The determination of compensation becomes final and binds the parties. When he receives the compensation under protest as contemplated under Section 31 of the Act, the need to make the application for reference under Section 18(1) would arise At that juncture, it will be open to the person interested either to make an inspection of the award which was conclusive between him and the Collector by operation of sub- section (1) of Section 12, or seek a certified copy of the award from the Collector and the contents. Thereon, he could make necessary objection for the determination, inter alia, of compensation for the land. It is not necessary that the notice should contain all the details of the award including his consideration and its manner of determination of the compensation as opined by the learned Judge of the High Court. It is not incumbent that the person interested should immediately make the reference application on his receiving compensation under Section 31. In other words, receipt of the amount and making the reference application are not simultaneous. The statutory operation of limitation mentioned by Section 18(2) does not depend on the ministerial act of communication of notice in any particular form when the Act or Rules has not prescribed any form. The limitation begins to operate from the moment the notice under Section 12(2) is received or as envisaged by Section 18(2)" 2. It is seen that sub-section (1) of Section 12 postulates that award made under Section 11 shall be filed in the Collectors Office and the same shall be final and conclusive evidence as between the Collector and the persons interested, whether or not they have respectively appeared before the Collector, of the true area of the land acquired, the value of the land acquired and the apportionment of the compensation among the persons interested. The Collector is, therefore, required to issue notice of his award to such of the persons interested who were either not present personally or were present through representatives when the Collector made his award. Sub-section (2), therefore, requires him to give immediate notice of award to such interested persons and not simply the communication of the award as contended form If such interested person who was present personally or through the representative at the time of makings of the award, is not required to be supplied the copy of the award, would it be intended that the award should be served along with notice to a person who was not present. This question was considered in the above case and it was held that the service of notice is a ministerial act and the Act did not intend to supply the copy of the award. The limitation provided under proviso to sub-section (2) of Section 18 prescribes that if an applicant is present or represented, has to make an application when he receives the compensation under protest within six weeks from the date of the Collectors award and where he was not present within six weeks of the receipt of the notice from the Collector under sub-section (2) of Section 12 or within 6 months from the date of the Collectors award, whichever period shall first expire. In other words, the proviso to sub-section (2) of Section 18 prescribes the limitation within which the application for reference under sub-section (1) of Section 18 is required to be made and the failure thereof puts an end of the right to the claimant to seek a reference under Section 18. This Court has already held that communication of the award is not a pre-condition and, therefore, the Full Bench of the High Court was right in its interpretation of the provisions of Section 18, proviso read with sub-section (2) of Section 12. The local amendment does not, therefore, make any material change to the aforestated interpretation. | 0[ds]2. It is seen that(1) of Section 12 postulates that award made under Section 11 shall be filed in the Collectors Office and the same shall be final and conclusive evidence as between the Collector and the persons interested, whether or not they have respectively appeared before the Collector, of the true area of the land acquired, the value of the land acquired and the apportionment of the compensation among the persons interested. The Collector is, therefore, required to issue notice of his award to such of the persons interested who were either not present personally or were present through representatives when the Collector made his award.(2), therefore, requires him to give immediate notice of award to such interested persons and not simply the communication of the award as contended form If such interested person who was present personally or through the representative at the time of makings of the award, is not required to be supplied the copy of the award, would it be intended that the award should be served along with notice to a person who was not present. This question was considered in the above case and it was held that the service of notice is a ministerial act and the Act did not intend to supply the copy of the award. The limitation provided under proviso tosubsection (2) of Section18 prescribes that if an applicant is present or represented, has to make an application when he receives the compensation under protest within six weeks from the date of the Collectors award and where he was not present within six weeks of the receipt of the notice from the Collector undersubsection (2) of Sectionor within 6 months from the date of the Collectors award, whichever period shall first expire. In other words, the proviso tosubsection (2) of Section18 prescribes the limitation within which the application for reference under(1) of Section 18 is required to be made and the failure thereof puts an end of the right to the claimant to seek a reference under Section 18. This Court has already held that communication of the award is not aand, therefore, the Full Bench of the High Court was right in its interpretation of the provisions of Section 18, proviso read withsubsection (2) of SectionThe local amendment does not, therefore, make any material change to the aforestated interpretation. | 0 | 1,082 | 437 | ### Instruction:
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K. Ramaswamy, J. This appeal by leave granted by the High Court of Andhra Pradesh under Article 133 of the Constitution arises from its Full Bench judgment dated February 21, 1991 in Writ Petition No.12604 of 1987. In this appeal, the only controversy is : whether service of notice of award passed under Section 11 of the Land Acquisition Act, 1894 [for short, the Act"] along with its enclosure, is a pre- condition under subsection (2) of Section 12 of the Act. The Full Bench of the High Court by judgment dated September 12, 1990 in Writ Petition No.13203 of 1985 and batch held that service of the award with notice is not necessary. The learned Judges relying upon the omission of second clause in proviso to Section 18 (2) of the Act held that it is not necessary that copy of the award should be served. It is contended by Shri D. P. Reddy, learned counsel for the appellants that sub-section (2) of Section (2) was interpreted by a Division Bench of Andhra Pradesh High Court in Milap Carriers, Transport Contractor and Commission Agent, Hyderabad vs. National Insurance Company ltd., Hyderabad [AIR 1994 A.P 24]. The Full Bench therefore, was not right in its construction The controversy is no longer res integra. This Court in State of Punjab & Anr. vs. Satinder Bir Singh [(1995) 3 SCC 330 ] has considered the scope of sub-section (2) of Section 12 vis-a-vis proviso to sub-section (2) of Section 18 and held as under : "The question then is whether the notice under Section 12(2) is a valid notice. From a conjoint reading of Section 11 and 12, it is clear that notice is only an An intimation of making of the award requiring the owner or person interested to receive compensation awarded under Section 11. On receipt of the notice, if the person interested receives compensation without protest, obviously no reference need be made. The determination of compensation becomes final and binds the parties. When he receives the compensation under protest as contemplated under Section 31 of the Act, the need to make the application for reference under Section 18(1) would arise At that juncture, it will be open to the person interested either to make an inspection of the award which was conclusive between him and the Collector by operation of sub- section (1) of Section 12, or seek a certified copy of the award from the Collector and the contents. Thereon, he could make necessary objection for the determination, inter alia, of compensation for the land. It is not necessary that the notice should contain all the details of the award including his consideration and its manner of determination of the compensation as opined by the learned Judge of the High Court. It is not incumbent that the person interested should immediately make the reference application on his receiving compensation under Section 31. In other words, receipt of the amount and making the reference application are not simultaneous. The statutory operation of limitation mentioned by Section 18(2) does not depend on the ministerial act of communication of notice in any particular form when the Act or Rules has not prescribed any form. The limitation begins to operate from the moment the notice under Section 12(2) is received or as envisaged by Section 18(2)" 2. It is seen that sub-section (1) of Section 12 postulates that award made under Section 11 shall be filed in the Collectors Office and the same shall be final and conclusive evidence as between the Collector and the persons interested, whether or not they have respectively appeared before the Collector, of the true area of the land acquired, the value of the land acquired and the apportionment of the compensation among the persons interested. The Collector is, therefore, required to issue notice of his award to such of the persons interested who were either not present personally or were present through representatives when the Collector made his award. Sub-section (2), therefore, requires him to give immediate notice of award to such interested persons and not simply the communication of the award as contended form If such interested person who was present personally or through the representative at the time of makings of the award, is not required to be supplied the copy of the award, would it be intended that the award should be served along with notice to a person who was not present. This question was considered in the above case and it was held that the service of notice is a ministerial act and the Act did not intend to supply the copy of the award. The limitation provided under proviso to sub-section (2) of Section 18 prescribes that if an applicant is present or represented, has to make an application when he receives the compensation under protest within six weeks from the date of the Collectors award and where he was not present within six weeks of the receipt of the notice from the Collector under sub-section (2) of Section 12 or within 6 months from the date of the Collectors award, whichever period shall first expire. In other words, the proviso to sub-section (2) of Section 18 prescribes the limitation within which the application for reference under sub-section (1) of Section 18 is required to be made and the failure thereof puts an end of the right to the claimant to seek a reference under Section 18. This Court has already held that communication of the award is not a pre-condition and, therefore, the Full Bench of the High Court was right in its interpretation of the provisions of Section 18, proviso read with sub-section (2) of Section 12. The local amendment does not, therefore, make any material change to the aforestated interpretation.
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2. It is seen that(1) of Section 12 postulates that award made under Section 11 shall be filed in the Collectors Office and the same shall be final and conclusive evidence as between the Collector and the persons interested, whether or not they have respectively appeared before the Collector, of the true area of the land acquired, the value of the land acquired and the apportionment of the compensation among the persons interested. The Collector is, therefore, required to issue notice of his award to such of the persons interested who were either not present personally or were present through representatives when the Collector made his award.(2), therefore, requires him to give immediate notice of award to such interested persons and not simply the communication of the award as contended form If such interested person who was present personally or through the representative at the time of makings of the award, is not required to be supplied the copy of the award, would it be intended that the award should be served along with notice to a person who was not present. This question was considered in the above case and it was held that the service of notice is a ministerial act and the Act did not intend to supply the copy of the award. The limitation provided under proviso tosubsection (2) of Section18 prescribes that if an applicant is present or represented, has to make an application when he receives the compensation under protest within six weeks from the date of the Collectors award and where he was not present within six weeks of the receipt of the notice from the Collector undersubsection (2) of Sectionor within 6 months from the date of the Collectors award, whichever period shall first expire. In other words, the proviso tosubsection (2) of Section18 prescribes the limitation within which the application for reference under(1) of Section 18 is required to be made and the failure thereof puts an end of the right to the claimant to seek a reference under Section 18. This Court has already held that communication of the award is not aand, therefore, the Full Bench of the High Court was right in its interpretation of the provisions of Section 18, proviso read withsubsection (2) of SectionThe local amendment does not, therefore, make any material change to the aforestated interpretation.
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NIRMAL KUMAR PARSAN Vs. COMMR. COMMERCIAL TAX . AND ORS | We are unable to accept the contention of Mr Ramachandran that what has to be seen is whether additional duty of excise was payable at the time when the goods landed in India or, as he strenuously contended, they had crossed into the territorial waters. Import being complete when the goods entered the territorial waters is the contention which has already been rejected by this Court in Union of India v. Apar (P) Ltd. decided on 22-7-1999. The import would be completed only when the goods are to cross the customs barriers and that is the time when the import duty has to be paid and that is what has been termed by this Court in Sea Customs case (SCR at p. 823) as being the taxable event. The taxable event, therefore, being the day of crossing of customs barrier, and not on the date when the goods had landed in India or had entered the territorial waters, we find that on the date of the taxable event the additional duty of excise was leviable under the said Ordinance and, therefore, additional duty under Section 3 of the Tariff Act was rightly demanded from the appellants. (emphasis supplied) 20. A priori, for a sale or purchase to qualify as a sale or purchase in course of import, the essential conditions are that such sale shall occur before the goods had crossed the customs frontiers of India and the import of the goods must be effected or the import is occasioned due to such sale or purchase. In the present case, the sales in question did not occasion import. 21. Arguendo, for sale or purchase of goods to be regarded as sale or purchase in course of export, Section 5(1) of the CST Act provides for the following conditions: (i) the sale or purchase shall occasion such export or (ii) the sale or purchase shall be effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. 22. A Constitution Bench of this Court in Md. Serajuddin and Ors. vs. State of Orissa (1975) 2 SCC 47 has held that expression in the course implies not only a period of time during which the movement is in progress but postulates a connected relation. The relevant portion of the judgment is extracted as under: 18. ….. A sale in the course of export predicates a connection between the sale and export. No single test can be laid as decisive for determining that question. Each case must depend upon its facts. But it does not mean that distinction between transactions which may be called sales for export and sales in the course of export is not real. Where the sale is effected by the seller and the seller is not connected with the export which actually takes place, it is a sale for export. Where the export is the result of sale, the export being inextricably linked up with sale so that the bond cannot be dissociated without a breach of the obligations arising by statute, contract, or mutual understanding between the parties arising from the nature of the transaction the sale is in the course of export. In the Nilgiri Plantations case (supra) this Court found that the sales by the appellants were intended to be complete without the export and as such it could not be said that the sales occasioned export. The sales were for export and not in the course of export. (emphasis supplied) 23. It is relevant to advert to the definition of export here. Section 2(18) of the Customs Act defines export as follows: 2. Definitions.- In this Act, unless the context otherwise requires,- xxx xxx xxx (18) - export, with its grammatical variations and cognate expressions, means taking out of India to a place outside India. (emphasis supplied) 24. In the present case, it is not the case of the appellant that the goods in question were being exported. Since the goods are to be consumed on the board of the foreign going ship and the same would be consumed before reaching a destination, it does not fall under the definition of export. The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India. Further, since the goods have been sold from the bonded warehouse and had crossed the customs port/land customs station prior to their sale, it cannot qualify as a sale in course of export within the meaning of Section 5(1) read with Section 2(ab) of the CST Act. 25. In regard to the contention that declaration under Section 69 of the Customs Act was made by the appellant, there is nothing on record to show that such declaration was made in respect of the goods pertaining to subject sale(s). Even otherwise, the benefit extended under the Customs Act of waiver of customs duty cannot be taken as waiver of sales tax under the relevant state and central laws. Similarly, insertion of sub-Section (3) in Section 5 of the CST Act in 1976 does not affect these cases because the bonded warehouse where the stated sales or appropriation of the goods occurred is within the land-mass of the State of West Bengal and not shown to be within the customs station area. 26. A priori, it must be held that the stated sales or appropriation of goods kept in bonded warehouse within the land-mass/territory of the State of West Bengal are neither in the course of import or export and more so, were effected beyond the customs port/land customs station area. Therefore, in law, it was a sale amenable to levy of sales tax under the 1954 Act and the 1994 Act, as the case may be, read with Section 4 of the CST Act. As a result, these appeals must fail, as we find no infirmity in the view taken by the authorities below and which had justly commended to the High Court. | 0[ds]10. As noticed from the finding of fact recorded by the authorities, it is not in dispute that after importing the stated goods, the appellants stored the same in the bonded warehouse within the land-mass of the State of West Bengal and some of the articles were then sold to the Master of a foreign-going ship as ship stores, without payment of customs duty thereonThe phrase sale in the course of import would constitute three essential features – (i) that there must be a sale; (ii) that goods must actually be imported and (iii) that the sale must be part and parcel of the import. The factual matrix in the present case clearly depicts that the sales in question would not cause import of the stated goods. Instead, it would result in taking away the goods (after being unloaded on the land-mass of the State of West Bengal) on the ongoing ship as ship stores outside the territory of Indian Waters for being consumed on the ship and not for export to another destination as such. The appellants have advisedly not pursued the argument that the stated sales would result in an export or would be in the course of export. For, such argument has been rejected by this Court in Madras Marine (supra)12. Applying the principle underlying the said decision, it is clear that the sale to be in the course of import, must be a sale of goods and as a consequence of such sale, the goods must actually be imported within the territory of India and further, the sale must be part and parcel of the import so as to occasion import thereof. Indeed, for the purposes of Customs Act, only upon payment of customs duty the goods are cleared by the Customs authorities whence import thereof can be regarded as complete. However, that would be no impediment for levy of sales tax by the State concerned in whose territory the goods had already landed/unloaded and kept in the bonded warehouse. For seeking exemption, it is necessary that the goods must be in the process of being imported when the sale occurs or the sale must occasion the import thereof within the territory of India. The word occasion is used to mean to cause or to be the immediate cause of. In the present case, the stated sales in no way occasioned import of the goods into the territory of India. For, the goods were taken away by the foreign-going ship as ship stores for being consumed after the goods had crossed the customs frontiers/Indian Waters13. Indubitably, the sale which is to be regarded as exempt from payment of sales tax, is a sale which causes the import to take place or is the immediate cause of the import of goods. The appellants having failed to establish that the stated goods would be actually imported within the territory of India and had not crossed the customs station, cannot contend that the sale was in the course of import as such within the meaning of Section 5 read with Section 2(ab) of the CST Act. Moreover, there is no direct linkage between the import of the goods and the sale in question to qualify as having been made in the process or progress of importWe have no hesitation in accepting the argument of the respondents that being a taxation statute, strict interpretation of these provisions is inevitable. Going by the definition of customs port or land customs station as applicable in the present cases, it is customs port or land customs station area appointed by the Central Government in terms of notification under Section 7. It is not the case of the appellants that the bonded warehouses, where the goods were kept and the stated sales took place by appropriation of the goods thereat, were within the area notified as customs port and/or land customs station under Section 7 of the Customs Act. As the stated goods had travelled beyond the customs port/land customs station at the relevant time, in law, it would mean that the goods had crossed the customs frontiers of India for the purposes of the CST Act. Resultantly, the legal fiction created in Section 5(2) of the CST Act will have no application15. Notably, the expressions warehouse and warehoused goods have been defined in the Customs Act in Sections 2(43) and 2(44) respectively. As per the applicable provisions at the relevant time, Warehouse means a public warehouse appointed under Section 57 or a private warehouse licensed under Section 58. Warehoused goods means goods deposited in a warehouse. As aforesaid, there is nothing to indicate that the bonded warehouse, where the stated goods were kept by the appellants and eventually sold, formed part of the customs port/land customs station. If so, the legal fiction of sale being deemed to have taken place in the course of import of the goods into the territory of India would have no bearing and applicability to the present cases16. To get over this position, emphasis was placed by the appellant on the exposition in the Indian Tourist Development Corporation (supra), which had considered the situation where the goods were kept in the bonded warehouse and were made available in the duty- free shops for sale. This Court opined that since the goods were supplied to the duty-free shops situated at the International Airport, Bengaluru for sale, it cannot be said that the said goods had crossed the customs frontiers of India. We fail to understand as to how this decision will be of any avail to the appellants. For, the Court was not dealing with a situation as in the present cases, in which the goods had crossed the customs port/land customs station area and kept in the bonded warehouse, where the sale by appropriation of the goods was effected. Indeed, in paragraph 17 of the reported decision, the Court in the facts of that case, has observed that when the goods are kept in the bonded warehouse, it cannot be said that the said goods had crossed customs frontiers of India. However, the Court finally answered the claim of the appellants therein on the finding that the liquor, cigarettes, perfumes and food articles were sold at the duty- free shops at the International Airport, Bengaluru, for which no tax was payable by the appellants as the goods sold at the duty-free shops were sold directly to the passengers and even the delivery of goods took place at the duty-free shops before importing the goods or before the goods had crossed the customs frontiers of India. The issue considered in the said decision, therefore, was whether the sale at the duty-free shops situated at the Bengaluru International Airport would attract levy of sales tax. As noticed earlier, the definition of customs station clearly refers to customs airport as defined in Section 2(10) of the Customs Act. As the duty-free shop is situated in airport area, it would mean that the sale of goods at the duty-free shops was deemed to have taken place in the course of import of the goods into the territory of India. Thus understood, the reported decision under consideration is of no avail to the appellants17. Even the exposition of the Constitution Bench in J.V. Gokal (supra) that a sale by an importer of goods after the property of the goods passed to him, either after the receipt of the documents of title against payment or otherwise, to a third party by a similar process is also a sale in the course of import, would equally have no bearing on the present cases. Inasmuch as, the sale of goods must take place before the goods had crossed the customs frontiers of India, which means it was within the customs port/land customs station area. Nothing is shown by the appellants herein to substantiate that the subject bonded warehouse came within the customs port/land customs station area and moreso the stated sales occasioned import of the goods within the territory of India. If so, the finding of fact and conclusion recorded by the authorities below, which commended to the High Court, is unexceptionable20. A priori, for a sale or purchase to qualify as a sale or purchase in course of import, the essential conditions are that such sale shall occur before the goods had crossed the customs frontiers of India and the import of the goods must be effected or the import is occasioned due to such sale or purchase. In the present case, the sales in question did not occasion import21. Arguendo, for sale or purchase of goods to be regarded as sale or purchase in course of export, Section 5(1) of the CST Act provides for the following conditions: (i) the sale or purchase shall occasion such export or (ii) the sale or purchase shall be effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India24. In the present case, it is not the case of the appellant that the goods in question were being exported. Since the goods are to be consumed on the board of the foreign going ship and the same would be consumed before reaching a destination, it does not fall under the definition of export. The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India. Further, since the goods have been sold from the bonded warehouse and had crossed the customs port/land customs station prior to their sale, it cannot qualify as a sale in course of export within the meaning of Section 5(1) read with Section 2(ab) of the CST Act25. In regard to the contention that declaration under Section 69 of the Customs Act was made by the appellant, there is nothing on record to show that such declaration was made in respect of the goods pertaining to subject sale(s). Even otherwise, the benefit extended under the Customs Act of waiver of customs duty cannot be taken as waiver of sales tax under the relevant state and central laws. Similarly, insertion of sub-Section (3) in Section 5 of the CST Act in 1976 does not affect these cases because the bonded warehouse where the stated sales or appropriation of the goods occurred is within the land-mass of the State of West Bengal and not shown to be within the customs station area26. A priori, it must be held that the stated sales or appropriation of goods kept in bonded warehouse within the land-mass/territory of the State of West Bengal are neither in the course of import or export and more so, were effected beyond the customs port/land customs station area. Therefore, in law, it was a sale amenable to levy of sales tax under the 1954 Act and the 1994 Act, as the case may be, read with Section 4 of the CST Act. As a result, these appeals must fail, as we find no infirmity in the view taken by the authorities below and which had justly commended to the High Court. | 0 | 9,778 | 2,041 | ### Instruction:
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We are unable to accept the contention of Mr Ramachandran that what has to be seen is whether additional duty of excise was payable at the time when the goods landed in India or, as he strenuously contended, they had crossed into the territorial waters. Import being complete when the goods entered the territorial waters is the contention which has already been rejected by this Court in Union of India v. Apar (P) Ltd. decided on 22-7-1999. The import would be completed only when the goods are to cross the customs barriers and that is the time when the import duty has to be paid and that is what has been termed by this Court in Sea Customs case (SCR at p. 823) as being the taxable event. The taxable event, therefore, being the day of crossing of customs barrier, and not on the date when the goods had landed in India or had entered the territorial waters, we find that on the date of the taxable event the additional duty of excise was leviable under the said Ordinance and, therefore, additional duty under Section 3 of the Tariff Act was rightly demanded from the appellants. (emphasis supplied) 20. A priori, for a sale or purchase to qualify as a sale or purchase in course of import, the essential conditions are that such sale shall occur before the goods had crossed the customs frontiers of India and the import of the goods must be effected or the import is occasioned due to such sale or purchase. In the present case, the sales in question did not occasion import. 21. Arguendo, for sale or purchase of goods to be regarded as sale or purchase in course of export, Section 5(1) of the CST Act provides for the following conditions: (i) the sale or purchase shall occasion such export or (ii) the sale or purchase shall be effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. 22. A Constitution Bench of this Court in Md. Serajuddin and Ors. vs. State of Orissa (1975) 2 SCC 47 has held that expression in the course implies not only a period of time during which the movement is in progress but postulates a connected relation. The relevant portion of the judgment is extracted as under: 18. ….. A sale in the course of export predicates a connection between the sale and export. No single test can be laid as decisive for determining that question. Each case must depend upon its facts. But it does not mean that distinction between transactions which may be called sales for export and sales in the course of export is not real. Where the sale is effected by the seller and the seller is not connected with the export which actually takes place, it is a sale for export. Where the export is the result of sale, the export being inextricably linked up with sale so that the bond cannot be dissociated without a breach of the obligations arising by statute, contract, or mutual understanding between the parties arising from the nature of the transaction the sale is in the course of export. In the Nilgiri Plantations case (supra) this Court found that the sales by the appellants were intended to be complete without the export and as such it could not be said that the sales occasioned export. The sales were for export and not in the course of export. (emphasis supplied) 23. It is relevant to advert to the definition of export here. Section 2(18) of the Customs Act defines export as follows: 2. Definitions.- In this Act, unless the context otherwise requires,- xxx xxx xxx (18) - export, with its grammatical variations and cognate expressions, means taking out of India to a place outside India. (emphasis supplied) 24. In the present case, it is not the case of the appellant that the goods in question were being exported. Since the goods are to be consumed on the board of the foreign going ship and the same would be consumed before reaching a destination, it does not fall under the definition of export. The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India. Further, since the goods have been sold from the bonded warehouse and had crossed the customs port/land customs station prior to their sale, it cannot qualify as a sale in course of export within the meaning of Section 5(1) read with Section 2(ab) of the CST Act. 25. In regard to the contention that declaration under Section 69 of the Customs Act was made by the appellant, there is nothing on record to show that such declaration was made in respect of the goods pertaining to subject sale(s). Even otherwise, the benefit extended under the Customs Act of waiver of customs duty cannot be taken as waiver of sales tax under the relevant state and central laws. Similarly, insertion of sub-Section (3) in Section 5 of the CST Act in 1976 does not affect these cases because the bonded warehouse where the stated sales or appropriation of the goods occurred is within the land-mass of the State of West Bengal and not shown to be within the customs station area. 26. A priori, it must be held that the stated sales or appropriation of goods kept in bonded warehouse within the land-mass/territory of the State of West Bengal are neither in the course of import or export and more so, were effected beyond the customs port/land customs station area. Therefore, in law, it was a sale amenable to levy of sales tax under the 1954 Act and the 1994 Act, as the case may be, read with Section 4 of the CST Act. As a result, these appeals must fail, as we find no infirmity in the view taken by the authorities below and which had justly commended to the High Court.
### Response:
0
### Explanation:
Tourist Development Corporation (supra), which had considered the situation where the goods were kept in the bonded warehouse and were made available in the duty- free shops for sale. This Court opined that since the goods were supplied to the duty-free shops situated at the International Airport, Bengaluru for sale, it cannot be said that the said goods had crossed the customs frontiers of India. We fail to understand as to how this decision will be of any avail to the appellants. For, the Court was not dealing with a situation as in the present cases, in which the goods had crossed the customs port/land customs station area and kept in the bonded warehouse, where the sale by appropriation of the goods was effected. Indeed, in paragraph 17 of the reported decision, the Court in the facts of that case, has observed that when the goods are kept in the bonded warehouse, it cannot be said that the said goods had crossed customs frontiers of India. However, the Court finally answered the claim of the appellants therein on the finding that the liquor, cigarettes, perfumes and food articles were sold at the duty- free shops at the International Airport, Bengaluru, for which no tax was payable by the appellants as the goods sold at the duty-free shops were sold directly to the passengers and even the delivery of goods took place at the duty-free shops before importing the goods or before the goods had crossed the customs frontiers of India. The issue considered in the said decision, therefore, was whether the sale at the duty-free shops situated at the Bengaluru International Airport would attract levy of sales tax. As noticed earlier, the definition of customs station clearly refers to customs airport as defined in Section 2(10) of the Customs Act. As the duty-free shop is situated in airport area, it would mean that the sale of goods at the duty-free shops was deemed to have taken place in the course of import of the goods into the territory of India. Thus understood, the reported decision under consideration is of no avail to the appellants17. Even the exposition of the Constitution Bench in J.V. Gokal (supra) that a sale by an importer of goods after the property of the goods passed to him, either after the receipt of the documents of title against payment or otherwise, to a third party by a similar process is also a sale in the course of import, would equally have no bearing on the present cases. Inasmuch as, the sale of goods must take place before the goods had crossed the customs frontiers of India, which means it was within the customs port/land customs station area. Nothing is shown by the appellants herein to substantiate that the subject bonded warehouse came within the customs port/land customs station area and moreso the stated sales occasioned import of the goods within the territory of India. If so, the finding of fact and conclusion recorded by the authorities below, which commended to the High Court, is unexceptionable20. A priori, for a sale or purchase to qualify as a sale or purchase in course of import, the essential conditions are that such sale shall occur before the goods had crossed the customs frontiers of India and the import of the goods must be effected or the import is occasioned due to such sale or purchase. In the present case, the sales in question did not occasion import21. Arguendo, for sale or purchase of goods to be regarded as sale or purchase in course of export, Section 5(1) of the CST Act provides for the following conditions: (i) the sale or purchase shall occasion such export or (ii) the sale or purchase shall be effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India24. In the present case, it is not the case of the appellant that the goods in question were being exported. Since the goods are to be consumed on the board of the foreign going ship and the same would be consumed before reaching a destination, it does not fall under the definition of export. The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India. Further, since the goods have been sold from the bonded warehouse and had crossed the customs port/land customs station prior to their sale, it cannot qualify as a sale in course of export within the meaning of Section 5(1) read with Section 2(ab) of the CST Act25. In regard to the contention that declaration under Section 69 of the Customs Act was made by the appellant, there is nothing on record to show that such declaration was made in respect of the goods pertaining to subject sale(s). Even otherwise, the benefit extended under the Customs Act of waiver of customs duty cannot be taken as waiver of sales tax under the relevant state and central laws. Similarly, insertion of sub-Section (3) in Section 5 of the CST Act in 1976 does not affect these cases because the bonded warehouse where the stated sales or appropriation of the goods occurred is within the land-mass of the State of West Bengal and not shown to be within the customs station area26. A priori, it must be held that the stated sales or appropriation of goods kept in bonded warehouse within the land-mass/territory of the State of West Bengal are neither in the course of import or export and more so, were effected beyond the customs port/land customs station area. Therefore, in law, it was a sale amenable to levy of sales tax under the 1954 Act and the 1994 Act, as the case may be, read with Section 4 of the CST Act. As a result, these appeals must fail, as we find no infirmity in the view taken by the authorities below and which had justly commended to the High Court.
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SK. Jinnar Ali Vs. State of West Bengal | 1. Leave granted. 2. The appellant has preferred this appeal challenging the order passed by the High Court of Calcutta in CRM No. 10553 of 2016 dated 17.01.2017, whereby his application for grant of anticipatory bail has been rejected. 3. The genesis of the case stems from a matrimonial dispute. The wife of the appellant filed a complaint before the Chief Judicial Magistrate at Burdwan alleging offences punishable under Sections 498A/109/420/406/506/34/120B of the IPC against the appellant and her in-laws. The complaint was registered as FIR No.549/16. She filed yet another application under Sections 4/12/18/19(8)/20/22/23 of the Protection of Women from Domestic Violence Act, 2005 against the appellant and her in-laws alleging physical and mental torture in G.R.No.2149/16. In the said case, appellant was released on bail by order dated 18.7.2016. The wife of the appellant filed another complaint against the appellant alleging offences under Sections 467/127A/468/471/384/386/120B of IPC as well as for the offences punishable under the Official Secrets Act, Information Technology Act and Emblem and Names Act, 1950. The complaint was registered as FIR 1165/2016 with Burdwan Police Station. The application filed by the appellant seeking anticipatory bail under Section 438 of the Cr.P.C. was dismissed by the High Court by the impugned order. 4. Having heard learned counsel for the parties, prima facie, we are of the view that the complaint lodged by the wife of the appellant was only to wreak vengeance on the appellant. As noted above, the appellant had been granted anticipatory bail in the previous case for lack of prima facie evidence against the appellant. The appellant is a Journalist by profession running a monthly newspaper in West Bengal. We are of the view that the High Court was not justified in rejecting application of the appellant for grant of anticipatory bail. | 1[ds]4. Having heard learned counsel for the parties, prima facie, we are of the view that the complaint lodged by the wife of the appellant was only to wreak vengeance on the appellant. As noted above, the appellant had been granted anticipatory bail in the previous case for lack of prima facie evidence against the appellant. The appellant is a Journalist by profession running a monthly newspaper in West Bengal. We are of the view that the High Court was not justified in rejecting application of the appellant for grant of anticipatory bail. | 1 | 331 | 105 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
1. Leave granted. 2. The appellant has preferred this appeal challenging the order passed by the High Court of Calcutta in CRM No. 10553 of 2016 dated 17.01.2017, whereby his application for grant of anticipatory bail has been rejected. 3. The genesis of the case stems from a matrimonial dispute. The wife of the appellant filed a complaint before the Chief Judicial Magistrate at Burdwan alleging offences punishable under Sections 498A/109/420/406/506/34/120B of the IPC against the appellant and her in-laws. The complaint was registered as FIR No.549/16. She filed yet another application under Sections 4/12/18/19(8)/20/22/23 of the Protection of Women from Domestic Violence Act, 2005 against the appellant and her in-laws alleging physical and mental torture in G.R.No.2149/16. In the said case, appellant was released on bail by order dated 18.7.2016. The wife of the appellant filed another complaint against the appellant alleging offences under Sections 467/127A/468/471/384/386/120B of IPC as well as for the offences punishable under the Official Secrets Act, Information Technology Act and Emblem and Names Act, 1950. The complaint was registered as FIR 1165/2016 with Burdwan Police Station. The application filed by the appellant seeking anticipatory bail under Section 438 of the Cr.P.C. was dismissed by the High Court by the impugned order. 4. Having heard learned counsel for the parties, prima facie, we are of the view that the complaint lodged by the wife of the appellant was only to wreak vengeance on the appellant. As noted above, the appellant had been granted anticipatory bail in the previous case for lack of prima facie evidence against the appellant. The appellant is a Journalist by profession running a monthly newspaper in West Bengal. We are of the view that the High Court was not justified in rejecting application of the appellant for grant of anticipatory bail.
### Response:
1
### Explanation:
4. Having heard learned counsel for the parties, prima facie, we are of the view that the complaint lodged by the wife of the appellant was only to wreak vengeance on the appellant. As noted above, the appellant had been granted anticipatory bail in the previous case for lack of prima facie evidence against the appellant. The appellant is a Journalist by profession running a monthly newspaper in West Bengal. We are of the view that the High Court was not justified in rejecting application of the appellant for grant of anticipatory bail.
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C.I.T.,Bombay City-Iii,Bombay Vs. British Bank Of Middle East | by the company to its employees is to be taken in the hands of the employees for the purpose of assessment of the employees under the head `Income from salaries at Rs. 150 per month, the same value should be taken in the hands of the assessee-company which is the employer for the purpose of working out the ceiling under s. 40(c)(iii)." 9. The Bombay High Court in the judgment and order under appeal has answered the question in favour of the assessee following its earlier decision in the case of Geoffrey Manners. In the said decision, the High Court held that though Rule 3 has been framed for determination of the value of the motor car provided by the employer to the employee for the purpose of computing the income chargeable under the head "Salaries", there is nothing wrong in applying the same for valuing the perquisites for the purpose of computing the disallowance under Section 40A(5) of the Act because the rule has been framed by the Central Board of Revenue with a view to get over the difficulties that might arise in determining the value of the perquisite in respect of the use of the car owned and maintained by the employer of the employees. As already noticed, the Bombay High Court followed the opinion expressed by the Calcutta High Court in the case of Britannia Industries Ltd. 10. In Commissioner of Income Tax v. Rajesh Textiles Mills Ltd. (173 ITR 179) the Gujarat High Court has analyzed the legal position for coming to the conclusion that the computation of monetary benefit of perquisites in the hands of the employees has to be on an entirely different footing and concerns entirely a different topic and the head of income as compared to the computation of expenses actually incurred by the employer-assessee from the point of view of their deductibility from the income of the employer under the head "Profit and Gain of business or profession". Dealing with the decision in the case of Britannia Industries Ltd., the Gujarat high Court attempted to distinguish it on facts and said that the general observations in that decision were made on an entirely different statute scheme as compared to the one with which that court was concerned. Those general observations of the Calcutta High Court that there cannot be any two different standards for assessment in respect of employee and employer. We, however, do not think that the observations made in Calcutta case were no consideration of different scheme or there was any distinction of facts. There, Rule 3 was erroneously invoked for determining the deduction of expenditure in the assessment of assessee-employer. 11. It has to b borne in mind that Section 40A(5) and Rule 3 deal with different situation and different set of assessee - one dealing with the employer-assessee and the other the employee-assessee. Rule 3 deals with the other the employee-assessee. Rule 3 deals with valuation for the purposes of the computing the income of the employees chargeable under the head "Salaries" whereas Section 40A(5) deals with computation of the income under the head "Profits and Gains of business or profession". The object of enacting Section 40A(5) was to discourage the assessee from incurring expenditure which resulted directly or indirectly in the provision of any benefit, amenity or perquisite to their employees beyond a particular limit and any expenditure incurred beyond the prescribed limit was liable to be disallowed. The said provision constitutes a composite scheme and the purpose of prescribing a ceiling on expenditure in connection with directs and employees is to discourage the employer from paying excessive salaries, remuneration, perquisites etc. to its employees and directors, and if paid, the employer would not be able to claim the entire expenditure as deduction. It will be able to claim deduction of expenditure upto the ceiling limit provided in the said section. This provision was enacted to curb extravagant expenditure. It does not contemplate deduction of notional value of perquisite assessed in the hands of the employees. It contemplates the deduction of actual expenditure or on estimate basis where the details of the actual expenditure are not furnished. 12. The employer has incurred the expenditure on the care and should be able to provide its figures. If he cannot, it is fair that the expenditure should be assessed in a realistic basis and not on the basis of rule 3 which applies qua the employee, who cannot provide the figures of actual expenditure since it is not he who has incurred it. 13. The High Court of Calcutta and Bombay have not properly considered that Section 40A(5) and Rule 3 operate in different fields and apply to different set of assessee. The provision of the Act was enacted to provide for ceiling on expenditure on employees. The object of the rule is to give relief to the employees. The object of the rule is to give relief to the employees. Applying Rule 3 for the purpose of determining the deduction in relation to the assessment of the employer would be doing violence to and ignoring the legislative intent evident in Section 40A(5). The question is not whether there is anything wrong in applying Rule 3 or any anomalous situation arising on account of determining different values of the same perquisite in the hand of employee or employer-assessee. there is no anomaly in applying Section 40A(5) while making assessment of the assessee-employer and it will clearly be wrong to apply Rule 3. That cannot be done in the teeth of the language of the section. In our opinion the law has been correctly laid down by Gujarat High Court and not by the Calcutta and Bombay Courts. 14. Before the parting we wish to place on record our sincere gratitude for the valuable assistance rendered by Mr. B. sen, Senior Advocate who readily acceded to our request to assist the court as an amicus curiae since the respondent did not appear in the matter despite being served. | 1[ds]We, however, do not think that the observations made in Calcutta case were no consideration of different scheme or there was any distinction of facts. There, Rule 3 was erroneously invoked for determining the deduction of expenditure in the assessment of assessee-employer.11. It has to b borne in mind that Section 40A(5) and Rule 3 deal with different situation and different set of assessee - one dealing with the employer-assessee and the other the employee-assessee. Rule 3 deals with the other the employee-assessee. Rule 3 deals with valuation for the purposes of the computing the income of the employees chargeable under the head "Salaries" whereas Section 40A(5) deals with computation of the income under the head "Profits and Gains of business or profession". The object of enacting Section 40A(5) was to discourage the assessee from incurring expenditure which resulted directly or indirectly in the provision of any benefit, amenity or perquisite to their employees beyond a particular limit and any expenditure incurred beyond the prescribed limit was liable to be disallowed. The said provision constitutes a composite scheme and the purpose of prescribing a ceiling on expenditure in connection with directs and employees is to discourage the employer from paying excessive salaries, remuneration, perquisites etc. to its employees and directors, and if paid, the employer would not be able to claim the entire expenditure as deduction. It will be able to claim deduction of expenditure upto the ceiling limit provided in the said section. This provision was enacted to curb extravagant expenditure. It does not contemplate deduction of notional value of perquisite assessed in the hands of the employees. It contemplates the deduction of actual expenditure or on estimate basis where the details of the actual expenditure are not furnished.12. The employer has incurred the expenditure on the care and should be able to provide its figures. If he cannot, it is fair that the expenditure should be assessed in a realistic basis and not on the basis of rule 3 which applies qua the employee, who cannot provide the figures of actual expenditure since it is not he who has incurred it.13. The High Court of Calcutta and Bombay have not properly considered that Section 40A(5) and Rule 3 operate in different fields and apply to different set of assessee. The provision of the Act was enacted to provide for ceiling on expenditure on employees. The object of the rule is to give relief to the employees. The object of the rule is to give relief to the employees. Applying Rule 3 for the purpose of determining the deduction in relation to the assessment of the employer would be doing violence to and ignoring the legislative intent evident in Section 40A(5). The question is not whether there is anything wrong in applying Rule 3 or any anomalous situation arising on account of determining different values of the same perquisite in the hand of employee or employer-assessee. there is no anomaly in applying Section 40A(5) while making assessment of the assessee-employer and it will clearly be wrong to apply Rule 3. That cannot be done in the teeth of the language of the section. In our opinion the law has been correctly laid down by Gujarat High Court and not by the Calcutta and Bombay Courts.14. Before the parting we wish to place on record our sincere gratitude for the valuable assistance rendered by Mr. B. sen, Senior Advocate who readily acceded to our request to assist the court as an amicus curiae since the respondent did not appear in the matter despite being served. | 1 | 3,064 | 659 | ### 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:
by the company to its employees is to be taken in the hands of the employees for the purpose of assessment of the employees under the head `Income from salaries at Rs. 150 per month, the same value should be taken in the hands of the assessee-company which is the employer for the purpose of working out the ceiling under s. 40(c)(iii)." 9. The Bombay High Court in the judgment and order under appeal has answered the question in favour of the assessee following its earlier decision in the case of Geoffrey Manners. In the said decision, the High Court held that though Rule 3 has been framed for determination of the value of the motor car provided by the employer to the employee for the purpose of computing the income chargeable under the head "Salaries", there is nothing wrong in applying the same for valuing the perquisites for the purpose of computing the disallowance under Section 40A(5) of the Act because the rule has been framed by the Central Board of Revenue with a view to get over the difficulties that might arise in determining the value of the perquisite in respect of the use of the car owned and maintained by the employer of the employees. As already noticed, the Bombay High Court followed the opinion expressed by the Calcutta High Court in the case of Britannia Industries Ltd. 10. In Commissioner of Income Tax v. Rajesh Textiles Mills Ltd. (173 ITR 179) the Gujarat High Court has analyzed the legal position for coming to the conclusion that the computation of monetary benefit of perquisites in the hands of the employees has to be on an entirely different footing and concerns entirely a different topic and the head of income as compared to the computation of expenses actually incurred by the employer-assessee from the point of view of their deductibility from the income of the employer under the head "Profit and Gain of business or profession". Dealing with the decision in the case of Britannia Industries Ltd., the Gujarat high Court attempted to distinguish it on facts and said that the general observations in that decision were made on an entirely different statute scheme as compared to the one with which that court was concerned. Those general observations of the Calcutta High Court that there cannot be any two different standards for assessment in respect of employee and employer. We, however, do not think that the observations made in Calcutta case were no consideration of different scheme or there was any distinction of facts. There, Rule 3 was erroneously invoked for determining the deduction of expenditure in the assessment of assessee-employer. 11. It has to b borne in mind that Section 40A(5) and Rule 3 deal with different situation and different set of assessee - one dealing with the employer-assessee and the other the employee-assessee. Rule 3 deals with the other the employee-assessee. Rule 3 deals with valuation for the purposes of the computing the income of the employees chargeable under the head "Salaries" whereas Section 40A(5) deals with computation of the income under the head "Profits and Gains of business or profession". The object of enacting Section 40A(5) was to discourage the assessee from incurring expenditure which resulted directly or indirectly in the provision of any benefit, amenity or perquisite to their employees beyond a particular limit and any expenditure incurred beyond the prescribed limit was liable to be disallowed. The said provision constitutes a composite scheme and the purpose of prescribing a ceiling on expenditure in connection with directs and employees is to discourage the employer from paying excessive salaries, remuneration, perquisites etc. to its employees and directors, and if paid, the employer would not be able to claim the entire expenditure as deduction. It will be able to claim deduction of expenditure upto the ceiling limit provided in the said section. This provision was enacted to curb extravagant expenditure. It does not contemplate deduction of notional value of perquisite assessed in the hands of the employees. It contemplates the deduction of actual expenditure or on estimate basis where the details of the actual expenditure are not furnished. 12. The employer has incurred the expenditure on the care and should be able to provide its figures. If he cannot, it is fair that the expenditure should be assessed in a realistic basis and not on the basis of rule 3 which applies qua the employee, who cannot provide the figures of actual expenditure since it is not he who has incurred it. 13. The High Court of Calcutta and Bombay have not properly considered that Section 40A(5) and Rule 3 operate in different fields and apply to different set of assessee. The provision of the Act was enacted to provide for ceiling on expenditure on employees. The object of the rule is to give relief to the employees. The object of the rule is to give relief to the employees. Applying Rule 3 for the purpose of determining the deduction in relation to the assessment of the employer would be doing violence to and ignoring the legislative intent evident in Section 40A(5). The question is not whether there is anything wrong in applying Rule 3 or any anomalous situation arising on account of determining different values of the same perquisite in the hand of employee or employer-assessee. there is no anomaly in applying Section 40A(5) while making assessment of the assessee-employer and it will clearly be wrong to apply Rule 3. That cannot be done in the teeth of the language of the section. In our opinion the law has been correctly laid down by Gujarat High Court and not by the Calcutta and Bombay Courts. 14. Before the parting we wish to place on record our sincere gratitude for the valuable assistance rendered by Mr. B. sen, Senior Advocate who readily acceded to our request to assist the court as an amicus curiae since the respondent did not appear in the matter despite being served.
### Response:
1
### Explanation:
We, however, do not think that the observations made in Calcutta case were no consideration of different scheme or there was any distinction of facts. There, Rule 3 was erroneously invoked for determining the deduction of expenditure in the assessment of assessee-employer.11. It has to b borne in mind that Section 40A(5) and Rule 3 deal with different situation and different set of assessee - one dealing with the employer-assessee and the other the employee-assessee. Rule 3 deals with the other the employee-assessee. Rule 3 deals with valuation for the purposes of the computing the income of the employees chargeable under the head "Salaries" whereas Section 40A(5) deals with computation of the income under the head "Profits and Gains of business or profession". The object of enacting Section 40A(5) was to discourage the assessee from incurring expenditure which resulted directly or indirectly in the provision of any benefit, amenity or perquisite to their employees beyond a particular limit and any expenditure incurred beyond the prescribed limit was liable to be disallowed. The said provision constitutes a composite scheme and the purpose of prescribing a ceiling on expenditure in connection with directs and employees is to discourage the employer from paying excessive salaries, remuneration, perquisites etc. to its employees and directors, and if paid, the employer would not be able to claim the entire expenditure as deduction. It will be able to claim deduction of expenditure upto the ceiling limit provided in the said section. This provision was enacted to curb extravagant expenditure. It does not contemplate deduction of notional value of perquisite assessed in the hands of the employees. It contemplates the deduction of actual expenditure or on estimate basis where the details of the actual expenditure are not furnished.12. The employer has incurred the expenditure on the care and should be able to provide its figures. If he cannot, it is fair that the expenditure should be assessed in a realistic basis and not on the basis of rule 3 which applies qua the employee, who cannot provide the figures of actual expenditure since it is not he who has incurred it.13. The High Court of Calcutta and Bombay have not properly considered that Section 40A(5) and Rule 3 operate in different fields and apply to different set of assessee. The provision of the Act was enacted to provide for ceiling on expenditure on employees. The object of the rule is to give relief to the employees. The object of the rule is to give relief to the employees. Applying Rule 3 for the purpose of determining the deduction in relation to the assessment of the employer would be doing violence to and ignoring the legislative intent evident in Section 40A(5). The question is not whether there is anything wrong in applying Rule 3 or any anomalous situation arising on account of determining different values of the same perquisite in the hand of employee or employer-assessee. there is no anomaly in applying Section 40A(5) while making assessment of the assessee-employer and it will clearly be wrong to apply Rule 3. That cannot be done in the teeth of the language of the section. In our opinion the law has been correctly laid down by Gujarat High Court and not by the Calcutta and Bombay Courts.14. Before the parting we wish to place on record our sincere gratitude for the valuable assistance rendered by Mr. B. sen, Senior Advocate who readily acceded to our request to assist the court as an amicus curiae since the respondent did not appear in the matter despite being served.
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Kishan Chand Vs. Delhi Administration And Anr | that certain emulsifying or stabilising agents, including brominated vegetable oils, shall not be used in milk and cream. Appendix B to the Rules specifies the standard of quality of various articles of food. Milk and milk products are dealt with in that Appendix under Group A. 11 which is divided into various items. Item A.11.01 which is further divided into sub-items A.11.01.01 to A.11.01.11 contains definitions and standards of purity of various kinds of milk. Item A.11.02 defines milk products thus :"Milk products means the products obtained from milk such as cream, malai, curd, skimmed milk curd, chhanna, skimmed milk chhanna, cheese, processed cheese, ice-cream, milk ices, condensed milk sweetened and unsweetened, condensed skimmed milk sweetened and unsweetened, milk powder, skimmed milk powder, partly skimmed milk powder, khoa, infant milk food, table butter and deshi butter." Then follow definitions of different kinds of milk products in sub-items A.11.02.01 to A.11.02.21. "Cream" is defined as follows in sub-item A.11.02.02 :-"Cream excluding sterilised cream means the product of cow or buffalo milk or of a combination thereof which contains not less than 25.0 per cent milk fat." Chocolate ice-cream forms the subject-matter of sub-item A.11.02.08 which runs thus :"Ice-Cream, Kulfi and Chocolate Ice-Cream mean the frozen product obtained from cow or buffalo milk or a combination thereof or from cream, and/or other milk products, with or without the addition of cane sugar, eggs, fruits, fruit juices, preserved fruits, nuts, chocolate, edible flavours and permitted food colours. It may contain permitted stabilisers and emulsifiers not exceeding 0.5 per cent by weight. The mixture shall be suitably heated before freezing. The product shall contain not less than 10.0 per cent milk fat, 3.5 per cent protein and 36.0 per cent total solids except that when any of the aforesaid preparations contain fruits or nuts or both, the content of milk fat may proportionately reduced but shall not be less than 8.0 per cent by weight." "Starch may be added to a maximum extent of 5.0 per cent under a declaration on a label as specified in sub-rule (2) of Rule 43. "The standards for ice-cream shall also apply to softy ice-cream." From the above examination of the provisions of Appendix B to the Rules, it is clearly made out that the standard of purity for each milk product has been separately laid down and that ice-cream, kulfi and chocolate ice-cream are treated as a class by themselves, which is different for the purpose of purity from other milk products including cream. The classification employed leaves no room for doubt that when the proviso to R. 61 states that certain emulsifying and stabilising agents shall not be used in milk and cream, it prohibits the use of those agents only in milk and one of its products, namely, cream and not other milk products such as malai, dahi, cheese, ice-cream and chocolate ice-cream. Had the rule-making authority meant by the proviso to prohibit the use of the said agents in all milk products, the expression used would have been "shall not be used in milk and milk products" and not "shall not be used in milk and cream." The prohibition contained in the proviso thus does not apply to ice-cream, kulfi, chocolate ice-cream covered by sub-item A.11.02.08, wherein it is clearly stated that these three milk products may contain permitted stabilisers and emulsifiers not exceeding 0.5 per cent by weight. In equating the words "milk and cream" with milk and all its products, the High Court was clearly in error and this is so in spite of the fact that ice-cream, kulfi and chocolate ice-cream must have milk or cream as a necessary ingredient. It follows that brominated vegetable oils could have formed a part of the chocolate ice-cream sold by the appellant to the extent 0.5 per cent by weight, without the article being treated as adulterated under the Rules. Before the appellant could be convicted therefore, it was incumbent on the prosecution to establish that the sample taken from him contained either brominated vegetable oils or other permitted stabilisers and emulsifiers exceeding 0.5 per cent by weight or that it did not conform to the prescribed standard in some other detail.Apart from falling into the error of misreading Rr. 60 and 61, the High Court considered the sample taken from the appellant to be adulterated by reason of the stand he had taken from the very beginning to the effect that he had used "vegetable ghee" in the preparation of the chocolate ice-cream and because, according to the High Court, "vegetable ghee" was not brominated vegetable oil. This is again an erroneous approach to the problem in hand. It was for the prosecution to prove affirmatively that the sample in question contained an ingredient which made it adulterated and any stand taken by the accused could hardly be used as evidence, unless its truth was otherwise established, which is not the case. All that was made out from the evidence before the court was that the Butyro-refractometer reading at 40 degree C was higher than the maximum prescribed for milk fat by 6.4 and that the Baudouin test was positive. These two factors indicated that either vanaspati or milk fat to which til oil had been added was one of the ingredients of the sample. There is not an iota of evidence on the record to show whether or not such til oil was brominated, which means that the prosecution had completely failed to prove that the ingredient objected to by it was a substance other than a brominated vegetable oil or that if it was oil of that description its quantity was in excess of 0.5 per cent by weight. The Butyro-refractometer reading did no doubt exceed the maximum of the prescribed standard by 6.4 and the Baudouin test was also positive but these factors did not indicate the presence in the sample of brominated vegetable oil beyond the prescribed maximum of 0.5 per cent by weight or of unbrominated vegetable oils. | 1[ds]From the above examination of the provisions of Appendix B to the Rules, it is clearly made out that the standard of purity for each milk product has been separately laid down and that ice-cream, kulfi and chocolate ice-cream are treated as a class by themselves, which is different for the purpose of purity from other milk products including cream. The classification employed leaves no room for doubt that when the proviso to R. 61 states that certain emulsifying and stabilising agents shall not be used in milk and cream, it prohibits the use of those agents only in milk and one of its products, namely, cream and not other milk products such as malai, dahi, cheese, ice-cream and chocolate ice-cream. Had the rule-making authority meant by the proviso to prohibit the use of the said agents in all milk products, the expression used would have been "shall not be used in milk and milk products" and not "shall not be used in milk and cream." The prohibition contained in the proviso thus does not apply to ice-cream, kulfi, chocolate ice-cream covered by sub-item A.11.02.08, wherein it is clearly stated that these three milk products may contain permitted stabilisers and emulsifiers not exceeding 0.5 per cent by weight. In equating the words "milk and cream" with milk and all its products, the High Court was clearly in error and this is so in spite of the fact that ice-cream, kulfi and chocolate ice-cream must have milk or cream as a necessary ingredientApart from falling into the error of misreading Rr. 60 and 61, the High Court considered the sample taken from the appellant to be adulterated by reason of the stand he had taken from the very beginning to the effect that he had used "vegetable ghee" in the preparation of the chocolate ice-cream and because, according to the High Court, "vegetable ghee" was not brominated vegetable oil. This is again an erroneous approach to the problem in handIt was for the prosecution to prove affirmatively that the sample in question contained an ingredient which made it adulterated and any stand taken by the accused could hardly be used as evidence, unless its truth was otherwise established, which is not the case. All that was made out from the evidence before the court was that the Butyro-refractometer reading at 40 degree C was higher than the maximum prescribed for milk fat by 6.4 and that the Baudouin test was positive. These two factors indicated that either vanaspati or milk fat to which til oil had been added was one of the ingredients of the sample. There is not an iota of evidence on the record to show whether or not such til oil was brominated, which means that the prosecution had completely failed to prove that the ingredient objected to by it was a substance other than a brominated vegetable oil or that if it was oil of that description its quantity was in excess of 0.5 per cent by weight. The Butyro-refractometer reading did no doubt exceed the maximum of the prescribed standard by 6.4 and the Baudouin test was also positive but these factors did not indicate the presence in the sample of brominated vegetable oil beyond the prescribed maximum of 0.5 per cent by weight or of unbrominated vegetable oils. | 1 | 2,027 | 599 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
that certain emulsifying or stabilising agents, including brominated vegetable oils, shall not be used in milk and cream. Appendix B to the Rules specifies the standard of quality of various articles of food. Milk and milk products are dealt with in that Appendix under Group A. 11 which is divided into various items. Item A.11.01 which is further divided into sub-items A.11.01.01 to A.11.01.11 contains definitions and standards of purity of various kinds of milk. Item A.11.02 defines milk products thus :"Milk products means the products obtained from milk such as cream, malai, curd, skimmed milk curd, chhanna, skimmed milk chhanna, cheese, processed cheese, ice-cream, milk ices, condensed milk sweetened and unsweetened, condensed skimmed milk sweetened and unsweetened, milk powder, skimmed milk powder, partly skimmed milk powder, khoa, infant milk food, table butter and deshi butter." Then follow definitions of different kinds of milk products in sub-items A.11.02.01 to A.11.02.21. "Cream" is defined as follows in sub-item A.11.02.02 :-"Cream excluding sterilised cream means the product of cow or buffalo milk or of a combination thereof which contains not less than 25.0 per cent milk fat." Chocolate ice-cream forms the subject-matter of sub-item A.11.02.08 which runs thus :"Ice-Cream, Kulfi and Chocolate Ice-Cream mean the frozen product obtained from cow or buffalo milk or a combination thereof or from cream, and/or other milk products, with or without the addition of cane sugar, eggs, fruits, fruit juices, preserved fruits, nuts, chocolate, edible flavours and permitted food colours. It may contain permitted stabilisers and emulsifiers not exceeding 0.5 per cent by weight. The mixture shall be suitably heated before freezing. The product shall contain not less than 10.0 per cent milk fat, 3.5 per cent protein and 36.0 per cent total solids except that when any of the aforesaid preparations contain fruits or nuts or both, the content of milk fat may proportionately reduced but shall not be less than 8.0 per cent by weight." "Starch may be added to a maximum extent of 5.0 per cent under a declaration on a label as specified in sub-rule (2) of Rule 43. "The standards for ice-cream shall also apply to softy ice-cream." From the above examination of the provisions of Appendix B to the Rules, it is clearly made out that the standard of purity for each milk product has been separately laid down and that ice-cream, kulfi and chocolate ice-cream are treated as a class by themselves, which is different for the purpose of purity from other milk products including cream. The classification employed leaves no room for doubt that when the proviso to R. 61 states that certain emulsifying and stabilising agents shall not be used in milk and cream, it prohibits the use of those agents only in milk and one of its products, namely, cream and not other milk products such as malai, dahi, cheese, ice-cream and chocolate ice-cream. Had the rule-making authority meant by the proviso to prohibit the use of the said agents in all milk products, the expression used would have been "shall not be used in milk and milk products" and not "shall not be used in milk and cream." The prohibition contained in the proviso thus does not apply to ice-cream, kulfi, chocolate ice-cream covered by sub-item A.11.02.08, wherein it is clearly stated that these three milk products may contain permitted stabilisers and emulsifiers not exceeding 0.5 per cent by weight. In equating the words "milk and cream" with milk and all its products, the High Court was clearly in error and this is so in spite of the fact that ice-cream, kulfi and chocolate ice-cream must have milk or cream as a necessary ingredient. It follows that brominated vegetable oils could have formed a part of the chocolate ice-cream sold by the appellant to the extent 0.5 per cent by weight, without the article being treated as adulterated under the Rules. Before the appellant could be convicted therefore, it was incumbent on the prosecution to establish that the sample taken from him contained either brominated vegetable oils or other permitted stabilisers and emulsifiers exceeding 0.5 per cent by weight or that it did not conform to the prescribed standard in some other detail.Apart from falling into the error of misreading Rr. 60 and 61, the High Court considered the sample taken from the appellant to be adulterated by reason of the stand he had taken from the very beginning to the effect that he had used "vegetable ghee" in the preparation of the chocolate ice-cream and because, according to the High Court, "vegetable ghee" was not brominated vegetable oil. This is again an erroneous approach to the problem in hand. It was for the prosecution to prove affirmatively that the sample in question contained an ingredient which made it adulterated and any stand taken by the accused could hardly be used as evidence, unless its truth was otherwise established, which is not the case. All that was made out from the evidence before the court was that the Butyro-refractometer reading at 40 degree C was higher than the maximum prescribed for milk fat by 6.4 and that the Baudouin test was positive. These two factors indicated that either vanaspati or milk fat to which til oil had been added was one of the ingredients of the sample. There is not an iota of evidence on the record to show whether or not such til oil was brominated, which means that the prosecution had completely failed to prove that the ingredient objected to by it was a substance other than a brominated vegetable oil or that if it was oil of that description its quantity was in excess of 0.5 per cent by weight. The Butyro-refractometer reading did no doubt exceed the maximum of the prescribed standard by 6.4 and the Baudouin test was also positive but these factors did not indicate the presence in the sample of brominated vegetable oil beyond the prescribed maximum of 0.5 per cent by weight or of unbrominated vegetable oils.
### Response:
1
### Explanation:
From the above examination of the provisions of Appendix B to the Rules, it is clearly made out that the standard of purity for each milk product has been separately laid down and that ice-cream, kulfi and chocolate ice-cream are treated as a class by themselves, which is different for the purpose of purity from other milk products including cream. The classification employed leaves no room for doubt that when the proviso to R. 61 states that certain emulsifying and stabilising agents shall not be used in milk and cream, it prohibits the use of those agents only in milk and one of its products, namely, cream and not other milk products such as malai, dahi, cheese, ice-cream and chocolate ice-cream. Had the rule-making authority meant by the proviso to prohibit the use of the said agents in all milk products, the expression used would have been "shall not be used in milk and milk products" and not "shall not be used in milk and cream." The prohibition contained in the proviso thus does not apply to ice-cream, kulfi, chocolate ice-cream covered by sub-item A.11.02.08, wherein it is clearly stated that these three milk products may contain permitted stabilisers and emulsifiers not exceeding 0.5 per cent by weight. In equating the words "milk and cream" with milk and all its products, the High Court was clearly in error and this is so in spite of the fact that ice-cream, kulfi and chocolate ice-cream must have milk or cream as a necessary ingredientApart from falling into the error of misreading Rr. 60 and 61, the High Court considered the sample taken from the appellant to be adulterated by reason of the stand he had taken from the very beginning to the effect that he had used "vegetable ghee" in the preparation of the chocolate ice-cream and because, according to the High Court, "vegetable ghee" was not brominated vegetable oil. This is again an erroneous approach to the problem in handIt was for the prosecution to prove affirmatively that the sample in question contained an ingredient which made it adulterated and any stand taken by the accused could hardly be used as evidence, unless its truth was otherwise established, which is not the case. All that was made out from the evidence before the court was that the Butyro-refractometer reading at 40 degree C was higher than the maximum prescribed for milk fat by 6.4 and that the Baudouin test was positive. These two factors indicated that either vanaspati or milk fat to which til oil had been added was one of the ingredients of the sample. There is not an iota of evidence on the record to show whether or not such til oil was brominated, which means that the prosecution had completely failed to prove that the ingredient objected to by it was a substance other than a brominated vegetable oil or that if it was oil of that description its quantity was in excess of 0.5 per cent by weight. The Butyro-refractometer reading did no doubt exceed the maximum of the prescribed standard by 6.4 and the Baudouin test was also positive but these factors did not indicate the presence in the sample of brominated vegetable oil beyond the prescribed maximum of 0.5 per cent by weight or of unbrominated vegetable oils.
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Commissioner of Income Tax, Madhya Pradesh Vs. M/s. Binodiram Balchand, Indore | whether the dividend income of the assessee should have been assessed both for the purpose of income-tax as well as super-tax at the rates prescribed in the Schedule to the Order.5. The High Courts finding that the dividend income accrued or received by the assessee in Madhya Bharat is subject to super-tax as well as its finding that a part of dividend income is subject to income-tax had not been appealed against. Hence it is not necessary to go into that question. Therefore the question that remains for examination is whether the High Court was right in holding that the income-tax and super-tax leviable on the dividend income is at the concessional rates mentioned in the Order.6. It may be noted that in Madhya Bharat till April 1, 1950, there was no State law relating to the charge of income-tax and super-tax. Paragraph 3 (v) of the Order defines the expression "State rate of tax". The explanation to that definition says: "Where there was no State law relating to charge of income-tax and super-tax, the rates of income-tax and super-tax in force in that State immediately before the appointed day (in the present case 1st day of April, 1950), shall, for the purpose of this clause, be deemed to be the rates specified in the Schedule". Paragraph 4 (i) says that the provisions of paragraphs 5, 6, sub-paragraph (1) of paragraph 11, 12 and 13 of this Order shall apply . . . . . ."(iii) in the case of any other assessee who is not resident in the previous year in the taxable territories or in the taxable territories other than Part B States, to so much of the income, profits and gains included in his total income as accrue or arise in any Part B State and are not deemed to accrue or arise, or are not received or deemed to be received within the meaning of clause (a) of sub-section (1) of Section 4 of the Act, in the taxable territories other than the Part B States."7. The assessee in the relevant "previous year" was a resident of Madhya Bharat. His income with which was are concerned in this appeal exclusively accrued or arose in Madhya Bharat. Therefore the assessee is entitled to the benefit of paragraphs 5, 6, sub-paragraph (1) of paragraph 11, 12 and 13 of the Order.8. Paragraph 5 deals with the income of a "previous year" chargeable in the Part B State in 1949-50. The assessees case does not fall within its scope. Paragraph 6 deals with income of a "previous year" which does not fall under paragraph 5. That paragraph to the extent it is material for our present purpose reads :"The income, profits and gains of any previous year ending after the 31st day of march, 1949, which does not fall within paragraph 5 of this order shall be assessed under the Act for the year ending on the 31st day of March, 1951 or on the 31st day of March, 1952, as the case may be, and the tax payable thereon shall be determined as hereunder :In respect of so much of the income, profits and gains included in the total income as accrue or arise in any State other than the States of Patiala East Punjab States Union and Travancore Cochin -(i) the tax shall be computed (a) at the Indian rate of tax and (b) at the State rate of tax in force immediately before the appointed day;(ii) where the amount of tax computed under sub-clause (a) of clause (i) is less than or is equal to the amount of tax computed under sub-clause (b) of clause (i), the amount of the first mentioned tax shall be the tax payable;(iii) where the amount of tax computed under sub-clause (a) of clause (i) exceeds the tax computed under sub-clause (b) of clause (i) the excess shall be allowed as a rebate from the first mentioned tax and the amount of the first mentioned tax as so reduced shall be the tax payable."9. The provisos to that paragraph are not relevant for our present purpose.10. In view of clauses 1 to 3 of paragraph 6 read with explanation to paragraph 3 (v), the tax payable by the assessee, income-tax as well as super-tax has to be computed on the basis of the formulae given in paragraph 6. In other words, the assessment will have to be made at the concessional rate mentioned in the Schedule to the Order.11. Paragraph 12 of the Order deals with dividends. It reads :"Where the total income of an assesee chargeable to tax for the assessment for the year ending on the 31st day of March, 1951, includes any income from dividends paid by a company registered in a State in which there was no State law relating to the charge of income-tax and super-tax and the dividend is paid out of profits which were not liable to be taxed, in whole or in part, either in the State or in the taxable territories, no income-tax shall be payable by the assessee on such proportion of the dividend as the non-taxable profits of the company arising in the State bear to the total income of the company."12. The income with which we are concerned in this case is dividend income. It was paid by a company registered in a B State in which there was no State law relating to the charge of income-tax and super-tax. The department does not dispute that the dividend income of Rs. 2,28,392/- is only subject to super-tax and no income-tax is leviable thereon. In other words it does not contest the finding that the dividend income falls within the scope of paragraph 12 of the Order. Once that is conceded, as has been done, then there can be no doubt, in view of paragraph 6 of the Order that on that amount super-tax has to be levied only at the concessional rate prescribed in the Schedule to the Order. | 1[ds]o far as the first question is concerned viz., whether the assessee was entitled to take the financial year as the relevant previousyear, the same is concluded by our decision in Commr. of Income-tax, Madhya Pradesh v. Kanchanbai, (Civil Appeal No. 19 of 1969 (SC)) just now delivered. For the reasons mentioned therein the decision of the High Court on this point is confirmed.The High Courts finding that the dividend income accrued or received by the assessee in Madhya Bharat is subject to super-tax as well as its finding that a part of dividend income is subject to income-tax had not been appealed against. Hence it is not necessary to go into that question. Therefore the question that remains for examination is whether the High Court was right in holding that the income-tax and super-tax leviable on the dividend income is at the concessional rates mentioned in the Order.The assessee in the relevant "previous year" was a resident of Madhya Bharat. His income with which was are concerned in this appeal exclusively accrued or arose in Madhya Bharat. Therefore the assessee is entitled to the benefit of paragraphs 5, 6, sub-paragraph (1) of paragraph 11, 12 and 13 of the Order.In view of clauses 1 to 3 of paragraph 6 read with explanation to paragraph 3 (v), the tax payable by the assessee, income-tax as well as super-tax has to be computed on the basis of the formulae given in paragraph 6. In other words, the assessment will have to be made at the concessional rate mentioned in the Schedule to the Order.The income with which we are concerned in this case is dividend income. It was paid by a company registered in a B State in which there was no State law relating to the charge of income-tax and super-tax. The department does not dispute that the dividend income of Rs. 2,28,392/- is only subject to super-tax and no income-tax is leviable thereon. In other words it does not contest the finding that the dividend income falls within the scope of paragraph 12 of the Order. Once that is conceded, as has been done, then there can be no doubt, in view of paragraph 6 of the Order that on that amount super-tax has to be levied only at the concessional rate prescribed in the Schedule to the Order. | 1 | 2,126 | 431 | ### 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:
whether the dividend income of the assessee should have been assessed both for the purpose of income-tax as well as super-tax at the rates prescribed in the Schedule to the Order.5. The High Courts finding that the dividend income accrued or received by the assessee in Madhya Bharat is subject to super-tax as well as its finding that a part of dividend income is subject to income-tax had not been appealed against. Hence it is not necessary to go into that question. Therefore the question that remains for examination is whether the High Court was right in holding that the income-tax and super-tax leviable on the dividend income is at the concessional rates mentioned in the Order.6. It may be noted that in Madhya Bharat till April 1, 1950, there was no State law relating to the charge of income-tax and super-tax. Paragraph 3 (v) of the Order defines the expression "State rate of tax". The explanation to that definition says: "Where there was no State law relating to charge of income-tax and super-tax, the rates of income-tax and super-tax in force in that State immediately before the appointed day (in the present case 1st day of April, 1950), shall, for the purpose of this clause, be deemed to be the rates specified in the Schedule". Paragraph 4 (i) says that the provisions of paragraphs 5, 6, sub-paragraph (1) of paragraph 11, 12 and 13 of this Order shall apply . . . . . ."(iii) in the case of any other assessee who is not resident in the previous year in the taxable territories or in the taxable territories other than Part B States, to so much of the income, profits and gains included in his total income as accrue or arise in any Part B State and are not deemed to accrue or arise, or are not received or deemed to be received within the meaning of clause (a) of sub-section (1) of Section 4 of the Act, in the taxable territories other than the Part B States."7. The assessee in the relevant "previous year" was a resident of Madhya Bharat. His income with which was are concerned in this appeal exclusively accrued or arose in Madhya Bharat. Therefore the assessee is entitled to the benefit of paragraphs 5, 6, sub-paragraph (1) of paragraph 11, 12 and 13 of the Order.8. Paragraph 5 deals with the income of a "previous year" chargeable in the Part B State in 1949-50. The assessees case does not fall within its scope. Paragraph 6 deals with income of a "previous year" which does not fall under paragraph 5. That paragraph to the extent it is material for our present purpose reads :"The income, profits and gains of any previous year ending after the 31st day of march, 1949, which does not fall within paragraph 5 of this order shall be assessed under the Act for the year ending on the 31st day of March, 1951 or on the 31st day of March, 1952, as the case may be, and the tax payable thereon shall be determined as hereunder :In respect of so much of the income, profits and gains included in the total income as accrue or arise in any State other than the States of Patiala East Punjab States Union and Travancore Cochin -(i) the tax shall be computed (a) at the Indian rate of tax and (b) at the State rate of tax in force immediately before the appointed day;(ii) where the amount of tax computed under sub-clause (a) of clause (i) is less than or is equal to the amount of tax computed under sub-clause (b) of clause (i), the amount of the first mentioned tax shall be the tax payable;(iii) where the amount of tax computed under sub-clause (a) of clause (i) exceeds the tax computed under sub-clause (b) of clause (i) the excess shall be allowed as a rebate from the first mentioned tax and the amount of the first mentioned tax as so reduced shall be the tax payable."9. The provisos to that paragraph are not relevant for our present purpose.10. In view of clauses 1 to 3 of paragraph 6 read with explanation to paragraph 3 (v), the tax payable by the assessee, income-tax as well as super-tax has to be computed on the basis of the formulae given in paragraph 6. In other words, the assessment will have to be made at the concessional rate mentioned in the Schedule to the Order.11. Paragraph 12 of the Order deals with dividends. It reads :"Where the total income of an assesee chargeable to tax for the assessment for the year ending on the 31st day of March, 1951, includes any income from dividends paid by a company registered in a State in which there was no State law relating to the charge of income-tax and super-tax and the dividend is paid out of profits which were not liable to be taxed, in whole or in part, either in the State or in the taxable territories, no income-tax shall be payable by the assessee on such proportion of the dividend as the non-taxable profits of the company arising in the State bear to the total income of the company."12. The income with which we are concerned in this case is dividend income. It was paid by a company registered in a B State in which there was no State law relating to the charge of income-tax and super-tax. The department does not dispute that the dividend income of Rs. 2,28,392/- is only subject to super-tax and no income-tax is leviable thereon. In other words it does not contest the finding that the dividend income falls within the scope of paragraph 12 of the Order. Once that is conceded, as has been done, then there can be no doubt, in view of paragraph 6 of the Order that on that amount super-tax has to be levied only at the concessional rate prescribed in the Schedule to the Order.
### Response:
1
### Explanation:
o far as the first question is concerned viz., whether the assessee was entitled to take the financial year as the relevant previousyear, the same is concluded by our decision in Commr. of Income-tax, Madhya Pradesh v. Kanchanbai, (Civil Appeal No. 19 of 1969 (SC)) just now delivered. For the reasons mentioned therein the decision of the High Court on this point is confirmed.The High Courts finding that the dividend income accrued or received by the assessee in Madhya Bharat is subject to super-tax as well as its finding that a part of dividend income is subject to income-tax had not been appealed against. Hence it is not necessary to go into that question. Therefore the question that remains for examination is whether the High Court was right in holding that the income-tax and super-tax leviable on the dividend income is at the concessional rates mentioned in the Order.The assessee in the relevant "previous year" was a resident of Madhya Bharat. His income with which was are concerned in this appeal exclusively accrued or arose in Madhya Bharat. Therefore the assessee is entitled to the benefit of paragraphs 5, 6, sub-paragraph (1) of paragraph 11, 12 and 13 of the Order.In view of clauses 1 to 3 of paragraph 6 read with explanation to paragraph 3 (v), the tax payable by the assessee, income-tax as well as super-tax has to be computed on the basis of the formulae given in paragraph 6. In other words, the assessment will have to be made at the concessional rate mentioned in the Schedule to the Order.The income with which we are concerned in this case is dividend income. It was paid by a company registered in a B State in which there was no State law relating to the charge of income-tax and super-tax. The department does not dispute that the dividend income of Rs. 2,28,392/- is only subject to super-tax and no income-tax is leviable thereon. In other words it does not contest the finding that the dividend income falls within the scope of paragraph 12 of the Order. Once that is conceded, as has been done, then there can be no doubt, in view of paragraph 6 of the Order that on that amount super-tax has to be levied only at the concessional rate prescribed in the Schedule to the Order.
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Delhi Cloth & General Mills Co. Ltd. & Ors Vs. R. R. Gupta, Commercial Tax Officer, Jaipur & Anr | fashion as the cotton fabrics are specified by name in item 19.It is certainly a question which appertains to the knowledge of technical aspects of textile weaving and production to determine at what stage threads or cords forming warps and wefts really amount to a "fabric". It is true t hat the term fabric has a wide meaning. Its first meaning given in the Oxford English Dictionary is: "A product of skilled workmanship". The first example of such a product is: "An edifice, a building". The fourth example of the first meaning is: I "a manufactured material; now only a textile fabric, a woven stuff". 9. We think that we are necessarily concerned here only with "textiles" as fabrics. This is clear from entries 19 to 22(D) of the first Schedule of the Central Excises and S alt Act, 1944. Entry 22AA is "textile fabrics not elsewhere specified". This residuary entry and the descriptions in preceding entries seem to us to make it abundantly clear that we are dealing here only with "textile fabrics". The case of the Delhi Cloth Mills also is that the product is a. "textile". There fore, the essential question to determine is the stage at which the goods under consideration become a textile fabric". The meaning of the term "textile", given in the Oxford Dictionary, is: "A woven fabric; any kind of cloth". It must acquire a body and a texture. Presumably it is not just the skeleton of a textile. Apparently, it is more than that. But, against pushing this point of view too far it may be urged that in t he technical and commercial parlance we are dealing with a "fabric". 10. It is, therefore, difficult to find fault with the view of the High Court that there is no error apparent on the face of the record and that the taxing authorities should be left to determine whether the "tyre cord fabric" is more correctly capable of being described as a fabric or as merely cord pretending to pass off as ar textile fabric This is really a technical question. In any case, it is a question on which two views seem possible on apparent facts. And, neither of the two views can be rejected outright as untenable. It requires careful consideration of the technical processes of manufacturing, of the composition of the "tyre cord fabric, and an evaluation of opinion of experts on the subject, to be able to decide the question satisfactorily may also require some examination of commercial usage and terminology or the language of the market in goods of this type. We, therefore, think that the High Court was right in not interfering with the decisions of the taxing authorities at this stage. We also think that for the same reason we could not interfere under Article 32 with the decision of the Commercial Tax officer. Indeed, no fundamental right is shown to be affected by a mere determination of the question indicated above. There is no absence of jurisdiction of the taxing authorities who had the power to decide the question either rightly or wrongly. 11. It has been urged, on behalf of the Delhi Cloth Mills that the High Court should have interfered as the question whether the tyre cord fabric is the end product or not in the final manufacture of an- other fabric was quite irrelevant. It was submitted that, so far as the Delhi Cloth Mills is concerned, the goods under consideration constitute the "end product" which they sell in the market. The example given was that of cloth which is the "end product" for the mills which manufacture cloth, but, it becomes the raw material for tailors and for those who make ready-made clothes to sell them. This argument overlooks that it is not so much the point of manufacture at which the Mills sell their own product which determine s the nature of goods which are entitled to exemption, but it is the stage reached by this product, in the process of manufacture of fabrication of a "textile", which should decide the question. As we have already indicated, the context in which the entry occurs shows that it is meant for "textile" fabrics and not for any kind of fabric. Therefore even if the tyre cord fabric may be the end product for the Delhi Cloth Mills, the crucial question is: Does this product constitute a fabric which is a textile? A textile fabric does not cover everything which could be made into a fabric. Mere cord does not become a textile fabric just because it requires some skill to make it. The rather wide dictionary meanings of the term "fabric" do not appear to us to give the exact meaning of the term "fabric" as used in the relevant entries entitled to exemption. In the entries, it evidently means a fabric which is also a textile. The question, therefore, to be determined by the Tax authorities themselves is whether the product for which the Delhi Cloth Mill claims exemption Is a textile fabric and not any other kind of fabric.Having indicated the nature of the enquiry which must by undertaken by the taxing authorities, w e find that there is no sufficient reason for overriding and discarding the High Courts view that, on what appeared to the High Court to be a question of fact, it should not decide whether the product under consideration constitutes a fabric entitled to exemption. 12. There was no appeal by the State of Rajasthan. It does not, therefore, seem propel. for us to finally decide, on merits, the question argued before us in the appeals by the Delhi Cloth Mills which are before us unless we could have decided the matter in favour of the appellant. We could have only done that if we were of opinion that the taxing authorities had committed error apparent on the face of the record. But, as already indicated above, we are not of this opinion. 13. | 0[ds]It is urged on behalf of the Delhi Cloth Mills that no disputed question of fact arises. It is submitted that, on admitted facts, it could be decided whether the "tyre cord fabric" is an exempted "fabric" or not. We think that this view over-looks several matters, indicated below, including the admission on behalf of the Delhi Cloth Mills that, in the case before us, the "tyre cord fabric" manufactured by it is woven by its purchasers "into a fabric in the same way as is being done by the first petitioner". This cert ainly means that the tyre cord fabric serves as raw material for another fabric which ultimately emerges by subjecting the goods manufactured by Delhi Cloth Mills to a process of impregnating with rubberIt is, therefore, difficult to find fault with the view of the High Court that there is no error apparent on the face of the record and that the taxing authorities should be left to determine whether the "tyre cord fabric" is more correctly capable of being described as a fabric or as merely cord pretending to pass off as ar textile fabric This is really a technical question. In any case, it is a question on which two views seem possible on apparent facts. And, neither of the two views can be rejected outright as untenable. It requires careful consideration of the technical processes of manufacturing, of the composition of the "tyre cord fabric, and an evaluation of opinion of experts on the subject, to be able to decide the question satisfactorily may also require some examination of commercial usage and terminology or the language of the market in goods of this type. We, therefore, think that the High Court was right in not interfering with the decisions of the taxing authorities at this stage. We also think that for the same reason we could not interfere under Article 32 with the decision of the Commercial Tax officer. Indeed, no fundamental right is shown to be affected by a mere determination of the question indicated above. There is no absence of jurisdiction of the taxing authorities who had the power to decide the question either rightly or wronglyHaving indicated the nature of the enquiry which must by undertaken by the taxing authorities, w e find that there is no sufficient reason for overriding and discarding the High Courts view that, on what appeared to the High Court to be a question of fact, it should not decide whether the product under consideration constitutes a fabric entitled to exemptionThere was no appeal by the State of Rajasthan. It does not, therefore, seem propel. for us to finally decide, on merits, the question argued before us in the appeals by the Delhi Cloth Mills which are before us unless we could have decided the matter in favour of the appellant. We could have only done that if we were of opinion that the taxing authorities had committed error apparent on the face of the record. But, as already indicated above, we are not of this opinion. | 0 | 2,728 | 566 | ### Instruction:
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fashion as the cotton fabrics are specified by name in item 19.It is certainly a question which appertains to the knowledge of technical aspects of textile weaving and production to determine at what stage threads or cords forming warps and wefts really amount to a "fabric". It is true t hat the term fabric has a wide meaning. Its first meaning given in the Oxford English Dictionary is: "A product of skilled workmanship". The first example of such a product is: "An edifice, a building". The fourth example of the first meaning is: I "a manufactured material; now only a textile fabric, a woven stuff". 9. We think that we are necessarily concerned here only with "textiles" as fabrics. This is clear from entries 19 to 22(D) of the first Schedule of the Central Excises and S alt Act, 1944. Entry 22AA is "textile fabrics not elsewhere specified". This residuary entry and the descriptions in preceding entries seem to us to make it abundantly clear that we are dealing here only with "textile fabrics". The case of the Delhi Cloth Mills also is that the product is a. "textile". There fore, the essential question to determine is the stage at which the goods under consideration become a textile fabric". The meaning of the term "textile", given in the Oxford Dictionary, is: "A woven fabric; any kind of cloth". It must acquire a body and a texture. Presumably it is not just the skeleton of a textile. Apparently, it is more than that. But, against pushing this point of view too far it may be urged that in t he technical and commercial parlance we are dealing with a "fabric". 10. It is, therefore, difficult to find fault with the view of the High Court that there is no error apparent on the face of the record and that the taxing authorities should be left to determine whether the "tyre cord fabric" is more correctly capable of being described as a fabric or as merely cord pretending to pass off as ar textile fabric This is really a technical question. In any case, it is a question on which two views seem possible on apparent facts. And, neither of the two views can be rejected outright as untenable. It requires careful consideration of the technical processes of manufacturing, of the composition of the "tyre cord fabric, and an evaluation of opinion of experts on the subject, to be able to decide the question satisfactorily may also require some examination of commercial usage and terminology or the language of the market in goods of this type. We, therefore, think that the High Court was right in not interfering with the decisions of the taxing authorities at this stage. We also think that for the same reason we could not interfere under Article 32 with the decision of the Commercial Tax officer. Indeed, no fundamental right is shown to be affected by a mere determination of the question indicated above. There is no absence of jurisdiction of the taxing authorities who had the power to decide the question either rightly or wrongly. 11. It has been urged, on behalf of the Delhi Cloth Mills that the High Court should have interfered as the question whether the tyre cord fabric is the end product or not in the final manufacture of an- other fabric was quite irrelevant. It was submitted that, so far as the Delhi Cloth Mills is concerned, the goods under consideration constitute the "end product" which they sell in the market. The example given was that of cloth which is the "end product" for the mills which manufacture cloth, but, it becomes the raw material for tailors and for those who make ready-made clothes to sell them. This argument overlooks that it is not so much the point of manufacture at which the Mills sell their own product which determine s the nature of goods which are entitled to exemption, but it is the stage reached by this product, in the process of manufacture of fabrication of a "textile", which should decide the question. As we have already indicated, the context in which the entry occurs shows that it is meant for "textile" fabrics and not for any kind of fabric. Therefore even if the tyre cord fabric may be the end product for the Delhi Cloth Mills, the crucial question is: Does this product constitute a fabric which is a textile? A textile fabric does not cover everything which could be made into a fabric. Mere cord does not become a textile fabric just because it requires some skill to make it. The rather wide dictionary meanings of the term "fabric" do not appear to us to give the exact meaning of the term "fabric" as used in the relevant entries entitled to exemption. In the entries, it evidently means a fabric which is also a textile. The question, therefore, to be determined by the Tax authorities themselves is whether the product for which the Delhi Cloth Mill claims exemption Is a textile fabric and not any other kind of fabric.Having indicated the nature of the enquiry which must by undertaken by the taxing authorities, w e find that there is no sufficient reason for overriding and discarding the High Courts view that, on what appeared to the High Court to be a question of fact, it should not decide whether the product under consideration constitutes a fabric entitled to exemption. 12. There was no appeal by the State of Rajasthan. It does not, therefore, seem propel. for us to finally decide, on merits, the question argued before us in the appeals by the Delhi Cloth Mills which are before us unless we could have decided the matter in favour of the appellant. We could have only done that if we were of opinion that the taxing authorities had committed error apparent on the face of the record. But, as already indicated above, we are not of this opinion. 13.
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It is urged on behalf of the Delhi Cloth Mills that no disputed question of fact arises. It is submitted that, on admitted facts, it could be decided whether the "tyre cord fabric" is an exempted "fabric" or not. We think that this view over-looks several matters, indicated below, including the admission on behalf of the Delhi Cloth Mills that, in the case before us, the "tyre cord fabric" manufactured by it is woven by its purchasers "into a fabric in the same way as is being done by the first petitioner". This cert ainly means that the tyre cord fabric serves as raw material for another fabric which ultimately emerges by subjecting the goods manufactured by Delhi Cloth Mills to a process of impregnating with rubberIt is, therefore, difficult to find fault with the view of the High Court that there is no error apparent on the face of the record and that the taxing authorities should be left to determine whether the "tyre cord fabric" is more correctly capable of being described as a fabric or as merely cord pretending to pass off as ar textile fabric This is really a technical question. In any case, it is a question on which two views seem possible on apparent facts. And, neither of the two views can be rejected outright as untenable. It requires careful consideration of the technical processes of manufacturing, of the composition of the "tyre cord fabric, and an evaluation of opinion of experts on the subject, to be able to decide the question satisfactorily may also require some examination of commercial usage and terminology or the language of the market in goods of this type. We, therefore, think that the High Court was right in not interfering with the decisions of the taxing authorities at this stage. We also think that for the same reason we could not interfere under Article 32 with the decision of the Commercial Tax officer. Indeed, no fundamental right is shown to be affected by a mere determination of the question indicated above. There is no absence of jurisdiction of the taxing authorities who had the power to decide the question either rightly or wronglyHaving indicated the nature of the enquiry which must by undertaken by the taxing authorities, w e find that there is no sufficient reason for overriding and discarding the High Courts view that, on what appeared to the High Court to be a question of fact, it should not decide whether the product under consideration constitutes a fabric entitled to exemptionThere was no appeal by the State of Rajasthan. It does not, therefore, seem propel. for us to finally decide, on merits, the question argued before us in the appeals by the Delhi Cloth Mills which are before us unless we could have decided the matter in favour of the appellant. We could have only done that if we were of opinion that the taxing authorities had committed error apparent on the face of the record. But, as already indicated above, we are not of this opinion.
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Sunder Kukreja & Others Vs. Mohan Lal Kukreja & Another | were not genuine. 10. The learned Single Judge held that the plea that there was no dispute because of the alleged retirement deed and receipts can be easily gone into by the arbitrator, and in view of the report of the forensic expert between the parties it cannot be prima facie said that the dispute does not subsist. The report of the forensic expert creates a substantial doubt in the stand taken by the respondent of the alleged retirement of the appellant from the partnership. 11. The learned Single Judge relied on the decision of this Court in Erach F.D. Mehta vs. Minoo F.D. Mehta AIR 1971 SC 1653 and held that the arbitration clause in the present case is wide enough to include all the disputes sought to be referred. Hence the learned single Judge allowed the petition under Section 20. 12. In appeal, however, the Division Bench of the High Court was of the view that in case there is a dispute as to the very existence of an arbitration clause by reason of supersession of the agreement in which the same is contained by another subsequent agreement arrived at between the parties, the said dispute cannot be referred to arbitration. The Division Bench hence set aside the judgment of the learned Single Judge and remanded the matter to learned Single Judge for a fresh consideration of the question whether the alleged retirement deed was never executed between the parties. 13. In our opinion the judgment of the Division Bench cannot be sustained. It is true that as held by the seven Judge Full Bench decision of this Court in M/s. S.B.P. & Co. vs. M/s. Patel Engineering Ltd. and Anr. JT 2005(9) SC 219 (vide para 46) the Chief Justice or the designated Judge has the right to decide the question of the existence of a valid agreement and the existence or otherwise of a live claim. However, as pointed out by this Court in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. JT 2007(4) SC 501 (vide para 27) the Chief Justice or his designate Judge has to examine the claim as to whether the dispute is a dead one in the sense whether the parties have already concluded the transaction and have recorded satisfaction of their mutual rights and obligations, or whether it is still alive. In the same judgment in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. (supra) this Court observed: ....................It is in this sense that the Chief Justice has to examine as to whether their remains anything to be decided between the parties in respect of the agreement and whether the parties are still at issue on any such matter. If the Chief Justice does not, in the strict sense, decide the issue, in that event it is for him to locate such issue and record his satisfaction that such issue exists between the parties. It is only in that sense that the finding on a live issue is given. Even at the cost of repetition we must state that it is only for the purpose of finding out whether the arbitral procedure has to be started that the Chief Justice has to record satisfaction that their remains a live issue in between the parties. The same thing is about the limitation which is always a mixed question of law and fact. The Chief Justice only has to record his satisfaction that prima facie the issue has not become dead by the lapse of time or that any party to the agreement has not slept over its rights beyond the time permitted by law to agitate those issues covered by the agreement. It is for this reason that it was pointed out in the above para that it would be appropriate sometimes to leave the question regarding the live claim to be decided by the Arbitral Tribunal.................... (emphasis supplied) 14. It may be mentioned that the decision of this Court in M/s. Patel Engineering case (supra) and M/s. Shree Ram Mills Ltd. case (supra) pertained to the Arbitration and Conciliation Act, 1996 and not to the Arbitration Act of 1940. The present case is governed by the Arbitration Act of 1940, but in our opinion even if it is governed by the 1940 Act that will not make any difference in the present case. We are only adopting the logic in those decisions. The decision of this Court in Damodar Valley Corporation vs. K.K. Kar AIR 1974 SC 158 (vide para 7) is in our opinion distinguishable on facts because in that case there was no report of an expert that the subsequent deed was fake, as is in the present case. 15. In the present case the learned Single Judge had referred the matter to a forensic expert who gave a report that the alleged retirement deed dated 16.8.1990 was not genuine and had not been executed by the appellant. On the basis of this report of the forensic expert, the learned Single Judge recorded a prima facie satisfaction that the dispute is still alive and deserved to be referred to the arbitrator. 16. There is no dispute in this case about the validity or existence of the partnership deed or the arbitration clause therein. 17. In our opinion the learned Division Bench was not correct in holding that the dispute should not have been referred to the arbitrator in view of the alleged retirement deed dated 16.8.1990. The very genuineness of the said retirement deed was challenged and in fact the forensic expert gave a report that it was not genuine. The learned Single Judge has recorded prima facie satisfaction that the dispute had not become dead. Hence, in view of the decision of this Court in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. (supra) it would have been appropriate to have left the question regarding the genuineness of the alleged retirement deed to be decided by the arbitrator. | 1[ds]13. In our opinion the judgment of the Division Bench cannot be sustained. It is true that as held by the seven Judge Full Bench decision of this Court in M/s. S.B.P. & Co. vs. M/s. Patel Engineering Ltd. and Anr. JT 2005(9) SC 219 (vide para 46) the Chief Justice or the designated Judge has the right to decide the question of the existence of a valid agreement and the existence or otherwise of a live claim. However, as pointed out by this Court in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. JT 2007(4) SC 501 (vide para 27) the Chief Justice or his designate Judge has to examine the claim as to whether the dispute is a dead one in the sense whether the parties have already concluded the transaction and have recorded satisfaction of their mutual rights and obligations, or whether it is still alive14. It may be mentioned that the decision of this Court in M/s. Patel Engineering case (supra) and M/s. Shree Ram Mills Ltd. case (supra) pertained to the Arbitration and Conciliation Act, 1996 and not to the Arbitration Act of 1940. The present case is governed by the Arbitration Act of 1940, but in our opinion even if it is governed by the 1940 Act that will not make any difference in the present case. We are only adopting the logic in those decisions. The decision of this Court in Damodar Valley Corporation vs. K.K. Kar AIR 1974 SC 158 (vide para 7) is in our opinion distinguishable on facts because in that case there was no report of an expert that the subsequent deed was fake, as is in the present case15. In the present case the learned Single Judge had referred the matter to a forensic expert who gave a report that the alleged retirement deed dated 16.8.1990 was not genuine and had not been executed by the appellant. On the basis of this report of the forensic expert, the learned Single Judge recorded a prima facie satisfaction that the dispute is still alive and deserved to be referred to the arbitrator16. There is no dispute in this case about the validity or existence of the partnership deed or the arbitration clause therein17. In our opinion the learned Division Bench was not correct in holding that the dispute should not have been referred to the arbitrator in view of the alleged retirement deed dated 16.8.1990. The very genuineness of the said retirement deed was challenged and in fact the forensic expert gave a report that it was not genuine. The learned Single Judge has recorded prima facie satisfaction that the dispute had not become dead. Hence, in view of the decision of this Court in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. (supra) it would have been appropriate to have left the question regarding the genuineness of the alleged retirement deed to be decided by the arbitrator | 1 | 1,790 | 553 | ### Instruction:
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were not genuine. 10. The learned Single Judge held that the plea that there was no dispute because of the alleged retirement deed and receipts can be easily gone into by the arbitrator, and in view of the report of the forensic expert between the parties it cannot be prima facie said that the dispute does not subsist. The report of the forensic expert creates a substantial doubt in the stand taken by the respondent of the alleged retirement of the appellant from the partnership. 11. The learned Single Judge relied on the decision of this Court in Erach F.D. Mehta vs. Minoo F.D. Mehta AIR 1971 SC 1653 and held that the arbitration clause in the present case is wide enough to include all the disputes sought to be referred. Hence the learned single Judge allowed the petition under Section 20. 12. In appeal, however, the Division Bench of the High Court was of the view that in case there is a dispute as to the very existence of an arbitration clause by reason of supersession of the agreement in which the same is contained by another subsequent agreement arrived at between the parties, the said dispute cannot be referred to arbitration. The Division Bench hence set aside the judgment of the learned Single Judge and remanded the matter to learned Single Judge for a fresh consideration of the question whether the alleged retirement deed was never executed between the parties. 13. In our opinion the judgment of the Division Bench cannot be sustained. It is true that as held by the seven Judge Full Bench decision of this Court in M/s. S.B.P. & Co. vs. M/s. Patel Engineering Ltd. and Anr. JT 2005(9) SC 219 (vide para 46) the Chief Justice or the designated Judge has the right to decide the question of the existence of a valid agreement and the existence or otherwise of a live claim. However, as pointed out by this Court in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. JT 2007(4) SC 501 (vide para 27) the Chief Justice or his designate Judge has to examine the claim as to whether the dispute is a dead one in the sense whether the parties have already concluded the transaction and have recorded satisfaction of their mutual rights and obligations, or whether it is still alive. In the same judgment in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. (supra) this Court observed: ....................It is in this sense that the Chief Justice has to examine as to whether their remains anything to be decided between the parties in respect of the agreement and whether the parties are still at issue on any such matter. If the Chief Justice does not, in the strict sense, decide the issue, in that event it is for him to locate such issue and record his satisfaction that such issue exists between the parties. It is only in that sense that the finding on a live issue is given. Even at the cost of repetition we must state that it is only for the purpose of finding out whether the arbitral procedure has to be started that the Chief Justice has to record satisfaction that their remains a live issue in between the parties. The same thing is about the limitation which is always a mixed question of law and fact. The Chief Justice only has to record his satisfaction that prima facie the issue has not become dead by the lapse of time or that any party to the agreement has not slept over its rights beyond the time permitted by law to agitate those issues covered by the agreement. It is for this reason that it was pointed out in the above para that it would be appropriate sometimes to leave the question regarding the live claim to be decided by the Arbitral Tribunal.................... (emphasis supplied) 14. It may be mentioned that the decision of this Court in M/s. Patel Engineering case (supra) and M/s. Shree Ram Mills Ltd. case (supra) pertained to the Arbitration and Conciliation Act, 1996 and not to the Arbitration Act of 1940. The present case is governed by the Arbitration Act of 1940, but in our opinion even if it is governed by the 1940 Act that will not make any difference in the present case. We are only adopting the logic in those decisions. The decision of this Court in Damodar Valley Corporation vs. K.K. Kar AIR 1974 SC 158 (vide para 7) is in our opinion distinguishable on facts because in that case there was no report of an expert that the subsequent deed was fake, as is in the present case. 15. In the present case the learned Single Judge had referred the matter to a forensic expert who gave a report that the alleged retirement deed dated 16.8.1990 was not genuine and had not been executed by the appellant. On the basis of this report of the forensic expert, the learned Single Judge recorded a prima facie satisfaction that the dispute is still alive and deserved to be referred to the arbitrator. 16. There is no dispute in this case about the validity or existence of the partnership deed or the arbitration clause therein. 17. In our opinion the learned Division Bench was not correct in holding that the dispute should not have been referred to the arbitrator in view of the alleged retirement deed dated 16.8.1990. The very genuineness of the said retirement deed was challenged and in fact the forensic expert gave a report that it was not genuine. The learned Single Judge has recorded prima facie satisfaction that the dispute had not become dead. Hence, in view of the decision of this Court in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. (supra) it would have been appropriate to have left the question regarding the genuineness of the alleged retirement deed to be decided by the arbitrator.
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13. In our opinion the judgment of the Division Bench cannot be sustained. It is true that as held by the seven Judge Full Bench decision of this Court in M/s. S.B.P. & Co. vs. M/s. Patel Engineering Ltd. and Anr. JT 2005(9) SC 219 (vide para 46) the Chief Justice or the designated Judge has the right to decide the question of the existence of a valid agreement and the existence or otherwise of a live claim. However, as pointed out by this Court in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. JT 2007(4) SC 501 (vide para 27) the Chief Justice or his designate Judge has to examine the claim as to whether the dispute is a dead one in the sense whether the parties have already concluded the transaction and have recorded satisfaction of their mutual rights and obligations, or whether it is still alive14. It may be mentioned that the decision of this Court in M/s. Patel Engineering case (supra) and M/s. Shree Ram Mills Ltd. case (supra) pertained to the Arbitration and Conciliation Act, 1996 and not to the Arbitration Act of 1940. The present case is governed by the Arbitration Act of 1940, but in our opinion even if it is governed by the 1940 Act that will not make any difference in the present case. We are only adopting the logic in those decisions. The decision of this Court in Damodar Valley Corporation vs. K.K. Kar AIR 1974 SC 158 (vide para 7) is in our opinion distinguishable on facts because in that case there was no report of an expert that the subsequent deed was fake, as is in the present case15. In the present case the learned Single Judge had referred the matter to a forensic expert who gave a report that the alleged retirement deed dated 16.8.1990 was not genuine and had not been executed by the appellant. On the basis of this report of the forensic expert, the learned Single Judge recorded a prima facie satisfaction that the dispute is still alive and deserved to be referred to the arbitrator16. There is no dispute in this case about the validity or existence of the partnership deed or the arbitration clause therein17. In our opinion the learned Division Bench was not correct in holding that the dispute should not have been referred to the arbitrator in view of the alleged retirement deed dated 16.8.1990. The very genuineness of the said retirement deed was challenged and in fact the forensic expert gave a report that it was not genuine. The learned Single Judge has recorded prima facie satisfaction that the dispute had not become dead. Hence, in view of the decision of this Court in M/s. Shree Ram Mills Ltd. vs. M/s. Utility Premises (P) Ltd. (supra) it would have been appropriate to have left the question regarding the genuineness of the alleged retirement deed to be decided by the arbitrator
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M/S. INDSIL HYDRO POWER AND MANGANESE LIMITED Vs. STATE OF KERALA AND OTHERS | charge of one per cent on the net recoveries is a compulsory exaction in the form of a tax. Neither the Act nor the provisions of the licence stipulate payment of any such tax. Hence imposition of this amount is in violation of Article 265 of the Constitution. It is true that neither the relevant Act nor the notification nor the rules nor the terms and conditions of the licence stipulate the payment of any rental. This amount is required to be paid under an agreement which the exhibitors individually enter into with the Films Division for the supply of these films. It is a payment under the terms of a contract between the two parties. It cannot, therefore, be viewed as a tax at all. The exhibitors contend that because they are required to enter into these agreements, any payment under the agreement is a compulsory exaction and is, therefore, tax. We do not agree. Under the terms of the agreement, the Films Division has to supply certain prints to the theatre owners at stated intervals. The Films Division is required to maintain a distribution network for this purpose. It is required to pack these films and is required to allow the exhibitors to retain these films in their possession for a certain period. The films are to be returned to the Films Division thereafter. The charge is termed in the agreement as rental for the films. It covers charges for preparing the prints of the films for distribution, and for packing them for delivery. These are clearly services rendered by the Films Division for which it is paid one per cent of the net collection as a rental. As stated earlier, the total cost of preparing prints, packing them and distributing them is much higher than the total recovery made by the Films Division by way of rental from all the exhibitors. There is a clear nexus between the services rendered and the payment to be made. The payment, therefore, is in the nature of a fee rather than a tax though there may not be an exact quid pro quo. Nevertheless the element of quid pro quo is very much present. 32. The exhibitors relied upon a number of cases which distinguish a tax from a fee. We will only refer to some of them. In the case of District Council of the Jowai Autonomous Distt. v. Dwet Singh Rymbai (1984) 4 SCC 38 this Court held that a compulsory exaction for public purposes would amount to a tax while a payment for services rendered would amount to a fee. On the facts in that case, the Court said that there was no element of quid pro quo which will justify the imposition of royalty as a fee. In Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) S.C.R. 1005 this Court as far back as in 1954, laid down the distinction between a tax and a fee. This Court has described a tax as a compulsory exaction for public purposes which does not require the taxpayers consent; while fee is a charge for specific service to some, and it must have some relation to the expenses incurred for the service. In Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla (1992) 3 SCC 285 : AIR 1992 SC 2038 this Court has said that an express authorisation for the levy of a fee is necessary. In the present case, however, the rental is charged by the Films Division by virtue of an agreement between the Films Division and the individual exhibitor. This is in consideration of the Films Division supplying films to the exhibitor, packing the film and arranging for its delivery. This is clearly an agreed fee charged for rendering services. It cannot be viewed as a compulsory exaction or as a tax. There is a statutory obligation which is cast on the exhibitors to exhibit certain films. To carry out this statutory obligation, if the exhibitors enter into an agreement with the Films Division and agree to pay a certain amount of rental for procuring the films from the Films Division to comply with the statutory obligation, the levy must, since it is correlated with the Films Division discharging certain obligations under the contract, be viewed, at the highest, as a fee and not as a tax. It is an agreed payment, and is not unreasonable. The High Court has rightly negatived the contention of the respondent exhibitors. 54. Thus, the expression Royalty has consistently been construed to be compensation paid for rights and privileges enjoyed by the grantee and normally has its genesis in the agreement entered into between the grantor and the grantee. As against tax which is imposed under a statutory power without reference to any special benefit to be conferred on the payer of the tax, the royalty would be in terms of the agreement between the parties and normally has direct relationship with the benefit or privilege conferred upon the grantee. Whatever be the nomenclature, the charges for use of controlled release of water in the present cases were for the privilege enjoyed by INDSIL and CUMI. Like the case in Motion Picture Association (1984) 4 SCC 38, the basis for such charges was directly in terms of, and under the arrangement entered into between the parties, though, not referable to any statutory instrument. The controlled release of water made available to INDSIL and CUMI, has always gone a long way in helping them in generation of electricity. For such benefit or privilege conferred upon them, the Agreements arrived at between the parties contemplated payment of charges for such conferral of advantage. Such charges, in our view, were perfectly justified. 55. The submission that it was compulsory exaction and thus assumed the characteristics of a tax was completely incorrect and untenable. It was a pure and simple contractual relationship between the parties and the Division Bench was right in rejecting the submissions advanced by CUMI and INDSIL. | 0[ds]The decision in said meeting was only to make a recommendation but the final call had to be taken by the Irrigation Department of the State. It cannot therefore be said that no liability could be imposed after 08.04.1994. Pertinently, INDSIL Agreement was entered into on 30.12.1994. Though no specific Clause comparable to Clause 14 of CUMI Agreement was included in INDSIL Agreement a specific reference to the terms and conditions of the policy was made and such terms and conditions were incorporated in INDSIL Agreement. Thus the decision dated 08.04.1994 had no bearing on the matter in question.31. The location of the project of CUMI is at a place where the discharge of water from Moozhiyar Power House of the Board is diverted to Kakkad Power House of the Board, which gets steady supply of water in the form of tail race benefit of the Moozhiyar Power House. After generation of electricity at the Kakkad Power House, the water is allowed to flow back into the river. The capacity of Kakkad Power House is 50 MW while that of CUMI is 12 MW.The supply of water even if meant for a powerhouse situated at a height and with larger capacity thus definitely ensures consistent and controlled supply of water to the project of CUMI located at a lower altitude.32. Similarly, the water from a larger reservoir namely, Anayirankal Dam is allowed to flow so as to reach Paniyar Power House having a capacity of 32 MW electricity. Before reaching Paniyar Power House, the water passes through the area where the project of INDSIL is situated, which has a capacity of 21 MW. The location of the project of INDSIL would thus have natural advantage of consistent and controlled supply of water.33. The facts on record thus show that both the projects have certainly derived advantage of controlled supply of water as contemplated in Clause 14 of the Policy. How much benefit of controlled supply of water each of the projects has received or will receive in future would be a matter of computation and calculation.34. The Agreements entered into by CUMI and INDSIL show that the terms and conditions of the Policy including Clause 14 thereof were consciously incorporated in the Agreements. Both CUMI and INDSIL were alive to the fact that because of peculiar location, their units would certainly have the advantage of controlled supply of water.Thus, the absence of a specific clause, akin to Clause 14 of CUMI Agreement, in INDSIL Agreement, would be of no consequence. The relationship between the parties would be governed by Clause 14 of the Policy, as incorporated in the respective Agreements.36. The decision of this Court in Central Inland Water Transport Corporation (1986) 3 SCC 156 which was pressed in service, was in relation to terms in a Contract of Employment. This Court found that such term would get included in the contract only at the instance of the employer where because of lack of bargaining power the employee would have no other option but to accept such term. It was in this context that the relevant term contained in the Contract of Employement was found to be unconscionable. At the same time, the principles which weighed with the Court for holding such terms unconscionable were specifically stated to be inapplicable in cases of commercial contracts. The relevant discussion in paragraph 89 of the decision was:-89. … …The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In todays complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.39. In Pioneer Urban Land and Infrastructure Ltd (2019) 5 SCC 725 , certain terms in the agreements entered into between the flat purchasers and the builder were ex facie found to be one sided, unfair and unreasonable. Relying on the decision of this Court in Central Inland Water Transport Corporation (1986) 3 SCC 156 , it was held that the terms of the agreements would not bind the flat purchasers.40. The law is thus clear that in cases where a term of contract or agreement entered into between the parties is completely one sided, unfair and unreasonable, where the other party having less bargaining power had to accept such term by force of circumstances, the relief in terms of the decision of this Court in Central Inland Water Transport Corporation (1986) 3 SCC 156 can be extended. It may be stated that the Agreements were entered into after long deliberations where both CUMI and INDSIL had the advantage of legal counsel.It cannot be said that CUMI and INDSIL were in a position with lesser bargaining power or were so vulnerable that by force of circumstances they were forced to accept such term. Therefore, the concerned Clause in CUMI Agreement as well as the terms of the Policy that stood incorporated in the respective Agreements, cannot be termed unconscionable.41. In ICOMM Tele Limited (2019) 4 SCC 401 , this Court found Clause 25 (viii) of the Notice Inviting Tender to be arbitrary as said clause deterred a party to an arbitration agreement from invoking the alternative dispute resolution process unless it complied with requirements of pre-deposit. Though this Court did not accept the submission, based on Central Inland Water Transport Corporation (1986) 3 SCC 156 , that the clause in question was unconscionable, the matter was considered from the stand point whether said clause could be said to be manifestly arbitrary. The clause was found to be contrary to the object of de-clogging the Court process and rendering the arbitral process ineffective. Relying upon the decision of this Court A.L. Kalra v. Project and Equipment Corporation of India (1984) 3 SCC 316 it was found in paragraph 23 that the clause had no nexus to the filing of frivolous claims. The discussion in paragraph 23 was:23. The important principle established by this case is that unless it is first found that the litigation that has been embarked upon is frivolous, exemplary costs or punitive damages do not follow. Clearly, therefore, a deposit-at-call of 10 per cent of the amount claimed, which can amount to large sums of money, is obviously without any direct nexus to the filing of frivolous claims, as it applies to all claims (frivolous or otherwise) made at the very threshold. A 10 per cent deposit has to be made before any determination that a claim made by the party invoking arbitration is frivolous. This is also one important aspect of the matter to be kept in mind in deciding that such a clause would be arbitrary in the sense of being something which would be unfair and unjust and which no reasonable man would agree to. Indeed, a claim may be dismissed but need not be frivolous, as is obvious from the fact that where three arbitrators are appointed, there have been known to be majority and minority awards, making it clear that there may be two possible or even plausible views which would indicate that the claim is dismissed or allowed on merits and not because it is frivolous. Further, even where a claim is found to be justified and correct, the amount that is deposited need not be refunded to the successful claimant. Take for example a claim based on a termination of a contract being illegal and consequent damages thereto. If the claim succeeds and the termination is set aside as being illegal and a damages claim of Rupees One crore is finally granted by the learned arbitrator at only ten lakhs, only one-tenth of the deposit made will be liable to be returned to the successful party. The party who has lost in the arbitration proceedings will be entitled to forfeit nine-tenths of the deposit made despite the fact that the aforesaid party has an award against it. This would render the entire clause wholly arbitrary, being not only excessive or disproportionate but leading to the wholly unjust result of a party who has lost an arbitration being entitled to forfeit such part of the deposit as falls proportionately short of the amount awarded as compared to what is claimed.The Policy had made it quite clear that the benefit of controlled supply of water would normally be confined to the electricity generating units or power houses in public sector.The reason for such Policy statement would clearly be that considerable amount of insfrastructure and development had been and would be made by the State in erecting and maintaining dams and reservoirs and as such the incremental advantage or benefit of such investment must go back to the public through units in public sector. If the advantage was, however, allowed to be given to a private entity or agency, the Policy contemplated impostion of charges for the use of such controlled supply of water.There is nothing arbitrary or unreasonable in having such term in the Policy. Since the private entity or agency would stand to gain from and out of the capital outlay and infrastructure put in place by the State, some reasonable charges for such benefit would naturally be imposed. It was only under such Policy that both CUMI and INDSIL were given permissions to set up their electricity generating units and such term was consciously accepted by them.The submission that the relevant Clause would be manifestly arbitrary, therefore, does not merit acceptance.43. Though we have considered the submissions that Clause 14 of the Policy would be unconscionable or arbitrary on merits, reference may also be made to the following statement of law culled out in Rajasthan State Industrial Development and Investment Corporation and Another vs. Diamond and Gem Development Corporation Limited and Another (2013) 5 SCC 470 :-15. A party cannot be permitted to blow hot-blow cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself……Qualitatively, the CPPs and IPPs have a basic distinction. CPPs produce electricity for self consumption. In the present case both CUMI and INDSIL generate electricity to be consumed in their factories or industrial units. Under the terms of their Agreements, if anything is produced in excess of their requirements, the surplus or excess electricity would be accepted by the Board. However, the principal purpose and end use would be self consumption. As against that, IPPs produce electricity not for self consumption but for the use of the Board. The electricity generated by IPPs becomes part of the grid of the Board to be supplied by the Board to its consumers like electricity produced by the generating units or power houses of the Board. If the charges towards controlled supply of water were to be imposed uniformly for CPPs and IPPs, the effect would be that the electricity supplied through IPPs to common consumers and general public would necessarily have an additional burden or load towards proportionate element of water charges. In these circumstances, if the Board decided not to apply Clause 14 of the Policy in case of all IPPs, such decision would not be termed as discriminatory.The distinction or classification brought out was based on a clear rationale with the object of reducing the additional burden on the consumers. Since the electricity generated by CPPs would be self consumed, there would be no such question of putting any ultimate or resultant burden on the common consumers. The basis for such distinction or classification was quite correct and as such this question was rightly answered by the Division Bench of the High Court against CUMI and INDSIL. Rather than being unnatural or irrational, the classification had a clear nexus or relationship with the object of reducing resultant burden on the common consumers.This submission therefore, is, meritless and rejected.The matter in that behalf was considered by the Division Bench of the High Court in paragraphs 38, 39 and 57 as quoted hereinabove. As rightly observed, the basis or genesis of such imposition was Clause 14 of the Policy which, as agreed between the parties, stood incorporated in the respective Agreements.47. The distinction between tax and fee was brought out by the Constitution Bench of this Court in Hingir-Rampur Coal Co. Ltd. and Others vs. State of Orissa and Others (1961) 2 SCR 537 as under:-The first question which falls for consideration is whether the levy imposed by the impugned Act amounts to a fee relatable to Entry 23 read with Entry 66 in List II. Before we deal with this question it is necessary to consider the difference between the concept of tax and that of a fee. The neat and terse definition of tax which has been given by Latham, C.J., in Matthews v. Chicory Marketing Board (1938) 60 C.L.R. 263, 276 is often cited as a classic on this subject. A tax, said Latham, C.J., is a compulsory exaction of money by public authority for public purposes enforceable by law, and is not payment for services rendered. In bringing out the essential features of a tax this definition also assists in distinguishing a tax from a fee. It is true that between a tax and a fee there is no generic difference. Both are compulsory exactions of money by public authorities; but whereas a tax is imposed for public purposes and is not, and need not, be supported by any consideration of service rendered in return, a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it. If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a condition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business the cess is distinguishable from a tax and is described as a fee. Tax recovered by public authority invariably goes into the consolidated fund which ultimately is utilised for all public purposes, whereas a cess levied by way of fee is not intended to be, and does not become, a part of the consolidated fund. It is earmarked and set apart for the purpose of services for which it is levied. There is, however, an element of compulsion in the imposition of both tax and fee. When the Legislature decides to render a specific service to any area or to any class of persons, it is not open to the said area or to the said class of persons to plead that they do not want the service and therefore they should be exempted from the payment of the cess. Though there is an element of quid pro quo between the tax payer and the public authority there is no option to the tax-payer in the matter of receiving the service determined by public authority. In regard to fees there is, and must always be, co- relation between the fee collected and the service intended to be rendered. Cases may arise where under the guise of levying a fee Legislature may attempt to impose a tax; and in the case of such a colourable exercise of legislative power courts would have to scrutinise the scheme of the levy very carefully and determine whether in fact there is a co-relation between the service and the levy, or whether the levy is either not corelated with service or is levied to such an excessive extent as to be a pretence of a fee and not a fee in reality. In other words, whether or not a particular cess levied by a statute amounts to a fee or tax would always be a question of fact to be determined in the circumstances of each case. The distinction between a tax and a fee is, however, important, and it is recognised by the Constitution. Several Entries in the Three Lists empower the appropriate Legislatures to levy taxes; but apart from the power to levy taxes thus conferred each List specifically refers to the power to levy fees in respect of any of the matters covered in the said List excluding of course the fees taken in any Court.The question about the distinction between a tax and a fee has been considered by this Court in three decisions in 1954. In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) S.C.R. 1005 the vires of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act 19 of 1951), came to be examined. Amongst the sections challenged was Section 76(1). Under this section every religious institution had to pay to the Government annual contribution not exceeding 5% of its income for the services rendered to it by the said Government; and the argument was that the contribution thus exacted was not a fee but a tax and as such outside the competence of the State Legislature. In dealing with this argument Mukherjee, J., as he then was, cited the definition of tax given by Latham, C.J., in the case of Matthews (1938) 60 C.L.R. 263 and has elaborately considered the distinction between a tax and a fee. The learned Judge examined the scheme of the Act and observed that the material fact which negatives the theory of fees in the present case is that the money raised by the levy of the contribution is not earmarked or specified for defraying the expense that the Government has to incur in performing the services. All the collections go to the consolidated fund of the State and all the expenses have to be met not out of those collections but out of the general revenues by a proper method of appropriation as is done in the case of other Government expenses. The learned Judge no doubt added that the said circumstance was not conclusive and pointed out that in fact there was a total absence of any co-relation between the expenses incurred by the Government and the amount raised by contribution. That is why Section 76(1) was struck down as ultra vires.The same point arose before this Court in respect of the Orissa Hindu Religious Endowments Act, 1939, as amended by amending Act 2 of 1952 in Mahant Sri Jagannath Ramanuj Das v. State of Orissa (1954) S.C.R. 1046 . Mukherjea, J., who again spoke for the Court, upheld the validity of Section 49 which imposed the liability to pay the specified contribution on every Mutt or temple having an annual income exceeding Rs 250 for services rendered by the State Government. The scheme of the impugned Act was examined and it was noticed that the collections made under it are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes. They go to constitute a fund which is contemplated by Section 50 of the Act, and this fund to which the Provincial Government contributes both by way of loan and grant is specifically set apart for the rendering of services involved in carrying out the provisions of the Act. 12. The same view was taken by this Court in regard to Section 58 of the Bombay Public Trust Act, 1950 (Act 29 of 1950) which imposed a similar contribution for a similar purpose in Ratilal Panachand Gandhi v. State of Bombay (1954) S.C.R. 1055 . It would thus be seen that the tests which have to be applied in determining the character of any impugned levy have been laid down by this Court in these three decisions; and it is in the light of these tests that we have to consider the merits of the rival contentions raised before us in the present petition.50. On the essential charcteristics of a tax, following observations of Banumathi, J. in the concurring opinion in Jindal Stainless Limited and another vs. State of Haryana and others (2017) 12 SCC 1 cull out the essence:-334. The essential characteristics of a tax are that: (i) it is imposed under a statutory power without the taxpayers consent and the payment is enforced by law; (ii) it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax; and (iii) it is part of the common burden. In Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) S.C.R. 1005, the Constitution Bench has laid down the characteristics of a tax which has since been consistently followed and it is as under: (AIR p. 284, para 43)43. … A tax … is a compulsory exaction of money by a public authority for public purposes enforceable by law and is not payment for services rendered.This definition brings out, in all opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayers consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is, not to confer any special benefit upon any particular individual there is as it is said, no element of quid pro quo between the taxpayer and the public authority.… Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay.51. It is true that as a result of order passed by this Court in Mineral Area Development Authority and Others vs. Steel Authority of India and Others (2011) 4 SCC 450 , certain questions concerning royalty as determined under the provisions of Mines and Minerals (Development and Regulation) Act, 1957 now stand referred to a Bench of nine Judges, which reference is still pending consideration. However, none of those issues arise in the present matter.52. On the use of the expression royalty in a contract, we may note following observations in Inderjeet Singh Sial and another vs. Karam Chand Thapar and others (1995) 6 SCC 166 :-12. … … The word royalty thus, in the deed was used in a loose sense so as to convey liability to make periodic payments to the assignor for the period during which the lease would subsist; payments dependent on the coal gotten and extracted in quantities or on despatch. We have therefore to construe document Ex. D-5 on its own terms and not barely on the label or description given to the stipulated payments. Conceivably this arrangement could well have been given a shape by using another word. The word royalty was perhaps more handy for the authors to be employed for an arrangement like this, so as to ensure periodic payments. In no event could the parties be put to blame for using the word royalty as if arrogating to themselves the royal or sovereign right of the State and then make redundant the rights and obligations created by the deed.13. The commodity goes by its value; not by the wrapper in which it is packed. A man is known for his worth; not for the clothes he wears. Royal robes worn by a beggar would not make him a king. The document is weighed by its content, not the title. One needs to go to the value, not the glitter. All the same, we do not wish to minimise the importance of the right words to be used in documents. What we mean to express is that if the thought is clear, its translation in words, spoken or written, may, more often than not, tend to be faulty. More so in a language which is not the mother tongue. Those faulted words cannot bounce back to alter the thought. Thus in sum and substance when the contracting parties and the draftsman are assumed to have known that the word royalty is meant to be employed to secure for the State something out of what the State conveys, their employment of that word for private ensuring was not intended to confer on the assignor the status of the sovereign or the State, and on that basis have the document voided. … … .53. We may also note the following observations from the decision of a Bench of three Judges of this Court in Union of India and others vs. Motion Picture Association and others (1999) 6 SCC 150 , where the payment of fee was under the terms of a contract between the parties.31. The exhibitors also contend that the charge of one per cent on the net recoveries is a compulsory exaction in the form of a tax. Neither the Act nor the provisions of the licence stipulate payment of any such tax. Hence imposition of this amount is in violation of Article 265 of the Constitution. It is true that neither the relevant Act nor the notification nor the rules nor the terms and conditions of the licence stipulate the payment of any rental. This amount is required to be paid under an agreement which the exhibitors individually enter into with the Films Division for the supply of these films. It is a payment under the terms of a contract between the two parties. It cannot, therefore, be viewed as a tax at all. The exhibitors contend that because they are required to enter into these agreements, any payment under the agreement is a compulsory exaction and is, therefore, tax. We do not agree. Under the terms of the agreement, the Films Division has to supply certain prints to the theatre owners at stated intervals. The Films Division is required to maintain a distribution network for this purpose. It is required to pack these films and is required to allow the exhibitors to retain these films in their possession for a certain period. The films are to be returned to the Films Division thereafter. The charge is termed in the agreement as rental for the films. It covers charges for preparing the prints of the films for distribution, and for packing them for delivery. These are clearly services rendered by the Films Division for which it is paid one per cent of the net collection as a rental. As stated earlier, the total cost of preparing prints, packing them and distributing them is much higher than the total recovery made by the Films Division by way of rental from all the exhibitors. There is a clear nexus between the services rendered and the payment to be made. The payment, therefore, is in the nature of a fee rather than a tax though there may not be an exact quid pro quo. Nevertheless the element of quid pro quo is very much present.32. The exhibitors relied upon a number of cases which distinguish a tax from a fee. We will only refer to some of them. In the case of District Council of the Jowai Autonomous Distt. v. Dwet Singh Rymbai (1984) 4 SCC 38 this Court held that a compulsory exaction for public purposes would amount to a tax while a payment for services rendered would amount to a fee. On the facts in that case, the Court said that there was no element of quid pro quo which will justify the imposition of royalty as a fee. In Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) S.C.R. 1005 this Court as far back as in 1954, laid down the distinction between a tax and a fee. This Court has described a tax as a compulsory exaction for public purposes which does not require the taxpayers consent; while fee is a charge for specific service to some, and it must have some relation to the expenses incurred for the service. In Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla (1992) 3 SCC 285 : AIR 1992 SC 2038 this Court has said that an express authorisation for the levy of a fee is necessary. In the present case, however, the rental is charged by the Films Division by virtue of an agreement between the Films Division and the individual exhibitor. This is in consideration of the Films Division supplying films to the exhibitor, packing the film and arranging for its delivery. This is clearly an agreed fee charged for rendering services. It cannot be viewed as a compulsory exaction or as a tax. There is a statutory obligation which is cast on the exhibitors to exhibit certain films. To carry out this statutory obligation, if the exhibitors enter into an agreement with the Films Division and agree to pay a certain amount of rental for procuring the films from the Films Division to comply with the statutory obligation, the levy must, since it is correlated with the Films Division discharging certain obligations under the contract, be viewed, at the highest, as a fee and not as a tax. It is an agreed payment, and is not unreasonable. The High Court has rightly negatived the contention of the respondent exhibitors.54. Thus, the expression Royalty has consistently been construed to be compensation paid for rights and privileges enjoyed by the grantee and normally has its genesis in the agreement entered into between the grantor and the grantee. As against tax which is imposed under a statutory power without reference to any special benefit to be conferred on the payer of the tax, the royalty would be in terms of the agreement between the parties and normally has direct relationship with the benefit or privilege conferred upon the grantee.Whatever be the nomenclature, the charges for use of controlled release of water in the present cases were for the privilege enjoyed by INDSIL and CUMI. Like the case in Motion Picture Association (1984) 4 SCC 38, the basis for such charges was directly in terms of, and under the arrangement entered into between the parties, though, not referable to any statutory instrument. The controlled release of water made available to INDSIL and CUMI, has always gone a long way in helping them in generation of electricity. For such benefit or privilege conferred upon them, the Agreements arrived at between the parties contemplated payment of charges for such conferral of advantage. Such charges, in our view, were perfectly justified.55. The submission that it was compulsory exaction and thus assumed the characteristics of a tax was completely incorrect and untenable. It was a pure and simple contractual relationship between the parties and the Division Bench was right in rejecting the submissions advanced by CUMI and INDSIL. | 0 | 19,841 | 6,044 | ### Instruction:
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charge of one per cent on the net recoveries is a compulsory exaction in the form of a tax. Neither the Act nor the provisions of the licence stipulate payment of any such tax. Hence imposition of this amount is in violation of Article 265 of the Constitution. It is true that neither the relevant Act nor the notification nor the rules nor the terms and conditions of the licence stipulate the payment of any rental. This amount is required to be paid under an agreement which the exhibitors individually enter into with the Films Division for the supply of these films. It is a payment under the terms of a contract between the two parties. It cannot, therefore, be viewed as a tax at all. The exhibitors contend that because they are required to enter into these agreements, any payment under the agreement is a compulsory exaction and is, therefore, tax. We do not agree. Under the terms of the agreement, the Films Division has to supply certain prints to the theatre owners at stated intervals. The Films Division is required to maintain a distribution network for this purpose. It is required to pack these films and is required to allow the exhibitors to retain these films in their possession for a certain period. The films are to be returned to the Films Division thereafter. The charge is termed in the agreement as rental for the films. It covers charges for preparing the prints of the films for distribution, and for packing them for delivery. These are clearly services rendered by the Films Division for which it is paid one per cent of the net collection as a rental. As stated earlier, the total cost of preparing prints, packing them and distributing them is much higher than the total recovery made by the Films Division by way of rental from all the exhibitors. There is a clear nexus between the services rendered and the payment to be made. The payment, therefore, is in the nature of a fee rather than a tax though there may not be an exact quid pro quo. Nevertheless the element of quid pro quo is very much present. 32. The exhibitors relied upon a number of cases which distinguish a tax from a fee. We will only refer to some of them. In the case of District Council of the Jowai Autonomous Distt. v. Dwet Singh Rymbai (1984) 4 SCC 38 this Court held that a compulsory exaction for public purposes would amount to a tax while a payment for services rendered would amount to a fee. On the facts in that case, the Court said that there was no element of quid pro quo which will justify the imposition of royalty as a fee. In Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) S.C.R. 1005 this Court as far back as in 1954, laid down the distinction between a tax and a fee. This Court has described a tax as a compulsory exaction for public purposes which does not require the taxpayers consent; while fee is a charge for specific service to some, and it must have some relation to the expenses incurred for the service. In Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla (1992) 3 SCC 285 : AIR 1992 SC 2038 this Court has said that an express authorisation for the levy of a fee is necessary. In the present case, however, the rental is charged by the Films Division by virtue of an agreement between the Films Division and the individual exhibitor. This is in consideration of the Films Division supplying films to the exhibitor, packing the film and arranging for its delivery. This is clearly an agreed fee charged for rendering services. It cannot be viewed as a compulsory exaction or as a tax. There is a statutory obligation which is cast on the exhibitors to exhibit certain films. To carry out this statutory obligation, if the exhibitors enter into an agreement with the Films Division and agree to pay a certain amount of rental for procuring the films from the Films Division to comply with the statutory obligation, the levy must, since it is correlated with the Films Division discharging certain obligations under the contract, be viewed, at the highest, as a fee and not as a tax. It is an agreed payment, and is not unreasonable. The High Court has rightly negatived the contention of the respondent exhibitors. 54. Thus, the expression Royalty has consistently been construed to be compensation paid for rights and privileges enjoyed by the grantee and normally has its genesis in the agreement entered into between the grantor and the grantee. As against tax which is imposed under a statutory power without reference to any special benefit to be conferred on the payer of the tax, the royalty would be in terms of the agreement between the parties and normally has direct relationship with the benefit or privilege conferred upon the grantee. Whatever be the nomenclature, the charges for use of controlled release of water in the present cases were for the privilege enjoyed by INDSIL and CUMI. Like the case in Motion Picture Association (1984) 4 SCC 38, the basis for such charges was directly in terms of, and under the arrangement entered into between the parties, though, not referable to any statutory instrument. The controlled release of water made available to INDSIL and CUMI, has always gone a long way in helping them in generation of electricity. For such benefit or privilege conferred upon them, the Agreements arrived at between the parties contemplated payment of charges for such conferral of advantage. Such charges, in our view, were perfectly justified. 55. The submission that it was compulsory exaction and thus assumed the characteristics of a tax was completely incorrect and untenable. It was a pure and simple contractual relationship between the parties and the Division Bench was right in rejecting the submissions advanced by CUMI and INDSIL.
### Response:
0
### Explanation:
the charge of one per cent on the net recoveries is a compulsory exaction in the form of a tax. Neither the Act nor the provisions of the licence stipulate payment of any such tax. Hence imposition of this amount is in violation of Article 265 of the Constitution. It is true that neither the relevant Act nor the notification nor the rules nor the terms and conditions of the licence stipulate the payment of any rental. This amount is required to be paid under an agreement which the exhibitors individually enter into with the Films Division for the supply of these films. It is a payment under the terms of a contract between the two parties. It cannot, therefore, be viewed as a tax at all. The exhibitors contend that because they are required to enter into these agreements, any payment under the agreement is a compulsory exaction and is, therefore, tax. We do not agree. Under the terms of the agreement, the Films Division has to supply certain prints to the theatre owners at stated intervals. The Films Division is required to maintain a distribution network for this purpose. It is required to pack these films and is required to allow the exhibitors to retain these films in their possession for a certain period. The films are to be returned to the Films Division thereafter. The charge is termed in the agreement as rental for the films. It covers charges for preparing the prints of the films for distribution, and for packing them for delivery. These are clearly services rendered by the Films Division for which it is paid one per cent of the net collection as a rental. As stated earlier, the total cost of preparing prints, packing them and distributing them is much higher than the total recovery made by the Films Division by way of rental from all the exhibitors. There is a clear nexus between the services rendered and the payment to be made. The payment, therefore, is in the nature of a fee rather than a tax though there may not be an exact quid pro quo. Nevertheless the element of quid pro quo is very much present.32. The exhibitors relied upon a number of cases which distinguish a tax from a fee. We will only refer to some of them. In the case of District Council of the Jowai Autonomous Distt. v. Dwet Singh Rymbai (1984) 4 SCC 38 this Court held that a compulsory exaction for public purposes would amount to a tax while a payment for services rendered would amount to a fee. On the facts in that case, the Court said that there was no element of quid pro quo which will justify the imposition of royalty as a fee. In Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) S.C.R. 1005 this Court as far back as in 1954, laid down the distinction between a tax and a fee. This Court has described a tax as a compulsory exaction for public purposes which does not require the taxpayers consent; while fee is a charge for specific service to some, and it must have some relation to the expenses incurred for the service. In Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla (1992) 3 SCC 285 : AIR 1992 SC 2038 this Court has said that an express authorisation for the levy of a fee is necessary. In the present case, however, the rental is charged by the Films Division by virtue of an agreement between the Films Division and the individual exhibitor. This is in consideration of the Films Division supplying films to the exhibitor, packing the film and arranging for its delivery. This is clearly an agreed fee charged for rendering services. It cannot be viewed as a compulsory exaction or as a tax. There is a statutory obligation which is cast on the exhibitors to exhibit certain films. To carry out this statutory obligation, if the exhibitors enter into an agreement with the Films Division and agree to pay a certain amount of rental for procuring the films from the Films Division to comply with the statutory obligation, the levy must, since it is correlated with the Films Division discharging certain obligations under the contract, be viewed, at the highest, as a fee and not as a tax. It is an agreed payment, and is not unreasonable. The High Court has rightly negatived the contention of the respondent exhibitors.54. Thus, the expression Royalty has consistently been construed to be compensation paid for rights and privileges enjoyed by the grantee and normally has its genesis in the agreement entered into between the grantor and the grantee. As against tax which is imposed under a statutory power without reference to any special benefit to be conferred on the payer of the tax, the royalty would be in terms of the agreement between the parties and normally has direct relationship with the benefit or privilege conferred upon the grantee.Whatever be the nomenclature, the charges for use of controlled release of water in the present cases were for the privilege enjoyed by INDSIL and CUMI. Like the case in Motion Picture Association (1984) 4 SCC 38, the basis for such charges was directly in terms of, and under the arrangement entered into between the parties, though, not referable to any statutory instrument. The controlled release of water made available to INDSIL and CUMI, has always gone a long way in helping them in generation of electricity. For such benefit or privilege conferred upon them, the Agreements arrived at between the parties contemplated payment of charges for such conferral of advantage. Such charges, in our view, were perfectly justified.55. The submission that it was compulsory exaction and thus assumed the characteristics of a tax was completely incorrect and untenable. It was a pure and simple contractual relationship between the parties and the Division Bench was right in rejecting the submissions advanced by CUMI and INDSIL.
|
NILESH LAXMICHAND Vs. SHANTABEN PURUSHOTTAM KAKAD (SINCE DECEASED) BY LRS | further stated that as the license was originally renewed in the name of Shree Krishna Fast Food Corner, the Municipal Corporation did not change the name later on and informed the second appellant that it will be changed at the time of renewal. Therefore, it is quite clear that the appellant’s case must be taken to be that till 2005, business was been carried out in books from the suit premises. Interestingly, the plaintiff also, in paragraph 3, would state that in or around July 2005, the defendant no.1 suddenly closed down the business of book store. Therefore, it is clear, as day light, and it can be taken as established that the premises was being used for running the book store and it continued, even according to the plaintiff, till July 2005. This is also the stand taken by the appellants, as we have noted. In quick succession, the business in garments was started which was short lived. Equally business in fast food was conducted and the same was also stopped.25. We must remind ourselves that the requirement of Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 will be satisfied if it is established that for a period of six months continuously from 20.04.2006 till the date of institution of the suit, the suit premises were not used by the tenant without a reasonable ground for the purpose for which it was let out. Since even the appellants do not have a case that the appellants were carrying on the business in readymade garments or fast food during the period, the only business that the appellants can lay store by, is the business in books.26. The contention of the appellants would appear to be that the Appellate Court has proceeded on the basis that the registration was obtained on 30.11.2007. Appellate Court further finds that there is a gap of 13 months from the date of the institution of the suit and the date on which the registration was obtained on 30.11.2007. It is the case of the appellants that what the provision in question requires is that there must be non-user by the tenant for the period of six months immediately and continuously prior to the institution of the suit. The period of 13 months, if calculated from 30.01.2007 backwards, in point of time, would be a period commencing from 30.10.2006. The contention appears to be that the cause of action is the continuous non-user for six months prior to the use. Therefore, the relevant question has not been posed and answered, appears to be the argument of the appellants.27. Let us consider the registration certificates which have been produced. The registration certificate, under the Bombay Shops and Establishments Act, 1948, is seen to be certified on 9 th day of September, 2005. It is in the name of the second appellant. Under the heading “Nature of business”, it is stated “Sale of books, Sale of snacks, juice, cold drink and ice cream” . The name of the establishment is known as “Chetna Book Centre”, “Shree Krishna Food Corner”.28. We can say the date of receipt, as far as 2005 is concerned, is 06.09.2005. Still further, there is a reference to receipt dated 09.01.2007. Under the Maharashtra Shops and Establishments Act, under Section 7(2)(A), a registration certificate shall be valid upto the end of the year for which it is granted. As it stands now, it is valid for a period of twelve months from the date it is granted or renewed. This is after the substitution by Act 25 of 2013. Therefore, the provision, which is relevant, is the previous provision, under which, as noted, the registration certificate would be valid upto the end of the year for which it was granted. Therefore, even going by the registration certificate produced and under the Act, we would think that as it has been issued on 09.09.2005, it came to an end by the end of the year. The word “year” is defined in Section 2(32) as meaning that “a year commencing first day of January”. Thus, even the appellant apparently paid the fees for renewal of the registration only on 09.01.2007. He did not pay any fees for renewal of the registration during the year 2006. On 30.11.2007, no doubt, registration certificate was issued. The result is that during the year 2006, it can be concluded that there was no registration for the business either in books or fast food.29. This apart, the fact that under the Shops and Establishments Act, it is undoubtedly true that a person having a shop must get it registered. In other words, carrying on a shop or establishment, as defined in the Act, without registration, would make it illegal. The fact that there is a registration, however, would not be sufficient to establish that there is use of the premises. In other words, even if a person has registration, that by itself would not mean that the tenant is actually using the premises for the purpose for which it is rented out to him. Actual use of the premises can be established by various other circumstances like electricity bills, payment of wages to employees if there are employees, evidence relating to transactions of the business which is carried on etc. No doubt, the burden actually is on the landlord to establish the non-user. But since, in this case, it would appear that there is no registration for the period, it shows that the appellants could not have lawfully conducted any business in the suit premises. There is, no doubt, the evidence of PW1 also.30. Appellants have attempted to produce additional documents. The document is a notice issued for keeping open the shop on a Monday on 11.09.2006. It is also stated, fine was paid of Rs.4,000/-. We find considerable substance in the contention of the respondent that additional evidence can be admitted only if the grounds of Order 41 Rule 27 are established. We find no merit in the said application. | 0[ds]15. As regards the case of nuisance, Section 16(i)(c), inter alia, declares that conduct which is a nuisance or annoyance to the adjoining or neighbouring occupier by the tenants or others under him, is the ground for eviction. The nuisance, apparently, is attributed to the period of time when business of fast food was being carried out. We have noticed the findings of the Trial court. The evidence of none of the neighbours, be they any of the shopkeepers in the building itself or otherwise, is forthcoming. Details, as such, thereof are not seen established. The original plaintiff who resided in the same building has not given evidence. The evidence essentially constitutes of the deposition of PW1, the son of the original plaintiff and the complaint in writing. Admittedly, he does not reside in the building. He resides elsewhere. No doubt, his evidence that when he came to visit his mother and he would go around, is relied upon to conclude that he has experienced nuisance and that nuisance is established. We would think that having regard to the serious consequences which arise out of ground of nuisance, being established, the facts of this case may not justify eviction of appellants on the said ground. In fact, the High Court has not independently gone into the matter and it has affirmed the findings of the Appellate Forum. These findings, we have adverted to. We do not think that there was justification for the Appellate court or the High Court to sustain eviction on the ground of nuisance.16.As regards, the question whether there isit is necessary to notice the plea relating to subletting. It is to the effect that defendant no.1 has unlawfully sublet, assigned or transferred to third party for unlawful consideration. It is further alleged thatson Anil met the person who confirmed to him that it has been given to him on license basis. It is also stated in paragraph 5 that the defendants have now given the suit premises to someone else. From this, we take it that the case of subletting is built around the act of putting the third party, who is named as Mr. Raja, in possession. There is no case, as such, set up that there is illegal subletting by defendant no.1 putting defendant no.2 in possession and the allegation is specific, as noted above.17. Regarding this allegation, we are of the view that the finding, given by the Trial Court, correctly brings out the position found in fact. The details, as to when Shri Raja was put in possession, as to when Shri Raja was found in possession, whether this possession was exclusive, the purpose for which Shri Raja was using the premises, are neither pleaded nor proved. The alternate case of subletting, apparently set up at the stage of argument, is that there is unlawful subletting to the second defendant. We have noted the pleading. The pleading of subletting is about subletting to a third party which was rejected by the Trial Court. In the Appellate Court, such subletting is found qua the second appellant. Having regard to the facts, beginning with the fact that first appellant was only nearly five years old, the registration was in the name of second appellant, the nature of the relationship between the appellants, viz., the second appellant is the father of the first appellant and also the case which was pleaded in the suit, we are of the view that finding of illegal subletting cannot be sustained.Suit in this case was instituted on 20.10.2006. therefore, it is incumbent on the respondents to establish that the premises were not been used for a continuous period of six months which means from 20.04.2006 till the date of institution of the suit.What stands out from the aforesaid pleadings is that the second defendant, after taking over the premises under the lease, has started the business of selling books. Thereafter, from the pleadings of both the plaintiff and defendants, it is clear that appellant also carried on the business in readymade garments and also, still further, business in fast food. As to when the other businesses were carried on, is not clear from the plaint or written statement.24. The case sought to be set up before this Court would, however, reveal the following:It is thethat the book stall business was running slow. It was in the year 2005 that the second appellant decided to start new business. It is their case that the business in clothes was closed down immediately after it was started. Thereafter, in 2005, we must indeed find that the business of fast food was started. The fact that the business of fast food was being run, is clearly established by one circumstance and that is the complaint dated 27.10.2005 given regarding conduct of the business of fast food. This is the case of the respondents. Therefore, the fast food was also started and it apparently was closed down. Thereafter, it is to be noticed that according to the appellants, the second appellant started again business of book stall in the name and style asin the year 2006 onwards (see Groundin the Special Leave Petition). It is further stated that as the license was originally renewed in the name of Shree Krishna Fast Food Corner, the Municipal Corporation did not change the name later on and informed the second appellant that it will be changed at the time of renewal. Therefore, it is quite clear that thecase must be taken to be that till 2005, business was been carried out in books from the suit premises. Interestingly, the plaintiff also, in paragraph 3, would state that in or around July 2005, the defendant no.1 suddenly closed down the business of book store. Therefore, it is clear, as day light, and it can be taken as established that the premises was being used for running the book store and it continued, even according to the plaintiff, till July 2005. This is also the stand taken by the appellants, as we have noted. In quick succession, the business in garments was started which was short lived. Equally business in fast food was conducted and the same was also stopped.25. We must remind ourselves that the requirement of Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 will be satisfied if it is established that for a period of six months continuously from 20.04.2006 till the date of institution of the suit, the suit premises were not used by the tenant without a reasonable ground for the purpose for which it was let out. Since even the appellants do not have a case that the appellants were carrying on the business in readymade garments or fast food during the period, the only business that the appellants can lay store by, is the business in books.We can say the date of receipt, as far as 2005 is concerned, is 06.09.2005. Still further, there is a reference to receipt dated 09.01.2007. Under the Maharashtra Shops and Establishments Act, under Section 7(2)(A), a registration certificate shall be valid upto the end of the year for which it is granted. As it stands now, it is valid for a period of twelve months from the date it is granted or renewed. This is after the substitution by Act 25 of 2013. Therefore, the provision, which is relevant, is the previous provision, under which, as noted, the registration certificate would be valid upto the end of the year for which it was granted. Therefore, even going by the registration certificate produced and under the Act, we would think that as it has been issued on 09.09.2005, it came to an end by the end of the year. The wordis defined in Section 2(32) as meaning thatyear commencing first day ofThus, even the appellant apparently paid the fees for renewal of the registration only on 09.01.2007. He did not pay any fees for renewal of the registration during the year 2006. On 30.11.2007, no doubt, registration certificate was issued. The result is that during the year 2006, it can be concluded that there was no registration for the business either in books or fast food.29. This apart, the fact that under the Shops and Establishments Act, it is undoubtedly true that a person having a shop must get it registered. In other words, carrying on a shop or establishment, as defined in the Act, without registration, would make it illegal. The fact that there is a registration, however, would not be sufficient to establish that there is use of the premises. In other words, even if a person has registration, that by itself would not mean that the tenant is actually using the premises for the purpose for which it is rented out to him. Actual use of the premises can be established by various other circumstances like electricity bills, payment of wages to employees if there are employees, evidence relating to transactions of the business which is carried on etc. No doubt, the burden actually is on the landlord to establish the non-user. But since, in this case, it would appear that there is no registration for the period, it shows that the appellants could not have lawfully conducted any business in the suit premises. There is, no doubt, the evidence of PW1 also.30. Appellants have attempted to produce additional documents. The document is a notice issued for keeping open the shop on a Monday on 11.09.2006. It is also stated, fine was paid of Rs.4,000/-. We find considerable substance in the contention of the respondent that additional evidence can be admitted only if the grounds of Order 41 Rule 27 are established. We find no merit in the said application. | 0 | 4,689 | 1,831 | ### 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:
further stated that as the license was originally renewed in the name of Shree Krishna Fast Food Corner, the Municipal Corporation did not change the name later on and informed the second appellant that it will be changed at the time of renewal. Therefore, it is quite clear that the appellant’s case must be taken to be that till 2005, business was been carried out in books from the suit premises. Interestingly, the plaintiff also, in paragraph 3, would state that in or around July 2005, the defendant no.1 suddenly closed down the business of book store. Therefore, it is clear, as day light, and it can be taken as established that the premises was being used for running the book store and it continued, even according to the plaintiff, till July 2005. This is also the stand taken by the appellants, as we have noted. In quick succession, the business in garments was started which was short lived. Equally business in fast food was conducted and the same was also stopped.25. We must remind ourselves that the requirement of Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 will be satisfied if it is established that for a period of six months continuously from 20.04.2006 till the date of institution of the suit, the suit premises were not used by the tenant without a reasonable ground for the purpose for which it was let out. Since even the appellants do not have a case that the appellants were carrying on the business in readymade garments or fast food during the period, the only business that the appellants can lay store by, is the business in books.26. The contention of the appellants would appear to be that the Appellate Court has proceeded on the basis that the registration was obtained on 30.11.2007. Appellate Court further finds that there is a gap of 13 months from the date of the institution of the suit and the date on which the registration was obtained on 30.11.2007. It is the case of the appellants that what the provision in question requires is that there must be non-user by the tenant for the period of six months immediately and continuously prior to the institution of the suit. The period of 13 months, if calculated from 30.01.2007 backwards, in point of time, would be a period commencing from 30.10.2006. The contention appears to be that the cause of action is the continuous non-user for six months prior to the use. Therefore, the relevant question has not been posed and answered, appears to be the argument of the appellants.27. Let us consider the registration certificates which have been produced. The registration certificate, under the Bombay Shops and Establishments Act, 1948, is seen to be certified on 9 th day of September, 2005. It is in the name of the second appellant. Under the heading “Nature of business”, it is stated “Sale of books, Sale of snacks, juice, cold drink and ice cream” . The name of the establishment is known as “Chetna Book Centre”, “Shree Krishna Food Corner”.28. We can say the date of receipt, as far as 2005 is concerned, is 06.09.2005. Still further, there is a reference to receipt dated 09.01.2007. Under the Maharashtra Shops and Establishments Act, under Section 7(2)(A), a registration certificate shall be valid upto the end of the year for which it is granted. As it stands now, it is valid for a period of twelve months from the date it is granted or renewed. This is after the substitution by Act 25 of 2013. Therefore, the provision, which is relevant, is the previous provision, under which, as noted, the registration certificate would be valid upto the end of the year for which it was granted. Therefore, even going by the registration certificate produced and under the Act, we would think that as it has been issued on 09.09.2005, it came to an end by the end of the year. The word “year” is defined in Section 2(32) as meaning that “a year commencing first day of January”. Thus, even the appellant apparently paid the fees for renewal of the registration only on 09.01.2007. He did not pay any fees for renewal of the registration during the year 2006. On 30.11.2007, no doubt, registration certificate was issued. The result is that during the year 2006, it can be concluded that there was no registration for the business either in books or fast food.29. This apart, the fact that under the Shops and Establishments Act, it is undoubtedly true that a person having a shop must get it registered. In other words, carrying on a shop or establishment, as defined in the Act, without registration, would make it illegal. The fact that there is a registration, however, would not be sufficient to establish that there is use of the premises. In other words, even if a person has registration, that by itself would not mean that the tenant is actually using the premises for the purpose for which it is rented out to him. Actual use of the premises can be established by various other circumstances like electricity bills, payment of wages to employees if there are employees, evidence relating to transactions of the business which is carried on etc. No doubt, the burden actually is on the landlord to establish the non-user. But since, in this case, it would appear that there is no registration for the period, it shows that the appellants could not have lawfully conducted any business in the suit premises. There is, no doubt, the evidence of PW1 also.30. Appellants have attempted to produce additional documents. The document is a notice issued for keeping open the shop on a Monday on 11.09.2006. It is also stated, fine was paid of Rs.4,000/-. We find considerable substance in the contention of the respondent that additional evidence can be admitted only if the grounds of Order 41 Rule 27 are established. We find no merit in the said application.
### Response:
0
### Explanation:
the date of institution of the suit.What stands out from the aforesaid pleadings is that the second defendant, after taking over the premises under the lease, has started the business of selling books. Thereafter, from the pleadings of both the plaintiff and defendants, it is clear that appellant also carried on the business in readymade garments and also, still further, business in fast food. As to when the other businesses were carried on, is not clear from the plaint or written statement.24. The case sought to be set up before this Court would, however, reveal the following:It is thethat the book stall business was running slow. It was in the year 2005 that the second appellant decided to start new business. It is their case that the business in clothes was closed down immediately after it was started. Thereafter, in 2005, we must indeed find that the business of fast food was started. The fact that the business of fast food was being run, is clearly established by one circumstance and that is the complaint dated 27.10.2005 given regarding conduct of the business of fast food. This is the case of the respondents. Therefore, the fast food was also started and it apparently was closed down. Thereafter, it is to be noticed that according to the appellants, the second appellant started again business of book stall in the name and style asin the year 2006 onwards (see Groundin the Special Leave Petition). It is further stated that as the license was originally renewed in the name of Shree Krishna Fast Food Corner, the Municipal Corporation did not change the name later on and informed the second appellant that it will be changed at the time of renewal. Therefore, it is quite clear that thecase must be taken to be that till 2005, business was been carried out in books from the suit premises. Interestingly, the plaintiff also, in paragraph 3, would state that in or around July 2005, the defendant no.1 suddenly closed down the business of book store. Therefore, it is clear, as day light, and it can be taken as established that the premises was being used for running the book store and it continued, even according to the plaintiff, till July 2005. This is also the stand taken by the appellants, as we have noted. In quick succession, the business in garments was started which was short lived. Equally business in fast food was conducted and the same was also stopped.25. We must remind ourselves that the requirement of Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 will be satisfied if it is established that for a period of six months continuously from 20.04.2006 till the date of institution of the suit, the suit premises were not used by the tenant without a reasonable ground for the purpose for which it was let out. Since even the appellants do not have a case that the appellants were carrying on the business in readymade garments or fast food during the period, the only business that the appellants can lay store by, is the business in books.We can say the date of receipt, as far as 2005 is concerned, is 06.09.2005. Still further, there is a reference to receipt dated 09.01.2007. Under the Maharashtra Shops and Establishments Act, under Section 7(2)(A), a registration certificate shall be valid upto the end of the year for which it is granted. As it stands now, it is valid for a period of twelve months from the date it is granted or renewed. This is after the substitution by Act 25 of 2013. Therefore, the provision, which is relevant, is the previous provision, under which, as noted, the registration certificate would be valid upto the end of the year for which it was granted. Therefore, even going by the registration certificate produced and under the Act, we would think that as it has been issued on 09.09.2005, it came to an end by the end of the year. The wordis defined in Section 2(32) as meaning thatyear commencing first day ofThus, even the appellant apparently paid the fees for renewal of the registration only on 09.01.2007. He did not pay any fees for renewal of the registration during the year 2006. On 30.11.2007, no doubt, registration certificate was issued. The result is that during the year 2006, it can be concluded that there was no registration for the business either in books or fast food.29. This apart, the fact that under the Shops and Establishments Act, it is undoubtedly true that a person having a shop must get it registered. In other words, carrying on a shop or establishment, as defined in the Act, without registration, would make it illegal. The fact that there is a registration, however, would not be sufficient to establish that there is use of the premises. In other words, even if a person has registration, that by itself would not mean that the tenant is actually using the premises for the purpose for which it is rented out to him. Actual use of the premises can be established by various other circumstances like electricity bills, payment of wages to employees if there are employees, evidence relating to transactions of the business which is carried on etc. No doubt, the burden actually is on the landlord to establish the non-user. But since, in this case, it would appear that there is no registration for the period, it shows that the appellants could not have lawfully conducted any business in the suit premises. There is, no doubt, the evidence of PW1 also.30. Appellants have attempted to produce additional documents. The document is a notice issued for keeping open the shop on a Monday on 11.09.2006. It is also stated, fine was paid of Rs.4,000/-. We find considerable substance in the contention of the respondent that additional evidence can be admitted only if the grounds of Order 41 Rule 27 are established. We find no merit in the said application.
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N.SANKARANARAYANAN Vs. CHAIRMAN,TAMIL NADU HOUSING BOARD AND ORS | the land in question are illegal, hazardous and against the public safety inasmuch as they are being carried in violation of several provisions of the laws in force. 11. As mentioned above, the Division Bench dismissed the writ petition finding no merit therein with the following reasons in Para 17, which reads as under: 17. A perusal of the records produced before this Court leaves no iota of doubt that principally the dispute now raised before this Court is a private dispute between the various family members having contesting the claims to be on the Board apart from those relating to the affairs of the Company. It is an admitted fact that the company is a closely held company by a family members of six brothers. The present dispute is nothing but a trial for the show of their respective strength to each other herein. A petition before the Company Law Board is pending consideration as regards the continuance of the directorship of Mr. Muthusami. Whatever be the merits of the petition before the Company Law Board, taking note of the various contentions, which included a dispute with reference to the area occupied by the Theatre and the construction of the mandapam and the petrol pump, this Court in the order passed on 19.9.2007 in C.M.A. No.1900 of 2007 has rightly directed the Company Law Board to dispose of the main petition by 31.1.2008. 12. The question, which arises for consideration in these appeals, is whether the Division Bench was justified in dismissing the appellants writ petition on the aforementioned reasoning. 13. We heard the learned counsel for the parties and perused the record of the case. Having heard the learned counsel, we are inclined to agree with the reasoning and the conclusion arrived at by the Division Bench in the impugned order. 14. In our considered opinion also, the writ petition filed by the appellant was wholly misconceived and deserved dismissal at the threshold. 15. As rightly observed by the Division Bench, the dispute sought to be raised by the appellant in his writ petition was essentially a private property dispute between the members of one family of which the appellant and respondent No. 2 are the members. 16. By indirect means such as the one resorted to by the writ petitioner (appellant herein) by filing the writ petition, a dispute inter se private parties of the nature mentioned above could not be allowed to be raised in the writ petition under Article 226/227 of the Constitution for seeking issuance of mandamus against the State and its authorities in relation to the properties in question. 17. It is not in dispute that the appellant did not file the writ petition in his capacity as public¬ spirited person, i.e., Public Interest Litigation (PIL). It was, on the other hand, a writ petition was filed by the appellant essentially to settle his personal property rights disputes qua respondent Nos. 2 and 3. It is a settled law that no writ petition can be entertained for issuance of any writ against any private individual in respect of any private property dispute. The remedy in such case lies in civil Courts. 18. In other words, it is a settled law that the questions such as, who is the owner of the land in question, the appellant or respondent No. 2 or any other member of their family, whether the land in question was let out by respondent No. 2 to respondent No. 3 and, if so, when, why and for what purpose, who had the right to let out the said land (appellant or respondent No. 2 or any other member of the family), what was the arrangements, if any, made in the memorandum of settlement in relation to the land in question inter se members of the family, whether it was breached or not and, if so, by whom, what activities are being carried on the said land and, if so, by whom, whether such activities are legal or illegal etc. are not the questions which can be raised by any private individual against other private individual in the writ petition under Article 226 of the Constitution. 19. Even if the writ petitioner did not raise pointedly these questions for claiming reliefs in the writ petition yet, in our view, such questions have a material bearing while considering the grant of reliefs claimed by the writ petitioner in the writ petition. 20. It is not in dispute that some proceedings are pending before the Company Law Board between the parties in relation to their private property disputes. If that be so, the parties to such proceedings have to prosecute the proceedings before CLB in accordance with law for obtaining appropriate reliefs. 21. Before parting, we consider it apposite to mention that we have not expressed any opinion on the merits of the case. Rather, it is not possible to express any opinion for want of jurisdiction. The parties, therefore, will be at liberty to take recourse to all judicial remedies, as may be available to them in law, for adjudication of their respective grievances in appropriate judicial forum against each other. 22. Similarly, it is for the State authorities to see as to whether any person(s) has/have contravened or/and is/are contravening any provision(s) of any Act or Rules or Regulations or Statutory Schemes in any manner while using the properties and, if so, what action is called for qua such persons and against the activities carried on by such person(s) in law. We, however, express no opinion on any of these issues and leave it for the State authorities to act against any such person(s) in accordance with law. 23. We also make it clear that all such disputes between the parties concerned on its merits will be decided strictly in accordance with law by the Court/Tribunal/Authority, as the case may be, uninfluenced by any observation made by the High Court in the impugned order and by this Court in this order. | 0[ds]14. In our considered opinion also, the writ petition filed by the appellant was wholly misconceived and deserved dismissal at the threshold15. As rightly observed by the Division Bench, the dispute sought to be raised by the appellant in his writ petition was essentially a private property dispute between the members of one family of which the appellant and respondent No. 2 are the members16. By indirect means such as the one resorted to by the writ petitioner (appellant herein) by filing the writ petition, a dispute inter se private parties of the nature mentioned above could not be allowed to be raised in the writ petition under Article 226/227 of the Constitution for seeking issuance of mandamus against the State and its authorities in relation to the properties in question17. It is not in dispute that the appellant did not file the writ petition in his capacity as public¬ spirited person, i.e., Public Interest Litigation (PIL). It was, on the other hand, a writ petition was filed by the appellant essentially to settle his personal property rights disputes qua respondent Nos. 2 and 3. It is a settled law that no writ petition can be entertained for issuance of any writ against any private individual in respect of any private property dispute. The remedy in such case lies in civil Courts18. In other words, it is a settled law that the questions such as, who is the owner of the land in question, the appellant or respondent No. 2 or any other member of their family, whether the land in question was let out by respondent No. 2 to respondent No. 3 and, if so, when, why and for what purpose, who had the right to let out the said land (appellant or respondent No. 2 or any other member of the family), what was the arrangements, if any, made in the memorandum of settlement in relation to the land in question inter se members of the family, whether it was breached or not and, if so, by whom, what activities are being carried on the said land and, if so, by whom, whether such activities are legal or illegal etc. are not the questions which can be raised by any private individual against other private individual in the writ petition under Article 226 of the Constitution19. Even if the writ petitioner did not raise pointedly these questions for claiming reliefs in the writ petition yet, in our view, such questions have a material bearing while considering the grant of reliefs claimed by the writ petitioner in the writ petition20. It is not in dispute that some proceedings are pending before the Company Law Board between the parties in relation to their private property disputes. If that be so, the parties to such proceedings have to prosecute the proceedings before CLB in accordance with law for obtaining appropriate reliefs21. Before parting, we consider it apposite to mention that we have not expressed any opinion on the merits of the case. Rather, it is not possible to express any opinion for want of jurisdiction. The parties, therefore, will be at liberty to take recourse to all judicial remedies, as may be available to them in law, for adjudication of their respective grievances in appropriate judicial forum against each other22. Similarly, it is for the State authorities to see as to whether any person(s) has/have contravened or/and is/are contravening any provision(s) of any Act or Rules or Regulations or Statutory Schemes in any manner while using the properties and, if so, what action is called for qua such persons and against the activities carried on by such person(s) in law. We, however, express no opinion on any of these issues and leave it for the State authorities to act against any such person(s) in accordance with law23. We also make it clear that all such disputes between the parties concerned on its merits will be decided strictly in accordance with law by the Court/Tribunal/Authority, as the case may be, uninfluenced by any observation made by the High Court in the impugned order and by this Court in this order. | 0 | 1,850 | 776 | ### Instruction:
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the land in question are illegal, hazardous and against the public safety inasmuch as they are being carried in violation of several provisions of the laws in force. 11. As mentioned above, the Division Bench dismissed the writ petition finding no merit therein with the following reasons in Para 17, which reads as under: 17. A perusal of the records produced before this Court leaves no iota of doubt that principally the dispute now raised before this Court is a private dispute between the various family members having contesting the claims to be on the Board apart from those relating to the affairs of the Company. It is an admitted fact that the company is a closely held company by a family members of six brothers. The present dispute is nothing but a trial for the show of their respective strength to each other herein. A petition before the Company Law Board is pending consideration as regards the continuance of the directorship of Mr. Muthusami. Whatever be the merits of the petition before the Company Law Board, taking note of the various contentions, which included a dispute with reference to the area occupied by the Theatre and the construction of the mandapam and the petrol pump, this Court in the order passed on 19.9.2007 in C.M.A. No.1900 of 2007 has rightly directed the Company Law Board to dispose of the main petition by 31.1.2008. 12. The question, which arises for consideration in these appeals, is whether the Division Bench was justified in dismissing the appellants writ petition on the aforementioned reasoning. 13. We heard the learned counsel for the parties and perused the record of the case. Having heard the learned counsel, we are inclined to agree with the reasoning and the conclusion arrived at by the Division Bench in the impugned order. 14. In our considered opinion also, the writ petition filed by the appellant was wholly misconceived and deserved dismissal at the threshold. 15. As rightly observed by the Division Bench, the dispute sought to be raised by the appellant in his writ petition was essentially a private property dispute between the members of one family of which the appellant and respondent No. 2 are the members. 16. By indirect means such as the one resorted to by the writ petitioner (appellant herein) by filing the writ petition, a dispute inter se private parties of the nature mentioned above could not be allowed to be raised in the writ petition under Article 226/227 of the Constitution for seeking issuance of mandamus against the State and its authorities in relation to the properties in question. 17. It is not in dispute that the appellant did not file the writ petition in his capacity as public¬ spirited person, i.e., Public Interest Litigation (PIL). It was, on the other hand, a writ petition was filed by the appellant essentially to settle his personal property rights disputes qua respondent Nos. 2 and 3. It is a settled law that no writ petition can be entertained for issuance of any writ against any private individual in respect of any private property dispute. The remedy in such case lies in civil Courts. 18. In other words, it is a settled law that the questions such as, who is the owner of the land in question, the appellant or respondent No. 2 or any other member of their family, whether the land in question was let out by respondent No. 2 to respondent No. 3 and, if so, when, why and for what purpose, who had the right to let out the said land (appellant or respondent No. 2 or any other member of the family), what was the arrangements, if any, made in the memorandum of settlement in relation to the land in question inter se members of the family, whether it was breached or not and, if so, by whom, what activities are being carried on the said land and, if so, by whom, whether such activities are legal or illegal etc. are not the questions which can be raised by any private individual against other private individual in the writ petition under Article 226 of the Constitution. 19. Even if the writ petitioner did not raise pointedly these questions for claiming reliefs in the writ petition yet, in our view, such questions have a material bearing while considering the grant of reliefs claimed by the writ petitioner in the writ petition. 20. It is not in dispute that some proceedings are pending before the Company Law Board between the parties in relation to their private property disputes. If that be so, the parties to such proceedings have to prosecute the proceedings before CLB in accordance with law for obtaining appropriate reliefs. 21. Before parting, we consider it apposite to mention that we have not expressed any opinion on the merits of the case. Rather, it is not possible to express any opinion for want of jurisdiction. The parties, therefore, will be at liberty to take recourse to all judicial remedies, as may be available to them in law, for adjudication of their respective grievances in appropriate judicial forum against each other. 22. Similarly, it is for the State authorities to see as to whether any person(s) has/have contravened or/and is/are contravening any provision(s) of any Act or Rules or Regulations or Statutory Schemes in any manner while using the properties and, if so, what action is called for qua such persons and against the activities carried on by such person(s) in law. We, however, express no opinion on any of these issues and leave it for the State authorities to act against any such person(s) in accordance with law. 23. We also make it clear that all such disputes between the parties concerned on its merits will be decided strictly in accordance with law by the Court/Tribunal/Authority, as the case may be, uninfluenced by any observation made by the High Court in the impugned order and by this Court in this order.
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14. In our considered opinion also, the writ petition filed by the appellant was wholly misconceived and deserved dismissal at the threshold15. As rightly observed by the Division Bench, the dispute sought to be raised by the appellant in his writ petition was essentially a private property dispute between the members of one family of which the appellant and respondent No. 2 are the members16. By indirect means such as the one resorted to by the writ petitioner (appellant herein) by filing the writ petition, a dispute inter se private parties of the nature mentioned above could not be allowed to be raised in the writ petition under Article 226/227 of the Constitution for seeking issuance of mandamus against the State and its authorities in relation to the properties in question17. It is not in dispute that the appellant did not file the writ petition in his capacity as public¬ spirited person, i.e., Public Interest Litigation (PIL). It was, on the other hand, a writ petition was filed by the appellant essentially to settle his personal property rights disputes qua respondent Nos. 2 and 3. It is a settled law that no writ petition can be entertained for issuance of any writ against any private individual in respect of any private property dispute. The remedy in such case lies in civil Courts18. In other words, it is a settled law that the questions such as, who is the owner of the land in question, the appellant or respondent No. 2 or any other member of their family, whether the land in question was let out by respondent No. 2 to respondent No. 3 and, if so, when, why and for what purpose, who had the right to let out the said land (appellant or respondent No. 2 or any other member of the family), what was the arrangements, if any, made in the memorandum of settlement in relation to the land in question inter se members of the family, whether it was breached or not and, if so, by whom, what activities are being carried on the said land and, if so, by whom, whether such activities are legal or illegal etc. are not the questions which can be raised by any private individual against other private individual in the writ petition under Article 226 of the Constitution19. Even if the writ petitioner did not raise pointedly these questions for claiming reliefs in the writ petition yet, in our view, such questions have a material bearing while considering the grant of reliefs claimed by the writ petitioner in the writ petition20. It is not in dispute that some proceedings are pending before the Company Law Board between the parties in relation to their private property disputes. If that be so, the parties to such proceedings have to prosecute the proceedings before CLB in accordance with law for obtaining appropriate reliefs21. Before parting, we consider it apposite to mention that we have not expressed any opinion on the merits of the case. Rather, it is not possible to express any opinion for want of jurisdiction. The parties, therefore, will be at liberty to take recourse to all judicial remedies, as may be available to them in law, for adjudication of their respective grievances in appropriate judicial forum against each other22. Similarly, it is for the State authorities to see as to whether any person(s) has/have contravened or/and is/are contravening any provision(s) of any Act or Rules or Regulations or Statutory Schemes in any manner while using the properties and, if so, what action is called for qua such persons and against the activities carried on by such person(s) in law. We, however, express no opinion on any of these issues and leave it for the State authorities to act against any such person(s) in accordance with law23. We also make it clear that all such disputes between the parties concerned on its merits will be decided strictly in accordance with law by the Court/Tribunal/Authority, as the case may be, uninfluenced by any observation made by the High Court in the impugned order and by this Court in this order.
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Pt. Ram Chandra Shukla Vs. Shree Mahadeoji, Mahabirji And Hazrat Alikanpur & Ors | (Cf. Mukherjea, p. 74). Neither the Statute of Elizabethus nor the Law relating to Superstitious Uses was applied at any time to India. Consequently, the English decisions based on one or the other of these statutes would not be applicable nor can they be commensurate with the conditions prevailing in India though those decisions might undoubtedly be of some guidance.19. Is then the trust for the maintenance and up-keep of a wrestling ground a valid charitable trust? The evidence shows that Mani Ram, being personally fond of wrestling had a number of disciples and attracted several wrestlers to the Akhara. But that, according to Rahas Kaurs will, he did out of his own love for this particular sport and by spending large amounts out of his own moneys. The only thing which seems to have been done by his successors was to hold wrestling tournaments and award prizes to the successful ones out of the income of the property and to maintain the Akhara. It may be that people might have come to these tournaments and even practised wrestling but there is no evidence whatsoever that wrestling was taught or its knowledge was imparted to those wishing to know it. At best, therefore, it can be said that by maintaining the Akhara and holding therein the tournaments wrestling was sought to be encouraged or fostered. But there is nothing to show that the promotion of a particular game either for entertainment of the public or as encouragement to those who take part in it has ever been recognised as a charitable trust according to Hindu Law. Neither Pandit Prannath Saraswati, nor Mukherjea, nor Mayne suggests in his treatise that a dedication for the promotion of a particular game or sport is charitable trust under the Hindu law.20. In England it is held not to be so, of course within the scope of the Statute of Elizabeth as interpreted in Commrs. for Special Purposes of the Income-tax v. Pemsel, (1891) AC 531 at p. 583. Thus, In re, Notage; Jones v. Palmer, 1895-2 Ch 649 a gift for encouraging the sport of yacht-racing was not upheld as a charitable trust though as Lindley, L. J., remarked every healthy sport is good for the nation. In re, Hadden; Public Trustee v. More, 1932-1 Ch 133 while acknowledging the principle laid down in In re Notage, 1895-2 Ch 649 the Court held that a trust providing for recreation grounds and parks for the benefit of working classes was valid on the ground, however, that such uses were intended for the health and welfare of the working classes. So too, in In re Mariette; Mariette v. Governing Body of Aldenham School, 1915-2 Ch 284 where bequests for building squash racket courts or some similar purpose within the school premises and for a prize to the winner in the school athletics were held valid on the ground of its being essential in a school of learning that there should be organised games as part of the daily routine. It is clear from the judgment of Eve, J., that he upheld the bequest on the ground not of promoting athletic games but on the ground that the object of the charity was education in the school and that training in such games would be part of the educational activities of the school. There is, however, one decision of a marginal nature, if we may say so, namely, in Daley v. Lloyds Bank Ltd., (1945) 114 LJ Ch 1 where a gift for holding an annual chess tournament limited to boys and youngmen under the age of 21 years residing in a particular locality was upheld. But that was done after a good deal of hesitation and only by basing it on the ground that training of youth in a game of skill which also required concentration was part of their education.21. Coming to the cases in India, the decisions in the Trustees of the Tribune Press v. Commr. of Income-tax, 66 Ind App 241 = (AIR 1939 PC 208 ); All India Spinners Association v. Commr. of Income-tax, ILR (1945) Bom 153 = (AIR 1944 PC 88 ) and Cricket Association Bengal v. Commr. of Income-tax, Calcutta, AIR 1959 Cal 296 were all cases under Section 4 (3) (i) of the Income-tax Act, 1922 and therefore would have no relevance to the present case arising under the Hindu Law.22.The decisions above referred to thus lay down a distinction between cases where the object of the dedication was the promotions of games as part of the education of those who participate in them and cases where the object was promotion of games simpliciter, the former only having been upheld on the ground that such promotion or encouragement is part of the educational training and the latter not having been upheld.In the case of Cricket Association, Bengal, AIR 1959 Cal 296 though arrangements of cricket tournaments of both domestic and foreign teams were said to promote and foster love for a healthy game, Section 4 (3) (i) was held not to be applicable.23. On a reading of the relevant documents on record and the oral testimony led by the parties we are not in a position to agree with the High Court that the trust created by Mani Ram was a religious trust in favour of the two idols of Lord Shiva and Mahabirji. As aforesaid, our conclusion is that the dominant intention of the settlor was to set up and maintain an Akhara,the said two idols as also the tasweer of Hazrat Ali having been installed there only to attract wrestlers of the two communities.That being the position, reluctant though we are, particularly in view of the fact that the said Akhara has been maintained for nearly a century, we find it extremely difficult, in the absence of any authority, textual or by way of a precedent, to hold that the dedication in question was for either a religious or charitable purpose as recognised by Hindu Law. | 1[ds]11. So far as the first and the second contentions are concerned, we have no difficulty in rejecting them. The documents on record as also the evidence as to the conduct of Mani Ram and those who held the property after him clearly show that Mani Ram dedicated the groveland and not merely the trees standing thereon. The purchase of part of the said property after its acquisition was from out of the compensation received by Ishwar Narain and not out of his personal funds, so that if the trust was in law a valid one, the property purchased by him out of the trust funds would be stamped with the trust and he would in that event be holding that property as a trustee or manager and not as an owner.There being no deed of endowment, the intention of Mani Ram in settling the property in question has to be principally gathered from the said deed of partition and the said will of Rahas Kaur, the rest of the documents executed by Mangli Prasad and others being useful only in aid of the interpretation of that deed of partition and the said will. There can be no doubt whatsoever that Mani Ram, being an eminent wrestler and fond of that game, purchased out of his own money the said groveland for the purpose of setting up an Akhara thereon. The question then would be whether he settled that property upon trust, and if so, for what trust.14. As already seen, Mani Ram recorded in the said partition deed the fact of his having partitioned the property into eight shares, his having given one share to each of his seven sons and having retained the eighth share for himself and his second wife and the said groveland as waqf property. The deed, however, does not set out the purpose or purposes for which the said groveland was regarded by him as waqf property. But it does show that he regarded that property as already dedicated. The purposes for which the groveland was so dedicated are to be found in the said will of Rahas Kaur, wherein she has in clear terms stated that Mani Ram had dedicated the groveland "which has Asthan of Mahadeo Ji and Mahabir Ji and Akhara and tasweer of Hazrat Ali, that the Akhara and the Asthan were upto that date maintained and that they should continue as heretofore. The will thus provides a key to the mind of Mani Ram who, as aforesaid, had purchased the said property and set up thereon the said wrestling arena. Obviously, he was anxious that wrestlers of both Hindu and Muslim communities should take part in that Akhara. It is equally obvious that to attract wrestlers from both the communities he installed in that Akhara the tasweer of Hazrat Ali and the idols of Shri Mahadeo and Mahabir, the two patron deities of wrestling. Once those idols were put up in the Akhara, their worship had to be provided for, it is well known amongst Hindus that it is irreligious to let such idols remain unworshipped. It is not possible to know from the evidence as to where Hazrat Alis tasweer was installed, but it is clear from the evidence that the idol of Mahabirji was located at the top of the archgate which led into the Akhara and the Shiva Lingam was installed over a small room built next to the gate. Clearly, the purpose of installing the two idols and the tasweer was to enable the wrestlers to pay their homage and salutations to the patron deities of the game before entering into the wrestling arena. The dominant object of the dedication was thus the Akhara and the Asthan of God Shiva and Mahabir, spoken of in the will of Rahas Kaur, was only an adjunct to the Akhara. There is evidence, no doubt, to show that pooja and shringar of the two idols were performed. But that apparently was because the idols once installed could not be left unworshipped. On these facts we are inclined to take the view that the dominant object of the dedication was the Akhara and the said idols and the tasweer were installed only to attract persons of both the communities to the Akhara and to provide for them the facility for invoking the divine benefaction before they participated in wrestling. As laid down in Saraswathi Ammals case, 1954 SCR 277 = (AIR 1953 SC 491 ), it is on this footing that the validity or otherwise of the trust has to be considered.15. It must be made clear at very outset that although the will of Rahas Kaur provided that persons who are to manage the trust were to be in the first instance her son, Mangli Prasad, and later on those appointed by him from amongst the issues of Mani Ram, the trust was obviously not a private but a public trust in the sense that it was for the benefit of those who are devoted to the sport of wrestling irrespective of whether they are Hindus or Muslims. But the contention was that in spite of the trust being a public trust, it was not one recognised by Hindu Law as being a religious and/or a charitable one. As stated earlier, the fact that the Akhara ground had the two idols installed in it makes no difference as the dominant object of the dedication was the Akhara and not the worship of the idols or the tasweer of Hazrat Ali.It must be made clear at very outset that although the will of Rahas Kaur provided that persons who are to manage the trust were to be in the first instance her son, Mangli Prasad, and later on those appointed by him from amongst the issues of Mani Ram, the trust was obviously not a private but a public trust in the sense that it was for the benefit of those who are devoted to the sport of wrestling irrespective of whether they are Hindus or Muslims. But the contention was that in spite of the trust being a public trust, it was not one recognised by Hindu Law as being a religious and/or a charitable one. As stated earlier, the fact that the Akhara ground had the two idols installed in it makes no difference as the dominant object of the dedication was the Akhara and not the worship of the idols or the tasweer of Hazratdecisions above referred to thus lay down a distinction between cases where the object of the dedication was the promotions of games as part of the education of those who participate in them and cases where the object was promotion of games simpliciter, the former only having been upheld on the ground that such promotion or encouragement is part of the educational training and the latter not having been upheld.In the case of Cricket Association, Bengal, AIR 1959 Cal 296 though arrangements of cricket tournaments of both domestic and foreign teams were said to promote and foster love for a healthy game, Section 4 (3) (i) was held not to be applicable.23. On a reading of the relevant documents on record and the oral testimony led by the parties we are not in a position to agree with the High Court that the trust created by Mani Ram was a religious trust in favour of the two idols of Lord Shiva and Mahabirji. As aforesaid, our conclusion is that the dominant intention of the settlor was to set up and maintain an Akhara,the said two idols as also the tasweer of Hazrat Ali having been installed there only to attract wrestlers of the two communities.That being the position, reluctant though we are, particularly in view of the fact that the said Akhara has been maintained for nearly a century, we find it extremely difficult, in the absence of any authority, textual or by way of a precedent, to hold that the dedication in question was for either a religious or charitable purpose as recognised by Hindu Law. | 1 | 5,650 | 1,435 | ### Instruction:
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(Cf. Mukherjea, p. 74). Neither the Statute of Elizabethus nor the Law relating to Superstitious Uses was applied at any time to India. Consequently, the English decisions based on one or the other of these statutes would not be applicable nor can they be commensurate with the conditions prevailing in India though those decisions might undoubtedly be of some guidance.19. Is then the trust for the maintenance and up-keep of a wrestling ground a valid charitable trust? The evidence shows that Mani Ram, being personally fond of wrestling had a number of disciples and attracted several wrestlers to the Akhara. But that, according to Rahas Kaurs will, he did out of his own love for this particular sport and by spending large amounts out of his own moneys. The only thing which seems to have been done by his successors was to hold wrestling tournaments and award prizes to the successful ones out of the income of the property and to maintain the Akhara. It may be that people might have come to these tournaments and even practised wrestling but there is no evidence whatsoever that wrestling was taught or its knowledge was imparted to those wishing to know it. At best, therefore, it can be said that by maintaining the Akhara and holding therein the tournaments wrestling was sought to be encouraged or fostered. But there is nothing to show that the promotion of a particular game either for entertainment of the public or as encouragement to those who take part in it has ever been recognised as a charitable trust according to Hindu Law. Neither Pandit Prannath Saraswati, nor Mukherjea, nor Mayne suggests in his treatise that a dedication for the promotion of a particular game or sport is charitable trust under the Hindu law.20. In England it is held not to be so, of course within the scope of the Statute of Elizabeth as interpreted in Commrs. for Special Purposes of the Income-tax v. Pemsel, (1891) AC 531 at p. 583. Thus, In re, Notage; Jones v. Palmer, 1895-2 Ch 649 a gift for encouraging the sport of yacht-racing was not upheld as a charitable trust though as Lindley, L. J., remarked every healthy sport is good for the nation. In re, Hadden; Public Trustee v. More, 1932-1 Ch 133 while acknowledging the principle laid down in In re Notage, 1895-2 Ch 649 the Court held that a trust providing for recreation grounds and parks for the benefit of working classes was valid on the ground, however, that such uses were intended for the health and welfare of the working classes. So too, in In re Mariette; Mariette v. Governing Body of Aldenham School, 1915-2 Ch 284 where bequests for building squash racket courts or some similar purpose within the school premises and for a prize to the winner in the school athletics were held valid on the ground of its being essential in a school of learning that there should be organised games as part of the daily routine. It is clear from the judgment of Eve, J., that he upheld the bequest on the ground not of promoting athletic games but on the ground that the object of the charity was education in the school and that training in such games would be part of the educational activities of the school. There is, however, one decision of a marginal nature, if we may say so, namely, in Daley v. Lloyds Bank Ltd., (1945) 114 LJ Ch 1 where a gift for holding an annual chess tournament limited to boys and youngmen under the age of 21 years residing in a particular locality was upheld. But that was done after a good deal of hesitation and only by basing it on the ground that training of youth in a game of skill which also required concentration was part of their education.21. Coming to the cases in India, the decisions in the Trustees of the Tribune Press v. Commr. of Income-tax, 66 Ind App 241 = (AIR 1939 PC 208 ); All India Spinners Association v. Commr. of Income-tax, ILR (1945) Bom 153 = (AIR 1944 PC 88 ) and Cricket Association Bengal v. Commr. of Income-tax, Calcutta, AIR 1959 Cal 296 were all cases under Section 4 (3) (i) of the Income-tax Act, 1922 and therefore would have no relevance to the present case arising under the Hindu Law.22.The decisions above referred to thus lay down a distinction between cases where the object of the dedication was the promotions of games as part of the education of those who participate in them and cases where the object was promotion of games simpliciter, the former only having been upheld on the ground that such promotion or encouragement is part of the educational training and the latter not having been upheld.In the case of Cricket Association, Bengal, AIR 1959 Cal 296 though arrangements of cricket tournaments of both domestic and foreign teams were said to promote and foster love for a healthy game, Section 4 (3) (i) was held not to be applicable.23. On a reading of the relevant documents on record and the oral testimony led by the parties we are not in a position to agree with the High Court that the trust created by Mani Ram was a religious trust in favour of the two idols of Lord Shiva and Mahabirji. As aforesaid, our conclusion is that the dominant intention of the settlor was to set up and maintain an Akhara,the said two idols as also the tasweer of Hazrat Ali having been installed there only to attract wrestlers of the two communities.That being the position, reluctant though we are, particularly in view of the fact that the said Akhara has been maintained for nearly a century, we find it extremely difficult, in the absence of any authority, textual or by way of a precedent, to hold that the dedication in question was for either a religious or charitable purpose as recognised by Hindu Law.
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said will of Rahas Kaur, wherein she has in clear terms stated that Mani Ram had dedicated the groveland "which has Asthan of Mahadeo Ji and Mahabir Ji and Akhara and tasweer of Hazrat Ali, that the Akhara and the Asthan were upto that date maintained and that they should continue as heretofore. The will thus provides a key to the mind of Mani Ram who, as aforesaid, had purchased the said property and set up thereon the said wrestling arena. Obviously, he was anxious that wrestlers of both Hindu and Muslim communities should take part in that Akhara. It is equally obvious that to attract wrestlers from both the communities he installed in that Akhara the tasweer of Hazrat Ali and the idols of Shri Mahadeo and Mahabir, the two patron deities of wrestling. Once those idols were put up in the Akhara, their worship had to be provided for, it is well known amongst Hindus that it is irreligious to let such idols remain unworshipped. It is not possible to know from the evidence as to where Hazrat Alis tasweer was installed, but it is clear from the evidence that the idol of Mahabirji was located at the top of the archgate which led into the Akhara and the Shiva Lingam was installed over a small room built next to the gate. Clearly, the purpose of installing the two idols and the tasweer was to enable the wrestlers to pay their homage and salutations to the patron deities of the game before entering into the wrestling arena. The dominant object of the dedication was thus the Akhara and the Asthan of God Shiva and Mahabir, spoken of in the will of Rahas Kaur, was only an adjunct to the Akhara. There is evidence, no doubt, to show that pooja and shringar of the two idols were performed. But that apparently was because the idols once installed could not be left unworshipped. On these facts we are inclined to take the view that the dominant object of the dedication was the Akhara and the said idols and the tasweer were installed only to attract persons of both the communities to the Akhara and to provide for them the facility for invoking the divine benefaction before they participated in wrestling. As laid down in Saraswathi Ammals case, 1954 SCR 277 = (AIR 1953 SC 491 ), it is on this footing that the validity or otherwise of the trust has to be considered.15. It must be made clear at very outset that although the will of Rahas Kaur provided that persons who are to manage the trust were to be in the first instance her son, Mangli Prasad, and later on those appointed by him from amongst the issues of Mani Ram, the trust was obviously not a private but a public trust in the sense that it was for the benefit of those who are devoted to the sport of wrestling irrespective of whether they are Hindus or Muslims. But the contention was that in spite of the trust being a public trust, it was not one recognised by Hindu Law as being a religious and/or a charitable one. As stated earlier, the fact that the Akhara ground had the two idols installed in it makes no difference as the dominant object of the dedication was the Akhara and not the worship of the idols or the tasweer of Hazrat Ali.It must be made clear at very outset that although the will of Rahas Kaur provided that persons who are to manage the trust were to be in the first instance her son, Mangli Prasad, and later on those appointed by him from amongst the issues of Mani Ram, the trust was obviously not a private but a public trust in the sense that it was for the benefit of those who are devoted to the sport of wrestling irrespective of whether they are Hindus or Muslims. But the contention was that in spite of the trust being a public trust, it was not one recognised by Hindu Law as being a religious and/or a charitable one. As stated earlier, the fact that the Akhara ground had the two idols installed in it makes no difference as the dominant object of the dedication was the Akhara and not the worship of the idols or the tasweer of Hazratdecisions above referred to thus lay down a distinction between cases where the object of the dedication was the promotions of games as part of the education of those who participate in them and cases where the object was promotion of games simpliciter, the former only having been upheld on the ground that such promotion or encouragement is part of the educational training and the latter not having been upheld.In the case of Cricket Association, Bengal, AIR 1959 Cal 296 though arrangements of cricket tournaments of both domestic and foreign teams were said to promote and foster love for a healthy game, Section 4 (3) (i) was held not to be applicable.23. On a reading of the relevant documents on record and the oral testimony led by the parties we are not in a position to agree with the High Court that the trust created by Mani Ram was a religious trust in favour of the two idols of Lord Shiva and Mahabirji. As aforesaid, our conclusion is that the dominant intention of the settlor was to set up and maintain an Akhara,the said two idols as also the tasweer of Hazrat Ali having been installed there only to attract wrestlers of the two communities.That being the position, reluctant though we are, particularly in view of the fact that the said Akhara has been maintained for nearly a century, we find it extremely difficult, in the absence of any authority, textual or by way of a precedent, to hold that the dedication in question was for either a religious or charitable purpose as recognised by Hindu Law.
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Commissioner of Central Excise, Chandigarh Vs. Metro Tyres Ltd., Ludhiana | 1. These three appeals are being disposed of by this common order as the impugned order in Civil Appeals Nos. 3409 and 5084 of 2004 merely follows the order impugned in Civil Appeal No. 7262 of 2003.2. The question involved in these cases is whether an intermediate product manufactured by the respondent, namely, tyre bead wire ring, is excisable to duty. The Commissioner (Appeals) held that it was excisable to duty relying upon: (a) the fact that one M/s Hindustan Tyre Company, Ludhiana was paying duty on similar goods;(b) an affidavit of one Shri Surinder Singh, partner of M/s Gurpreet Rubber Industries to the effect that they purchased bead wire rings from M/s Khosla Enterprises for use in animal drawn vehicles and moped tyres;(c) statement of one Shri Om Parkash Pahwa, partner of M/s Ram Lubhaya and Company, stating that they manufacture tyre bead rings on job work basis for M/s Ralson (India) Ltd.; and(d) supplementary classification list filed by one M/s Govind Rubber Limited. 3. It appears that the said Shri Surinder Singh and Shri Om Parkash Pahwa did not subject themselves to cross examination even though a request for cross examining these parties was made. Attention of the Commissioner was drawn to the decision of the Tribunal in the case of CCE v. M. R. F. Ltd. (2000 (115) ELT 85 (CEGAT)) The Commissioner distinguished the decision by holding that in this case there was proof of marketability.4. The Tribunal has reversed the decision of the Commissioner holding that there is no proof of marketability and therefore the earlier decision continues to apply. The Tribunal noted that Shri Surinder Singh did not come for cross examination. It also noted that according to Shri Surinder Singh, bead wire rings were purchased from Khosla Enterprises and the owner of Khosla Enterprises has given a statement which showed that bead wire rings sold by Khosla Enterprises were not rubberised. The Tribunal also notes that there is no proof to show that the duty which had been paid by M/s Hindustan Tyre Company was on identical goods.5. We have asked counsel for the Revenue to show us whether there is any material on record to show that the duty paid by M/s Hindustan Tyre Company was in respect of identical goods. Except for the statement made by the Commissioner, in his order, no other material could be shown to us that the product of M/s Hindustan Tyre Company was an identical product. | 0[ds]5. We have asked counsel for the Revenue to show us whether there is any material on record to show that the duty paid by M/s Hindustan Tyre Company was in respect of identical goods. Except for the statement made by the Commissioner, in his order, no other material could be shown to us that the product of M/s Hindustan Tyre Company was an identical product. | 0 | 460 | 75 | ### 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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1. These three appeals are being disposed of by this common order as the impugned order in Civil Appeals Nos. 3409 and 5084 of 2004 merely follows the order impugned in Civil Appeal No. 7262 of 2003.2. The question involved in these cases is whether an intermediate product manufactured by the respondent, namely, tyre bead wire ring, is excisable to duty. The Commissioner (Appeals) held that it was excisable to duty relying upon: (a) the fact that one M/s Hindustan Tyre Company, Ludhiana was paying duty on similar goods;(b) an affidavit of one Shri Surinder Singh, partner of M/s Gurpreet Rubber Industries to the effect that they purchased bead wire rings from M/s Khosla Enterprises for use in animal drawn vehicles and moped tyres;(c) statement of one Shri Om Parkash Pahwa, partner of M/s Ram Lubhaya and Company, stating that they manufacture tyre bead rings on job work basis for M/s Ralson (India) Ltd.; and(d) supplementary classification list filed by one M/s Govind Rubber Limited. 3. It appears that the said Shri Surinder Singh and Shri Om Parkash Pahwa did not subject themselves to cross examination even though a request for cross examining these parties was made. Attention of the Commissioner was drawn to the decision of the Tribunal in the case of CCE v. M. R. F. Ltd. (2000 (115) ELT 85 (CEGAT)) The Commissioner distinguished the decision by holding that in this case there was proof of marketability.4. The Tribunal has reversed the decision of the Commissioner holding that there is no proof of marketability and therefore the earlier decision continues to apply. The Tribunal noted that Shri Surinder Singh did not come for cross examination. It also noted that according to Shri Surinder Singh, bead wire rings were purchased from Khosla Enterprises and the owner of Khosla Enterprises has given a statement which showed that bead wire rings sold by Khosla Enterprises were not rubberised. The Tribunal also notes that there is no proof to show that the duty which had been paid by M/s Hindustan Tyre Company was on identical goods.5. We have asked counsel for the Revenue to show us whether there is any material on record to show that the duty paid by M/s Hindustan Tyre Company was in respect of identical goods. Except for the statement made by the Commissioner, in his order, no other material could be shown to us that the product of M/s Hindustan Tyre Company was an identical product.
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5. We have asked counsel for the Revenue to show us whether there is any material on record to show that the duty paid by M/s Hindustan Tyre Company was in respect of identical goods. Except for the statement made by the Commissioner, in his order, no other material could be shown to us that the product of M/s Hindustan Tyre Company was an identical product.
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The Kalyan People'S Co-Operative Bank Vs. Dulhanbibi Aqual Aminsaheb Patil | Das Gupta, J.1. Disputes having arisen between the appellant, a Co-operative Bank and one Amin Saheb Patil, who had taken loans from the Bank and Kutubuddin Mohemad Ajim Kazi, who had stood surety in respect of the loans they were referred to arbitration in two references under S. 54 of the Bombay Co-operative Societies Act, 1925. The Board of Arbitrators originally consisted of Mr. L. V. Phadke, Mr. G. K. Phadke and Mr. Trilokekar. After the Board had several meetings and recorded some evidence Mr. Trilokekar, who was the nominee of the borrower, Amin Saheb, retired. Thereafter the Board was re-constituted with Mr. Kotwal as the new nominee of the borrower. This Board also recorded some evidence but after sometime Mr. Kotwal also retired. There was a fresh constitution of the Board with the other two members as before and Mr. M. D. Thakur as the nominee of the borrower. Further evidence was recorded by the Board thus constituted and finally the Board gave its awards in the matters on March 14, 19552. Dissatisfied with these awards Amin Saheb filed two revision applications before the Bombay Co-operative Tribunal. Apart form certain objections on the merits of the awards a preliminary objection was taken before the Tribunal as regards the legality of the awards on the ground that the Board as last constituted had acted on evidence not recorded before it. The Tribunal accepted this preliminary objection, set aside the awards and remanded the cases to the Assistant Registrar for a re-hearing.3. Shortly after this Amin Saheb died but his heirs and legal representatives made two applications to the Bombay High Court under Art. 227 of the Constitution against the Tribunals decision. The High Court held that the Tribunal had erred in thinking that the Board of Arbitrators had acted illegally in acting on the evidence recorded by the previous Boards when this was done with the full knowledge of the parties and without any objection on either side. Accordingly, they set aside the orders passed by the Tribunal and restored the awards made by the Board of Arbitrators.4. The Bank has now appealed against the decision of the High Court after obtaining special leave from this Court.5. Three points are raised before us in support of the appeal. The first is that the Tribunal had not made any error in holding that the Board had acted illegally in acting upon the evidence recorded by the previous Boards. Secondly, it is urged that even if the Board had erred it was not such an error as would entitle the High Court to interfere under Art. 227 of the Constitution. Lastly, it was contended that in any case, the High Court was not justified in setting aside the awards when the Tribunal has disposed of the application only on preliminary points and had not considered it on merits. In our opinion there is no substance in the first two contentions. As the High Court has pointed out normally it would have been wrong and indeed illegal for the Tribunal to act on evidence not taken before it. The position is however different when the parties expressly or impliedly agree that some evidence not taken before the Tribunal should be treated as evidence and taken into consideration. It is settled law that question of mode of proof is a question of procedure and is capable of being waived and therefore evidence taken in a previous judicial proceeding can be made admissible in a subsequent proceeding by consent of parties. This applies to proceedings of a civil nature. While what is not relevant under the Evidence Act cannot in proceedings to which Evidence Act applies, made relevant by consent of parties, relevant evidence can be brought on the record for consideration of the Court or the Tribunal without following the regular mode, if parties agree. The reason behind this rule is that it would be unfair to ask any party to prove a particular fact when the other party has already admitted that the way it has been brought before the Court has sufficiently proved it. We are therefore of opinion that in the facts of these cases when the appellant Bank not only raised no objection to the Board as last constituted proceeding on the evidence already recorded before the previous Boards, but indeed appears to have invited the Board to act on such evidence previously recorded, the appellant cannot be allowed later on to object to the Board having considered the evidence- merely because the decision has gone against it. The Tribunal was clearly wrong in thinking otherwise and the error cannot but be considered to be an error apparent on the face of the record and as such the High Court had not only the power but the duty to interfere with the Tribunals order.6. It appears to us however that having come to the conclusion that the Tribunal was wrong in allowing the preliminary objection raised before it the High Court was not entitled to ignore the fact that before the Tribunal other questions had been raised which had not been considered by it. The proper order to pass in such a case, in our opinion, would be to set aside the order of the Tribunal and direct it to decide the applications for revision on their merits. | 1[ds]5. Three points are raised before us in support of the appeal. The first is that the Tribunal had not made any error in holding that the Board had acted illegally in acting upon the evidence recorded by the previous Boards. Secondly, it is urged that even if the Board had erred it was not such an error as would entitle the High Court to interfere under Art. 227 of the Constitution. Lastly, it was contended that in any case, the High Court was not justified in setting aside the awards when the Tribunal has disposed of the application only on preliminary points and had not considered it on merits.In our opinion there is no substance in the first two contentions. As the High Court has pointed out normally it would have been wrong and indeed illegal for the Tribunal to act on evidence not taken before it. The position is however different when the parties expressly or impliedly agree that some evidence not taken before the Tribunal should be treated as evidence and taken into consideration. It is settled law that question of mode of proof is a question of procedure and is capable of being waived and therefore evidence taken in a previous judicial proceeding can be made admissible in a subsequent proceeding by consent of parties. This applies to proceedings of a civil nature. While what is not relevant under the Evidence Act cannot in proceedings to which Evidence Act applies, made relevant by consent of parties, relevant evidence can be brought on the record for consideration of the Court or the Tribunal without following the regular mode, if parties agree. The reason behind this rule is that it would be unfair to ask any party to prove a particular fact when the other party has already admitted that the way it has been brought before the Court has sufficiently proved it. We are therefore of opinion that in the facts of these cases when the appellant Bank not only raised no objection to the Board as last constituted proceeding on the evidence already recorded before the previous Boards, but indeed appears to have invited the Board to act on such evidence previously recorded, the appellant cannot be allowed later on to object to the Board having considered the evidence- merely because the decision has gone against it. The Tribunal was clearly wrong in thinking otherwise and the error cannot but be considered to be an error apparent on the face of the record and as such the High Court had not only the power but the duty to interfere with the Tribunals order.6. It appears to us however that having come to the conclusion that the Tribunal was wrong in allowing the preliminary objection raised before it the High Court was not entitled to ignore the fact that before the Tribunal other questions had been raised which had not been considered by it. The proper order to pass in such a case, in our opinion, would be to set aside the order of the Tribunal and direct it to decide the applications for revision on their merits. | 1 | 945 | 554 | ### 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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Das Gupta, J.1. Disputes having arisen between the appellant, a Co-operative Bank and one Amin Saheb Patil, who had taken loans from the Bank and Kutubuddin Mohemad Ajim Kazi, who had stood surety in respect of the loans they were referred to arbitration in two references under S. 54 of the Bombay Co-operative Societies Act, 1925. The Board of Arbitrators originally consisted of Mr. L. V. Phadke, Mr. G. K. Phadke and Mr. Trilokekar. After the Board had several meetings and recorded some evidence Mr. Trilokekar, who was the nominee of the borrower, Amin Saheb, retired. Thereafter the Board was re-constituted with Mr. Kotwal as the new nominee of the borrower. This Board also recorded some evidence but after sometime Mr. Kotwal also retired. There was a fresh constitution of the Board with the other two members as before and Mr. M. D. Thakur as the nominee of the borrower. Further evidence was recorded by the Board thus constituted and finally the Board gave its awards in the matters on March 14, 19552. Dissatisfied with these awards Amin Saheb filed two revision applications before the Bombay Co-operative Tribunal. Apart form certain objections on the merits of the awards a preliminary objection was taken before the Tribunal as regards the legality of the awards on the ground that the Board as last constituted had acted on evidence not recorded before it. The Tribunal accepted this preliminary objection, set aside the awards and remanded the cases to the Assistant Registrar for a re-hearing.3. Shortly after this Amin Saheb died but his heirs and legal representatives made two applications to the Bombay High Court under Art. 227 of the Constitution against the Tribunals decision. The High Court held that the Tribunal had erred in thinking that the Board of Arbitrators had acted illegally in acting on the evidence recorded by the previous Boards when this was done with the full knowledge of the parties and without any objection on either side. Accordingly, they set aside the orders passed by the Tribunal and restored the awards made by the Board of Arbitrators.4. The Bank has now appealed against the decision of the High Court after obtaining special leave from this Court.5. Three points are raised before us in support of the appeal. The first is that the Tribunal had not made any error in holding that the Board had acted illegally in acting upon the evidence recorded by the previous Boards. Secondly, it is urged that even if the Board had erred it was not such an error as would entitle the High Court to interfere under Art. 227 of the Constitution. Lastly, it was contended that in any case, the High Court was not justified in setting aside the awards when the Tribunal has disposed of the application only on preliminary points and had not considered it on merits. In our opinion there is no substance in the first two contentions. As the High Court has pointed out normally it would have been wrong and indeed illegal for the Tribunal to act on evidence not taken before it. The position is however different when the parties expressly or impliedly agree that some evidence not taken before the Tribunal should be treated as evidence and taken into consideration. It is settled law that question of mode of proof is a question of procedure and is capable of being waived and therefore evidence taken in a previous judicial proceeding can be made admissible in a subsequent proceeding by consent of parties. This applies to proceedings of a civil nature. While what is not relevant under the Evidence Act cannot in proceedings to which Evidence Act applies, made relevant by consent of parties, relevant evidence can be brought on the record for consideration of the Court or the Tribunal without following the regular mode, if parties agree. The reason behind this rule is that it would be unfair to ask any party to prove a particular fact when the other party has already admitted that the way it has been brought before the Court has sufficiently proved it. We are therefore of opinion that in the facts of these cases when the appellant Bank not only raised no objection to the Board as last constituted proceeding on the evidence already recorded before the previous Boards, but indeed appears to have invited the Board to act on such evidence previously recorded, the appellant cannot be allowed later on to object to the Board having considered the evidence- merely because the decision has gone against it. The Tribunal was clearly wrong in thinking otherwise and the error cannot but be considered to be an error apparent on the face of the record and as such the High Court had not only the power but the duty to interfere with the Tribunals order.6. It appears to us however that having come to the conclusion that the Tribunal was wrong in allowing the preliminary objection raised before it the High Court was not entitled to ignore the fact that before the Tribunal other questions had been raised which had not been considered by it. The proper order to pass in such a case, in our opinion, would be to set aside the order of the Tribunal and direct it to decide the applications for revision on their merits.
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5. Three points are raised before us in support of the appeal. The first is that the Tribunal had not made any error in holding that the Board had acted illegally in acting upon the evidence recorded by the previous Boards. Secondly, it is urged that even if the Board had erred it was not such an error as would entitle the High Court to interfere under Art. 227 of the Constitution. Lastly, it was contended that in any case, the High Court was not justified in setting aside the awards when the Tribunal has disposed of the application only on preliminary points and had not considered it on merits.In our opinion there is no substance in the first two contentions. As the High Court has pointed out normally it would have been wrong and indeed illegal for the Tribunal to act on evidence not taken before it. The position is however different when the parties expressly or impliedly agree that some evidence not taken before the Tribunal should be treated as evidence and taken into consideration. It is settled law that question of mode of proof is a question of procedure and is capable of being waived and therefore evidence taken in a previous judicial proceeding can be made admissible in a subsequent proceeding by consent of parties. This applies to proceedings of a civil nature. While what is not relevant under the Evidence Act cannot in proceedings to which Evidence Act applies, made relevant by consent of parties, relevant evidence can be brought on the record for consideration of the Court or the Tribunal without following the regular mode, if parties agree. The reason behind this rule is that it would be unfair to ask any party to prove a particular fact when the other party has already admitted that the way it has been brought before the Court has sufficiently proved it. We are therefore of opinion that in the facts of these cases when the appellant Bank not only raised no objection to the Board as last constituted proceeding on the evidence already recorded before the previous Boards, but indeed appears to have invited the Board to act on such evidence previously recorded, the appellant cannot be allowed later on to object to the Board having considered the evidence- merely because the decision has gone against it. The Tribunal was clearly wrong in thinking otherwise and the error cannot but be considered to be an error apparent on the face of the record and as such the High Court had not only the power but the duty to interfere with the Tribunals order.6. It appears to us however that having come to the conclusion that the Tribunal was wrong in allowing the preliminary objection raised before it the High Court was not entitled to ignore the fact that before the Tribunal other questions had been raised which had not been considered by it. The proper order to pass in such a case, in our opinion, would be to set aside the order of the Tribunal and direct it to decide the applications for revision on their merits.
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Town Municipal Council Vs. Urmilla Kothari | 1102=A. I.R. 1958 S.C. 352:), this Court while discussing the meaning of the expression a terminal tax on goods or animals imported into or exported from the limits of the municipality occurring in section 66(1)(0) of the C.P. and Berar Municipalities Act, 1922, held that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax. The following observations made therein which have an important bearing on the decision. of the present appeal are worth quoting:--"The efficacy of the relative contentions of the parties requires the determination of the construction to be placed on the really important words of which are "terminal tax", "imported into or exported from" and "the limits of the Municipality". In construing these words of the statute if there are two possible interpretations then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him. .....Lexico-logically they (the words import and "export;) do not have any refer- ence to goods in transit a word derived from tran sit bearing a meaning similar to trans- port, i.e. to. go across. The dictionary meaning of the words import and export is not restricted to their derivative meaning but bear other connotations also ..... The word "transit", in the Oxford Dictionary means the action or fact of passing across or through; passage or journey from one place or point to another; the passage or carriage of persons or goods from one place to another; it also means to pass across or through (some- thing) to traverse, to cross. Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods "imported into or exported from" because they are neither being exported nor imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination which in the instant case was Nagpur ..... By giving to the words "imported into or exported from" their derivative meaning without any -reference to the ordinary connotation of these. words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it -appears from the setting, context and history of the clause was not intended. The effect of the construction of "import" . or "export" in the manner in- sisted upon by the respondent would make rail-borne goods passing thro ugh a railway station within the limits of a Municipality liable to the imposition of the tax .on their arrival at the railway station or departure therefrom or both which would not only result in inordinate delays and unbearable burden on trade both inter State and intra State. It is hardly likely that that was, the intention of the Legislature. Such an interpretation would lead to absurdity which has according to the rules of interpretation, to be avoided."The enunciation of law in the above case fully covers the present case. In the present case also, the iron ore which is in transit from Railyard at Hubli to Karwar and Belekeri harbours can hardly be characterised as goods brought into or exported from the municipal limits of Kalghatgi because they are neither imported into nor export ed f rom any point within the municipal limits but are merely carried across a particular stretch of territory or across a particular area with the object of being transported to its ultimate destination. In Brown v. State of Maryl and (1827 12 Wheat 419=442=6 L. Ed. 678, 686.), Chief Justice Marshall dealing with the word! importation said as follows:--"The practice of most commercial nations conforms to this idea. Duties, according to that practice, are charged on those articles only which are intended for sale or consumption in the country. Thus sea-stores, goods imported and re-exported in the same vessel, goods landed and carried over land for the purpose of being re-exported from some other port, goods forced in by stress of weather, and landed, but not for sale are exempted from the payment of duties. The whole course of legislation on the subject shows that in the opinion of the legislature the right to. sell is connected with the payment of the duties."6. In Wilson v. Robertson(24 L. J.QB. 185.) where section 33 of The 48 Geo. 3, c. civ. imposed a duty on all goods "imported into or exported from Berwick Harbour", and the harbour extend- ed from Berwick Bridge down the Tweed to the sea, but not above the bridge and goods were brought up the river in a seagoing vessel which, having first used the Harbour Commis- sioners rings and posts in order to moor t he vessel while lowering the masts, passed through Berwick Bridge and un- loaded her cargo about 200 yards above the bridge and beyond the limits of the harbour; it was held that these goods were not "imported into" the harbour and as such liable to duty.Bearing in mind the above authoritative enunciation of law, we are of opinion that as the continuity or continuous process of the carriage of iron ore is not in any way in fact broken within the municipal limits of Kalghatgi, the respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with rule 26 of the Rules and as such is not liable to p ay the octroi or what is styled as supervision fee. A contrary interpretation would make rail borne goods passing through the Railway Stations within the limits of the municipality liable to the imposition of the fee on their arrival at these Railway Stations and departure therefrom which could not be the intention of the Legislature. The High Court was, therefore, perfectly justified in allowing the appeal and issuing the writ sought for.7. | 0[ds]The opening words of section 124 of the Act viz. "any article or animal brought into the municipal limits for the purpose of immediate exportation" on the construction of which the up-shot of the case, depends are very important. They imply processes of importing into and exporting from the municipal limits of goods or animals and are indicative of an element of repose and rest of the goods within the municipal limits. As rightly held b y the Divi- sion Bench of the High Court, the expressions brought into and immediate exportation do not comprehend within their sweep the continuous process of transit of goods, by vehicles which merely use the State highways passing through the areas which lie within the municipal limits. In the instant case, the iron ore is carried in the trucks of the respondent which merely pass through the areas which lie within t he municipal limits and is not unloaded and reloaded at any place within the municipal area. As such, the important element of repose and rest which the words brought into the municipal limits for the purpose of immediate exportation imply is absent in the instantenunciation of law in the above case fully covers the present case. In the present case also, the iron ore which is in transit from Railyard at Hubli to Karwar and Belekeri harbours can hardly be characterised as goods brought into or exported from the municipal limits of Kalghatgi because they are neither imported into nor export ed f rom any point within the municipal limits but are merely carried across a particular stretch of territory or across a particular area with the object of being transported to its ultimatein mind the above authoritative enunciation of law, we are of opinion that as the continuity or continuous process of the carriage of iron ore is not in any way in fact broken within the municipal limits of Kalghatgi, the respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with rule 26 of the Rules and as such is not liable to p ay the octroi or what is styled as supervision fee. A contrary interpretation would make rail borne goods passing through the Railway Stations within the limits of the municipality liable to the imposition of the fee on their arrival at these Railway Stations and departure therefrom which could not be the intention of the Legislature. The High Court was, therefore, perfectly justified in allowing the appeal and issuing the writ sought for. | 0 | 2,255 | 455 | ### Instruction:
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1102=A. I.R. 1958 S.C. 352:), this Court while discussing the meaning of the expression a terminal tax on goods or animals imported into or exported from the limits of the municipality occurring in section 66(1)(0) of the C.P. and Berar Municipalities Act, 1922, held that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax. The following observations made therein which have an important bearing on the decision. of the present appeal are worth quoting:--"The efficacy of the relative contentions of the parties requires the determination of the construction to be placed on the really important words of which are "terminal tax", "imported into or exported from" and "the limits of the Municipality". In construing these words of the statute if there are two possible interpretations then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him. .....Lexico-logically they (the words import and "export;) do not have any refer- ence to goods in transit a word derived from tran sit bearing a meaning similar to trans- port, i.e. to. go across. The dictionary meaning of the words import and export is not restricted to their derivative meaning but bear other connotations also ..... The word "transit", in the Oxford Dictionary means the action or fact of passing across or through; passage or journey from one place or point to another; the passage or carriage of persons or goods from one place to another; it also means to pass across or through (some- thing) to traverse, to cross. Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods "imported into or exported from" because they are neither being exported nor imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination which in the instant case was Nagpur ..... By giving to the words "imported into or exported from" their derivative meaning without any -reference to the ordinary connotation of these. words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it -appears from the setting, context and history of the clause was not intended. The effect of the construction of "import" . or "export" in the manner in- sisted upon by the respondent would make rail-borne goods passing thro ugh a railway station within the limits of a Municipality liable to the imposition of the tax .on their arrival at the railway station or departure therefrom or both which would not only result in inordinate delays and unbearable burden on trade both inter State and intra State. It is hardly likely that that was, the intention of the Legislature. Such an interpretation would lead to absurdity which has according to the rules of interpretation, to be avoided."The enunciation of law in the above case fully covers the present case. In the present case also, the iron ore which is in transit from Railyard at Hubli to Karwar and Belekeri harbours can hardly be characterised as goods brought into or exported from the municipal limits of Kalghatgi because they are neither imported into nor export ed f rom any point within the municipal limits but are merely carried across a particular stretch of territory or across a particular area with the object of being transported to its ultimate destination. In Brown v. State of Maryl and (1827 12 Wheat 419=442=6 L. Ed. 678, 686.), Chief Justice Marshall dealing with the word! importation said as follows:--"The practice of most commercial nations conforms to this idea. Duties, according to that practice, are charged on those articles only which are intended for sale or consumption in the country. Thus sea-stores, goods imported and re-exported in the same vessel, goods landed and carried over land for the purpose of being re-exported from some other port, goods forced in by stress of weather, and landed, but not for sale are exempted from the payment of duties. The whole course of legislation on the subject shows that in the opinion of the legislature the right to. sell is connected with the payment of the duties."6. In Wilson v. Robertson(24 L. J.QB. 185.) where section 33 of The 48 Geo. 3, c. civ. imposed a duty on all goods "imported into or exported from Berwick Harbour", and the harbour extend- ed from Berwick Bridge down the Tweed to the sea, but not above the bridge and goods were brought up the river in a seagoing vessel which, having first used the Harbour Commis- sioners rings and posts in order to moor t he vessel while lowering the masts, passed through Berwick Bridge and un- loaded her cargo about 200 yards above the bridge and beyond the limits of the harbour; it was held that these goods were not "imported into" the harbour and as such liable to duty.Bearing in mind the above authoritative enunciation of law, we are of opinion that as the continuity or continuous process of the carriage of iron ore is not in any way in fact broken within the municipal limits of Kalghatgi, the respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with rule 26 of the Rules and as such is not liable to p ay the octroi or what is styled as supervision fee. A contrary interpretation would make rail borne goods passing through the Railway Stations within the limits of the municipality liable to the imposition of the fee on their arrival at these Railway Stations and departure therefrom which could not be the intention of the Legislature. The High Court was, therefore, perfectly justified in allowing the appeal and issuing the writ sought for.7.
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The opening words of section 124 of the Act viz. "any article or animal brought into the municipal limits for the purpose of immediate exportation" on the construction of which the up-shot of the case, depends are very important. They imply processes of importing into and exporting from the municipal limits of goods or animals and are indicative of an element of repose and rest of the goods within the municipal limits. As rightly held b y the Divi- sion Bench of the High Court, the expressions brought into and immediate exportation do not comprehend within their sweep the continuous process of transit of goods, by vehicles which merely use the State highways passing through the areas which lie within the municipal limits. In the instant case, the iron ore is carried in the trucks of the respondent which merely pass through the areas which lie within t he municipal limits and is not unloaded and reloaded at any place within the municipal area. As such, the important element of repose and rest which the words brought into the municipal limits for the purpose of immediate exportation imply is absent in the instantenunciation of law in the above case fully covers the present case. In the present case also, the iron ore which is in transit from Railyard at Hubli to Karwar and Belekeri harbours can hardly be characterised as goods brought into or exported from the municipal limits of Kalghatgi because they are neither imported into nor export ed f rom any point within the municipal limits but are merely carried across a particular stretch of territory or across a particular area with the object of being transported to its ultimatein mind the above authoritative enunciation of law, we are of opinion that as the continuity or continuous process of the carriage of iron ore is not in any way in fact broken within the municipal limits of Kalghatgi, the respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with rule 26 of the Rules and as such is not liable to p ay the octroi or what is styled as supervision fee. A contrary interpretation would make rail borne goods passing through the Railway Stations within the limits of the municipality liable to the imposition of the fee on their arrival at these Railway Stations and departure therefrom which could not be the intention of the Legislature. The High Court was, therefore, perfectly justified in allowing the appeal and issuing the writ sought for.
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Gopal Narain Vs. State of Uttar Pradesh & Another | the class of persons liable to pay the same are ascertained by a quasi-judicial procedure after giving opportunity to the parties affected, subject to revision by the State Government. We cannot, therefore, say that the power conferred upon the Municipal Board is an arbitrary power offending Art. 14 of the Constitution.17. The next question of learned counsel is that the said taxes were imposed in violation of the procedure prescribed by the Act. At the outset it may be noticed that the house tax was imposed with effect from January 31, 1870 and the latrine tax was imposed with effect from May 23, 1918 and the latter tax was replaced by scavenging tax with effect from April 1, 1939. Though decades have passed by, no one has questioned till now the validity of those taxes on the ground that the procedure was not strictly followed. There is a presumption, when a statutory authority makes an order, that it has followed the prescribed procedure. The said presumption is not in any way weakened by the long acquiescence in the imposition by the resident of the Civil Lines. Nonetheless no tax shall be levied or collected except in accordance with law. If it is not imposed in accordance with law, it would infringe the fundamental right guaranteed under Art. 19 (1) (f) of the Constitution. While the long period of time that lapses between the imposition of the tax and the attack on it may permit raising of certain presumptions where the evidence is lost by efflux of time, it cannot exonerate the statutory authority if, it imposes a tax in derogation of the statutory provisions. We will, therefore, proceed with the specific objections raised by the petitioner.18. Sections 131 to 136 give the procedural steps to be followed for imposing a tax. We have already given a list of those sections in a different context. Learned counsel for the petitioner contends that the Municipal Board violated the provisions of S. 131 (1) of the Act inasmuch as, (i) it did not give all the necessary details in the proposals made under S. 131 (1) of the Act, and (ii) the Government did not make the rules after the Act came into force in accordance with the procedure prescribed under S. 131 and the succeeding sections of the Act. In regard to the first objection, there is an allegation in the affidavit filled by the petitioner, but there is none in respect of the second objection. In a matter like this, we are not prepared to permit the petitioner to question the validity of the tax on the second ground in the absence of any specific allegation in regard to the same in the affidavit. There is a specific allegation in regard to the first ground, but it is denied in the counter-affidavit filed by the Municipal Board. On April 5, 1917, the Municipal Board passed the following special resolution:"Draft proposals under Section 128 (1) (i) for revising the Government Notification No. 235 dated 13-1-1870 levying tax on the buildings and lands in the Civil Station of the Bareilly Municipality Resolution : Resolved that Draft proposals be notified".19. Ex facie this resolution shows that there were draft proposals; those draft proposals are not before us and they must have contained all the details required by the section. We reject this contention. We, therefore, hold that it has not been established that the impugned taxes have been imposed in violation of any of the provisions of S. 131 and other relevant sections of the Act.20. The last argument relates to the scavenging tax. Section 128 (i) (xi) empowers the Municipal Board to impose a scavenging tax. Clause (xii) of that selection may also be noticed. It reads : "a tax for the cleansing of latrines and privies". The relevant notification imposing the tax reads:"It is hereby notified under sub-section (2) of Section 135 read with section 136 of the United Provinces Municipalities Act, 1916 (II of 1916) the Municipal Board of Bareilly, in exercise of the powers conferred by Section 128 (1) (xii) of the said Act, has imposed the following scavenging tax in the Bareilly Municipality published with notification No. 3298/XI-18 H, dated the 20th September 1933, in supersession of notification No. 628/XI-18 H, dated 24, January, 1923, with effect from 1st April 1939.Description of the taxA tax for the removal of night soil and rubbish at the rate mentioned below to be realized from the occupier or the owner of the buildings (bungalows) situated within the Civil Lines ward of the municipality".xx xx xx21. In accordance with the said notification, night-soil and rubbish are collected by the Municipal Board from each bungalow in the Civil Lines area. The contention is that the Municipal Board had no power to impose a scavenging tax under cl. (xii) of S. 128 (1) of the Act and, therefore, the imposition of the tax is illegal. The Municipal Board says in its counter-affidavit that cl. (xii) mentioned in the notification is a mistake for cl. (xi). The question is whether the Municipal Board has power to impose scavenging tax. There must be some distinction between scavenging tax and a tax for cleansing of latrines and privies. Presumably cl. (xi) is more comprehensive than cl. (xii). In the counter affidavit it is stated that night soil and rubbish are collected by the Municipal Board from the bungalows in the Civil Lines. Though a part of that function is covered by cl. (xii), the combined function is covered by cl. (xi) of S. 128 of the Act. The question of the validity of the tax depends upon the existence of power to tax in respect of a subject. The Municipal Board had certainly power to impose the scavenging tax. The mention of cl. (xii) in the notification appears to be a mistake for cl. (xi) and that does not affect the power of the Municipal Board to impose the tax. There are no merits in this contention either.22. | 0[ds]9. The duties cannot be discharged and the discretionary functions cannot be performed unless the municipality has power to collect money by way of taxes. Section 128 of the Act confers such a power on the Municipal Board. It says that the Municipal Board may impose in the whole or any part of the municipality the taxes mentioned therein. A fair reading of these three provisions makes it clear that the amounts collected by the Municipal Board by way of taxes are mainly intended to enable the Board to discharge its duties in the municipal area or a part of the municipal area, as the case maydo not agree. Section 7 and 8 enumerate the obligatory duties and discretionary functions of a municipality. These duties and functions need not necessarily be discharged or performed in the entire area of the municipality at once. They may have to be introduced gradually, starting from one part of the area in the municipality with a view to cover the entire area in due course. It may also be that the amenities required in one part of the municipal area may be different from those required in another part of the municipality. It may also be that a part of the area, because of the nature of the soil, distance from the well-developed part of the city or for historical reasons, calls for a larger investment for development compared to other parts of the municipality. If so much is conceded, that is, different parts of a municipality may require special treatment in the matter of provisions of amenities, it would be reasonable to collate the power of taxation in a part of a municipality with such separate treatment. While the former two sections, by necessary implication, enable a municipality to provide special amenities in a part of the municipality, the latter section empowers it to impose taxes in that part. If so understood, the legislative guidance is apparent from the said three provisions; that is to say, a municipality can impose a tax in a part of a city, if that part, because of its peculiar situation or otherwise, has to be provided with special amenities throwing a heavy financial burden on themay be so; but the indirect benefit cannot be equated with the direct benefit conferred upon a part of the city treated as a separate unit for the purpose of taxation.Looking at the policy disclosed by Ss. 7 and 8 and S. 128 of the Act and applying the liberal view a law of taxation receives in the application of the doctrine of classification it is not possible to say that the policy so disclosed infringes the rule of equality. This Court in more than one decision held that equality clause does not forbid geographical classification, provided the difference between the geographical units has a reasonable relation to the object sought to be achieved. This principle has been applied to a taxation law in Khandige Sham Bhats Case, AIR 1963 SC 591 .In that case, this Court also accepted the principles that the legislative power to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. It is indicated in "Willis on Constitutional Law", at p. 590, that a State can make a territory within a city a unit for the purpose of taxation.So the impugned section in permitting in the matter of taxation geographical classification which has reasonable relation to the object of the statute, namely, for providing special amenities for a particular unit the peculiar circumstances whereof demand them, does not in any way impinge upon the equalityis clear from the affidavit filed on behalf of the Municipal Board and the map annexed there to that the area covered by the Civil Lines has been treated as a separate unit in the matter of development from the year 1870. The Municipal Board acquired the land in that area, laid out roads, carved out good sized building plots, and provided special amenities for the residents by way of broad roads, open and bigger plots for construction of houses, parks and gardens, special lighting arrangements, footpath with cement benches, water booths with watermen for giving water to the public and special sanitary arrangements, whereas the old city area to Bareilly consisted of small plots of land with small houses thereon situated in congested localities with narrow lanes. The Municipal Board imposed house tax in the Civil Lines area from as early as January 31, 1870 and, after the Act came into force, reimposed the impugned tax in accordance with the provisions of the Act. In the case of scavenging tax, there appears to be different methods adopted in the two areas. In the Civil Lines area nightsoil and rubbish are collected by the Municipal Board from each bungalow, while in the City area they are collected from one common place in each ward. The former certainly involves higher expenditure than the latter.It will, therefore be seen that for about 90 years the Civil Lines area has been treated as a separate geographical unit for the purpose of taxation, having regard to historical reasons and the extra amenities provided for the residents of that locality and the heavy expenditure incurred by the Municipal Board in doing so. The differences between the old city and the Civil Lines area are so pronounced in the matter of amenities that there is a reasonable relation between the taxes imposed and the geographical classification made for the purpose of taxation. We, therefore, hold that the notification imposing the said taxes does not infringe Art. 14 of the131 does not confer any power on the Board to impose a tax. Section 128 confers such a power and that section with meticulous care enumerates the subjects of taxation. Section 131 provides a machinery for imposing the said taxes. The said taxes cannot be imposed in vacuum. There should be some machinery for ascertaining the rate of taxation and the persons or the class of persons liable to pay the same. If S. 131 stood alone, there may be some jurisdiction for the comment, but if it is read along with Section 128 it posits a reasonable nexus between the tax in respect of a subject and the rate payable and the persons or class of persons liable to pay the same. To illustrate: S. 128 empowers the Municipal Board to levy a tax on the annual value of a building and to make a person, who should obviously be a person connected with the building, liable to pay the same. For deciding those questions a quasi-judicial procedure is prescribed under S. 131 and the succeeding section of the Act. Under S. 131 the Municipal Board makes the proposals specifying the tax, the rate and the persons or the class of persons liable to pay the tax and such other details prescribed thereunder. The Board thereupon publishes in the manner prescribed the said details. Under Section 132 any inhabitant of the municipality may, within a fortnight from the publication of the said notification, submit his objections thereto.Thereupon the Board shall take any objection so submitted into consideration and pass orders thereon by special resolution. If the Board decides to modify its proposals, it shall publish the modified proposals and the modified proposals may also be objected to. After the final orders are made by the Board, it shall submit the proposals along with the objections, if any, to the prescribed authority. Under S. 133, the prescribed authority shall then submit the proposals and the objections to the State Government, which will make the final orders. When the proposals are sanctioned by the prescribed authority or the State Government, the State Government shall make rules having regard to the draft rules submitted by the Board; when the rules are sanctioned by the State Government, they will be sent to the Board and thereupon the Board by special resolution shall direct the imposition of the tax with effect from a date specified in the resolution. Thereafter the said resolution will be notified by the State Government in the Gazette. It will be seen from the aforesaid provisions that the rate of tax to be levied and the persons or the class of persons liable to pay the same have a reasonable relation to the subjects taxable under the Act. The said rate to be imposed and the persons or the class of persons liable to pay the same are ascertained by a quasi-judicial procedure after giving opportunity to the parties affected, subject to revision by the State Government. We cannot, therefore, say that the power conferred upon the Municipal Board is an arbitrary power offending Art. 14 of thethe outset it may be noticed that the house tax was imposed with effect from January 31, 1870 and the latrine tax was imposed with effect from May 23, 1918 and the latter tax was replaced by scavenging tax with effect from April 1, 1939. Though decades have passed by, no one has questioned till now the validity of those taxes on the ground that the procedure was not strictly followed. There is a presumption, when a statutory authority makes an order, that it has followed the prescribed procedure. The said presumption is not in any way weakened by the long acquiescence in the imposition by the resident of the Civil Lines. Nonetheless no tax shall be levied or collected except in accordance with law. If it is not imposed in accordance with law, it would infringe the fundamental right guaranteed under Art. 19 (1) (f) of the Constitution. While the long period of time that lapses between the imposition of the tax and the attack on it may permit raising of certain presumptions where the evidence is lost by efflux of time, it cannot exonerate the statutory authority if, it imposes a tax in derogation of the statutoryfacie this resolution shows that there were draft proposals; those draft proposals are not before us and they must have contained all the details required by the section. We reject this contention. We, therefore, hold that it has not been established that the impugned taxes have been imposed in violation of any of the provisions of S. 131 and other relevant sections of themust be some distinction between scavenging tax and a tax for cleansing of latrines and privies. Presumably cl. (xi) is more comprehensive than cl. (xii). In the counter affidavit it is stated that night soil and rubbish are collected by the Municipal Board from the bungalows in the Civil Lines. Though a part of that function is covered by cl. (xii), the combined function is covered by cl. (xi) of S. 128 of the Act. The question of the validity of the tax depends upon the existence of power to tax in respect of a subject. The Municipal Board had certainly power to impose the scavenging tax. The mention of cl. (xii) in the notification appears to be a mistake for cl. (xi) and that does not affect the power of the Municipal Board to impose the tax. There are no merits in this contention either. | 0 | 5,455 | 2,036 | ### Instruction:
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the class of persons liable to pay the same are ascertained by a quasi-judicial procedure after giving opportunity to the parties affected, subject to revision by the State Government. We cannot, therefore, say that the power conferred upon the Municipal Board is an arbitrary power offending Art. 14 of the Constitution.17. The next question of learned counsel is that the said taxes were imposed in violation of the procedure prescribed by the Act. At the outset it may be noticed that the house tax was imposed with effect from January 31, 1870 and the latrine tax was imposed with effect from May 23, 1918 and the latter tax was replaced by scavenging tax with effect from April 1, 1939. Though decades have passed by, no one has questioned till now the validity of those taxes on the ground that the procedure was not strictly followed. There is a presumption, when a statutory authority makes an order, that it has followed the prescribed procedure. The said presumption is not in any way weakened by the long acquiescence in the imposition by the resident of the Civil Lines. Nonetheless no tax shall be levied or collected except in accordance with law. If it is not imposed in accordance with law, it would infringe the fundamental right guaranteed under Art. 19 (1) (f) of the Constitution. While the long period of time that lapses between the imposition of the tax and the attack on it may permit raising of certain presumptions where the evidence is lost by efflux of time, it cannot exonerate the statutory authority if, it imposes a tax in derogation of the statutory provisions. We will, therefore, proceed with the specific objections raised by the petitioner.18. Sections 131 to 136 give the procedural steps to be followed for imposing a tax. We have already given a list of those sections in a different context. Learned counsel for the petitioner contends that the Municipal Board violated the provisions of S. 131 (1) of the Act inasmuch as, (i) it did not give all the necessary details in the proposals made under S. 131 (1) of the Act, and (ii) the Government did not make the rules after the Act came into force in accordance with the procedure prescribed under S. 131 and the succeeding sections of the Act. In regard to the first objection, there is an allegation in the affidavit filled by the petitioner, but there is none in respect of the second objection. In a matter like this, we are not prepared to permit the petitioner to question the validity of the tax on the second ground in the absence of any specific allegation in regard to the same in the affidavit. There is a specific allegation in regard to the first ground, but it is denied in the counter-affidavit filed by the Municipal Board. On April 5, 1917, the Municipal Board passed the following special resolution:"Draft proposals under Section 128 (1) (i) for revising the Government Notification No. 235 dated 13-1-1870 levying tax on the buildings and lands in the Civil Station of the Bareilly Municipality Resolution : Resolved that Draft proposals be notified".19. Ex facie this resolution shows that there were draft proposals; those draft proposals are not before us and they must have contained all the details required by the section. We reject this contention. We, therefore, hold that it has not been established that the impugned taxes have been imposed in violation of any of the provisions of S. 131 and other relevant sections of the Act.20. The last argument relates to the scavenging tax. Section 128 (i) (xi) empowers the Municipal Board to impose a scavenging tax. Clause (xii) of that selection may also be noticed. It reads : "a tax for the cleansing of latrines and privies". The relevant notification imposing the tax reads:"It is hereby notified under sub-section (2) of Section 135 read with section 136 of the United Provinces Municipalities Act, 1916 (II of 1916) the Municipal Board of Bareilly, in exercise of the powers conferred by Section 128 (1) (xii) of the said Act, has imposed the following scavenging tax in the Bareilly Municipality published with notification No. 3298/XI-18 H, dated the 20th September 1933, in supersession of notification No. 628/XI-18 H, dated 24, January, 1923, with effect from 1st April 1939.Description of the taxA tax for the removal of night soil and rubbish at the rate mentioned below to be realized from the occupier or the owner of the buildings (bungalows) situated within the Civil Lines ward of the municipality".xx xx xx21. In accordance with the said notification, night-soil and rubbish are collected by the Municipal Board from each bungalow in the Civil Lines area. The contention is that the Municipal Board had no power to impose a scavenging tax under cl. (xii) of S. 128 (1) of the Act and, therefore, the imposition of the tax is illegal. The Municipal Board says in its counter-affidavit that cl. (xii) mentioned in the notification is a mistake for cl. (xi). The question is whether the Municipal Board has power to impose scavenging tax. There must be some distinction between scavenging tax and a tax for cleansing of latrines and privies. Presumably cl. (xi) is more comprehensive than cl. (xii). In the counter affidavit it is stated that night soil and rubbish are collected by the Municipal Board from the bungalows in the Civil Lines. Though a part of that function is covered by cl. (xii), the combined function is covered by cl. (xi) of S. 128 of the Act. The question of the validity of the tax depends upon the existence of power to tax in respect of a subject. The Municipal Board had certainly power to impose the scavenging tax. The mention of cl. (xii) in the notification appears to be a mistake for cl. (xi) and that does not affect the power of the Municipal Board to impose the tax. There are no merits in this contention either.22.
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extra amenities provided for the residents of that locality and the heavy expenditure incurred by the Municipal Board in doing so. The differences between the old city and the Civil Lines area are so pronounced in the matter of amenities that there is a reasonable relation between the taxes imposed and the geographical classification made for the purpose of taxation. We, therefore, hold that the notification imposing the said taxes does not infringe Art. 14 of the131 does not confer any power on the Board to impose a tax. Section 128 confers such a power and that section with meticulous care enumerates the subjects of taxation. Section 131 provides a machinery for imposing the said taxes. The said taxes cannot be imposed in vacuum. There should be some machinery for ascertaining the rate of taxation and the persons or the class of persons liable to pay the same. If S. 131 stood alone, there may be some jurisdiction for the comment, but if it is read along with Section 128 it posits a reasonable nexus between the tax in respect of a subject and the rate payable and the persons or class of persons liable to pay the same. To illustrate: S. 128 empowers the Municipal Board to levy a tax on the annual value of a building and to make a person, who should obviously be a person connected with the building, liable to pay the same. For deciding those questions a quasi-judicial procedure is prescribed under S. 131 and the succeeding section of the Act. Under S. 131 the Municipal Board makes the proposals specifying the tax, the rate and the persons or the class of persons liable to pay the tax and such other details prescribed thereunder. The Board thereupon publishes in the manner prescribed the said details. Under Section 132 any inhabitant of the municipality may, within a fortnight from the publication of the said notification, submit his objections thereto.Thereupon the Board shall take any objection so submitted into consideration and pass orders thereon by special resolution. If the Board decides to modify its proposals, it shall publish the modified proposals and the modified proposals may also be objected to. After the final orders are made by the Board, it shall submit the proposals along with the objections, if any, to the prescribed authority. Under S. 133, the prescribed authority shall then submit the proposals and the objections to the State Government, which will make the final orders. When the proposals are sanctioned by the prescribed authority or the State Government, the State Government shall make rules having regard to the draft rules submitted by the Board; when the rules are sanctioned by the State Government, they will be sent to the Board and thereupon the Board by special resolution shall direct the imposition of the tax with effect from a date specified in the resolution. Thereafter the said resolution will be notified by the State Government in the Gazette. It will be seen from the aforesaid provisions that the rate of tax to be levied and the persons or the class of persons liable to pay the same have a reasonable relation to the subjects taxable under the Act. The said rate to be imposed and the persons or the class of persons liable to pay the same are ascertained by a quasi-judicial procedure after giving opportunity to the parties affected, subject to revision by the State Government. We cannot, therefore, say that the power conferred upon the Municipal Board is an arbitrary power offending Art. 14 of thethe outset it may be noticed that the house tax was imposed with effect from January 31, 1870 and the latrine tax was imposed with effect from May 23, 1918 and the latter tax was replaced by scavenging tax with effect from April 1, 1939. Though decades have passed by, no one has questioned till now the validity of those taxes on the ground that the procedure was not strictly followed. There is a presumption, when a statutory authority makes an order, that it has followed the prescribed procedure. The said presumption is not in any way weakened by the long acquiescence in the imposition by the resident of the Civil Lines. Nonetheless no tax shall be levied or collected except in accordance with law. If it is not imposed in accordance with law, it would infringe the fundamental right guaranteed under Art. 19 (1) (f) of the Constitution. While the long period of time that lapses between the imposition of the tax and the attack on it may permit raising of certain presumptions where the evidence is lost by efflux of time, it cannot exonerate the statutory authority if, it imposes a tax in derogation of the statutoryfacie this resolution shows that there were draft proposals; those draft proposals are not before us and they must have contained all the details required by the section. We reject this contention. We, therefore, hold that it has not been established that the impugned taxes have been imposed in violation of any of the provisions of S. 131 and other relevant sections of themust be some distinction between scavenging tax and a tax for cleansing of latrines and privies. Presumably cl. (xi) is more comprehensive than cl. (xii). In the counter affidavit it is stated that night soil and rubbish are collected by the Municipal Board from the bungalows in the Civil Lines. Though a part of that function is covered by cl. (xii), the combined function is covered by cl. (xi) of S. 128 of the Act. The question of the validity of the tax depends upon the existence of power to tax in respect of a subject. The Municipal Board had certainly power to impose the scavenging tax. The mention of cl. (xii) in the notification appears to be a mistake for cl. (xi) and that does not affect the power of the Municipal Board to impose the tax. There are no merits in this contention either.
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Ashish Kumar Vs. The State of Uttar Pradesh & Others | all the alternative qualifications were required to have with Psychology subject i.e. Graduation with Psychology/L.T./B.T. B.Ed. in the subject of Psychology. Hence, all the three i.e. Graduation, L.T., B.T. B.Ed. has to be in Psychology subject. Those persons who have done L.T./B.T. B.Ed. with Psychology subject are eligible like person graduated with Psychology, which is the plain and simple meaning of the advertisement which has been missed by the State as well as the High Court.18. The Division Bench in support of its view has interpreted the advertisement in the following manner:“..... Even otherwise, if the interpretation of the learned counsel for the appellant is taken as correct, it would mean that there will be a different set of candidates namely, one who possess B.Ed. degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment.”The above view of the Division Bench that accepting the interpretation of appellant would mean that there is different set of candidates namely one who possess B.Ed. Degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment. The above view does not support the interpretation, which we have put on the qualifications mentioned for the Psychologist i.e. Graduate L.T./B.T. B.Ed. were prefixed with the “in the subject of Psychology”. Thus, there is no question of there being different set of candidates. All candidates, who have Psychology as their subject of Graduation/L.T./B.T. B.Ed. were eligible for the post and they all form one class, i.e. those, who have studied Psychology. Thus, the view of the High Court cannot be accepted.19. In the counter affidavit filed in this court also the said qualifications are being read by the respondent as graduate in Psychology with L.T./B.T. B.Ed. 1991 Rules have been filed as Annexure P1 along with the rejoinder affidavit of the appellant. It is relevant to note that in Schedule to the Rules, the post of Psychologist has been referred to at page 166; it is relevant to quote the qualification mentioned in the Schedule to the 1991 Rules, which is to the following effect:“TABLE”20. The above rules clearly indicate that qualification for Psychologist is M.A. in Psychology. There is no other column in which Psychologist can be read in the entire rule. The B.Ed. is a preferential qualification and essential qualification is only M.A. in Psychology according to 1991 Rules. It is relevant to note that although learned Single Judge has referred to 1991 Rules but he observed that 1991 rules lays down the qualification as trained graduate along with L.T./B.T. B.Ed., the above observations of learned Single Judge are not sustainable in view of the qualification as prescribed in 1991 Rules as extracted above.21. In the counter affidavit filed in this court by the state, 1991 rules have been accepted to be the relevant rules regulating the recruitment as has been noted in the Paragraph Xiii extracted above. The qualification prescribed in the Rules does not provide for L.T./B.T. B.Ed. as essential qualification. Thus non-possession of L.T./B.T. B.Ed. does not make him disqualified for the post as per Statutory Rules of 1991. Appellant is postgraduate in psychology and thus, also fulfill the qualification prescribed in the 1991 Rules. The respondent in counter affidavit had themselves come with the case that the appointment has to be made in accordance with the statutory rules. When under the statutory rules, 1991, appellant fulfill the qualification; there is no occasion to deny appointment to him.22. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, appellant fulfills the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is statutory rules which take precedence. In this context, reference is made in judgment of this Court in the case of Malik Mazhar Sultan & Anr. Vs. U.P. Public Service Commission & Ors., 2006 (9) SCC 507. Paragraph 21 of the judgment lays down above proposition which is to the following effect:"21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 01.07.2001 and 01.07.2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisements but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only of permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.”23. It has also come on the record that although the post of Psychologist was declared as dead cadre by the Government Order dated 09.05.2008, but the posts were subsequently revived by another Government Order dated 17.08.2010. Reference of 2009 Rules, namely, Uttar Pradesh Social Welfare Department of Teacher Service Rule, 2009, has been made which may have no relevance with regard to issue in the present case since the appointment in the present case was made in pursuance of the 1991 Rules and advertisement was dated 30.08.2001. The appellant after being selected for the post of Psychologist was illegally denied issuance of appointment letter on wrong interpretation of the advertisement and the rules, hence, the appellant has made out a case for issuing a direction to appoint him on the post of Psychologist. | 1[ds]14. The careful reading of original advertisement which is in vernacular language indicate that what was prescribed was,Psychology subject graduate/L.T./B.T. B.Ed.Use of Stroke between graduate and L.T./B.T. B.Ed. indicates that all were alternate qualification. The advertisement cannot be read to mean providing for graduate in Psychology with L.T./B.T. B.Ed. as has been read by the High Court and contended by the respondent.15. The words graduate/L.T./B.T. B.Ed. are all alternative qualification which are prefixed with wordA harmonious reading may mean that a person graduate in subject of Psychology or L.T./B.T. B.Ed. with Psychology is eligible. When the post is of Psychologist, both graduation with Psychology and training certification i.e. L.T./B.T. B.Ed. have also to be with Psychology. The respondents have wrongly interpreted the advertisement to mean that the person should possess both graduate with Psychology as well as L.T./B.T. B.Ed. which on the face of it does not appear to be correct.There is one more reason to accept the meaning of advertisement as noticed above. In advertisement, with regard to various qualifications, wordst; (with), "????" (either) and strokehave been used. The appointing authority is well aware of the meaning of strokewhich has been frequently used in the qualifications which is apparent from the advertisement i.e. Annexure A1. The Appointing Authority used word with(???), when it wanted both the qualifications together. Wherever stroke (/) has been used it was used when either of the qualifications were indicated. The advertisement Annexure A1 contains qualifications for various posts and in several qualifications stroke (/) has been used. A look into those qualifications clearly indicate that stroke (/) was used in the other qualifications denoting one or eitherperusal of the above qualifications clearly indicated that stroke (/) was used regarding qualifications, in alternative, i.e., one or either. In above view of the matter, we are of the view that the use of stroke (/) between Graduate / L.T. / B.T. B.Ed. were in the same line meaning thereby one or either. It is relevant to notice that before the aforesaid qualifications, the wordshas been used as prefix, which clearly means that all the alternative qualifications were required to have with Psychology subject i.e. Graduation with Psychology/L.T./B.T. B.Ed. in the subject of Psychology. Hence, all the three i.e. Graduation, L.T., B.T. B.Ed. has to be in Psychology subject. Those persons who have done L.T./B.T. B.Ed. with Psychology subject are eligible like person graduated with Psychology, which is the plain and simple meaning of the advertisement which has been missed by the State as well as the High Court.18. The Division Bench in support of its view has interpreted the advertisement in the followingEven otherwise, if the interpretation of the learned counsel for the appellant is taken as correct, it would mean that there will be a different set of candidates namely, one who possess B.Ed. degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled forabove view of the Division Bench that accepting the interpretation of appellant would mean that there is different set of candidates namely one who possess B.Ed. Degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment. The above view does not support the interpretation, which we have put on the qualifications mentioned for the Psychologist i.e. Graduate L.T./B.T. B.Ed. were prefixed with thethe subject ofThus, there is no question of there being different set of candidates. All candidates, who have Psychology as their subject of Graduation/L.T./B.T. B.Ed. were eligible for the post and they all form one class, i.e. those, who have studied Psychology. Thus, the view of the High Court cannot be accepted.The above rules clearly indicate that qualification for Psychologist is M.A. in Psychology. There is no other column in which Psychologist can be read in the entire rule. The B.Ed. is a preferential qualification and essential qualification is only M.A. in Psychology according to 1991 Rules. It is relevant to note that although learned Single Judge has referred to 1991 Rules but he observed that 1991 rules lays down the qualification as trained graduate along with L.T./B.T. B.Ed., the above observations of learned Single Judge are not sustainable in view of the qualification as prescribed in 1991 Rules as extracted above.21. In the counter affidavit filed in this court by the state, 1991 rules have been accepted to be the relevant rules regulating the recruitment as has been noted in the Paragraph Xiii extracted above. The qualification prescribed in the Rules does not provide for L.T./B.T. B.Ed. as essential qualification. Thusof L.T./B.T. B.Ed. does not make him disqualified for the post as per Statutory Rules of 1991. Appellant is postgraduate in psychology and thus, also fulfill the qualification prescribed in the 1991 Rules. The respondent in counter affidavit had themselves come with the case that the appointment has to be made in accordance with the statutory rules. When under the statutory rules, 1991, appellant fulfill the qualification; there is no occasion to deny appointment to him.22. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, appellant fulfills the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is statutory rules which take precedence.It has also come on the record that although the post of Psychologist was declared as dead cadre by the Government Order dated 09.05.2008, but the posts were subsequently revived by another Government Order dated 17.08.2010. Reference of 2009 Rules, namely, Uttar Pradesh Social Welfare Department of Teacher Service Rule, 2009, has been made which may have no relevance with regard to issue in the present case since the appointment in the present case was made in pursuance of the 1991 Rules and advertisement was dated 30.08.2001. The appellant after being selected for the post of Psychologist was illegally denied issuance of appointment letter on wrong interpretation of the advertisement and the rules, hence, the appellant has made out a case for issuing a direction to appoint him on the post of Psychologist. | 1 | 3,752 | 1,218 | ### 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:
all the alternative qualifications were required to have with Psychology subject i.e. Graduation with Psychology/L.T./B.T. B.Ed. in the subject of Psychology. Hence, all the three i.e. Graduation, L.T., B.T. B.Ed. has to be in Psychology subject. Those persons who have done L.T./B.T. B.Ed. with Psychology subject are eligible like person graduated with Psychology, which is the plain and simple meaning of the advertisement which has been missed by the State as well as the High Court.18. The Division Bench in support of its view has interpreted the advertisement in the following manner:“..... Even otherwise, if the interpretation of the learned counsel for the appellant is taken as correct, it would mean that there will be a different set of candidates namely, one who possess B.Ed. degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment.”The above view of the Division Bench that accepting the interpretation of appellant would mean that there is different set of candidates namely one who possess B.Ed. Degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment. The above view does not support the interpretation, which we have put on the qualifications mentioned for the Psychologist i.e. Graduate L.T./B.T. B.Ed. were prefixed with the “in the subject of Psychology”. Thus, there is no question of there being different set of candidates. All candidates, who have Psychology as their subject of Graduation/L.T./B.T. B.Ed. were eligible for the post and they all form one class, i.e. those, who have studied Psychology. Thus, the view of the High Court cannot be accepted.19. In the counter affidavit filed in this court also the said qualifications are being read by the respondent as graduate in Psychology with L.T./B.T. B.Ed. 1991 Rules have been filed as Annexure P1 along with the rejoinder affidavit of the appellant. It is relevant to note that in Schedule to the Rules, the post of Psychologist has been referred to at page 166; it is relevant to quote the qualification mentioned in the Schedule to the 1991 Rules, which is to the following effect:“TABLE”20. The above rules clearly indicate that qualification for Psychologist is M.A. in Psychology. There is no other column in which Psychologist can be read in the entire rule. The B.Ed. is a preferential qualification and essential qualification is only M.A. in Psychology according to 1991 Rules. It is relevant to note that although learned Single Judge has referred to 1991 Rules but he observed that 1991 rules lays down the qualification as trained graduate along with L.T./B.T. B.Ed., the above observations of learned Single Judge are not sustainable in view of the qualification as prescribed in 1991 Rules as extracted above.21. In the counter affidavit filed in this court by the state, 1991 rules have been accepted to be the relevant rules regulating the recruitment as has been noted in the Paragraph Xiii extracted above. The qualification prescribed in the Rules does not provide for L.T./B.T. B.Ed. as essential qualification. Thus non-possession of L.T./B.T. B.Ed. does not make him disqualified for the post as per Statutory Rules of 1991. Appellant is postgraduate in psychology and thus, also fulfill the qualification prescribed in the 1991 Rules. The respondent in counter affidavit had themselves come with the case that the appointment has to be made in accordance with the statutory rules. When under the statutory rules, 1991, appellant fulfill the qualification; there is no occasion to deny appointment to him.22. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, appellant fulfills the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is statutory rules which take precedence. In this context, reference is made in judgment of this Court in the case of Malik Mazhar Sultan & Anr. Vs. U.P. Public Service Commission & Ors., 2006 (9) SCC 507. Paragraph 21 of the judgment lays down above proposition which is to the following effect:"21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 01.07.2001 and 01.07.2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisements but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only of permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.”23. It has also come on the record that although the post of Psychologist was declared as dead cadre by the Government Order dated 09.05.2008, but the posts were subsequently revived by another Government Order dated 17.08.2010. Reference of 2009 Rules, namely, Uttar Pradesh Social Welfare Department of Teacher Service Rule, 2009, has been made which may have no relevance with regard to issue in the present case since the appointment in the present case was made in pursuance of the 1991 Rules and advertisement was dated 30.08.2001. The appellant after being selected for the post of Psychologist was illegally denied issuance of appointment letter on wrong interpretation of the advertisement and the rules, hence, the appellant has made out a case for issuing a direction to appoint him on the post of Psychologist.
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### Explanation:
by the respondent.15. The words graduate/L.T./B.T. B.Ed. are all alternative qualification which are prefixed with wordA harmonious reading may mean that a person graduate in subject of Psychology or L.T./B.T. B.Ed. with Psychology is eligible. When the post is of Psychologist, both graduation with Psychology and training certification i.e. L.T./B.T. B.Ed. have also to be with Psychology. The respondents have wrongly interpreted the advertisement to mean that the person should possess both graduate with Psychology as well as L.T./B.T. B.Ed. which on the face of it does not appear to be correct.There is one more reason to accept the meaning of advertisement as noticed above. In advertisement, with regard to various qualifications, wordst; (with), "????" (either) and strokehave been used. The appointing authority is well aware of the meaning of strokewhich has been frequently used in the qualifications which is apparent from the advertisement i.e. Annexure A1. The Appointing Authority used word with(???), when it wanted both the qualifications together. Wherever stroke (/) has been used it was used when either of the qualifications were indicated. The advertisement Annexure A1 contains qualifications for various posts and in several qualifications stroke (/) has been used. A look into those qualifications clearly indicate that stroke (/) was used in the other qualifications denoting one or eitherperusal of the above qualifications clearly indicated that stroke (/) was used regarding qualifications, in alternative, i.e., one or either. In above view of the matter, we are of the view that the use of stroke (/) between Graduate / L.T. / B.T. B.Ed. were in the same line meaning thereby one or either. It is relevant to notice that before the aforesaid qualifications, the wordshas been used as prefix, which clearly means that all the alternative qualifications were required to have with Psychology subject i.e. Graduation with Psychology/L.T./B.T. B.Ed. in the subject of Psychology. Hence, all the three i.e. Graduation, L.T., B.T. B.Ed. has to be in Psychology subject. Those persons who have done L.T./B.T. B.Ed. with Psychology subject are eligible like person graduated with Psychology, which is the plain and simple meaning of the advertisement which has been missed by the State as well as the High Court.18. The Division Bench in support of its view has interpreted the advertisement in the followingEven otherwise, if the interpretation of the learned counsel for the appellant is taken as correct, it would mean that there will be a different set of candidates namely, one who possess B.Ed. degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled forabove view of the Division Bench that accepting the interpretation of appellant would mean that there is different set of candidates namely one who possess B.Ed. Degree with the subject Psychology and the others who are not B.A. with Psychology, but if they are B.Ed. or possess L.T./B.T. certificates, they would be entitled for appointment. The above view does not support the interpretation, which we have put on the qualifications mentioned for the Psychologist i.e. Graduate L.T./B.T. B.Ed. were prefixed with thethe subject ofThus, there is no question of there being different set of candidates. All candidates, who have Psychology as their subject of Graduation/L.T./B.T. B.Ed. were eligible for the post and they all form one class, i.e. those, who have studied Psychology. Thus, the view of the High Court cannot be accepted.The above rules clearly indicate that qualification for Psychologist is M.A. in Psychology. There is no other column in which Psychologist can be read in the entire rule. The B.Ed. is a preferential qualification and essential qualification is only M.A. in Psychology according to 1991 Rules. It is relevant to note that although learned Single Judge has referred to 1991 Rules but he observed that 1991 rules lays down the qualification as trained graduate along with L.T./B.T. B.Ed., the above observations of learned Single Judge are not sustainable in view of the qualification as prescribed in 1991 Rules as extracted above.21. In the counter affidavit filed in this court by the state, 1991 rules have been accepted to be the relevant rules regulating the recruitment as has been noted in the Paragraph Xiii extracted above. The qualification prescribed in the Rules does not provide for L.T./B.T. B.Ed. as essential qualification. Thusof L.T./B.T. B.Ed. does not make him disqualified for the post as per Statutory Rules of 1991. Appellant is postgraduate in psychology and thus, also fulfill the qualification prescribed in the 1991 Rules. The respondent in counter affidavit had themselves come with the case that the appointment has to be made in accordance with the statutory rules. When under the statutory rules, 1991, appellant fulfill the qualification; there is no occasion to deny appointment to him.22. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, appellant fulfills the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is statutory rules which take precedence.It has also come on the record that although the post of Psychologist was declared as dead cadre by the Government Order dated 09.05.2008, but the posts were subsequently revived by another Government Order dated 17.08.2010. Reference of 2009 Rules, namely, Uttar Pradesh Social Welfare Department of Teacher Service Rule, 2009, has been made which may have no relevance with regard to issue in the present case since the appointment in the present case was made in pursuance of the 1991 Rules and advertisement was dated 30.08.2001. The appellant after being selected for the post of Psychologist was illegally denied issuance of appointment letter on wrong interpretation of the advertisement and the rules, hence, the appellant has made out a case for issuing a direction to appoint him on the post of Psychologist.
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Union of India and Ors Vs. Gurdev Singh and Ors | in a difficult terrain and in the deeply hostile atmosphere bordering Bhutan and China, with an exorbitant cost of living; that parity between IMTRAT and MEA personnel will not create grounds for parity between deputationists and the MEA, since the IMTRAT and deputationists constitute two separate classes; that there is parity between the compensatory allowances paid to IMTRAT-like teams and MEA personnel in other countries; that there was parity between the two allowances for 25 years which was arbitrarily discontinued; that the linkage of the FA with the UNRPI is not a valid ground for disparity since by the admission of the Government even the BCA payable to IMTRAT personnel was supposed to be linked to UN indices after 2002. 25. After duly considering the material placed on record before us, we are of the opinion that the High Court while passing the impugned judgment was not justified in concluding that a legitimate case for parity between the BCA payable to IMTRAT personnel and the FA payable to MEA personnel can be made out. Of course, it cannot be disputed that the purpose of both allowances is fundamentally the same, i.e. to meet the higher cost of living abroad, but at the same time the requirements that have to be met out of the two are somewhat different. IMTRAT personnel benefit to a larger extent compared to MEA personnel in terms of getting food and other purchases at a cheaper cost due to the provision of facilities such as mess, canteen, etc. Moreover, a comparison between the different allowances to which these two classes of personnel are entitled shows that IMTRAT personnel are entitled to an additional allowance called ?Difficult Area Allowance?, and also receive Military Service Pay, in addition to Basic Pay which is paid to both MEA and IMTRAT personnel according to the respective grades of the personnel. 26. Moreover, it has not been shown by the respondents that the nature of the work done by the IMTRAT and MEA personnel is one and the same, or even comparable. The terms of appointment and conditions of service of the IMTRAT and MEA personnel are also completely different. This aspect in itself is sufficient to negate the case for parity pled by the respondents. The institution of the IMTRAT team for Bhutan can be traced to the sanction letter of the Government of India dated 27.8.1962, by which a military team (the IMTRAT) was loaned out for training purposes to the Government of Bhutan. As indicated by the letter dated 28.01.1985 from the Army Headquarters to the IMTRAT containing administrative instructions for the team, the IMTRAT is fully under the control of the Government of India and is an integral part of the Indian Armed Forces, functioning under the direct command of the Army Headquarters, Government of India. In contrast, MEA personnel are governed by the IFS Rules. In Rule 2, the said rules are stated to be applicable to:?(i) all persons who have been, or may hereafter be, appointed to the Service; and (ii) any other officer of an All India Service or Central Civil Service, subject to the option, if any, exercised by such officer under the provisions of the Indian Foreign Service Rules.?It is relevant to note that Rule 7 of the same refers to the FA, stating that:?A member of the Service serving outside India may be granted a foreign allowance at such rates and subject to such conditions as may be prescribed by the Government from time to time.?27. At this juncture, it would be apt to observe that this Court has on several occasions affirmed that the difference between civilian and defence personnel is a valid classification. (For instance, see : Confederation of Ex-Servicemen Associations v. Union of India, (2006) 8 SCC 399 ; Union of India v. K.P. Singh, (2017) 3 SCC 289 ). 28. Moreover, though it may be true that IMTRAT-like teams in other countries like Zambia, Lesotho and Botswana receive compensatory allowances at par with the FA paid to the Indian diplomats in those countries, it cannot be forgotten that IMTRAT-like teams working in certain other countries (except the aforementioned) have been stated to be receiving lesser compensatory allowances than the FA paid to MEA personnel posted in those countries. It is for the State to take a pragmatic view in the matter of fixing compensatory allowances on a country-to-country basis, depending on the facts and circumstances of each case, and Courts in such matters generally may not interfere, particularly when the decision to be taken by the State in such matters is akin to a policy decision. 29. Additionally, it is an undisputed fact that parity had existed between the two allowances for 25 years, but that does not mean that such action of the Government can be taken to mean that the Government should continue such parity in the future also. As mentioned supra, it is open for the State to modulate the allowances depending on the attending circumstances. 30. However, we accept the submission of the respondents that IMTRAT personnel cannot be termed as deputationists. It is evident from the letter dated 26.11.2008 from the Army Headquarters that IMTRAT personnel are not deputationists. Be that as it may, this in itself is not a sufficient ground to grant parity between IMTRAT and MEA personnel. Even a perusal of the recommendations of the 5 th Central Pay Commission, the High Level Committee and the Group of Officers, as well as the Cabinet decision dated 30.11.1999, do not suggest in any manner that the civilian counterparts of the IMTRAT personnel are MEA personnel. The issue before them being the arbitrary depression imposed upon the BCA payable to IMTRAT personnel, the reference to ?civilian counterparts? would naturally mean non-military personnel who are receiving the BCA without any depression. It is relevant to note here that the 6 th and 7 th Central Pay Commissions also recommended maintaining the status quo with respect to the BCA payable to IMTRAT personnel. | 1[ds]14. To determine the validity of the clarification made vide the impugned judgment, it is essential to first examine the original order. The High Court acknowledged while passing the original order that two grievances had been raised by the writ petitioners (the respondents herein)—i.e., concerning removal of depression, and concerning parity with MEA personnel in the quantum of the respective allowances in the form of the BCA and the FA. With regard to the question of depression, the grievance was in terms of the non-implementation of the Cabinet decision dated 30.11.1999. It was contended by the writ petitioners that the decision needed to be enforced retrospectively from 30.11.1999, when the Cabinet decision was made, or from 01.08.1997, the date suggested by the Group of Officers.The High Court went on to conclude that the writ petitioners were justified in claiming retrospective benefit of the Ministry of Defence order dated 20.09.2005, the prospective operation of which was arbitrary insofar as it did not disclose any reason for the same, and unreasonable insofar as it failed to address the lack of parity between the BCA and FA payable to IMTRAT and MEA personnel respectively between 1997 and 2005, as they had been at par since the institution of the FA in 1973 until 1997, due to non-revision of the BCA when the FA was revised. The High Court further reasoned that the writ petitioners? stance was vindicated by the recommendation of the Group of Officers and the Cabinet decision dated 30.11.1999. On this basis, the High Court directed that the Cabinet decision dated 30.11.1999 be given effect from 01.12.1999, after taking into account the two ad hoc revisions of the BCA undertaken previously, and to pay all consequent arrears.However, it is evident that though the above observations were made by the High Court concerning parity between the two allowances, no direction was issued to that effect.It is clear that the operative portion of the order unambiguously states only that the Cabinet decision dated 30.11.1999 has to be given effect from 01.12.1999 (i.e. the Ministry of Defence order dated 20.09.2005 has to be given retrospective effect from 01.12.1999). This direction stands duly complied with after the issuance of the corrigendum dated 23.02.2006 to the Ministry of Defence order dated 20.09.2005. Evidently, the observations made by the High Court regarding parity between the BCA and the FA noted above are based on a conflation of two distinct grievances of the writ petitioners, i.e., firstly, removal of the depression from the BCA payable to IMTRAT personnel, and secondly, the reinstatement of parity of the BCA with the FA. Such conflation, in turn, appears to be based upon the implicit assumption of the High Court that the term ?civilian counterparts? in the underlying recommendations of the High Level Committee and Group of Officers, and the Cabinet decision dated 30.11.1999, refers to MEA officials posted in Bhutan, though the term ?civilian counterparts? itself has not been defined in any of the above recommendations/orders.The impugned judgment throws light on the lack of consideration of this issue by the High Court while disposing of the writ petitions. It is noted in the impugned judgment that the Government could not at that stage (i.e. while the High Court was considering the application for clarification of the original order) raise the argument regarding non-parity between the BCA and the FA, or between IMTRAT and MEA personnel, after failing to raise it while the writ petitions were being heard. Moreover, while noting in paragraph 4 of the impugned judgment that the Government had specifically submitted before the High Court earlier that the grievances of the writ petitioners had been met through the Ministry of Defence order dated 20.09.2005, the High Court articulated the implicit assumption which had been made in the original order that the civilian counterparts of the IMTRAT personnel referred to in the report of the Group of Officers, Cabinet decision, etc. were MEA officials.It is evident from the original order that no reference was made by the Government to equivalence between the MEA and IMTRAT personnel, though they made an implied reference to equivalence between the IMTRAT and their civilian counterparts. Despite the same, the High Court came to the erroneous conclusion that the Government also impliedly conceded that there should be equivalence between IMTRAT and MEA personnel. All through, it was the specific contention of the appellants that the BCA payable to IMTRAT personnel should be on par with the BCA of their civilian counterparts. As mentioned supra, the Government always maintained that ?civilian counterparts? means the civilians working on projects, etc. but not the diplomatic personnel who come under the MEA. However, we hasten to add here itself that the Government?s conduct in the form of certain submissions before the High Court may have generated confusion in the mind of the High Court while arriving at the conclusion that parity should be maintained between the MEA and the IMTRAT. However, the Court should not have confused itself based on such conduct.The High Court had thus reached the conclusion in the original order that the only point of contention between the parties was with respect to the retrospectivity of the Ministry of Defence order dated 20.09.2005, and on this basis the Court further formed the opinion that giving effect to the Cabinet decision dated 30.11.1999 from 01.12.1999 (which essentially amounted to giving retrospective effect to the Ministry of Defence order dated 20.09.2005) would lead to reinstatement of parity between the FA and the BCA. In the impugned judgment too, the Court made the same conflation of the issue of retrospective application of removal of the depression with the issue of parity between the BCA and the FA, based on the above interpretation of the term ?civilian counterparts? in the Group of Officers report, the Cabinet decision, etc.In the absence of any argument before the High Court during the hearing of the writ petitions on the meaning of the term ?civilian counterparts?, and in the absence of any specific finding recorded by the High Court in the original order to the effect that the term ?civilian counterparts? refers to MEA personnel, the High Court in the impugned judgment should have restricted itself to the directions actually issued in the original order, which were limited to the relief of implementing the Cabinet decision dated 30.11.1999 from 01.12.1999. By granting the relief of parity, the Court went beyond the relief explicitly granted in the original order. It was not open to the Court to interpret the relief granted in such a manner so as to expand its scope to include the second relief prayed for but not granted. It must be kept in mind that the Court?s power in a clarificatory proceeding is different from that in revision or appeal.Therefore, in our considered opinion, the argument of the respondents, which effectively is that though the substantive relief of parity was not specified in the directions issued by the High Court in the original order, the surrounding discussion reveals the true intent of the High Court and the same was validly accounted for in the impugned judgment, cannot be accepted, inasmuch as the High Court has erred in going beyond the explicit directions issued in the original order.The learned counsel on both sides, incidentally, also argued on the merits of the matter on the issue of parity/equivalence between the BCA payable to the IMTRAT and the FA payable to the MEA personnel. The case of the appellants, in this regard, fundamentally is that the FA and BCA are incomparable allowances paid to persons whose scope and nature of duties are completely different and whose service conditions are governed by different sets of rules/terms and conditions. Other notable arguments put forth by the appellants are that parity between the two allowances until 1997 was a mere coincidence arising out of similar methods of calculation and could not be demanded by way of legitimate expectation by the IMTRAT personnel since the Government never made any promise to that effect; that the parity was discontinued once the FA was linked to the United Nations Retail Price Index (in short ?the UNRPI?); that granting the relief of parity would lead to demands for parity between the FA and the compensatory allowances paid to other deputationists/defence personnel in various countries and may have grave financial implications, and may even have security implications due to the possible reduction of military personnel in Bhutan; and that the difference between civilian and military personnel is anyway a valid ground for classification.On the other hand, the case of the respondents in this regard primarily is that IMTRAT personnel cannot be equated with civilian personnel on deputation, who according to them are personnel under the control of the Royal Government of Bhutan in various projects aided by the Government of India, or those self-financed by the Bhutanese Government, whereas both the MEA and IMTRAT personnel work under the direct control of the Government of India, and therefore cannot be held at par with deputationists and are inter-se comparable. Other important arguments submitted by the respondents, in brief, are that the two allowances are of the same nature, i.e. their purpose is to offset the higher cost of living in a foreign country; that the BCA should be paid to IMTRAT personnel at an equivalent, if not greater, rate compared to the FA since they are working in a difficult terrain and in the deeply hostile atmosphere bordering Bhutan and China, with an exorbitant cost of living; that parity between IMTRAT and MEA personnel will not create grounds for parity between deputationists and the MEA, since the IMTRAT and deputationists constitute two separate classes; that there is parity between the compensatory allowances paid to IMTRAT-like teams and MEA personnel in other countries; that there was parity between the two allowances for 25 years which was arbitrarily discontinued; that the linkage of the FA with the UNRPI is not a valid ground for disparity since by the admission of the Government even the BCA payable to IMTRAT personnel was supposed to be linked to UN indices after 2002.After duly considering the material placed on record before us, we are of the opinion that the High Court while passing the impugned judgment was not justified in concluding that a legitimate case for parity between the BCA payable to IMTRAT personnel and the FA payable to MEA personnel can be made out. Of course, it cannot be disputed that the purpose of both allowances is fundamentally the same, i.e. to meet the higher cost of living abroad, but at the same time the requirements that have to be met out of the two are somewhat different. IMTRAT personnel benefit to a larger extent compared to MEA personnel in terms of getting food and other purchases at a cheaper cost due to the provision of facilities such as mess, canteen, etc. Moreover, a comparison between the different allowances to which these two classes of personnel are entitled shows that IMTRAT personnel are entitled to an additional allowance called ?Difficult Area Allowance?, and also receive Military Service Pay, in addition to Basic Pay which is paid to both MEA and IMTRAT personnel according to the respective grades of the personnel.Moreover, it has not been shown by the respondents that the nature of the work done by the IMTRAT and MEA personnel is one and the same, or even comparable. The terms of appointment and conditions of service of the IMTRAT and MEA personnel are also completely different. This aspect in itself is sufficient to negate the case for parity pled by the respondents. The institution of the IMTRAT team for Bhutan can be traced to the sanction letter of the Government of India dated 27.8.1962, by which a military team (the IMTRAT) was loaned out for training purposes to the Government of Bhutan. As indicated by the letter dated 28.01.1985 from the Army Headquarters to the IMTRAT containing administrative instructions for the team, the IMTRAT is fully under the control of the Government of India and is an integral part of the Indian Armed Forces, functioning under the direct command of the Army Headquarters, Government of India. In contrast, MEA personnel are governed by the IFS Rules.Moreover, though it may be true that IMTRAT-like teams in other countries like Zambia, Lesotho and Botswana receive compensatory allowances at par with the FA paid to the Indian diplomats in those countries, it cannot be forgotten that IMTRAT-like teams working in certain other countries (except the aforementioned) have been stated to be receiving lesser compensatory allowances than the FA paid to MEA personnel posted in those countries. It is for the State to take a pragmatic view in the matter of fixing compensatory allowances on a country-to-country basis, depending on the facts and circumstances of each case, and Courts in such matters generally may not interfere, particularly when the decision to be taken by the State in such matters is akin to a policy decision.Additionally, it is an undisputed fact that parity had existed between the two allowances for 25 years, but that does not mean that such action of the Government can be taken to mean that the Government should continue such parity in the future also. As mentioned supra, it is open for the State to modulate the allowances depending on the attending circumstances.However, we accept the submission of the respondents that IMTRAT personnel cannot be termed as deputationists. It is evident from the letter dated 26.11.2008 from the Army Headquarters that IMTRAT personnel are not deputationists. Be that as it may, this in itself is not a sufficient ground to grant parity between IMTRAT and MEA personnel. Even a perusal of the recommendations of the 5 th Central Pay Commission, the High Level Committee and the Group of Officers, as well as the Cabinet decision dated 30.11.1999, do not suggest in any manner that the civilian counterparts of the IMTRAT personnel are MEA personnel. The issue before them being the arbitrary depression imposed upon the BCA payable to IMTRAT personnel, the reference to ?civilian counterparts? would naturally mean non-military personnel who are receiving the BCA without any depression. It is relevant to note here that the 6 th and 7 th Central Pay Commissions also recommended maintaining the status quo with respect to the BCA payable to IMTRAT personnel. | 1 | 6,566 | 2,594 | ### Instruction:
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in a difficult terrain and in the deeply hostile atmosphere bordering Bhutan and China, with an exorbitant cost of living; that parity between IMTRAT and MEA personnel will not create grounds for parity between deputationists and the MEA, since the IMTRAT and deputationists constitute two separate classes; that there is parity between the compensatory allowances paid to IMTRAT-like teams and MEA personnel in other countries; that there was parity between the two allowances for 25 years which was arbitrarily discontinued; that the linkage of the FA with the UNRPI is not a valid ground for disparity since by the admission of the Government even the BCA payable to IMTRAT personnel was supposed to be linked to UN indices after 2002. 25. After duly considering the material placed on record before us, we are of the opinion that the High Court while passing the impugned judgment was not justified in concluding that a legitimate case for parity between the BCA payable to IMTRAT personnel and the FA payable to MEA personnel can be made out. Of course, it cannot be disputed that the purpose of both allowances is fundamentally the same, i.e. to meet the higher cost of living abroad, but at the same time the requirements that have to be met out of the two are somewhat different. IMTRAT personnel benefit to a larger extent compared to MEA personnel in terms of getting food and other purchases at a cheaper cost due to the provision of facilities such as mess, canteen, etc. Moreover, a comparison between the different allowances to which these two classes of personnel are entitled shows that IMTRAT personnel are entitled to an additional allowance called ?Difficult Area Allowance?, and also receive Military Service Pay, in addition to Basic Pay which is paid to both MEA and IMTRAT personnel according to the respective grades of the personnel. 26. Moreover, it has not been shown by the respondents that the nature of the work done by the IMTRAT and MEA personnel is one and the same, or even comparable. The terms of appointment and conditions of service of the IMTRAT and MEA personnel are also completely different. This aspect in itself is sufficient to negate the case for parity pled by the respondents. The institution of the IMTRAT team for Bhutan can be traced to the sanction letter of the Government of India dated 27.8.1962, by which a military team (the IMTRAT) was loaned out for training purposes to the Government of Bhutan. As indicated by the letter dated 28.01.1985 from the Army Headquarters to the IMTRAT containing administrative instructions for the team, the IMTRAT is fully under the control of the Government of India and is an integral part of the Indian Armed Forces, functioning under the direct command of the Army Headquarters, Government of India. In contrast, MEA personnel are governed by the IFS Rules. In Rule 2, the said rules are stated to be applicable to:?(i) all persons who have been, or may hereafter be, appointed to the Service; and (ii) any other officer of an All India Service or Central Civil Service, subject to the option, if any, exercised by such officer under the provisions of the Indian Foreign Service Rules.?It is relevant to note that Rule 7 of the same refers to the FA, stating that:?A member of the Service serving outside India may be granted a foreign allowance at such rates and subject to such conditions as may be prescribed by the Government from time to time.?27. At this juncture, it would be apt to observe that this Court has on several occasions affirmed that the difference between civilian and defence personnel is a valid classification. (For instance, see : Confederation of Ex-Servicemen Associations v. Union of India, (2006) 8 SCC 399 ; Union of India v. K.P. Singh, (2017) 3 SCC 289 ). 28. Moreover, though it may be true that IMTRAT-like teams in other countries like Zambia, Lesotho and Botswana receive compensatory allowances at par with the FA paid to the Indian diplomats in those countries, it cannot be forgotten that IMTRAT-like teams working in certain other countries (except the aforementioned) have been stated to be receiving lesser compensatory allowances than the FA paid to MEA personnel posted in those countries. It is for the State to take a pragmatic view in the matter of fixing compensatory allowances on a country-to-country basis, depending on the facts and circumstances of each case, and Courts in such matters generally may not interfere, particularly when the decision to be taken by the State in such matters is akin to a policy decision. 29. Additionally, it is an undisputed fact that parity had existed between the two allowances for 25 years, but that does not mean that such action of the Government can be taken to mean that the Government should continue such parity in the future also. As mentioned supra, it is open for the State to modulate the allowances depending on the attending circumstances. 30. However, we accept the submission of the respondents that IMTRAT personnel cannot be termed as deputationists. It is evident from the letter dated 26.11.2008 from the Army Headquarters that IMTRAT personnel are not deputationists. Be that as it may, this in itself is not a sufficient ground to grant parity between IMTRAT and MEA personnel. Even a perusal of the recommendations of the 5 th Central Pay Commission, the High Level Committee and the Group of Officers, as well as the Cabinet decision dated 30.11.1999, do not suggest in any manner that the civilian counterparts of the IMTRAT personnel are MEA personnel. The issue before them being the arbitrary depression imposed upon the BCA payable to IMTRAT personnel, the reference to ?civilian counterparts? would naturally mean non-military personnel who are receiving the BCA without any depression. It is relevant to note here that the 6 th and 7 th Central Pay Commissions also recommended maintaining the status quo with respect to the BCA payable to IMTRAT personnel.
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even have security implications due to the possible reduction of military personnel in Bhutan; and that the difference between civilian and military personnel is anyway a valid ground for classification.On the other hand, the case of the respondents in this regard primarily is that IMTRAT personnel cannot be equated with civilian personnel on deputation, who according to them are personnel under the control of the Royal Government of Bhutan in various projects aided by the Government of India, or those self-financed by the Bhutanese Government, whereas both the MEA and IMTRAT personnel work under the direct control of the Government of India, and therefore cannot be held at par with deputationists and are inter-se comparable. Other important arguments submitted by the respondents, in brief, are that the two allowances are of the same nature, i.e. their purpose is to offset the higher cost of living in a foreign country; that the BCA should be paid to IMTRAT personnel at an equivalent, if not greater, rate compared to the FA since they are working in a difficult terrain and in the deeply hostile atmosphere bordering Bhutan and China, with an exorbitant cost of living; that parity between IMTRAT and MEA personnel will not create grounds for parity between deputationists and the MEA, since the IMTRAT and deputationists constitute two separate classes; that there is parity between the compensatory allowances paid to IMTRAT-like teams and MEA personnel in other countries; that there was parity between the two allowances for 25 years which was arbitrarily discontinued; that the linkage of the FA with the UNRPI is not a valid ground for disparity since by the admission of the Government even the BCA payable to IMTRAT personnel was supposed to be linked to UN indices after 2002.After duly considering the material placed on record before us, we are of the opinion that the High Court while passing the impugned judgment was not justified in concluding that a legitimate case for parity between the BCA payable to IMTRAT personnel and the FA payable to MEA personnel can be made out. Of course, it cannot be disputed that the purpose of both allowances is fundamentally the same, i.e. to meet the higher cost of living abroad, but at the same time the requirements that have to be met out of the two are somewhat different. IMTRAT personnel benefit to a larger extent compared to MEA personnel in terms of getting food and other purchases at a cheaper cost due to the provision of facilities such as mess, canteen, etc. Moreover, a comparison between the different allowances to which these two classes of personnel are entitled shows that IMTRAT personnel are entitled to an additional allowance called ?Difficult Area Allowance?, and also receive Military Service Pay, in addition to Basic Pay which is paid to both MEA and IMTRAT personnel according to the respective grades of the personnel.Moreover, it has not been shown by the respondents that the nature of the work done by the IMTRAT and MEA personnel is one and the same, or even comparable. The terms of appointment and conditions of service of the IMTRAT and MEA personnel are also completely different. This aspect in itself is sufficient to negate the case for parity pled by the respondents. The institution of the IMTRAT team for Bhutan can be traced to the sanction letter of the Government of India dated 27.8.1962, by which a military team (the IMTRAT) was loaned out for training purposes to the Government of Bhutan. As indicated by the letter dated 28.01.1985 from the Army Headquarters to the IMTRAT containing administrative instructions for the team, the IMTRAT is fully under the control of the Government of India and is an integral part of the Indian Armed Forces, functioning under the direct command of the Army Headquarters, Government of India. In contrast, MEA personnel are governed by the IFS Rules.Moreover, though it may be true that IMTRAT-like teams in other countries like Zambia, Lesotho and Botswana receive compensatory allowances at par with the FA paid to the Indian diplomats in those countries, it cannot be forgotten that IMTRAT-like teams working in certain other countries (except the aforementioned) have been stated to be receiving lesser compensatory allowances than the FA paid to MEA personnel posted in those countries. It is for the State to take a pragmatic view in the matter of fixing compensatory allowances on a country-to-country basis, depending on the facts and circumstances of each case, and Courts in such matters generally may not interfere, particularly when the decision to be taken by the State in such matters is akin to a policy decision.Additionally, it is an undisputed fact that parity had existed between the two allowances for 25 years, but that does not mean that such action of the Government can be taken to mean that the Government should continue such parity in the future also. As mentioned supra, it is open for the State to modulate the allowances depending on the attending circumstances.However, we accept the submission of the respondents that IMTRAT personnel cannot be termed as deputationists. It is evident from the letter dated 26.11.2008 from the Army Headquarters that IMTRAT personnel are not deputationists. Be that as it may, this in itself is not a sufficient ground to grant parity between IMTRAT and MEA personnel. Even a perusal of the recommendations of the 5 th Central Pay Commission, the High Level Committee and the Group of Officers, as well as the Cabinet decision dated 30.11.1999, do not suggest in any manner that the civilian counterparts of the IMTRAT personnel are MEA personnel. The issue before them being the arbitrary depression imposed upon the BCA payable to IMTRAT personnel, the reference to ?civilian counterparts? would naturally mean non-military personnel who are receiving the BCA without any depression. It is relevant to note here that the 6 th and 7 th Central Pay Commissions also recommended maintaining the status quo with respect to the BCA payable to IMTRAT personnel.
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Shadi Lal Vs. Nagin Chand & Ors | of consumption figure of the firm during the years 1956 to 1959 when the three persons were co-partners. Quota is not part of goodwill. Nagin Chand was therefore entitled to 1/3rd share of the quota given to the business named Jain Bodh Hosiery. 7. It may be stated here that Ramesh Chand filed a suit against Shadi Lal and the other parties on a similar cause of action. 8. Both the suits were tried together. The trial Court dismissed the suits. 9. The first Appellate Court decreed the suits and declared that each of the plaintiffs was entitled to 1/3rd share of the quota allotted in the name of Jain Bodh Hosiery. 10. The learned Single Judge of the High Court on second appeal set aside the decree granted by the first Appellate Court and dismissed the suits. 11. The High Court in Letters Patent Appeal accepted the appeal and decreed the suits in terms of the decree of the first Appellate Court. The High Court arrived at these conclusions. The basis of allotment was consumption of woollen yarn during the years preceding the date of dissolution of partnership.The three partnership after dissolution carried on their individual business. The claim to quota on the basis of consumption during partnership was not lost by the dissolution. The partners had the right to do hosiery business in their individual capacity. 12. Therefore, they were each entitled to draw 1/3rd of the quota. 13. Counsel for the respondent contended that the origin of quota was the performance of the partnership during the years 1956 to 1959 and therefore quota was an asset of partnership to which the respondent was entitled. 14. The Woollen Yarn (Production and Distribution) Control Order 1960 which came into force on 29th October 1960 is the relevant order. There was a similar order which came into force on 21-9-1960. The earlier order was repealed by the later order. The Textile Commissioner with a view to securing proper distribution of woollen yarn issues directions to any manufacturer of or dealer in woollen yarn to sell any stock of woollen yarn held by such manufacturer or dealer to pay a person specified by the Textile Commissioner. It is under that provision in clause 6 of the Order that woollen yarn is allotted to manufacturers of Hosiery. The Federation was authorised by the Government to discharge the duties of the Textile Commissioner. 15. The question is whether the quota which is allotted to the appellants Shadi Lal after the dissolution of business is an item in the assets of partnership. On the dissolution of partnership all accounts have been taken between the partners. Nothing remained due among the partners inter se. No asset remained undistributed. 16. Shadi Lal obtains quota by reason of his business. The quota enables him to obtain raw material. Raw material is converted into finished products. These goods are marketed. 17. After the dissolution of partnership the three partners carried on hosiery business separately. Each is entitled to ask for quota of woollen yarn in accordance with the provisions of the Woollen Yarn Control Order. The grant of quota is within the power and discretion of the Textile Commissioner. The quota which is granted to an applicant is in his individual business right and it is his property. If the partnership had continued the partners would have been entitled to quotas as partners. The fact that quota is granted in the name of Jain Bodh Hosiery does not convert the quota into a partnership asset. The business name belongs to the appellant under the deed of dissolution. 18. It was said by counsel for the respondents that the past performance during the years 1956 to 1959 was important because during the partnership the quota was earned by Joint labour. Therefore, after seperation it was said that the quota to Jain Bodh Hosiery was given to three persons. This contention is unsound. The appellant after dissolution carried on business in the name of Jain Bodh Hosiery. He is entitled to apply for quota in that business name. Quota that is granted in that business name is his separate property. Neither Nagin Chand nor Ramesh Chand has any proper proprietary right in that quota. 19. It must be recognised that quota attaches to the owner of a business at the point of time the quota is granted. It is the business at the relevant time which obtains quota. Therefore, quota enures to the benefit of the business. 20. Quota was not and could not be an asset of the partnership. Assets are divisible among partners. Quota could not be divided. Quota is a matter of privilege and the grant of it lies with the Textile Commissioner. Quota is a licence for a particular time for a particular quantity. Quota is worked out by getting the raw material represented by the Quota. 21. It was said by counsel for the respondents that the appellant was obtaining quota on the basis of the performance of the parntership business during the relevant material years. If the appellant claims on that basis and the Textile Commissioner allots quota on that basis it lies within the power of the Commissioner to allot the quantity he thinks fit and proper. 22. If the respondent by virtue of his individual business is entitled to make an application for grant that application will merit its own consideration. The relevant merits and demerits of the appellant or of the respondents will be a matter for the relevant authorities granting quota. The respondent claimed 1/3rd share of the appellants quota. The respondent has no proprietary claim to the appellants quota. The appellants quota is not an asset in that items of partnership. A fortiori it is not an after acquired asset of the partnership. 23. The High Court was in error in decreeing the suits on the consideration that the respondent was entitled to 1/3rd quota. A declaration can be founded only on a legal right. The respondent has none. | 1[ds]16. Shadi Lal obtains quota by reason of his business. The quota enables him to obtain raw material. Raw material is converted into finished products. These goods are marketed17. After the dissolution of partnership the three partners carried on hosiery business separately. Each is entitled to ask for quota of woollen yarn in accordance with the provisions of the Woollen Yarn Control Order. The grant of quota is within the power and discretion of the Textile Commissioner. The quota which is granted to an applicant is in his individual business right and it is his property. If the partnership had continued the partners would have been entitled to quotas as partners. The fact that quota is granted in the name of Jain Bodh Hosiery does not convert the quota into a partnership asset. The business name belongs to the appellant under the deed of dissolution18. It was said by counsel for the respondents that the past performance during the years 1956 to 1959 was important because during the partnership the quota was earned by Joint labour. Therefore, after seperation it was said that the quota to Jain Bodh Hosiery was given to three persons. This contention is unsound. The appellant after dissolution carried on business in the name of Jain Bodh Hosiery. He is entitled to apply for quota in that business name. Quota that is granted in that business name is his separate property. Neither Nagin Chand nor Ramesh Chand has any proper proprietary right in that quota19. It must be recognised that quota attaches to the owner of a business at the point of time the quota is granted. It is the business at the relevant time which obtains quota. Therefore, quota enures to the benefit of the business20. Quota was not and could not be an asset of the partnership. Assets are divisible among partners. Quota could not be divided. Quota is a matter of privilege and the grant of it lies with the Textile Commissioner. Quota is a licence for a particular time for a particular quantity. Quota is worked out by getting the raw material represented by the Quota22. If the respondent by virtue of his individual business is entitled to make an application for grant that application will merit its own consideration. The relevant merits and demerits of the appellant or of the respondents will be a matter for the relevant authorities granting quota. The respondent claimed 1/3rd share of the appellants quota. The respondent has no proprietary claim to the appellants quota. The appellants quota is not an asset in that items of partnership. A fortiori it is not an after acquired asset of the partnership23. The High Court was in error in decreeing the suits on the consideration that the respondent was entitled to 1/3rd quota. A declaration can be founded only on a legal right. The respondent has none. | 1 | 1,475 | 521 | ### Instruction:
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of consumption figure of the firm during the years 1956 to 1959 when the three persons were co-partners. Quota is not part of goodwill. Nagin Chand was therefore entitled to 1/3rd share of the quota given to the business named Jain Bodh Hosiery. 7. It may be stated here that Ramesh Chand filed a suit against Shadi Lal and the other parties on a similar cause of action. 8. Both the suits were tried together. The trial Court dismissed the suits. 9. The first Appellate Court decreed the suits and declared that each of the plaintiffs was entitled to 1/3rd share of the quota allotted in the name of Jain Bodh Hosiery. 10. The learned Single Judge of the High Court on second appeal set aside the decree granted by the first Appellate Court and dismissed the suits. 11. The High Court in Letters Patent Appeal accepted the appeal and decreed the suits in terms of the decree of the first Appellate Court. The High Court arrived at these conclusions. The basis of allotment was consumption of woollen yarn during the years preceding the date of dissolution of partnership.The three partnership after dissolution carried on their individual business. The claim to quota on the basis of consumption during partnership was not lost by the dissolution. The partners had the right to do hosiery business in their individual capacity. 12. Therefore, they were each entitled to draw 1/3rd of the quota. 13. Counsel for the respondent contended that the origin of quota was the performance of the partnership during the years 1956 to 1959 and therefore quota was an asset of partnership to which the respondent was entitled. 14. The Woollen Yarn (Production and Distribution) Control Order 1960 which came into force on 29th October 1960 is the relevant order. There was a similar order which came into force on 21-9-1960. The earlier order was repealed by the later order. The Textile Commissioner with a view to securing proper distribution of woollen yarn issues directions to any manufacturer of or dealer in woollen yarn to sell any stock of woollen yarn held by such manufacturer or dealer to pay a person specified by the Textile Commissioner. It is under that provision in clause 6 of the Order that woollen yarn is allotted to manufacturers of Hosiery. The Federation was authorised by the Government to discharge the duties of the Textile Commissioner. 15. The question is whether the quota which is allotted to the appellants Shadi Lal after the dissolution of business is an item in the assets of partnership. On the dissolution of partnership all accounts have been taken between the partners. Nothing remained due among the partners inter se. No asset remained undistributed. 16. Shadi Lal obtains quota by reason of his business. The quota enables him to obtain raw material. Raw material is converted into finished products. These goods are marketed. 17. After the dissolution of partnership the three partners carried on hosiery business separately. Each is entitled to ask for quota of woollen yarn in accordance with the provisions of the Woollen Yarn Control Order. The grant of quota is within the power and discretion of the Textile Commissioner. The quota which is granted to an applicant is in his individual business right and it is his property. If the partnership had continued the partners would have been entitled to quotas as partners. The fact that quota is granted in the name of Jain Bodh Hosiery does not convert the quota into a partnership asset. The business name belongs to the appellant under the deed of dissolution. 18. It was said by counsel for the respondents that the past performance during the years 1956 to 1959 was important because during the partnership the quota was earned by Joint labour. Therefore, after seperation it was said that the quota to Jain Bodh Hosiery was given to three persons. This contention is unsound. The appellant after dissolution carried on business in the name of Jain Bodh Hosiery. He is entitled to apply for quota in that business name. Quota that is granted in that business name is his separate property. Neither Nagin Chand nor Ramesh Chand has any proper proprietary right in that quota. 19. It must be recognised that quota attaches to the owner of a business at the point of time the quota is granted. It is the business at the relevant time which obtains quota. Therefore, quota enures to the benefit of the business. 20. Quota was not and could not be an asset of the partnership. Assets are divisible among partners. Quota could not be divided. Quota is a matter of privilege and the grant of it lies with the Textile Commissioner. Quota is a licence for a particular time for a particular quantity. Quota is worked out by getting the raw material represented by the Quota. 21. It was said by counsel for the respondents that the appellant was obtaining quota on the basis of the performance of the parntership business during the relevant material years. If the appellant claims on that basis and the Textile Commissioner allots quota on that basis it lies within the power of the Commissioner to allot the quantity he thinks fit and proper. 22. If the respondent by virtue of his individual business is entitled to make an application for grant that application will merit its own consideration. The relevant merits and demerits of the appellant or of the respondents will be a matter for the relevant authorities granting quota. The respondent claimed 1/3rd share of the appellants quota. The respondent has no proprietary claim to the appellants quota. The appellants quota is not an asset in that items of partnership. A fortiori it is not an after acquired asset of the partnership. 23. The High Court was in error in decreeing the suits on the consideration that the respondent was entitled to 1/3rd quota. A declaration can be founded only on a legal right. The respondent has none.
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16. Shadi Lal obtains quota by reason of his business. The quota enables him to obtain raw material. Raw material is converted into finished products. These goods are marketed17. After the dissolution of partnership the three partners carried on hosiery business separately. Each is entitled to ask for quota of woollen yarn in accordance with the provisions of the Woollen Yarn Control Order. The grant of quota is within the power and discretion of the Textile Commissioner. The quota which is granted to an applicant is in his individual business right and it is his property. If the partnership had continued the partners would have been entitled to quotas as partners. The fact that quota is granted in the name of Jain Bodh Hosiery does not convert the quota into a partnership asset. The business name belongs to the appellant under the deed of dissolution18. It was said by counsel for the respondents that the past performance during the years 1956 to 1959 was important because during the partnership the quota was earned by Joint labour. Therefore, after seperation it was said that the quota to Jain Bodh Hosiery was given to three persons. This contention is unsound. The appellant after dissolution carried on business in the name of Jain Bodh Hosiery. He is entitled to apply for quota in that business name. Quota that is granted in that business name is his separate property. Neither Nagin Chand nor Ramesh Chand has any proper proprietary right in that quota19. It must be recognised that quota attaches to the owner of a business at the point of time the quota is granted. It is the business at the relevant time which obtains quota. Therefore, quota enures to the benefit of the business20. Quota was not and could not be an asset of the partnership. Assets are divisible among partners. Quota could not be divided. Quota is a matter of privilege and the grant of it lies with the Textile Commissioner. Quota is a licence for a particular time for a particular quantity. Quota is worked out by getting the raw material represented by the Quota22. If the respondent by virtue of his individual business is entitled to make an application for grant that application will merit its own consideration. The relevant merits and demerits of the appellant or of the respondents will be a matter for the relevant authorities granting quota. The respondent claimed 1/3rd share of the appellants quota. The respondent has no proprietary claim to the appellants quota. The appellants quota is not an asset in that items of partnership. A fortiori it is not an after acquired asset of the partnership23. The High Court was in error in decreeing the suits on the consideration that the respondent was entitled to 1/3rd quota. A declaration can be founded only on a legal right. The respondent has none.
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Martin Burn Ltd Vs. R.N Banerjee | view taken is a possible view on the evidence on the record. (See Buckingham and Carnatic Co., Ltd. v. The Workers of the Company, (1952) Lab. AC 490 (F).28. The Labour Appellate Tribunal in the instant case discussed the evidence led before it in meticulous detail and came to the conclusion that no prima facie case was made out by the appellant for the termination of the service of the respondent. It applied a standard of proof which having regard to the observations made above was not strictly justifiable. If the matter had rested there it may have been possible to upset the finding of the Labour Appellate Tribunal. But if regard be had to the evidence which was actually led before it, there is such a lacuna in that evidence that it is impossible to come to the conclusion that even if the evidence was taken at its face value a prima facie case was made out by the appellant. Mr. Hoopers evidence did not go to show what were the contents of his report dated May 4, 1954, and it contained only a bare reference to that report without anything more. This was not enough to prove the contents of that report, much less to give the respondent an opportunity of controverting the allegations made against him. If, therefore, these essential ingredients were wanting, it cannot be said that the evidence led by the appellant before the Labour Appellate Tribunal was sufficient to establish a prima facie case for the termination of the respondents service. This contention also does not therefore avail the appellant.29. Mr. Sen endeavoured to draw a distinction between discharge on the one hand and punishment by way of dismissal or otherwise on the other, in cl. (b) of S. 22 of the Act. He contended that no prima facie case need be made out when an employee was sought to be discharged simpliciter by the employer. A charge-sheet was required to be submitted to the workman and an enquiry thereon required to be made in conformity with the principles of natural justice only in those cases where the workman was sought to be punished by dismissal or otherwise. That was not the case when the workman was sought to be discharged without assigning any reason whatever and such a case did not fall within the category of punishment at all. For the purpose of the present case we need not dilate upon this; it is sufficient to point out that Shri Ramani Ranjan Dhar in his affidavit in rejoinder filed on behalf of the appellant categorically stated that the respondent was sought to be "dismissed" by reason of his having been found guilty of the various charges which had been levelled against him. Even at the ex parte hearing of the application under S. 22 of the Act before the Labour Appellate Tribunal the case of the appellant was that it had made out a prima facie case for permission to "dismiss" the respondent. This distinction sought to be drawn by MR. Sen is therefore of no consequence whatever and need not detain us any further.30. Mr. Sen also relied upon the circumstances that after the Labour Appellate Tribunal had on the ex parte hearing of the application under S. 22 of the Act granted to the appellant permission to terminate the service of the respondent on October 14, 1955, the appellant had implemented the same and by its notice dated November 11, 1955, actually terminated the service of the respondent offering him full retrenchment compensation. In so far as the appellant had acted upon such permission and implemented the same, it was contended, that the respondents service was irrevocably terminated and nothing more was to be done thereafter except the possible raising of an industrial dispute by the respondent on the score of his service having been wrongfully terminated. It was submitted that after such an irrevocable step had been taken by the appellant terminating the respondents service, the Labour Appellate Tribunal ought not to have reconsidered its decision and restored the application under S. 22 of the Act to its file and that the further decision of the Labour Appellate Tribunal had no effect so far as the actual termination of the service of the respondent was concerned. We do not propose to go into these interesting questions for the simple reason that the only question which arises for our consideration in this appeal is whether on the evidence led before it the decision of the Labour Appellate Tribunal dated May 11, 1956, dismissing the appellants application under S. 22 of the Act was correct. As a matter of fact no such contention had been urged by the appellant before the Labour Appellate Tribunal when it finally heard the application under S. 22 of the Act and the only point to which the attention of the Labour Appellate Tribunal was invited was whether the appellant had made out a prima facie case for the termination of the respondents service. Whatever rights and remedies are available to the appellant by reason of these circumstances may just as well be asserted by the appellant in appropriate proceedings which may be taken hereafter either at the instance of the appellant or the respondent. We are not at present concerned with the same.31. Under the circumstances, we are of opinion that the decision arrived at by the Labour Appellate Tribunal which is the subject-matter of appeal before us was correct.32. It is no doubt true that the Labour Appellate Tribunal recorded a finding in favour of the appellant that in terminating the service of the respondent as it did, the appellant was not guilty of any unfair labour practice nor was it actuated by any motive of victimization against the respondent. That finding, however, cannot help the appellant in so far as the Labour Appellate Tribunal held that the appellant had failed to make out a prima facie case for terminating the service of the respondent. | 1[ds]11. Re: (i) it was contended that once the Labour Appellate Tribunal pronounced its order on October 14, 1955, it has become functus officio and thereafter it had no jurisdiction to review its own order. The circumstances, moreover, did not bring the application which was made by the respondent on December 6, 1955, strictly within the provisions of O. 47, R. 1 of the Code of Civil Procedure and no application for review could therefore be maintained.12. It is significant, however, to remember that the application made by the respondent on December 6, 1955, was an omnibus one and was intituled as one under O. 47 R. 1 of the Code of Civil Procedure for review; under O. 41, R. 21 of the Civil Procedure Code for restoration and under O. 9, R. 13 of the Code of Civil Procedure for setting aside the permission granted ex parte and to restore the respondent in his original position. The respondent evidently sought to rely upon one or the other of the provisions above set out in order to obtain the relief which he sought in that application.provision is analogous to that which is contained in S. 151 of the Code of Civil Procedure, which relates to the inherent powers of the Court and even apart from the applicability of O. 41 R. 21 of the Code of the Civil Procedure as hereinbefore set out it was open to the Labour Appellate Tribunal to pass the order which it did on March 6, 1956, as it was evidently necessary for the ends of justice or to prevent the abuse of the process of the Court.20.We are, therefore, of opinion that the Labour Appellate Tribunal had jurisdiction to set aside the ex parte order dated October 14, 1955, and restore the appellants application under S. 22 of the Act to its file. The contention of the appellant therefore is without any substance and must be negatived.Re: (ii) It was next contended that even though the Labour Appellate Tribunal had jurisdiction to hear an application under S. 22 of the Act it misconceived its jurisdiction and in the exercise of it, launched into an inquiry which it was not competent to do and erroneously came to the conclusion that the appellant had failed to make out a prima facie case for terminating the service of the respondent.We have, therefore, got to consider whether in the instant case a prima facie case was made out by the appellant for terminating the service of the respondent and whether in giving the notice dated November 11, 1955, terminating the respondents service the appellant was motivated by any unfair labour practice or victimization.Under the circumstances, we are of opinion that the decision arrived at by the Labour Appellate Tribunal which is the subject-matter of appeal before us was correct.32. It is no doubt true that the Labour Appellate Tribunal recorded a finding in favour of the appellant that in terminating the service of the respondent as it did, the appellant was not guilty of any unfair labour practice nor was it actuated by any motive of victimization against the respondent. That finding, however, cannot help the appellant in so far as the Labour Appellate Tribunal held that the appellant had failed to make out a prima facie case for terminating the service of the respondent. | 1 | 6,783 | 611 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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view taken is a possible view on the evidence on the record. (See Buckingham and Carnatic Co., Ltd. v. The Workers of the Company, (1952) Lab. AC 490 (F).28. The Labour Appellate Tribunal in the instant case discussed the evidence led before it in meticulous detail and came to the conclusion that no prima facie case was made out by the appellant for the termination of the service of the respondent. It applied a standard of proof which having regard to the observations made above was not strictly justifiable. If the matter had rested there it may have been possible to upset the finding of the Labour Appellate Tribunal. But if regard be had to the evidence which was actually led before it, there is such a lacuna in that evidence that it is impossible to come to the conclusion that even if the evidence was taken at its face value a prima facie case was made out by the appellant. Mr. Hoopers evidence did not go to show what were the contents of his report dated May 4, 1954, and it contained only a bare reference to that report without anything more. This was not enough to prove the contents of that report, much less to give the respondent an opportunity of controverting the allegations made against him. If, therefore, these essential ingredients were wanting, it cannot be said that the evidence led by the appellant before the Labour Appellate Tribunal was sufficient to establish a prima facie case for the termination of the respondents service. This contention also does not therefore avail the appellant.29. Mr. Sen endeavoured to draw a distinction between discharge on the one hand and punishment by way of dismissal or otherwise on the other, in cl. (b) of S. 22 of the Act. He contended that no prima facie case need be made out when an employee was sought to be discharged simpliciter by the employer. A charge-sheet was required to be submitted to the workman and an enquiry thereon required to be made in conformity with the principles of natural justice only in those cases where the workman was sought to be punished by dismissal or otherwise. That was not the case when the workman was sought to be discharged without assigning any reason whatever and such a case did not fall within the category of punishment at all. For the purpose of the present case we need not dilate upon this; it is sufficient to point out that Shri Ramani Ranjan Dhar in his affidavit in rejoinder filed on behalf of the appellant categorically stated that the respondent was sought to be "dismissed" by reason of his having been found guilty of the various charges which had been levelled against him. Even at the ex parte hearing of the application under S. 22 of the Act before the Labour Appellate Tribunal the case of the appellant was that it had made out a prima facie case for permission to "dismiss" the respondent. This distinction sought to be drawn by MR. Sen is therefore of no consequence whatever and need not detain us any further.30. Mr. Sen also relied upon the circumstances that after the Labour Appellate Tribunal had on the ex parte hearing of the application under S. 22 of the Act granted to the appellant permission to terminate the service of the respondent on October 14, 1955, the appellant had implemented the same and by its notice dated November 11, 1955, actually terminated the service of the respondent offering him full retrenchment compensation. In so far as the appellant had acted upon such permission and implemented the same, it was contended, that the respondents service was irrevocably terminated and nothing more was to be done thereafter except the possible raising of an industrial dispute by the respondent on the score of his service having been wrongfully terminated. It was submitted that after such an irrevocable step had been taken by the appellant terminating the respondents service, the Labour Appellate Tribunal ought not to have reconsidered its decision and restored the application under S. 22 of the Act to its file and that the further decision of the Labour Appellate Tribunal had no effect so far as the actual termination of the service of the respondent was concerned. We do not propose to go into these interesting questions for the simple reason that the only question which arises for our consideration in this appeal is whether on the evidence led before it the decision of the Labour Appellate Tribunal dated May 11, 1956, dismissing the appellants application under S. 22 of the Act was correct. As a matter of fact no such contention had been urged by the appellant before the Labour Appellate Tribunal when it finally heard the application under S. 22 of the Act and the only point to which the attention of the Labour Appellate Tribunal was invited was whether the appellant had made out a prima facie case for the termination of the respondents service. Whatever rights and remedies are available to the appellant by reason of these circumstances may just as well be asserted by the appellant in appropriate proceedings which may be taken hereafter either at the instance of the appellant or the respondent. We are not at present concerned with the same.31. Under the circumstances, we are of opinion that the decision arrived at by the Labour Appellate Tribunal which is the subject-matter of appeal before us was correct.32. It is no doubt true that the Labour Appellate Tribunal recorded a finding in favour of the appellant that in terminating the service of the respondent as it did, the appellant was not guilty of any unfair labour practice nor was it actuated by any motive of victimization against the respondent. That finding, however, cannot help the appellant in so far as the Labour Appellate Tribunal held that the appellant had failed to make out a prima facie case for terminating the service of the respondent.
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11. Re: (i) it was contended that once the Labour Appellate Tribunal pronounced its order on October 14, 1955, it has become functus officio and thereafter it had no jurisdiction to review its own order. The circumstances, moreover, did not bring the application which was made by the respondent on December 6, 1955, strictly within the provisions of O. 47, R. 1 of the Code of Civil Procedure and no application for review could therefore be maintained.12. It is significant, however, to remember that the application made by the respondent on December 6, 1955, was an omnibus one and was intituled as one under O. 47 R. 1 of the Code of Civil Procedure for review; under O. 41, R. 21 of the Civil Procedure Code for restoration and under O. 9, R. 13 of the Code of Civil Procedure for setting aside the permission granted ex parte and to restore the respondent in his original position. The respondent evidently sought to rely upon one or the other of the provisions above set out in order to obtain the relief which he sought in that application.provision is analogous to that which is contained in S. 151 of the Code of Civil Procedure, which relates to the inherent powers of the Court and even apart from the applicability of O. 41 R. 21 of the Code of the Civil Procedure as hereinbefore set out it was open to the Labour Appellate Tribunal to pass the order which it did on March 6, 1956, as it was evidently necessary for the ends of justice or to prevent the abuse of the process of the Court.20.We are, therefore, of opinion that the Labour Appellate Tribunal had jurisdiction to set aside the ex parte order dated October 14, 1955, and restore the appellants application under S. 22 of the Act to its file. The contention of the appellant therefore is without any substance and must be negatived.Re: (ii) It was next contended that even though the Labour Appellate Tribunal had jurisdiction to hear an application under S. 22 of the Act it misconceived its jurisdiction and in the exercise of it, launched into an inquiry which it was not competent to do and erroneously came to the conclusion that the appellant had failed to make out a prima facie case for terminating the service of the respondent.We have, therefore, got to consider whether in the instant case a prima facie case was made out by the appellant for terminating the service of the respondent and whether in giving the notice dated November 11, 1955, terminating the respondents service the appellant was motivated by any unfair labour practice or victimization.Under the circumstances, we are of opinion that the decision arrived at by the Labour Appellate Tribunal which is the subject-matter of appeal before us was correct.32. It is no doubt true that the Labour Appellate Tribunal recorded a finding in favour of the appellant that in terminating the service of the respondent as it did, the appellant was not guilty of any unfair labour practice nor was it actuated by any motive of victimization against the respondent. That finding, however, cannot help the appellant in so far as the Labour Appellate Tribunal held that the appellant had failed to make out a prima facie case for terminating the service of the respondent.
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Lakshmi Amma & Another Vs. Talengalanarayana Bhatta & Another | to why they did not properly examine the mental condition of Narasimha Bhatta at the time he executed the document and that they had merely done the attestation and had never cared to ascertain whether the signature had been subscribed by the executant while he was of a sound disposing mind. Now, Dr. Ganessan was a consultant physician of the Nursing Home. He was quite guarded in his statement relating to the mental condition of Narasimha Bhatta because he stated that when he first examined him towards the end of 1955 in the village which was only a short time before he was taken to Mangalore Nursing Home he found him mentally alright to the best of his knowledge. He further stated that there was no reason to suspect any mental deformity in the executant at the time he attested the document. Dr. M. Subraya Prabhu C. W. 2 who was working as a doctor in the Nursing Home in 1955 deposed that case sheets were maintained in the hospital and that the case sheet relating to Narasimha Bhatta had been taken by Dr. U. P. Mallayya at the time the latter was examined as a witness. According to Dr. Parbhu Narasimha Bhatta would sometimes answer questions put to him and sometimes his wife used to answer the questions put by the doctor. The case sheets, if produced, would have shown what were the exact ailments from which Narasimha Bhatta was suffering when he was in the Nursing Home and what treatment was given to him under the directions of Dr. Ganessan who maintained that his suspicion was that a liver abscess had ruptured into the lung due to dysentery. In the absence of the record of the Nursing Home or any other record we find it difficult to accept what Dr. Ganessan has stated about the mental condition of Narasimha Bhatta at the time when the document Ext. B-3 was executed and registered. Dr. U. P. Mallayyas evidence was also not believed by the trial Court and after going through his evidence we are not satisfied that his statement could be relied upon with regard to the true condition, physical as well as mental, of Narasimha Bhatta at the time Ext. B-3 was executed.11. On behalf of the plaintiff certain doctors were produced. The trial Court had, while deciding the question whether the suit should be permitted to proceed in forma pauperis, recorded an order on March 15, 1957. In those proceedings Dr. Kambli had been examined as a witness. That doctor treated Narasimha Bhatta from March 6, 1956 to March 12, 1956 and he had issued a certificate Ext. A-1 wherein it was stated that Narasimha Bhatta was in a weak condition and was subject to loss of memory attended by mental derangement and dotage. The observation of the trial Court itself was that when Narasimha Bhatta, under its directions, was brought to the Court on March 11, 1957, he looked the blank and did not answer when the Court asked him what his name was. According to what Narasimha Bhatta stated he was 25 or 30 years of age, at that time. He could not tell the name of his wife and he was bodily carried by two persons to the judges chamber. It was, therefore, found that he was a person of weak mind and was incapable of making his own decisions and conducting his affairs. It may be that the condition of Narasimha Bhatta on March 11, 1957 may not throw much light on what his condition was in December 1955 but the evidence of Dr. Kambli who had examined him only a couple of months after the execution of the document shows that Narasimha Bhatta was suffering from various symptoms which are to be found in a case of advanced senility particularly when a person is also suffering from a disease like diabetes - a wasting disease.12. We are satisfied that Narasimha Bhatta who was of advanced age and was in a state of senility and who was suffering from diabetes and other ailments was taken by respondent No. 1 who had gone to reside in the house at Sodhankur village a little earlier in a taxi along with Lakshmiamma to the Nursing Home in Mangalore where he was got admitted as a patient. No draft was prepared with the approval or under the directions of Narasimha Bhatta nor were any instructions given by him to the Scribe in the matter of drawing up of the document Ext. B-3.An application was also made to the Joint Sub-Registrar, Mangalore for registering the document at the Nursing Home by someone whose name has not been disclosed nor has the application been produced to enable the Court to find out the reasons for which a prayer was made that the registration be done at the Nursing Home. Lakshmiamma the wife of Narasimha Bhatta who was the only other close relation present has stated in categorical terms that the document was got executed by using pressure on Narasimha Bhatta while he was of an infirm mind and was not in a fit condition to realize what he was doing. The hospital record was not produced nor did the doctor who attended on Narasimha Bhatta at the Nursing Home produce any authentic data or record to support their testimony. Even the will was not produced by respondent No. 1 presumably because it must have contained recitals about the weak state of health of Narasimha Bhatta. The dispositions which were made by Ext. B-3, as already pointed out before, were altogether unnatural and no valid reason or explanation has been given why Narasimha Bhatta should have given everything to respondent 1 and even deprived himself of the right to deal with the property as an owner during his lifetime.All these facts and circumstances raised a grave suspicion as to the genuineness of the execution of the document Ext. B-3 and it was for respondent No. 1 to dispel the same. | 0[ds]5. The first noticeable feature is that the deed of settlement on the face of it was an unnatural and unconscionable document.Narasimha Bhatta made negligible provision for his wife who was his third wife, the first two having died before he married her. She was left mainly to the mercy of respondent No. 1. Admittedly there was a residential house and no provision was made regarding her right to reside in that house till her death. Apparently there was no reason why he should have left nothing to his two daughters or to his otherand given his entire estate to only one grandson namely respondent No. 1.It would, therefore, appear that Narasimha Bhatta was not even consulted by the scribe nor was any draft made with his approval which was given to the scribe from which he prepared the document Ext.The trial Judge did not place any reliance and in our opinion rightly on the evidence of K. Shaik Ummar, D. W. 4, the Jointof Mangalore. His statement has not impressed us as reliable. He said that the wife of Narasimha Bhatta, namely, Lakshmiamma was present during the proceedings for registration and she raised no objection to the document being registered. He admitted that the hands of the executor were trembling at the time he appendedIn spite of a lengthynothing was brought out to show why this lady who is the grandmother of Respondent No. 1 and who would be expected to be impartial in the dispute between her children and grandchildren should prejure herself and make a false statement. It is true that she would be interested, to a certain extent, in getting the document cancelled or set aside but we see no reason to brush aside her statement with regard to the condition of Narasimha Bhatta at the time the document was executed and the circumstances in which it was got registered. It may be mentioned that the trial Court also relied on her evidence. We do not find any cogent or convincing reasons in the judgment of the High Court for disbelieving Lakshmiamma nor are we satisfied that the reasons given for accepting the evidence of Upendra Naik D. W. 5 and discarding the testimony of the Scribe C. W. 1 are satisfactory. It is also difficult to comprehend how the High Court thought that the terms of Ext.were not unconscionable enough as to raise a fair amount of suspicion in the matter. In view of the unnatural character of the dispositions made in Ext.coupled with the other facts and circumstances mentioned above the burden shifted to respondent No. 1 to establish that Ext.was executed by Narasimha Bhatta voluntarily and without any external pressure or influence while he was not of infirm mind and was fully aware of the dispositions or gifts which he was making in favour of respondent No.case sheets, if produced, would have shown what were the exact ailments from which Narasimha Bhatta was suffering when he was in the Nursing Home and what treatment was given to him under the directions of Dr. Ganessan who maintained that his suspicion was that a liver abscess had ruptured into the lung due to dysentery. In the absence of the record of the Nursing Home or any other record we find it difficult to accept what Dr. Ganessan has stated about the mental condition of Narasimha Bhatta at the time when the document Ext.was executed and registered. Dr. U. P. Mallayyas evidence was also not believed by the trial Court and after going through his evidence we are not satisfied that his statement could be relied upon with regard to the true condition, physical as well as mental, of Narasimha Bhatta at the time Ext.1. On behalf of the plaintiff certain doctors were produced.The trial Court had, while deciding the question whether the suit should be permitted to proceed in forma pauperis, recorded an order on March 15, 1957. In those proceedings Dr. Kambli had been examined as a witness. That doctor treated Narasimha Bhatta from March 6, 1956 to March 12, 1956 and he had issued a certificate Ext.wherein it was stated that Narasimha Bhatta was in a weak condition and was subject to loss of memory attended by mental derangement and dotage. The observation of the trial Court itself was that when Narasimha Bhatta, under its directions, was brought to the Court on March 11, 1957, he looked the blank and did not answer when the Court asked him what his name was. According to what Narasimha Bhatta stated he was 25 or 30 years of age, at that time. He could not tell the name of his wife and he was bodily carried by two persons to the judges chamber. It was, therefore, found that he was a person of weak mind and was incapable of making his own decisions and conducting his affairs. It may be that the condition of Narasimha Bhatta on March 11, 1957 may not throw much light on what his condition was in December 1955 but the evidence of Dr. Kambli who had examined him only a couple of months after the execution of the document shows that Narasimha Bhatta was suffering from various symptoms which are to be found in a case of advanced senility particularly when a person is also suffering from a disease like diabetesa wasting disease.12. We are satisfied that Narasimha Bhatta who was of advanced age and was in a state of senility and who was suffering from diabetes and other ailments was taken by respondent No. 1 who had gone to reside in the house at Sodhankur village a little earlier in a taxi along with Lakshmiamma to the Nursing Home in Mangalore where he was got admitted as a patient. No draft was prepared with the approval or under the directions of Narasimha Bhatta nor were any instructions given by him to the Scribe in the matter of drawing up of the document Ext.application was also made to the JointMangalore for registering the document at the Nursing Home by someone whose name has not been disclosed nor has the application been produced to enable the Court to find out the reasons for which a prayer was made that the registration be done at the Nursing Home. Lakshmiamma the wife of Narasimha Bhatta who was the only other close relation present has stated in categorical terms that the document was got executed by using pressure on Narasimha Bhatta while he was of an infirm mind and was not in a fit condition to realize what he was doing. The hospital record was not produced nor did the doctor who attended on Narasimha Bhatta at the Nursing Home produce any authentic data or record to support their testimony. Even the will was not produced by respondent No. 1 presumably because it must have contained recitals about the weak state of health of Narasimha Bhatta. The dispositions which were made by Ext.as already pointed out before, were altogether unnatural and no valid reason or explanation has been given why Narasimha Bhatta should have given everything to respondent 1 and even deprived himself of the right to deal with the property as an owner during his lifetime.All these facts and circumstances raised a grave suspicion as to the genuineness of the execution of the document Ext.and it was for respondent No. 1 to dispel the same. In our opinion he has entirely failed to do so with the result that the appeal must succeed and it is allowed with costs in this Court. | 0 | 3,784 | 1,326 | ### 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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to why they did not properly examine the mental condition of Narasimha Bhatta at the time he executed the document and that they had merely done the attestation and had never cared to ascertain whether the signature had been subscribed by the executant while he was of a sound disposing mind. Now, Dr. Ganessan was a consultant physician of the Nursing Home. He was quite guarded in his statement relating to the mental condition of Narasimha Bhatta because he stated that when he first examined him towards the end of 1955 in the village which was only a short time before he was taken to Mangalore Nursing Home he found him mentally alright to the best of his knowledge. He further stated that there was no reason to suspect any mental deformity in the executant at the time he attested the document. Dr. M. Subraya Prabhu C. W. 2 who was working as a doctor in the Nursing Home in 1955 deposed that case sheets were maintained in the hospital and that the case sheet relating to Narasimha Bhatta had been taken by Dr. U. P. Mallayya at the time the latter was examined as a witness. According to Dr. Parbhu Narasimha Bhatta would sometimes answer questions put to him and sometimes his wife used to answer the questions put by the doctor. The case sheets, if produced, would have shown what were the exact ailments from which Narasimha Bhatta was suffering when he was in the Nursing Home and what treatment was given to him under the directions of Dr. Ganessan who maintained that his suspicion was that a liver abscess had ruptured into the lung due to dysentery. In the absence of the record of the Nursing Home or any other record we find it difficult to accept what Dr. Ganessan has stated about the mental condition of Narasimha Bhatta at the time when the document Ext. B-3 was executed and registered. Dr. U. P. Mallayyas evidence was also not believed by the trial Court and after going through his evidence we are not satisfied that his statement could be relied upon with regard to the true condition, physical as well as mental, of Narasimha Bhatta at the time Ext. B-3 was executed.11. On behalf of the plaintiff certain doctors were produced. The trial Court had, while deciding the question whether the suit should be permitted to proceed in forma pauperis, recorded an order on March 15, 1957. In those proceedings Dr. Kambli had been examined as a witness. That doctor treated Narasimha Bhatta from March 6, 1956 to March 12, 1956 and he had issued a certificate Ext. A-1 wherein it was stated that Narasimha Bhatta was in a weak condition and was subject to loss of memory attended by mental derangement and dotage. The observation of the trial Court itself was that when Narasimha Bhatta, under its directions, was brought to the Court on March 11, 1957, he looked the blank and did not answer when the Court asked him what his name was. According to what Narasimha Bhatta stated he was 25 or 30 years of age, at that time. He could not tell the name of his wife and he was bodily carried by two persons to the judges chamber. It was, therefore, found that he was a person of weak mind and was incapable of making his own decisions and conducting his affairs. It may be that the condition of Narasimha Bhatta on March 11, 1957 may not throw much light on what his condition was in December 1955 but the evidence of Dr. Kambli who had examined him only a couple of months after the execution of the document shows that Narasimha Bhatta was suffering from various symptoms which are to be found in a case of advanced senility particularly when a person is also suffering from a disease like diabetes - a wasting disease.12. We are satisfied that Narasimha Bhatta who was of advanced age and was in a state of senility and who was suffering from diabetes and other ailments was taken by respondent No. 1 who had gone to reside in the house at Sodhankur village a little earlier in a taxi along with Lakshmiamma to the Nursing Home in Mangalore where he was got admitted as a patient. No draft was prepared with the approval or under the directions of Narasimha Bhatta nor were any instructions given by him to the Scribe in the matter of drawing up of the document Ext. B-3.An application was also made to the Joint Sub-Registrar, Mangalore for registering the document at the Nursing Home by someone whose name has not been disclosed nor has the application been produced to enable the Court to find out the reasons for which a prayer was made that the registration be done at the Nursing Home. Lakshmiamma the wife of Narasimha Bhatta who was the only other close relation present has stated in categorical terms that the document was got executed by using pressure on Narasimha Bhatta while he was of an infirm mind and was not in a fit condition to realize what he was doing. The hospital record was not produced nor did the doctor who attended on Narasimha Bhatta at the Nursing Home produce any authentic data or record to support their testimony. Even the will was not produced by respondent No. 1 presumably because it must have contained recitals about the weak state of health of Narasimha Bhatta. The dispositions which were made by Ext. B-3, as already pointed out before, were altogether unnatural and no valid reason or explanation has been given why Narasimha Bhatta should have given everything to respondent 1 and even deprived himself of the right to deal with the property as an owner during his lifetime.All these facts and circumstances raised a grave suspicion as to the genuineness of the execution of the document Ext. B-3 and it was for respondent No. 1 to dispel the same.
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false statement. It is true that she would be interested, to a certain extent, in getting the document cancelled or set aside but we see no reason to brush aside her statement with regard to the condition of Narasimha Bhatta at the time the document was executed and the circumstances in which it was got registered. It may be mentioned that the trial Court also relied on her evidence. We do not find any cogent or convincing reasons in the judgment of the High Court for disbelieving Lakshmiamma nor are we satisfied that the reasons given for accepting the evidence of Upendra Naik D. W. 5 and discarding the testimony of the Scribe C. W. 1 are satisfactory. It is also difficult to comprehend how the High Court thought that the terms of Ext.were not unconscionable enough as to raise a fair amount of suspicion in the matter. In view of the unnatural character of the dispositions made in Ext.coupled with the other facts and circumstances mentioned above the burden shifted to respondent No. 1 to establish that Ext.was executed by Narasimha Bhatta voluntarily and without any external pressure or influence while he was not of infirm mind and was fully aware of the dispositions or gifts which he was making in favour of respondent No.case sheets, if produced, would have shown what were the exact ailments from which Narasimha Bhatta was suffering when he was in the Nursing Home and what treatment was given to him under the directions of Dr. Ganessan who maintained that his suspicion was that a liver abscess had ruptured into the lung due to dysentery. In the absence of the record of the Nursing Home or any other record we find it difficult to accept what Dr. Ganessan has stated about the mental condition of Narasimha Bhatta at the time when the document Ext.was executed and registered. Dr. U. P. Mallayyas evidence was also not believed by the trial Court and after going through his evidence we are not satisfied that his statement could be relied upon with regard to the true condition, physical as well as mental, of Narasimha Bhatta at the time Ext.1. On behalf of the plaintiff certain doctors were produced.The trial Court had, while deciding the question whether the suit should be permitted to proceed in forma pauperis, recorded an order on March 15, 1957. In those proceedings Dr. Kambli had been examined as a witness. That doctor treated Narasimha Bhatta from March 6, 1956 to March 12, 1956 and he had issued a certificate Ext.wherein it was stated that Narasimha Bhatta was in a weak condition and was subject to loss of memory attended by mental derangement and dotage. The observation of the trial Court itself was that when Narasimha Bhatta, under its directions, was brought to the Court on March 11, 1957, he looked the blank and did not answer when the Court asked him what his name was. According to what Narasimha Bhatta stated he was 25 or 30 years of age, at that time. He could not tell the name of his wife and he was bodily carried by two persons to the judges chamber. It was, therefore, found that he was a person of weak mind and was incapable of making his own decisions and conducting his affairs. It may be that the condition of Narasimha Bhatta on March 11, 1957 may not throw much light on what his condition was in December 1955 but the evidence of Dr. Kambli who had examined him only a couple of months after the execution of the document shows that Narasimha Bhatta was suffering from various symptoms which are to be found in a case of advanced senility particularly when a person is also suffering from a disease like diabetesa wasting disease.12. We are satisfied that Narasimha Bhatta who was of advanced age and was in a state of senility and who was suffering from diabetes and other ailments was taken by respondent No. 1 who had gone to reside in the house at Sodhankur village a little earlier in a taxi along with Lakshmiamma to the Nursing Home in Mangalore where he was got admitted as a patient. No draft was prepared with the approval or under the directions of Narasimha Bhatta nor were any instructions given by him to the Scribe in the matter of drawing up of the document Ext.application was also made to the JointMangalore for registering the document at the Nursing Home by someone whose name has not been disclosed nor has the application been produced to enable the Court to find out the reasons for which a prayer was made that the registration be done at the Nursing Home. Lakshmiamma the wife of Narasimha Bhatta who was the only other close relation present has stated in categorical terms that the document was got executed by using pressure on Narasimha Bhatta while he was of an infirm mind and was not in a fit condition to realize what he was doing. The hospital record was not produced nor did the doctor who attended on Narasimha Bhatta at the Nursing Home produce any authentic data or record to support their testimony. Even the will was not produced by respondent No. 1 presumably because it must have contained recitals about the weak state of health of Narasimha Bhatta. The dispositions which were made by Ext.as already pointed out before, were altogether unnatural and no valid reason or explanation has been given why Narasimha Bhatta should have given everything to respondent 1 and even deprived himself of the right to deal with the property as an owner during his lifetime.All these facts and circumstances raised a grave suspicion as to the genuineness of the execution of the document Ext.and it was for respondent No. 1 to dispel the same. In our opinion he has entirely failed to do so with the result that the appeal must succeed and it is allowed with costs in this Court.
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Gurbaksh Singh Vs. Nikka Singh | of title, but contended himself to dispose of the appeal on the ground that the appellant purchased the land in good faith from Mula Singh. The question of title was, therefore, left open and the High Court was certainly within its right in giving its own finding thereon.6. The finding given by the learned District Judge that the appellant was a bona fide purchaser in good faith was not based on the evidence in the case, but was merely an ipse dixit. Nor did the District Judge consider the impact of the provisions of S. 41 of the Transfer of Property Act on the facts of the case. Such a finding arrived at without evidence and without applying the correct principles of law cannot obviously bind the High Court. Section 41 of the Transfer of Property Act reads:"Where, with the consent, express or implied, of the persons interested in immovable property a person in the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer has acted in good faith."7. The general rule is that a person cannot confer a better title than he has. This section is an exception to that rule. Being an exception the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. In this case the facts are tell tale and they establish beyond doubt that the appellant had the knowledge that the tilde of his transferor was in dispute and he had taken a risk in purchasing the same. The appellant and Mula Singh belong to the same village Kot Syed Mahmud. Mula Singh sold his property to the appellant on the very date on which he had to appear before the Revenue Authorities. Though the sale deed was executed on October 24, 1934 the consideration was actually paid only three years thereafter i.e. on October 22, 1937. The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to him in the property in dispute. These facts show that the appellant had knowledge of the defect in the title of Mulla Singh. It is, therefore, not possible to hold that he had purchased it in good faith. The High Court, having regard to the aforesaid circumstances, held that the appellant knew that the transaction was in respect of a property of which the title was extremely doubtful. There are no permissible grounds for challenging the correctness of that finding before us in an appeal under Art. 136 of the Constitution.8. Nor do we see any merits in the contention that no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that the conditions given in the section are not satisfied. Section 37 of the Punjab Land Revenue Act reads:"Entries in records-of-rights or in annual records, except entries made in annual records by patwaris under clause (a) of S. 35 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by-(a) making entires in accordance with facts proved or admitted to have occurred;(b) making such entires as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties.* * * * *"9. Section 44 says that an entry made in record-of-rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions that Chapter and the rules there under, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. If the entry No. 1490 substituting entry No. 960 had been made in strict compliance with S. 37 of the Punjab Land Revenue Act, it cannot be disputed that there will be a presumption that the new entry was lawfully substituted for the old. In that event the old entry should yield to the new entry. This presumption is no doubt rebuttable. There is force in the contention of learned counsel that Mula Singh, having parted with the interest in the property, could not have admitted the correctness of the new entry or agreed to have the old entry corrected in the manner done so as to mind a purchaser. But that contention does not avail him in the present case as we satisfied on a perusal of the record that mutation entry 1490 had been made in accordance with the facts proved before the Revenue Authorities.There were the following pieces of evidence before Revenue Authorities, among others : (1) evidence of Mula Singh; (2) the report of the Subordinate Revenue Officer with all the connected annexures, including Ex. D-6 wherein the terms of the partition were recited. On the said evidence the Revenue Authorities corrected the entry in the record in the manner they did. It must therefore, be held that the provisions of S. 37 (a) of the Punjab Land Revenue Act were satisfied. If so, there is a presumption that the later entry was correct. The appellant did not adduce any evidence to rebut the said presumption. On the other hand. Ex. D. 6, the application dated 20th April 1929, for mutation of names in the revenue record, signed by all the co-sharers contained the following recital :"Entries with respect to the following Khasra Nos. may be made in the revenue papers in the name of the Teja Singh, co-shares No-5 to the time of one share and Bhai Jhandha Singh co-sharer No-2, to the tune of seven shares : 324/3.16, 328/5.06 etc." | 1[ds]5. It is true that as early as 1931 the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact however gross the error may seem to be, and the said ruling has since been followed by all the courts in India and accepted by this Court in a number of decisions. But in this case the learned District Judge has not given any finding on the question of title, but contended himself to dispose of the appeal on the ground that the appellant purchased the land in good faith from Mula Singh. The question of title was, therefore, left open and the High Court was certainly within its right in giving its own finding thereon.6. The finding given by the learned District Judge that the appellant was a bona fide purchaser in good faith was not based on the evidence in the case, but was merely an ipse dixit. Nor did the District Judge consider the impact of the provisions of S. 41 of the Transfer of Property Act on the facts of the case. Such a finding arrived at without evidence and without applying the correct principles of law cannot obviously bind the High Court.The general rule is that a person cannot confer a better title than he has. This section is an exception to that rule. Being an exception the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. In this case the facts are tell tale and they establish beyond doubt that the appellant had the knowledge that the tilde of his transferor was in dispute and he had taken a risk in purchasing the same. The appellant and Mula Singh belong to the same village Kot Syed Mahmud. Mula Singh sold his property to the appellant on the very date on which he had to appear before the Revenue Authorities. Though the sale deed was executed on October 24, 1934 the consideration was actually paid only three years thereafter i.e. on October 22, 1937. The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to him in the property in dispute. These facts show that the appellant had knowledge of the defect in the title of Mulla Singh. It is, therefore, not possible to hold that he had purchased it in good faith. The High Court, having regard to the aforesaid circumstances, held that the appellant knew that the transaction was in respect of a property of which the title was extremely doubtful. There are no permissible grounds for challenging the correctness of that finding before us in an appeal under Art. 136 of the Constitution.8. Nor do we see any merits in the contention that no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that the conditions given in the section are notwere the following pieces of evidence before Revenue Authorities, among others : (1) evidence of Mula Singh; (2) the report of the Subordinate Revenue Officer with all the connected annexures, including Ex. D-6 wherein the terms of the partition were recited. On the said evidence the Revenue Authorities corrected the entry in the record in the manner they did. It must therefore, be held that the provisions of S. 37 (a) of the Punjab Land Revenue Act were satisfied. If so, there is a presumption that the later entry was correct. The appellant did not adduce any evidence to rebut the said presumption. | 1 | 2,399 | 683 | ### 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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of title, but contended himself to dispose of the appeal on the ground that the appellant purchased the land in good faith from Mula Singh. The question of title was, therefore, left open and the High Court was certainly within its right in giving its own finding thereon.6. The finding given by the learned District Judge that the appellant was a bona fide purchaser in good faith was not based on the evidence in the case, but was merely an ipse dixit. Nor did the District Judge consider the impact of the provisions of S. 41 of the Transfer of Property Act on the facts of the case. Such a finding arrived at without evidence and without applying the correct principles of law cannot obviously bind the High Court. Section 41 of the Transfer of Property Act reads:"Where, with the consent, express or implied, of the persons interested in immovable property a person in the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer has acted in good faith."7. The general rule is that a person cannot confer a better title than he has. This section is an exception to that rule. Being an exception the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. In this case the facts are tell tale and they establish beyond doubt that the appellant had the knowledge that the tilde of his transferor was in dispute and he had taken a risk in purchasing the same. The appellant and Mula Singh belong to the same village Kot Syed Mahmud. Mula Singh sold his property to the appellant on the very date on which he had to appear before the Revenue Authorities. Though the sale deed was executed on October 24, 1934 the consideration was actually paid only three years thereafter i.e. on October 22, 1937. The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to him in the property in dispute. These facts show that the appellant had knowledge of the defect in the title of Mulla Singh. It is, therefore, not possible to hold that he had purchased it in good faith. The High Court, having regard to the aforesaid circumstances, held that the appellant knew that the transaction was in respect of a property of which the title was extremely doubtful. There are no permissible grounds for challenging the correctness of that finding before us in an appeal under Art. 136 of the Constitution.8. Nor do we see any merits in the contention that no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that the conditions given in the section are not satisfied. Section 37 of the Punjab Land Revenue Act reads:"Entries in records-of-rights or in annual records, except entries made in annual records by patwaris under clause (a) of S. 35 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by-(a) making entires in accordance with facts proved or admitted to have occurred;(b) making such entires as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties.* * * * *"9. Section 44 says that an entry made in record-of-rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions that Chapter and the rules there under, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. If the entry No. 1490 substituting entry No. 960 had been made in strict compliance with S. 37 of the Punjab Land Revenue Act, it cannot be disputed that there will be a presumption that the new entry was lawfully substituted for the old. In that event the old entry should yield to the new entry. This presumption is no doubt rebuttable. There is force in the contention of learned counsel that Mula Singh, having parted with the interest in the property, could not have admitted the correctness of the new entry or agreed to have the old entry corrected in the manner done so as to mind a purchaser. But that contention does not avail him in the present case as we satisfied on a perusal of the record that mutation entry 1490 had been made in accordance with the facts proved before the Revenue Authorities.There were the following pieces of evidence before Revenue Authorities, among others : (1) evidence of Mula Singh; (2) the report of the Subordinate Revenue Officer with all the connected annexures, including Ex. D-6 wherein the terms of the partition were recited. On the said evidence the Revenue Authorities corrected the entry in the record in the manner they did. It must therefore, be held that the provisions of S. 37 (a) of the Punjab Land Revenue Act were satisfied. If so, there is a presumption that the later entry was correct. The appellant did not adduce any evidence to rebut the said presumption. On the other hand. Ex. D. 6, the application dated 20th April 1929, for mutation of names in the revenue record, signed by all the co-sharers contained the following recital :"Entries with respect to the following Khasra Nos. may be made in the revenue papers in the name of the Teja Singh, co-shares No-5 to the time of one share and Bhai Jhandha Singh co-sharer No-2, to the tune of seven shares : 324/3.16, 328/5.06 etc."
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5. It is true that as early as 1931 the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact however gross the error may seem to be, and the said ruling has since been followed by all the courts in India and accepted by this Court in a number of decisions. But in this case the learned District Judge has not given any finding on the question of title, but contended himself to dispose of the appeal on the ground that the appellant purchased the land in good faith from Mula Singh. The question of title was, therefore, left open and the High Court was certainly within its right in giving its own finding thereon.6. The finding given by the learned District Judge that the appellant was a bona fide purchaser in good faith was not based on the evidence in the case, but was merely an ipse dixit. Nor did the District Judge consider the impact of the provisions of S. 41 of the Transfer of Property Act on the facts of the case. Such a finding arrived at without evidence and without applying the correct principles of law cannot obviously bind the High Court.The general rule is that a person cannot confer a better title than he has. This section is an exception to that rule. Being an exception the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. In this case the facts are tell tale and they establish beyond doubt that the appellant had the knowledge that the tilde of his transferor was in dispute and he had taken a risk in purchasing the same. The appellant and Mula Singh belong to the same village Kot Syed Mahmud. Mula Singh sold his property to the appellant on the very date on which he had to appear before the Revenue Authorities. Though the sale deed was executed on October 24, 1934 the consideration was actually paid only three years thereafter i.e. on October 22, 1937. The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to him in the property in dispute. These facts show that the appellant had knowledge of the defect in the title of Mulla Singh. It is, therefore, not possible to hold that he had purchased it in good faith. The High Court, having regard to the aforesaid circumstances, held that the appellant knew that the transaction was in respect of a property of which the title was extremely doubtful. There are no permissible grounds for challenging the correctness of that finding before us in an appeal under Art. 136 of the Constitution.8. Nor do we see any merits in the contention that no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that the conditions given in the section are notwere the following pieces of evidence before Revenue Authorities, among others : (1) evidence of Mula Singh; (2) the report of the Subordinate Revenue Officer with all the connected annexures, including Ex. D-6 wherein the terms of the partition were recited. On the said evidence the Revenue Authorities corrected the entry in the record in the manner they did. It must therefore, be held that the provisions of S. 37 (a) of the Punjab Land Revenue Act were satisfied. If so, there is a presumption that the later entry was correct. The appellant did not adduce any evidence to rebut the said presumption.
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Union of India and Ors Vs. Kulbeer Singh | absence over a period of 302 days without leave; while the second count related to the loss of certain equipment and clothing. The respondent pleaded guilty to the two charges. In his statement before the Summary Court Martial, the respondent stated thus:?14. I No 6492086-A Sep/ASH Kulbeer Singh of 874 AT Bn ASC att with HQ Wing, ASC Centre (North) was enrolled in the Army on 25 Apr 1996. I belong to Vill – Sampla Begampur, PO – Sarsawa, PS – Nakur, Teh – Nakur, Distt – Saharanpur, State – UP. My family consists of my father aged 55 yrs, mother aged 52 yrs, wife aged 29 yrs and son aged 3 yrs. 15. I was posted to 874 AT Bn ASC from 514 ASC Bn during Nov 2007. During my preparatory leave I went to my house. On reaching home, I cam to know that my uncle had taken possession of my old house. The matter was reported to Village Sarpanch & Tehsildar. Tehsildar investigated the matter & the house was recovered from my uncle and handed over to my father. Thereafter I reported at HQ Wing on 18 Sep 2008 afternoon after being absent for 302 days. 16. I was found to be deficient of clothing and equipment items for Rs.2265/- (Rupees two thousand two hundred sixty five only) as mentioned in the kit deficiency list att as Appx to IAFD-918 (Annexure – II produced by Prosecution Witness No.2). 17. The above statement has been read over to me in the language (Hindi). I understand better and sign it as correct in the presence of independent witness.?4. The Summary Court Martial found the respondent guilty and sentenced him to dismissal from service. 5. The respondent submitted a petition under Section 164 of the Army Act on 17 May 2010, which was rejected by the GOC, Madhya Pradesh Area on 13 April 2011. The respondent challenged his conviction and dismissal from service before the Armed Forces Tribunal at its Regional Bench in Lucknow. By an order dated 21 August 2015, the Tribunal came to the conclusion that the finding arrived at by the Summary Court Martial was correct, but that the sentence of dismissal was disproportionate. The Tribunal noted that in his twelve years of service, the respondent had been punished in 2007 for having overstayed his leave by 140 days and this was his second infraction. In the view of the Tribunal, the punishment could have been modulated so as to allow the respondent to continue to serve the Army until he qualified for pension. The Tribunal found that the punishment which was awarded to the respondent was disproportionate having regard to his service of twelve years and, accordingly, issued the following directions:?20. Accordingly, the O.A. is only partly allowed. While affirming the Summary Court Martial proceedings and the Attachment Order to be a valid, we direct that the punishment of dismissal be hereby quashed. The petitioner will be deemed to be notionally in service w.e.f. 12.11.2008 till he attains the service which entitles him to receive pension and thereafter he shall be granted pension with all consequential benefits. We clarify that the petitioner shall not be paid salary during the period of notional service. No order as to costs.?6. Assailing the aforesaid directions, the Union of India is in appeal. 7. Ms. Madhavi Divan, learned Additional Solicitor General along with Ms. Rukhmini Bobde, learned counsel appearing for the appellants, submitted that the respondent had duly admitted the charge of misconduct. The Tribunal specifically found no reason to interfere with the finding of the Summary Court Martial. Once this was duly established, there was no justification for the Tribunal to hold that the punishment was disproportionate, considering the fact that there was an unauthorized absence of 302 days by a member of the Armed Force. 8. Two submissions were urged on behalf of the respondent. Firstly, it was submitted that Section 39 of the Army Act, 1950 provides that on conviction by a Court Martial, a person who has committed an offence inter alia of overstaying the leave granted shall be liable to suffer imprisonment for a term which may extend to three years or such lesser punishment as may be mentioned in the Act. In the present case, it was, hence, urged that instead of subjecting the respondent to a term of imprisonment under Section 39, he was dismissed from service. Secondly, it was submitted that if the statement of the respondent is duly construed, it would be incorrect to hold that he had admitted the charge of misconduct. 9. We do not find any merit in the first submission. Section 39 of the Army Act, 1950 is comprised in Chapter VI which deals with ?Offences?. Section 39 provides that on a conviction by Court Martial for an offence involving absence without leave, a sentence of imprisonment which may extend up to three years may be imposed. Chapter VII which deals with ?Punishments? contains Section 71. Clause (e) of Section 71 specifically contemplates the punishment of dismissal from service on conviction by Court Martials. Hence, we find no merit in the first submission. 10. Insofar as the second submission is concerned, it is evident from the statement, which was extracted earlier, that the respondent had admitted his absence for 302 days without leave. The statement contains a justification for the absence. From the record, it is evident that the respondent did not make any effort to apply for extension of his leave. Absence of 302 days from his duty by a member of the Armed Force could not be condoned. We are clearly of the view that the Armed Forces Tribunal was in error in coming to the conclusion that the punishment which was imposed was harsh. The only basis for the finding was that the respondent had put in twelve years of service. This was all the more a reason why any responsible member of the Armed Force should not have absented from service without permission. | 0[ds]9. We do not find any merit in the first submission. Section 39 of the Army Act, 1950 is comprised in Chapter VI which deals with ?Offences?. Section 39 provides that on a conviction by Court Martial for an offence involving absence without leave, a sentence of imprisonment which may extend up to three years may be imposed. Chapter VII which deals with ?Punishments? contains Section 71. Clause (e) of Section 71 specifically contemplates the punishment of dismissal from service on conviction by Court Martials. Hence, we find no merit in the first submission.Insofar as the second submission is concerned, it is evident from the statement, which was extracted earlier, that the respondent had admitted his absence for 302 days without leave. The statement contains a justification for the absence. From the record, it is evident that the respondent did not make any effort to apply for extension of his leave. Absence of 302 days from his duty by a member of the Armed Force could not be condoned. We are clearly of the view that the Armed Forces Tribunal was in error in coming to the conclusion that the punishment which was imposed was harsh. The only basis for the finding was that the respondent had put in twelve years of service. This was all the more a reason why any responsible member of the Armed Force should not have absented from service without permission. | 0 | 1,292 | 266 | ### Instruction:
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absence over a period of 302 days without leave; while the second count related to the loss of certain equipment and clothing. The respondent pleaded guilty to the two charges. In his statement before the Summary Court Martial, the respondent stated thus:?14. I No 6492086-A Sep/ASH Kulbeer Singh of 874 AT Bn ASC att with HQ Wing, ASC Centre (North) was enrolled in the Army on 25 Apr 1996. I belong to Vill – Sampla Begampur, PO – Sarsawa, PS – Nakur, Teh – Nakur, Distt – Saharanpur, State – UP. My family consists of my father aged 55 yrs, mother aged 52 yrs, wife aged 29 yrs and son aged 3 yrs. 15. I was posted to 874 AT Bn ASC from 514 ASC Bn during Nov 2007. During my preparatory leave I went to my house. On reaching home, I cam to know that my uncle had taken possession of my old house. The matter was reported to Village Sarpanch & Tehsildar. Tehsildar investigated the matter & the house was recovered from my uncle and handed over to my father. Thereafter I reported at HQ Wing on 18 Sep 2008 afternoon after being absent for 302 days. 16. I was found to be deficient of clothing and equipment items for Rs.2265/- (Rupees two thousand two hundred sixty five only) as mentioned in the kit deficiency list att as Appx to IAFD-918 (Annexure – II produced by Prosecution Witness No.2). 17. The above statement has been read over to me in the language (Hindi). I understand better and sign it as correct in the presence of independent witness.?4. The Summary Court Martial found the respondent guilty and sentenced him to dismissal from service. 5. The respondent submitted a petition under Section 164 of the Army Act on 17 May 2010, which was rejected by the GOC, Madhya Pradesh Area on 13 April 2011. The respondent challenged his conviction and dismissal from service before the Armed Forces Tribunal at its Regional Bench in Lucknow. By an order dated 21 August 2015, the Tribunal came to the conclusion that the finding arrived at by the Summary Court Martial was correct, but that the sentence of dismissal was disproportionate. The Tribunal noted that in his twelve years of service, the respondent had been punished in 2007 for having overstayed his leave by 140 days and this was his second infraction. In the view of the Tribunal, the punishment could have been modulated so as to allow the respondent to continue to serve the Army until he qualified for pension. The Tribunal found that the punishment which was awarded to the respondent was disproportionate having regard to his service of twelve years and, accordingly, issued the following directions:?20. Accordingly, the O.A. is only partly allowed. While affirming the Summary Court Martial proceedings and the Attachment Order to be a valid, we direct that the punishment of dismissal be hereby quashed. The petitioner will be deemed to be notionally in service w.e.f. 12.11.2008 till he attains the service which entitles him to receive pension and thereafter he shall be granted pension with all consequential benefits. We clarify that the petitioner shall not be paid salary during the period of notional service. No order as to costs.?6. Assailing the aforesaid directions, the Union of India is in appeal. 7. Ms. Madhavi Divan, learned Additional Solicitor General along with Ms. Rukhmini Bobde, learned counsel appearing for the appellants, submitted that the respondent had duly admitted the charge of misconduct. The Tribunal specifically found no reason to interfere with the finding of the Summary Court Martial. Once this was duly established, there was no justification for the Tribunal to hold that the punishment was disproportionate, considering the fact that there was an unauthorized absence of 302 days by a member of the Armed Force. 8. Two submissions were urged on behalf of the respondent. Firstly, it was submitted that Section 39 of the Army Act, 1950 provides that on conviction by a Court Martial, a person who has committed an offence inter alia of overstaying the leave granted shall be liable to suffer imprisonment for a term which may extend to three years or such lesser punishment as may be mentioned in the Act. In the present case, it was, hence, urged that instead of subjecting the respondent to a term of imprisonment under Section 39, he was dismissed from service. Secondly, it was submitted that if the statement of the respondent is duly construed, it would be incorrect to hold that he had admitted the charge of misconduct. 9. We do not find any merit in the first submission. Section 39 of the Army Act, 1950 is comprised in Chapter VI which deals with ?Offences?. Section 39 provides that on a conviction by Court Martial for an offence involving absence without leave, a sentence of imprisonment which may extend up to three years may be imposed. Chapter VII which deals with ?Punishments? contains Section 71. Clause (e) of Section 71 specifically contemplates the punishment of dismissal from service on conviction by Court Martials. Hence, we find no merit in the first submission. 10. Insofar as the second submission is concerned, it is evident from the statement, which was extracted earlier, that the respondent had admitted his absence for 302 days without leave. The statement contains a justification for the absence. From the record, it is evident that the respondent did not make any effort to apply for extension of his leave. Absence of 302 days from his duty by a member of the Armed Force could not be condoned. We are clearly of the view that the Armed Forces Tribunal was in error in coming to the conclusion that the punishment which was imposed was harsh. The only basis for the finding was that the respondent had put in twelve years of service. This was all the more a reason why any responsible member of the Armed Force should not have absented from service without permission.
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9. We do not find any merit in the first submission. Section 39 of the Army Act, 1950 is comprised in Chapter VI which deals with ?Offences?. Section 39 provides that on a conviction by Court Martial for an offence involving absence without leave, a sentence of imprisonment which may extend up to three years may be imposed. Chapter VII which deals with ?Punishments? contains Section 71. Clause (e) of Section 71 specifically contemplates the punishment of dismissal from service on conviction by Court Martials. Hence, we find no merit in the first submission.Insofar as the second submission is concerned, it is evident from the statement, which was extracted earlier, that the respondent had admitted his absence for 302 days without leave. The statement contains a justification for the absence. From the record, it is evident that the respondent did not make any effort to apply for extension of his leave. Absence of 302 days from his duty by a member of the Armed Force could not be condoned. We are clearly of the view that the Armed Forces Tribunal was in error in coming to the conclusion that the punishment which was imposed was harsh. The only basis for the finding was that the respondent had put in twelve years of service. This was all the more a reason why any responsible member of the Armed Force should not have absented from service without permission.
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Central Bureau of Investigation Vs. A. Ravishankar Prasad & Others | shut the mouth of the prosecution from adducing evidence against this accused. Thus, I do not like to pass any order in favour of the accused. The prayer for discharge of accused no. 7, Rumi Dhar stands rejected. Let the case proceed. Fix 7.2.07 for consideration of charge. The sureties must produce all the accused persons on that date." 35. The facts of the instant case are quite akin to Rumi Dhar (supra)s case. In the instant case, the charge-sheet clearly reveal substantial material on record making a clear case under section 120-B read with section 420 IPC against the respondents and their connivance with the bank officials. 36. The High Court in the impugned judgment has misunderstood and misapplied the ratio of the three-Judge Bench of this court in Inder Mohan Goswami & Anr. V. State of Uttarachal & Ors. 2007(12) SCALE 15 to the facts of this case. One of us (Bhandari, J.) was the author of the said judgment. The ratio of the said judgment is in para 24 at page 25 which reads as under:- "Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute." 37. The court in para 27 also observed that inherent power should not be exercised to stifle a legitimate prosecution. 38. Let us consider the facts of this case and apply the ratio of Goswamis case (supra) where facts are as follows:- (I) allegations are that accused have committed serious offences such as forgery, fabrication of documents and used those documents as genuine; (II) allegations are that accused/respondents herein, A. Ravishankar Prasad and A. Manohar Prasad have entered into a conspiracy with the Chairman and Managing Director and other officials of the Indian Bank, Chennai with the object of cheating the Indian Bank in the matter of recommending, sanctioning, disbursing huge credit facilities running over hundreds of crores. (III) Trial of all four cases are at advanced stage in which 92 witnesses have already been examined. 39. While applying the ratio of Goswamis case (supra), how any court in its legitimate exercise of power under section 482 Cr.P.C. quash the proceedings against accused A. Ravishankar Prasad and A. Manohar Prasad in the face of aforesaid allegations. In the instant case, wrong application of the ratio of the said judgment has led to grave miscarriage of justice. 40. Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would entirely depend on the facts and circumstances of the each case. The object incorporating inherent powers in the Code is to prevent abuse of the process of the court or to secure ends of justice.41. Both English and the Indian courts have consistently taken the view that the inherent powers can be exercised in those exceptional cases where the allegations made in the first information report or the complaint, even if are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.42. When we apply the settled legal position to the facts of this case it is not possible to conclude that the complaint and charge-sheet prima facie do not constitute any offence against the respondents. It is also not possible to conclude that material on record taken on face value make out no case under section 120-B read with section 420 IPC against the respondents. Prima facie, we are of the opinion that this is one case where adequate material is available on record to proceed against the respondents.43. In our considered view it was extremely unfortunate that the High Court in the impugned judgment has erroneously invoked inherent power of the court under section 482 of the Code of Criminal Procedure. The High Court ought to have considered the entire material available to establish a case against the respondents under section 120-B read with section 420 IPC. It is significant that the respondents and the other bank officials share the charges under section 120-B read with section 420 IPC. Quashing the charges against the respondents would also have very serious repercussions on the pending cases against the other bank officials.44. In four cases, 92 witnesses have already been examined. The trial of the case was at the advanced stage. At this sage, the High Court has seriously erred in quashing the charges against respondent nos.1 and 2.45. Quashing the proceedings at that stage was clearly an abuse of the process of the court. The court neither considered the entire material nor appreciated the legal position in proper perspective. The impugned judgment is wholly unsustainable in law and is accordingly set aside. Unfortunately, because of unnecessary interference by the High Court under section 482 Cr.P.C. the trial of this case could not be completed and concluded.46. Before parting with the case we would like to observe that mere re-payment of loan under a settlement cannot exempt the accused from the criminal proceeding in the facts of this case.47. We would like to observe that any observations made in this case have been made to decide the present case. The trial court may decide the case without being influenced by any observations made by this court.48. In this view of the fact, in the interest of justice we direct that the trial be now completed as expeditiously as possible. The trial court is directed to conduct the trial on day to day basis and parties are directed to cooperate with the trial court. The trial court shall ensure that unnecessary adjournments be avoided and trial be concluded as expeditiously as possible. | 1[ds]15. Undoubtedly, the High Court possesses inherent powers under section 482 of the Code of Criminal Procedure. These inherent powers of the High Court are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court.The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to ensure that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the 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 such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down with regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would entirely depend on the facts and circumstances of the each case. The object incorporating inherent powers in the Code is to prevent abuse of the process of the court or to secure ends of justice.41. Both English and the Indian courts have consistently taken the view that the inherent powers can be exercised in those exceptional cases where the allegations made in the first information report or the complaint, even if are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.42. When we apply the settled legal position to the facts of this case it is not possible to conclude that the complaint and charge-sheet prima facie do not constitute any offence against the respondents. It is also not possible to conclude that material on record taken on face value make out no case under section 120-B read with section 420 IPC against the respondents. Prima facie, we are of the opinion that this is one case where adequate material is available on record to proceed against the respondents.43. In our considered view it was extremely unfortunate that the High Court in the impugned judgment has erroneously invoked inherent power of the court under section 482 of the Code of Criminal Procedure. The High Court ought to have considered the entire material available to establish a case against the respondents under section 120-B read with section 420 IPC. It is significant that the respondents and the other bank officials share the charges under section 120-B read with section 420 IPC. Quashing the charges against the respondents would also have very serious repercussions on the pending cases against the other bank officials.44. In four cases, 92 witnesses have already been examined. The trial of the case was at the advanced stage. At this sage, the High Court has seriously erred in quashing the charges against respondent nos.1 and 2.45. Quashing the proceedings at that stage was clearly an abuse of the process of the court. The court neither considered the entire material nor appreciated the legal position in proper perspective. The impugned judgment is wholly unsustainable in law and is accordingly set aside. Unfortunately, because of unnecessary interference by the High Court under section 482 Cr.P.C. the trial of this case could not be completed and concluded.46. Before parting with the case we would like to observe that mere re-payment of loan under a settlement cannot exempt the accused from the criminal proceeding in the facts of this case.47. We would like to observe that any observations made in this case have been made to decide the present case. The trial court may decide the case without being influenced by any observations made by this court.48. In this view of the fact, in the interest of justice we direct that the trial be now completed as expeditiously as possible. The trial court is directed to conduct the trial on day to day basis and parties are directed to cooperate with the trial court. The trial court shall ensure that unnecessary adjournments be avoided and trial be concluded as expeditiously as possible. | 1 | 5,369 | 798 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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shut the mouth of the prosecution from adducing evidence against this accused. Thus, I do not like to pass any order in favour of the accused. The prayer for discharge of accused no. 7, Rumi Dhar stands rejected. Let the case proceed. Fix 7.2.07 for consideration of charge. The sureties must produce all the accused persons on that date." 35. The facts of the instant case are quite akin to Rumi Dhar (supra)s case. In the instant case, the charge-sheet clearly reveal substantial material on record making a clear case under section 120-B read with section 420 IPC against the respondents and their connivance with the bank officials. 36. The High Court in the impugned judgment has misunderstood and misapplied the ratio of the three-Judge Bench of this court in Inder Mohan Goswami & Anr. V. State of Uttarachal & Ors. 2007(12) SCALE 15 to the facts of this case. One of us (Bhandari, J.) was the author of the said judgment. The ratio of the said judgment is in para 24 at page 25 which reads as under:- "Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute." 37. The court in para 27 also observed that inherent power should not be exercised to stifle a legitimate prosecution. 38. Let us consider the facts of this case and apply the ratio of Goswamis case (supra) where facts are as follows:- (I) allegations are that accused have committed serious offences such as forgery, fabrication of documents and used those documents as genuine; (II) allegations are that accused/respondents herein, A. Ravishankar Prasad and A. Manohar Prasad have entered into a conspiracy with the Chairman and Managing Director and other officials of the Indian Bank, Chennai with the object of cheating the Indian Bank in the matter of recommending, sanctioning, disbursing huge credit facilities running over hundreds of crores. (III) Trial of all four cases are at advanced stage in which 92 witnesses have already been examined. 39. While applying the ratio of Goswamis case (supra), how any court in its legitimate exercise of power under section 482 Cr.P.C. quash the proceedings against accused A. Ravishankar Prasad and A. Manohar Prasad in the face of aforesaid allegations. In the instant case, wrong application of the ratio of the said judgment has led to grave miscarriage of justice. 40. Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would entirely depend on the facts and circumstances of the each case. The object incorporating inherent powers in the Code is to prevent abuse of the process of the court or to secure ends of justice.41. Both English and the Indian courts have consistently taken the view that the inherent powers can be exercised in those exceptional cases where the allegations made in the first information report or the complaint, even if are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.42. When we apply the settled legal position to the facts of this case it is not possible to conclude that the complaint and charge-sheet prima facie do not constitute any offence against the respondents. It is also not possible to conclude that material on record taken on face value make out no case under section 120-B read with section 420 IPC against the respondents. Prima facie, we are of the opinion that this is one case where adequate material is available on record to proceed against the respondents.43. In our considered view it was extremely unfortunate that the High Court in the impugned judgment has erroneously invoked inherent power of the court under section 482 of the Code of Criminal Procedure. The High Court ought to have considered the entire material available to establish a case against the respondents under section 120-B read with section 420 IPC. It is significant that the respondents and the other bank officials share the charges under section 120-B read with section 420 IPC. Quashing the charges against the respondents would also have very serious repercussions on the pending cases against the other bank officials.44. In four cases, 92 witnesses have already been examined. The trial of the case was at the advanced stage. At this sage, the High Court has seriously erred in quashing the charges against respondent nos.1 and 2.45. Quashing the proceedings at that stage was clearly an abuse of the process of the court. The court neither considered the entire material nor appreciated the legal position in proper perspective. The impugned judgment is wholly unsustainable in law and is accordingly set aside. Unfortunately, because of unnecessary interference by the High Court under section 482 Cr.P.C. the trial of this case could not be completed and concluded.46. Before parting with the case we would like to observe that mere re-payment of loan under a settlement cannot exempt the accused from the criminal proceeding in the facts of this case.47. We would like to observe that any observations made in this case have been made to decide the present case. The trial court may decide the case without being influenced by any observations made by this court.48. In this view of the fact, in the interest of justice we direct that the trial be now completed as expeditiously as possible. The trial court is directed to conduct the trial on day to day basis and parties are directed to cooperate with the trial court. The trial court shall ensure that unnecessary adjournments be avoided and trial be concluded as expeditiously as possible.
### Response:
1
### Explanation:
15. Undoubtedly, the High Court possesses inherent powers under section 482 of the Code of Criminal Procedure. These inherent powers of the High Court are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court.The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to ensure that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the 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 such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down with regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would entirely depend on the facts and circumstances of the each case. The object incorporating inherent powers in the Code is to prevent abuse of the process of the court or to secure ends of justice.41. Both English and the Indian courts have consistently taken the view that the inherent powers can be exercised in those exceptional cases where the allegations made in the first information report or the complaint, even if are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.42. When we apply the settled legal position to the facts of this case it is not possible to conclude that the complaint and charge-sheet prima facie do not constitute any offence against the respondents. It is also not possible to conclude that material on record taken on face value make out no case under section 120-B read with section 420 IPC against the respondents. Prima facie, we are of the opinion that this is one case where adequate material is available on record to proceed against the respondents.43. In our considered view it was extremely unfortunate that the High Court in the impugned judgment has erroneously invoked inherent power of the court under section 482 of the Code of Criminal Procedure. The High Court ought to have considered the entire material available to establish a case against the respondents under section 120-B read with section 420 IPC. It is significant that the respondents and the other bank officials share the charges under section 120-B read with section 420 IPC. Quashing the charges against the respondents would also have very serious repercussions on the pending cases against the other bank officials.44. In four cases, 92 witnesses have already been examined. The trial of the case was at the advanced stage. At this sage, the High Court has seriously erred in quashing the charges against respondent nos.1 and 2.45. Quashing the proceedings at that stage was clearly an abuse of the process of the court. The court neither considered the entire material nor appreciated the legal position in proper perspective. The impugned judgment is wholly unsustainable in law and is accordingly set aside. Unfortunately, because of unnecessary interference by the High Court under section 482 Cr.P.C. the trial of this case could not be completed and concluded.46. Before parting with the case we would like to observe that mere re-payment of loan under a settlement cannot exempt the accused from the criminal proceeding in the facts of this case.47. We would like to observe that any observations made in this case have been made to decide the present case. The trial court may decide the case without being influenced by any observations made by this court.48. In this view of the fact, in the interest of justice we direct that the trial be now completed as expeditiously as possible. The trial court is directed to conduct the trial on day to day basis and parties are directed to cooperate with the trial court. The trial court shall ensure that unnecessary adjournments be avoided and trial be concluded as expeditiously as possible.
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The Income Tax Officer Vs. Arvind N. Mafatlal | S. 23A among the shareholders of the company notices were issued to the four partners under S.34 of the income-tax Act. In response to the notice the partners appeared and it was stated in their behalf that the 40 shares held by three of the partners in the company were in fact the property of the Registered firm and were held by them benami for the firm This contention was accepted by the Income-tax Officer who thereupon treated the dividend attributable to the 40 shares as the dividend-income of the firm and proceeded to apportion the said income among the four partners in the proportion of the shares which each of them held in the firm and add this to the income already assessed. In doing so however, the Income-tax Officer committed an error. In recomputing the total income of each of these four assessees he included only the net dividend "deemed to be received by each but as against this addition he allowed a deduction of the tax paid by the company attributable to such dividend. There was no appeal against these assessment orders which became final. Subsequently this mistake was discovered and thereupon the Income-tax Officer issued notices to the four partners on April 13, 1954. pointing out the error in including in the income the net dividend without being grossed up, while at the same time allowing credit for the tax deemed to have been paid thereon. He averred that this was a mistake apparent from the records and stated that he intended to rectify the same under S.35 of the Income-tax Act. The four assessees objected to the rectification, but almost the entirety of the grounds on which the objection was based related to the legality of the original assessment and the assessees desired that if any rectification was to be made it must be in relation to those items and not in regard to that for which notice had been served. The Income-tax Officer by his order dated October 12,1955, rectified the assessment by grossing up the newly added dividend-income by the addition of the tax deemed to have been paid by the company thereon and retained the original relief granted under S. 18(5) of the Act. After unsuccessfully appealing to the higher authorities for relief against this rectification the assessees filed writ petitions invoking the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution for prohibiting the authorities from taking proceedings for the enforcement of the orders dated October 12, 1955. The learned Judges allowed the petitions. The Income-tax Officer thereafter moved the High Court for certificates of fitness under Art. 133(1)(c) and these having been granted the appeals are now before us.3. The ground upon which the learned Judges granted the relief to the respondents was briefly this. The order of assessment had proceeded on the basis that the firm of Mafatlal Gagalbhai and Sons was the share-holder who had been in receipt of the dividend- income and the individual partners of the firm had been made liable for their share of the profits derived from this registered firm. In such circumstances the learned Judges held that what was distributed to the individual partners could not be deemed to be dividend-income within S.16(2) of the Income-tax Act. It is to test the correctness of this construction of S.16(2) that these appeals have been preferred.4. In our opinion, however, the appeals have to be dismissed on a short ground which does not involve any consideration of the correctness of the construction adopted by the High Court, of S.16 (2) of the Income-tax Act. This Court has held in Messrs. Howrah Trading Co., Ltd. v. Commissioner of Income-tax, Calcutta, 1959 Sup (2) SCR 448: (AIR 1959 SC 775 ) that it is only the registered shareholder who is entitled to the benefit of the credit for tax paid by the company under S.18 (5) as well as the corresponding grossing up under S.16 (2). On that basis the only persons who were entitled to be treated as shareholders to whom the provisions of Ss. 16(2) and 18(5) of the Income-tax Act were attracted were the three partners in whose names the 40 shares stood registered, as detailed earlier. An error had therefore been committed by the Income-tax Officer in treating the registered firm as the owner of the shares in respect of the entire number of 40 shares. It was not this initial and fundamental error that was sought to be rectified by the proceedings under S.35; but the removal of an anomaly in that error which continued to be affirmed; in other words the object of the proceedings under S.35 was to carry out to its logical conclusion the error which had been committed in the order of assessment dated October 12, 1955 passed after invoking the provisions of S. 34.We consider the submission of learned Counsel for the respondents that the Income-tax Officer had jurisdiction under S.35 to rectify errors but not to effect merely readjustment so as to avoid illogicalities in an error which is still permitted to continue is well-founded.5. It has further to be mentioned that it is not possible to correct the initial error in these proceedings because the notice under S.35 which is the foundation of the jurisdiction of the officer to effect the rectification, sought in reality slot the correction of the error but the perpetuation of it though in an altered and less objectionable form from the point of view of Revenue. In this connection it would be noticed that one of the four partners- Yoginder Mafatlal had no shares standing in his name and by the order of assessment under S.34 he had been saddled with a liability to the extent of his 3/16th share in the firm, though this has been partially offset by the credit given to him obviously wrongly, of relief under S. 18(5) of the tax deemed to have been paid by the company on that income. | 0[ds]4. In our opinion, however, the appeals have to be dismissed on a short ground which does not involve any consideration of the correctness of the construction adopted by the High Court, of S.16 (2) of the Income-taxCourt has held in Messrs. Howrah Trading Co., Ltd. v. Commissioner of Income-tax, Calcutta, 1959 Sup (2) SCR 448: (AIR 1959 SC 775 ) that it is only the registered shareholder who is entitled to the benefit of the credit for tax paid by the company under S.18 (5) as well as the corresponding grossing up under S.16 (2). On that basis the only persons who were entitled to be treated as shareholders to whom the provisions of Ss. 16(2) and 18(5) of the Income-tax Act were attracted were the three partners in whose names the 40 shares stood registered, as detailed earlier. An error had therefore been committed by the Income-tax Officer in treating the registered firm as the owner of the shares in respect of the entire number of 40 shares. It was not this initial and fundamental error that was sought to be rectified by the proceedings under S.35; but the removal of an anomaly in that error which continued to be affirmed; in other words the object of the proceedings under S.35 was to carry out to its logical conclusion the error which had been committed in the order of assessment dated October 12, 1955 passed after invoking the provisions of S. 34.We consider the submission of learned Counsel for the respondents that the Income-tax Officer had jurisdiction under S.35 to rectify errors but not to effect merely readjustment so as to avoid illogicalities in an error which is still permitted to continue is well-founded.It has further to be mentioned that it is not possible to correct the initial error in these proceedings because the notice under S.35 which is the foundation of the jurisdiction of the officer to effect the rectification, sought in reality slot the correction of the error but the perpetuation of it though in an altered and less objectionable form from the point of view of Revenue. In this connection it would be noticed that one of the four partners- Yoginder Mafatlal had no shares standing in his name and by the order of assessment under S.34 he had been saddled with a liability to the extent of his 3/16th share in the firm, though this has been partially offset by the credit given to him obviously wrongly, of relief under S. 18(5) of the tax deemed to have been paid by the company on that income. | 0 | 1,472 | 475 | ### 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:
S. 23A among the shareholders of the company notices were issued to the four partners under S.34 of the income-tax Act. In response to the notice the partners appeared and it was stated in their behalf that the 40 shares held by three of the partners in the company were in fact the property of the Registered firm and were held by them benami for the firm This contention was accepted by the Income-tax Officer who thereupon treated the dividend attributable to the 40 shares as the dividend-income of the firm and proceeded to apportion the said income among the four partners in the proportion of the shares which each of them held in the firm and add this to the income already assessed. In doing so however, the Income-tax Officer committed an error. In recomputing the total income of each of these four assessees he included only the net dividend "deemed to be received by each but as against this addition he allowed a deduction of the tax paid by the company attributable to such dividend. There was no appeal against these assessment orders which became final. Subsequently this mistake was discovered and thereupon the Income-tax Officer issued notices to the four partners on April 13, 1954. pointing out the error in including in the income the net dividend without being grossed up, while at the same time allowing credit for the tax deemed to have been paid thereon. He averred that this was a mistake apparent from the records and stated that he intended to rectify the same under S.35 of the Income-tax Act. The four assessees objected to the rectification, but almost the entirety of the grounds on which the objection was based related to the legality of the original assessment and the assessees desired that if any rectification was to be made it must be in relation to those items and not in regard to that for which notice had been served. The Income-tax Officer by his order dated October 12,1955, rectified the assessment by grossing up the newly added dividend-income by the addition of the tax deemed to have been paid by the company thereon and retained the original relief granted under S. 18(5) of the Act. After unsuccessfully appealing to the higher authorities for relief against this rectification the assessees filed writ petitions invoking the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution for prohibiting the authorities from taking proceedings for the enforcement of the orders dated October 12, 1955. The learned Judges allowed the petitions. The Income-tax Officer thereafter moved the High Court for certificates of fitness under Art. 133(1)(c) and these having been granted the appeals are now before us.3. The ground upon which the learned Judges granted the relief to the respondents was briefly this. The order of assessment had proceeded on the basis that the firm of Mafatlal Gagalbhai and Sons was the share-holder who had been in receipt of the dividend- income and the individual partners of the firm had been made liable for their share of the profits derived from this registered firm. In such circumstances the learned Judges held that what was distributed to the individual partners could not be deemed to be dividend-income within S.16(2) of the Income-tax Act. It is to test the correctness of this construction of S.16(2) that these appeals have been preferred.4. In our opinion, however, the appeals have to be dismissed on a short ground which does not involve any consideration of the correctness of the construction adopted by the High Court, of S.16 (2) of the Income-tax Act. This Court has held in Messrs. Howrah Trading Co., Ltd. v. Commissioner of Income-tax, Calcutta, 1959 Sup (2) SCR 448: (AIR 1959 SC 775 ) that it is only the registered shareholder who is entitled to the benefit of the credit for tax paid by the company under S.18 (5) as well as the corresponding grossing up under S.16 (2). On that basis the only persons who were entitled to be treated as shareholders to whom the provisions of Ss. 16(2) and 18(5) of the Income-tax Act were attracted were the three partners in whose names the 40 shares stood registered, as detailed earlier. An error had therefore been committed by the Income-tax Officer in treating the registered firm as the owner of the shares in respect of the entire number of 40 shares. It was not this initial and fundamental error that was sought to be rectified by the proceedings under S.35; but the removal of an anomaly in that error which continued to be affirmed; in other words the object of the proceedings under S.35 was to carry out to its logical conclusion the error which had been committed in the order of assessment dated October 12, 1955 passed after invoking the provisions of S. 34.We consider the submission of learned Counsel for the respondents that the Income-tax Officer had jurisdiction under S.35 to rectify errors but not to effect merely readjustment so as to avoid illogicalities in an error which is still permitted to continue is well-founded.5. It has further to be mentioned that it is not possible to correct the initial error in these proceedings because the notice under S.35 which is the foundation of the jurisdiction of the officer to effect the rectification, sought in reality slot the correction of the error but the perpetuation of it though in an altered and less objectionable form from the point of view of Revenue. In this connection it would be noticed that one of the four partners- Yoginder Mafatlal had no shares standing in his name and by the order of assessment under S.34 he had been saddled with a liability to the extent of his 3/16th share in the firm, though this has been partially offset by the credit given to him obviously wrongly, of relief under S. 18(5) of the tax deemed to have been paid by the company on that income.
### Response:
0
### Explanation:
4. In our opinion, however, the appeals have to be dismissed on a short ground which does not involve any consideration of the correctness of the construction adopted by the High Court, of S.16 (2) of the Income-taxCourt has held in Messrs. Howrah Trading Co., Ltd. v. Commissioner of Income-tax, Calcutta, 1959 Sup (2) SCR 448: (AIR 1959 SC 775 ) that it is only the registered shareholder who is entitled to the benefit of the credit for tax paid by the company under S.18 (5) as well as the corresponding grossing up under S.16 (2). On that basis the only persons who were entitled to be treated as shareholders to whom the provisions of Ss. 16(2) and 18(5) of the Income-tax Act were attracted were the three partners in whose names the 40 shares stood registered, as detailed earlier. An error had therefore been committed by the Income-tax Officer in treating the registered firm as the owner of the shares in respect of the entire number of 40 shares. It was not this initial and fundamental error that was sought to be rectified by the proceedings under S.35; but the removal of an anomaly in that error which continued to be affirmed; in other words the object of the proceedings under S.35 was to carry out to its logical conclusion the error which had been committed in the order of assessment dated October 12, 1955 passed after invoking the provisions of S. 34.We consider the submission of learned Counsel for the respondents that the Income-tax Officer had jurisdiction under S.35 to rectify errors but not to effect merely readjustment so as to avoid illogicalities in an error which is still permitted to continue is well-founded.It has further to be mentioned that it is not possible to correct the initial error in these proceedings because the notice under S.35 which is the foundation of the jurisdiction of the officer to effect the rectification, sought in reality slot the correction of the error but the perpetuation of it though in an altered and less objectionable form from the point of view of Revenue. In this connection it would be noticed that one of the four partners- Yoginder Mafatlal had no shares standing in his name and by the order of assessment under S.34 he had been saddled with a liability to the extent of his 3/16th share in the firm, though this has been partially offset by the credit given to him obviously wrongly, of relief under S. 18(5) of the tax deemed to have been paid by the company on that income.
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Parsuram Vs. State of Madhya Pradesh | accused, which indicates that it is a clear case of rape. 9. On the facts and circumstances of the case and on evaluating the material on record, the courts below have rightly convicted the accused for the offences of rape as well as murder. 10. Smt. Maya, P.W. 4 (mother of the prosecutrix), has specifically deposed about the victim girl going along with the accused in the morning to eat plum-fruits. She was the witness for the circumstance of "last seen". Ram Bahadur, P.W. 6, is another material witness who has deposed that the accused/Appellant told Smt. Maya that he would be taking the victim to eat plum fruits from the plum tree of the vicinity. He also saw the accused with the victim going towards the agricultural field of Shri Ram which is one k.m. away from his house. Laxman, P.W. 7, has deposed that he saw the accused giving plum fruits to the victim, and that after some time, the accused took the victim towards the field belonging to Shri Ram. He heard the cries of the victim after some time, and when he rushed to the spot, he saw the accused fleeing away from the spot. Manoj, P.W. 9, also deposed that he saw the accused along with the victim near the plum tree. 11. All the aforesaid witnesses have consistently and cogently deposed about seeing the victim last with the accused and about the accused running away from the spot immediately after the incident. Absolutely no explanation, much less any plausible explanation, is forthcoming from the accused as to when he parted with the company of the victim. In the absence of any explanation, adverse inference needs to be drawn against the accused. Having regard to the totality of the facts and circumstances of the case, there is no need to interfere with the judgment and order of conviction of the Trial Court as well as the High Court. 12. However, in our considered opinion, in the facts and circumstances of the case, the instant case may not fall under the category of the "rarest of rare" cases. The accused had no criminal history and he was a B.Sc. student at the time of the incident. The courts below have not considered the aspect of possibility of reform or rehabilitation of the accused. It is the duty of the State to show, that there is no possibility of reform or rehabilitation of the accused to seek for capital punishment. We may hasten to add that the aggravating circumstance in this case is that the accused took advantage of his position in the victims family for committing the offences of rape and murder, inasmuch as the family of the victim had trusted the accused and sent the child along with him. However, the probability that the accused would commit criminal acts of violence in the future is not forthcoming from the record. Undoubtedly, the offence committed by the accused/Appellant deserves serious condemnation and is the most heinous crime, but on considering the cumulative facts and circumstances of the case, we do not think that the instant case falls in the category of the "rarest of rare" cases, and we feel somewhat reluctant in endorsing the death sentence. Nevertheless, having regard to the nature of the crime, the Court strongly feels that the sentence of life imprisonment subject to remission which normally works out to 16 years (based on the remission rules framed by Madhya Pradesh) is disproportionate and inadequate for the instant offence. In our considered opinion, the sentence to be imposed on the accused/Appellant should be between 16 years and imprisonment until death. We have kept in mind the mitigating and aggravating circumstances of this case while concluding so. 13. As laid down by this Court in Swamy Shraddananda (2) v. State of Karnataka 2008 (3) R.C.R. (Criminal) 772 : (2008) 13 SCC 767 , and subsequently affirmed by the Constitution Bench of this Court in Union of India v. V. Sriharan 2016 (1) R.C.R. (Criminal) 234 : (2016) 7 SCC 1 , this Court may validly substitute the death penalty by imprisonment for a term exceeding 14 years, and put such sentence beyond remission. Such sentences have been awarded by this Court on several occasions, and we may fruitfully refer to some of these decisions by way of illustrations. In Sebastian alias Chevithiyan v. State of Kerala 2010 (5) R.C.R. (Criminal) 381 : (2010) 1 SCC 58 , a case concerning the rape and murder of a 2-year-old girl, this Court modified the sentence of death to imprisonment for the rest of the Appellants life. In Raj Kumar v. State of Madhya Pradesh 2014 (2) R.C.R. (Criminal) 45 : (2014) 5 SCC 353 , a case concerning the rape and murder of a 14-year-old girl, this Court directed the Appellant therein to serve a minimum of 35 years in jail without remission. In Selvam v. State 2014 (2) R.C.R. (Criminal) 854 : (2014) 12 SCC 274 , this Court imposed a sentence of 30 years in jail without remission, in a case concerning the rape of a 9-year-old girl. In Tattu Lodhi v. State of Madhya Pradesh 2016 (4) R.C.R. (Criminal) 367 : (2016) 9 SCC 675 , where the accused was found guilty of committing the murder of a minor girl aged 7 years, the Court imposed the sentence of imprisonment for life with a direction not to release the accused from prison till he completed the period of 25 years of imprisonment. 14. Having regard to the totality of the facts and circumstances of the case, more particularly when the accused has taken advantage of his relationship with the family of the victim as a tutor, though we find that the instant case does not fall in the category of the "rarest of rare" cases deserving imposition of the death penalty, the interest of justice would be met if the Appellant herein is sentenced to undergo imprisonment of 30 years (without any remission). | 1[ds]5. We find no ground to interfere with the judgments of the Trial Court and the High Court convicting the accused/Appellant for the offences Under Sections 302 and 376 of the Indian Penal Code. The postmortem report and the evidence of the doctor, P.W. 2, disclose that when the dead body was brought for post-mortem examination, the mouth of the victim was stuffed with a brown-coloured underwear, the nostrils were packed with mustard stems and one blue-coloured salwar measuring 22 cm was tied around the entire neck. On dissection of the body, the panel of doctors conducting the post-mortem (including P.W. 2) observed:"Clotted blood on private part is present. IIIrd degree perineal tear present; 2 x 2 cm tear is present over posterior fornix in vagina. Hymen badly torn, and 2 x 2 cm tear present over posterior wall of uterus. 2 x 2 cm tear present over fundus of uterus. Blood stained mud present inside the uterus and some in pelvic cavity."6. The panel of doctors opined that the cause of death was due to asphyxia as a result of strangulation. Thus, it is clear that the death was homicidal in nature8. He submitted that the foreign object thrust into the vagina of the victim was not male genitalia but a stem of the mustard plant, since the offence took place in a mustard field. Such argument advanced by the learned Senior Counsel of the Appellant deserves to be rejected inasmuch as a criminal case cannot be decided on presumptions, conjectures and assumptions, more particularly in the light of the clear evidence of the doctor, P.W. 2, and the post-mortem report against the accused, which indicates that it is a clear case of rape9. On the facts and circumstances of the case and on evaluating the material on record, the courts below have rightly convicted the accused for the offences of rape as well as murder11. All the aforesaid witnesses have consistently and cogently deposed about seeing the victim last with the accused and about the accused running away from the spot immediately after the incident. Absolutely no explanation, much less any plausible explanation, is forthcoming from the accused as to when he parted with the company of the victim. In the absence of any explanation, adverse inference needs to be drawn against the accused. Having regard to the totality of the facts and circumstances of the case, there is no need to interfere with the judgment and order of conviction of the Trial Court as well as the High Court12. However, in our considered opinion, in the facts and circumstances of the case, the instant case may not fall under the category of the "rarest of rare" cases. The accused had no criminal history and he was a B.Sc. student at the time of the incident. The courts below have not considered the aspect of possibility of reform or rehabilitation of the accused. It is the duty of the State to show, that there is no possibility of reform or rehabilitation of the accused to seek for capital punishment. We may hasten to add that the aggravating circumstance in this case is that the accused took advantage of his position in the victims family for committing the offences of rape and murder, inasmuch as the family of the victim had trusted the accused and sent the child along with him. However, the probability that the accused would commit criminal acts of violence in the future is not forthcoming from the record. Undoubtedly, the offence committed by the accused/Appellant deserves serious condemnation and is the most heinous crime, but on considering the cumulative facts and circumstances of the case, we do not think that the instant case falls in the category of the "rarest of rare" cases, and we feel somewhat reluctant in endorsing the death sentence. Nevertheless, having regard to the nature of the crime, the Court strongly feels that the sentence of life imprisonment subject to remission which normally works out to 16 years (based on the remission rules framed by Madhya Pradesh) is disproportionate and inadequate for the instant offence. In our considered opinion, the sentence to be imposed on the accused/Appellant should be between 16 years and imprisonment until death. We have kept in mind the mitigating and aggravating circumstances of this case while concluding so14. Having regard to the totality of the facts and circumstances of the case, more particularly when the accused has taken advantage of his relationship with the family of the victim as a tutor, though we find that the instant case does not fall in the category of the "rarest of rare" cases deserving imposition of the death penalty, the interest of justice would be met if the Appellant herein is sentenced to undergo imprisonment of 30 years (without any remission). | 1 | 2,066 | 890 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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accused, which indicates that it is a clear case of rape. 9. On the facts and circumstances of the case and on evaluating the material on record, the courts below have rightly convicted the accused for the offences of rape as well as murder. 10. Smt. Maya, P.W. 4 (mother of the prosecutrix), has specifically deposed about the victim girl going along with the accused in the morning to eat plum-fruits. She was the witness for the circumstance of "last seen". Ram Bahadur, P.W. 6, is another material witness who has deposed that the accused/Appellant told Smt. Maya that he would be taking the victim to eat plum fruits from the plum tree of the vicinity. He also saw the accused with the victim going towards the agricultural field of Shri Ram which is one k.m. away from his house. Laxman, P.W. 7, has deposed that he saw the accused giving plum fruits to the victim, and that after some time, the accused took the victim towards the field belonging to Shri Ram. He heard the cries of the victim after some time, and when he rushed to the spot, he saw the accused fleeing away from the spot. Manoj, P.W. 9, also deposed that he saw the accused along with the victim near the plum tree. 11. All the aforesaid witnesses have consistently and cogently deposed about seeing the victim last with the accused and about the accused running away from the spot immediately after the incident. Absolutely no explanation, much less any plausible explanation, is forthcoming from the accused as to when he parted with the company of the victim. In the absence of any explanation, adverse inference needs to be drawn against the accused. Having regard to the totality of the facts and circumstances of the case, there is no need to interfere with the judgment and order of conviction of the Trial Court as well as the High Court. 12. However, in our considered opinion, in the facts and circumstances of the case, the instant case may not fall under the category of the "rarest of rare" cases. The accused had no criminal history and he was a B.Sc. student at the time of the incident. The courts below have not considered the aspect of possibility of reform or rehabilitation of the accused. It is the duty of the State to show, that there is no possibility of reform or rehabilitation of the accused to seek for capital punishment. We may hasten to add that the aggravating circumstance in this case is that the accused took advantage of his position in the victims family for committing the offences of rape and murder, inasmuch as the family of the victim had trusted the accused and sent the child along with him. However, the probability that the accused would commit criminal acts of violence in the future is not forthcoming from the record. Undoubtedly, the offence committed by the accused/Appellant deserves serious condemnation and is the most heinous crime, but on considering the cumulative facts and circumstances of the case, we do not think that the instant case falls in the category of the "rarest of rare" cases, and we feel somewhat reluctant in endorsing the death sentence. Nevertheless, having regard to the nature of the crime, the Court strongly feels that the sentence of life imprisonment subject to remission which normally works out to 16 years (based on the remission rules framed by Madhya Pradesh) is disproportionate and inadequate for the instant offence. In our considered opinion, the sentence to be imposed on the accused/Appellant should be between 16 years and imprisonment until death. We have kept in mind the mitigating and aggravating circumstances of this case while concluding so. 13. As laid down by this Court in Swamy Shraddananda (2) v. State of Karnataka 2008 (3) R.C.R. (Criminal) 772 : (2008) 13 SCC 767 , and subsequently affirmed by the Constitution Bench of this Court in Union of India v. V. Sriharan 2016 (1) R.C.R. (Criminal) 234 : (2016) 7 SCC 1 , this Court may validly substitute the death penalty by imprisonment for a term exceeding 14 years, and put such sentence beyond remission. Such sentences have been awarded by this Court on several occasions, and we may fruitfully refer to some of these decisions by way of illustrations. In Sebastian alias Chevithiyan v. State of Kerala 2010 (5) R.C.R. (Criminal) 381 : (2010) 1 SCC 58 , a case concerning the rape and murder of a 2-year-old girl, this Court modified the sentence of death to imprisonment for the rest of the Appellants life. In Raj Kumar v. State of Madhya Pradesh 2014 (2) R.C.R. (Criminal) 45 : (2014) 5 SCC 353 , a case concerning the rape and murder of a 14-year-old girl, this Court directed the Appellant therein to serve a minimum of 35 years in jail without remission. In Selvam v. State 2014 (2) R.C.R. (Criminal) 854 : (2014) 12 SCC 274 , this Court imposed a sentence of 30 years in jail without remission, in a case concerning the rape of a 9-year-old girl. In Tattu Lodhi v. State of Madhya Pradesh 2016 (4) R.C.R. (Criminal) 367 : (2016) 9 SCC 675 , where the accused was found guilty of committing the murder of a minor girl aged 7 years, the Court imposed the sentence of imprisonment for life with a direction not to release the accused from prison till he completed the period of 25 years of imprisonment. 14. Having regard to the totality of the facts and circumstances of the case, more particularly when the accused has taken advantage of his relationship with the family of the victim as a tutor, though we find that the instant case does not fall in the category of the "rarest of rare" cases deserving imposition of the death penalty, the interest of justice would be met if the Appellant herein is sentenced to undergo imprisonment of 30 years (without any remission).
### Response:
1
### Explanation:
5. We find no ground to interfere with the judgments of the Trial Court and the High Court convicting the accused/Appellant for the offences Under Sections 302 and 376 of the Indian Penal Code. The postmortem report and the evidence of the doctor, P.W. 2, disclose that when the dead body was brought for post-mortem examination, the mouth of the victim was stuffed with a brown-coloured underwear, the nostrils were packed with mustard stems and one blue-coloured salwar measuring 22 cm was tied around the entire neck. On dissection of the body, the panel of doctors conducting the post-mortem (including P.W. 2) observed:"Clotted blood on private part is present. IIIrd degree perineal tear present; 2 x 2 cm tear is present over posterior fornix in vagina. Hymen badly torn, and 2 x 2 cm tear present over posterior wall of uterus. 2 x 2 cm tear present over fundus of uterus. Blood stained mud present inside the uterus and some in pelvic cavity."6. The panel of doctors opined that the cause of death was due to asphyxia as a result of strangulation. Thus, it is clear that the death was homicidal in nature8. He submitted that the foreign object thrust into the vagina of the victim was not male genitalia but a stem of the mustard plant, since the offence took place in a mustard field. Such argument advanced by the learned Senior Counsel of the Appellant deserves to be rejected inasmuch as a criminal case cannot be decided on presumptions, conjectures and assumptions, more particularly in the light of the clear evidence of the doctor, P.W. 2, and the post-mortem report against the accused, which indicates that it is a clear case of rape9. On the facts and circumstances of the case and on evaluating the material on record, the courts below have rightly convicted the accused for the offences of rape as well as murder11. All the aforesaid witnesses have consistently and cogently deposed about seeing the victim last with the accused and about the accused running away from the spot immediately after the incident. Absolutely no explanation, much less any plausible explanation, is forthcoming from the accused as to when he parted with the company of the victim. In the absence of any explanation, adverse inference needs to be drawn against the accused. Having regard to the totality of the facts and circumstances of the case, there is no need to interfere with the judgment and order of conviction of the Trial Court as well as the High Court12. However, in our considered opinion, in the facts and circumstances of the case, the instant case may not fall under the category of the "rarest of rare" cases. The accused had no criminal history and he was a B.Sc. student at the time of the incident. The courts below have not considered the aspect of possibility of reform or rehabilitation of the accused. It is the duty of the State to show, that there is no possibility of reform or rehabilitation of the accused to seek for capital punishment. We may hasten to add that the aggravating circumstance in this case is that the accused took advantage of his position in the victims family for committing the offences of rape and murder, inasmuch as the family of the victim had trusted the accused and sent the child along with him. However, the probability that the accused would commit criminal acts of violence in the future is not forthcoming from the record. Undoubtedly, the offence committed by the accused/Appellant deserves serious condemnation and is the most heinous crime, but on considering the cumulative facts and circumstances of the case, we do not think that the instant case falls in the category of the "rarest of rare" cases, and we feel somewhat reluctant in endorsing the death sentence. Nevertheless, having regard to the nature of the crime, the Court strongly feels that the sentence of life imprisonment subject to remission which normally works out to 16 years (based on the remission rules framed by Madhya Pradesh) is disproportionate and inadequate for the instant offence. In our considered opinion, the sentence to be imposed on the accused/Appellant should be between 16 years and imprisonment until death. We have kept in mind the mitigating and aggravating circumstances of this case while concluding so14. Having regard to the totality of the facts and circumstances of the case, more particularly when the accused has taken advantage of his relationship with the family of the victim as a tutor, though we find that the instant case does not fall in the category of the "rarest of rare" cases deserving imposition of the death penalty, the interest of justice would be met if the Appellant herein is sentenced to undergo imprisonment of 30 years (without any remission).
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Nandini J. Shah & Another Vs. Life Insurance Corporation of India & Others | of directors and the total shareholding to be of immediate family members of Vilasben. The annual returns of State Street Capital & Finance Pvt.Limited were also produced on record. The composition of directors was placed on record which demonstrates that Harshal Jyotindra Shah grand-son; Ms.Nandini Jyotindra Shah daughter; Jyotindra Ramanlal Shah son-in-law; and Smt.Vilasben Jayantilal Shah mother (recorded tenant) were the directors and shareholders. In view of these documents produced on record, we do not find that the observation of the learned City Civil Court while dismissing the appeal that no documents were produced on record to show the composition of the directors and shareholders of the Companies, was justified.19. The question then arises is when a Private Limited Company is found to be operating from the tenanted premises, whether the decree of eviction on the ground of subletting should automatically follow. It is no doubt true that the company incorporated under the Companies Act, 1956 is an independent and distinct legal entity. The Company can sue and can be sued in its independent capacity. However when an allegation of subletting is made in respect of a Company, it is permissible to look at the composition of the directors and shareholding of a company to find out what is the exact relation of the Company with the tenant. It is permissible for a tenant to place on record material to demonstrate that the Company is nothing but an alter-ego of the tenant and is incorporated only for the purpose of carrying out business more efficiently. It is permissible for the tenant to demonstrate that even though a company is incorporated and operates from the tenanted premises, the tenant has controlling interest in the Company and tenant has remained in possession, though it is the company which is carrying on the business. It is not the position of law that moment a Company is found to be operating from tenanted premises, no other inquiry is necessary.20. For this purpose the well established principle of lifting the corporate veil can be employed. The Courts have used this principle to find out the composition of shareholding and directorship so as to ascertain the true controlling interest behind the company. In cases of subletting it is also open for a tenant to request the Court to lift the corporate veil. A tenant can demonstrate from the composition of the company that the tenant has the controlling interest. In the course of running a business, trade or profession, a person may feel a need to incorporate a private limited company to carry on the activity more successfully. There are several reasons why business persons and professionals form a company to facilitate effective business transactions.21. A tenant while retaining the control of the business may include close relatives as son, daughter, husband to form private limited company. Such company do have an independent juristic entity. For the purpose of ascertaining the charge of subletting in the context of landlord-tenant relationship, however the parameters are different. It is settled law that if the tenant remains in possession and retains control over the premises then the tenant cannot be evicted on the ground of subletting. If the tenant incorporates private limited company with his close family members and is able to demonstrate that he has controlling interest in the said company and he has not parted with possession, then he cannot be evicted from the premises only on the factum of registration of the company.22. In the present case the tenant Vilasben was director in the company along with her daughter, son-in-law and grand-son. Looking at the composition of the company it cannot be said that she relinquished control of the premises or parted with possession to a stranger. The directors of the companies were her immediate family members. The premises were in occupation of the family since the time of their great grand-father and continued to be within the family even after formation of these three companies. The family business/profession was relating to tax and financial services and continued to be so. In a changing commercial scenario she found formation of partnership firm and private limited companies was more effective way of conducting the tax and financial services. This was nothing but extension of existing business activity to remain in tune with the changing financial environment. Thus by employing the principle of lifting corporate veil and looking at the true nature of the Companies we find that Vilasben had not relinquished the control of premises by creating these three companies and there was no subletting.23. The Division Bench of Delhi High Court in the case of PremlataBhatia (128 (2006) DLT 24 )(supra) in similar facts situation undertook the exercise of lifting the corporate veil to examine the charge of subletting. In this case the Petitioner Premlata was allotted a shop by the Union of India. Clause 8 of the licence deed therein prohibited the licensee from transferring or alienating her interest in the premises without permission of the Union of India. Premlata incorporated a company along with her husband holding 97.93% shares. The Union of India instituted the proceedings under the Public Premises Act on the ground of subletting. The Estate Officer ordered eviction of Premlata and her challenge was negatived by the Single Judge. Smt.Premlata thereafter filed appeal before the Division Bench of Delhi High Court. The Division Bench allowed the appeal by holding that the corporate veil ought to have been lifted to ascertain the true nature of the company and found that there was no subletting.24. In the present case, the tenanted premises are in occupation of the appellants for several decades. All that Vilasben had done was to create three Companies with her son, daughter-in-law and grand-son. Eviction of the appellants from the premises in the circumstances will be unjust. Once we have come to the conclusion that there was no subletting in the first place, there is no question of appellants paying any amount of compensation as ordered by the impugned orders. | 1[ds]14. It is true that the petitions arising out of the order passed under the Public Premises Act were being heard by the Division Bench. This was being done due to observation of the Division Bench of this Court in the case of NusliNeville Wadia V/s. New India Assurance Co.Ltd.Another (2010 (4) Bom.C.R.807). However by an order dated 15 November 2011, another Division Bench of this Court expressed doubt about the correctness of the observation made in the case of Nusli Neville Wadia (supra) and referred the issue as to whether the petitions arising out of the orders passed under the Public Premises Act should be heard by the division Bench or Single Judge, to the Full Bench for consideration. The Full Bench in the case of PrakashSecurities(2012 (4) Bom.C.R.1)(supra) found that clause 3 of Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules 1960 was wide enough to include orders passed by anyauthority under any enactment, even if such explanation is not covered by clause 1, 2, 4 to 43 of Rule 18. The Full Bench found that the order passed byauthority under the Public Premises act is also covered by Rule 18 (3) so as to indicate that the petitions under Articles 226227 of the Constitution of India challenging such orders are to be heard and decided by the Single Judge. Reference was accordingly disposed of by the Full Bench by its judgment dated 26 April 2012. The Full Bench held that the Appellate Side Rules as they stand, provide that the petitions challenging the orders passed under the Public Premises Act are required to be heard by the learned Single Judge and therefore the observations made in the case of NusliNeville Wadia (supra), were not correct. The petitions relating to orders passed under Public Premises Act were being entertained by the Division Bench when the rules provided that they should be entertained by the Single Judge. Therefore there was no conscious decision to remove the petitions arising from orders passed under the Public Premises, from Division Bench and to place them before Single Judge. In fact Full Bench found that these petitions were being wrongly entertained by the Division Bench.15. In the judgment of the Full Bench there is no indication that Letters Patent Appeal arising out of the orders passed by the Single Judge in proceedings under the Public Premises Act will not be maintainable. If Letters Patent Appeals are otherwise maintainable, judgment of the Full Bench does not take away that right in respect of petitions challenging the orders passed under Public Premises Act. Therefore the argument advanced by the learned counsel on maintainability of the appeal on this ground cannot be accepted. Maintainability was not contested on any other ground. In the present case, the petitioner has invoked both Articles 226 and 227 of the Constitution of India. The learned Judge also has referred to the said Articles in the impugned order. Furthermore, theis itself amenable to writ jurisdiction of this Court, being a public corporation. There is therefore no substance in the preliminary objection raised by thelearned counsel for theRespondent that the appeal is not maintainable and that it should be dismissed at the threshold without looking at the merits of the matter.We have perused the documents which are produced on record. Before the Estate Officer, the appellants had produced several documents. Amongst these were copies of annual returns filed by Vilasben, including documents in respect of State Street CapitalFinance Limited which showed the names of directors and the total shareholding to be of immediate family members of Vilasben. The annual returns of State Street CapitalFinance Pvt.Limited were also produced on record. The composition of directors was placed on record which demonstrates that Harshal Jyotindra ShahMs.Nandini Jyotindra Shah daughter; Jyotindra Ramanlal Shah; and Smt.Vilasben Jayantilal Shahmother (recorded tenant) were the directors and shareholders. In view of these documents produced on record, we do not find that the observation of the learned City Civil Court while dismissing the appeal that no documents were produced on record to show the composition of the directors and shareholders of the Companies, was justified.In the present case the tenantVilasben was director in the company along with her daughter,n. Looking at the composition of the company it cannot be said that she relinquished control of the premises or parted with possession to a stranger. The directors of the companies were her immediate family members. The premises were in occupation of the family since the time of their greatand continued to be within the family even after formation of these three companies. The family business/profession was relating to tax and financial services and continued to be so. In a changing commercial scenario she found formation of partnership firm and private limited companies was more effective way of conducting the tax and financial services. This was nothing but extension of existing business activity to remain in tune with the changing financial environment. Thus by employing the principle of lifting corporate veil and looking at the true nature of the Companies we find that Vilasben had not relinquished the control of premises by creating these three companies and there was no subletting.23. The Division Bench of Delhi High Court in the case of PremlataBhatia (128 (2006) DLT 24 )(supra) in similar facts situation undertook the exercise of lifting the corporate veil to examine the charge of subletting. In this case the Petitioner Premlata was allotted a shop by the Union of India. Clause 8 of the licence deed therein prohibited the licensee from transferring or alienating her interest in the premises without permission of the Union of India. Premlata incorporated a company along with her husband holding 97.93% shares. The Union of India instituted the proceedings under the Public Premises Act on the ground of subletting. The Estate Officer ordered eviction of Premlata and her challenge was negatived by the Single Judge. Smt.Premlata thereafter filed appeal before the Division Bench of Delhi High Court. The Division Bench allowed the appeal by holding that the corporate veil ought to have been lifted to ascertain the true nature of the company and found that there was no subletting.In the present case, the tenanted premises are in occupation of the appellants for several decades. All that Vilasben had done was to create three Companies with her son,n. Eviction of the appellants from the premises in the circumstances will be unjust. Once we have come to the conclusion that there was no subletting in the first place, there is no question of appellants paying any amount of compensation as ordered by the impugned orders. | 1 | 3,627 | 1,202 | ### 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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of directors and the total shareholding to be of immediate family members of Vilasben. The annual returns of State Street Capital & Finance Pvt.Limited were also produced on record. The composition of directors was placed on record which demonstrates that Harshal Jyotindra Shah grand-son; Ms.Nandini Jyotindra Shah daughter; Jyotindra Ramanlal Shah son-in-law; and Smt.Vilasben Jayantilal Shah mother (recorded tenant) were the directors and shareholders. In view of these documents produced on record, we do not find that the observation of the learned City Civil Court while dismissing the appeal that no documents were produced on record to show the composition of the directors and shareholders of the Companies, was justified.19. The question then arises is when a Private Limited Company is found to be operating from the tenanted premises, whether the decree of eviction on the ground of subletting should automatically follow. It is no doubt true that the company incorporated under the Companies Act, 1956 is an independent and distinct legal entity. The Company can sue and can be sued in its independent capacity. However when an allegation of subletting is made in respect of a Company, it is permissible to look at the composition of the directors and shareholding of a company to find out what is the exact relation of the Company with the tenant. It is permissible for a tenant to place on record material to demonstrate that the Company is nothing but an alter-ego of the tenant and is incorporated only for the purpose of carrying out business more efficiently. It is permissible for the tenant to demonstrate that even though a company is incorporated and operates from the tenanted premises, the tenant has controlling interest in the Company and tenant has remained in possession, though it is the company which is carrying on the business. It is not the position of law that moment a Company is found to be operating from tenanted premises, no other inquiry is necessary.20. For this purpose the well established principle of lifting the corporate veil can be employed. The Courts have used this principle to find out the composition of shareholding and directorship so as to ascertain the true controlling interest behind the company. In cases of subletting it is also open for a tenant to request the Court to lift the corporate veil. A tenant can demonstrate from the composition of the company that the tenant has the controlling interest. In the course of running a business, trade or profession, a person may feel a need to incorporate a private limited company to carry on the activity more successfully. There are several reasons why business persons and professionals form a company to facilitate effective business transactions.21. A tenant while retaining the control of the business may include close relatives as son, daughter, husband to form private limited company. Such company do have an independent juristic entity. For the purpose of ascertaining the charge of subletting in the context of landlord-tenant relationship, however the parameters are different. It is settled law that if the tenant remains in possession and retains control over the premises then the tenant cannot be evicted on the ground of subletting. If the tenant incorporates private limited company with his close family members and is able to demonstrate that he has controlling interest in the said company and he has not parted with possession, then he cannot be evicted from the premises only on the factum of registration of the company.22. In the present case the tenant Vilasben was director in the company along with her daughter, son-in-law and grand-son. Looking at the composition of the company it cannot be said that she relinquished control of the premises or parted with possession to a stranger. The directors of the companies were her immediate family members. The premises were in occupation of the family since the time of their great grand-father and continued to be within the family even after formation of these three companies. The family business/profession was relating to tax and financial services and continued to be so. In a changing commercial scenario she found formation of partnership firm and private limited companies was more effective way of conducting the tax and financial services. This was nothing but extension of existing business activity to remain in tune with the changing financial environment. Thus by employing the principle of lifting corporate veil and looking at the true nature of the Companies we find that Vilasben had not relinquished the control of premises by creating these three companies and there was no subletting.23. The Division Bench of Delhi High Court in the case of PremlataBhatia (128 (2006) DLT 24 )(supra) in similar facts situation undertook the exercise of lifting the corporate veil to examine the charge of subletting. In this case the Petitioner Premlata was allotted a shop by the Union of India. Clause 8 of the licence deed therein prohibited the licensee from transferring or alienating her interest in the premises without permission of the Union of India. Premlata incorporated a company along with her husband holding 97.93% shares. The Union of India instituted the proceedings under the Public Premises Act on the ground of subletting. The Estate Officer ordered eviction of Premlata and her challenge was negatived by the Single Judge. Smt.Premlata thereafter filed appeal before the Division Bench of Delhi High Court. The Division Bench allowed the appeal by holding that the corporate veil ought to have been lifted to ascertain the true nature of the company and found that there was no subletting.24. In the present case, the tenanted premises are in occupation of the appellants for several decades. All that Vilasben had done was to create three Companies with her son, daughter-in-law and grand-son. Eviction of the appellants from the premises in the circumstances will be unjust. Once we have come to the conclusion that there was no subletting in the first place, there is no question of appellants paying any amount of compensation as ordered by the impugned orders.
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Premises Act should be heard by the division Bench or Single Judge, to the Full Bench for consideration. The Full Bench in the case of PrakashSecurities(2012 (4) Bom.C.R.1)(supra) found that clause 3 of Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules 1960 was wide enough to include orders passed by anyauthority under any enactment, even if such explanation is not covered by clause 1, 2, 4 to 43 of Rule 18. The Full Bench found that the order passed byauthority under the Public Premises act is also covered by Rule 18 (3) so as to indicate that the petitions under Articles 226227 of the Constitution of India challenging such orders are to be heard and decided by the Single Judge. Reference was accordingly disposed of by the Full Bench by its judgment dated 26 April 2012. The Full Bench held that the Appellate Side Rules as they stand, provide that the petitions challenging the orders passed under the Public Premises Act are required to be heard by the learned Single Judge and therefore the observations made in the case of NusliNeville Wadia (supra), were not correct. The petitions relating to orders passed under Public Premises Act were being entertained by the Division Bench when the rules provided that they should be entertained by the Single Judge. Therefore there was no conscious decision to remove the petitions arising from orders passed under the Public Premises, from Division Bench and to place them before Single Judge. In fact Full Bench found that these petitions were being wrongly entertained by the Division Bench.15. In the judgment of the Full Bench there is no indication that Letters Patent Appeal arising out of the orders passed by the Single Judge in proceedings under the Public Premises Act will not be maintainable. If Letters Patent Appeals are otherwise maintainable, judgment of the Full Bench does not take away that right in respect of petitions challenging the orders passed under Public Premises Act. Therefore the argument advanced by the learned counsel on maintainability of the appeal on this ground cannot be accepted. Maintainability was not contested on any other ground. In the present case, the petitioner has invoked both Articles 226 and 227 of the Constitution of India. The learned Judge also has referred to the said Articles in the impugned order. Furthermore, theis itself amenable to writ jurisdiction of this Court, being a public corporation. There is therefore no substance in the preliminary objection raised by thelearned counsel for theRespondent that the appeal is not maintainable and that it should be dismissed at the threshold without looking at the merits of the matter.We have perused the documents which are produced on record. Before the Estate Officer, the appellants had produced several documents. Amongst these were copies of annual returns filed by Vilasben, including documents in respect of State Street CapitalFinance Limited which showed the names of directors and the total shareholding to be of immediate family members of Vilasben. The annual returns of State Street CapitalFinance Pvt.Limited were also produced on record. The composition of directors was placed on record which demonstrates that Harshal Jyotindra ShahMs.Nandini Jyotindra Shah daughter; Jyotindra Ramanlal Shah; and Smt.Vilasben Jayantilal Shahmother (recorded tenant) were the directors and shareholders. In view of these documents produced on record, we do not find that the observation of the learned City Civil Court while dismissing the appeal that no documents were produced on record to show the composition of the directors and shareholders of the Companies, was justified.In the present case the tenantVilasben was director in the company along with her daughter,n. Looking at the composition of the company it cannot be said that she relinquished control of the premises or parted with possession to a stranger. The directors of the companies were her immediate family members. The premises were in occupation of the family since the time of their greatand continued to be within the family even after formation of these three companies. The family business/profession was relating to tax and financial services and continued to be so. In a changing commercial scenario she found formation of partnership firm and private limited companies was more effective way of conducting the tax and financial services. This was nothing but extension of existing business activity to remain in tune with the changing financial environment. Thus by employing the principle of lifting corporate veil and looking at the true nature of the Companies we find that Vilasben had not relinquished the control of premises by creating these three companies and there was no subletting.23. The Division Bench of Delhi High Court in the case of PremlataBhatia (128 (2006) DLT 24 )(supra) in similar facts situation undertook the exercise of lifting the corporate veil to examine the charge of subletting. In this case the Petitioner Premlata was allotted a shop by the Union of India. Clause 8 of the licence deed therein prohibited the licensee from transferring or alienating her interest in the premises without permission of the Union of India. Premlata incorporated a company along with her husband holding 97.93% shares. The Union of India instituted the proceedings under the Public Premises Act on the ground of subletting. The Estate Officer ordered eviction of Premlata and her challenge was negatived by the Single Judge. Smt.Premlata thereafter filed appeal before the Division Bench of Delhi High Court. The Division Bench allowed the appeal by holding that the corporate veil ought to have been lifted to ascertain the true nature of the company and found that there was no subletting.In the present case, the tenanted premises are in occupation of the appellants for several decades. All that Vilasben had done was to create three Companies with her son,n. Eviction of the appellants from the premises in the circumstances will be unjust. Once we have come to the conclusion that there was no subletting in the first place, there is no question of appellants paying any amount of compensation as ordered by the impugned orders.
|
INDIAN INSTITUTE OF TECHNOLOGY KHARAGPUR & ORS Vs. SOUTRIK SARANGI & ORS | was conducted on 07.11.2020. Soutrik had, in the meanwhile been offered B.S. (Mathematics) course in the IIT Bombay through a separate admission process based on his performance in the Mathematics Olympiad. This was disclosed by him in the writ petition filed before the High Court. He seems to have accepted that offer of admission. He however, did not withdraw the admission granted earlier as of the last date provided for it. It appears that he wrote to the ITT on 08.11.2020 alleging that he got an offer letter from the IIT Bombay for lateral entry to BS (Mathematics) after the online date for withdrawal had lapsed, demanding refund of his seat acceptance fee. He proceeded to accept the admission granted to him in IIT Bombay on 09.11.2020. 17. The IIT (appellant here) alleges that at the time of his admission, to the BS course in IIT Bombay, Soutrik did not disclose that he had accepted the admission in IIT Kharagpur in Chemical Engineering. Thereafter, he pursued the BS (Mathematics) course. Strangely, on 20.11.2020, Soutrik paid the admission fee for IIT Kharagpur, got his documents verified, studiously maintaining silence about the fact that from 09.11.2020, he was a student pursuing a BS (Mathematics) class from IIT Bombay. 18. The IITs pleading before this Court revealed that on 09.11.2020, this Court had opposed the interim order in a Civil Appeal.(Sidhant Batra v. Director IIT Bombay CA 4029/2020) IIT alleges that inspired by the interim order granted by this Court, Soutrik approached the Calcutta High Court on 23.12.2020 and filed his writ petition without making appropriate disclosures about his securing admission in IIT Bombay and that at the time of securing such admission, suppressing information that he had secured admission in IIT Kharagpur. 19. The reasoning of the High Court of Criterion 5 not permitting IIT students to participate in IIT (Advanced) for the second time being arbitrary, in the opinion of this Court is not supportable. This Court has repeatedly emphasized that in matters such as devising admissions criteria or other issues engaging academic institutions, the courts scrutiny in judicial review has to be careful and circumspect. Unless shown to be plainly arbitrary or discriminatory, the court would defer to the wisdom of administrators in academic institutions who might devise policies in regard to curricular admission process, career progression of their employees, matters of discipline or other general administrative issues concerning the institution or university See Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors (2010) 8 SCC 372 . It was held by this court in All India Council for Technical Education v. Surinder Kumar Dhawan (2009) 11 SCC 726 . 16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education. 20. Given this general reluctance of courts to substitute the views of academic and expert bodies, the approach of the High Court in proceeding straightaway to characterize the rationale given by the IIT in fashioning the Criteria No. 5 cannot be supported. 21. This court is of opinion that the impugned judgement is in error in holding that the exclusion of a candidate who secures admission but does not opt out of it and virtually abandons it as in the case of Soutrik from participating in the subsequent JEE (Advanced) examination is arbitrary. As recounted earlier, criteria, including Criteria no.5 were devised after extensive consultations between all the IITs and other officials of the Union Government as well as the CBSE. The High Court proceeded to facially compare IITs and non-IIT institutions and hold that candidates who are admitted to non-IIT institutions and who do not proceed in the institution and who are allowed to participate in the subsequent JEE (Advanced) amounts to hostile discrimination and those who secure admission but do not proceed with the course in any given year. 22. In this Courts opinion, given that the Criteria no.5 is a part of the information Brochure, settled as a condition of admission in terms of of JoSAA Rules of 2020 meant that all IITs had adopted a uniform criteria of not permitting candidates who were successful in a previous year but did not pursue their course and did not opt out of taking another chance in the subsequent year. This was a binding norm applicable to all IIT institutions. If one considers the fact that JEE (Advanced) is governed by rules framed under the Act, and regulations, the further detail that it permitted non- IIT candidates who were admitted in a previous year (but did not pursue their course nor withdrew the option in a previous year) is logical. Such non-IIT institutions are not governed by the Act and regulations framed under it or even for that matter JoSAA Business Rules. Furthermore, in the opinion of this Court, securing a seat in any one of the 23 IITs stands on a different footing than securing a seat in non-IIT institution. This is not to in any manner undermine the worth or academic curricula or ranking of such non-IIT institutions. The classification of IITs, on the one hand and non-IIT institutions on the other hand is warranted. This Court does not wish to emphasise this aspect further except to say that the classification is justified both statutorily and in terms of Parliamentary declaration that the Act was conceived as one meant to set-up institutions of excellence having national status. This Court hold Criterion 5 to be valid, aimed at conserving a valuable public resource, i.e. seats in IITs. | 0[ds]13. At the outset, this Court holds as insubstantial the objection on behalf of the respondent, Soutrik that the IIT should have approached the Division Bench in Letter Patent jurisdiction of the Calcutta High Court. The ordinary rule of necessity that litigants should approach and avail of appellate remedies exhausting them before approaching this Court is a rule of convenience and not an immutable practice. It has been held to be so by this Court (Ref State of UP v Harish Chandra & Ors 1996 (9) SCC 309) . Moreover, the discretion under Article 136 of the Constitution is flexible and sufficiently wide, to correct glaring errors and injustices. Furthermore, this Court had issued notice on 09.09.2021 and granted an interim order suspending the directions of the High Court. On the two subsequent dates of hearing, i.e. 17.09.2021 and 24.09.2021, there was no objection on the part of the respondent with respect to the maintainability of the present petition. Having regard to all these facts, the objection is hereby overruled.18. The IITs pleading before this Court revealed that on 09.11.2020, this Court had opposed the interim order in a Civil Appeal.(Sidhant Batra v. Director IIT Bombay CA 4029/2020) IIT alleges that inspired by the interim order granted by this Court, Soutrik approached the Calcutta High Court on 23.12.2020 and filed his writ petition without making appropriate disclosures about his securing admission in IIT Bombay and that at the time of securing such admission, suppressing information that he had secured admission in IIT Kharagpur.19. The reasoning of the High Court of Criterion 5 not permitting IIT students to participate in IIT (Advanced) for the second time being arbitrary, in the opinion of this Court is not supportable. This Court has repeatedly emphasized that in matters such as devising admissions criteria or other issues engaging academic institutions, the courts scrutiny in judicial review has to be careful and circumspect. Unless shown to be plainly arbitrary or discriminatory, the court would defer to the wisdom of administrators in academic institutions who might devise policies in regard to curricular admission process, career progression of their employees, matters of discipline or other general administrative issues concerning the institution or university See Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors (2010) 8 SCC 372 . It was held by this court in All India Council for Technical Education v. Surinder Kumar Dhawan (2009) 11 SCC 726 .16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education.20. Given this general reluctance of courts to substitute the views of academic and expert bodies, the approach of the High Court in proceeding straightaway to characterize the rationale given by the IIT in fashioning the Criteria No. 5 cannot be supported.21. This court is of opinion that the impugned judgement is in error in holding that the exclusion of a candidate who secures admission but does not opt out of it and virtually abandons it as in the case of Soutrik from participating in the subsequent JEE (Advanced) examination is arbitrary. As recounted earlier, criteria, including Criteria no.5 were devised after extensive consultations between all the IITs and other officials of the Union Government as well as the CBSE. The High Court proceeded to facially compare IITs and non-IIT institutions and hold that candidates who are admitted to non-IIT institutions and who do not proceed in the institution and who are allowed to participate in the subsequent JEE (Advanced) amounts to hostile discrimination and those who secure admission but do not proceed with the course in any given year.22. In this Courts opinion, given that the Criteria no.5 is a part of the information Brochure, settled as a condition of admission in terms of of JoSAA Rules of 2020 meant that all IITs had adopted a uniform criteria of not permitting candidates who were successful in a previous year but did not pursue their course and did not opt out of taking another chance in the subsequent year. This was a binding norm applicable to all IIT institutions. If one considers the fact that JEE (Advanced) is governed by rules framed under the Act, and regulations, the further detail that it permitted non- IIT candidates who were admitted in a previous year (but did not pursue their course nor withdrew the option in a previous year) is logical. Such non-IIT institutions are not governed by the Act and regulations framed under it or even for that matter JoSAA Business Rules. Furthermore, in the opinion of this Court, securing a seat in any one of the 23 IITs stands on a different footing than securing a seat in non-IIT institution. This is not to in any manner undermine the worth or academic curricula or ranking of such non-IIT institutions. The classification of IITs, on the one hand and non-IIT institutions on the other hand is warranted. This Court does not wish to emphasise this aspect further except to say that the classification is justified both statutorily and in terms of Parliamentary declaration that the Act was conceived as one meant to set-up institutions of excellence having national status. This Court hold Criterion 5 to be valid, aimed at conserving a valuable public resource, i.e. seats in IITs. | 0 | 4,038 | 1,049 | ### 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:
was conducted on 07.11.2020. Soutrik had, in the meanwhile been offered B.S. (Mathematics) course in the IIT Bombay through a separate admission process based on his performance in the Mathematics Olympiad. This was disclosed by him in the writ petition filed before the High Court. He seems to have accepted that offer of admission. He however, did not withdraw the admission granted earlier as of the last date provided for it. It appears that he wrote to the ITT on 08.11.2020 alleging that he got an offer letter from the IIT Bombay for lateral entry to BS (Mathematics) after the online date for withdrawal had lapsed, demanding refund of his seat acceptance fee. He proceeded to accept the admission granted to him in IIT Bombay on 09.11.2020. 17. The IIT (appellant here) alleges that at the time of his admission, to the BS course in IIT Bombay, Soutrik did not disclose that he had accepted the admission in IIT Kharagpur in Chemical Engineering. Thereafter, he pursued the BS (Mathematics) course. Strangely, on 20.11.2020, Soutrik paid the admission fee for IIT Kharagpur, got his documents verified, studiously maintaining silence about the fact that from 09.11.2020, he was a student pursuing a BS (Mathematics) class from IIT Bombay. 18. The IITs pleading before this Court revealed that on 09.11.2020, this Court had opposed the interim order in a Civil Appeal.(Sidhant Batra v. Director IIT Bombay CA 4029/2020) IIT alleges that inspired by the interim order granted by this Court, Soutrik approached the Calcutta High Court on 23.12.2020 and filed his writ petition without making appropriate disclosures about his securing admission in IIT Bombay and that at the time of securing such admission, suppressing information that he had secured admission in IIT Kharagpur. 19. The reasoning of the High Court of Criterion 5 not permitting IIT students to participate in IIT (Advanced) for the second time being arbitrary, in the opinion of this Court is not supportable. This Court has repeatedly emphasized that in matters such as devising admissions criteria or other issues engaging academic institutions, the courts scrutiny in judicial review has to be careful and circumspect. Unless shown to be plainly arbitrary or discriminatory, the court would defer to the wisdom of administrators in academic institutions who might devise policies in regard to curricular admission process, career progression of their employees, matters of discipline or other general administrative issues concerning the institution or university See Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors (2010) 8 SCC 372 . It was held by this court in All India Council for Technical Education v. Surinder Kumar Dhawan (2009) 11 SCC 726 . 16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education. 20. Given this general reluctance of courts to substitute the views of academic and expert bodies, the approach of the High Court in proceeding straightaway to characterize the rationale given by the IIT in fashioning the Criteria No. 5 cannot be supported. 21. This court is of opinion that the impugned judgement is in error in holding that the exclusion of a candidate who secures admission but does not opt out of it and virtually abandons it as in the case of Soutrik from participating in the subsequent JEE (Advanced) examination is arbitrary. As recounted earlier, criteria, including Criteria no.5 were devised after extensive consultations between all the IITs and other officials of the Union Government as well as the CBSE. The High Court proceeded to facially compare IITs and non-IIT institutions and hold that candidates who are admitted to non-IIT institutions and who do not proceed in the institution and who are allowed to participate in the subsequent JEE (Advanced) amounts to hostile discrimination and those who secure admission but do not proceed with the course in any given year. 22. In this Courts opinion, given that the Criteria no.5 is a part of the information Brochure, settled as a condition of admission in terms of of JoSAA Rules of 2020 meant that all IITs had adopted a uniform criteria of not permitting candidates who were successful in a previous year but did not pursue their course and did not opt out of taking another chance in the subsequent year. This was a binding norm applicable to all IIT institutions. If one considers the fact that JEE (Advanced) is governed by rules framed under the Act, and regulations, the further detail that it permitted non- IIT candidates who were admitted in a previous year (but did not pursue their course nor withdrew the option in a previous year) is logical. Such non-IIT institutions are not governed by the Act and regulations framed under it or even for that matter JoSAA Business Rules. Furthermore, in the opinion of this Court, securing a seat in any one of the 23 IITs stands on a different footing than securing a seat in non-IIT institution. This is not to in any manner undermine the worth or academic curricula or ranking of such non-IIT institutions. The classification of IITs, on the one hand and non-IIT institutions on the other hand is warranted. This Court does not wish to emphasise this aspect further except to say that the classification is justified both statutorily and in terms of Parliamentary declaration that the Act was conceived as one meant to set-up institutions of excellence having national status. This Court hold Criterion 5 to be valid, aimed at conserving a valuable public resource, i.e. seats in IITs.
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13. At the outset, this Court holds as insubstantial the objection on behalf of the respondent, Soutrik that the IIT should have approached the Division Bench in Letter Patent jurisdiction of the Calcutta High Court. The ordinary rule of necessity that litigants should approach and avail of appellate remedies exhausting them before approaching this Court is a rule of convenience and not an immutable practice. It has been held to be so by this Court (Ref State of UP v Harish Chandra & Ors 1996 (9) SCC 309) . Moreover, the discretion under Article 136 of the Constitution is flexible and sufficiently wide, to correct glaring errors and injustices. Furthermore, this Court had issued notice on 09.09.2021 and granted an interim order suspending the directions of the High Court. On the two subsequent dates of hearing, i.e. 17.09.2021 and 24.09.2021, there was no objection on the part of the respondent with respect to the maintainability of the present petition. Having regard to all these facts, the objection is hereby overruled.18. The IITs pleading before this Court revealed that on 09.11.2020, this Court had opposed the interim order in a Civil Appeal.(Sidhant Batra v. Director IIT Bombay CA 4029/2020) IIT alleges that inspired by the interim order granted by this Court, Soutrik approached the Calcutta High Court on 23.12.2020 and filed his writ petition without making appropriate disclosures about his securing admission in IIT Bombay and that at the time of securing such admission, suppressing information that he had secured admission in IIT Kharagpur.19. The reasoning of the High Court of Criterion 5 not permitting IIT students to participate in IIT (Advanced) for the second time being arbitrary, in the opinion of this Court is not supportable. This Court has repeatedly emphasized that in matters such as devising admissions criteria or other issues engaging academic institutions, the courts scrutiny in judicial review has to be careful and circumspect. Unless shown to be plainly arbitrary or discriminatory, the court would defer to the wisdom of administrators in academic institutions who might devise policies in regard to curricular admission process, career progression of their employees, matters of discipline or other general administrative issues concerning the institution or university See Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors (2010) 8 SCC 372 . It was held by this court in All India Council for Technical Education v. Surinder Kumar Dhawan (2009) 11 SCC 726 .16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education.20. Given this general reluctance of courts to substitute the views of academic and expert bodies, the approach of the High Court in proceeding straightaway to characterize the rationale given by the IIT in fashioning the Criteria No. 5 cannot be supported.21. This court is of opinion that the impugned judgement is in error in holding that the exclusion of a candidate who secures admission but does not opt out of it and virtually abandons it as in the case of Soutrik from participating in the subsequent JEE (Advanced) examination is arbitrary. As recounted earlier, criteria, including Criteria no.5 were devised after extensive consultations between all the IITs and other officials of the Union Government as well as the CBSE. The High Court proceeded to facially compare IITs and non-IIT institutions and hold that candidates who are admitted to non-IIT institutions and who do not proceed in the institution and who are allowed to participate in the subsequent JEE (Advanced) amounts to hostile discrimination and those who secure admission but do not proceed with the course in any given year.22. In this Courts opinion, given that the Criteria no.5 is a part of the information Brochure, settled as a condition of admission in terms of of JoSAA Rules of 2020 meant that all IITs had adopted a uniform criteria of not permitting candidates who were successful in a previous year but did not pursue their course and did not opt out of taking another chance in the subsequent year. This was a binding norm applicable to all IIT institutions. If one considers the fact that JEE (Advanced) is governed by rules framed under the Act, and regulations, the further detail that it permitted non- IIT candidates who were admitted in a previous year (but did not pursue their course nor withdrew the option in a previous year) is logical. Such non-IIT institutions are not governed by the Act and regulations framed under it or even for that matter JoSAA Business Rules. Furthermore, in the opinion of this Court, securing a seat in any one of the 23 IITs stands on a different footing than securing a seat in non-IIT institution. This is not to in any manner undermine the worth or academic curricula or ranking of such non-IIT institutions. The classification of IITs, on the one hand and non-IIT institutions on the other hand is warranted. This Court does not wish to emphasise this aspect further except to say that the classification is justified both statutorily and in terms of Parliamentary declaration that the Act was conceived as one meant to set-up institutions of excellence having national status. This Court hold Criterion 5 to be valid, aimed at conserving a valuable public resource, i.e. seats in IITs.
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Harivansh Lal Mehra Vs. State of Maharashtra | of an offence under that Act. According to him, the investigation of his case was illegal as the required sanction had not been obtained. But the most important plea taken by him is that no custom duty was leviable on the articles and to have been sent by the appellant from Goa to Bombay and as such the entire fabric of the prosecution case must fall to the ground. There is force in this contention. Hence it is not necessary to the other contentions.4. As mentioned earlier Goa was liberated on December 20. 1961. Twelfth amendment to our Constitution which received the assent of the President on 27th March, 1962 made Goa a part of India It became a Union Territory. The amendment in question is deemed to have come into force on December 20. 1961. Hence Goa must be considered as a part of India from December 20. 1961 and indisputably at any rate from March 27, 1962. Article 1 of our Constitution says:"1. India, that is Bharat, shall be a Union of States.2. The States and the territories First Schedule.3. The territory of India shall comprise(a) the territories of the States;(b) the Union territory specified the First Schedule; and(c) such territories may be acquired".5. All the territories that this country may acquire in whatever manner become part of India in view of Article 1 (3) {c). Further in the case of Goa by means of 12th amendment to the Constitution, the same is included in the 1st Schedule. There fore there is no room for the contention that Goa was not a part of India during the relevant time. It may be noted that according to the prosecution the `goods complained of were all sent from Goa to Bombay after March 27, 1962.6. This takes us to the question whether there was any liability to pay customs duty when someone sent from Goa to Bombay in 1962. No statute or statutory rule was placed before the Court to show that any customs duty had been imposed on the goods transmitted from Goa to other parts of India after December 20, 1961. The only witness who spoke about the liability to pay customs duties on the goods in question is P. W. 56 Shaikh the Dy. Superintendent of Central Excise. According to him customs duty on those articles was leviable because of certain administrative instructions. But he refused to place those administrative instructions before the Court. He claimed privilege on the ground that they are confidential documents a strange claim. Stranger still is that the trial Court appears to have accepted that plea. No tax or duty can be levied or collected except by authority of law. Hence no customs duty was leviable on the basis of any administrative instruction. Every levy of customs duty or any other tax must be sanctioned by law. It is surprising that both the trial Court as well as the High Court were of the opinion that certain customs duties were leviable because of some administrative instructions. It appears that there was a notification issued in the year 1950 declaring Goa, to be a foreign territory and thus bringing the exports from that country to India within the purview of Land Customs Act. But that notification cannot continue to have a legal effect after Goa became a part of India. On becoming a part of India Goa ceased to be a foreign territory. The notification in question must have been issued under Section 5 of the Indian Tariff Act, 1934 as it stood in 1950 (that section has been repealed now). That section read:"Where a customs duty at any rate prescribed by or under this Act or any other law for the time being in force is leviable on any articles when imported into, or any article when exported from, a port in India the Central Government may, by notification in the official gazette, direct that a duty of customs at the like rate shall be leviable on any such article when imported or exported, as the case may be, by land from or to any territory outside India which it may. by a like notification, declare to be foreign territory for the purposes of this section ".7. The notification under this section could have been issued only in respect of any territory outside India and not in respect of any part of India. That provision empowered the Government to declare any territory outside India as a foreign territory for the purposes of that provision. That provision did not empower the Government to declare any part of India as a foreign territory. But it gave power to the Central Government not to treat any territory outside India as a foreign territory for the purposes of that provision. To illustrate the position, the Central Government could not have declared either Delhi or Bombay as a foreign territory, but it could have treated Nepal or Bhutan as not a foreign territory for the purposes of that provision. Once Goa became part of India, the Government was incompetent to declare that territory as a foreign territory. Nor does it appear that any such declaration was made after December 20, 1961.8. Unfortunately the High Court allowed itself to be influenced by what it says the practical considerations. It is likely that there were considerable foreign goods in Goa which had been imported into that territory before it was liberated, may be even without paying customs duty and those goods were available for being transmitted to other parts of India. But this circumstance does not change the position In law, It is not necessary for us to consider whether after integration of Goa, the Government could have imposed any duty on the goods that were sent from Goa to other parts of India. Suffice it to say that our attention was not invited to any law imposing such duties. That being so, the conclusion that the appellant had utilised his official position to evade customs duty must fail. | 1[ds]But it is not necessary to go into that evidence as in our opinion the charge under which the appellant was convicted is without any legalis force in this contention. Hence it is not necessary to the otherfore there is no room for the contention that Goa was not a part of India during the relevant time. It may be noted that according to the prosecution the `goods complained of were all sent from Goa to Bombay after March 27,statute or statutory rule was placed before the Court to show that any customs duty had been imposed on the goods transmitted from Goa to other parts of India after December 20, 1961. The only witness who spoke about the liability to pay customs duties on the goods in question is P. W. 56 Shaikh the Dy. Superintendent of Central Excise. According to him customs duty on those articles was leviable because of certain administrative instructions. But he refused to place those administrative instructions before the Court. He claimed privilege on the ground that they are confidential documents a strange claim. Stranger still is that the trial Court appears to have accepted that plea. No tax or duty can be levied or collected except by authority of law. Hence no customs duty was leviable on the basis of any administrative instruction. Every levy of customs duty or any other tax must be sanctioned by law. It is surprising that both the trial Court as well as the High Court were of the opinion that certain customs duties were leviable because of some administrative instructions. It appears that there was a notification issued in the year 1950 declaring Goa, to be a foreign territory and thus bringing the exports from that country to India within the purview of Land Customs Act. But that notification cannot continue to have a legal effect after Goa became a part of India. On becoming a part of India Goa ceased to be a foreign territory. The notification in question must have been issued under Section 5 of the Indian Tariff Act, 1934 as it stood in 1950 (that section has been repealed now).The notification under this section could have been issued only in respect of any territory outside India and not in respect of any part of India. That provision empowered the Government to declare any territory outside India as a foreign territory for the purposes of that provision. That provision did not empower the Government to declare any part of India as a foreign territory. But it gave power to the Central Government not to treat any territory outside India as a foreign territory for the purposes of that provision. To illustrate the position, the Central Government could not have declared either Delhi or Bombay as a foreign territory, but it could have treated Nepal or Bhutan as not a foreign territory for the purposes of that provision. Once Goa became part of India, the Government was incompetent to declare that territory as a foreign territory. Nor does it appear that any such declaration was made after December 20, 1961.8. Unfortunately the High Court allowed itself to be influenced by what it says the practical considerations. It is likely that there were considerable foreign goods in Goa which had been imported into that territory before it was liberated, may be even without paying customs duty and those goods were available for being transmitted to other parts of India. But this circumstance does not change the position In law, It is not necessary for us to consider whether after integration of Goa, the Government could have imposed any duty on the goods that were sent from Goa to other parts of India. Suffice it to say that our attention was not invited to any law imposing such duties. That being so, the conclusion that the appellant had utilised his official position to evade customs duty must fail. | 1 | 1,864 | 701 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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of an offence under that Act. According to him, the investigation of his case was illegal as the required sanction had not been obtained. But the most important plea taken by him is that no custom duty was leviable on the articles and to have been sent by the appellant from Goa to Bombay and as such the entire fabric of the prosecution case must fall to the ground. There is force in this contention. Hence it is not necessary to the other contentions.4. As mentioned earlier Goa was liberated on December 20. 1961. Twelfth amendment to our Constitution which received the assent of the President on 27th March, 1962 made Goa a part of India It became a Union Territory. The amendment in question is deemed to have come into force on December 20. 1961. Hence Goa must be considered as a part of India from December 20. 1961 and indisputably at any rate from March 27, 1962. Article 1 of our Constitution says:"1. India, that is Bharat, shall be a Union of States.2. The States and the territories First Schedule.3. The territory of India shall comprise(a) the territories of the States;(b) the Union territory specified the First Schedule; and(c) such territories may be acquired".5. All the territories that this country may acquire in whatever manner become part of India in view of Article 1 (3) {c). Further in the case of Goa by means of 12th amendment to the Constitution, the same is included in the 1st Schedule. There fore there is no room for the contention that Goa was not a part of India during the relevant time. It may be noted that according to the prosecution the `goods complained of were all sent from Goa to Bombay after March 27, 1962.6. This takes us to the question whether there was any liability to pay customs duty when someone sent from Goa to Bombay in 1962. No statute or statutory rule was placed before the Court to show that any customs duty had been imposed on the goods transmitted from Goa to other parts of India after December 20, 1961. The only witness who spoke about the liability to pay customs duties on the goods in question is P. W. 56 Shaikh the Dy. Superintendent of Central Excise. According to him customs duty on those articles was leviable because of certain administrative instructions. But he refused to place those administrative instructions before the Court. He claimed privilege on the ground that they are confidential documents a strange claim. Stranger still is that the trial Court appears to have accepted that plea. No tax or duty can be levied or collected except by authority of law. Hence no customs duty was leviable on the basis of any administrative instruction. Every levy of customs duty or any other tax must be sanctioned by law. It is surprising that both the trial Court as well as the High Court were of the opinion that certain customs duties were leviable because of some administrative instructions. It appears that there was a notification issued in the year 1950 declaring Goa, to be a foreign territory and thus bringing the exports from that country to India within the purview of Land Customs Act. But that notification cannot continue to have a legal effect after Goa became a part of India. On becoming a part of India Goa ceased to be a foreign territory. The notification in question must have been issued under Section 5 of the Indian Tariff Act, 1934 as it stood in 1950 (that section has been repealed now). That section read:"Where a customs duty at any rate prescribed by or under this Act or any other law for the time being in force is leviable on any articles when imported into, or any article when exported from, a port in India the Central Government may, by notification in the official gazette, direct that a duty of customs at the like rate shall be leviable on any such article when imported or exported, as the case may be, by land from or to any territory outside India which it may. by a like notification, declare to be foreign territory for the purposes of this section ".7. The notification under this section could have been issued only in respect of any territory outside India and not in respect of any part of India. That provision empowered the Government to declare any territory outside India as a foreign territory for the purposes of that provision. That provision did not empower the Government to declare any part of India as a foreign territory. But it gave power to the Central Government not to treat any territory outside India as a foreign territory for the purposes of that provision. To illustrate the position, the Central Government could not have declared either Delhi or Bombay as a foreign territory, but it could have treated Nepal or Bhutan as not a foreign territory for the purposes of that provision. Once Goa became part of India, the Government was incompetent to declare that territory as a foreign territory. Nor does it appear that any such declaration was made after December 20, 1961.8. Unfortunately the High Court allowed itself to be influenced by what it says the practical considerations. It is likely that there were considerable foreign goods in Goa which had been imported into that territory before it was liberated, may be even without paying customs duty and those goods were available for being transmitted to other parts of India. But this circumstance does not change the position In law, It is not necessary for us to consider whether after integration of Goa, the Government could have imposed any duty on the goods that were sent from Goa to other parts of India. Suffice it to say that our attention was not invited to any law imposing such duties. That being so, the conclusion that the appellant had utilised his official position to evade customs duty must fail.
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But it is not necessary to go into that evidence as in our opinion the charge under which the appellant was convicted is without any legalis force in this contention. Hence it is not necessary to the otherfore there is no room for the contention that Goa was not a part of India during the relevant time. It may be noted that according to the prosecution the `goods complained of were all sent from Goa to Bombay after March 27,statute or statutory rule was placed before the Court to show that any customs duty had been imposed on the goods transmitted from Goa to other parts of India after December 20, 1961. The only witness who spoke about the liability to pay customs duties on the goods in question is P. W. 56 Shaikh the Dy. Superintendent of Central Excise. According to him customs duty on those articles was leviable because of certain administrative instructions. But he refused to place those administrative instructions before the Court. He claimed privilege on the ground that they are confidential documents a strange claim. Stranger still is that the trial Court appears to have accepted that plea. No tax or duty can be levied or collected except by authority of law. Hence no customs duty was leviable on the basis of any administrative instruction. Every levy of customs duty or any other tax must be sanctioned by law. It is surprising that both the trial Court as well as the High Court were of the opinion that certain customs duties were leviable because of some administrative instructions. It appears that there was a notification issued in the year 1950 declaring Goa, to be a foreign territory and thus bringing the exports from that country to India within the purview of Land Customs Act. But that notification cannot continue to have a legal effect after Goa became a part of India. On becoming a part of India Goa ceased to be a foreign territory. The notification in question must have been issued under Section 5 of the Indian Tariff Act, 1934 as it stood in 1950 (that section has been repealed now).The notification under this section could have been issued only in respect of any territory outside India and not in respect of any part of India. That provision empowered the Government to declare any territory outside India as a foreign territory for the purposes of that provision. That provision did not empower the Government to declare any part of India as a foreign territory. But it gave power to the Central Government not to treat any territory outside India as a foreign territory for the purposes of that provision. To illustrate the position, the Central Government could not have declared either Delhi or Bombay as a foreign territory, but it could have treated Nepal or Bhutan as not a foreign territory for the purposes of that provision. Once Goa became part of India, the Government was incompetent to declare that territory as a foreign territory. Nor does it appear that any such declaration was made after December 20, 1961.8. Unfortunately the High Court allowed itself to be influenced by what it says the practical considerations. It is likely that there were considerable foreign goods in Goa which had been imported into that territory before it was liberated, may be even without paying customs duty and those goods were available for being transmitted to other parts of India. But this circumstance does not change the position In law, It is not necessary for us to consider whether after integration of Goa, the Government could have imposed any duty on the goods that were sent from Goa to other parts of India. Suffice it to say that our attention was not invited to any law imposing such duties. That being so, the conclusion that the appellant had utilised his official position to evade customs duty must fail.
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Shrimant Appasaheb Tuljaram Desaiand Others Vs. Bhalchandra Vithalrao Thube | view that they deal only with poor people or are intended to protect against destitution. Thus there is nothing in cl. (b) to indicate that the tools of only poor artisans are to be protected. The same thing can be said of an agriculturist. The fact that his cattle and seed-grain are protected to the extent necessary to enable him to earn his livelihood does not lead to the view that he must be a poor agriculturist. On the contrary, the clause contemplates an agriculturist who has more cattle and seed-grain than he needs for his livelihood. It clearly contemplates a rich and large scale agriculturist. 33. Therefore it seems to me that there is no warrant for imposing any qualification on the plain meaning of the word agriculturist in cls. (b) and (c). In my view, an agriculturist contemplated by the clauses is any person who occupies himself with agriculture. This is the view taken in ILR (1938) Nag 461: (AIR 1938 Nag 366) and with it I agree. A person occupying himself with agriculture would be an agriculturist though he does not cultivate with his own hands and carries on agriculture in a very large scale. He would still be an agriculturist though he has other means of livelihood besides agriculture. 34. I come now to the facts of this case. The question is, is Appasaheb such an agriculturist as I have indicated? The evidence clearly shows that he is. It can be said to have been established beyond doubt and not questioned in the Courts below, that Appasaheb was carrying on agricultural operations under his supervision through labour employed by him and with his own cattle and agricultural implements on fifty to sixty acres of land. The evidence also establishes that Appasahebs income from agriculture came to Rs. 30,000 to Rs. 35,000 per year., It appears that he was in receipt of cash allowances of Rs. 700 to Rs. 800 per year in respect of the watan and Rs. 4,000 to Rs. 5,000 per year from village officers of the watan villages, neither of which was income from agriculture. These facts in my view make Appasaheb an agriculturist for the purpose of cls. (b) and (c) though it may be that he was not dependent for his living upon agriculture and was a large scale farmer who did not till with his own hands. I wish however to state that there is uncontradicted testimony that Appasaheb personally took part in the agricultural operations. 35. Now cl .(c) protects from attachment and sale houses and other buildings with the sites thereof and land immediately appurtenant thereto and necessary for their enjoyment, belonging to an agriculturist and occupied by him. I think it is a fair reading of this clause to say that the houses, buildings and lands must be occupied by the agriculturist for the purpose of agriculture for the object of these clauses is to protect an agriculturist only so far as is necessary for his agricultural operations. If an agriculturist occupied a house, say as a holiday resort, there would be no reason to protect that house from attachment and sale. 36. The question then arises whether Appasaheb occupied the wada for the purposes of his agricultural operations. I think the evidence makes it perfectly clear that he did so. It shows that the larger part of the wada was used for storing crops, keeping agricultural implements, residence of the farm servants and tethering cattle used for agriculture. Appasaheb and his family lived in a part of the wada but that also was clearly occupation for purposes of agriculture, for it is from there that he supervised the agricultural operations. 37. I have therefore come to the conclusion that the wada is saved from attachment and sale in execution by cl. (c) of the proviso to sub-sec.(1) of S. 60 of the Code of Civil Procedure. 38. The other contention of the appellants does seem to me to be sustainable. It is said that the maxim accessio credit principali applies and the wada standing on watan land has acquired the character of watan as an accession to it. It is not in dispute now that the wada was not in existence when the watan was first created but had been built subsequently by one of the watandars. It is also said that the grant of the watan carried full right to ownership in the subject of the grant; that the grantee had the right to make such use of the land granted as any owner of it could have done. So it was said that the wada had been put up rightfully by the watandar and became part of the watan as an accession to it. 39. There is no doubt that the wada was rightfully constructed. It may be that it became on such construction a part of the land on which it stands and assumed the character of immovable property. But I am unable to agree that it thereupon assumed the inalienable character of watan property and was therefore not liable to attachment and sale is execution. I do not think that the maxim accessio credit principali applies in giving the wada put up on watan the character of a watan. Watan is a creation by government grant. It is inalienable under a special Act. The inalienable character attaches under the Act only to the property granted by the government. This peculiar character cannot be extended to other property by the application of the maxim. Therefore it seems to me that the wada is not inalienable though it stands on land which is inalienable as a government grant under a special Act. I would for this reason reject this contention of the appellant. 40. As however in my view, the wada is protected from attachment and sale in execution under cl. (c) to the proviso to sub-sec. (1) of S. 60 of the Code of Civil Procedure, I would allow the appeal. 41. Order: | 0[ds]Having regard to the definition of immoveable property in the Bombay General Clauses Act he was of the opinion that the house certainly formed part of the immoveable property which was held for the performance of the duty appertaining to the hereditary office of the Watan and that the only answer to the question what is the immoveable property which is held for the performance of the duty under S. 4? can be both the land and the house. If the house forms part of the immoveable property it is not possible to sever the two and to say that it is only the land which is Watan property and not the house which is permanently fastened to it. Shah, J. relied upon the decision of Chagla, J. and held that the land on which the Wada in the present case stood, being Watan property, the Wada must also be deemed to have acquired that character. The Division Bench which heard the appeal against the decision of Shah, J. was of the opinion that although a house built on land must be regarded as immoveable property it did not follow that like the land on which it was built the house became Watan property. The fact that a house subsequently built became immoveable property would have no material bearing on the question whether it was Watan property or not. In order that the house may be regarded as Watan property it must satisfy the test laid down by the definition of the word Watam Property in S. 4 of the Act and that if the word held was construed in the way in which the learned Judges of the Division Bench thought it should be, it would be difficult to accept the view that a house subsequently built by a watandar on a part of the Watan land could be said to be held by him for the performance of his duties of a hereditary office. The learned Judges of the Division Bench accordingly were of the opinion that Mr. Justice Shah erred in so holding6. On behalf of the appellants it was argued that the right, title and interest of the grantor had to be looked at first in construing a grant and if it appeared from the terms thereof that it did not contain any reservation or exception then all the rights, title and interest of the grantor which he was capable of granting would pass to the grantee. The grantor in this case was the Government which could have built a construction on the land granted or dug tube wells on it. The grantee, therefore, could also build a house or any other structure on the land. On the other hand, it was contended on behalf of the respondent that the position of a watandar was not that of an absolute owner of the land. He held the land on certain conditions. The land was liable to forfeiture if he was guilty of certain acts mentioned in S. 60 and Schedule II of the Act. We will assume, there being nothing to the contrary in the Sanand, that the grantee was not restricted from constructing a building on the land. From that, however, it does not necessarily follow that the building so constructed became Watan property within the meaning of the Act. If the Government could have built a construction on the land it could also have dismantled it and removed the material with which it was made. Similarly, the grantee could do so, there being no restriction in that regard in the terms of the Sanad. It seems to us that on a proper construction of the Sanad there was no impediment in the way of the grantee from dismantling the house which he had built and removing the materials with which it had been constructed and selling the same. Indeed, unless it is held that a house constructed on the land partakes of the character of the land, it is difficult to see how the grantee is prevented from selling or mortgaging it but not the land on which it stood.It seems to us, therefore, that the Wada in the present case although immovable property did not partake of the character of the land on which it was constructed because it was severable from the land and was capable of being dismantled and the materials of which could be removed and sold without violating any of the provisions of the Act. In our opinion, the decision of the Division Bench of the High Court that the Wada was not Watan property appears to be correctIt was urged that as the word agriculturist has not been defined in the Code, the word must be construed according to its ordinary meaning. According to Shorter Oxford English Dictionary this word can also mean a farmer. Neither the extent of the land farmed by him nor the amount of income derived by him from cultivating the land was a relevant consideration in construing the word agriculturist. Nor would it be right to restrict the meaning of the word agriculturist to mean that an agriculturist must be a person who himself or by the aid of the members of his family tills the land and not with the aid of employed labour. On behalf of the respondent, however, it was contended that the word agriculturist in cl. (c) of the proviso must bear the same meaning as the word agriculturist in cl. (b) of the proviso. It was necessary, therefore, to construe the provisions of cl. (b) as well in order to understand what the Code intended the word agriculturist to mean in cl. (c). On a proper construction of cl. (b) not only an agriculturist must be the tiller of the land but he must also be a small agriculturist. Clause (b) was not intended to refer to a person who cultivated a large area of land and derived from it a large income. It was pointed out that in the present case the appellant Appasaheb was cultivating a very large area of land with the aid of employed labour and derived an income somewhere between Rs. 30,000 to 35,000 a year. Section 60(1) of the Code states in detail what property of a judgment debtor is liable to attachment and sale in the execution of a decree. It was urged that but for the proviso all the properties of Tuljaramarao other than Watan property were liable to attachment and sale in execution of Laxmanaraos decree. The proviso no doubt exempted from attachment and sale certain properties mentioned therein but cl. (b) of the proviso clearly indicated that the object of the code was to save in the case of a judgment debtor his tools as an artisan and, where he was an agriculturist, his implements of husbandry and such cattle and seed-grains as may, in the opinion of the court, be necessary to earn his livelihood. It did not even exempt his agricultural produce unless there was a notification under S. 61 of the Code specifying by a general or special order how much of the agricultural produce was, in the opinion of the State Government, necessary for the purpose of providing, until the next harvest, for due cultivation and the support of the judgment debtor and his family. It was suggested, therefore, that the Code intended to exempt from attachment and sale, in the case of an agriculturist, only that much which was necessary to enable him to earn his livelihood as such10. In the present case the evidence of the appellants own witness, Balaji, shows that Tuljaramarao had reserved some lands for a home farm about 8 years before his death. The area reserved was about 35 acres and that he maintained about 12 bullocks and 8 servants. He was getting an income of Rs. 20,000 to Rs. 25,000 a year from these lands. He used to keep his cattle in the Wada where his servants also stayed and his agricultural implements were kept. The produce of the lands was also stored in the Wada. Tuljaramarao used to supervise the agricultural operations and his servants. After his death his son appellant Appasaheb became the owner. Appasaheb increased the acreage of the cultivation of the home farm to about 60 acres. He has 14 bullocks and 10 or 12 servants and the income is Rs. 30,000 to Rs. 35,000 a year. The cattle and the produce are kept in the Wada where he also resides. This witness also stated that the appellant Appasaheb had inams in 4 villages. Furthermore, in 10 or 12 villages he owns lands and he gets about Rs. 35,000 to 40,000 from his lands. The said Appasaheb and his brother sometimes worked personally in the fields. It is clear, from this evidence, that Appasaheb is by no means entirely dependent for his livelihood upon the income from the home farm. Apart from the income of the home farm he has a substantial income from other lands and there is nothing to show that this income derived from his other lands is the result of cultivation by him13. Under cl. (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him are exempted from attachment. The word agriculturist in this clause must carry the same meaning as the word agriculturist in cl. (b) and the house must be occupied by him as such. The object of the exemption in cl. (c) apparently is that an agriculturist should not be left without a roof over his head. In other words, the Legislature intended by cls. (b) and (c) to prevent an agriculturist becoming destitute and homeless. It was, however, argued on behalf of the appellants that there are no restrictive words in cl. (c). So long as it was a house belonging to an agriculturist and occupied by him, it was exempted from attachment no matter what other income than agriculture was earned by him. The Wada in question was clearly occupied by the appellants for the purpose of tilling the land of the home farm and for storing the produce thereof, the implements of husbandry and tethering of cattle employed in cultivating the land. It seems to us, on the evidence of the appellants own witness, that they do not themselves till the land of the home farm which is done by a large number of labourers employed by them. Tuljaramarao did not himself cultivate the land. He merely supervised the work of cultivation by the labourers. The witness, however, did state that sometimes Appasaheb and his brother worked personally in the fields. This is a vague statement which does not necessarily mean that they did any act of cultivation themselves. The Wada in question is a big structure where the appellants reside but if they are not agriculturists within the meaning of that word in S. 60, the Wada cannot be exempted from attachment. It seems to us that even if it is not necessary that a person must till the land with his own hands to come within the meaning of the word agriculturist he must at least show that he was really dependent for his living on tilling the soil and was unable to maintain himself otherwise. In the present case it is quite obvious that even if the appellants can be described as agriculturists in the widest sense of that term, they are not agriculturists who are really dependent for their maintenance on tilling the soil and that they are unable to maintain themselves otherwise. The evidence shows that Tuljaramaroa was getting an income of nearly 20,000 to 25,000 rupees from lands cultivated in the home farm and that the appellant Appasaheb by extending the acreage of that farm was receiving an income of Rs. 30,000to Rs. 35,000 In addition he had lands in 10 or 12 other villages and his income from the lands was Rs. 35,000 to Rs. 40,000. Assuming that these figures include the income from the lands of the home farm ,they would show that in addition to that income he had an additional income of at least Rs. 5,000 from lands in villages other than Nandi. Furthermore, the appellant Appasaheb is receiving a cash allowance of Rs. 700 to Rs. 800 per annum and Rs. 4,000 to Rs. 5,000 from the village officers of the four inam villages. In these circumstances, it can hardly be said that the appellant Appasaheb is really dependent for his maintenance by tilling the soil and unable to maintain himself otherwise. From this point of view its seems to us that he cannot be regarded as an agriculturist within the meaning of that word in S. 60 of the Code.14. In our opinion, the decision of the High Court that the Wada in question was not Watan property and that it was not exempted from attachment by virtue of the provisions of S. 60(1) of the Code is correct. The appeal is accordingly dismissed with costs. | 0 | 9,995 | 2,382 | ### Instruction:
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view that they deal only with poor people or are intended to protect against destitution. Thus there is nothing in cl. (b) to indicate that the tools of only poor artisans are to be protected. The same thing can be said of an agriculturist. The fact that his cattle and seed-grain are protected to the extent necessary to enable him to earn his livelihood does not lead to the view that he must be a poor agriculturist. On the contrary, the clause contemplates an agriculturist who has more cattle and seed-grain than he needs for his livelihood. It clearly contemplates a rich and large scale agriculturist. 33. Therefore it seems to me that there is no warrant for imposing any qualification on the plain meaning of the word agriculturist in cls. (b) and (c). In my view, an agriculturist contemplated by the clauses is any person who occupies himself with agriculture. This is the view taken in ILR (1938) Nag 461: (AIR 1938 Nag 366) and with it I agree. A person occupying himself with agriculture would be an agriculturist though he does not cultivate with his own hands and carries on agriculture in a very large scale. He would still be an agriculturist though he has other means of livelihood besides agriculture. 34. I come now to the facts of this case. The question is, is Appasaheb such an agriculturist as I have indicated? The evidence clearly shows that he is. It can be said to have been established beyond doubt and not questioned in the Courts below, that Appasaheb was carrying on agricultural operations under his supervision through labour employed by him and with his own cattle and agricultural implements on fifty to sixty acres of land. The evidence also establishes that Appasahebs income from agriculture came to Rs. 30,000 to Rs. 35,000 per year., It appears that he was in receipt of cash allowances of Rs. 700 to Rs. 800 per year in respect of the watan and Rs. 4,000 to Rs. 5,000 per year from village officers of the watan villages, neither of which was income from agriculture. These facts in my view make Appasaheb an agriculturist for the purpose of cls. (b) and (c) though it may be that he was not dependent for his living upon agriculture and was a large scale farmer who did not till with his own hands. I wish however to state that there is uncontradicted testimony that Appasaheb personally took part in the agricultural operations. 35. Now cl .(c) protects from attachment and sale houses and other buildings with the sites thereof and land immediately appurtenant thereto and necessary for their enjoyment, belonging to an agriculturist and occupied by him. I think it is a fair reading of this clause to say that the houses, buildings and lands must be occupied by the agriculturist for the purpose of agriculture for the object of these clauses is to protect an agriculturist only so far as is necessary for his agricultural operations. If an agriculturist occupied a house, say as a holiday resort, there would be no reason to protect that house from attachment and sale. 36. The question then arises whether Appasaheb occupied the wada for the purposes of his agricultural operations. I think the evidence makes it perfectly clear that he did so. It shows that the larger part of the wada was used for storing crops, keeping agricultural implements, residence of the farm servants and tethering cattle used for agriculture. Appasaheb and his family lived in a part of the wada but that also was clearly occupation for purposes of agriculture, for it is from there that he supervised the agricultural operations. 37. I have therefore come to the conclusion that the wada is saved from attachment and sale in execution by cl. (c) of the proviso to sub-sec.(1) of S. 60 of the Code of Civil Procedure. 38. The other contention of the appellants does seem to me to be sustainable. It is said that the maxim accessio credit principali applies and the wada standing on watan land has acquired the character of watan as an accession to it. It is not in dispute now that the wada was not in existence when the watan was first created but had been built subsequently by one of the watandars. It is also said that the grant of the watan carried full right to ownership in the subject of the grant; that the grantee had the right to make such use of the land granted as any owner of it could have done. So it was said that the wada had been put up rightfully by the watandar and became part of the watan as an accession to it. 39. There is no doubt that the wada was rightfully constructed. It may be that it became on such construction a part of the land on which it stands and assumed the character of immovable property. But I am unable to agree that it thereupon assumed the inalienable character of watan property and was therefore not liable to attachment and sale is execution. I do not think that the maxim accessio credit principali applies in giving the wada put up on watan the character of a watan. Watan is a creation by government grant. It is inalienable under a special Act. The inalienable character attaches under the Act only to the property granted by the government. This peculiar character cannot be extended to other property by the application of the maxim. Therefore it seems to me that the wada is not inalienable though it stands on land which is inalienable as a government grant under a special Act. I would for this reason reject this contention of the appellant. 40. As however in my view, the wada is protected from attachment and sale in execution under cl. (c) to the proviso to sub-sec. (1) of S. 60 of the Code of Civil Procedure, I would allow the appeal. 41. Order:
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of the agricultural produce was, in the opinion of the State Government, necessary for the purpose of providing, until the next harvest, for due cultivation and the support of the judgment debtor and his family. It was suggested, therefore, that the Code intended to exempt from attachment and sale, in the case of an agriculturist, only that much which was necessary to enable him to earn his livelihood as such10. In the present case the evidence of the appellants own witness, Balaji, shows that Tuljaramarao had reserved some lands for a home farm about 8 years before his death. The area reserved was about 35 acres and that he maintained about 12 bullocks and 8 servants. He was getting an income of Rs. 20,000 to Rs. 25,000 a year from these lands. He used to keep his cattle in the Wada where his servants also stayed and his agricultural implements were kept. The produce of the lands was also stored in the Wada. Tuljaramarao used to supervise the agricultural operations and his servants. After his death his son appellant Appasaheb became the owner. Appasaheb increased the acreage of the cultivation of the home farm to about 60 acres. He has 14 bullocks and 10 or 12 servants and the income is Rs. 30,000 to Rs. 35,000 a year. The cattle and the produce are kept in the Wada where he also resides. This witness also stated that the appellant Appasaheb had inams in 4 villages. Furthermore, in 10 or 12 villages he owns lands and he gets about Rs. 35,000 to 40,000 from his lands. The said Appasaheb and his brother sometimes worked personally in the fields. It is clear, from this evidence, that Appasaheb is by no means entirely dependent for his livelihood upon the income from the home farm. Apart from the income of the home farm he has a substantial income from other lands and there is nothing to show that this income derived from his other lands is the result of cultivation by him13. Under cl. (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him are exempted from attachment. The word agriculturist in this clause must carry the same meaning as the word agriculturist in cl. (b) and the house must be occupied by him as such. The object of the exemption in cl. (c) apparently is that an agriculturist should not be left without a roof over his head. In other words, the Legislature intended by cls. (b) and (c) to prevent an agriculturist becoming destitute and homeless. It was, however, argued on behalf of the appellants that there are no restrictive words in cl. (c). So long as it was a house belonging to an agriculturist and occupied by him, it was exempted from attachment no matter what other income than agriculture was earned by him. The Wada in question was clearly occupied by the appellants for the purpose of tilling the land of the home farm and for storing the produce thereof, the implements of husbandry and tethering of cattle employed in cultivating the land. It seems to us, on the evidence of the appellants own witness, that they do not themselves till the land of the home farm which is done by a large number of labourers employed by them. Tuljaramarao did not himself cultivate the land. He merely supervised the work of cultivation by the labourers. The witness, however, did state that sometimes Appasaheb and his brother worked personally in the fields. This is a vague statement which does not necessarily mean that they did any act of cultivation themselves. The Wada in question is a big structure where the appellants reside but if they are not agriculturists within the meaning of that word in S. 60, the Wada cannot be exempted from attachment. It seems to us that even if it is not necessary that a person must till the land with his own hands to come within the meaning of the word agriculturist he must at least show that he was really dependent for his living on tilling the soil and was unable to maintain himself otherwise. In the present case it is quite obvious that even if the appellants can be described as agriculturists in the widest sense of that term, they are not agriculturists who are really dependent for their maintenance on tilling the soil and that they are unable to maintain themselves otherwise. The evidence shows that Tuljaramaroa was getting an income of nearly 20,000 to 25,000 rupees from lands cultivated in the home farm and that the appellant Appasaheb by extending the acreage of that farm was receiving an income of Rs. 30,000to Rs. 35,000 In addition he had lands in 10 or 12 other villages and his income from the lands was Rs. 35,000 to Rs. 40,000. Assuming that these figures include the income from the lands of the home farm ,they would show that in addition to that income he had an additional income of at least Rs. 5,000 from lands in villages other than Nandi. Furthermore, the appellant Appasaheb is receiving a cash allowance of Rs. 700 to Rs. 800 per annum and Rs. 4,000 to Rs. 5,000 from the village officers of the four inam villages. In these circumstances, it can hardly be said that the appellant Appasaheb is really dependent for his maintenance by tilling the soil and unable to maintain himself otherwise. From this point of view its seems to us that he cannot be regarded as an agriculturist within the meaning of that word in S. 60 of the Code.14. In our opinion, the decision of the High Court that the Wada in question was not Watan property and that it was not exempted from attachment by virtue of the provisions of S. 60(1) of the Code is correct. The appeal is accordingly dismissed with costs.
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Ravirala Laxmaiah Vs. State of A.P | anterior-posterior plane and were more steeply sloping when compared with unfractured hyoids. These data indicate that hyoids of strangulation victims, with and without fracture, are distinguished by various indices of shape and rigidity. On this basis, it may be possible to explain why some victims of strangulation do not have fractured hyoid bones.’23. Mr Rangaramanujam, however, relied upon Modis Medical Jurisprudence and Toxicology, 23rd Edn. at p. 584 wherein a difference between hanging and strangulation has been stated. Our attention in this connection has been drawn to Point 12 which reads as under:HangingStrangulationFracture of thelarynx and trachea-Very rare and thattoo in judicialhangingFracture of thelarynx and trachea –Often found alsohyoidbone.24. A bare perusal of the opinion of the learned author by itself does not lead to the conclusion that fracture of hyoid bone, is a must in all the cases.” 13. Dr. Aman Hingorani has submitted that in the present case, the post mortem report is completely silent about the ligature mark and its characteristics, as a result of which it cannot be said that the present case was one of homicidal strangulation/throttling as alleged by the prosecution. Dr. Hingorani has placed a very heavy reliance on Modi’s Medical Jurisprudence and Toxicology wherein after emphasizing that “hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation”, has given the differences between hanging and strangulation in tabulated form, two of them being as follows: HangingStrangulation Ligature Mark –Oblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove of furrow being hard, yellow and parchment like Scratches, abrasions and bruises on the face, neck and other parts of the body – Usually not presentLigature Mark – Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish Scratches, abrasions and bruises on the face, neck and other parts of the body – Usually not present 14. However, in view of the binding decision referred to hereinabove, we concur with the reasoning that has been given by the Trial Court, as well as by the High Court and are not in a position to accept the submissions made by Dr. Aman Hingorani. 15. It is a settled legal proposition that in a case based on circumstantial evidence, where no eye-witness’s account is available, the principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. (Vide: State of U.P. v. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 ; Gulab Chand v. State of M.P., AIR 1995 SC 1598 ; State of Tamil Nadu v. Rajendran, AIR 1999 SC 3535 ; State of Maharashtra v. Suresh, (2000) 1 SCC 471 ; and Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 ). 16. In Neel Kumar @ Anil Kumar v. State of Haryana, (2012) 5 SCC 766 , this Court observed : “30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal, AIR 2010 SC 773 )” 17. In cases where the accused has been seen with the deceased victim (last seen theory), it becomes the duty of the accused to explain the circumstances under which the death of the victim has occurred. (Vide: Nika Ram v. The State of Himachal Pradesh, AIR 1972 SC 2077 ; Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 ; and Ponnusamy (supra). 18. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , this Court held as under: “Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.” (See also: Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10 ) 19. In view of the above discussion, we reach the inescapable conclusion that appellant had been doubting the character of his wife and therefore, had adequate motive to eliminate her. In spite of the fact that he had been in the same room, he failed to furnish any explanation as under what circumstances his wife was found dead. Particularly, in view of the fact that the courts below had excluded the theory of suicide. The same conclusion stands fully fortified by the fact that the saree of deceased was lying in the corner of the room and the version given by the appellant that he had found his wife hanging with a saree around her neck and he cut the same by knife stands fully falsified as in such a fact-situation, part of the saree should have been found hanging with the ceiling of the room. The conduct of the appellant that he had given a false information to his in-laws and while dead body was lying in his house he stayed in a Krishna Guest House; further that he had absconded from the city itself, suggest that he is guilty of the offence. | 0[ds]It is a settled legal proposition that in a case based on circumstantial evidence, where noaccount is available, the principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.In view of the above discussion, we reach the inescapable conclusion that appellant had been doubting the character of his wife and therefore, had adequate motive to eliminate her. In spite of the fact that he had been in the same room, he failed to furnish any explanation as under what circumstances his wife was found dead. Particularly, in view of the fact that the courts below had excluded the theory of suicide. The same conclusion stands fully fortified by the fact that the saree of deceased was lying in the corner of the room and the version given by the appellant that he had found his wife hanging with a saree around her neck and he cut the same by knife stands fully falsified as in such a fact-situation, part of the saree should have been found hanging with the ceiling of the room. The conduct of the appellant that he had given a false information to his in-laws and while dead body was lying in his house he stayed in a Krishna Guest House; further that he had absconded from the city itself, suggest that he is guilty of the offence.However, in view of the binding decision referred to hereinabove, we concur with the reasoning that has been given by the Trial Court, as well as by the High Court and are not in a position to accept the submissions made by Dr. Aman Hingorani. | 0 | 4,388 | 327 | ### Instruction:
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anterior-posterior plane and were more steeply sloping when compared with unfractured hyoids. These data indicate that hyoids of strangulation victims, with and without fracture, are distinguished by various indices of shape and rigidity. On this basis, it may be possible to explain why some victims of strangulation do not have fractured hyoid bones.’23. Mr Rangaramanujam, however, relied upon Modis Medical Jurisprudence and Toxicology, 23rd Edn. at p. 584 wherein a difference between hanging and strangulation has been stated. Our attention in this connection has been drawn to Point 12 which reads as under:HangingStrangulationFracture of thelarynx and trachea-Very rare and thattoo in judicialhangingFracture of thelarynx and trachea –Often found alsohyoidbone.24. A bare perusal of the opinion of the learned author by itself does not lead to the conclusion that fracture of hyoid bone, is a must in all the cases.” 13. Dr. Aman Hingorani has submitted that in the present case, the post mortem report is completely silent about the ligature mark and its characteristics, as a result of which it cannot be said that the present case was one of homicidal strangulation/throttling as alleged by the prosecution. Dr. Hingorani has placed a very heavy reliance on Modi’s Medical Jurisprudence and Toxicology wherein after emphasizing that “hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation”, has given the differences between hanging and strangulation in tabulated form, two of them being as follows: HangingStrangulation Ligature Mark –Oblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove of furrow being hard, yellow and parchment like Scratches, abrasions and bruises on the face, neck and other parts of the body – Usually not presentLigature Mark – Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish Scratches, abrasions and bruises on the face, neck and other parts of the body – Usually not present 14. However, in view of the binding decision referred to hereinabove, we concur with the reasoning that has been given by the Trial Court, as well as by the High Court and are not in a position to accept the submissions made by Dr. Aman Hingorani. 15. It is a settled legal proposition that in a case based on circumstantial evidence, where no eye-witness’s account is available, the principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. (Vide: State of U.P. v. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 ; Gulab Chand v. State of M.P., AIR 1995 SC 1598 ; State of Tamil Nadu v. Rajendran, AIR 1999 SC 3535 ; State of Maharashtra v. Suresh, (2000) 1 SCC 471 ; and Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 ). 16. In Neel Kumar @ Anil Kumar v. State of Haryana, (2012) 5 SCC 766 , this Court observed : “30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal, AIR 2010 SC 773 )” 17. In cases where the accused has been seen with the deceased victim (last seen theory), it becomes the duty of the accused to explain the circumstances under which the death of the victim has occurred. (Vide: Nika Ram v. The State of Himachal Pradesh, AIR 1972 SC 2077 ; Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 ; and Ponnusamy (supra). 18. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , this Court held as under: “Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.” (See also: Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10 ) 19. In view of the above discussion, we reach the inescapable conclusion that appellant had been doubting the character of his wife and therefore, had adequate motive to eliminate her. In spite of the fact that he had been in the same room, he failed to furnish any explanation as under what circumstances his wife was found dead. Particularly, in view of the fact that the courts below had excluded the theory of suicide. The same conclusion stands fully fortified by the fact that the saree of deceased was lying in the corner of the room and the version given by the appellant that he had found his wife hanging with a saree around her neck and he cut the same by knife stands fully falsified as in such a fact-situation, part of the saree should have been found hanging with the ceiling of the room. The conduct of the appellant that he had given a false information to his in-laws and while dead body was lying in his house he stayed in a Krishna Guest House; further that he had absconded from the city itself, suggest that he is guilty of the offence.
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### Explanation:
It is a settled legal proposition that in a case based on circumstantial evidence, where noaccount is available, the principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.In view of the above discussion, we reach the inescapable conclusion that appellant had been doubting the character of his wife and therefore, had adequate motive to eliminate her. In spite of the fact that he had been in the same room, he failed to furnish any explanation as under what circumstances his wife was found dead. Particularly, in view of the fact that the courts below had excluded the theory of suicide. The same conclusion stands fully fortified by the fact that the saree of deceased was lying in the corner of the room and the version given by the appellant that he had found his wife hanging with a saree around her neck and he cut the same by knife stands fully falsified as in such a fact-situation, part of the saree should have been found hanging with the ceiling of the room. The conduct of the appellant that he had given a false information to his in-laws and while dead body was lying in his house he stayed in a Krishna Guest House; further that he had absconded from the city itself, suggest that he is guilty of the offence.However, in view of the binding decision referred to hereinabove, we concur with the reasoning that has been given by the Trial Court, as well as by the High Court and are not in a position to accept the submissions made by Dr. Aman Hingorani.
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STATE BANK OF INDIA Vs. V. RAMAKRISHNAN | provision. The Committee concluded that Section 14 does not intend to bar actions against assets of guarantors to the debts of the corporate debtor and recommended that an explanation to clarify this may be inserted in Section 14 of the Code. The scope of the moratorium may be restricted to the assets of the corporate debtor only.?29. The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature, would be clear from the following judgments: (i) CIT v. Shelly Products, (2003) 5 SCC 461:?38. It was submitted that after 1-4-1989, in case the assessment is annulled the assessee is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as it existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply Corpn [(1995) 2 SCC 430 : (1995) 212 ITR 404 ] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assessee. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear the meaning of a provision of the principal Act and make explicit that which was already implicit.?(ii) CIT v. Vatika Township, (2015) 1 SCC 1 : 32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as ?declaratory statutes?. The circumstances under which provisions can be termed as ?declaratory statutes? are explained by Justice G.P. Singh [Principles of Statutory Interpretation, (13 th Edn., Lexis Nexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [W.F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [in Central Bank of India v. Workmen, AIR 1960 SC 12 , para 29]: ‘For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word ?declared? as well as the word ?enacted?.? But the use of the words ‘it is declared? is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain? an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant? is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.? The above summing up is factually based on the judgments of this Court as well as English decisions.? | 1[ds]19. We are afraid that such arguments have to be turned down on a careful reading of the Sections relied upon. Section 60 of the Code, in(1) thereof, refers to insolvency resolution and liquidation for both corporate debtors and personal guarantors, the Adjudicating Authority for which shall be the National Company Law Tribunal, having territorial jurisdiction over the place where the registered office of the corporate person is located. Thisis only important in that it locates the Tribunal which has territorial jurisdiction in insolvency resolution processes against corporate debtors. So far as personal guarantors are concerned, we have seen that Part III has not been brought into force, and neither has Section 243, which repeals theInsolvency Act, 1909 and the Provincial Insolvency Act, 1920. The net result of this is that so far as individual personal guarantors are concerned, they will continue to be proceeded against under the aforesaid two Insolvency Acts and not under the Code. Indeed, by a Press Release dated 28.08.2017, the Government of India, through the Ministry of Finance, cautioned that Section 243 of the Code, which provides for the repeal of said enactments, has not been notified till date, and further, that the provisions relating to insolvency resolution and bankruptcy for individuals and partnerships as contained in Part III of the Code are yet to be notified. Hence, it was advised that stakeholders who intend to pursue their insolvency cases may approach the appropriate authority/court under the existing enactments, instead of approaching the Debt Recovery Tribunals.20. It is for this reason that(2) of Section 60 speaks of an application relating to the ?bankruptcy? of a personal guarantor of a corporate debtor and states that any such bankruptcy proceedings shall be filed only before the National Company Law Tribunal. The argument of the learned counsel on behalf of the Respondents that ?bankruptcy? would include SARFAESI proceedings must be turned down as ?bankruptcy? has reference only to the two Insolvency Acts referred to above. Thus, SARFAESI proceedings against the guarantor can continue under the SARFAESI Act. Similarly,(3) speaks of a bankruptcy proceeding of a personal guarantor of the corporate debtor pending in any Court or Tribunal, which shall stand transferred to the Adjudicating Authority dealing with the insolvency resolution process or liquidation proceedings of such corporate debtor. An ?Adjudicating Authority?, defined under Section 5(1) of the Code, means the National Company Law Tribunal constituted under the Companies Act, 2013.21. The scheme of Section 60(2) and (3) is thus clear – the moment there is a proceeding against the corporate debtor pending under the 2016 Code, any bankruptcy proceeding against the individual personal guarantor will, if already initiated before the proceeding against the corporate debtor, be transferred to the National Company Law Tribunal or, if initiated after such proceedings had been commenced against the corporate debtor, be filed only in the National Company Law Tribunal. However, the Tribunal is to decide such proceedings only in accordance with theInsolvency Act, 1909 or the Provincial Insolvency Act, 1920, as the case may be. It is clear that(4), which states that the Tribunal shall be vested with all the powers of the Debt Recovery Tribunal, as contemplated under Part III of this Code, for the purposes of(2), would not take effect, as the Debt Recovery Tribunal has not yet been empowered to hear bankruptcy proceedings against individuals under Section 179 of the Code, as the said Section has not yet been brought into force. Also, we have seen that Section 249, dealing with the consequential amendment of the Recovery of Debts Act to empower Debt Recovery Tribunals to try such proceedings, has also not been brought into force. It is thus clear that Section 2(e), which was brought into force on 23.11.2017 would, when it refers to the application of the Code to a personal guarantor of a corporate debtor, apply only for the limited purpose contained in Section 60(2) and (3), as stated hereinabove. This is what is meant by strengthening the Corporate Insolvency Resolution Process in the Statement of Objects of the Amendment Act, 2018.22. Section 31 of the Act was also strongly relied upon by the Respondents. This Section only states that once a Resolution Plan, as approved by the Committee of Creditors, takes effect, it shall be binding on the corporate debtor as well as the guarantor. This is for the reason that otherwise, under Section 133 of the Indian Contract Act, 1872, any change made to the debt owed by the corporate debtor, without the surety?s consent, would relieve the guarantor from payment. Section 31(1), in fact, makes it clear that the guarantor cannot escape payment as the Resolution Plan, which has been approved, may well include provisions as to payments to be made by such guarantor. This is perhaps the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36(2) referred to above, require information as to personal guarantees that have been given in relation to the debts of the corporate debtor. Far from supporting the stand of the Respondents, it is clear that in point of fact, Section 31 is one more factor in favour of a personal guarantor having to pay for debts due without any moratorium applying to save him.23. We are also of the opinion that Sections 96 and 101, when contrasted with Section 14, would show that Section 14 cannot possibly apply to a personal guarantor. When an application is filed under Part III, anor a moratorium is applicable in respect of any debt due. First and foremost, this is a separate moratorium, applicable separately in the case of personal guarantors against whom insolvency resolution processes may be initiated under Part III. Secondly, the protection of the moratorium under these Sections is far greater than that of Section 14 in that pending legal proceedings in respect of the debt and not the debtor are stayed. The difference in language between Sections 14 and 101 is for a reason. Section 14 refers only to debts due by corporate debtors, who are limited liability companies, and it is clear that in the vast majority of cases, personal guarantees are given by Directors who are in management of the companies. The object of the Code is not to allow such guarantors to escape from an independent and coextensive liability to pay off the entire outstanding debt, which is why Section 14 is not applied to them. However, insofar as firms and individuals are concerned, guarantees are given in respect of individual debts by persons who have unlimited liability to pay them. And such guarantors may be complete strangers to the debtor – often it could be a personal friend. It is for this reason that the moratorium mentioned in Section 101 would cover such persons, as such moratorium is in relation to the debt and not the debtor. We may hasten to add that it is open to us to mark the difference in language between Sections 14 and 96 and 101, even though Sections 96 and 101 have not yet been brought into force. This is for the reason, as has been held in State of Kerala and Ors. v. Mar Appraem Kuri Co. Ltd. and Anr., (2012) 7 SCC 106 , that a law ‘made? by the Legislature is a law on the statute book even though it may not have been brought into force. The said judgment states: 79. The proviso to Article 254(2) provides that a law made by the State Legislature with the Presidents assent shall not prevent Parliament from making at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by a State Legislature. Thus, Parliament need not wait for the law made by the State Legislature with the Presidents assent to be brought into force as it can repeal, amend, vary or add to the assented State law no sooner it is made or enacted. We see no justification for inhibiting Parliament from repealing, amending or varying any State legislation, which has received the Presidents assent, overriding within the States territory, an earlier parliamentary enactment in the concurrent sphere, before it is brought into force. Parliament can repeal, amend, or vary such State law no sooner it is assented to by the President and that it need not wait till suchState law is brought into force. This view finds support in the judgment of this Court in Tulloch [AIR 1964 SC 1284 : (1964) 4 SCR 461 ] .Lastly, the definitions of the expressions ?laws in force? in Article 13(3)(b) and Article 372(3) Explanation I and ?existing law? in Article 366(10) show that the laws in force include laws passed or made by a legislature before the commencement of the Constitution and not repealed, notwithstanding that any such law may not be in operation at all. Thus, the definition of the expression ?laws in force? in Article 13(3)(b) and Article 372(3) Explanation I and the definition of the expression ?existing law? in Article 366(10) demolish the argument of the State of Kerala that a law has not been made for the purposes of Article 254, unless it is enforced. The expression ?existing law? finds place in Article 254. In Edward Mills Co. Ltd. v. State of Ajmer [AIR 1955 SC 25 ], this Court has held that there is no difference between an ?existing law? and a ?law in force?.81. Applying the tests enumerated hereinabove, we hold that the Kerala Chitties Act, 1975 became void on the making of the Chit Funds Act, 1982 on[when it received the assent of the President and got published in the Official Gazette] as the Central 1982 Act intended to cover the entire field with regard to the conduct of the chits and further that the State Finance Act 7 of 2002, introducing Section 4(1)(a) into the State 1975 Act, was void as the State Legislature was denuded of its authority to enact the said Finance Act 7 of 2002, except under Article 254(2), after the (Central) Chit Funds Act, 1982 occupied the entire field as envisaged in Article 254(1) of the Constitution.Thus, for the purpose of interpretation, it is certainly open for us to contrast Section 14 with Sections 96 and 101, as Sections 96 and 101 are laws made by the Legislature, even though they have not yet been brought into force.25. As argued by Shri Viswanathan, the historical background of the Code now needs to be looked at. Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 reads as follows: 22. Suspension of legal proceedings, contracts, etc.—(1) Where in respect of an industrial company, an inquiry under Section 16 is pending or any scheme referred to under Section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under Section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof [and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company] shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority. (2) Where the management of the sick industrial company is taken over or changed [in pursuance of any scheme sanctioned under Section 18] notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or in the memorandum and articles of association of such company or any instrument having effect under the said Act or other law— (a) it shall not be lawful for the shareholders of such company or any other person to nominate or appoint any person to be a director of the company; (b) no resolution passed at any meeting of the shareholders of such company shall be given effect to unless approved by the Board. (3) [Where an inquiry under Section 16 is pending or any scheme referred to in Section 17 is under preparation or during the period] of consideration of any scheme under Section 18 or where any such scheme is sanctioned thereunder, for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company concerned that the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force, to which such sick industrial company is a party or which may be applicable to such sick industrial company immediately before the date of such order, shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified by the Board: Provided that such declaration shall not be made for a period exceeding two years which may be extended by one year at a time so, however, that the total period shall not exceed seven years in the aggregate. (4) Any declaration made under(3) with respect to a sick industrial company shall have effect notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law, the memorandum and articles of association of the company or any instrument having effect under the said Act or other law or any agreement or any decree or order of a court, tribunal, officer or other authority or of any submission, settlement or standing order and accordingly,— (a) any remedy for the enforcement of any right, privilege, obligation and liability suspended or modified by such declaration, and all proceedings relating thereto pending before any court, tribunal, officer or other authority shall remain stayed or be continued subject to such declaration; and (b) on the declaration ceasing to have effect— (i) any right, privilege, obligation or liability so remaining suspended or modified, shall become revived and enforceable as if the declaration had never been made; and (ii) any proceeding so remaining stayed shall be proceeded with subject to the provisions of any law which may then be in force, from the stage which had been reached when the proceedings became stayed. (5) In computing the period of limitation for the enforcement of any right, privilege, obligation or liability, the period during which it or the remedy for the enforcement thereof remains suspended under this section shall be excluded. It will be clear from a reading of(1) thereof that suits for the enforcement of any guarantee in respect of loans or advances granted to the industrial company, shall not lie or be proceeded with further, except with the consent of the Board or Appellate Authority. It may be noted that the Sick Industrial Companies (Special Provisions) Act, 1985 was repealed on 01.12.2016. By a notification dated 30.11.2016, Section 14 of the Code was brought into force w.e.f. 01.12.2016.The reasoning of the Bombay High Court in the judgment of M/s. Sicom Investments and Finance Ltd. (supra) commends itself to us. The reasoning of the Allahabad High Court, on the other hand, does not.27. We now come to the argument that the amendment of 2018, which makes it clear that Section 14(3), is now substituted to read that the provisions of(1) of Section 14 shall not apply to a surety in a contract of guarantee for corporate debtor.The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature, would be clear from the following judgments: (i) CIT v. Shelly Products, (2003) 5 SCCIt was submitted that afterin case the assessment is annulled the assessee is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as it existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply Corpn [(1995) 2 SCC 430 : (1995) 212 ITR 404 ] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assessee. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear the meaning of a provision of the principal Act and make explicit that which was alreadyCIT v. Vatika Township, (2015) 1 SCC 1 : 32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as ?declaratory statutes?. The circumstances under which provisions can be termed as ?declaratory statutes? are explained by Justice G.P. Singh [Principles of Statutory Interpretation, (13 th Edn., Lexis Nexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [W.F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [in Central Bank of India v. Workmen, AIR 1960 SC 12 , para 29]: ‘For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word ?declared? as well as the word ?enacted?.? But the use of the words ‘it is declared? is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain? an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant? is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when theprovision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.? The above summing up is factually based on the judgments of this Court as well as English decisions.? | 1 | 11,219 | 4,109 | ### Instruction:
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provision. The Committee concluded that Section 14 does not intend to bar actions against assets of guarantors to the debts of the corporate debtor and recommended that an explanation to clarify this may be inserted in Section 14 of the Code. The scope of the moratorium may be restricted to the assets of the corporate debtor only.?29. The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature, would be clear from the following judgments: (i) CIT v. Shelly Products, (2003) 5 SCC 461:?38. It was submitted that after 1-4-1989, in case the assessment is annulled the assessee is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as it existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply Corpn [(1995) 2 SCC 430 : (1995) 212 ITR 404 ] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assessee. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear the meaning of a provision of the principal Act and make explicit that which was already implicit.?(ii) CIT v. Vatika Township, (2015) 1 SCC 1 : 32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as ?declaratory statutes?. The circumstances under which provisions can be termed as ?declaratory statutes? are explained by Justice G.P. Singh [Principles of Statutory Interpretation, (13 th Edn., Lexis Nexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [W.F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [in Central Bank of India v. Workmen, AIR 1960 SC 12 , para 29]: ‘For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word ?declared? as well as the word ?enacted?.? But the use of the words ‘it is declared? is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain? an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant? is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.? The above summing up is factually based on the judgments of this Court as well as English decisions.?
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commends itself to us. The reasoning of the Allahabad High Court, on the other hand, does not.27. We now come to the argument that the amendment of 2018, which makes it clear that Section 14(3), is now substituted to read that the provisions of(1) of Section 14 shall not apply to a surety in a contract of guarantee for corporate debtor.The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature, would be clear from the following judgments: (i) CIT v. Shelly Products, (2003) 5 SCCIt was submitted that afterin case the assessment is annulled the assessee is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as it existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply Corpn [(1995) 2 SCC 430 : (1995) 212 ITR 404 ] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assessee. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear the meaning of a provision of the principal Act and make explicit that which was alreadyCIT v. Vatika Township, (2015) 1 SCC 1 : 32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as ?declaratory statutes?. The circumstances under which provisions can be termed as ?declaratory statutes? are explained by Justice G.P. Singh [Principles of Statutory Interpretation, (13 th Edn., Lexis Nexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [W.F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [in Central Bank of India v. Workmen, AIR 1960 SC 12 , para 29]: ‘For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word ?declared? as well as the word ?enacted?.? But the use of the words ‘it is declared? is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain? an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant? is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when theprovision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.? The above summing up is factually based on the judgments of this Court as well as English decisions.?
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State of Kerala and Another Vs. M. T. Joseph (Dead) By L. Rs. and Others | set forth in a document dated October 4, 1939. The agreement provided that one M. T. Joseph and his father, on payment of Rs. 10 per acre, which were to be recovered in ten equal instalments, would be given possession of certain tracts of land which they undertook to reclaim. For the first two years after what is called the "registry" of the names of the two lessees no tax was to be levied. The "registry" was liable to be cancelled if adequate progress was not made within these two years. It appears that the agreement was modified by an order dated February 12, 1941, and a fresh agreement was executed in July 1941 by M. T. Joseph (now dead) who entered into possession of kayal land, constructed the ring buds at considerable expense, and brought the very large tracts of land to be reclaimed under paddy cultivation. In June 1957, M. T. Joseph executed a deed of settlement of all this land, after he had acquired full ownership rights by fulfilling the terms of the agreement. The Act which is sought to be now applied was then passed. After that, the Kerala Land Reforms Act of 1963 was passed so that the "State Land Board" started proceedings for the surrender of these lands in accordance with the provisions of the Land Reforms Act.3. The only question now before us is whether, by an application of Section 8 of the Act, the whole land is to be treated as a singly unit belonging to M. T. Joseph (since dead), or, the dispositions made by M. T. Joseph, under the deed of settlement executed by him on June 15, 1957, distributing the land among his children, resulted in separate units for the purposes of compensation for the land surrendered. If the children had acquired rights under the deed of settlement each of them could be treated as entitled to compensation for a separate unit. If the deed was of no effect, the mere fact that the children were in possession, under an authority from their father, could not change the ownership of the land in the constructive possession of the father.4. We have been taken through the deed of agreement of July, 1941, with the Government, which contains the following term, the effect of which has to be determined :Till the remittance of all amounts due to the Government by way of tharavila (land value) etc. the executant shall have no right of alienation in respect of the schedule property and the property shall remain with the Government as sole owner. The executant shall remit the tax at the thirteenth thoram in the village office every year after the first two years of registry so long as no default is made in the payment of instalment and obtain receipt therefor. Until the entire tharavila (land value) under this agreement as stated above is paid by the executant and until the assignment of the land and issue of patta is completed the executant undertakes not to do any act which may reduce the value of the property and if as stated above due to any reason the property is recovered from the executant he shall not put forward any claim for improvements etc. and the property shall be surrendered to Government.5. It is clear to us that this term in the agreement operated as a restraint upon the alienation of rights only so long as all the amounts due to the Government as tharavila had not been paid up. The whole amount had to be paid up in ten yearly instalments. It had been paid up before 1957. Furthermore, as the Kerala High Court found, the settlement of land on June 15, 1957, had not merely been given effect to by a mutation in the relevant government records but pattas had actually been given by the Government, acting upon the settlement of 1957, in favour of the children of M. T. Joseph. Hence, it could not be said that there was any patta or other document containing any condition to which Section 8 of the Act could apply. We find, from the judgment under appeal, that several questions, which have no real bearing on the rights of the parties, were also argued. One of these questions was whether land could be acquired by adverse possession by the alienees of the allottees of the land from the Government under the scheme for its reclamation. We fail to see how a question of adverse possession arise here when the Government itself recognises the rights of the children of M. T. Joseph in the pattas executed by it in their favour.6. The High Court recorded the following findings about the Government acting on the terms of the settlement of June 15, 1957, the correctness of which had not been challenged before us :This settlement deed has been recognised by the Government, mutation has been effected in the names of the children and pattahs have also been issued to them. It has been further stated on behalf of the revision petitioners (the heirs of the said Joseph and those who took under the settlement deed dated June 15, 1957) that levy under the Kerala Rice and Paddy (Procurement by Levy) Order, 1966, has been collected from each of the shares under the deed of 1957, that land tax has been imposed on each of the shares separately and agricultural income-tax collected on the income of the properties of each of the sharers.7. We do not think it is necessary to go into any other question. The High Court was of opinion that some facts had still to be ascertained when the case goes back to the Land Board for proceeding on the footing determined by the High Court. We think that we should make it clear that matters to be still determined could not, in view of our finding, involve determination of any question of adverse possession of the claimants, the children of M. T. Joseph. | 0[ds]5. It is clear to us that this term in the agreement operated as a restraint upon the alienation of rights only so long as all the amounts due to the Government as tharavila had not been paid up. The whole amount had to be paid up in ten yearly instalments. It had been paid up before 1957. Furthermore, as the Kerala High Court found, the settlement of land on June 15, 1957, had not merely been given effect to by a mutation in the relevant government records but pattas had actually been given by the Government, acting upon the settlement of 1957, in favour of the children of M. T. Joseph. Hence, it could not be said that there was any patta or other document containing any condition to which Section 8 of the Act could apply. We find, from the judgment under appeal, that several questions, which have no real bearing on the rights of the parties, were also argued. One of these questions was whether land could be acquired by adverse possession by the alienees of the allottees of the land from the Government under the scheme for its reclamation. We fail to see how a question of adverse possession arise here when the Government itself recognises the rights of the children of M. T. Joseph in the pattas executed by it in their favour. | 0 | 1,235 | 252 | ### Instruction:
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set forth in a document dated October 4, 1939. The agreement provided that one M. T. Joseph and his father, on payment of Rs. 10 per acre, which were to be recovered in ten equal instalments, would be given possession of certain tracts of land which they undertook to reclaim. For the first two years after what is called the "registry" of the names of the two lessees no tax was to be levied. The "registry" was liable to be cancelled if adequate progress was not made within these two years. It appears that the agreement was modified by an order dated February 12, 1941, and a fresh agreement was executed in July 1941 by M. T. Joseph (now dead) who entered into possession of kayal land, constructed the ring buds at considerable expense, and brought the very large tracts of land to be reclaimed under paddy cultivation. In June 1957, M. T. Joseph executed a deed of settlement of all this land, after he had acquired full ownership rights by fulfilling the terms of the agreement. The Act which is sought to be now applied was then passed. After that, the Kerala Land Reforms Act of 1963 was passed so that the "State Land Board" started proceedings for the surrender of these lands in accordance with the provisions of the Land Reforms Act.3. The only question now before us is whether, by an application of Section 8 of the Act, the whole land is to be treated as a singly unit belonging to M. T. Joseph (since dead), or, the dispositions made by M. T. Joseph, under the deed of settlement executed by him on June 15, 1957, distributing the land among his children, resulted in separate units for the purposes of compensation for the land surrendered. If the children had acquired rights under the deed of settlement each of them could be treated as entitled to compensation for a separate unit. If the deed was of no effect, the mere fact that the children were in possession, under an authority from their father, could not change the ownership of the land in the constructive possession of the father.4. We have been taken through the deed of agreement of July, 1941, with the Government, which contains the following term, the effect of which has to be determined :Till the remittance of all amounts due to the Government by way of tharavila (land value) etc. the executant shall have no right of alienation in respect of the schedule property and the property shall remain with the Government as sole owner. The executant shall remit the tax at the thirteenth thoram in the village office every year after the first two years of registry so long as no default is made in the payment of instalment and obtain receipt therefor. Until the entire tharavila (land value) under this agreement as stated above is paid by the executant and until the assignment of the land and issue of patta is completed the executant undertakes not to do any act which may reduce the value of the property and if as stated above due to any reason the property is recovered from the executant he shall not put forward any claim for improvements etc. and the property shall be surrendered to Government.5. It is clear to us that this term in the agreement operated as a restraint upon the alienation of rights only so long as all the amounts due to the Government as tharavila had not been paid up. The whole amount had to be paid up in ten yearly instalments. It had been paid up before 1957. Furthermore, as the Kerala High Court found, the settlement of land on June 15, 1957, had not merely been given effect to by a mutation in the relevant government records but pattas had actually been given by the Government, acting upon the settlement of 1957, in favour of the children of M. T. Joseph. Hence, it could not be said that there was any patta or other document containing any condition to which Section 8 of the Act could apply. We find, from the judgment under appeal, that several questions, which have no real bearing on the rights of the parties, were also argued. One of these questions was whether land could be acquired by adverse possession by the alienees of the allottees of the land from the Government under the scheme for its reclamation. We fail to see how a question of adverse possession arise here when the Government itself recognises the rights of the children of M. T. Joseph in the pattas executed by it in their favour.6. The High Court recorded the following findings about the Government acting on the terms of the settlement of June 15, 1957, the correctness of which had not been challenged before us :This settlement deed has been recognised by the Government, mutation has been effected in the names of the children and pattahs have also been issued to them. It has been further stated on behalf of the revision petitioners (the heirs of the said Joseph and those who took under the settlement deed dated June 15, 1957) that levy under the Kerala Rice and Paddy (Procurement by Levy) Order, 1966, has been collected from each of the shares under the deed of 1957, that land tax has been imposed on each of the shares separately and agricultural income-tax collected on the income of the properties of each of the sharers.7. We do not think it is necessary to go into any other question. The High Court was of opinion that some facts had still to be ascertained when the case goes back to the Land Board for proceeding on the footing determined by the High Court. We think that we should make it clear that matters to be still determined could not, in view of our finding, involve determination of any question of adverse possession of the claimants, the children of M. T. Joseph.
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5. It is clear to us that this term in the agreement operated as a restraint upon the alienation of rights only so long as all the amounts due to the Government as tharavila had not been paid up. The whole amount had to be paid up in ten yearly instalments. It had been paid up before 1957. Furthermore, as the Kerala High Court found, the settlement of land on June 15, 1957, had not merely been given effect to by a mutation in the relevant government records but pattas had actually been given by the Government, acting upon the settlement of 1957, in favour of the children of M. T. Joseph. Hence, it could not be said that there was any patta or other document containing any condition to which Section 8 of the Act could apply. We find, from the judgment under appeal, that several questions, which have no real bearing on the rights of the parties, were also argued. One of these questions was whether land could be acquired by adverse possession by the alienees of the allottees of the land from the Government under the scheme for its reclamation. We fail to see how a question of adverse possession arise here when the Government itself recognises the rights of the children of M. T. Joseph in the pattas executed by it in their favour.
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State Of Haryana And Anr Vs. Jiwan Singh | the permissible area would be 100 ordinary acres. On remand the Collector upheld his own previous order and the appeal taken by the respondent from this order was dismissed by the Commissioner. The respondent filed a revision petition before the Financial Commissioner, Punjab, who also upheld the order of the Collector and dismissed the petition. The respondent thereafter filed a writ petition in Punjab and Haryana High Court which was allowed. The learned Judge who heard the writ petition held following a Full Bench decision of the same High Court, Khan Chand v. State of Punjab, AIR 1966 Punj 423 that it was "not legitimate for the authority to treat as surplus area anything more than 5.80 standard acres of the petitioners land". The Letters Patent Appeal preferred against the decision of the learned single Judge by the State of Haryana and the Collector Surplus Area, Sirsa was dismissed. The correctness of the High Courts decision is challenged before us in this appeal by special leave.3. The case turns on the true meaning of proviso (ii) (a) to Section 2 (3) Counsel for the appellants submits that this provision means that the permissible area in the case of displaced persons who were allotted land in excess of 50 standard acres can be determined either in terms of standard acres or in terms of ordinary acres, as the authority concerned chooses. Counsel contends that the words "as the case may be" refer to the discretion of the authority in this matter. We do not find it possible to accept this contention. There is no specific provision in the Act giving a discretion to the Collector or any other authority under the Act. to determine the permissible area for a displaced person either in standard acres or in ordinary acres. On a plain reading proviso (ii) (a) seems to indicate that where the land allotted to a displaced person was in standard acres and its area exceeded 50 standard acres, the permissible area would be 50 standard acres. and where the land was allotted not in standard acres the permissible area would be 100 ordinary acres. The nature of the original allotment - whether it was in standard acres or in ordinary acres -seems to be the determining factor. The Full Bench decision of the Punjab and Haryana High Court Khan Chand v. State of Punjab, (AIR 1966 Punj 423) (supra), on which the judgment under appeal relies, reads proviso (ii) (a) to mean:"For a displaced person who has been allotted land in excess of 50 standard acres or in excess of 100 ordinary acres the permissible area shall be 50 standard acres or 100 ordinary acres, as the case may be."We agree that this is the correct meaning to be given to this provision, it is only construed this way that the words "as the case may be" acquire a significance, otherwise they would be mere surplusage. Clauses (b) and (c) of proviso (ii) lend assurance to this construction. Clause (b) deals with the case of a displaced person who has been allotted land in excess of thirty standard acres but less than fifty standard acres and provides that the permissible are in his case shall be equal to his allotted area. Clause (c) fixes the permissible area for a displaced person who has been allotted land less than thirty standard acres providing that it shall be thirty standard acres including any other land or part thereof, if any, that he owns in addition. Clauses (b) and (c) both deal with cases where the original allotment was in standard acres, and there is nothing in either of them sanctioning the conversion of the permissible area in standard acres into ordinary acres, though perhaps any other land which a displaced person whose case is covered by clause (c) might own in addition to the 30 standard acres allotted to him may be in ordinary acres requiring conversion of such land into standard acres to determine the permissible area in standard acres in his case as provided in clause (c). But this does not mean that the permissible area in cases covered by clauses (b) and (c) can also be fixed in ordinary acres. Proviso (ii) to Sec. 2 (3) appears to group displaced persons into two categories, those who were allotted land in standard acres and those who were allotted land in ordinary acres. Clause (a) deals with both these categories and limits the permissible area of those who were allotted land in standard acres at 50 standars acres and those who were allotted land in ordinary acers at 100 ordinary acres; clauses (b) and (c) deal only with those who were allotted land in standard acres. Those whose allotment was in ordinary acres, their permissible area is fixed at 100 such acres, but those who were allotted land in standard acres, in their case the permissible area varies as provided in clauses (a), (b) and (c) though the measure in each case would be in standard acres. This appears to be the scheme. In defining "Permissible area" Sec. 2(3) of the Act provides differently for land owners and tenants covered by the substantive part of the definition, and displaced persons mentioned in proviso (ii), and also makes a distinction between displaced persons inter se as provided in the different clauses of the proviso. In the course of argument questions were raised about the logical basis for such differentiation, but the policy of the Act being clear we have to interpret the provision as we find it; if there is any anomaly in the policy itself, it is for the legislature to remove that defect. In this case the land allotted to the respondent being admittedly 55.80 standard acres, the permissible area for him would be 50 standard acres under clause (a) and, that being so, the High Court was right in holding that it was not legitimate for the authority to treat as surplus area anything more than 5.80 standard acres. | 0[ds]3. The case turns on the true meaning of proviso (ii) (a) to Section 2 (3) Counsel for the appellants submits that this provision means that the permissible area in the case of displaced persons who were allotted land in excess of 50 standard acres can be determined either in terms of standard acres or in terms of ordinary acres, as the authority concerned chooses. Counsel contends that the words "as the case may be" refer to the discretion of the authority in this matter. We do not find it possible to accept this contention. There is no specific provision in the Act giving a discretion to the Collector or any other authority under the Act. to determine the permissible area for a displaced person either in standard acres or in ordinary acres. On a plain reading proviso (ii) (a) seems to indicate that where the land allotted to a displaced person was in standard acres and its area exceeded 50 standard acres, the permissible area would be 50 standard acres. and where the land was allotted not in standard acres the permissible area would be 100 ordinary acres. The nature of the original allotmentwhether it was in standard acres or in ordinary acresseems to be the determining factor. The Full Bench decision of the Punjab and Haryana High Court Khan Chand v. State of Punjab, (AIR 1966 Punj 423) (supra), on which the judgment under appeal relies, reads proviso (ii) (a) to mean:"For a displaced person who has been allotted land in excess of 50 standard acres or in excess of 100 ordinary acres the permissible area shall be 50 standard acres or 100 ordinary acres, as the case may be."We agree that this is the correct meaning to be given to this provision, it is only construed this way that the words "as the case may be" acquire a significance, otherwise they would be mere surplusage. Clauses (b) and (c) of proviso (ii) lend assurance to this construction. Clause (b) deals with the case of a displaced person who has been allotted land in excess of thirty standard acres but less than fifty standard acres and provides that the permissible are in his case shall be equal to his allotted area. Clause (c) fixes the permissible area for a displaced person who has been allotted land less than thirty standard acres providing that it shall be thirty standard acres including any other land or part thereof, if any, that he owns in addition. Clauses (b) and (c) both deal with cases where the original allotment was in standard acres, and there is nothing in either of them sanctioning the conversion of the permissible area in standard acres into ordinary acres, though perhaps any other land which a displaced person whose case is covered by clause (c) might own in addition to the 30 standard acres allotted to him may be in ordinary acres requiring conversion of such land into standard acres to determine the permissible area in standard acres in his case as provided in clause (c). But this does not mean that the permissible area in cases covered by clauses (b) and (c) can also be fixed in ordinary acres. Proviso (ii) to Sec. 2 (3) appears to group displaced persons into two categories, those who were allotted land in standard acres and those who were allotted land in ordinary acres. Clause (a) deals with both these categories and limits the permissible area of those who were allotted land in standard acres at 50 standars acres and those who were allotted land in ordinary acers at 100 ordinary acres; clauses (b) and (c) deal only with those who were allotted land in standard acres. Those whose allotment was in ordinary acres, their permissible area is fixed at 100 such acres, but those who were allotted land in standard acres, in their case the permissible area varies as provided in clauses (a), (b) and (c) though the measure in each case would be in standard acres. This appears to be the scheme. In defining "Permissible area" Sec. 2(3) of the Act provides differently for land owners and tenants covered by the substantive part of the definition, and displaced persons mentioned in proviso (ii), and also makes a distinction between displaced persons inter se as provided in the different clauses of the proviso. In the course of argument questions were raised about the logical basis for such differentiation, but the policy of the Act being clear we have to interpret the provision as we find it; if there is any anomaly in the policy itself, it is for the legislature to remove that defect. In this case the land allotted to the respondent being admittedly 55.80 standard acres, the permissible area for him would be 50 standard acres under clause (a) and, that being so, the High Court was right in holding that it was not legitimate for the authority to treat as surplus area anything more than 5.80 standard acres. | 0 | 1,575 | 961 | ### Instruction:
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the permissible area would be 100 ordinary acres. On remand the Collector upheld his own previous order and the appeal taken by the respondent from this order was dismissed by the Commissioner. The respondent filed a revision petition before the Financial Commissioner, Punjab, who also upheld the order of the Collector and dismissed the petition. The respondent thereafter filed a writ petition in Punjab and Haryana High Court which was allowed. The learned Judge who heard the writ petition held following a Full Bench decision of the same High Court, Khan Chand v. State of Punjab, AIR 1966 Punj 423 that it was "not legitimate for the authority to treat as surplus area anything more than 5.80 standard acres of the petitioners land". The Letters Patent Appeal preferred against the decision of the learned single Judge by the State of Haryana and the Collector Surplus Area, Sirsa was dismissed. The correctness of the High Courts decision is challenged before us in this appeal by special leave.3. The case turns on the true meaning of proviso (ii) (a) to Section 2 (3) Counsel for the appellants submits that this provision means that the permissible area in the case of displaced persons who were allotted land in excess of 50 standard acres can be determined either in terms of standard acres or in terms of ordinary acres, as the authority concerned chooses. Counsel contends that the words "as the case may be" refer to the discretion of the authority in this matter. We do not find it possible to accept this contention. There is no specific provision in the Act giving a discretion to the Collector or any other authority under the Act. to determine the permissible area for a displaced person either in standard acres or in ordinary acres. On a plain reading proviso (ii) (a) seems to indicate that where the land allotted to a displaced person was in standard acres and its area exceeded 50 standard acres, the permissible area would be 50 standard acres. and where the land was allotted not in standard acres the permissible area would be 100 ordinary acres. The nature of the original allotment - whether it was in standard acres or in ordinary acres -seems to be the determining factor. The Full Bench decision of the Punjab and Haryana High Court Khan Chand v. State of Punjab, (AIR 1966 Punj 423) (supra), on which the judgment under appeal relies, reads proviso (ii) (a) to mean:"For a displaced person who has been allotted land in excess of 50 standard acres or in excess of 100 ordinary acres the permissible area shall be 50 standard acres or 100 ordinary acres, as the case may be."We agree that this is the correct meaning to be given to this provision, it is only construed this way that the words "as the case may be" acquire a significance, otherwise they would be mere surplusage. Clauses (b) and (c) of proviso (ii) lend assurance to this construction. Clause (b) deals with the case of a displaced person who has been allotted land in excess of thirty standard acres but less than fifty standard acres and provides that the permissible are in his case shall be equal to his allotted area. Clause (c) fixes the permissible area for a displaced person who has been allotted land less than thirty standard acres providing that it shall be thirty standard acres including any other land or part thereof, if any, that he owns in addition. Clauses (b) and (c) both deal with cases where the original allotment was in standard acres, and there is nothing in either of them sanctioning the conversion of the permissible area in standard acres into ordinary acres, though perhaps any other land which a displaced person whose case is covered by clause (c) might own in addition to the 30 standard acres allotted to him may be in ordinary acres requiring conversion of such land into standard acres to determine the permissible area in standard acres in his case as provided in clause (c). But this does not mean that the permissible area in cases covered by clauses (b) and (c) can also be fixed in ordinary acres. Proviso (ii) to Sec. 2 (3) appears to group displaced persons into two categories, those who were allotted land in standard acres and those who were allotted land in ordinary acres. Clause (a) deals with both these categories and limits the permissible area of those who were allotted land in standard acres at 50 standars acres and those who were allotted land in ordinary acers at 100 ordinary acres; clauses (b) and (c) deal only with those who were allotted land in standard acres. Those whose allotment was in ordinary acres, their permissible area is fixed at 100 such acres, but those who were allotted land in standard acres, in their case the permissible area varies as provided in clauses (a), (b) and (c) though the measure in each case would be in standard acres. This appears to be the scheme. In defining "Permissible area" Sec. 2(3) of the Act provides differently for land owners and tenants covered by the substantive part of the definition, and displaced persons mentioned in proviso (ii), and also makes a distinction between displaced persons inter se as provided in the different clauses of the proviso. In the course of argument questions were raised about the logical basis for such differentiation, but the policy of the Act being clear we have to interpret the provision as we find it; if there is any anomaly in the policy itself, it is for the legislature to remove that defect. In this case the land allotted to the respondent being admittedly 55.80 standard acres, the permissible area for him would be 50 standard acres under clause (a) and, that being so, the High Court was right in holding that it was not legitimate for the authority to treat as surplus area anything more than 5.80 standard acres.
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3. The case turns on the true meaning of proviso (ii) (a) to Section 2 (3) Counsel for the appellants submits that this provision means that the permissible area in the case of displaced persons who were allotted land in excess of 50 standard acres can be determined either in terms of standard acres or in terms of ordinary acres, as the authority concerned chooses. Counsel contends that the words "as the case may be" refer to the discretion of the authority in this matter. We do not find it possible to accept this contention. There is no specific provision in the Act giving a discretion to the Collector or any other authority under the Act. to determine the permissible area for a displaced person either in standard acres or in ordinary acres. On a plain reading proviso (ii) (a) seems to indicate that where the land allotted to a displaced person was in standard acres and its area exceeded 50 standard acres, the permissible area would be 50 standard acres. and where the land was allotted not in standard acres the permissible area would be 100 ordinary acres. The nature of the original allotmentwhether it was in standard acres or in ordinary acresseems to be the determining factor. The Full Bench decision of the Punjab and Haryana High Court Khan Chand v. State of Punjab, (AIR 1966 Punj 423) (supra), on which the judgment under appeal relies, reads proviso (ii) (a) to mean:"For a displaced person who has been allotted land in excess of 50 standard acres or in excess of 100 ordinary acres the permissible area shall be 50 standard acres or 100 ordinary acres, as the case may be."We agree that this is the correct meaning to be given to this provision, it is only construed this way that the words "as the case may be" acquire a significance, otherwise they would be mere surplusage. Clauses (b) and (c) of proviso (ii) lend assurance to this construction. Clause (b) deals with the case of a displaced person who has been allotted land in excess of thirty standard acres but less than fifty standard acres and provides that the permissible are in his case shall be equal to his allotted area. Clause (c) fixes the permissible area for a displaced person who has been allotted land less than thirty standard acres providing that it shall be thirty standard acres including any other land or part thereof, if any, that he owns in addition. Clauses (b) and (c) both deal with cases where the original allotment was in standard acres, and there is nothing in either of them sanctioning the conversion of the permissible area in standard acres into ordinary acres, though perhaps any other land which a displaced person whose case is covered by clause (c) might own in addition to the 30 standard acres allotted to him may be in ordinary acres requiring conversion of such land into standard acres to determine the permissible area in standard acres in his case as provided in clause (c). But this does not mean that the permissible area in cases covered by clauses (b) and (c) can also be fixed in ordinary acres. Proviso (ii) to Sec. 2 (3) appears to group displaced persons into two categories, those who were allotted land in standard acres and those who were allotted land in ordinary acres. Clause (a) deals with both these categories and limits the permissible area of those who were allotted land in standard acres at 50 standars acres and those who were allotted land in ordinary acers at 100 ordinary acres; clauses (b) and (c) deal only with those who were allotted land in standard acres. Those whose allotment was in ordinary acres, their permissible area is fixed at 100 such acres, but those who were allotted land in standard acres, in their case the permissible area varies as provided in clauses (a), (b) and (c) though the measure in each case would be in standard acres. This appears to be the scheme. In defining "Permissible area" Sec. 2(3) of the Act provides differently for land owners and tenants covered by the substantive part of the definition, and displaced persons mentioned in proviso (ii), and also makes a distinction between displaced persons inter se as provided in the different clauses of the proviso. In the course of argument questions were raised about the logical basis for such differentiation, but the policy of the Act being clear we have to interpret the provision as we find it; if there is any anomaly in the policy itself, it is for the legislature to remove that defect. In this case the land allotted to the respondent being admittedly 55.80 standard acres, the permissible area for him would be 50 standard acres under clause (a) and, that being so, the High Court was right in holding that it was not legitimate for the authority to treat as surplus area anything more than 5.80 standard acres.
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Mange Ram Vs. Brij Mohan And Others | of the fact whether some or all of them are to be summoned and even the names of those whom t he party desires to produce without the assistance of the Court are also required to be mentioned in the list on the pain that they may not be permitted to be examined, Rule 1A would have given a clear legislative exposition in that behalf and t he marginal note of Rule 1A clearly negatives this suggestion. Marginal note of Rule 1A reads as Production of witnesses without summons and the rule proceeds to enable a party to bring any witness to give evidence or to produce documents without applying for summons under Rule 1. If it was implicit in Rule 1A that it only enables the party to examine only those witnesses whose names are mentioned in the list filed under sub rule (1) of Rule 1 whom the party would produce before the Court without the assistance of the Court, it was not necessary to provide in Rule 1A that the party may bring any witness to give evidence or to produce documents without applying for summons under R Rule 1. Rule 1A of order XVI clearly brings to surface the two situations in which the two rules operate. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of t he Court, it can do so under Rule 1A of order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not.It was, however. contended that Rule 1A is subject to sub-rule (3) of Rule 1 and therefore, the Court must ascertain how far sub-rule (3) would carve out an exception to the enabling provision contained in Rule 1A. There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub-rule (1) o f Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations.5. The analysis of the relevant provisions would clearly bring out the underlying scheme under order XVI Rules 1 and 1A, and Rule 22 of the High Court Rules would not derogate from such scheme. The scheme is that after the Court framed issues which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the Court within the time prescribed by sub-rule (1). This advance filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A. The only jurisdiction the Court has to decline to examine the witness is the one set out in proviso to Sec. 87 (1) of 1951 Act, the discretion being confined to refusing to examine witnesses on the ground that the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings. Save this the Court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the Court has no jurisdiction to refuse to examine the witness who is present in the Court on the short ground that the name of the witness was not mentioned in the list filed under sub-rule (1) of Rule 1 of order XVI. This scheme clearly emerges from the various provisions herein discussed.If the scheme of the various provisions is as herein discussed, obviously, the order of the learned Judge is wholly unsustainable. He declined to examine the witness by accepting the submission of the returned candidate that the names of the witnesses whom the appellant kept present in the Court were not mentioned in the list. This is the only ground on which the learned Judge declined to permit the appellant to examine his witnesses who were kept present in the Court and this ground is utterly unsustainable. Therefore | 1[ds]The analysis of the relevant provisions would clearly bring out the underlying scheme under order XVI Rules 1 and 1A, and Rule 22 of the High Court Rules would not derogate from such scheme. The scheme is that after the Court framed issues which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the Court within the time prescribed by sub-rule (1). This advance filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A. The only jurisdiction the Court has to decline to examine the witness is the one set out in proviso to Sec. 87 (1) of 1951 Act, the discretion being confined to refusing to examine witnesses on the ground that the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings. Save this the Court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the Court has no jurisdiction to refuse to examine the witness who is present in the Court on the short ground that the name of the witness was not mentioned in the list filed under sub-rule (1) of Rule 1 of order XVI. This scheme clearly emerges from the various provisions herein discussed.If the scheme of the various provisions is as herein discussed, obviously, the order of the learned Judge is wholly unsustainable. He declined to examine the witness by accepting the submission of the returned candidate that the names of the witnesses whom the appellant kept present in the Court were not mentioned in the list. This is the only ground on which the learned Judge declined to permit the appellant to examine his witnesses who were kept present in the Court and this ground is utterly unsustainable. | 1 | 3,806 | 479 | ### Instruction:
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### Input:
of the fact whether some or all of them are to be summoned and even the names of those whom t he party desires to produce without the assistance of the Court are also required to be mentioned in the list on the pain that they may not be permitted to be examined, Rule 1A would have given a clear legislative exposition in that behalf and t he marginal note of Rule 1A clearly negatives this suggestion. Marginal note of Rule 1A reads as Production of witnesses without summons and the rule proceeds to enable a party to bring any witness to give evidence or to produce documents without applying for summons under Rule 1. If it was implicit in Rule 1A that it only enables the party to examine only those witnesses whose names are mentioned in the list filed under sub rule (1) of Rule 1 whom the party would produce before the Court without the assistance of the Court, it was not necessary to provide in Rule 1A that the party may bring any witness to give evidence or to produce documents without applying for summons under R Rule 1. Rule 1A of order XVI clearly brings to surface the two situations in which the two rules operate. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of t he Court, it can do so under Rule 1A of order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not.It was, however. contended that Rule 1A is subject to sub-rule (3) of Rule 1 and therefore, the Court must ascertain how far sub-rule (3) would carve out an exception to the enabling provision contained in Rule 1A. There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub-rule (1) o f Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations.5. The analysis of the relevant provisions would clearly bring out the underlying scheme under order XVI Rules 1 and 1A, and Rule 22 of the High Court Rules would not derogate from such scheme. The scheme is that after the Court framed issues which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the Court within the time prescribed by sub-rule (1). This advance filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A. The only jurisdiction the Court has to decline to examine the witness is the one set out in proviso to Sec. 87 (1) of 1951 Act, the discretion being confined to refusing to examine witnesses on the ground that the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings. Save this the Court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the Court has no jurisdiction to refuse to examine the witness who is present in the Court on the short ground that the name of the witness was not mentioned in the list filed under sub-rule (1) of Rule 1 of order XVI. This scheme clearly emerges from the various provisions herein discussed.If the scheme of the various provisions is as herein discussed, obviously, the order of the learned Judge is wholly unsustainable. He declined to examine the witness by accepting the submission of the returned candidate that the names of the witnesses whom the appellant kept present in the Court were not mentioned in the list. This is the only ground on which the learned Judge declined to permit the appellant to examine his witnesses who were kept present in the Court and this ground is utterly unsustainable. Therefore
### Response:
1
### Explanation:
The analysis of the relevant provisions would clearly bring out the underlying scheme under order XVI Rules 1 and 1A, and Rule 22 of the High Court Rules would not derogate from such scheme. The scheme is that after the Court framed issues which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the Court within the time prescribed by sub-rule (1). This advance filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A. The only jurisdiction the Court has to decline to examine the witness is the one set out in proviso to Sec. 87 (1) of 1951 Act, the discretion being confined to refusing to examine witnesses on the ground that the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings. Save this the Court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the Court has no jurisdiction to refuse to examine the witness who is present in the Court on the short ground that the name of the witness was not mentioned in the list filed under sub-rule (1) of Rule 1 of order XVI. This scheme clearly emerges from the various provisions herein discussed.If the scheme of the various provisions is as herein discussed, obviously, the order of the learned Judge is wholly unsustainable. He declined to examine the witness by accepting the submission of the returned candidate that the names of the witnesses whom the appellant kept present in the Court were not mentioned in the list. This is the only ground on which the learned Judge declined to permit the appellant to examine his witnesses who were kept present in the Court and this ground is utterly unsustainable.
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Pullangode Rubber and Produce Company Limited Vs. State of Kerala and Another | the Tribunal refused to refer are "(1) Whether the fact that the applicant apportioned the sum of Rs. 79, 680 out of the general revenue expenses of its estate towards the immature area and capitalised the same for purposes of its accounts precluded the appellant from claiming the same as revenue expenses for the purpose of agricultural income-tax assessment ? (2) Whether the Tribunal ought not to have considered the nature of the expenses amounting to Rs. 79, 680 for the purpose of determining whether it is allowable expenditure or not irrespective of the way it was dealt with by the applicant for the purpose of its accounts ?" 2. The Tribunal in its order refusing to refer those questions observed : "The assessees have treated a sum of Rs. 79, 680, being a portion of the general charges as capital expenditure for all purposes including working out the managing agents commission. If the general charges were not in any way connected with maintenance of immature area, the company would not have apportioned and capitalised a part of such expenditure as attributable to immature area. It is, therefore, a matter of fact that even according to the assessee, the above expenditure relates to maintenance of immature area. The claim is, therefore, not allowable as per Explanation (2) to section 5 of the Act." 3. This question was considered by the Tribunal while dealing with the assessees appeal before it and the Tribunal observed in its order"The first contention raised before us is that the Deputy Commissioner went wrong in upholding the disallowance of Rs. 79, 680, on the sole ground that the expenditure has been capitalised in the appellant-companys accounts. The identical question under similar circumstances, relating to the assessment on the appellant-company for 1963-64 arose in Appeal AITA. 22464. We have as per our order dated November 19, 1965, found the contention against the appellant-company. For the reasons discussed therein, we find that the authorities below are perfectly justified in disallowing the claim and we accordingly confirm it as correct." 4. The High Court rejected the application of the assessee with a very short order and that order reads : " We are not satisfied that the questions suggested arise from the order of the Tribunal. We, therefore, decline their request to compel a reference under, section 60(2) of the Agricultural Income-tax Act, 1950. We dismiss this petition. There will be no order as to costs. " 5. There is material on record to show that in respect of the assessment year 1963-64, the year previous to the one with which we are concerned in this case, the Tribunal refused to refer similar questions which the assessee wanted it to refer to the High Court. But, at the instance of the assessee those questions were referred to the High Court as ordered by the High Court and the High Court answered those questions in favour of the assessee. It is no doubt true that entries in the account books of the assessee amont to an admission that the amount in question was laid out or expended for the cultivation, upkeep or maintenance of immature plants from which no agricultural income was derived during the previous year. An admission is an extremely important piece of evidence but it cannot be said that it is conclusive. It is open to the person who made the admission to show that it is incorrectSection 5 deals with the computation of agricultural income-tax. That section also provides for deduction of certain items of expenditure incurred by the assessee. Explanlation to that section reads : " Nothing contained in this section shall be deemed to entitle a person deriving agricultural income to deduction of any expenditure laid out or expended for the cultivation, upkeep or maintenance of immature plants from which no agricultural income has been derived during the previous year. " 6. According to Dr. Seyid Muhammed, the books of account maintained by the assessee clearly show that the assessee itself has held out that the sum of Rs. 79, 680, with which we are concerned in this appeal, were expended or laid out for the cultivation, upkeep or maintenance of immature plants. It may be so, but what the assessee complains is that it should have been given an opportunity to show that the books of accounts maintained by them do not disclose the correct state of facts. From the order of the Tribunal it is not clear that such an opportunity was afforded to the assessee. The Tribunal appears to have been unduly influenced by its decision relating to the year immediately previous to the year of assessment and, consequently, it appears that it ignored the assessees assertion that their account books do not correctly show the facts. If the Tribunal had examined the plea of the assessee that their account books do not correctly disclose the real facts and thereafter rejected that contention, then the finding of the Tribunal would have been a finding of fact and this court would not have interfered with such a finding. 7. Dr. Seyid Muhammed urged that the decision of the High Court relating to the assessment of the assessee in the earlier year is wrong. An uncertified copy of that order was produced before us. Therein, the High Court purported to follow an earlier decision of that court. That decision was also placed before us. We have not gone into the question whether the decision of the High Court was right or wrong. The only question that we have to consider is whether, from the order of the Tribunal, we can come to the conclusion that the assessee was given a proper opportunity to establish its plea--about that we are not satisfiedHence, we are of the opinion that the questions set out in the application of the assessee do arise for consideration and, therefore, the High Court should have directed the Tribunal to refer those questions to the High Court for its opinion 8. | 1[ds]From the order of the Tribunal it is not clear that such an opportunity was afforded to the assessee. The Tribunal appears to have been unduly influenced by its decision relating to the year immediately previous to the year of assessment and, consequently, it appears that it ignored the assessees assertion that their account books do not correctly show the facts. If the Tribunal had examined the plea of the assessee that their account books do not correctly disclose the real facts and thereafter rejected that contention, then the finding of the Tribunal would have been a finding of fact and this court would not have interfered with such a findingDr. Seyid Muhammed urged that the decision of the High Court relating to the assessment of the assessee in the earlier year is wrong. An uncertified copy of that order was produced before us. Therein, the High Court purported to follow an earlier decision of that court. That decision was also placed before us. We have not gone into the question whether the decision of the High Court was right or wrong. The only question that we have to consider is whether, from the order of the Tribunal, we can come to the conclusion that the assessee was given a proper opportunity to establish its pleaabout that we are not satisfiedHence, we are of the opinion that the questions set out in the application of the assessee do arise for consideration and, therefore, the High Court should have directed the Tribunal to refer those questions to the High Court for its opinion | 1 | 1,173 | 283 | ### Instruction:
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the Tribunal refused to refer are "(1) Whether the fact that the applicant apportioned the sum of Rs. 79, 680 out of the general revenue expenses of its estate towards the immature area and capitalised the same for purposes of its accounts precluded the appellant from claiming the same as revenue expenses for the purpose of agricultural income-tax assessment ? (2) Whether the Tribunal ought not to have considered the nature of the expenses amounting to Rs. 79, 680 for the purpose of determining whether it is allowable expenditure or not irrespective of the way it was dealt with by the applicant for the purpose of its accounts ?" 2. The Tribunal in its order refusing to refer those questions observed : "The assessees have treated a sum of Rs. 79, 680, being a portion of the general charges as capital expenditure for all purposes including working out the managing agents commission. If the general charges were not in any way connected with maintenance of immature area, the company would not have apportioned and capitalised a part of such expenditure as attributable to immature area. It is, therefore, a matter of fact that even according to the assessee, the above expenditure relates to maintenance of immature area. The claim is, therefore, not allowable as per Explanation (2) to section 5 of the Act." 3. This question was considered by the Tribunal while dealing with the assessees appeal before it and the Tribunal observed in its order"The first contention raised before us is that the Deputy Commissioner went wrong in upholding the disallowance of Rs. 79, 680, on the sole ground that the expenditure has been capitalised in the appellant-companys accounts. The identical question under similar circumstances, relating to the assessment on the appellant-company for 1963-64 arose in Appeal AITA. 22464. We have as per our order dated November 19, 1965, found the contention against the appellant-company. For the reasons discussed therein, we find that the authorities below are perfectly justified in disallowing the claim and we accordingly confirm it as correct." 4. The High Court rejected the application of the assessee with a very short order and that order reads : " We are not satisfied that the questions suggested arise from the order of the Tribunal. We, therefore, decline their request to compel a reference under, section 60(2) of the Agricultural Income-tax Act, 1950. We dismiss this petition. There will be no order as to costs. " 5. There is material on record to show that in respect of the assessment year 1963-64, the year previous to the one with which we are concerned in this case, the Tribunal refused to refer similar questions which the assessee wanted it to refer to the High Court. But, at the instance of the assessee those questions were referred to the High Court as ordered by the High Court and the High Court answered those questions in favour of the assessee. It is no doubt true that entries in the account books of the assessee amont to an admission that the amount in question was laid out or expended for the cultivation, upkeep or maintenance of immature plants from which no agricultural income was derived during the previous year. An admission is an extremely important piece of evidence but it cannot be said that it is conclusive. It is open to the person who made the admission to show that it is incorrectSection 5 deals with the computation of agricultural income-tax. That section also provides for deduction of certain items of expenditure incurred by the assessee. Explanlation to that section reads : " Nothing contained in this section shall be deemed to entitle a person deriving agricultural income to deduction of any expenditure laid out or expended for the cultivation, upkeep or maintenance of immature plants from which no agricultural income has been derived during the previous year. " 6. According to Dr. Seyid Muhammed, the books of account maintained by the assessee clearly show that the assessee itself has held out that the sum of Rs. 79, 680, with which we are concerned in this appeal, were expended or laid out for the cultivation, upkeep or maintenance of immature plants. It may be so, but what the assessee complains is that it should have been given an opportunity to show that the books of accounts maintained by them do not disclose the correct state of facts. From the order of the Tribunal it is not clear that such an opportunity was afforded to the assessee. The Tribunal appears to have been unduly influenced by its decision relating to the year immediately previous to the year of assessment and, consequently, it appears that it ignored the assessees assertion that their account books do not correctly show the facts. If the Tribunal had examined the plea of the assessee that their account books do not correctly disclose the real facts and thereafter rejected that contention, then the finding of the Tribunal would have been a finding of fact and this court would not have interfered with such a finding. 7. Dr. Seyid Muhammed urged that the decision of the High Court relating to the assessment of the assessee in the earlier year is wrong. An uncertified copy of that order was produced before us. Therein, the High Court purported to follow an earlier decision of that court. That decision was also placed before us. We have not gone into the question whether the decision of the High Court was right or wrong. The only question that we have to consider is whether, from the order of the Tribunal, we can come to the conclusion that the assessee was given a proper opportunity to establish its plea--about that we are not satisfiedHence, we are of the opinion that the questions set out in the application of the assessee do arise for consideration and, therefore, the High Court should have directed the Tribunal to refer those questions to the High Court for its opinion 8.
### Response:
1
### Explanation:
From the order of the Tribunal it is not clear that such an opportunity was afforded to the assessee. The Tribunal appears to have been unduly influenced by its decision relating to the year immediately previous to the year of assessment and, consequently, it appears that it ignored the assessees assertion that their account books do not correctly show the facts. If the Tribunal had examined the plea of the assessee that their account books do not correctly disclose the real facts and thereafter rejected that contention, then the finding of the Tribunal would have been a finding of fact and this court would not have interfered with such a findingDr. Seyid Muhammed urged that the decision of the High Court relating to the assessment of the assessee in the earlier year is wrong. An uncertified copy of that order was produced before us. Therein, the High Court purported to follow an earlier decision of that court. That decision was also placed before us. We have not gone into the question whether the decision of the High Court was right or wrong. The only question that we have to consider is whether, from the order of the Tribunal, we can come to the conclusion that the assessee was given a proper opportunity to establish its pleaabout that we are not satisfiedHence, we are of the opinion that the questions set out in the application of the assessee do arise for consideration and, therefore, the High Court should have directed the Tribunal to refer those questions to the High Court for its opinion
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Becker Gray & Company (1930) Ltd. & Others Vs. Union of India & Others | Bhargava, J. 1. The appellants in these appeals were exporters of Jute Carpet Backing Cloth and, in connection with some exports by them between the period January 1957 to January 1963, penalties have been imposed on them under Sec. 167 (8) of the Sea Customs Act for contravention of Section 12 (1) of the Foreign Exchange Regulation Act No 7 of 1947 (hereinafter referred to as "the Act") in view of the provisions of Section 23A of the Act and Section 19 of the Sea Customs Act by the Adjudicating Officer. Their appeals to the Central Board of Excise and Customs (hereinafter referred to as "the Board") were dismissed, though the amounts of penalties imposed were reduced. The order of the Board dismissing the appeals has been challenged in these appeals before us by special leave. 2. The Board based its decision for upholding the penalties on the finding that the declarations given in purported compliance with Sec. 12 (1) of the Act were defective in two respects. One defect found was that, in the declarations, the invoice value of the goods was shown at a figure lower than the real sale value. The second defect found was that, in the declarations, it was stated that the invoice value declared was the full export value of the goods and was the same as that contracted with the buyer whereas, in fact, the goods had not been sold to the buyer and were being exported on consignment basis, so that the correct declarations should have been that the declarations contained a fair valuation of the goods which were unsold. The declarations were given in Form G. R. I. prescribed by the Rules framed under Section 27 of the Act. On behalf of the appellants, the argument advanced was that these defects in the declarations did not amount to contravention of the restrictions imposed by Sec. 12 (1) of the Act, so that the imposition of these penalties was not justified.3. So far as the question of under valuation of the exported goods in the declarations or the documents accompanying the declarations is concerned, reliance was placed on the decision of this Court in Union of India v. M/s. Rai Bahadur Shreeram Durga Prasad (P) Ltd. 1969-1 SCC 91 = (AIR 1970 SC 1597 ) where this Court held that under-valuation in a declaration under Sec. 12 (1) of the Act does not amount to contravention of the restrictions imposed by that, provision. That decision is fully applicable to the present cases before us on this point and, in view of that decision, the imposition of the penalties, on the basis that the under-valuation of the goods amounted to contravention of Sec. 12 (1), is unjustified.. We may add that we see no justification for granting the request of Mr. Bindra, learned counsel for the respondents, that that decision should be reconsidered by a larger Bench. 4. Mr. Bindra, however, urged that, in these cases, there was the distinctive feature that the Board also found that the declarations were further incorrect inasmuch as the goods were declared to have been sold, while they were being exported on consignment basis as unsold goods, and it was further stated in the declarations that the full export value of the goods is the value shown instead of stating that it was the fair valuation of unsold goods. The finding recorded by the Board, no doubt, shows that the declarations required to be made under the Rules in Form G.G.I. contained incorrect information; but that incorrect information related to points on which Sec. 12 (1) does not require a declaration. A declaration, which is in contravention of the Rules or the Forms prescribed under the Rules, may be penalised under Section 23 of the Act, but such contravention will not attract the provisions of the Sea Customs Act. Under Sec. 23A of the Act, only a breach of restrictions imposed by Sec. 12 (1) of the Act is to be deemed in contravention of restrictions imposed by Sec. 19 of the Sea Customs Act. An incorrect declaration in contravention of the Rules made under Sec. 27 of the Act is not to be deemed a contravention of any restriction imposed by Sec. 19 of the Sea Customs Act. It is, therefore, quite clear that, in these cases, the imposition of the penalties under Section 167 (8) of the Sea Customs Act was totally unjustified. | 1[ds]The finding recorded by the Board, no doubt, shows that the declarations required to be made under the Rules in Form G.G.I. contained incorrect information; but that incorrect information related to points on which Sec. 12 (1) does not require a declaration. A declaration, which is in contravention of the Rules or the Forms prescribed under the Rules, may be penalised under Section 23 of the Act, but such contravention will not attract the provisions of the Sea Customs Act. Under Sec. 23A of the Act, only a breach of restrictions imposed by Sec. 12 (1) of the Act is to be deemed in contravention of restrictions imposed by Sec. 19 of the Sea Customs Act. An incorrect declaration in contravention of the Rules made under Sec. 27 of the Act is not to be deemed a contravention of any restriction imposed by Sec. 19 of the Sea Customs Act. It is, therefore, quite clear that, in these cases, the imposition of the penalties under Section 167 (8) of the Sea Customs Act was totally unjustified. | 1 | 839 | 209 | ### 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:
Bhargava, J. 1. The appellants in these appeals were exporters of Jute Carpet Backing Cloth and, in connection with some exports by them between the period January 1957 to January 1963, penalties have been imposed on them under Sec. 167 (8) of the Sea Customs Act for contravention of Section 12 (1) of the Foreign Exchange Regulation Act No 7 of 1947 (hereinafter referred to as "the Act") in view of the provisions of Section 23A of the Act and Section 19 of the Sea Customs Act by the Adjudicating Officer. Their appeals to the Central Board of Excise and Customs (hereinafter referred to as "the Board") were dismissed, though the amounts of penalties imposed were reduced. The order of the Board dismissing the appeals has been challenged in these appeals before us by special leave. 2. The Board based its decision for upholding the penalties on the finding that the declarations given in purported compliance with Sec. 12 (1) of the Act were defective in two respects. One defect found was that, in the declarations, the invoice value of the goods was shown at a figure lower than the real sale value. The second defect found was that, in the declarations, it was stated that the invoice value declared was the full export value of the goods and was the same as that contracted with the buyer whereas, in fact, the goods had not been sold to the buyer and were being exported on consignment basis, so that the correct declarations should have been that the declarations contained a fair valuation of the goods which were unsold. The declarations were given in Form G. R. I. prescribed by the Rules framed under Section 27 of the Act. On behalf of the appellants, the argument advanced was that these defects in the declarations did not amount to contravention of the restrictions imposed by Sec. 12 (1) of the Act, so that the imposition of these penalties was not justified.3. So far as the question of under valuation of the exported goods in the declarations or the documents accompanying the declarations is concerned, reliance was placed on the decision of this Court in Union of India v. M/s. Rai Bahadur Shreeram Durga Prasad (P) Ltd. 1969-1 SCC 91 = (AIR 1970 SC 1597 ) where this Court held that under-valuation in a declaration under Sec. 12 (1) of the Act does not amount to contravention of the restrictions imposed by that, provision. That decision is fully applicable to the present cases before us on this point and, in view of that decision, the imposition of the penalties, on the basis that the under-valuation of the goods amounted to contravention of Sec. 12 (1), is unjustified.. We may add that we see no justification for granting the request of Mr. Bindra, learned counsel for the respondents, that that decision should be reconsidered by a larger Bench. 4. Mr. Bindra, however, urged that, in these cases, there was the distinctive feature that the Board also found that the declarations were further incorrect inasmuch as the goods were declared to have been sold, while they were being exported on consignment basis as unsold goods, and it was further stated in the declarations that the full export value of the goods is the value shown instead of stating that it was the fair valuation of unsold goods. The finding recorded by the Board, no doubt, shows that the declarations required to be made under the Rules in Form G.G.I. contained incorrect information; but that incorrect information related to points on which Sec. 12 (1) does not require a declaration. A declaration, which is in contravention of the Rules or the Forms prescribed under the Rules, may be penalised under Section 23 of the Act, but such contravention will not attract the provisions of the Sea Customs Act. Under Sec. 23A of the Act, only a breach of restrictions imposed by Sec. 12 (1) of the Act is to be deemed in contravention of restrictions imposed by Sec. 19 of the Sea Customs Act. An incorrect declaration in contravention of the Rules made under Sec. 27 of the Act is not to be deemed a contravention of any restriction imposed by Sec. 19 of the Sea Customs Act. It is, therefore, quite clear that, in these cases, the imposition of the penalties under Section 167 (8) of the Sea Customs Act was totally unjustified.
### Response:
1
### Explanation:
The finding recorded by the Board, no doubt, shows that the declarations required to be made under the Rules in Form G.G.I. contained incorrect information; but that incorrect information related to points on which Sec. 12 (1) does not require a declaration. A declaration, which is in contravention of the Rules or the Forms prescribed under the Rules, may be penalised under Section 23 of the Act, but such contravention will not attract the provisions of the Sea Customs Act. Under Sec. 23A of the Act, only a breach of restrictions imposed by Sec. 12 (1) of the Act is to be deemed in contravention of restrictions imposed by Sec. 19 of the Sea Customs Act. An incorrect declaration in contravention of the Rules made under Sec. 27 of the Act is not to be deemed a contravention of any restriction imposed by Sec. 19 of the Sea Customs Act. It is, therefore, quite clear that, in these cases, the imposition of the penalties under Section 167 (8) of the Sea Customs Act was totally unjustified.
|
P. Mohammed Meera Lebbai Vs. Thirumalaya Gounder Ramaswamy Gounder And Others | the right of a party to have an appeal heard by a Division Bench was merely a matter of procedure and could therefore, be taken away retrospectively by implication. Learned counsel for the appellant also placed reliance upon decision of this Court in Garikapati Veereva v. N. Subbaiah Choudhury, 1957 SCR 488 : ( (S) AIR 1975 SC 540 ), in which the following propositions were laid down:"(1) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.(2) The right of appeal is not a mere matter of procedure but is a substantive right.(3) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.(4) The right of appeal is a vested right and such right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal.(5) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."and learned counsel particularly laid stress on the third proposition. We are in respectful agreement with what has been laid down by this Court. But it is difficult to appreciate what benefit the appellant can obtain from what has been laid down by this Court. For, this is not a case where any right of appeal conferred by law upon the appellant has been taken away. The right to prefer an appeal from the judgment of the court of first instance is derived from the provisions of S. 96 of the Code of Civil Procedure. The learned counsel, however, contended that in the instant case it is traceable to the provisions of Travancore-Cochin High Court Act of 1949. That Act as its preamble shows was enacted for making provision regulating the business of the High Court of Travancore-Cochin for fixing the jurisdiction of single Judges, Division Benches and Full Benches and for certain other matters connected with the functions of the High Court. It did not purport to confer a right of appeal on the parties, but merely dealt with procedural matters, matters which are dealt with by several High Courts under the Letters Patent. Even the Travancore-Cochin Civil Courts Act, 1951 the provisions of which relate to civil courts subordinate to the High Court does not confer any right of appeal though it divides civil courts into four classes and defines their respective jurisdictions.3. An objection somewhat similar to the one raised by the appellant before us was raised before this Court in Ittavira Mathai v. Varkey Varkey, (1964) 1 SCR 495 : (AIR 1964 SC 907 ), Dealing with it this Court has observed at p. 514 : (of SCR): ( at p. 914 of AIR).“That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of judges is merely a matter of procedure. No party has a vested right to have his appeal heard by a specified number of judges. An appeal lay to the High Court and the appeal in question was in fact heard and disposed by the High Court and therefore, no right of the party has been infringed merely because it was heard by two judges and not by three judges. No doubt in certain classes of cases, as for instance, cases which involve an interpretation as to any provision of the Constitution, the Constitution provides that the Bench of the Supreme Court hearing the matter must be composed of judges who will not be less than five in number. But it does not follow from this that the legal requirements in this regard cannot be altered by a competent body. We, therefore, overrule the contention of the learned counsel and hold that the appeal was rightly heard and decided by a Bench of two judges."In the circumstances, therefore, we must reject the appellants contention based upon the decision in Radhakishans case, ILR 1950 Nag 532 (FB): (AIR 1950 Nag 177).4. Learned counsel, however, contended that by depriving the appellant of the right to have his appeal heard by a Division Bench his further right of appeal to this Court under Art. 133 was affected and that since that right also vested in him when he instituted the suit it could not be taken away retrospectively except by an express provision. There is a simple answer to this contention. The answer is that once it is held that no party has a vested right to have his appeal to be heard by more than one judge of the High Court, no right to prefer an appeal under Art. 133 can be said to vest in him, the right under which being unavailable in case heard and disposed of by a single judge of the High Court. The argument of learned counsel thus fails.5. One more point was sought to be urged by learned counsel for the appellant. The point is based upon the fact that one of the contesting respondents has raised a question as to the maintainability of the suit. According to learned counsel that person being in pari delicto with the plaintiff, ought not to have been permitted to raise that question. Since the point was not raised by the appellant in either of the two courts below we declined to permit it to be raised for the first time before us. | 0[ds]In the circumstances, therefore, we must reject the appellants contention based upon the decision in Radhakishans case, ILR 1950 Nag 532 (FB): (AIR 1950 Nag 177).4. Learned counsel, however, contended that by depriving the appellant of the right to have his appeal heard by a Division Bench his further right of appeal to this Court under Art. 133 was affected and that since that right also vested in him when he instituted the suit it could not be taken away retrospectively except by an express provision. There is a simple answer to this contention. The answer is that once it is held that no party has a vested right to have his appeal to be heard by more than one judge of the High Court, no right to prefer an appeal under Art. 133 can be said to vest in him, the right under which being unavailable in case heard and disposed of by a single judge of the High Court. The argument of learned counsel thus fails.5. One more point was sought to be urged by learned counsel for the appellant. The point is based upon the fact that one of the contesting respondents has raised a question as to the maintainability of the suit. According to learned counsel that person being in pari delicto with the plaintiff, ought not to have been permitted to raise that question. Since the point was not raised by the appellant in either of the two courts below we declined to permit it to be raised for the first time before us. | 0 | 2,092 | 288 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the right of a party to have an appeal heard by a Division Bench was merely a matter of procedure and could therefore, be taken away retrospectively by implication. Learned counsel for the appellant also placed reliance upon decision of this Court in Garikapati Veereva v. N. Subbaiah Choudhury, 1957 SCR 488 : ( (S) AIR 1975 SC 540 ), in which the following propositions were laid down:"(1) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.(2) The right of appeal is not a mere matter of procedure but is a substantive right.(3) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.(4) The right of appeal is a vested right and such right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal.(5) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."and learned counsel particularly laid stress on the third proposition. We are in respectful agreement with what has been laid down by this Court. But it is difficult to appreciate what benefit the appellant can obtain from what has been laid down by this Court. For, this is not a case where any right of appeal conferred by law upon the appellant has been taken away. The right to prefer an appeal from the judgment of the court of first instance is derived from the provisions of S. 96 of the Code of Civil Procedure. The learned counsel, however, contended that in the instant case it is traceable to the provisions of Travancore-Cochin High Court Act of 1949. That Act as its preamble shows was enacted for making provision regulating the business of the High Court of Travancore-Cochin for fixing the jurisdiction of single Judges, Division Benches and Full Benches and for certain other matters connected with the functions of the High Court. It did not purport to confer a right of appeal on the parties, but merely dealt with procedural matters, matters which are dealt with by several High Courts under the Letters Patent. Even the Travancore-Cochin Civil Courts Act, 1951 the provisions of which relate to civil courts subordinate to the High Court does not confer any right of appeal though it divides civil courts into four classes and defines their respective jurisdictions.3. An objection somewhat similar to the one raised by the appellant before us was raised before this Court in Ittavira Mathai v. Varkey Varkey, (1964) 1 SCR 495 : (AIR 1964 SC 907 ), Dealing with it this Court has observed at p. 514 : (of SCR): ( at p. 914 of AIR).“That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of judges is merely a matter of procedure. No party has a vested right to have his appeal heard by a specified number of judges. An appeal lay to the High Court and the appeal in question was in fact heard and disposed by the High Court and therefore, no right of the party has been infringed merely because it was heard by two judges and not by three judges. No doubt in certain classes of cases, as for instance, cases which involve an interpretation as to any provision of the Constitution, the Constitution provides that the Bench of the Supreme Court hearing the matter must be composed of judges who will not be less than five in number. But it does not follow from this that the legal requirements in this regard cannot be altered by a competent body. We, therefore, overrule the contention of the learned counsel and hold that the appeal was rightly heard and decided by a Bench of two judges."In the circumstances, therefore, we must reject the appellants contention based upon the decision in Radhakishans case, ILR 1950 Nag 532 (FB): (AIR 1950 Nag 177).4. Learned counsel, however, contended that by depriving the appellant of the right to have his appeal heard by a Division Bench his further right of appeal to this Court under Art. 133 was affected and that since that right also vested in him when he instituted the suit it could not be taken away retrospectively except by an express provision. There is a simple answer to this contention. The answer is that once it is held that no party has a vested right to have his appeal to be heard by more than one judge of the High Court, no right to prefer an appeal under Art. 133 can be said to vest in him, the right under which being unavailable in case heard and disposed of by a single judge of the High Court. The argument of learned counsel thus fails.5. One more point was sought to be urged by learned counsel for the appellant. The point is based upon the fact that one of the contesting respondents has raised a question as to the maintainability of the suit. According to learned counsel that person being in pari delicto with the plaintiff, ought not to have been permitted to raise that question. Since the point was not raised by the appellant in either of the two courts below we declined to permit it to be raised for the first time before us.
### Response:
0
### Explanation:
In the circumstances, therefore, we must reject the appellants contention based upon the decision in Radhakishans case, ILR 1950 Nag 532 (FB): (AIR 1950 Nag 177).4. Learned counsel, however, contended that by depriving the appellant of the right to have his appeal heard by a Division Bench his further right of appeal to this Court under Art. 133 was affected and that since that right also vested in him when he instituted the suit it could not be taken away retrospectively except by an express provision. There is a simple answer to this contention. The answer is that once it is held that no party has a vested right to have his appeal to be heard by more than one judge of the High Court, no right to prefer an appeal under Art. 133 can be said to vest in him, the right under which being unavailable in case heard and disposed of by a single judge of the High Court. The argument of learned counsel thus fails.5. One more point was sought to be urged by learned counsel for the appellant. The point is based upon the fact that one of the contesting respondents has raised a question as to the maintainability of the suit. According to learned counsel that person being in pari delicto with the plaintiff, ought not to have been permitted to raise that question. Since the point was not raised by the appellant in either of the two courts below we declined to permit it to be raised for the first time before us.
|
Kajori Lal Agarwal Vs. Union Of India And Others | object of the Legislature in making the relevant provisions of the Central Act applicable to references was to take in all the relevant provisions of the Central Act which had reference to the making of reference; and naturally, these provisions would begin with S. 18 of the Central Act which is the first Section in Part III of the Central Act dealing with reference to Court and procedure thereon. It would, we think, be unreasonable to hold that until a reference is made, the said provisions do not apply and it is only after the reference is made that the said provisions begin to operate.12. It is true that S. 8 (1) of the Act uses the mandatory words "the Collector shall refer the matter to the decision of the Court"; but that does not mean that it necessarily excludes the application of the provision as to limitation. Section 18 (1) of the Central Act, though somewhat differently worded, has in law the same effect. It provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court. This provision also, in substance, is mandatory. If an applications is made by a person entitled to make such application, the Collector has no option in the matter; he has to refer it to the Court; but even this provision is subject to the limitation prescribed by sub-s. (2). The position with regard to the mandatory provision contained in S. 8 (1) of the Act is exactly similar. Therefore, the fact that S. 8 (1) uses the word, "shall" and imposes an obligation on the Collector to refer the matter to the decision of the Court, does not preclude the application of a provision for limitation prescribed in regard to the making of an application for reference.13. On principle, it seems extremely unlike that the Act which deals with acquisition and requisition of properties, could have intended to leave it to the sweet-will of the parties to make an application for reference at any time they like. The High Court no doubt realised the anomalies which would result in adopting such a construction; and so, while it upheld the appellants contention that there was no limitation prescribed for the making of an application for reference under S. 8 of the Act, it added the corollary that even though no limitation is prescribed, the application must nevertheless be made within a reasonable time. In our opinion, it is unnecessary to invoke such a general consideration, because S. 8 (2) of the Act, in terms, makes S. 18 (2) of the Central Act applicable, and there is no occasion to consider whether a particular application has been made within a reasonable time or not.14. It is somewhat remarkable that if the view accepted by the Calcutta High Court about the construction of S. 8 (2) of the Act is correct, even the amendment subsequently made by the Bengal Legislature would be ineffective. It appears that presumably as a result of the decision of the Calcutta High Court, S. 8 (2) of the Act has been amended by Act VIII of 1954. The amended provision reads thus :-"8. (2) The provisions of sub-s. (2) of S. 18 and of Ss. 19 and 22 and of Ss. 25 to 28 of the Land Acquisition Act, 1894, and the principles set out in Sub-s. (1) and in Cl. (a) of sub-s. (2) of S. 7 of this Act, shall, so far as they may be applicable, apply in respect of any reference made to the Court under sub-s. (1)".It would be noticed that this amended provision has taken the precaution of expressly referring to S. 18 (2) of the Central Act along with other Sections as Sections which are applicable to the proceedings under the provisions of the Act. Even so, the clause that these provisions will apply "in respect of any reference made to the Court under sub-s. (1)"still occurs in the amended provision; and if it is held that the words "any reference made to the Court" speak about the proceedings that follow the making of the reference, then the same difficulty may arise as to the application of S. 18 (2) of the Central Act to an application made for reference under S. 8 (1) of the Act. This amended provision lends support to the view that the clause "in respect of any reference made to the Court" does not mean that the provisions have to apply after such a reference is made, but that it includes all cases where reference is intended, or proposed, or asked to be made; and that means that if a party wants to make an application for reference, he is not doubt entitled to require the Collector to make such a reference, but his application in that behalf must be made within the limitation prescribed by S. 18(2) of the Central Act. In our opinion, in regard to the application of S. 18 (2) of the Central Act in respect of applications made for reference under S. 8 (1) of the Act, no amendment was really necessary; but, of course, the Legislature thought it necessary to make the amendment in view of the decision of the Calcutta High Court on the application made by the appellant on the earlier occasion to that High Court.15. Since we hold that the application originally made by the appellant to respondent No. 3 under S. 8 (1) of the Act on the 2nd February 1953 for reference, was barred by time, it is not necessary to consider the appellants plea whether it was made within a reasonable time. Section 8 (2) of the Act read with S. 18 (2) of the Central Act specifically prescribes limitation for the making of such applications: and there is no doubt that having regard to the said provisions, the appellants application is barred by time. | 0[ds]11. In our opinion, the High Court was in error in reading the clause "in respect of any reference made to the Court" in S. 8 (2) of the Act as referring to cases where reference has already been made. In the context, what the clause means is that the provisions of the Central Act shall mutatis mutandis apply in respect of any reference intended, proposed, or asked, to be made, and not in respect of any reference already made. Having regard to the scheme of S. 8, considered in the light of the other provisions of the Act, it seems to us clear that the object of the Legislature in making the relevant provisions of the Central Act applicable to references was to take in all the relevant provisions of the Central Act which had reference to the making of reference; and naturally, these provisions would begin with S. 18 of the Central Act which is the first Section in Part III of the Central Act dealing with reference to Court and procedure thereon. It would, we think, be unreasonable to hold that until a reference is made, the said provisions do not apply and it is only after the reference is made that the said provisions begin toprovision also, in substance, is mandatory. If an applications is made by a person entitled to make such application, the Collector has no option in the matter; he has to refer it to the Court; but even this provision is subject to the limitation prescribed by sub-s. (2). The position with regard to the mandatory provision contained in S. 8 (1) of the Act is exactly similar. Therefore, the fact that S. 8 (1) uses the word, "shall" and imposes an obligation on the Collector to refer the matter to the decision of the Court, does not preclude the application of a provision for limitation prescribed in regard to the making of an application for reference.13. On principle, it seems extremely unlike that the Act which deals with acquisition and requisition of properties, could have intended to leave it to the sweet-will of the parties to make an application for reference at any time they like. The High Court no doubt realised the anomalies which would result in adopting such a construction; and so, while it upheld the appellants contention that there was no limitation prescribed for the making of an application for reference under S. 8 of the Act, it added the corollary that even though no limitation is prescribed, the application must nevertheless be made within a reasonable time. In our opinion, it is unnecessary to invoke such a general consideration, because S. 8 (2) of the Act, in terms, makes S. 18 (2) of the Central Act applicable, and there is no occasion to consider whether a particular application has been made within a reasonable time orwould be noticed that this amended provision has taken the precaution of expressly referring to S. 18 (2) of the Central Act along with other Sections as Sections which are applicable to the proceedings under the provisions of the Act. Even so, the clause that these provisions will apply "in respect of any reference made to the Court under sub-s. (1)"still occurs in the amended provision; and if it is held that the words "any reference made to the Court" speak about the proceedings that follow the making of the reference, then the same difficulty may arise as to the application of S. 18 (2) of the Central Act to an application made for reference under S. 8 (1) of the Act. This amended provision lends support to the view that the clause "in respect of any reference made to the Court" does not mean that the provisions have to apply after such a reference is made, but that it includes all cases where reference is intended, or proposed, or asked to be made; and that means that if a party wants to make an application for reference, he is not doubt entitled to require the Collector to make such a reference, but his application in that behalf must be made within the limitation prescribed by S. 18(2) of the Central Act. In our opinion, in regard to the application of S. 18 (2) of the Central Act in respect of applications made for reference under S. 8 (1) of the Act, no amendment was really necessary; but, of course, the Legislature thought it necessary to make the amendment in view of the decision of the Calcutta High Court on the application made by the appellant on the earlier occasion to that High Court.15. Since we hold that the application originally made by the appellant to respondent No. 3 under S. 8 (1) of the Act on the 2nd February 1953 for reference, was barred by time, it is not necessary to consider the appellants plea whether it was made within a reasonable time. Section 8 (2) of the Act read with S. 18 (2) of the Central Act specifically prescribes limitation for the making of such applications: and there is no doubt that having regard to the said provisions, the appellants application is barred by time. | 0 | 2,966 | 980 | ### 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:
object of the Legislature in making the relevant provisions of the Central Act applicable to references was to take in all the relevant provisions of the Central Act which had reference to the making of reference; and naturally, these provisions would begin with S. 18 of the Central Act which is the first Section in Part III of the Central Act dealing with reference to Court and procedure thereon. It would, we think, be unreasonable to hold that until a reference is made, the said provisions do not apply and it is only after the reference is made that the said provisions begin to operate.12. It is true that S. 8 (1) of the Act uses the mandatory words "the Collector shall refer the matter to the decision of the Court"; but that does not mean that it necessarily excludes the application of the provision as to limitation. Section 18 (1) of the Central Act, though somewhat differently worded, has in law the same effect. It provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court. This provision also, in substance, is mandatory. If an applications is made by a person entitled to make such application, the Collector has no option in the matter; he has to refer it to the Court; but even this provision is subject to the limitation prescribed by sub-s. (2). The position with regard to the mandatory provision contained in S. 8 (1) of the Act is exactly similar. Therefore, the fact that S. 8 (1) uses the word, "shall" and imposes an obligation on the Collector to refer the matter to the decision of the Court, does not preclude the application of a provision for limitation prescribed in regard to the making of an application for reference.13. On principle, it seems extremely unlike that the Act which deals with acquisition and requisition of properties, could have intended to leave it to the sweet-will of the parties to make an application for reference at any time they like. The High Court no doubt realised the anomalies which would result in adopting such a construction; and so, while it upheld the appellants contention that there was no limitation prescribed for the making of an application for reference under S. 8 of the Act, it added the corollary that even though no limitation is prescribed, the application must nevertheless be made within a reasonable time. In our opinion, it is unnecessary to invoke such a general consideration, because S. 8 (2) of the Act, in terms, makes S. 18 (2) of the Central Act applicable, and there is no occasion to consider whether a particular application has been made within a reasonable time or not.14. It is somewhat remarkable that if the view accepted by the Calcutta High Court about the construction of S. 8 (2) of the Act is correct, even the amendment subsequently made by the Bengal Legislature would be ineffective. It appears that presumably as a result of the decision of the Calcutta High Court, S. 8 (2) of the Act has been amended by Act VIII of 1954. The amended provision reads thus :-"8. (2) The provisions of sub-s. (2) of S. 18 and of Ss. 19 and 22 and of Ss. 25 to 28 of the Land Acquisition Act, 1894, and the principles set out in Sub-s. (1) and in Cl. (a) of sub-s. (2) of S. 7 of this Act, shall, so far as they may be applicable, apply in respect of any reference made to the Court under sub-s. (1)".It would be noticed that this amended provision has taken the precaution of expressly referring to S. 18 (2) of the Central Act along with other Sections as Sections which are applicable to the proceedings under the provisions of the Act. Even so, the clause that these provisions will apply "in respect of any reference made to the Court under sub-s. (1)"still occurs in the amended provision; and if it is held that the words "any reference made to the Court" speak about the proceedings that follow the making of the reference, then the same difficulty may arise as to the application of S. 18 (2) of the Central Act to an application made for reference under S. 8 (1) of the Act. This amended provision lends support to the view that the clause "in respect of any reference made to the Court" does not mean that the provisions have to apply after such a reference is made, but that it includes all cases where reference is intended, or proposed, or asked to be made; and that means that if a party wants to make an application for reference, he is not doubt entitled to require the Collector to make such a reference, but his application in that behalf must be made within the limitation prescribed by S. 18(2) of the Central Act. In our opinion, in regard to the application of S. 18 (2) of the Central Act in respect of applications made for reference under S. 8 (1) of the Act, no amendment was really necessary; but, of course, the Legislature thought it necessary to make the amendment in view of the decision of the Calcutta High Court on the application made by the appellant on the earlier occasion to that High Court.15. Since we hold that the application originally made by the appellant to respondent No. 3 under S. 8 (1) of the Act on the 2nd February 1953 for reference, was barred by time, it is not necessary to consider the appellants plea whether it was made within a reasonable time. Section 8 (2) of the Act read with S. 18 (2) of the Central Act specifically prescribes limitation for the making of such applications: and there is no doubt that having regard to the said provisions, the appellants application is barred by time.
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11. In our opinion, the High Court was in error in reading the clause "in respect of any reference made to the Court" in S. 8 (2) of the Act as referring to cases where reference has already been made. In the context, what the clause means is that the provisions of the Central Act shall mutatis mutandis apply in respect of any reference intended, proposed, or asked, to be made, and not in respect of any reference already made. Having regard to the scheme of S. 8, considered in the light of the other provisions of the Act, it seems to us clear that the object of the Legislature in making the relevant provisions of the Central Act applicable to references was to take in all the relevant provisions of the Central Act which had reference to the making of reference; and naturally, these provisions would begin with S. 18 of the Central Act which is the first Section in Part III of the Central Act dealing with reference to Court and procedure thereon. It would, we think, be unreasonable to hold that until a reference is made, the said provisions do not apply and it is only after the reference is made that the said provisions begin toprovision also, in substance, is mandatory. If an applications is made by a person entitled to make such application, the Collector has no option in the matter; he has to refer it to the Court; but even this provision is subject to the limitation prescribed by sub-s. (2). The position with regard to the mandatory provision contained in S. 8 (1) of the Act is exactly similar. Therefore, the fact that S. 8 (1) uses the word, "shall" and imposes an obligation on the Collector to refer the matter to the decision of the Court, does not preclude the application of a provision for limitation prescribed in regard to the making of an application for reference.13. On principle, it seems extremely unlike that the Act which deals with acquisition and requisition of properties, could have intended to leave it to the sweet-will of the parties to make an application for reference at any time they like. The High Court no doubt realised the anomalies which would result in adopting such a construction; and so, while it upheld the appellants contention that there was no limitation prescribed for the making of an application for reference under S. 8 of the Act, it added the corollary that even though no limitation is prescribed, the application must nevertheless be made within a reasonable time. In our opinion, it is unnecessary to invoke such a general consideration, because S. 8 (2) of the Act, in terms, makes S. 18 (2) of the Central Act applicable, and there is no occasion to consider whether a particular application has been made within a reasonable time orwould be noticed that this amended provision has taken the precaution of expressly referring to S. 18 (2) of the Central Act along with other Sections as Sections which are applicable to the proceedings under the provisions of the Act. Even so, the clause that these provisions will apply "in respect of any reference made to the Court under sub-s. (1)"still occurs in the amended provision; and if it is held that the words "any reference made to the Court" speak about the proceedings that follow the making of the reference, then the same difficulty may arise as to the application of S. 18 (2) of the Central Act to an application made for reference under S. 8 (1) of the Act. This amended provision lends support to the view that the clause "in respect of any reference made to the Court" does not mean that the provisions have to apply after such a reference is made, but that it includes all cases where reference is intended, or proposed, or asked to be made; and that means that if a party wants to make an application for reference, he is not doubt entitled to require the Collector to make such a reference, but his application in that behalf must be made within the limitation prescribed by S. 18(2) of the Central Act. In our opinion, in regard to the application of S. 18 (2) of the Central Act in respect of applications made for reference under S. 8 (1) of the Act, no amendment was really necessary; but, of course, the Legislature thought it necessary to make the amendment in view of the decision of the Calcutta High Court on the application made by the appellant on the earlier occasion to that High Court.15. Since we hold that the application originally made by the appellant to respondent No. 3 under S. 8 (1) of the Act on the 2nd February 1953 for reference, was barred by time, it is not necessary to consider the appellants plea whether it was made within a reasonable time. Section 8 (2) of the Act read with S. 18 (2) of the Central Act specifically prescribes limitation for the making of such applications: and there is no doubt that having regard to the said provisions, the appellants application is barred by time.
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Tirumalachetti Rajaram Vs. Tirumalachetti Radhakrishnayya Chetty And Others | attempted to achieve was one of reconciling the different expressions of opinion found in the reported decisions of the Court. In doing so more attention has naturally been paid to the said decisions and the reasons on which they were based than to the words used in Art. 133 itself. In regard to the said Article the learned Chief Justice has observed that Courts cannot add to the language actually employed and thus give an unwarranted extension to the scope of the statutory provision. "At the same time, I do not think", observed the learned Chief Justice, "That the letter of the statutory provisions should compel a Court to an unreasonable construction if it is possible to take a reasonable view by taking the latter of the provision along with its substance." Assuming that this principle can be legitimately invoked in construing a constitutional right of making an appeal it must be borne in mind that hypothetical considerations about unreasonable consequences would not justify the imposition of a strained meaning on the relevant words used in the Article. If in discussing the problem we first begin with the enquiry as to what would be reasonable, and having reached a conclusion in that behalf on a priori consideration if we seek to import that conclusion on the words used in Art. 133 that would not be a proper approach to adopt. The proper approach to adopt would be to take the material words as they occur in Art. 133 and construe them fairly and reasonably. We have already indicated our conclusion on a fair and reasonable construction of the clause. The Madras decision no doubt attempted to find principles on which its previous decision could be explained and has in fact evolved three such principles. Even if these principles are assumed to be logical and consistent with each other and even if they are assumed to explain the earlier decisions of the Court it does not follow that the said principles can be legitimately assimilated within the scope of the Article because it seems to us that unless words are added in the Article and the meaning of the words used is unduly strained it would be difficult to justify the said principles as flowing from the said Article. This Madras view has been applied by the Andhra High Court in Lakshminarayana Sastry v. Sitaram Sastry, AIR 1959 Andh Pra 20. The majority judgment of the Allahabad High Court in Fateh Kunwar v. Raja Durbijai Singh, ILR (1952) 2 All 605 : (AIR 1952 All 942 ) (FB) which in fact preceded the Madras decision has adopted substantially the same approach and has come to the same conclusion Mr. Justice Bhargava who agreed with the majority decision, has however, placed his conclusions on grounds similar to those which we have adopted. To the same effect are the decisions of the Assam, Bombay, Mysore and Nagpur High Courts (vide G. C. Bardoloi v. Collector of Kamrup. AIR 1952 Assam 134, Kapurji Magniram v. Pannaji Debichand, 31 Bom LR 619 : AIR 1929 Bom 359 , Govind Dhondo v. Vishnu Keshav, ILR (1948) Bom 881 : (AIR 1949 Bom 164), Khanakarathnammal v. Lognatha Mudaliar, AIR 1959 Mys 112, Ramchandra v. Ganpati, ILR 1953 Nag 784 : (AIR 1953 Nag 249)). The Calcutta High Court has generally adopted the view taken by Rankin C. J., but as its decision in Probodh Chandra Roy v. Hara Hari Roy, AIR 1954 Cal 618 , shows the practice in the Calcutta High Court appears to be to treat the point as one of doubt and as Chief Justice Chakravarti has observed "where there is a doubt I would resolve it by deciding in favour of the applicant and granting him leave". On the other hand, the Full Bench decision of the Punjab High Court in Union of India v. Kanahaya Lal Sham Lal, ILR (1957) Punj 255 : ( (S) AIR 1957 Punj. 117) and the majority decision of the Patna High Court in Kanak Sunder v. Ram Laknan, ILR (1956) 35 Pat 499 : ( (S) AIR 1956 Pat 325 ) have taken the view which we have adopted.19. Before we part with this appeal we would like make it clear that if an appellate decree confirms the decision of the trial Court but merely makes a variation in regard to the order as to costs such a variation would not affect the character of the decree which would in law amount to a decree of affirmance whether the variation as to costs is made in favour of one party or the other. The position with regard to interest, however, is different; for instance in regard to a claim for interest before the date of the decree which is a part of the dispute between the parties if the appellate Court makes a variation in respect of the award of interest that would affect the character of the appellate decree. Unlike the order of costs which is entirely in the discretion of the Court under S. 35 of the Code of Civil Procedure an order as to interest which the Court can make under S. 34 of the Code forms part of a dispute between the parties, and in that sense if a variation is made in regard to it is an integral part of the decision or the decree. In this connection it may also be necessary to make it clear that if the appeal Court makes a variation in the decision of the trial Court either because a concession has been made in that behalf or the variation has been obtained by parties by consent or a part of the subject-matter covered by the decree has been withdrawn such variation cannot affect the character of the appellate decree. The principle of affirmance on which the provision rests postulates either affirmance or variation by the appeal Court as an act of adjudication and that necessarily means the decision of the appeal Court on the merits. | 1[ds]Normally, in each suit there is one decree, and so it would be inconsistent with the scheme of the Code to divide the decree into several parts by reference to its relation to different claims or subject-matters or to treat one single decree as consisting in fact of several decrees. The normal, natural and reasonable construction to place on the first part of the relevant clause is to hold that it refers not merely to that part of the decree which is sought to be challenged in the appeal but the entire decree from which the appeal arises or the decree giving rise to the appeal. On this construction the clause "appeal from" is not a clause of limitation. It is merely a descriptive clause and it describes the decree as one from which the appeal arises. If that be so, in determining the character of the decree it would be necessary to take the decree as a whole and enquire whether it is a decree of affirmance orare cases in which more than one decree can be and are passed under theCode of Civilfor instance cases where preliminary decrees are passed, but the normal rule is one decree is passed in one suit and so we are not prepared to accede to the argument that the first part of the relevant clause of Art. 133(1) should be read on the basis that every decree passed in a suit should be held to be a composite decree made up of several decrees in respect of several claims of reliefs and that the decree appealed from is only that particular decree which is proposed to be brought in appeal to thisis no doubt that the decision in the context means the decision on the points for determination. That of course is the meaning of the word "decision," but whether or not the word "decision" means the decision on one point or the decision of the whole suit comprising of all the points in dispute between the parties must inevitably depend upon the context, and the context is plainly inconsistent with the argument that the decision should mean the decision on a specific point. If the word "decree" in the first part of the relevant clause means not a part of the decree but the whole of the decree then it would be reasonable to hold that the word "decision" must likewise mean the entire decision of the trial Court and not a part ofargument is that if for determining the value of the subject-matter it is necessary to consider only that part of the decree and subject-matter which are actually proposed to be brought to this Court in appeal in interpreting the word "decree" in the relevant clause a similar approach should be adopted and only that part of the decree should be considered which is proposed to be brought to this Court in appeal. We do not see the materiality of this consideration nor even its relevance. The test prescribed by Art. 133 (1) (a) is an independent additional test and its effect has to be judged by interpreting the words used by the relevant clause. If the said clause refers to the amount of the value of the subject-matter still in dispute on appeal quite plainly we must take into account only the subject-matter in dispute in appeal and nothing more.The words used in this connection are clear and unambiguous but they cannot reasonably control the meaning of the word "decree" in the relevant clause which provides for an additional and an independent condition. Therefore, in our opinion, the argument based on the construction of Art. 133 (1) (a) is not welltwo Courts which have judged the dispute between the parties and applied their independent minds to it agree in their conclusions the appellate decision is one of affirmance and unless there is a substantial question of law no further right to appeal should lie. That is the basis of the provision. When, however, a variation is made by the appellate Court it tends to show that the two Courts have not entirely agreed and so it is not a case of affirmance. The extent of the difference does not matter so much as the fact that there is a difference in the result, and so in prescribing the doctrine of affirmance the Constitution makers may well have intended that the said doctrine should be confined only to cases where there is a complete affirmance and not to cases of partial affirmance. We do not think that the consequences of the view we are inclined to take can be reasonably characterised as opposed to commonsense. Besides, if on a fair and reasonable construction the words used in the relevant clause lead to the conclusion which we are inclined to draw it would be unreasonable to limit the scope of the said words on hypothetical considerations of unreasonable consequences. As we have already observed we are dealing with a constitutional right conferred on litigants, and, unless the limitation contended for by the respondent can be said to flow reasonably from the words used in the relevant clause, it would not be open to us to adopt that limited construction merely on such hypotheticalis perfectly true that in construing the clause we would carefully have to bear in mind the views expressed by the majority of our High Courts, but as we have already indicated there is a sharp conflict of opinion on this point and it can be stated generally that in almost all the High Courts different views have been expressed at one time or the other. Besides it would be singularly in-appropriate to invoke the doctrine of stare decisis in a case of this kind where High Courts have differed and the matter has been brought to this Court for resolving the said difference of opinion. In such a case it is open to us, and indeed it is our duty, to construe the relevant clause and decide which of the two conflicting views should hereafter prevail. Therefore the argument based on the practice prevailing in the majority of the High Courts in this country is not of muchis well known that in raising the amount of the value of the subject matter Art. 133 (1) (a) has merely partially recognised the fall in the price of the rupees and so it cannot be read as showing the intention to restrict the appellants right in any manner. In regard to the provisions of Art. 133 (3) there is no material change made by the Constitution since the position under S. 111 of the Code of 1908 as well as S. 597 of the Code of 1882 was substantially the same. We would accordingly hold that in determining the question as to whether the appellate decree passed by the High Court affirmed the decision of the trial Court the appellate decree must be considered as a whole in relation to the decision of the trial Court similarly considered as a whole. That is the proper approach in applying the test of affirmance. If there is a variation made in the appellate decree in the decision of the trial court it is not a decree of affirmance and this is not affected either by the extent of the variation made or by the fact that the variation is made in favour of the intending appellant and not againstevolved these principles the learned Chief Justice observed that every one of the decisions cited before the Court can be justified by an application of the principles thus set up. It is evident from the judgment that the task which the Full Bench attempted to achieve was one of reconciling the different expressions of opinion found in the reported decisions of the Court. In doing so more attention has naturally been paid to the said decisions and the reasons on which they were based than to the words used in Art. 133 itself. In regard to the said Article the learned Chief Justice has observed that Courts cannot add to the language actually employed and thus give an unwarranted extension to the scope of the statutory provision. "At the same time, I do not think", observed the learned Chief Justice, "That the letter of the statutory provisions should compel a Court to an unreasonable construction if it is possible to take a reasonable view by taking the latter of the provision along with its substance." Assuming that this principle can be legitimately invoked in construing a constitutional right of making an appeal it must be borne in mind that hypothetical considerations about unreasonable consequences would not justify the imposition of a strained meaning on the relevant words used in the Article. If in discussing the problem we first begin with the enquiry as to what would be reasonable, and having reached a conclusion in that behalf on a priori consideration if we seek to import that conclusion on the words used in Art. 133 that would not be a proper approach to adopt. The proper approach to adopt would be to take the material words as they occur in Art. 133 and construe them fairly and reasonably. We have already indicated our conclusion on a fair and reasonable construction of the clause. The Madras decision no doubt attempted to find principles on which its previous decision could be explained and has in fact evolved three such principles. Even if these principles are assumed to be logical and consistent with each other and even if they are assumed to explain the earlier decisions of the Court it does not follow that the said principles can be legitimately assimilated within the scope of the Article because it seems to us that unless words are added in the Article and the meaning of the words used is unduly strained it would be difficult to justify the said principles as flowing from the said Article.Before we part with this appeal we would like make it clear that if an appellate decree confirms the decision of the trial Court but merely makes a variation in regard to the order as to costs such a variation would not affect the character of the decree which would in law amount to a decree of affirmance whether the variation as to costs is made in favour of one party or the other. The position with regard to interest, however, is different; for instance in regard to a claim for interest before the date of the decree which is a part of the dispute between the parties if the appellate Court makes a variation in respect of the award of interest that would affect the character of the appellate decree. Unlike the order of costs which is entirely in the discretion of the Court under S. 35 of theCode of Civilan order as to interest which the Court can make under S. 34 of the Code forms part of a dispute between the parties, and in that sense if a variation is made in regard to it is an integral part of the decision or the decree. In this connection it may also be necessary to make it clear that if the appeal Court makes a variation in the decision of the trial Court either because a concession has been made in that behalf or the variation has been obtained by parties by consent or a part of the subject-matter covered by the decree has been withdrawn such variation cannot affect the character of the appellate decree. The principle of affirmance on which the provision rests postulates either affirmance or variation by the appeal Court as an act of adjudication and that necessarily means the decision of the appeal Court on the merits. | 1 | 8,190 | 2,077 | ### Instruction:
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attempted to achieve was one of reconciling the different expressions of opinion found in the reported decisions of the Court. In doing so more attention has naturally been paid to the said decisions and the reasons on which they were based than to the words used in Art. 133 itself. In regard to the said Article the learned Chief Justice has observed that Courts cannot add to the language actually employed and thus give an unwarranted extension to the scope of the statutory provision. "At the same time, I do not think", observed the learned Chief Justice, "That the letter of the statutory provisions should compel a Court to an unreasonable construction if it is possible to take a reasonable view by taking the latter of the provision along with its substance." Assuming that this principle can be legitimately invoked in construing a constitutional right of making an appeal it must be borne in mind that hypothetical considerations about unreasonable consequences would not justify the imposition of a strained meaning on the relevant words used in the Article. If in discussing the problem we first begin with the enquiry as to what would be reasonable, and having reached a conclusion in that behalf on a priori consideration if we seek to import that conclusion on the words used in Art. 133 that would not be a proper approach to adopt. The proper approach to adopt would be to take the material words as they occur in Art. 133 and construe them fairly and reasonably. We have already indicated our conclusion on a fair and reasonable construction of the clause. The Madras decision no doubt attempted to find principles on which its previous decision could be explained and has in fact evolved three such principles. Even if these principles are assumed to be logical and consistent with each other and even if they are assumed to explain the earlier decisions of the Court it does not follow that the said principles can be legitimately assimilated within the scope of the Article because it seems to us that unless words are added in the Article and the meaning of the words used is unduly strained it would be difficult to justify the said principles as flowing from the said Article. This Madras view has been applied by the Andhra High Court in Lakshminarayana Sastry v. Sitaram Sastry, AIR 1959 Andh Pra 20. The majority judgment of the Allahabad High Court in Fateh Kunwar v. Raja Durbijai Singh, ILR (1952) 2 All 605 : (AIR 1952 All 942 ) (FB) which in fact preceded the Madras decision has adopted substantially the same approach and has come to the same conclusion Mr. Justice Bhargava who agreed with the majority decision, has however, placed his conclusions on grounds similar to those which we have adopted. To the same effect are the decisions of the Assam, Bombay, Mysore and Nagpur High Courts (vide G. C. Bardoloi v. Collector of Kamrup. AIR 1952 Assam 134, Kapurji Magniram v. Pannaji Debichand, 31 Bom LR 619 : AIR 1929 Bom 359 , Govind Dhondo v. Vishnu Keshav, ILR (1948) Bom 881 : (AIR 1949 Bom 164), Khanakarathnammal v. Lognatha Mudaliar, AIR 1959 Mys 112, Ramchandra v. Ganpati, ILR 1953 Nag 784 : (AIR 1953 Nag 249)). The Calcutta High Court has generally adopted the view taken by Rankin C. J., but as its decision in Probodh Chandra Roy v. Hara Hari Roy, AIR 1954 Cal 618 , shows the practice in the Calcutta High Court appears to be to treat the point as one of doubt and as Chief Justice Chakravarti has observed "where there is a doubt I would resolve it by deciding in favour of the applicant and granting him leave". On the other hand, the Full Bench decision of the Punjab High Court in Union of India v. Kanahaya Lal Sham Lal, ILR (1957) Punj 255 : ( (S) AIR 1957 Punj. 117) and the majority decision of the Patna High Court in Kanak Sunder v. Ram Laknan, ILR (1956) 35 Pat 499 : ( (S) AIR 1956 Pat 325 ) have taken the view which we have adopted.19. Before we part with this appeal we would like make it clear that if an appellate decree confirms the decision of the trial Court but merely makes a variation in regard to the order as to costs such a variation would not affect the character of the decree which would in law amount to a decree of affirmance whether the variation as to costs is made in favour of one party or the other. The position with regard to interest, however, is different; for instance in regard to a claim for interest before the date of the decree which is a part of the dispute between the parties if the appellate Court makes a variation in respect of the award of interest that would affect the character of the appellate decree. Unlike the order of costs which is entirely in the discretion of the Court under S. 35 of the Code of Civil Procedure an order as to interest which the Court can make under S. 34 of the Code forms part of a dispute between the parties, and in that sense if a variation is made in regard to it is an integral part of the decision or the decree. In this connection it may also be necessary to make it clear that if the appeal Court makes a variation in the decision of the trial Court either because a concession has been made in that behalf or the variation has been obtained by parties by consent or a part of the subject-matter covered by the decree has been withdrawn such variation cannot affect the character of the appellate decree. The principle of affirmance on which the provision rests postulates either affirmance or variation by the appeal Court as an act of adjudication and that necessarily means the decision of the appeal Court on the merits.
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differed and the matter has been brought to this Court for resolving the said difference of opinion. In such a case it is open to us, and indeed it is our duty, to construe the relevant clause and decide which of the two conflicting views should hereafter prevail. Therefore the argument based on the practice prevailing in the majority of the High Courts in this country is not of muchis well known that in raising the amount of the value of the subject matter Art. 133 (1) (a) has merely partially recognised the fall in the price of the rupees and so it cannot be read as showing the intention to restrict the appellants right in any manner. In regard to the provisions of Art. 133 (3) there is no material change made by the Constitution since the position under S. 111 of the Code of 1908 as well as S. 597 of the Code of 1882 was substantially the same. We would accordingly hold that in determining the question as to whether the appellate decree passed by the High Court affirmed the decision of the trial Court the appellate decree must be considered as a whole in relation to the decision of the trial Court similarly considered as a whole. That is the proper approach in applying the test of affirmance. If there is a variation made in the appellate decree in the decision of the trial court it is not a decree of affirmance and this is not affected either by the extent of the variation made or by the fact that the variation is made in favour of the intending appellant and not againstevolved these principles the learned Chief Justice observed that every one of the decisions cited before the Court can be justified by an application of the principles thus set up. It is evident from the judgment that the task which the Full Bench attempted to achieve was one of reconciling the different expressions of opinion found in the reported decisions of the Court. In doing so more attention has naturally been paid to the said decisions and the reasons on which they were based than to the words used in Art. 133 itself. In regard to the said Article the learned Chief Justice has observed that Courts cannot add to the language actually employed and thus give an unwarranted extension to the scope of the statutory provision. "At the same time, I do not think", observed the learned Chief Justice, "That the letter of the statutory provisions should compel a Court to an unreasonable construction if it is possible to take a reasonable view by taking the latter of the provision along with its substance." Assuming that this principle can be legitimately invoked in construing a constitutional right of making an appeal it must be borne in mind that hypothetical considerations about unreasonable consequences would not justify the imposition of a strained meaning on the relevant words used in the Article. If in discussing the problem we first begin with the enquiry as to what would be reasonable, and having reached a conclusion in that behalf on a priori consideration if we seek to import that conclusion on the words used in Art. 133 that would not be a proper approach to adopt. The proper approach to adopt would be to take the material words as they occur in Art. 133 and construe them fairly and reasonably. We have already indicated our conclusion on a fair and reasonable construction of the clause. The Madras decision no doubt attempted to find principles on which its previous decision could be explained and has in fact evolved three such principles. Even if these principles are assumed to be logical and consistent with each other and even if they are assumed to explain the earlier decisions of the Court it does not follow that the said principles can be legitimately assimilated within the scope of the Article because it seems to us that unless words are added in the Article and the meaning of the words used is unduly strained it would be difficult to justify the said principles as flowing from the said Article.Before we part with this appeal we would like make it clear that if an appellate decree confirms the decision of the trial Court but merely makes a variation in regard to the order as to costs such a variation would not affect the character of the decree which would in law amount to a decree of affirmance whether the variation as to costs is made in favour of one party or the other. The position with regard to interest, however, is different; for instance in regard to a claim for interest before the date of the decree which is a part of the dispute between the parties if the appellate Court makes a variation in respect of the award of interest that would affect the character of the appellate decree. Unlike the order of costs which is entirely in the discretion of the Court under S. 35 of theCode of Civilan order as to interest which the Court can make under S. 34 of the Code forms part of a dispute between the parties, and in that sense if a variation is made in regard to it is an integral part of the decision or the decree. In this connection it may also be necessary to make it clear that if the appeal Court makes a variation in the decision of the trial Court either because a concession has been made in that behalf or the variation has been obtained by parties by consent or a part of the subject-matter covered by the decree has been withdrawn such variation cannot affect the character of the appellate decree. The principle of affirmance on which the provision rests postulates either affirmance or variation by the appeal Court as an act of adjudication and that necessarily means the decision of the appeal Court on the merits.
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Authorised Officer, Thanjavur and Another Vs. S. Naganatha Ayyar | rule or the golden rule, there is danger that in place of those irrelevant criteria, the canons of construction, they have more obviously substituted their own (perhaps more harmful) impressions, views, prejudices or predispositions. Such conflicts between what Parliament intended and what the judges assumed Parliament to have intended have long been appreciated."(Modern Law Review, Vol. 28, 1965 p 525) Those who have reflected on the meaning of meaning have said that words.... "mean" nothing by themselves.. (1). They convey policy and the judge who interprets must seek the intent of the legislature by gaining an insight into this policy and making it manifest through the process of construction. Looking at the words of s. 22 in the light of the scheme, of prohibition of transfers to preserve the surplus lands for distribution, we find no justification for importing into s. 22 more than its words convey. The Section says what it means, nothing more, nothing else. A simple scan of the provision reveals that any transfer, gift, surrender, settlement or other alienation referred to in the Section may be declared void by the Authorised officer "if he finds that the transfer or the partition....defeats any of the provisions of this Act.". The trichotomy is obvious. There must be a transfer or other alienation. It must have taken place during the period mentioned in the Section. It must have the effect of defeating any of the provisions, of the Act. If these three elements are present, the Authorised of ficer must void the transfer. There is no room for importing a fourth principal that the transfer should be sham, nominal or bogus. Nor indeed is there any additional consideration that if the transfer is bona, fide for family necessity or other urgency then it is good, even though it defeats the provisions of the Act. We cannot amend the Section or dilute its imperatives, scared by the consequences or moved by extraneous sympathies. Sub-conscious forces and individual prepossessions have a subtle way of entering the interpretative verdict of the judge. We have to be constantly careful to exclude such intrusions. Moreover, when the whole purpose of the Section is, to prevent any alienation which defeats any of the purpose if visions of the Act, it is impermissible to introduce any requirement, other than is mentioned in the Section, as a condition for its operation. Obviously, the provision seeks to provide social justice for the landless and it defeats the purpose if, by the interpretative process, soft Justice to large landholders is brought about. We consider the literal meaning of the Section to be that any transfer or other alienation mentioned in the Section which reduces or impairs the otherwise available extent of surplus land beyond the ceiling "defeats.. the provisions of this Act." This is the plain meaning of the Section which gives no room for doubt or justification for importation of any further condition like sham, bogus etc.A return to the rules of strict construction, when the purpose of the statute needs it, is desirable, especially with a view to give effect A to t he intention of the legislature. We are reminded of Lord Dennings interesting remarks in his recent book "The Discipline of Law" under heading "I am a Portia Man". In justification of his view Russell LJ quoted a passage from Shakespeare. It is worth recording because there are lessons to be drawn from it-as there often are from Shakespeare: I may perhaps be forgiven for saying that it appears to me that Lord Denning MR has acceded to the appeal of Bessanio in the Merchant of Venice. Bessanio "And, I beseech you, Wrest once the law to your authority: To do a great right, do a little wrong. But Portia retorted: "It must not be; there is no power in Venice Can alter a decree established: It will be recorded for a precedent, And many an error, by the same example, Will rush into the State: it cannot be." Then said Russell LJ. I am a Portia man. I cannot believe that Russell LJ would be a Portia man if it meant aligning himself with Shylock-in support of a strict law of penalties which could not be relieved by equity. To be truly a Portia marl The lawyer should follow the way ill which Portia avoided an unjust decree. Not to let the words of the deed be the masters: but so construe them-adapt them as the occasion demands-so as to do what justice and equity require. This is how she turned the tables on Shylock: It is in this denouement that I would follow the example of Portia-I too am a Portia man 10. In the interpretation of s. 22 we too are Portia men. For this reason we reverse the view of the High Court that s. 22 will not apply to nullify any transaction of transfer or partition unless it is further shown that it is sham, nominal or bogus. Nor do we agree with Shri Ramamurthy that even if a Transaction defeats the ceiling provisions, it may still be valid if the transfer is, from an individual point of view, bona fide. The short reply is that from the communitys angle, especially the landless communitys angle hungering for allotment, the alienation, however necessary for the individual, is not bona fide visa-vis the community.Therefore, we allow the appeal in the light of the interpretation we have adopted, restore the tribunals holding and rule that if any transfer defeats the provisions of the Act by reducing the extent of surplus lan d in excess of the ceiling available from any person such transaction bona fide or not, is void in the matter of computation of the permissible area and the surplus area. May be, that the transaction may be good for other purposes or may not be. The Authorised officer is within his power if he ignores it as void for purposes of s. 22, s. 7 and other ceiling- related provisions. 11. | 1[ds]Section 22, literally read leads only to one conclusion, that any transfer, bona fide executed or not, is liable to be declared void by the Authorised Officer "if he finds that the transfer defeats any of the provisions of this Act." There is not the slightest doubt t hat severally and cumulatively the provisions of the Act seek to make available the maximum extent of land, in excess of the ceiling, to be vested in Government for fulfilment of its purposes. Chapter II contains a fasciculus of provisions i n this behalf and if any transfer carves out of the surplus area some land, pro tanto, the provisions of the Act are defeated. Indeed, it is not seriously disputed that such will be the conclusion if we do not read into the provisions either the condition that it does not apply to bona fide transfers, as Shri Ramamurthy would have it, or does not apply to any transfers other than sham, nominal or bogus transfers, as the High Court would have it. A policy- oriented interpretation tallies with the literal construction in the present case. The mischief rule in Heydons case and the grammatical construction which is the Golden Rule converge to the same conclusion in the present caseSection 22, literally read leads only to one conclusion, that any transfer, bona fide executed or not, is liable to be declared void by the Authorised Officer "if he finds that the transfer defeats any of the provisions of this Act." There is not the slightest doubt t hat severally and cumulatively the provisions of the Act seek to make available the maximum extent of land, in excess of the ceiling, to be vested in Government for fulfilment of its purposes. Chapter II contains a fasciculus of provisions i n this behalf and if any transfer carves out of the surplus area some land, pro tanto, the provisions of the Act are defeated. Indeed, it is not seriously disputed that such will be the conclusion if we do not read into the provisions either the condition that it does not apply to bona fide transfers, as Shri Ramamurthy would have it, or does not apply to any transfers other than sham, nominal or bogus transfers, as the High Court would have it. A policy- oriented interpretation tallies with the literal construction in the present case. The mischief rule in Heydons case and the grammatical construction which is the Golden Rule converge to the same conclusion in the present caseWe consider the literal meaning of the Section to be that any transfer or other alienation mentioned in the Section which reduces or impairs the otherwise available extent of surplus land beyond the ceiling "defeats.. the provisions of this Act." This is the plain meaning of the Section which gives no room for doubt or justification for importation of any further condition like sham, bogus etc.A return to the rules of strict construction, when the purpose of the statute needs it, is desirable, especially with a view to give effect A to t he intention of the legislature. We are reminded of Lord Dennings interesting remarks in his recent book "The Discipline of Law" under heading "I am a Portia Man"In the interpretation of s. 22 we too are Portia men. For this reason we reverse the view of the High Court that s. 22 will not apply to nullify any transaction of transfer or partition unless it is further shown that it is sham, nominal or bogus. Nor do we agree with Shri Ramamurthy that even if a Transaction defeats the ceiling provisions, it may still be valid if the transfer is, from an individual point of view, bona fide. The short reply is that from the communitys angle, especially the landless communitys angle hungering for allotment, the alienation, however necessary for the individual, is not bona fide visa-vis the community.Therefore, we allow the appeal in the light of the interpretation we have adopted, restore the tribunals holding and rule that if any transfer defeats the provisions of the Act by reducing the extent of surplus lan d in excess of the ceiling available from any person such transaction bona fide or not, is void in the matter of computation of the permissible area and the surplus area. May be, that the transaction may be good for other purposes or may not be. The Authorised officer is within his power if he ignores it as void for purposes of s. 22, s. 7 and other ceiling- related provisions. | 1 | 4,401 | 832 | ### Instruction:
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rule or the golden rule, there is danger that in place of those irrelevant criteria, the canons of construction, they have more obviously substituted their own (perhaps more harmful) impressions, views, prejudices or predispositions. Such conflicts between what Parliament intended and what the judges assumed Parliament to have intended have long been appreciated."(Modern Law Review, Vol. 28, 1965 p 525) Those who have reflected on the meaning of meaning have said that words.... "mean" nothing by themselves.. (1). They convey policy and the judge who interprets must seek the intent of the legislature by gaining an insight into this policy and making it manifest through the process of construction. Looking at the words of s. 22 in the light of the scheme, of prohibition of transfers to preserve the surplus lands for distribution, we find no justification for importing into s. 22 more than its words convey. The Section says what it means, nothing more, nothing else. A simple scan of the provision reveals that any transfer, gift, surrender, settlement or other alienation referred to in the Section may be declared void by the Authorised officer "if he finds that the transfer or the partition....defeats any of the provisions of this Act.". The trichotomy is obvious. There must be a transfer or other alienation. It must have taken place during the period mentioned in the Section. It must have the effect of defeating any of the provisions, of the Act. If these three elements are present, the Authorised of ficer must void the transfer. There is no room for importing a fourth principal that the transfer should be sham, nominal or bogus. Nor indeed is there any additional consideration that if the transfer is bona, fide for family necessity or other urgency then it is good, even though it defeats the provisions of the Act. We cannot amend the Section or dilute its imperatives, scared by the consequences or moved by extraneous sympathies. Sub-conscious forces and individual prepossessions have a subtle way of entering the interpretative verdict of the judge. We have to be constantly careful to exclude such intrusions. Moreover, when the whole purpose of the Section is, to prevent any alienation which defeats any of the purpose if visions of the Act, it is impermissible to introduce any requirement, other than is mentioned in the Section, as a condition for its operation. Obviously, the provision seeks to provide social justice for the landless and it defeats the purpose if, by the interpretative process, soft Justice to large landholders is brought about. We consider the literal meaning of the Section to be that any transfer or other alienation mentioned in the Section which reduces or impairs the otherwise available extent of surplus land beyond the ceiling "defeats.. the provisions of this Act." This is the plain meaning of the Section which gives no room for doubt or justification for importation of any further condition like sham, bogus etc.A return to the rules of strict construction, when the purpose of the statute needs it, is desirable, especially with a view to give effect A to t he intention of the legislature. We are reminded of Lord Dennings interesting remarks in his recent book "The Discipline of Law" under heading "I am a Portia Man". In justification of his view Russell LJ quoted a passage from Shakespeare. It is worth recording because there are lessons to be drawn from it-as there often are from Shakespeare: I may perhaps be forgiven for saying that it appears to me that Lord Denning MR has acceded to the appeal of Bessanio in the Merchant of Venice. Bessanio "And, I beseech you, Wrest once the law to your authority: To do a great right, do a little wrong. But Portia retorted: "It must not be; there is no power in Venice Can alter a decree established: It will be recorded for a precedent, And many an error, by the same example, Will rush into the State: it cannot be." Then said Russell LJ. I am a Portia man. I cannot believe that Russell LJ would be a Portia man if it meant aligning himself with Shylock-in support of a strict law of penalties which could not be relieved by equity. To be truly a Portia marl The lawyer should follow the way ill which Portia avoided an unjust decree. Not to let the words of the deed be the masters: but so construe them-adapt them as the occasion demands-so as to do what justice and equity require. This is how she turned the tables on Shylock: It is in this denouement that I would follow the example of Portia-I too am a Portia man 10. In the interpretation of s. 22 we too are Portia men. For this reason we reverse the view of the High Court that s. 22 will not apply to nullify any transaction of transfer or partition unless it is further shown that it is sham, nominal or bogus. Nor do we agree with Shri Ramamurthy that even if a Transaction defeats the ceiling provisions, it may still be valid if the transfer is, from an individual point of view, bona fide. The short reply is that from the communitys angle, especially the landless communitys angle hungering for allotment, the alienation, however necessary for the individual, is not bona fide visa-vis the community.Therefore, we allow the appeal in the light of the interpretation we have adopted, restore the tribunals holding and rule that if any transfer defeats the provisions of the Act by reducing the extent of surplus lan d in excess of the ceiling available from any person such transaction bona fide or not, is void in the matter of computation of the permissible area and the surplus area. May be, that the transaction may be good for other purposes or may not be. The Authorised officer is within his power if he ignores it as void for purposes of s. 22, s. 7 and other ceiling- related provisions. 11.
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Section 22, literally read leads only to one conclusion, that any transfer, bona fide executed or not, is liable to be declared void by the Authorised Officer "if he finds that the transfer defeats any of the provisions of this Act." There is not the slightest doubt t hat severally and cumulatively the provisions of the Act seek to make available the maximum extent of land, in excess of the ceiling, to be vested in Government for fulfilment of its purposes. Chapter II contains a fasciculus of provisions i n this behalf and if any transfer carves out of the surplus area some land, pro tanto, the provisions of the Act are defeated. Indeed, it is not seriously disputed that such will be the conclusion if we do not read into the provisions either the condition that it does not apply to bona fide transfers, as Shri Ramamurthy would have it, or does not apply to any transfers other than sham, nominal or bogus transfers, as the High Court would have it. A policy- oriented interpretation tallies with the literal construction in the present case. The mischief rule in Heydons case and the grammatical construction which is the Golden Rule converge to the same conclusion in the present caseSection 22, literally read leads only to one conclusion, that any transfer, bona fide executed or not, is liable to be declared void by the Authorised Officer "if he finds that the transfer defeats any of the provisions of this Act." There is not the slightest doubt t hat severally and cumulatively the provisions of the Act seek to make available the maximum extent of land, in excess of the ceiling, to be vested in Government for fulfilment of its purposes. Chapter II contains a fasciculus of provisions i n this behalf and if any transfer carves out of the surplus area some land, pro tanto, the provisions of the Act are defeated. Indeed, it is not seriously disputed that such will be the conclusion if we do not read into the provisions either the condition that it does not apply to bona fide transfers, as Shri Ramamurthy would have it, or does not apply to any transfers other than sham, nominal or bogus transfers, as the High Court would have it. A policy- oriented interpretation tallies with the literal construction in the present case. The mischief rule in Heydons case and the grammatical construction which is the Golden Rule converge to the same conclusion in the present caseWe consider the literal meaning of the Section to be that any transfer or other alienation mentioned in the Section which reduces or impairs the otherwise available extent of surplus land beyond the ceiling "defeats.. the provisions of this Act." This is the plain meaning of the Section which gives no room for doubt or justification for importation of any further condition like sham, bogus etc.A return to the rules of strict construction, when the purpose of the statute needs it, is desirable, especially with a view to give effect A to t he intention of the legislature. We are reminded of Lord Dennings interesting remarks in his recent book "The Discipline of Law" under heading "I am a Portia Man"In the interpretation of s. 22 we too are Portia men. For this reason we reverse the view of the High Court that s. 22 will not apply to nullify any transaction of transfer or partition unless it is further shown that it is sham, nominal or bogus. Nor do we agree with Shri Ramamurthy that even if a Transaction defeats the ceiling provisions, it may still be valid if the transfer is, from an individual point of view, bona fide. The short reply is that from the communitys angle, especially the landless communitys angle hungering for allotment, the alienation, however necessary for the individual, is not bona fide visa-vis the community.Therefore, we allow the appeal in the light of the interpretation we have adopted, restore the tribunals holding and rule that if any transfer defeats the provisions of the Act by reducing the extent of surplus lan d in excess of the ceiling available from any person such transaction bona fide or not, is void in the matter of computation of the permissible area and the surplus area. May be, that the transaction may be good for other purposes or may not be. The Authorised officer is within his power if he ignores it as void for purposes of s. 22, s. 7 and other ceiling- related provisions.
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Amit Suresh Arya Vs. Central Bureau of Investigation, Through Police Station Inspector, Anti-Corruption Bureau, Nagpur & Others | direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognisable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.22. The proposition of law relating to information in cognisable cases is well settled and any person orally or in writing can set criminal law into motion. In this background, we do not find any infirmity regarding the locus to lodge the report. The third contention raised by the learned counsel for the applicants is, therefore, negatived in the above background.23. (iv) Company is not arraigned as an accused and without arraigning company as an accused, the prosecution against applicants is not maintainable :One of the grounds on which criminal prosecution is attacked is that company is not arraigned as an accused and prosecution is launched only against the Directors of the Company. To substantiate the submission, reliance is placed on the decision of the Honble Supreme Court in Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661. The dispute in this case was under Section 138 of the Negotiable Instruments Act, 1881. Company was not arraigned as an accused and only officers of company were implicated. The Honble Supreme Court held that a distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar. Criminal liability on account of dishonour of cheque in the case before the Supreme Court was primarily on drawer company and extended to its officers only when conditions incorporated in Section 141 of the Negotiable Instruments Act could be satisfied. In this background, the Honble Supreme Court held that for maintaining prosecution under Section 141, arraigning of company as an accused is imperative.24. In the present case, allegations of cheating and forgery are in the personal capacity of the applicants. The offences alleged being under the penal law element of mens rea also needs to be considered. The question of company sharing the criminal liability with its officers cannot be said to be imperative in the present set of facts and circumstances and particularly in view of the offences alleged against the applicants. The facts are distinguishable. We, therefore, do not find any merit in this contention also raised by the learned counsel for the applicants.On Merits25. Next question that now remains for consideration is whether FIR, charge-sheet, and connecting papers thereto make out a case against the applicants to proceed for the offences alleged against them. It is significant to note that allegations of criminal conspiracy have been levelled against the applicants and three officers of the Central Excise and Customs Department named above. It is the case of prosecution that applicants - both the Directors of M/s. Eva Tex Private Limited, diverted the material to the domestic tariff area and by the aforesaid acts, caused loss of revenue to the tune of Rs.71 Lacs by evading customs and central excise duty. So far as the loss of revenue is concerned, officer of Central Excise has instituted the complaint under Sections 9, 9AA and 10 of the Central Excise Act, 1944. When it comes to criminal prosecution and particularly offence under Section 120-B of the Indian Penal Code, allegations against applicants are that in connivance with the officers of Customs and Central Excise, they forged the documents, cheated the department by using the forged documents as genuine knowing them that they are forged. It is pertinent to note that the officers of Customs and Central Excise against whom allegations made in FIR were also involved in the offences under the Prevention of Corruption Act, 1988. The sanction to prosecute those officers came to be refused by the sanctioning authority vide order dated 9.11.2006. After considering the entire material placed before the sanctioning authority, the said authority observed that CBI has not adduced any evidence about the connivance of the officers with the unit in perpetrating this fraud. Though it was further observed that officers were surely negligent and lackadaisical in their duties but in the absence of reasonable and cogent evidence, authority found that it may not be correct to show that they entered into criminal conspiracy warranting prosecution against them.26. We have perused the contents of FIR lodged on 28.9.2005. The offence occurred is in the year 2004. The Central Excise Department has already taken care of by instituting a complaint an evasion of Customs and Excise duty. The grievance made in the complaint by Central Excise Department are almost identical to the allegations in FIR. We have already held above that the doctrine of double jeopardy would not be attracted in the present case, but since the allegations are almost common and particularly the sanctioning authority did not find any evidence on close scrutiny, we find that continuance of the criminal prosecution against the applicants would be nothing but an abuse of process of law. Hence, on merits applicants do succeed and accordingly we pass the following order : | 1[ds]10. We have given our anxious consideration to the rival submissions of the learned counsel for both the sides. We have also examined the relevant provisions of Delhi Act, Article 166 of the Constitution of India relating to conduct of business of the Government of the State and case law cited by both the parties. We are of the view that preliminary objections raised on behalf of the applicants are not sustainable though on merits, they succeed as ingredients of the offences under the Penal Law are not made out from the FIR,and the connecting papers thereto.From a closer scrutiny of the relevant provisions of the Delhi Act, it is crystal clear that Section 3 refers to "Notification" and requires the Central Government to issue notification specifying offences or classes of offences to be investigated by the Delhi Special Police Establishment. Section 5 uses the term "order" and empowers the Central Government to extend powers and jurisdiction of Special Police Establishment to other areas not covered by the Act. Section 6 speaks of consent of State Government for the exercise of powers and jurisdiction of the Delhi Special Establishment without referring to the term "notification" or "order". As Section 6 merely requires consent of the State Government for the application of the Delhi Act, in our considered view, by order dated 22.2.1989 State Government has given the consent as envisaged by Section 6 of the Delhi Act and prosecution instituted by CBI against the applicants cannot be said to be without jurisdiction. In the light of the above, we find that the issue of consent under Section 6 raised by the learned counsel for applicants is unsustainable in law.So far as proceedings in Regular Criminal Case No.2303/2007 arising out ofNo.5/2007 in Crime No.RCNAG 2005A0012 are concerned, the same is for the offences punishable under Sections, 468 and 471 of the Indian Penal Code.Needless to state that the offences alleged in FIR are the distinct and separate offences against the same persons and even if they are appearing to be identical to the allegations in complaint under the Central Excise Act, cannot be said to be hit by the doctrine of double jeopardy, as they are not the same offence. As such, in our opinion, provisions of Section 300 of the Code of Criminal Procedure and Section 26 of the General Clauses Act are not attracted in the facts of the present case and we find that second objection raised by the learned counsel for the applicants holds no water.19. (iii) Considering the offences alleged, aggrieved person ought to have lodged the report and based on source information not disclosed at any time, complainant has no locus to lodge report alleging the offences of cheating, forgery etc.:Another ground on which criminal prosecution is assailed is regarding the locus of complainant to lodge the complaint. Submission of the applicants is that FIR is lodged on the basis of source information which has never been disclosed at any time and for the offences particularly of cheating and forgery, it was incumbent on the prosecution agency to disclose the source of information and the name of informant. In support thereof, reliance is placed on the decisions of the Honble Supreme Court in Joseph Salvaraja v. State of Gujarat and others, (2011) 7 SCC 59 and Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 751. 20. On going through both the decisions of the Honble Supreme Court, it can be seen that the facts were not identical to the present controversy and in the given facts and circumstances of the case, the Honble Supreme Court in the first case held that FIR was an abuse of process of law, dispute was purely of civil nature, commission of criminal offence to wreak vengeance was alleged and in such a case refusal of High Court to quash FIR under Section 482 of the Code of Criminal Procedure with liberty to file discharge application was to be quashed and set aside.In another decision, the observations of Honble Supreme Court were that criminal courts should ensure that criminal proceedings are not misused for settling scores or pressurising parties to settle civil disputes. The ingredients of the offence of cheating and forgery defined under Section 415 and punishable under Section 420 of the Indian Penal Code, came to be reiterated by the Honble Supreme Court in the said case.21. In the case on hand, FIR has been lodged by Superintendent of Police, CBI, Nagpur. Learned counsel refers to the provisions of Section 39 of the Code of Criminal Procedure and attempts to demonstrate that offences relating to cheating and forgery are not covered by this provision and, therefore, it was incumbent on the aggrieved person to come forward and lodge report. Section 39 requires public to give information of certain offences and speaks that every person aware of the commission of, or of the intention of any other person to commit any offence punishable under the section mentioned in Section 39 shall forthwith give information to the nearest Magistrate or public officer of such commission or intention. The offences under Sections420, 468 and 471 of the Indian PenalCode are cognisable. As these offences are cognisable, offence alleged under Sectionof the Indian Penal Code is also cognisable. Section 154 of the Code of Criminal Procedure relates to information in cognisable cases. The provisions of Section 154 of Cr.P.C. read thus :154. Information in cognisableEvery information relating to the commission of a cognisable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.(2) A copy of the information as recorded under(1) shall be given forthwith, free of cost, to the informant.(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in(1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognisable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.22. The proposition of law relating to information in cognisable cases is well settled and any person orally or in writing can set criminal law into motion. In this background, we do not find any infirmity regarding the locus to lodge the report. The third contention raised by the learned counsel for the applicants is, therefore, negatived in the above background.23. (iv) Company is not arraigned as an accused and without arraigning company as an accused, the prosecution against applicants is not maintainable :One of the grounds on which criminal prosecution is attacked is that company is not arraigned as an accused and prosecution is launched only against the Directors of the Company. To substantiate the submission, reliance is placed on the decision of the Honble Supreme Court in Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661. The dispute in this case was under Section 138 of the Negotiable Instruments Act, 1881. Company was not arraigned as an accused and only officers of company were implicated. The Honble Supreme Court held that a distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar. Criminal liability on account of dishonour of cheque in the case before the Supreme Court was primarily on drawer company and extended to its officers only when conditions incorporated in Section 141 of the Negotiable Instruments Act could be satisfied. In this background, the Honble Supreme Court held that for maintaining prosecution under Section 141, arraigning of company as an accused is imperative.24. In the present case, allegations of cheating and forgery are in the personal capacity of the applicants. The offences alleged being under the penal law element of mens rea also needs to be considered. The question of company sharing the criminal liability with its officers cannot be said to be imperative in the present set of facts and circumstances and particularly in view of the offences alleged against the applicants. The facts are distinguishable. We, therefore, do not find any merit in this contention also raised by the learned counsel for theis significant to note that allegations of criminal conspiracy have been levelled against the applicants and three officers of the Central Excise and Customs Department named above. It is the case of prosecution that applicantsboth the Directors of M/s. Eva Tex Private Limited, diverted the material to the domestic tariff area and by the aforesaid acts, caused loss of revenue to the tune of Rs.71 Lacs by evading customs and central excise duty. So far as the loss of revenue is concerned, officer of Central Excise has instituted the complaint under Sections 9, 9AA and 10 of the Central Excise Act, 1944. When it comes to criminal prosecution and particularly offence under Sectionof the Indian Penal Code, allegations against applicants are that in connivance with the officers of Customs and Central Excise, they forged the documents, cheated the department by using the forged documents as genuine knowing them that they are forged. It is pertinent to note that the officers of Customs and Central Excise against whom allegations made in FIR were also involved in the offences under the Prevention of Corruption Act, 1988. The sanction to prosecute those officers came to be refused by the sanctioning authority vide order dated 9.11.2006. After considering the entire material placed before the sanctioning authority, the said authority observed that CBI has not adduced any evidence about the connivance of the officers with the unit in perpetrating this fraud. Though it was further observed that officers were surely negligent and lackadaisical in their duties but in the absence of reasonable and cogent evidence, authority found that it may not be correct to show that they entered into criminal conspiracy warranting prosecution against them.26. We have perused the contents of FIR lodged on 28.9.2005. The offence occurred is in the year 2004. The Central Excise Department has already taken care of by instituting a complaint an evasion of Customs and Excise duty. The grievance made in the complaint by Central Excise Department are almost identical to the allegations in FIR. We have already held above that the doctrine of double jeopardy would not be attracted in the present case, but since the allegations are almost common and particularly the sanctioning authority did not find any evidence on close scrutiny, we find that continuance of the criminal prosecution against the applicants would be nothing but an abuse of process of law. | 1 | 7,294 | 2,055 | ### 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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direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognisable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.22. The proposition of law relating to information in cognisable cases is well settled and any person orally or in writing can set criminal law into motion. In this background, we do not find any infirmity regarding the locus to lodge the report. The third contention raised by the learned counsel for the applicants is, therefore, negatived in the above background.23. (iv) Company is not arraigned as an accused and without arraigning company as an accused, the prosecution against applicants is not maintainable :One of the grounds on which criminal prosecution is attacked is that company is not arraigned as an accused and prosecution is launched only against the Directors of the Company. To substantiate the submission, reliance is placed on the decision of the Honble Supreme Court in Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661. The dispute in this case was under Section 138 of the Negotiable Instruments Act, 1881. Company was not arraigned as an accused and only officers of company were implicated. The Honble Supreme Court held that a distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar. Criminal liability on account of dishonour of cheque in the case before the Supreme Court was primarily on drawer company and extended to its officers only when conditions incorporated in Section 141 of the Negotiable Instruments Act could be satisfied. In this background, the Honble Supreme Court held that for maintaining prosecution under Section 141, arraigning of company as an accused is imperative.24. In the present case, allegations of cheating and forgery are in the personal capacity of the applicants. The offences alleged being under the penal law element of mens rea also needs to be considered. The question of company sharing the criminal liability with its officers cannot be said to be imperative in the present set of facts and circumstances and particularly in view of the offences alleged against the applicants. The facts are distinguishable. We, therefore, do not find any merit in this contention also raised by the learned counsel for the applicants.On Merits25. Next question that now remains for consideration is whether FIR, charge-sheet, and connecting papers thereto make out a case against the applicants to proceed for the offences alleged against them. It is significant to note that allegations of criminal conspiracy have been levelled against the applicants and three officers of the Central Excise and Customs Department named above. It is the case of prosecution that applicants - both the Directors of M/s. Eva Tex Private Limited, diverted the material to the domestic tariff area and by the aforesaid acts, caused loss of revenue to the tune of Rs.71 Lacs by evading customs and central excise duty. So far as the loss of revenue is concerned, officer of Central Excise has instituted the complaint under Sections 9, 9AA and 10 of the Central Excise Act, 1944. When it comes to criminal prosecution and particularly offence under Section 120-B of the Indian Penal Code, allegations against applicants are that in connivance with the officers of Customs and Central Excise, they forged the documents, cheated the department by using the forged documents as genuine knowing them that they are forged. It is pertinent to note that the officers of Customs and Central Excise against whom allegations made in FIR were also involved in the offences under the Prevention of Corruption Act, 1988. The sanction to prosecute those officers came to be refused by the sanctioning authority vide order dated 9.11.2006. After considering the entire material placed before the sanctioning authority, the said authority observed that CBI has not adduced any evidence about the connivance of the officers with the unit in perpetrating this fraud. Though it was further observed that officers were surely negligent and lackadaisical in their duties but in the absence of reasonable and cogent evidence, authority found that it may not be correct to show that they entered into criminal conspiracy warranting prosecution against them.26. We have perused the contents of FIR lodged on 28.9.2005. The offence occurred is in the year 2004. The Central Excise Department has already taken care of by instituting a complaint an evasion of Customs and Excise duty. The grievance made in the complaint by Central Excise Department are almost identical to the allegations in FIR. We have already held above that the doctrine of double jeopardy would not be attracted in the present case, but since the allegations are almost common and particularly the sanctioning authority did not find any evidence on close scrutiny, we find that continuance of the criminal prosecution against the applicants would be nothing but an abuse of process of law. Hence, on merits applicants do succeed and accordingly we pass the following order :
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1
### Explanation:
the Code of Criminal Procedure relates to information in cognisable cases. The provisions of Section 154 of Cr.P.C. read thus :154. Information in cognisableEvery information relating to the commission of a cognisable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.(2) A copy of the information as recorded under(1) shall be given forthwith, free of cost, to the informant.(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in(1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognisable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.22. The proposition of law relating to information in cognisable cases is well settled and any person orally or in writing can set criminal law into motion. In this background, we do not find any infirmity regarding the locus to lodge the report. The third contention raised by the learned counsel for the applicants is, therefore, negatived in the above background.23. (iv) Company is not arraigned as an accused and without arraigning company as an accused, the prosecution against applicants is not maintainable :One of the grounds on which criminal prosecution is attacked is that company is not arraigned as an accused and prosecution is launched only against the Directors of the Company. To substantiate the submission, reliance is placed on the decision of the Honble Supreme Court in Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661. The dispute in this case was under Section 138 of the Negotiable Instruments Act, 1881. Company was not arraigned as an accused and only officers of company were implicated. The Honble Supreme Court held that a distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar. Criminal liability on account of dishonour of cheque in the case before the Supreme Court was primarily on drawer company and extended to its officers only when conditions incorporated in Section 141 of the Negotiable Instruments Act could be satisfied. In this background, the Honble Supreme Court held that for maintaining prosecution under Section 141, arraigning of company as an accused is imperative.24. In the present case, allegations of cheating and forgery are in the personal capacity of the applicants. The offences alleged being under the penal law element of mens rea also needs to be considered. The question of company sharing the criminal liability with its officers cannot be said to be imperative in the present set of facts and circumstances and particularly in view of the offences alleged against the applicants. The facts are distinguishable. We, therefore, do not find any merit in this contention also raised by the learned counsel for theis significant to note that allegations of criminal conspiracy have been levelled against the applicants and three officers of the Central Excise and Customs Department named above. It is the case of prosecution that applicantsboth the Directors of M/s. Eva Tex Private Limited, diverted the material to the domestic tariff area and by the aforesaid acts, caused loss of revenue to the tune of Rs.71 Lacs by evading customs and central excise duty. So far as the loss of revenue is concerned, officer of Central Excise has instituted the complaint under Sections 9, 9AA and 10 of the Central Excise Act, 1944. When it comes to criminal prosecution and particularly offence under Sectionof the Indian Penal Code, allegations against applicants are that in connivance with the officers of Customs and Central Excise, they forged the documents, cheated the department by using the forged documents as genuine knowing them that they are forged. It is pertinent to note that the officers of Customs and Central Excise against whom allegations made in FIR were also involved in the offences under the Prevention of Corruption Act, 1988. The sanction to prosecute those officers came to be refused by the sanctioning authority vide order dated 9.11.2006. After considering the entire material placed before the sanctioning authority, the said authority observed that CBI has not adduced any evidence about the connivance of the officers with the unit in perpetrating this fraud. Though it was further observed that officers were surely negligent and lackadaisical in their duties but in the absence of reasonable and cogent evidence, authority found that it may not be correct to show that they entered into criminal conspiracy warranting prosecution against them.26. We have perused the contents of FIR lodged on 28.9.2005. The offence occurred is in the year 2004. The Central Excise Department has already taken care of by instituting a complaint an evasion of Customs and Excise duty. The grievance made in the complaint by Central Excise Department are almost identical to the allegations in FIR. We have already held above that the doctrine of double jeopardy would not be attracted in the present case, but since the allegations are almost common and particularly the sanctioning authority did not find any evidence on close scrutiny, we find that continuance of the criminal prosecution against the applicants would be nothing but an abuse of process of law.
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UTTAR PRADESH POWER TRANSMISSION CORPORATION LTD. AND ANR Vs. CG POWER AND INDUSTRIAL SOLUTIONS LIMITED AND ANR | labour in supply of material whereas labour cess has been deducted from the erection bill. Reply is not tenable as labour cess will be deducted from the cost of construction wherein supply of material and erection of work were also included. [Emphasis Supplied] 65. It is true that the General Conditions contain an Arbitration Clause which is set out hereinbelow:- Arbitration :- If any dispute, difference or controversy shall at any time arise between the Contractor on the one hand and the U.P. Power Transmission Corporation Limited and the Engineer of the contract on the other hand, the contract, or as to the true construction meaning and intent of any part or condition of, the same or as to the manner of execution or as to the quality or description of, or payment for the same, or as to the true intent, meaning, interpretation, construction or effect of the clauses of Contract, specifications or drawings or any of them, or as to anything to be done, committed or suffered in pursuance of the contract, or specification or as to the mode of carrying the contract into effect, or as to the breach of alleged breach of the contract, or as to any claims on account of such breach or alleged breach or as to obviating or compensating for the commission of any such breach, or as to any other matter or thing whatsoever connected with or arising out of the contract and whether before or during the progress of after the completion of the contract, such question difference of dispute shall be referred for adjudication to the Chairman, U.P. Power Transmission Corporation Limited or to any other person nominated by him in this behalf and his decision in writing shall be final, binding and conclusive. This submission shall be deemed to a submission on arbitration within the meaning of the Indian Arbitration Act, 1940 or any statutory modification thereof The Arbitrator may from time to time with consent of the parties enlarge the time for making and publishing the award. Upon every or any such reference, the cost of an incidental to the reference and award respectively shall be in the discretion of the arbitrator, who shall be competent to determine the amount thereof or direct the same to be taxed as between solicitor and clients or as between party and party and to direct by whom and to whom and in what manner the same shall be borne and paid. Work under the contract shall, if reasonably, possible, continued during the Arbitration proceedings and no payments due to payable by the UPPTCL shall be withheld on account of such proceeding. In case refusal/neglect by such nominee Chairman, UPPTCL may nominate another person in his place. 66. Even though there is an arbitration clause, the Petitioner herein has not opposed the writ petition on the ground of existence of an arbitration clause. There is no whisper of any arbitration agreement in the Counter Affidavit filed by UPPTCL to the writ petition in the High Court. In any case, the existence of an arbitration clause does not debar the court from entertaining a writ petition. 67. It is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly (1) where the writ petition seeks enforcement of a fundamental right; (ii) where there is failure of principles of natural justice or (iii) where the impugned orders or proceedings are wholly without jurisdiction or (iv) the vires of an Act is under challenge. Reference may be made to Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. reported in AIR 1999 SC 22 and Pimpri Chinchwad Municipal Corporation and Ors. V. Gayatri Construction Company and Ors, reported in (2008) 8 SCC 172 , cited on behalf of Respondent No.1. 68. In Harbanslal Sahnia and Ors. v. Indian Oil Corporation Ltd. reported in (2003) 2 SCC 107 , this Court allowed the appeal from an order of the High Court dismissing a writ petition and set aside the impugned judgment of the High Court as also the impugned order of the Indian Oil Corporation terminating the dealership of the Appellants, notwithstanding the fact that the dealership agreement contained an arbitration clause. 69. It is now well settled by a plethora of decisions of this Court that relief under Article 226 of the Constitution of India may be granted in a case arising out of contract. However, the writ jurisdiction under Article 226, being discretionary, the High Courts usually refrain from entertaining a writ petition which involves adjudication of disputed questions of fact which may require analysis of evidence of witnesses. Monetary relief can also be granted in a writ petition. 70. In this case, the action of UPPTCL in forcibly extracting building cess from the Respondent No.1 in respect of the first contract, solely on the basis of the CAG report, is in excess of power conferred on UPPTCL by law or in terms of the contract. In other words, UPPTCL has no power and authority and or jurisdiction to realize labour cess under the Cess Act in respect of the first contract by withholding dues in respect of other contracts and/or invoking a performance guarantee. There is no legal infirmity in the finding of the High Court that UPPTCL acted in excess of power by its acts impugned, when there was admittedly no assessment or levy of cess under the Cess Act. 71. Even otherwise, the Cess Act and/or statutory rules framed thereunder prescribe the mode and manner of recovery of outstanding cess under the Cess Act. It is well settled that when statute requires a thing to be done in a particular manner, it is to be done in that manner alone. UPPTCL could not have taken recourse to the methods adopted by it. The impugned communications have rightly been set aside. | 0[ds]10. A perusal of the various provisions of the BOCW Act makes it amply clear that the said Act has been enacted for the welfare of only building and other construction workers and to make adequate provisions for their safety, health and financial security.11. The Cess Act has been enacted to provide for the levy and collection of cess on the cost of construction incurred by employers, with a view to augment the resources of the Building and Other Construction Workers Welfare Boards, constituted under the BOCW Act.45. There does not appear to be any provision in the first contract, second contract, third contract, or fourth contract or in the Special Conditions of Contract or the General Conditions for Supply of Plant and the Execution of work which enables UPPTCL to withhold any amount from the bills raised by the Respondent No.1 on UPPTCL towards any taxes, cess or any other statutory dues of the contractor. Nor has the UPPTCL adverted to any specific provision of the contract which enables UPPTCL to do so. Clause 8.1 of the Special Conditions of Contract relied upon by UPPTCL reads that the prices of imported items, if any, shall be inclusive of all taxes, duties, licence fees, import/customs duties etc. legally payable. Any such taxes, duties levies shall be on Contractors account and no separate claim on the Account shall be entertained by the purchaser. This clause does not authorize UPPTCL to deduct taxes etc. from bills.47. It is nobodys case that Respondent No.1 has committed any breach or default in performance of the First Contract, that is, the Supply Contract, rendering it liable for any damages, costs or expenses. The Respondent No.1 duly discharged its obligations under the First Contract (Supply Contract) to the satisfaction of UPPTCL, and accordingly all payments due to it were cleared. The Performance Guarantees furnished by the Respondent No.1 were also partially discharged except to the extent of covering cess on the First (Supply) contract. This is apparent from the communication of the UPPTCL dated 1st June 2018 to the Bank (Respondent No.2), referred to above.48. As observed above, Clause 8 of the Special Conditions of the Contract merely says that duties, taxes, fees etc. as are legally applicable, shall be paid at actuals by the contractor. This clause does not enable UPPTCL to withhold payments or to realize cess by revocation of a Performance Guarantee.49. In Dewan Chand Builders and Contractors vs. Union of India reported in (2012) 1 SCC 101 , this Court examined the object of the BOCW Act of welfare of workers engaged in building and construction work, and held:- 3The background in which the BOCW Act was enacted, is set out in the Statement of Objects and Reasons appended to the Bill preceding its enactment. To better appreciate the legislative intent, it would be instructive to refer to the following extract from the Statement of Objects and Reasons:It is estimated that about 8.5. Million workers in the country are engaged in building and other construction works. Building and other construction workers are one of the most numerous and vulnerable segments of the unorganized labour in India. The building and other construction works are characterized by their inherent risk to the life and limb of the workers. The work is also characterized by its casual nature, temporary relationship between employer and employee, uncertain working hours, lack of basic amenities and inadequacy of welfare facilities. In the absence of adequate statutory provisions, the requisite information regarding the number and nature of accidents is also not forthcoming. In the absence of such information, it is difficult to fix responsibility or to take any corrective action.Although the provisions of certain Central Acts are applicable to the building and other construction workers yet a need has been felt for a comprehensive Central Legislation for regulating their safety, health, welfare and other conditions of service.5. A fairly long preamble to the BOCW Act is again indicative of its purpose. It reads thus:An Act to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith or incidental thereto.7. The Statement of Objects and Reasons to the BOCW Act explained that it had been considered necessary to levy a Cess on the cost of construction incurred by the employers on the building and other construction works for ensuring sufficient funds for tthe Welfare Boards to undertake the social security Schemes and welfare measures. Simultaneously with the enactment of the BOCW Act, the Parliament enacted the Cess Act. The Statement of Objects and Reasons to the Cess Act noted that the intention was to provide for the levy and collection of a Cess on the cost of construction incurred by the employers for augmenting the resources of the Building and Other Construction Workers Welfare Boards constituted by the State Governments under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Ordinance, 1995.8. It is manifest from the overarching schemes of the BOCW Act, the Cess Act, the Rules made thereunder that their sole object is to regulate the employment and conditions of service of building and other construction workers, traditionally exploited sections in the society and to provide for their safety, health and other welfare measures. The BOCW Act and the Cess Act break new ground in that, the liability to pay Cess falls not only on the owner of a building or establishment, but under Section 2(i)(iii) of the BOCW Act in relation to a building or other construction work carried on by or through a contractor, or by the employment of building workers supplied by a contractor, the contractor. The extension of the liability on to the contractor is with a view to ensure that, if for any reason it is not possible to collect Cess from the owner of the building at a stage subsequent to the completion of the construction, it can be recovered from the contractor. The Cess Act and the Cess Rules ensure that the Cess is collected at source from the bills of the contractors to whom payments are made by the owner. In short, the burden of Cess is passed on from the owner to the contractor.50. In Lanco Anpara Power Limited v. State of Uttar Pradesh and Ors. Repored in (2016) 10 SCC 329 , this Court held:-37. We now advert to the core issue touching upon the construction of Section 2(1)(d) of the BOCW Act. The argument of the appellants is that language thereof is unambiguous and literal construction is to be accorded to find the legislative intent. To our mind, this submission is of no avail. Section 2(1)(d) of the BOCW Act dealing with the building or construction work is in three parts. In the first part, different activities are mentioned which are to be covered by the said expression, namely, construction, alterations, repairs, maintenance or demolition. Second part of the definition is aimed at those buildings or works in relation to which the aforesaid activities are carried out. The third part of the definition contains exclusion clause by stipulating that it does not include any building or other construction work to which the provisions of the Factories Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), applies. Thus, first part of the definition contains the nature of activity; second part contains the subject-matter in relation to which the activity is carried out and the third part excludes those building or other construction work to which the provisions of the Factories Act or the Mines Act apply.51. The clear statutory scheme of the BOCW Act excludes a supply contract from within its ambit. On behalf of the Respondent No.1, it is pointed out that several public authorities and corporations, such as the Delhi Metro Rail Corporation and Karnataka Power Transmission Corporation Limited, have issued instructions that no cess under the BOCW Act is leviable on a contract for supply of goods. Copies of the KPTCL circulars dated 22.8.2012 and 28.8.2012 to this effect are annexed to the Rejoinder of the Respondent no.1 in the High Court.52. Under Section 2(g) of the BOCW Act the term Contractor means a person who undertakes to produce a given result for any establishment, other than a mere supply of goods or articles of manufacture, by the employment of building workers or who supplies building workers for any work of the establishment and includes a sub-contractor. The Respondent No.1 is apparently not a contractor, within the meaning of Section 2(1)(g) of the BOCW Act in respect of the first, second and fourth contracts. Nor is the Respondent No.1 employer within the meaning of Section 2(1)(i) of the BOCW Act. Section 2(1)(i) of the BOCW Act defines employer to include the contractor in relation to a building and other construction work carried on by or through a contractor or by employment of building workers supplied by a contractor. The Respondent No.1 neither falls within the definition of contractor in Section 2(1)(g) nor 2(1)(i)(iii) of the BOCW Act. Apparently, the Respondent No.1 is not liable to cess in respect of the First, Second and Fourth contracts.53. Cess under the Cess Act read with BOCW Act is leviable in respect of building and other construction works. The condition precedent for imposition of cess under the Cess Act is the construction, repair, demolition or maintenance of and/or in relation to a building or any other work of construction, transmission towers, in relation inter alia to generation, transmission and distribution of power, electric lines, pipelines etc. Mere installation and/or erection of pipelines, equipments for generation or transmission or distribution of power, electric wires, transmission towers etc. which do not involve construction work are not amenable to Cess under the Cess Act. Accordingly no intimation or information was given or any return filed with the Assessing Officer under the Cess Act or the Inspector under the BOCW Act in respect of the First and Second Contracts, either by UPPTCL or by the Respondent No.1.54. A contractor who enters into a pure Supply Contract is statutorily exempted from levy under the BOCW Act. The Contract in question is a Supply Contract as would be evident from Clause 8.7 of the Special Conditions of Contract which states:The contract shall be a Divisible Contract with single point responsibility, hence no works Contract tax shall be payable and the Purchaser shall not bear any liability on this account.55. Mr. Ramesh Singh appearing on behalf of the Respondent No.1 submitted and rightly, that the four contracts had been treated as a singular contract solely for the purposes of responsibility for timely execution. For all other intents and purposes, including levy of any tax or fees, the contract for supply was understood by the parties as a separate and distinct contract.58. As argued by Mr. Singh, the judgment of this Court in Lanco Anpara Power Limited v. State of Uttar Pradesh and Other reported in (2016) 10 SCC 329 cited on behalf of UPPTCL is of no assistance to UPPTCL since the issues of whether cess under the Cess Act was leviable on a Supply Contract or whether the cost of construction under Section 3 of the Cess Act read with Rule 3 of the Cess Rules included the cost of supply of equipment were not adjudicated in the aforesaid case.59. There can be no comparison between realization of disputed cess by withholding the bills raised by the Respondent No.1 or by invocation of a bank guarantee furnished by the Respondent No.1 after release of payment to the Respondent No.1, and deduction of Income Tax at source which is a statutory obligation of any person making a payment which constitutes income under Section 192 of the Income Tax Act, 1961.60. As observed above, UPPTCL demanded and partly realized cess on the supply Contract, solely on the basis of report of the CAG. In our considered view, in the absence of any adjudication, it was impermissible for UPPTCL to issue the impugned communication to realize cess solely on the basis of the report of the CAG. 61. In Centre of Public Litigation v. Union of India reported in (2012) 3 SCC 1 , this Court held that when CAG report was subject to scrutiny of the Public Accounts Committee and the Joint Parliamentary Committee, it would not be proper to refer to to findings and conclusions contained therein. In this context, reference may also be made to the decision of this Court in Arun Kumar Agrawal v. Union of India and Others reported in (2013) 7SCC 1, where this Court held:-56. CAG may be right in pointing out that public monies are to be applied for the purposes prescribed by Parliament and that extravagance and waste are minimised and that sound financial practices are encouraged in estimating and contracting, and in administration generally.67. The question that is germane for consideration in this case is whether this Court can grant reliefs by merely placing reliance on the CAGs Report. The CAGs Report is always subject to parliamentary debates and it is possible that PAC can accept the ministrys objection to the CAG Report or reject the report of the CAG. The CAG, indisputably is an independent constitutional functionary, however, it is for Parliament to decide whether after receiving the report i.e. PAC to make its comments on the CAGs Report.62. In Pathan Mohammed Suleman Rehmatkhan v. State of Gujarat and Others reported in (2014) 4 SCC 156 , this Court held:-9. We heard Shri Y.N. Oza, the learned counsel for the petitioner and perused the records, as well as counter-affidavit and replyaffidavit filed by the parties before the Gujarat High Court. The entire case of the petitioner is based on the CAG report. The applicability and the binding characteristics of such report were considered by the High Court. In Arun Kumar Agrawal case [Arun Kumar Agrawal v. Union of India, (2013) 7 SCC 1 ] this Court held as follows: (SCC p. 24, para 68)68. We may, however, point out that since the report is from a constitutional functionary, it commands respect and cannot be brushed aside as such, but it is equally important to examine the comments what respective Ministries have to offer on the CAGs report. The Ministry can always point out, if there is any mistake in the CAGs report or the CAG has inappropriately appreciated the various issues.10. The CAG is a key figure in the system of parliamentary control of finance and is empowered to delve into the economy, efficiency and effectiveness with which the departmental authorities or other bodies had used their resources in discharging their functions. The CAG is also the final audit authority and is a part of the machinery through which the legislature enforces the regulatory and economy in the administration of public finance, as has been rightly pointed out by the High Court. But we cannot lose sight of the fact that it is the Government which administers and runs the State, which is accountable to the people. The States welfare, progress, requirements and needs of the people are better answered by the State, also as to how the resources are to be utilised for achieving various objectives. If every decision taken by the State is tested by a microscopic and a suspicious eye, the administration will come to a standstill and the decision-makers will lose all their initiative and enthusiasm. At hindsight, it is easy to comment upon or criticise the action of the decision-maker. Sometimes, decisions taken by the State or its administrative authorities may go wrong and sometimes they may achieve the desired results. Criticisms are always welcome in a parliamentary democracy, but a decision taken in good faith, with good intentions, without any extraneous considerations, cannot be belittled, even if that decision was ultimately proved to be wrong.12. Reference in this regard may also be made to the judgment of this Court in Centre for Public Interest Litigation v. Union of India [(2012) 3 SCC 1 : AIR 2012 SC 3725 ] , wherein it was held that when the CAG report is subject to scrutiny by the Public Accounts Committee and the Joint Parliamentary Committee, it would not be proper to refer to the findings and conclusions contained therein. The Court even went on to say that it is not necessary to advert to the reasoning and suggestions made, as well.63. In this Case, there is apparently no dispute, difference or controversy between UPPTCL and the Respondent No.1 as to the true construction, meaning or intent of any part of the conditions of contract or to the manner of execution or the quality or description or payment for the same. Nor is there any dispute as to the true meaning, intent, interpretation, construction or effect of the clauses of contract, specifications or drawings or any of them. UPPTCL has changed its stand only after the CAG report. Cess in respect of of the First Contract has been deducted only in view of the audit objection raised by the Office of Comptroller and Auditor General (CAG).66. Even though there is an arbitration clause, the Petitioner herein has not opposed the writ petition on the ground of existence of an arbitration clause. There is no whisper of any arbitration agreement in the Counter Affidavit filed by UPPTCL to the writ petition in the High Court. In any case, the existence of an arbitration clause does not debar the court from entertaining a writ petition.67. It is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly (1) where the writ petition seeks enforcement of a fundamental right; (ii) where there is failure of principles of natural justice or (iii) where the impugned orders or proceedings are wholly without jurisdiction or (iv) the vires of an Act is under challenge. Reference may be made to Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. reported in AIR 1999 SC 22 and Pimpri Chinchwad Municipal Corporation and Ors. V. Gayatri Construction Company and Ors, reported in (2008) 8 SCC 172 , cited on behalf of Respondent No.1.68. In Harbanslal Sahnia and Ors. v. Indian Oil Corporation Ltd. reported in (2003) 2 SCC 107 , this Court allowed the appeal from an order of the High Court dismissing a writ petition and set aside the impugned judgment of the High Court as also the impugned order of the Indian Oil Corporation terminating the dealership of the Appellants, notwithstanding the fact that the dealership agreement contained an arbitration clause.69. It is now well settled by a plethora of decisions of this Court that relief under Article 226 of the Constitution of India may be granted in a case arising out of contract. However, the writ jurisdiction under Article 226, being discretionary, the High Courts usually refrain from entertaining a writ petition which involves adjudication of disputed questions of fact which may require analysis of evidence of witnesses. Monetary relief can also be granted in a writ petition.70. In this case, the action of UPPTCL in forcibly extracting building cess from the Respondent No.1 in respect of the first contract, solely on the basis of the CAG report, is in excess of power conferred on UPPTCL by law or in terms of the contract. In other words, UPPTCL has no power and authority and or jurisdiction to realize labour cess under the Cess Act in respect of the first contract by withholding dues in respect of other contracts and/or invoking a performance guarantee. There is no legal infirmity in the finding of the High Court that UPPTCL acted in excess of power by its acts impugned, when there was admittedly no assessment or levy of cess under the Cess Act.71. Even otherwise, the Cess Act and/or statutory rules framed thereunder prescribe the mode and manner of recovery of outstanding cess under the Cess Act. It is well settled that when statute requires a thing to be done in a particular manner, it is to be done in that manner alone. UPPTCL could not have taken recourse to the methods adopted by it. The impugned communications have rightly been set aside. | 0 | 16,164 | 3,785 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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labour in supply of material whereas labour cess has been deducted from the erection bill. Reply is not tenable as labour cess will be deducted from the cost of construction wherein supply of material and erection of work were also included. [Emphasis Supplied] 65. It is true that the General Conditions contain an Arbitration Clause which is set out hereinbelow:- Arbitration :- If any dispute, difference or controversy shall at any time arise between the Contractor on the one hand and the U.P. Power Transmission Corporation Limited and the Engineer of the contract on the other hand, the contract, or as to the true construction meaning and intent of any part or condition of, the same or as to the manner of execution or as to the quality or description of, or payment for the same, or as to the true intent, meaning, interpretation, construction or effect of the clauses of Contract, specifications or drawings or any of them, or as to anything to be done, committed or suffered in pursuance of the contract, or specification or as to the mode of carrying the contract into effect, or as to the breach of alleged breach of the contract, or as to any claims on account of such breach or alleged breach or as to obviating or compensating for the commission of any such breach, or as to any other matter or thing whatsoever connected with or arising out of the contract and whether before or during the progress of after the completion of the contract, such question difference of dispute shall be referred for adjudication to the Chairman, U.P. Power Transmission Corporation Limited or to any other person nominated by him in this behalf and his decision in writing shall be final, binding and conclusive. This submission shall be deemed to a submission on arbitration within the meaning of the Indian Arbitration Act, 1940 or any statutory modification thereof The Arbitrator may from time to time with consent of the parties enlarge the time for making and publishing the award. Upon every or any such reference, the cost of an incidental to the reference and award respectively shall be in the discretion of the arbitrator, who shall be competent to determine the amount thereof or direct the same to be taxed as between solicitor and clients or as between party and party and to direct by whom and to whom and in what manner the same shall be borne and paid. Work under the contract shall, if reasonably, possible, continued during the Arbitration proceedings and no payments due to payable by the UPPTCL shall be withheld on account of such proceeding. In case refusal/neglect by such nominee Chairman, UPPTCL may nominate another person in his place. 66. Even though there is an arbitration clause, the Petitioner herein has not opposed the writ petition on the ground of existence of an arbitration clause. There is no whisper of any arbitration agreement in the Counter Affidavit filed by UPPTCL to the writ petition in the High Court. In any case, the existence of an arbitration clause does not debar the court from entertaining a writ petition. 67. It is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly (1) where the writ petition seeks enforcement of a fundamental right; (ii) where there is failure of principles of natural justice or (iii) where the impugned orders or proceedings are wholly without jurisdiction or (iv) the vires of an Act is under challenge. Reference may be made to Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. reported in AIR 1999 SC 22 and Pimpri Chinchwad Municipal Corporation and Ors. V. Gayatri Construction Company and Ors, reported in (2008) 8 SCC 172 , cited on behalf of Respondent No.1. 68. In Harbanslal Sahnia and Ors. v. Indian Oil Corporation Ltd. reported in (2003) 2 SCC 107 , this Court allowed the appeal from an order of the High Court dismissing a writ petition and set aside the impugned judgment of the High Court as also the impugned order of the Indian Oil Corporation terminating the dealership of the Appellants, notwithstanding the fact that the dealership agreement contained an arbitration clause. 69. It is now well settled by a plethora of decisions of this Court that relief under Article 226 of the Constitution of India may be granted in a case arising out of contract. However, the writ jurisdiction under Article 226, being discretionary, the High Courts usually refrain from entertaining a writ petition which involves adjudication of disputed questions of fact which may require analysis of evidence of witnesses. Monetary relief can also be granted in a writ petition. 70. In this case, the action of UPPTCL in forcibly extracting building cess from the Respondent No.1 in respect of the first contract, solely on the basis of the CAG report, is in excess of power conferred on UPPTCL by law or in terms of the contract. In other words, UPPTCL has no power and authority and or jurisdiction to realize labour cess under the Cess Act in respect of the first contract by withholding dues in respect of other contracts and/or invoking a performance guarantee. There is no legal infirmity in the finding of the High Court that UPPTCL acted in excess of power by its acts impugned, when there was admittedly no assessment or levy of cess under the Cess Act. 71. Even otherwise, the Cess Act and/or statutory rules framed thereunder prescribe the mode and manner of recovery of outstanding cess under the Cess Act. It is well settled that when statute requires a thing to be done in a particular manner, it is to be done in that manner alone. UPPTCL could not have taken recourse to the methods adopted by it. The impugned communications have rightly been set aside.
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### Explanation:
the CAGs report or the CAG has inappropriately appreciated the various issues.10. The CAG is a key figure in the system of parliamentary control of finance and is empowered to delve into the economy, efficiency and effectiveness with which the departmental authorities or other bodies had used their resources in discharging their functions. The CAG is also the final audit authority and is a part of the machinery through which the legislature enforces the regulatory and economy in the administration of public finance, as has been rightly pointed out by the High Court. But we cannot lose sight of the fact that it is the Government which administers and runs the State, which is accountable to the people. The States welfare, progress, requirements and needs of the people are better answered by the State, also as to how the resources are to be utilised for achieving various objectives. If every decision taken by the State is tested by a microscopic and a suspicious eye, the administration will come to a standstill and the decision-makers will lose all their initiative and enthusiasm. At hindsight, it is easy to comment upon or criticise the action of the decision-maker. Sometimes, decisions taken by the State or its administrative authorities may go wrong and sometimes they may achieve the desired results. Criticisms are always welcome in a parliamentary democracy, but a decision taken in good faith, with good intentions, without any extraneous considerations, cannot be belittled, even if that decision was ultimately proved to be wrong.12. Reference in this regard may also be made to the judgment of this Court in Centre for Public Interest Litigation v. Union of India [(2012) 3 SCC 1 : AIR 2012 SC 3725 ] , wherein it was held that when the CAG report is subject to scrutiny by the Public Accounts Committee and the Joint Parliamentary Committee, it would not be proper to refer to the findings and conclusions contained therein. The Court even went on to say that it is not necessary to advert to the reasoning and suggestions made, as well.63. In this Case, there is apparently no dispute, difference or controversy between UPPTCL and the Respondent No.1 as to the true construction, meaning or intent of any part of the conditions of contract or to the manner of execution or the quality or description or payment for the same. Nor is there any dispute as to the true meaning, intent, interpretation, construction or effect of the clauses of contract, specifications or drawings or any of them. UPPTCL has changed its stand only after the CAG report. Cess in respect of of the First Contract has been deducted only in view of the audit objection raised by the Office of Comptroller and Auditor General (CAG).66. Even though there is an arbitration clause, the Petitioner herein has not opposed the writ petition on the ground of existence of an arbitration clause. There is no whisper of any arbitration agreement in the Counter Affidavit filed by UPPTCL to the writ petition in the High Court. In any case, the existence of an arbitration clause does not debar the court from entertaining a writ petition.67. It is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly (1) where the writ petition seeks enforcement of a fundamental right; (ii) where there is failure of principles of natural justice or (iii) where the impugned orders or proceedings are wholly without jurisdiction or (iv) the vires of an Act is under challenge. Reference may be made to Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. reported in AIR 1999 SC 22 and Pimpri Chinchwad Municipal Corporation and Ors. V. Gayatri Construction Company and Ors, reported in (2008) 8 SCC 172 , cited on behalf of Respondent No.1.68. In Harbanslal Sahnia and Ors. v. Indian Oil Corporation Ltd. reported in (2003) 2 SCC 107 , this Court allowed the appeal from an order of the High Court dismissing a writ petition and set aside the impugned judgment of the High Court as also the impugned order of the Indian Oil Corporation terminating the dealership of the Appellants, notwithstanding the fact that the dealership agreement contained an arbitration clause.69. It is now well settled by a plethora of decisions of this Court that relief under Article 226 of the Constitution of India may be granted in a case arising out of contract. However, the writ jurisdiction under Article 226, being discretionary, the High Courts usually refrain from entertaining a writ petition which involves adjudication of disputed questions of fact which may require analysis of evidence of witnesses. Monetary relief can also be granted in a writ petition.70. In this case, the action of UPPTCL in forcibly extracting building cess from the Respondent No.1 in respect of the first contract, solely on the basis of the CAG report, is in excess of power conferred on UPPTCL by law or in terms of the contract. In other words, UPPTCL has no power and authority and or jurisdiction to realize labour cess under the Cess Act in respect of the first contract by withholding dues in respect of other contracts and/or invoking a performance guarantee. There is no legal infirmity in the finding of the High Court that UPPTCL acted in excess of power by its acts impugned, when there was admittedly no assessment or levy of cess under the Cess Act.71. Even otherwise, the Cess Act and/or statutory rules framed thereunder prescribe the mode and manner of recovery of outstanding cess under the Cess Act. It is well settled that when statute requires a thing to be done in a particular manner, it is to be done in that manner alone. UPPTCL could not have taken recourse to the methods adopted by it. The impugned communications have rightly been set aside.
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Chase Bright Steel Ltd Vs. Shantaram Shankar | not in any way affect either the claim or the recovery thereof. 12. The landlord never disputed that the tenant had not paid the municipal taxes. As a matter of fact, the municipal demands had been produced in evidence. The High Court had appropriately appreciated the matter and it warrants no interference. 13. As a proposition of law, it cannot be disputed that there must be a valid demand for maintainability of suit for arrears of rent or permitted increases. It has been so laid down in Chiman Lals case (supra) at pages 43-44. 14. In this case, the notice dated 27.7.1977 is as follows :- "You have been leased out the entire second floor. You are in occupation of the entire second floor. The month of tenancy is according to British Calendar Month. You have accommodated your three officers in the three blocks on the second floor. The net rent in respect of the said second floor is Rs. 358.29. Over and above the said rent you require to pay to my client 7% as education cess, Rs. 30% for water charges and 1/4% as unemployment charges and 1/4% as the tree cess. Thus you are supposed to pay to my client Rs. 56.50 per month as permitted increases. You are at present in arrears of rent from February 1976. My client has demanded the same but you have neglected and failed to pay the same. You are thus a defaulter. You are not ready and willing to pay the rent as and when it becomes due.You are also called upon to pay the entire arrears of rent on receipt hereof. Failing compliance of which, my clients will be compelled to go to the court of law for getting their grievance redressed entirely at your risk as to the costs and consequences which please note. 15. No doubt, the word `supposed in paragraph 3 has been incorrectly used. But that does not in any way affect the validity of the notice. Besides, merely because it is stated `arrears of rent, it does not mean that there is no demand for permitted increases since those permitted increases are part of rent. The plaint in no mistakable terms says as follows:- "The month of the tenancy of the defendant was according to British Calendar Month. The net rent in respect of the said second floor was Rs. 358.29 over and above the said rent the defendant was required to pay to these defendant 7% as education cess, Rs. 30/- for water charges, 1/4% as unemployment charges and 1/4% as tree cess. These plaintiffs submit that thus the defendant was required to pay the permitted increases per month amounting to Rs. 56.90. The defendant was in arrears of permitted increases since February, 1976. These plaintiffs demanded the same time and again but the defendant has failed to pay the same. The defendant is, thereby a defaulter. 16. Therefore, this contention of Mr. Soli J. Sorabjee cannot be accepted. Factually, the ruling stated as Chiman Lals case (supra) is distinguishable. In R.K. Shettys case (supra), it is stated at page 581 as under : "In Maheshwari Mills Ltd., under the terms of the tenancy the tenant was obliged to pay the municipal taxes and property taxes in respect of the demised premises. The court took the view that such payment was by way of rent and since the municipal taxes and property taxes were payable on year to year basis, a part of the rent was admittedly not payable by the month and, therefore, Section 12(3)(a) was not attracted. In Prakash Surya the tenant had agreed to pay the municipal tax and education cess. The amount payable towards these taxes constituted rent and since the same was payable at the end of the year the court held that the rent had ceased to be payable by the month and hence Section 12(3)(a) had no application. 17. As rightly urged by Mr. Khanwilkar, learned counsel for the respondent the permitted increased may not be payable monthly; but in the instant case, the period, for which the permitted increases are claimed, is between 1.2.1976 till 27.4.1979. This is evident from paragraph 6 of the plaint as under : "The cause of action for the purpose of filing of this suit first arose on or about 1.3.1976, for arrears of permitted increases and for possession on 1.9.1977 and is being continued respectively from time to time till the filing of this suit. 18. Therefore, R.K. Shettys case (supra) cannot be pressed into service. 19. At no point of time, the tenant disputed the payment of municipal taxes by the landlord. In fact, the evidence is to the following effect: "Permitted increase was amounting to Rs. 56.50 since February 1976. I have produced the zerox copy of the notices issued by Municipality at Ex. 13. We demanded the permitted increase to the defendant. But they failed to pay the same. 20. On 14.9.1983, the standard rent was fixed as Rs. 358/- per month and the permitted increases were fixed at Rs. 56 per month. The appellant continued to pay Rs. 358/- per month being the standard rent. He did not pay the permitted increases. The fact that he was depositing throughout Rs. 358/- and even during the stage of writ petition, can hardly relieve him from such an obligation. Under Section 12(3)(b) of the Act, there is an obligation to deposit the permitted increases not only during the pendency of the standard rent application which in this case has come to be dismissed for default but even during the pendency of suit for eviction. As rightly held by the High Court, if this were not to be so, the tenant could claim protection on its showing that he had within a period of one month from the date of service of notice of demand under Section 12(2) filed an application for standard rent and that he had obeyed that order; in this case the interim standard rent. | 0[ds]17. As rightly urged by Mr. Khanwilkar, learned counsel for the respondent the permitted increased may not be payable monthly; but in the instant case, the period, for which the permitted increases are claimed, is between 1.2.1976 till 27.4.1979. This is evident from paragraph 6 of the plaint as undercause of action for the purpose of filing of this suit first arose on or about 1.3.1976, for arrears of permitted increases and for possession on 1.9.1977 and is being continued respectively from time to time till the filing of this suit.Therefore, R.K. Shettys case (supra) cannot be pressed into service.At no point of time, the tenant disputed the payment of municipal taxes by the landlord. In fact, the evidence is to the followingincrease was amounting to Rs. 56.50 since February 1976. I have produced the zerox copy of the notices issued by Municipality at Ex. 13. We demanded the permitted increase to the defendant. But they failed to pay the same.On 14.9.1983, the standard rent was fixed as Rs. 358/- per month and the permitted increases were fixed at Rs. 56 per month. The appellant continued to pay Rs. 358/- per month being the standard rent. He did not pay the permitted increases. The fact that he was depositing throughout Rs. 358/- and even during the stage of writ petition, can hardly relieve him from such an obligation. Under Section 12(3)(b) of the Act, there is an obligation to deposit the permitted increases not only during the pendency of the standard rent application which in this case has come to be dismissed for default but even during the pendency of suit for eviction. As rightly held by the High Court, if this were not to be so, the tenant could claim protection on its showing that he had within a period of one month from the date of service of notice of demand under Section 12(2) filed an application for standard rent and that he had obeyed that order; in this case the interim standard rent. | 0 | 2,449 | 385 | ### 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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not in any way affect either the claim or the recovery thereof. 12. The landlord never disputed that the tenant had not paid the municipal taxes. As a matter of fact, the municipal demands had been produced in evidence. The High Court had appropriately appreciated the matter and it warrants no interference. 13. As a proposition of law, it cannot be disputed that there must be a valid demand for maintainability of suit for arrears of rent or permitted increases. It has been so laid down in Chiman Lals case (supra) at pages 43-44. 14. In this case, the notice dated 27.7.1977 is as follows :- "You have been leased out the entire second floor. You are in occupation of the entire second floor. The month of tenancy is according to British Calendar Month. You have accommodated your three officers in the three blocks on the second floor. The net rent in respect of the said second floor is Rs. 358.29. Over and above the said rent you require to pay to my client 7% as education cess, Rs. 30% for water charges and 1/4% as unemployment charges and 1/4% as the tree cess. Thus you are supposed to pay to my client Rs. 56.50 per month as permitted increases. You are at present in arrears of rent from February 1976. My client has demanded the same but you have neglected and failed to pay the same. You are thus a defaulter. You are not ready and willing to pay the rent as and when it becomes due.You are also called upon to pay the entire arrears of rent on receipt hereof. Failing compliance of which, my clients will be compelled to go to the court of law for getting their grievance redressed entirely at your risk as to the costs and consequences which please note. 15. No doubt, the word `supposed in paragraph 3 has been incorrectly used. But that does not in any way affect the validity of the notice. Besides, merely because it is stated `arrears of rent, it does not mean that there is no demand for permitted increases since those permitted increases are part of rent. The plaint in no mistakable terms says as follows:- "The month of the tenancy of the defendant was according to British Calendar Month. The net rent in respect of the said second floor was Rs. 358.29 over and above the said rent the defendant was required to pay to these defendant 7% as education cess, Rs. 30/- for water charges, 1/4% as unemployment charges and 1/4% as tree cess. These plaintiffs submit that thus the defendant was required to pay the permitted increases per month amounting to Rs. 56.90. The defendant was in arrears of permitted increases since February, 1976. These plaintiffs demanded the same time and again but the defendant has failed to pay the same. The defendant is, thereby a defaulter. 16. Therefore, this contention of Mr. Soli J. Sorabjee cannot be accepted. Factually, the ruling stated as Chiman Lals case (supra) is distinguishable. In R.K. Shettys case (supra), it is stated at page 581 as under : "In Maheshwari Mills Ltd., under the terms of the tenancy the tenant was obliged to pay the municipal taxes and property taxes in respect of the demised premises. The court took the view that such payment was by way of rent and since the municipal taxes and property taxes were payable on year to year basis, a part of the rent was admittedly not payable by the month and, therefore, Section 12(3)(a) was not attracted. In Prakash Surya the tenant had agreed to pay the municipal tax and education cess. The amount payable towards these taxes constituted rent and since the same was payable at the end of the year the court held that the rent had ceased to be payable by the month and hence Section 12(3)(a) had no application. 17. As rightly urged by Mr. Khanwilkar, learned counsel for the respondent the permitted increased may not be payable monthly; but in the instant case, the period, for which the permitted increases are claimed, is between 1.2.1976 till 27.4.1979. This is evident from paragraph 6 of the plaint as under : "The cause of action for the purpose of filing of this suit first arose on or about 1.3.1976, for arrears of permitted increases and for possession on 1.9.1977 and is being continued respectively from time to time till the filing of this suit. 18. Therefore, R.K. Shettys case (supra) cannot be pressed into service. 19. At no point of time, the tenant disputed the payment of municipal taxes by the landlord. In fact, the evidence is to the following effect: "Permitted increase was amounting to Rs. 56.50 since February 1976. I have produced the zerox copy of the notices issued by Municipality at Ex. 13. We demanded the permitted increase to the defendant. But they failed to pay the same. 20. On 14.9.1983, the standard rent was fixed as Rs. 358/- per month and the permitted increases were fixed at Rs. 56 per month. The appellant continued to pay Rs. 358/- per month being the standard rent. He did not pay the permitted increases. The fact that he was depositing throughout Rs. 358/- and even during the stage of writ petition, can hardly relieve him from such an obligation. Under Section 12(3)(b) of the Act, there is an obligation to deposit the permitted increases not only during the pendency of the standard rent application which in this case has come to be dismissed for default but even during the pendency of suit for eviction. As rightly held by the High Court, if this were not to be so, the tenant could claim protection on its showing that he had within a period of one month from the date of service of notice of demand under Section 12(2) filed an application for standard rent and that he had obeyed that order; in this case the interim standard rent.
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### Explanation:
17. As rightly urged by Mr. Khanwilkar, learned counsel for the respondent the permitted increased may not be payable monthly; but in the instant case, the period, for which the permitted increases are claimed, is between 1.2.1976 till 27.4.1979. This is evident from paragraph 6 of the plaint as undercause of action for the purpose of filing of this suit first arose on or about 1.3.1976, for arrears of permitted increases and for possession on 1.9.1977 and is being continued respectively from time to time till the filing of this suit.Therefore, R.K. Shettys case (supra) cannot be pressed into service.At no point of time, the tenant disputed the payment of municipal taxes by the landlord. In fact, the evidence is to the followingincrease was amounting to Rs. 56.50 since February 1976. I have produced the zerox copy of the notices issued by Municipality at Ex. 13. We demanded the permitted increase to the defendant. But they failed to pay the same.On 14.9.1983, the standard rent was fixed as Rs. 358/- per month and the permitted increases were fixed at Rs. 56 per month. The appellant continued to pay Rs. 358/- per month being the standard rent. He did not pay the permitted increases. The fact that he was depositing throughout Rs. 358/- and even during the stage of writ petition, can hardly relieve him from such an obligation. Under Section 12(3)(b) of the Act, there is an obligation to deposit the permitted increases not only during the pendency of the standard rent application which in this case has come to be dismissed for default but even during the pendency of suit for eviction. As rightly held by the High Court, if this were not to be so, the tenant could claim protection on its showing that he had within a period of one month from the date of service of notice of demand under Section 12(2) filed an application for standard rent and that he had obeyed that order; in this case the interim standard rent.
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Jaya Biswal Vs. Branch Manager, Iffco Tokio General Insurance Company Ltd. | way of doing it he is entitled to compensation." The above reasoning has been subsequently adopted by several High Courts. In the case of Janaki Ammal v. Divisional Engineer (1956) 2 LLJ 233), the High Court of Madras held as under:“Men who are employed to work in factories and elsewhere are human beings, not machines. They are subject to human imperfections. No man can be expected to work without ever allowing his attention to wander, without ever making a mistake, or slip, without at some period in his career being momentarily careless. Imperfections of this and the like nature form the ordinary hazards of employment and bring a case of this kind within the meaning of the Act.” While no negligence on part of the deceased has been made out from the facts of the instant case as he was merely trying his best to stop the truck from moving unmanned, even if there were negligence on his part, it would not disentitle his dependents from claiming compensation under the Act. 22. Thus, what becomes clear from the preceding discussion is that the deceased died in an accident which arose in and during the course of employment. The learned counsel for the appellants has rightly placed reliance on the decision of this Court in the case of T.S. Shylaja (supra), wherein referring to proviso of Section 30 of the E.C. Act, this Court held as under: “What is important is that in terms of the 1st proviso, no appeal is maintainable against any order passed by the Commissioner unless a substantial question of law is involved. This necessarily implies that the High Court would in the ordinary course formulate such a question or at least address the same in the judgment especially when the High Court takes a view contrary to the view taken by the Commissioner.” In the light of the well reasoned and elaborate order of award of compensation, the High Court could not have reduced the compensation amount by more than half by merely mentioning that it is in the ‘interest of justice’. It was upon the High Court to explain how exactly depriving the poor appellants, who have already lost their elder son, of the rightful compensation would serve the ends of justice. 23. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month, which amounts to a total of Rs.10,000/-. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos.1 and 2 are old and have lost their elder son and they have become destitutes. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, Section 13A of which reads as under: “13-A. Maintenance of registers and records -(1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed.(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein.” From a perusal of the aforementioned section it becomes clear that the onus to maintain the wage roll was on the employer, i.e. Respondent No.2. Since in the instant case, the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it. 24. In view of the foregoing, the judgment and order of the High Court suffers from gross infirmity as it has been passed not only in ignorance of the decisions of this Court referred to supra, but also the provisions of the E.C. Act and therefore, the same is liable to be set aside and accordingly set aside.25. The monthly wage of the deceased arrived at by the learned Commissioner was Rs.10,000/-. The date of birth of the deceased according to the Driver’s License produced on record is 01.07.1984. The date of death of the deceased is 19.07.2011. Thus, according to Schedule IV of the E.C. Act, the ‘completed years of age on the last birthday of the employee immediately preceding the date on which the compensation fell due’, is 27 years, the factor for which is 213.57. Hence, the amount of compensation payable to the appellants is calculated as under:Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-.Funeral expenses to the tune of Rs.25,000/- are also awarded.The total amount of compensation payable thus comes to Rs.10,92,850/-.26. Further, an interest at the rate of 12% per annum from the date of accident, that is 19.07.2011, is also payable to the appellants over the above awarded amount. In light of the unnecessary litigation and the hardship of the appellants in spending litigation to get the compensation which was rightly due to them under the Act, we deem it fit to award the appellants costs as Rs. 25,000/-. | 1[ds]23. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month, which amounts to a total of Rs.10,000/-. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos.1 and 2 are old and have lost their elder son and they have becomejudgment and order of the High Court suffers from gross infirmity as it has been passed not only in ignorance of the decisions of this Court referred to supra, but also the provisions of the E.C. Act and therefore, the same is liable to be set aside and accordingly set aside.25. The monthly wage of the deceased arrived at by the learned Commissioner was Rs.10,000/-. The date of birth of the deceased according to theLicense produced on record is 01.07.1984. The date of death of the deceased is 19.07.2011. Thus, according to Schedule IV of the E.C. Act, the ‘completed years of age on the last birthday of the employee immediately preceding the date on which the compensation fellis 27 years, the factor for which is 213.57. Hence, the amount of compensation payable to the appellants is calculated as under:Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-.Funeral expenses to the tune of Rs.25,000/- are also awarded.The total amount of compensation payable thus comes to Rs.10,92,850/-.26. Further, an interest at the rate of 12% per annum from the date of accident, that is 19.07.2011, is also payable to the appellants over the above awarded amount. In light of the unnecessary litigation and the hardship of the appellants in spending litigation to get the compensation which was rightly due to them under the Act, we deem it fit to award the appellants costs as Rs. | 1 | 5,517 | 473 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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way of doing it he is entitled to compensation." The above reasoning has been subsequently adopted by several High Courts. In the case of Janaki Ammal v. Divisional Engineer (1956) 2 LLJ 233), the High Court of Madras held as under:“Men who are employed to work in factories and elsewhere are human beings, not machines. They are subject to human imperfections. No man can be expected to work without ever allowing his attention to wander, without ever making a mistake, or slip, without at some period in his career being momentarily careless. Imperfections of this and the like nature form the ordinary hazards of employment and bring a case of this kind within the meaning of the Act.” While no negligence on part of the deceased has been made out from the facts of the instant case as he was merely trying his best to stop the truck from moving unmanned, even if there were negligence on his part, it would not disentitle his dependents from claiming compensation under the Act. 22. Thus, what becomes clear from the preceding discussion is that the deceased died in an accident which arose in and during the course of employment. The learned counsel for the appellants has rightly placed reliance on the decision of this Court in the case of T.S. Shylaja (supra), wherein referring to proviso of Section 30 of the E.C. Act, this Court held as under: “What is important is that in terms of the 1st proviso, no appeal is maintainable against any order passed by the Commissioner unless a substantial question of law is involved. This necessarily implies that the High Court would in the ordinary course formulate such a question or at least address the same in the judgment especially when the High Court takes a view contrary to the view taken by the Commissioner.” In the light of the well reasoned and elaborate order of award of compensation, the High Court could not have reduced the compensation amount by more than half by merely mentioning that it is in the ‘interest of justice’. It was upon the High Court to explain how exactly depriving the poor appellants, who have already lost their elder son, of the rightful compensation would serve the ends of justice. 23. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month, which amounts to a total of Rs.10,000/-. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos.1 and 2 are old and have lost their elder son and they have become destitutes. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, Section 13A of which reads as under: “13-A. Maintenance of registers and records -(1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed.(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein.” From a perusal of the aforementioned section it becomes clear that the onus to maintain the wage roll was on the employer, i.e. Respondent No.2. Since in the instant case, the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it. 24. In view of the foregoing, the judgment and order of the High Court suffers from gross infirmity as it has been passed not only in ignorance of the decisions of this Court referred to supra, but also the provisions of the E.C. Act and therefore, the same is liable to be set aside and accordingly set aside.25. The monthly wage of the deceased arrived at by the learned Commissioner was Rs.10,000/-. The date of birth of the deceased according to the Driver’s License produced on record is 01.07.1984. The date of death of the deceased is 19.07.2011. Thus, according to Schedule IV of the E.C. Act, the ‘completed years of age on the last birthday of the employee immediately preceding the date on which the compensation fell due’, is 27 years, the factor for which is 213.57. Hence, the amount of compensation payable to the appellants is calculated as under:Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-.Funeral expenses to the tune of Rs.25,000/- are also awarded.The total amount of compensation payable thus comes to Rs.10,92,850/-.26. Further, an interest at the rate of 12% per annum from the date of accident, that is 19.07.2011, is also payable to the appellants over the above awarded amount. In light of the unnecessary litigation and the hardship of the appellants in spending litigation to get the compensation which was rightly due to them under the Act, we deem it fit to award the appellants costs as Rs. 25,000/-.
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1
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23. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month, which amounts to a total of Rs.10,000/-. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos.1 and 2 are old and have lost their elder son and they have becomejudgment and order of the High Court suffers from gross infirmity as it has been passed not only in ignorance of the decisions of this Court referred to supra, but also the provisions of the E.C. Act and therefore, the same is liable to be set aside and accordingly set aside.25. The monthly wage of the deceased arrived at by the learned Commissioner was Rs.10,000/-. The date of birth of the deceased according to theLicense produced on record is 01.07.1984. The date of death of the deceased is 19.07.2011. Thus, according to Schedule IV of the E.C. Act, the ‘completed years of age on the last birthday of the employee immediately preceding the date on which the compensation fellis 27 years, the factor for which is 213.57. Hence, the amount of compensation payable to the appellants is calculated as under:Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-.Funeral expenses to the tune of Rs.25,000/- are also awarded.The total amount of compensation payable thus comes to Rs.10,92,850/-.26. Further, an interest at the rate of 12% per annum from the date of accident, that is 19.07.2011, is also payable to the appellants over the above awarded amount. In light of the unnecessary litigation and the hardship of the appellants in spending litigation to get the compensation which was rightly due to them under the Act, we deem it fit to award the appellants costs as Rs.
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Swamy Sharaddanandea @ Murali Monahar Mishra Vs. State of Karnataka | involve analysis about the nature of crime as well as the accused) which require consideration, is the effect of two pointers relating to the nature of crime. Firstly, the case does not seem to be an instance of what is called a diabolical murder. We come across cases of murdering wife by burning for non-fulfillment of dowry, preceded by continuous torture. Simon and Ors. v. State of Karnataka [(2004) 2 SCC 694] noting the "all murders are cruel" observation in Bachan Singh (supra) puts the law on death penalty in perspective as: "The Constitution Bench said that though all murders are cruel but cruelty may vary in its degree of culpability and it is only then the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist." 95. Second point relates to planning which went into committing the murder. It is agreed that accused deliberately came close to the beautiful and wealthy lady. He must have had his intentions and calculations in that regard. To that extent intention behind the marriage can be imputed. But to infer from that the murder was a pre-planned murder will be going a bit too far as he did not know the opportune date when the servant would be leaving the house. He could not have known the servants would receive a telegram and ask for leave. Without their leaving the place, the plan, if there was any, could not have been executed. This is one weak link in the hypothesis that the murder was meticulously planned. 96. In Kashmir Singh v. State of Himachal Pradesh, [1990 Supp (1) SCC 133] the Court held: "There was no infirmity in appraisal of the facts and circumstances and the circumstantial evidence by the courts below in arriving at the conclusion that the accused-appellant has committed the crime under Section 302 IPC. But considering the fact that it was not a pre-meditated and cold-blooded murder, and also because the appellant appeared before the Sessions Judge and made a confessional statement, the sentence is converted from death to life imprisonment." 97. Keeping the abovementioned other characteristics of the crime, we now delve into whether this instance can be categorized as a "rarest of rare" murder. The question is whether murder of wife for the purpose of usurping property is a rarest of rare crime statistically. It is not to say that rarest of rare doctrine only has a statistical dimension i.e. incidence of particular type of murder in a given sample; rarest of rare benchmark can also be used in the context of other parameters such a brutality, planning, societys reaction at all. Facets relating to nature of the crime have already been explained in terms of the few parameters mentioned just now. Therefore we attend to the incidence aspect. It can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident. It could, of course, be a rare incident.98. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The same should not factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative factor.99. In fact, Appellant should not have been heard at that stage. The stage of hearing an accused under Section 235(2) of the Code is after the judgment of conviction is pronounced and not prior thereto. Appellant herein made a confession before the High Court. The High Court took the same into consideration in the main judgment which could not be done. He had been brought before the High Court only for purpose of fulfilling the requirement of sub-section (2) of Section 235 of the Code of Criminal Procedure. His Statement was taken during midst of hearing. He knew the implications thereof. Despite the same, he made a categorical statement that he was responsible for burring the dead body. He gave an explanation, which might not have found favour with the High Court, but the fact that he had made a confession at least accepting a part of the offence could not have been ignored at least for the purpose of imposition of punishment. He is more than 64 years old. He is in custody for a period of 16 years. The death sentence was awarded to him by the trial court in terms of its judgment dated 20.05.2005. In a situation of this nature, we are of the opinion that imposition of a life imprisonment for commission of the crime under Section 302 shall serve the ends of justice. 100. However, while saying so, we direct that in a case of this nature life sentence must be meant to be life sentence. Such a direction can be given, as would appear from some precedents. {See Subhash Chander v. Krishan Lal and Ors. [(2001) 4 SCC 458] . 101. Yet again in Ram Anup Singh and Ors. v. State of Bihar [(2002) 6 SCC 686] , this Court directed that the accused shall remain in jail for a period of not less than 20 years. [See Prakash Dhawal Khairnar (Patil) v. State of Maharashtra, (2002) 2 SCC 35 ], Shri Bhagwan v. State of Rajasthan [(2001) 6 SCC 296] and Mohd. Munna etc. v. Union of India & Ors. etc. [(2005) 7 SCC 417] . 102. However, before parting with this case, we may notice that a prayer was made by Smt. Sabhah Khaleeli (daughter of the deceased) that the mortal remains of Smt. Shakereh (deceased) including skull are required by the family of the deceased for burial and obsequies ceremony. The High Court has issued such a direction. As the family of the deceased and in particular Smt. Sabah Khaleeli (PW-5) desires to perform burial and other obsequies ceremonies, we direct that the order of the High Court, in this behalf, may be implemented, as expeditiously as possible. | 0[ds]17. We have not doubt that the death of the deceased was homicidal in nature. The identity of the dead body has also been established. The circumstances in which the deceased married the appellant have also not been disputed. Their marriage was proved byT.H. Lokeshminarayana. Appellant also did not deny or dispute that he had been living with the deceased at all material times at 81, Richmond Road, Bangalore. It has furthermore not been disputed that she had not been seen on and from 28.05.1991.18. We have noticed hereinbefore the circumstances which are said to have been found by the courts below. The law in this behalf is now no longer res integra.20. In regard to the circumstantial evidence in a case of death by poisoning, this Courtfar as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:(1) there is a clear motive for an accused to administer poison to the deceased,(2) that the deceased died of poison said to have been administered,(3) that the accused had the poison in his possession,(4) that he had an opportunity to administer the poison to the. All the internal organs were found to be decomposed and liquefied. He, however, reserved his opinion in regard to the cause of death pending chemical analysis. The doctor preserved skull and mandible for super imposition and visera and hair for chemical analysis report and bone marrow hair and soft tissues for DNA Fingerprinting.44. The learned counsel appearing on behalf of the appellant, in our opinion, was not correct to contend that only because the investigating team having regard to the purported confession made by the appellant had already known that a dead body had been buried in the house, Section 27 of the Evidence Act would not be attracted. In his statements before the investigating officer, he made a confession; but what was admissible in evidence his only that part which would come within the purview of Section 27 of the Evidence Act and not the rest. The court while analyzing the evidence and appreciating the same cannot take note of confession made before the police.47. The various circumstances leading to the pointing out the guilt of the appellant and appellant alone have been enumerated by us hereinbefore. From our discussions, it is evident that each of the circumstances had been established, the cumulative effect whereof would show that all the links in the chain are complete and the conclusion of the guilt is fully established.48. We are not oblivious of the fact that there is a material difference distance between may be and must be and furthermore in a case of this nature the evidence must be considered with more than ordinary care lest the shocking nature of crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and. We do not have a sentencing policy, unlike some other countries. England has the concept of "guideline judgments" which is considered as a judge managed sentencing model rather than a statute induced one. Section 354 (3) suggests that Indian law furthers statute induced sentencing guidance in part. Therefore it has to be given full colour.61. In our country, therefore, each case may have to be considered on its own merit.66. It is to be appreciated here that statutorily decided minimum sentence takes into account the basic value of the crime and suffice to outweigh the profit of the offence.. It would, therefore, appear that cases where death penalty is upheld are those where murder was committed of a large number of persons or by more than one person in a brutal or systematic manner.83. With utmost respect, I am of the opinion that the doctrine of proportionality which is often referred to in the judicial pronouncements in regard to the sentencing policy required to be judicially adopted should not apply in a case of imposition of capital punishment. Precedent should not be contrary to Parliamentary law; far less the decision of a Constitution bench of this Court89. It has been a fundamental point in numerous studies in the field of Death Penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as full proof incidences and the fact that the same are circumstantial evidence based must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.95. Second point relates to planning which went into committing the murder. It is agreed that accused deliberately came close to the beautiful and wealthy lady. He must have had his intentions and calculations in that regard. To that extent intention behind the marriage can be imputed. But to infer from that the murder was amurder will be going a bit too far as he did not know the opportune date when the servant would be leaving the house. He could not have known the servants would receive a telegram and ask for leave. Without their leaving the place, the plan, if there was any, could not have been executed. This is one weak link in the hypothesis that the murder was meticulously planned.g the abovementioned other characteristics of the crime, we now delve into whether this instance can be categorized as a "rarest of rare" murder. The question is whether murder of wife for the purpose of usurping property is a rarest of rare crime statistically.It is not to say that rarest of rare doctrine only has a statistical dimension i.e. incidence of particular type of murder in a given sample; rarest of rare benchmark can also be used in the context of other parameters such a brutality, planning, societys reaction at all. Facets relating to nature of the crime have already been explained in terms of the few parameters mentioned just now. Therefore we attend to the incidence aspect. It can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident. It could, of course, be a rare incident.98. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The same should not factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative factor.99. In fact, Appellant should not have been heard at that stage. The stage of hearing an accused under Section 235(2) of the Code is after the judgment of conviction is pronounced and not prior thereto. Appellant herein made a confession before the High Court. The High Court took the same into consideration in the main judgment which could not be done. He had been brought before the High Court only for purpose of fulfilling the requirement of(2) of Section 235 of the Code of Criminal Procedure. His Statement was taken during midst of hearing. He knew the implications thereof. Despite the same, he made a categorical statement that he was responsible for burring the dead body. He gave an explanation, which might not have found favour with the High Court, but the fact that he had made a confession at least accepting a part of the offence could not have been ignored at least for the purpose of imposition of punishment. He is more than 64 years old. He is in custody for a period of 16 years. The death sentence was awarded to him by the trial court in terms of its judgment dated 20.05.2005. In a situation of this nature, we are of the opinion that imposition of a life imprisonment for commission of the crime under Section 302 shall serve the ends of justice.102. However, before parting with this case, we may notice that a prayer was made by Smt. Sabhah Khaleeli (daughter of the deceased) that the mortal remains of Smt. Shakereh (deceased) including skull are required by the family of the deceased for burial and obsequies ceremony. The High Court has issued such a direction. As the family of the deceased and in particular Smt. Sabah Khaleelidesires to perform burial and other obsequies ceremonies, we direct that the order of the High Court, in this behalf, may be implemented, as expeditiously as possible. | 0 | 13,599 | 1,603 | ### 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:
involve analysis about the nature of crime as well as the accused) which require consideration, is the effect of two pointers relating to the nature of crime. Firstly, the case does not seem to be an instance of what is called a diabolical murder. We come across cases of murdering wife by burning for non-fulfillment of dowry, preceded by continuous torture. Simon and Ors. v. State of Karnataka [(2004) 2 SCC 694] noting the "all murders are cruel" observation in Bachan Singh (supra) puts the law on death penalty in perspective as: "The Constitution Bench said that though all murders are cruel but cruelty may vary in its degree of culpability and it is only then the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist." 95. Second point relates to planning which went into committing the murder. It is agreed that accused deliberately came close to the beautiful and wealthy lady. He must have had his intentions and calculations in that regard. To that extent intention behind the marriage can be imputed. But to infer from that the murder was a pre-planned murder will be going a bit too far as he did not know the opportune date when the servant would be leaving the house. He could not have known the servants would receive a telegram and ask for leave. Without their leaving the place, the plan, if there was any, could not have been executed. This is one weak link in the hypothesis that the murder was meticulously planned. 96. In Kashmir Singh v. State of Himachal Pradesh, [1990 Supp (1) SCC 133] the Court held: "There was no infirmity in appraisal of the facts and circumstances and the circumstantial evidence by the courts below in arriving at the conclusion that the accused-appellant has committed the crime under Section 302 IPC. But considering the fact that it was not a pre-meditated and cold-blooded murder, and also because the appellant appeared before the Sessions Judge and made a confessional statement, the sentence is converted from death to life imprisonment." 97. Keeping the abovementioned other characteristics of the crime, we now delve into whether this instance can be categorized as a "rarest of rare" murder. The question is whether murder of wife for the purpose of usurping property is a rarest of rare crime statistically. It is not to say that rarest of rare doctrine only has a statistical dimension i.e. incidence of particular type of murder in a given sample; rarest of rare benchmark can also be used in the context of other parameters such a brutality, planning, societys reaction at all. Facets relating to nature of the crime have already been explained in terms of the few parameters mentioned just now. Therefore we attend to the incidence aspect. It can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident. It could, of course, be a rare incident.98. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The same should not factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative factor.99. In fact, Appellant should not have been heard at that stage. The stage of hearing an accused under Section 235(2) of the Code is after the judgment of conviction is pronounced and not prior thereto. Appellant herein made a confession before the High Court. The High Court took the same into consideration in the main judgment which could not be done. He had been brought before the High Court only for purpose of fulfilling the requirement of sub-section (2) of Section 235 of the Code of Criminal Procedure. His Statement was taken during midst of hearing. He knew the implications thereof. Despite the same, he made a categorical statement that he was responsible for burring the dead body. He gave an explanation, which might not have found favour with the High Court, but the fact that he had made a confession at least accepting a part of the offence could not have been ignored at least for the purpose of imposition of punishment. He is more than 64 years old. He is in custody for a period of 16 years. The death sentence was awarded to him by the trial court in terms of its judgment dated 20.05.2005. In a situation of this nature, we are of the opinion that imposition of a life imprisonment for commission of the crime under Section 302 shall serve the ends of justice. 100. However, while saying so, we direct that in a case of this nature life sentence must be meant to be life sentence. Such a direction can be given, as would appear from some precedents. {See Subhash Chander v. Krishan Lal and Ors. [(2001) 4 SCC 458] . 101. Yet again in Ram Anup Singh and Ors. v. State of Bihar [(2002) 6 SCC 686] , this Court directed that the accused shall remain in jail for a period of not less than 20 years. [See Prakash Dhawal Khairnar (Patil) v. State of Maharashtra, (2002) 2 SCC 35 ], Shri Bhagwan v. State of Rajasthan [(2001) 6 SCC 296] and Mohd. Munna etc. v. Union of India & Ors. etc. [(2005) 7 SCC 417] . 102. However, before parting with this case, we may notice that a prayer was made by Smt. Sabhah Khaleeli (daughter of the deceased) that the mortal remains of Smt. Shakereh (deceased) including skull are required by the family of the deceased for burial and obsequies ceremony. The High Court has issued such a direction. As the family of the deceased and in particular Smt. Sabah Khaleeli (PW-5) desires to perform burial and other obsequies ceremonies, we direct that the order of the High Court, in this behalf, may be implemented, as expeditiously as possible.
### Response:
0
### Explanation:
case of this nature the evidence must be considered with more than ordinary care lest the shocking nature of crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and. We do not have a sentencing policy, unlike some other countries. England has the concept of "guideline judgments" which is considered as a judge managed sentencing model rather than a statute induced one. Section 354 (3) suggests that Indian law furthers statute induced sentencing guidance in part. Therefore it has to be given full colour.61. In our country, therefore, each case may have to be considered on its own merit.66. It is to be appreciated here that statutorily decided minimum sentence takes into account the basic value of the crime and suffice to outweigh the profit of the offence.. It would, therefore, appear that cases where death penalty is upheld are those where murder was committed of a large number of persons or by more than one person in a brutal or systematic manner.83. With utmost respect, I am of the opinion that the doctrine of proportionality which is often referred to in the judicial pronouncements in regard to the sentencing policy required to be judicially adopted should not apply in a case of imposition of capital punishment. Precedent should not be contrary to Parliamentary law; far less the decision of a Constitution bench of this Court89. It has been a fundamental point in numerous studies in the field of Death Penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as full proof incidences and the fact that the same are circumstantial evidence based must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.95. Second point relates to planning which went into committing the murder. It is agreed that accused deliberately came close to the beautiful and wealthy lady. He must have had his intentions and calculations in that regard. To that extent intention behind the marriage can be imputed. But to infer from that the murder was amurder will be going a bit too far as he did not know the opportune date when the servant would be leaving the house. He could not have known the servants would receive a telegram and ask for leave. Without their leaving the place, the plan, if there was any, could not have been executed. This is one weak link in the hypothesis that the murder was meticulously planned.g the abovementioned other characteristics of the crime, we now delve into whether this instance can be categorized as a "rarest of rare" murder. The question is whether murder of wife for the purpose of usurping property is a rarest of rare crime statistically.It is not to say that rarest of rare doctrine only has a statistical dimension i.e. incidence of particular type of murder in a given sample; rarest of rare benchmark can also be used in the context of other parameters such a brutality, planning, societys reaction at all. Facets relating to nature of the crime have already been explained in terms of the few parameters mentioned just now. Therefore we attend to the incidence aspect. It can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident. It could, of course, be a rare incident.98. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The same should not factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative factor.99. In fact, Appellant should not have been heard at that stage. The stage of hearing an accused under Section 235(2) of the Code is after the judgment of conviction is pronounced and not prior thereto. Appellant herein made a confession before the High Court. The High Court took the same into consideration in the main judgment which could not be done. He had been brought before the High Court only for purpose of fulfilling the requirement of(2) of Section 235 of the Code of Criminal Procedure. His Statement was taken during midst of hearing. He knew the implications thereof. Despite the same, he made a categorical statement that he was responsible for burring the dead body. He gave an explanation, which might not have found favour with the High Court, but the fact that he had made a confession at least accepting a part of the offence could not have been ignored at least for the purpose of imposition of punishment. He is more than 64 years old. He is in custody for a period of 16 years. The death sentence was awarded to him by the trial court in terms of its judgment dated 20.05.2005. In a situation of this nature, we are of the opinion that imposition of a life imprisonment for commission of the crime under Section 302 shall serve the ends of justice.102. However, before parting with this case, we may notice that a prayer was made by Smt. Sabhah Khaleeli (daughter of the deceased) that the mortal remains of Smt. Shakereh (deceased) including skull are required by the family of the deceased for burial and obsequies ceremony. The High Court has issued such a direction. As the family of the deceased and in particular Smt. Sabah Khaleelidesires to perform burial and other obsequies ceremonies, we direct that the order of the High Court, in this behalf, may be implemented, as expeditiously as possible.
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Babulal Parate Vs. The State Of Bombay And Another | thereof are specified in a Schedule.There is, therefore, no difficulty in understanding what is meant by the expression State in Art. 3. It obviously refers to the States in the First Schedule and the Legislature of the State refers to the Legislature which each State has under the Constitution. That being the position, we see no reasons for importing into the construction of Art. 3 any doctrinaire consideration of the sanctity of the rights of States or even for giving an extended meaning to the expression State occurring therein.None of the constituent units of the Indian Union was sovereign and independent in the sense the American colonies or the Swiss Cantons were before they formed their federal unions. The Constituent Assembly of India, deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a constitutional pattern suitable to the genius and requirements of the Indian people as a whole. Unlike some other federal legislatures, Parliament, representing the people of India as a whole, has been vested with the exclusive power of admitting or establishing new States, increasing or diminishing the area of an existing State or altering its boundaries, the Legislature or Legislatures of the States concerned having only the right to an expression of views on the proposals. It is significant that for making such territorial adjustments it is not necessary even to invoke the provisions governing constitutional amendments.9. The second line of argument presentend on behalf of the appellant is that the word Bill in the proviso must be interpreted to include an amendment of any of the clause of the Bill, at least any substantial amendment thereof, and any proposal contained in such amendment must be referred to the State Legislature for expression of its views.We do not think that this interpretation is correct. Wherever the introduction of an amendment is subject to a condition precedent, as in the case of financial bills, the Constitution has used the expression A bill or amendment, e. g. in Art. 117. No such expression occurs in Art. 3. Secondly, under Art. 118 Parliament has power to make rules of its own procedure and conduct of business, including the moving of amendments etc. Rule 80 of the rules of procedure of the House of the People (Lok Sabha) lays down the conditions which govern the admissibility of amendments to clauses or schedules of a Bail, and one of the conditions is that an amendment shall be within the scope of the Bill and relevant to the subject-matter of the clause of which it relates. Article 122 (1) of the Constitution says that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. In view of these provisions, we cannot accept an interpretation of Art, 3 which may nullify the effect of Art. 122, an interpretation moreover which is based not on the words used therein but on certain abstract and somewhat illusory ideas of what learned counsel for the appellant has characterised as the democratic process.10.We recognise that the formation of a new composite State of Bombay as in S. 8 of the Act was a substantial modification of the original proposal of three units contained in the Bill. That, however, does not mean that it was not a proper amendment of the original proposal or that the State Legislature had no opportunity of expressing its views on all aspects of the subject-matter of the proposal.The High Court rightly pointed out that in the debates in the State Legislature several members spoke in favour of a composite State of Bombay. The point to note is that many different views were expressed in respect of the subject-matter of the original proposal of three units, and as a matter of fact it cannot be said that the State Legislature had no opportunity of expressing its views in favour of one composite unit instead of three units if it so desired. It cannot be said that the proposal of one unit instead of three was not relevant or pertinent to the subject-matter of the original proposal.In T. H. Vakil v. Bombay Presidency Radio Club Ltd., 47 Bom LR 428: (AIR 1945 Bom 475 ), a decision on which learned counsel for the appellant has relied, the question arose of the power of the chairman of a club to rule an amendment out of order. It was said therein that (1) an amendment must be germane to the subject-matter of the original proposition and (2) it must not be a direct negative thereof.Judged by these two conditions, it cannot be said that the proposal of one unit instead of three was not germane to the subject-matter of the original proposal or was a direct negative thereof. We are unable, therefore, to accept the third contention of learned counsel for the appellant to the effect that the formation of a new Bombay State as envisaged in S. 8 of the Act was so completely divorced from the proposal contained in the Bill that it was in reality a new bill and, therefore, a fresh reference was necessary.11. It is advisable, perhaps, to add a few more words about Art. 122 (1) of the Constitution. Learned counsel for the appellant has posed before us the question as to what would be the effect of that Article if in any Bill completely unrelated to any of the matters referred to in cls. (a) to (e) of Art.3, an amendment was to be proposed and accepted changing (for example) the name of a State. We do not think that we need answer such a hypothetical question except merely to say that if an amendment is of such a character that it is not really an amendment and is clearly violative of Art. 3, the question then will be not the validity of proceedings in Parliament but the violation of a constitutional provision. That, however, is not the position in the present case. | 0[ds]Thus, the proviso lays down two conditions: one is that no Bill shall be introduced except on the recommendation of the President, and the second condition is that where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has to be referred by the President to the Legislature of the State for expressing its views thereon. The period within which the State Legislature must express its views has to be specified by the President; but the President may extend the period so specified. If, however, the period specified or extended expires and no views of the State Legislature are received, the second condition laid down in the proviso is fulfilled in spite of the fact that the views of the State Legislature have not been expressed.The intention seems to be to given an opportunity to the State Legislature to express its views within the time allowed; if the State Legislature fails to avail itself of that opportunity, such failure does not invalidate the introduction of the Bill. Nor is there any thing in the proviso to indicate that Parliament must accept or act upon the views of the State Legislature. Indeed, two State Legislatures may express totally divergent views. All that is contemplated is that Parliament should have before it the views of the State Legislatures as to the proposals contained in the Bill and then be free to deal with the Bill in any manner it thinks fit, following the usual practice and procedure prescribed by an under the rules of business. Thus the essential content of the second condition is a reference by the President of the proposal contained in the Bill to the State Legislature to express its views thereon within the time allowed. It is worthy of note, and this has been properly emphasised in the judgment of the High Court, that what has to be referred to the State Legislature by the President is the proposal contained in the Bill. The proviso does not say that if and when a proposal contained in the Bill is modified subsequently by an amendment properly moved and accepted in Parliament, there must be a fresh reference to the State Legislature and a fresh bill must be introduced. It was pointed out in the course of arguments that if the second condition required a fresh reference and a fresh bill for every amendment, it might result in an interminable process; because any and every amendment of the original proposal contained in the Bill would then necessitate a fresh Bill and a fresh reference to the State Legislature. Other difficulties might also arise if such a construction were put on the proviso, for example, in a case where two or three States were involved, different views might be expressed by the Legislatures of different States . If Parliament were to accept the views of one of the Legislatures and not of the other, a fresh reference would still be necessary by reason of any amendment in the original proposal contained in theare of the view that the words of the proviso are clear enough and bar their ordinary plain meaning. According to the accepted connotation of the words used in the proviso, the second condition means what it states and what has to be referred to the State Legislature is the proposal contained in the Bill; it has not such drastic effect as to require a fresh reference every time an amendment of the proposal contained in the Bill is moved and accepted in accordance with the rules of procedure ofsee no reasons for importing into the construction of Art. 3 any doctrinaire consideration of the sanctity of the rights of States or even for giving an extended meaning to the expression State occurring therein.None of the constituent units of the Indian Union was sovereign and independent in the sense the American colonies or the Swiss Cantons were before they formed their federal unions. The Constituent Assembly of India, deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a constitutional pattern suitable to the genius and requirements of the Indian people as a whole. Unlike some other federal legislatures, Parliament, representing the people of India as a whole, has been vested with the exclusive power of admitting or establishing new States, increasing or diminishing the area of an existing State or altering its boundaries, the Legislature or Legislatures of the States concerned having only the right to an expression of views on the proposals. It is significant that for making such territorial adjustments it is not necessary even to invoke the provisions governing constitutionalview of these provisions, we cannot accept an interpretation of Art, 3 which may nullify the effect of Art. 122, an interpretation moreover which is based not on the words used therein but on certain abstract and somewhat illusory ideas of what learned counsel for the appellant has characterised as the democratic process.10.We recognise that the formation of a new composite State of Bombay as in S. 8 of the Act was a substantial modification of the original proposal of three units contained in the Bill. That, however, does not mean that it was not a proper amendment of the original proposal or that the State Legislature had no opportunity of expressing its views on all aspects of the subject-matter of the proposal.The High Court rightly pointed out that in the debates in the State Legislature several members spoke in favour of a composite State of Bombay. The point to note is that many different views were expressed in respect of the subject-matter of the original proposal of three units, and as a matter of fact it cannot be said that the State Legislature had no opportunity of expressing its views in favour of one composite unit instead of three units if it so desired. It cannot be said that the proposal of one unit instead of three was not relevant or pertinent to the subject-matter of the originaldo not think that we need answer such a hypothetical question except merely to say that if an amendment is of such a character that it is not really an amendment and is clearly violative of Art. 3, the question then will be not the validity of proceedings in Parliament but the violation of a constitutional provision. That, however, is not the position in the presentdo not think that we need answer such a hypothetical question except merely to say that if an amendment is of such a character that it is not really an amendment and is clearly violative of Art. 3, the question then will be not the validity of proceedings in Parliament but the violation of a constitutional provision. That, however, is not the position in the present | 0 | 3,835 | 1,211 | ### 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:
thereof are specified in a Schedule.There is, therefore, no difficulty in understanding what is meant by the expression State in Art. 3. It obviously refers to the States in the First Schedule and the Legislature of the State refers to the Legislature which each State has under the Constitution. That being the position, we see no reasons for importing into the construction of Art. 3 any doctrinaire consideration of the sanctity of the rights of States or even for giving an extended meaning to the expression State occurring therein.None of the constituent units of the Indian Union was sovereign and independent in the sense the American colonies or the Swiss Cantons were before they formed their federal unions. The Constituent Assembly of India, deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a constitutional pattern suitable to the genius and requirements of the Indian people as a whole. Unlike some other federal legislatures, Parliament, representing the people of India as a whole, has been vested with the exclusive power of admitting or establishing new States, increasing or diminishing the area of an existing State or altering its boundaries, the Legislature or Legislatures of the States concerned having only the right to an expression of views on the proposals. It is significant that for making such territorial adjustments it is not necessary even to invoke the provisions governing constitutional amendments.9. The second line of argument presentend on behalf of the appellant is that the word Bill in the proviso must be interpreted to include an amendment of any of the clause of the Bill, at least any substantial amendment thereof, and any proposal contained in such amendment must be referred to the State Legislature for expression of its views.We do not think that this interpretation is correct. Wherever the introduction of an amendment is subject to a condition precedent, as in the case of financial bills, the Constitution has used the expression A bill or amendment, e. g. in Art. 117. No such expression occurs in Art. 3. Secondly, under Art. 118 Parliament has power to make rules of its own procedure and conduct of business, including the moving of amendments etc. Rule 80 of the rules of procedure of the House of the People (Lok Sabha) lays down the conditions which govern the admissibility of amendments to clauses or schedules of a Bail, and one of the conditions is that an amendment shall be within the scope of the Bill and relevant to the subject-matter of the clause of which it relates. Article 122 (1) of the Constitution says that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. In view of these provisions, we cannot accept an interpretation of Art, 3 which may nullify the effect of Art. 122, an interpretation moreover which is based not on the words used therein but on certain abstract and somewhat illusory ideas of what learned counsel for the appellant has characterised as the democratic process.10.We recognise that the formation of a new composite State of Bombay as in S. 8 of the Act was a substantial modification of the original proposal of three units contained in the Bill. That, however, does not mean that it was not a proper amendment of the original proposal or that the State Legislature had no opportunity of expressing its views on all aspects of the subject-matter of the proposal.The High Court rightly pointed out that in the debates in the State Legislature several members spoke in favour of a composite State of Bombay. The point to note is that many different views were expressed in respect of the subject-matter of the original proposal of three units, and as a matter of fact it cannot be said that the State Legislature had no opportunity of expressing its views in favour of one composite unit instead of three units if it so desired. It cannot be said that the proposal of one unit instead of three was not relevant or pertinent to the subject-matter of the original proposal.In T. H. Vakil v. Bombay Presidency Radio Club Ltd., 47 Bom LR 428: (AIR 1945 Bom 475 ), a decision on which learned counsel for the appellant has relied, the question arose of the power of the chairman of a club to rule an amendment out of order. It was said therein that (1) an amendment must be germane to the subject-matter of the original proposition and (2) it must not be a direct negative thereof.Judged by these two conditions, it cannot be said that the proposal of one unit instead of three was not germane to the subject-matter of the original proposal or was a direct negative thereof. We are unable, therefore, to accept the third contention of learned counsel for the appellant to the effect that the formation of a new Bombay State as envisaged in S. 8 of the Act was so completely divorced from the proposal contained in the Bill that it was in reality a new bill and, therefore, a fresh reference was necessary.11. It is advisable, perhaps, to add a few more words about Art. 122 (1) of the Constitution. Learned counsel for the appellant has posed before us the question as to what would be the effect of that Article if in any Bill completely unrelated to any of the matters referred to in cls. (a) to (e) of Art.3, an amendment was to be proposed and accepted changing (for example) the name of a State. We do not think that we need answer such a hypothetical question except merely to say that if an amendment is of such a character that it is not really an amendment and is clearly violative of Art. 3, the question then will be not the validity of proceedings in Parliament but the violation of a constitutional provision. That, however, is not the position in the present case.
### Response:
0
### Explanation:
to be to given an opportunity to the State Legislature to express its views within the time allowed; if the State Legislature fails to avail itself of that opportunity, such failure does not invalidate the introduction of the Bill. Nor is there any thing in the proviso to indicate that Parliament must accept or act upon the views of the State Legislature. Indeed, two State Legislatures may express totally divergent views. All that is contemplated is that Parliament should have before it the views of the State Legislatures as to the proposals contained in the Bill and then be free to deal with the Bill in any manner it thinks fit, following the usual practice and procedure prescribed by an under the rules of business. Thus the essential content of the second condition is a reference by the President of the proposal contained in the Bill to the State Legislature to express its views thereon within the time allowed. It is worthy of note, and this has been properly emphasised in the judgment of the High Court, that what has to be referred to the State Legislature by the President is the proposal contained in the Bill. The proviso does not say that if and when a proposal contained in the Bill is modified subsequently by an amendment properly moved and accepted in Parliament, there must be a fresh reference to the State Legislature and a fresh bill must be introduced. It was pointed out in the course of arguments that if the second condition required a fresh reference and a fresh bill for every amendment, it might result in an interminable process; because any and every amendment of the original proposal contained in the Bill would then necessitate a fresh Bill and a fresh reference to the State Legislature. Other difficulties might also arise if such a construction were put on the proviso, for example, in a case where two or three States were involved, different views might be expressed by the Legislatures of different States . If Parliament were to accept the views of one of the Legislatures and not of the other, a fresh reference would still be necessary by reason of any amendment in the original proposal contained in theare of the view that the words of the proviso are clear enough and bar their ordinary plain meaning. According to the accepted connotation of the words used in the proviso, the second condition means what it states and what has to be referred to the State Legislature is the proposal contained in the Bill; it has not such drastic effect as to require a fresh reference every time an amendment of the proposal contained in the Bill is moved and accepted in accordance with the rules of procedure ofsee no reasons for importing into the construction of Art. 3 any doctrinaire consideration of the sanctity of the rights of States or even for giving an extended meaning to the expression State occurring therein.None of the constituent units of the Indian Union was sovereign and independent in the sense the American colonies or the Swiss Cantons were before they formed their federal unions. The Constituent Assembly of India, deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a constitutional pattern suitable to the genius and requirements of the Indian people as a whole. Unlike some other federal legislatures, Parliament, representing the people of India as a whole, has been vested with the exclusive power of admitting or establishing new States, increasing or diminishing the area of an existing State or altering its boundaries, the Legislature or Legislatures of the States concerned having only the right to an expression of views on the proposals. It is significant that for making such territorial adjustments it is not necessary even to invoke the provisions governing constitutionalview of these provisions, we cannot accept an interpretation of Art, 3 which may nullify the effect of Art. 122, an interpretation moreover which is based not on the words used therein but on certain abstract and somewhat illusory ideas of what learned counsel for the appellant has characterised as the democratic process.10.We recognise that the formation of a new composite State of Bombay as in S. 8 of the Act was a substantial modification of the original proposal of three units contained in the Bill. That, however, does not mean that it was not a proper amendment of the original proposal or that the State Legislature had no opportunity of expressing its views on all aspects of the subject-matter of the proposal.The High Court rightly pointed out that in the debates in the State Legislature several members spoke in favour of a composite State of Bombay. The point to note is that many different views were expressed in respect of the subject-matter of the original proposal of three units, and as a matter of fact it cannot be said that the State Legislature had no opportunity of expressing its views in favour of one composite unit instead of three units if it so desired. It cannot be said that the proposal of one unit instead of three was not relevant or pertinent to the subject-matter of the originaldo not think that we need answer such a hypothetical question except merely to say that if an amendment is of such a character that it is not really an amendment and is clearly violative of Art. 3, the question then will be not the validity of proceedings in Parliament but the violation of a constitutional provision. That, however, is not the position in the presentdo not think that we need answer such a hypothetical question except merely to say that if an amendment is of such a character that it is not really an amendment and is clearly violative of Art. 3, the question then will be not the validity of proceedings in Parliament but the violation of a constitutional provision. That, however, is not the position in the present
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DCW Ltd Vs. Union of India | it will take some time for the applicant to install the machinery and commission it, we direct the applicant to start paying Rs. 70,00,000/- from 1st August, 1992, in four equal monthly instalments. The bank guarantee, which the applicant is required to continue, will have to be reduced to the extent instalments are paid by the applicant. The respondents will be at liberty to withdraw the amount that may be deposited by the applicant in this Court on condition that whenever called upon to do so; they will repay that amount within the time that may be specified by this Court."2. As per the aforesaid order, the appellant was required to pay a sum of Rs. 70 lakhs in four equal monthly instalments starting from 1-8-1992. The appellant deposited the first instalment in the sum of Rs. 17.50 lakhs and defaulted in paying the remaining three instalments. When this was brought to the notice of the High Court, the High Court vacated that order. Subsequently, order dated 1-8-1993 was passed which records the vacation of the order passed earlier and permitted the Customs Authorities to encash the Bank Guarantee.3. The relevant portion of the said order reads as under:- "In the result it is clarified and directed that the interim relief granted earlier has stood vacated pursuant to the order passed by this Court on September 18, 1992 inasmuch as the company has not deposited the amount of Rs. 70 lakhs as agreed and directed. It is further directed that the Union of India, Collector of Customs, Ahmedabad, and Assistant Collector of Customs, Kandla Port, Kutch, will be at liberty to encash the bank guarantee of Rs. 1,45,27,079/- (Rupees one crore forty five lakhs twenty seven thousand seventy nine only) furnished by the Company. However, it is clarified that the Department will give credit to the opponent-company of the amount paid by it as and by way of deposit in this Court. The applicant-Union of India will be at liberty to withdraw the amount deposited in this Court. Rule made absolute accordingly."4. The appellant filed the special leave petition against the said order which was also dismissed by this Court on 10-9-1993, inter alia, observing that it was not a case for interference with the order of the High Court as the appellant had defaulted in the matter of payment of instalments. The Bank Guarantee was, however, encashed to cover the amount up to Rs. 70 lakhs, as for encashment of the Bank Guarantee for the remaining amount, the Tribunal had granted stay which course of action was permitted by this Court as well dismissing the special leave petition of the appellant.5. The dispute of classification was ultimately settled by the Tribunal and as per that, a sum of Rs. 41,48,176/- became refundable to the appellant being the difference between the duty payable and the duty actually paid.6. This order attained finality. Thereafter, the appellant filed application for refund of the said amount. This application was rejected by the proper officer on the ground that the doctrine of unjust enrichment would apply and since the appellant could not satisfy the authorities that the burden was not passed on the ultimate consumers, the appellant was not entitled to refund. Against the order, the appellant approached the High Court. The High Court has, by the impugned judgment dated 15-12-2005, allowed the refund to the extent of Rs. 17.50 lakhs and rejected the prayer for the refund of balance amount of Rs. 23,98,178/-. The High Court has held that insofar as the amount of Rs. 17.50 lakhs is concerned, the sum was deposited pursuant to the interim orders dated 4-5-1992 and in that order, it was specifically mentioned that if the appellant ultimately succeeds, the said amount would be refunded. Insofar as the balance amount is concerned, the prayer for refund is rejected on the ground that it has been an amount deposited pursuant to order passed by the Court and in fact, the appellant was made to deposit this amount as it committed default of the conditional order passed and upon that, the interim orders were vacated and as a consequence thereof, the Department had encashed the Bank Guarantee. Therefore, insofar as this amount is concerned, doctrine of unjust enrichment was applied. Against this order, the present special leave petition was filed in which leave was granted and that is how the present appeal arises for consideration as to whether the High Court order rejecting the refund in the sum of Rs. 23,98,178/- is valid or not. 7. It cannot be disputed that the doctrine of unjust enrichment as incorporated by Section 27 of the Customs Act applies in all such cases. The only exception to the applicability of the aforesaid doctrine is that such amount is not paid as duty but has been paid by some interim orders in some proceedings by the Court as pre-deposit then it is not treated as duty. The endeavour of the appellant is to submit that the aforesaid amount of Rs. 23,98,178/- was also a pre-deposit and, therefore, the High Court has committed error in not directing the refund thereof.8. We are unable to accept the aforesaid submission. On the facts of the case, as is pointed out above, it is only Rs. 17.50 lakhs which was deposited by the appellant pursuant to the interim orders of the Court. The Court had directed the appellant to deposit Rs. 70 lakhs. As far as the balance amount is concerned that could not be deposited. It resulted in vacation of the stay order. Thus, once the stay order was vacated, it was open to the Department to recover the amount of duty which was payable as per the orders passed at that time. The amount was, thus, recovered on encashment of the Bank Guarantee by the Department and it was on the basis of the order passed by the Court. The Court had, after vacating the stay order, only permitted the Department to encash the Bank Guarantee. | 0[ds]7. It cannot be disputed that the doctrine of unjust enrichment as incorporated by Section 27 of the Customs Act applies in all such cases. The only exception to the applicability of the aforesaid doctrine is that such amount is not paid as duty but has been paid by some interim orders in some proceedings by the Court asthen it is not treated as duty. The endeavour of the appellant is to submit that the aforesaid amount of Rs. 23,98,178/was also aand, therefore, the High Court has committed error in not directing the refund thereof.8. We are unable to accept the aforesaid submission. On the facts of the case, as is pointed out above, it is only Rs. 17.50 lakhs which was deposited by the appellant pursuant to the interim orders of the Court. The Court had directed the appellant to deposit Rs. 70 lakhs. As far as the balance amount is concerned that could not be deposited. It resulted in vacation of the stay order. Thus, once the stay order was vacated, it was open to the Department to recover the amount of duty which was payable as per the orders passed at that time. The amount was, thus, recovered on encashment of the Bank Guarantee by the Department and it was on the basis of the order passed by the Court. The Court had, after vacating the stay order, only permitted the Department to encash the Bank Guarantee. | 0 | 1,341 | 270 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
it will take some time for the applicant to install the machinery and commission it, we direct the applicant to start paying Rs. 70,00,000/- from 1st August, 1992, in four equal monthly instalments. The bank guarantee, which the applicant is required to continue, will have to be reduced to the extent instalments are paid by the applicant. The respondents will be at liberty to withdraw the amount that may be deposited by the applicant in this Court on condition that whenever called upon to do so; they will repay that amount within the time that may be specified by this Court."2. As per the aforesaid order, the appellant was required to pay a sum of Rs. 70 lakhs in four equal monthly instalments starting from 1-8-1992. The appellant deposited the first instalment in the sum of Rs. 17.50 lakhs and defaulted in paying the remaining three instalments. When this was brought to the notice of the High Court, the High Court vacated that order. Subsequently, order dated 1-8-1993 was passed which records the vacation of the order passed earlier and permitted the Customs Authorities to encash the Bank Guarantee.3. The relevant portion of the said order reads as under:- "In the result it is clarified and directed that the interim relief granted earlier has stood vacated pursuant to the order passed by this Court on September 18, 1992 inasmuch as the company has not deposited the amount of Rs. 70 lakhs as agreed and directed. It is further directed that the Union of India, Collector of Customs, Ahmedabad, and Assistant Collector of Customs, Kandla Port, Kutch, will be at liberty to encash the bank guarantee of Rs. 1,45,27,079/- (Rupees one crore forty five lakhs twenty seven thousand seventy nine only) furnished by the Company. However, it is clarified that the Department will give credit to the opponent-company of the amount paid by it as and by way of deposit in this Court. The applicant-Union of India will be at liberty to withdraw the amount deposited in this Court. Rule made absolute accordingly."4. The appellant filed the special leave petition against the said order which was also dismissed by this Court on 10-9-1993, inter alia, observing that it was not a case for interference with the order of the High Court as the appellant had defaulted in the matter of payment of instalments. The Bank Guarantee was, however, encashed to cover the amount up to Rs. 70 lakhs, as for encashment of the Bank Guarantee for the remaining amount, the Tribunal had granted stay which course of action was permitted by this Court as well dismissing the special leave petition of the appellant.5. The dispute of classification was ultimately settled by the Tribunal and as per that, a sum of Rs. 41,48,176/- became refundable to the appellant being the difference between the duty payable and the duty actually paid.6. This order attained finality. Thereafter, the appellant filed application for refund of the said amount. This application was rejected by the proper officer on the ground that the doctrine of unjust enrichment would apply and since the appellant could not satisfy the authorities that the burden was not passed on the ultimate consumers, the appellant was not entitled to refund. Against the order, the appellant approached the High Court. The High Court has, by the impugned judgment dated 15-12-2005, allowed the refund to the extent of Rs. 17.50 lakhs and rejected the prayer for the refund of balance amount of Rs. 23,98,178/-. The High Court has held that insofar as the amount of Rs. 17.50 lakhs is concerned, the sum was deposited pursuant to the interim orders dated 4-5-1992 and in that order, it was specifically mentioned that if the appellant ultimately succeeds, the said amount would be refunded. Insofar as the balance amount is concerned, the prayer for refund is rejected on the ground that it has been an amount deposited pursuant to order passed by the Court and in fact, the appellant was made to deposit this amount as it committed default of the conditional order passed and upon that, the interim orders were vacated and as a consequence thereof, the Department had encashed the Bank Guarantee. Therefore, insofar as this amount is concerned, doctrine of unjust enrichment was applied. Against this order, the present special leave petition was filed in which leave was granted and that is how the present appeal arises for consideration as to whether the High Court order rejecting the refund in the sum of Rs. 23,98,178/- is valid or not. 7. It cannot be disputed that the doctrine of unjust enrichment as incorporated by Section 27 of the Customs Act applies in all such cases. The only exception to the applicability of the aforesaid doctrine is that such amount is not paid as duty but has been paid by some interim orders in some proceedings by the Court as pre-deposit then it is not treated as duty. The endeavour of the appellant is to submit that the aforesaid amount of Rs. 23,98,178/- was also a pre-deposit and, therefore, the High Court has committed error in not directing the refund thereof.8. We are unable to accept the aforesaid submission. On the facts of the case, as is pointed out above, it is only Rs. 17.50 lakhs which was deposited by the appellant pursuant to the interim orders of the Court. The Court had directed the appellant to deposit Rs. 70 lakhs. As far as the balance amount is concerned that could not be deposited. It resulted in vacation of the stay order. Thus, once the stay order was vacated, it was open to the Department to recover the amount of duty which was payable as per the orders passed at that time. The amount was, thus, recovered on encashment of the Bank Guarantee by the Department and it was on the basis of the order passed by the Court. The Court had, after vacating the stay order, only permitted the Department to encash the Bank Guarantee.
### Response:
0
### Explanation:
7. It cannot be disputed that the doctrine of unjust enrichment as incorporated by Section 27 of the Customs Act applies in all such cases. The only exception to the applicability of the aforesaid doctrine is that such amount is not paid as duty but has been paid by some interim orders in some proceedings by the Court asthen it is not treated as duty. The endeavour of the appellant is to submit that the aforesaid amount of Rs. 23,98,178/was also aand, therefore, the High Court has committed error in not directing the refund thereof.8. We are unable to accept the aforesaid submission. On the facts of the case, as is pointed out above, it is only Rs. 17.50 lakhs which was deposited by the appellant pursuant to the interim orders of the Court. The Court had directed the appellant to deposit Rs. 70 lakhs. As far as the balance amount is concerned that could not be deposited. It resulted in vacation of the stay order. Thus, once the stay order was vacated, it was open to the Department to recover the amount of duty which was payable as per the orders passed at that time. The amount was, thus, recovered on encashment of the Bank Guarantee by the Department and it was on the basis of the order passed by the Court. The Court had, after vacating the stay order, only permitted the Department to encash the Bank Guarantee.
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