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STATE OF RAJASTHAN Vs. UNIVERSITY OF RAJASTHAN | 3 (3) of the Act of 1974. 6. The issue of regularising the services of such teachers engaged the attention of the State and an Ordinance was promulgated in 1977 which however, did not fructify into any enactment. In the year 2008, the Rajasthan Universities Teachers (Absorption of temporary Teachers) Act, 2008 (in short the Act of 2008) was enacted to regularize the services of teachers and Section 3 of the said Act of 2008 was to the following effect: 3. All temporary teachers continuing as such at the commencement of this Act shall be considered by the University concerned for this absorption and substantive appointment on the recommendation of the Screening Committee constituted under Section 4, subject to their fulfilling the condition of eligibility, including minimum qualification, prescribed by the University concerned under the relevant law and subject to the availability of substantive vacancies of teachers in the Department concerned. 7. Thereafter, the Screening Committee went into the matter and in terms of its report, consequential orders came to be passed on 5.8.2008 giving appointment to 272 teachers who were absorbed and substantively appointed in the University from the date of their initial appointment. This order mentioned the date of absorption-substantive appointment and the date of confirmation against the name of each of those 272 teachers. The Order further stipulated:- They shall not be entitled for any financial benefit prior to 5.8.2008 on account of their substantive appointment, and any consequential promotion etc. and they shall not be entitled for any arrears on account of substantive appointment or any consequential promotion etc up to 5.8.2008. 8. It is thus clear that those teachers came to be absorbed from their initial dates of appointment but no financial benefit and or arrears could be claimed by any of the teachers in respect of period up to 5.8.2008. The teachers, however, contended that they were entitled to the benefit of Career Advancement Scheme and pension and for reckoning such benefits, the entire period of service put in by every one of them had to be counted. 9. The challenge in that behalf was accepted by the learned Single Judge of the High Court of Rajasthan by his judgment and order dated 28.5.2012. This decision was challenged by the State by filing Letters Patent Appeal before the Division Bench of the High Court. The Division Bench having rejected the challenge, the State approached this Court by filing Special Leave Petition, which was dismissed on 1.5.2013. Later, the University, which had not filed any Letters Patent Appeal, challenged the decision of the Single Judge by filing Special Leave Petition directly in this Court. The challenge at the instance of the University was also rejected by this Court on 26.7.2013 with following observations: After some arguments, learned counsel for the petitioner sought permission to withdraw this special leave petition. In view of the request made by the counsel, the special leave petition dismissed as withdrawn. Even if this special leave petition had not been withdrawn, it was not a fit case to be entertained as the special leave petitions bearing Nos.20363-20368 of 2013 and other connected petitions filed on behalf of the State of Rajasthan against the impugned judgment already stand dismissed vide this Courts order dated 1.5.2013. The counsel has reiterated the same submissions on behalf of the petitioner/University by filing this special leave petition, although, the University had not filed any appeal before the Division Bench against the judgment and order passed by the Single Bench of the High Court. Thus, there is no merit in the special leave petition. Accordingly, it is dismissed. 10. Though, the University withdrew the Special Leave Petition, the observations of this Court were clear that even if the challenge was entertained by the Court, it would have resulted in dismissal. 11. After seeking liberty to withdraw the petition, the University, thereafter, preferred appeals before the Division Bench raising challenge against the decision of the Single Judge. The Division Bench, following the earlier view as well as going by the rejection of challenge by this Court, affirmed the view taken by the Single Judge and dismissed the appeals preferred by the University. 12. Aggrieved by such dismissal, the State has now preferred the present appeals. 13. The challenge which was raised by the State stood rejected by this Court and, as such, we cannot permit any fresh challenge. 14. We have, however, considered the submissions advanced by all the learned counsel. In our view the matter is very clear. All the concerned teachers would not be entitled to any financial benefit as regards period prior to 5.8.2008. However, the length of service put in by each one of them has to be reckoned in order to place the concerned teacher at the relevant level in the applicable pay scale after giving the benefit of that service in terms of Career Advancement Scheme. At the same time, the length of service put in prior to 5.8.2008 shall also have to be reckoned in order to compute the pensionable service as well as the benefits accruable therefrom. 15. A submission was, however, advanced by Ms. Pinky Anand, Additional Solicitor General that the pension scheme being contributory, the teachers would not be entitled to any such benefit. This part of the matter was also gone into by the Single Judge and the observations in that behalf were:- It is more so when according to the petitioners, University was deducting contribution towards pension. If the contribution towards pension was deducted for entire length of service, how the benefit out of it can be denied by the University. As per Regulation 47 of the Regulations of 1990, the University is under an obligation to keep the funds separately so as to utilise subsequently for retiral benefits. It seems that the contribution, if deducted towards pension, has been utilised for other purposes though not even permissible. It was expected of the University to use the funds for which deduction, if any, has been made. | 0[ds]13. The challenge which was raised by the State stood rejected by this Court and, as such, we cannot permit any fresh challenge.14. We have, however, considered the submissions advanced by all the learned counsel. In our view the matter is very clear. All the concerned teachers would not be entitled to any financial benefit as regards period prior to 5.8.2008. However, the length of service put in by each one of them has to be reckoned in order to place the concerned teacher at the relevant level in the applicable pay scale after giving the benefit of that service in terms of Career Advancement Scheme. At the same time, the length of service put in prior to 5.8.2008 shall also have to be reckoned in order to compute the pensionable service as well as the benefits accruable therefrom.15. A submission was, however, advanced by Ms. Pinky Anand, Additional Solicitor General that the pension scheme being contributory, the teachers would not be entitled to any such benefit.This part of the matter was also gone into by the Single Judge and the observations in that behalf were:-It is more so when according to the petitioners, University was deducting contribution towards pension. If the contribution towards pension was deducted for entire length of service, how the benefit out of it can be denied by the University. As per Regulation 47 of the Regulations of 1990, the University is under an obligation to keep the funds separately so as to utilise subsequently for retiral benefits. It seems that the contribution, if deducted towards pension, has been utilised for other purposes though not even permissible. It was expected of the University to use the funds for which deduction, if any, has been made. | 0 | 1,535 | 325 | ### Instruction:
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3 (3) of the Act of 1974. 6. The issue of regularising the services of such teachers engaged the attention of the State and an Ordinance was promulgated in 1977 which however, did not fructify into any enactment. In the year 2008, the Rajasthan Universities Teachers (Absorption of temporary Teachers) Act, 2008 (in short the Act of 2008) was enacted to regularize the services of teachers and Section 3 of the said Act of 2008 was to the following effect: 3. All temporary teachers continuing as such at the commencement of this Act shall be considered by the University concerned for this absorption and substantive appointment on the recommendation of the Screening Committee constituted under Section 4, subject to their fulfilling the condition of eligibility, including minimum qualification, prescribed by the University concerned under the relevant law and subject to the availability of substantive vacancies of teachers in the Department concerned. 7. Thereafter, the Screening Committee went into the matter and in terms of its report, consequential orders came to be passed on 5.8.2008 giving appointment to 272 teachers who were absorbed and substantively appointed in the University from the date of their initial appointment. This order mentioned the date of absorption-substantive appointment and the date of confirmation against the name of each of those 272 teachers. The Order further stipulated:- They shall not be entitled for any financial benefit prior to 5.8.2008 on account of their substantive appointment, and any consequential promotion etc. and they shall not be entitled for any arrears on account of substantive appointment or any consequential promotion etc up to 5.8.2008. 8. It is thus clear that those teachers came to be absorbed from their initial dates of appointment but no financial benefit and or arrears could be claimed by any of the teachers in respect of period up to 5.8.2008. The teachers, however, contended that they were entitled to the benefit of Career Advancement Scheme and pension and for reckoning such benefits, the entire period of service put in by every one of them had to be counted. 9. The challenge in that behalf was accepted by the learned Single Judge of the High Court of Rajasthan by his judgment and order dated 28.5.2012. This decision was challenged by the State by filing Letters Patent Appeal before the Division Bench of the High Court. The Division Bench having rejected the challenge, the State approached this Court by filing Special Leave Petition, which was dismissed on 1.5.2013. Later, the University, which had not filed any Letters Patent Appeal, challenged the decision of the Single Judge by filing Special Leave Petition directly in this Court. The challenge at the instance of the University was also rejected by this Court on 26.7.2013 with following observations: After some arguments, learned counsel for the petitioner sought permission to withdraw this special leave petition. In view of the request made by the counsel, the special leave petition dismissed as withdrawn. Even if this special leave petition had not been withdrawn, it was not a fit case to be entertained as the special leave petitions bearing Nos.20363-20368 of 2013 and other connected petitions filed on behalf of the State of Rajasthan against the impugned judgment already stand dismissed vide this Courts order dated 1.5.2013. The counsel has reiterated the same submissions on behalf of the petitioner/University by filing this special leave petition, although, the University had not filed any appeal before the Division Bench against the judgment and order passed by the Single Bench of the High Court. Thus, there is no merit in the special leave petition. Accordingly, it is dismissed. 10. Though, the University withdrew the Special Leave Petition, the observations of this Court were clear that even if the challenge was entertained by the Court, it would have resulted in dismissal. 11. After seeking liberty to withdraw the petition, the University, thereafter, preferred appeals before the Division Bench raising challenge against the decision of the Single Judge. The Division Bench, following the earlier view as well as going by the rejection of challenge by this Court, affirmed the view taken by the Single Judge and dismissed the appeals preferred by the University. 12. Aggrieved by such dismissal, the State has now preferred the present appeals. 13. The challenge which was raised by the State stood rejected by this Court and, as such, we cannot permit any fresh challenge. 14. We have, however, considered the submissions advanced by all the learned counsel. In our view the matter is very clear. All the concerned teachers would not be entitled to any financial benefit as regards period prior to 5.8.2008. However, the length of service put in by each one of them has to be reckoned in order to place the concerned teacher at the relevant level in the applicable pay scale after giving the benefit of that service in terms of Career Advancement Scheme. At the same time, the length of service put in prior to 5.8.2008 shall also have to be reckoned in order to compute the pensionable service as well as the benefits accruable therefrom. 15. A submission was, however, advanced by Ms. Pinky Anand, Additional Solicitor General that the pension scheme being contributory, the teachers would not be entitled to any such benefit. This part of the matter was also gone into by the Single Judge and the observations in that behalf were:- It is more so when according to the petitioners, University was deducting contribution towards pension. If the contribution towards pension was deducted for entire length of service, how the benefit out of it can be denied by the University. As per Regulation 47 of the Regulations of 1990, the University is under an obligation to keep the funds separately so as to utilise subsequently for retiral benefits. It seems that the contribution, if deducted towards pension, has been utilised for other purposes though not even permissible. It was expected of the University to use the funds for which deduction, if any, has been made.
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13. The challenge which was raised by the State stood rejected by this Court and, as such, we cannot permit any fresh challenge.14. We have, however, considered the submissions advanced by all the learned counsel. In our view the matter is very clear. All the concerned teachers would not be entitled to any financial benefit as regards period prior to 5.8.2008. However, the length of service put in by each one of them has to be reckoned in order to place the concerned teacher at the relevant level in the applicable pay scale after giving the benefit of that service in terms of Career Advancement Scheme. At the same time, the length of service put in prior to 5.8.2008 shall also have to be reckoned in order to compute the pensionable service as well as the benefits accruable therefrom.15. A submission was, however, advanced by Ms. Pinky Anand, Additional Solicitor General that the pension scheme being contributory, the teachers would not be entitled to any such benefit.This part of the matter was also gone into by the Single Judge and the observations in that behalf were:-It is more so when according to the petitioners, University was deducting contribution towards pension. If the contribution towards pension was deducted for entire length of service, how the benefit out of it can be denied by the University. As per Regulation 47 of the Regulations of 1990, the University is under an obligation to keep the funds separately so as to utilise subsequently for retiral benefits. It seems that the contribution, if deducted towards pension, has been utilised for other purposes though not even permissible. It was expected of the University to use the funds for which deduction, if any, has been made.
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V.N. KRISHNA MURTHY & ANR Vs. SRI RAVIKUMAR & ORS | appeal with the leave of the Appellate Court. Reference be made to the observation of this Court in Smt. Jatan Kumar Golcha Vs. Golcha Properties Private Ltd. (1970) 3 SCC 573 :- It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the Judgment. 16. This Court in State of Punjab & Ors. Vs. Amar Singh & Anr. (1974) 2 SCC 70 while dealing with the maintainability of appeal by a person who is not party to a suit has observed thus :- Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co., [(1894) 2 Ch 410] have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. 17. In Baldev Singh Vs. Surinder Mohan Sharma and Ors (2003) 1 SCC 34 , this Court held that an appeal under Section 96 of the Civil Procedure Code, would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. While dealing with the concept of person aggrieved, it was observed in paragraph 15 as under:- A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned. 18. In A. Subash Babu Vs. State of A.P. and Anr. (2011) 7 SCC 616 , this Court held as under:- The expression aggrieved person denotes an elastic and an elusive concept. It cannot be confined that the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the complainants interest and the nature and extent of the prejudice or injuries suffered by him. 19. The expression person aggrieved does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji Vs. Home Insurance Co. of New York (1974) 2 SCC 387 and State of Rajasthan & Ors. Vs. Union of India & Ors .(1977) 3 SCC 592 ). 20. In Srimathi K. Ponnalagu Ammani Vs. The State Of Madras represented by the Secretary to the Revenue Department, Madras and Ors .66 Law Weekly 136, this Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in following words:- Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings. 21. Applying the above tests, we are of the considered opinion that appellants can neither be said to be aggrieved persons nor bound by the judgment and decree of the Trial Court in any manner. The relief claimed in the suit was cancellation of agreement to sell. On the other hand, the sale deeds which were the basis of the claim of the appellants were executed on the basis of General Power of Attorney, and had nothing to do with the agreement to sell which was subject matter of suit. The judgment and decree of the Trial Court is in no sense a judgment in rem and it is binding only as between the plaintiffs and defendants of the suit, and not upon the appellants. 22. Though it has been vehemently contended before us and also pleaded before the High Court that the judgment and decree of the Trial Court affects the appellants adversely. The appellants have failed to place any material or demonstrate as to how the judgment and decree passed by the Trial Court adversely or prejudicially affects them. Mere saying that the appellants are prejudicially affected by the decree is not sufficient. It has to be demonstrated that the decree affects the legal rights of the appellants and would have adverse effect when carried out. Facts of the case clearly demonstrate that suit which has been decreed is confined only to a declaration sought in respect of an agreement to sell. Injunction was also sought only against the defendant- society or its officers or assigns. There is not even a whisper in the entire plaint or in suit proceedings about the sale deed executed in favour of the appellants by the General Power of Attorney holders or even for that matter in the judgment and decree of the Trial Court. 23. The appellants have thus failed to demonstrate that they are prejudicially or adversely affected by the decree in question or any of their legal rights stands jeopardized so as to bring them within the ambit of the expression person aggrieved entitling them to maintain appeal against the decree. 24. In view of the facts and discussions, we find no infirmity in the judgment of the High Court dismissing the application filed by the appellants seeking leave to appeal against the decree. | 0[ds]15. Section 96 and 100 of the Code of Civil Procedure provide for preferring an appeal from any original decree or from decree in appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. However, it is a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls with the category of aggrieved persons. It is only where a judgment and decree prejudicially affects a person who is not party to the proceedings, he can prefer an appeal with the leave of the Appellate Court.19. The expression person aggrieved does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji Vs. Home Insurance Co. of New York (1974) 2 SCC 387 and State of Rajasthan & Ors. Vs. Union of India & Ors .(1977) 3 SCC 592 ).20. In Srimathi K. Ponnalagu Ammani Vs. The State Of Madras represented by the Secretary to the Revenue Department, Madras and Ors .66 Law Weekly 136, this Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in following words:-Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.. Applying the above tests, we are of the considered opinion that appellants can neither be said to be aggrieved persons nor bound by the judgment and decree of the Trial Court in any manner. The relief claimed in the suit was cancellation of agreement to sell. On the other hand, the sale deeds which were the basis of the claim of the appellants were executed on the basis of General Power of Attorney, and had nothing to do with the agreement to sell which was subject matter of suit. The judgment and decree of the Trial Court is in no sense a judgment in rem and it is binding only as between the plaintiffs and defendants of the suit, and not upon the appellants22. Though it has been vehemently contended before us and also pleaded before the High Court that the judgment and decree of the Trial Court affects the appellants adversely. The appellants have failed to place any material or demonstrate as to how the judgment and decree passed by the Trial Court adversely or prejudicially affects them. Mere saying that the appellants are prejudicially affected by the decree is not sufficient. It has to be demonstrated that the decree affects the legal rights of the appellants and would have adverse effect when carried out. Facts of the case clearly demonstrate that suit which has been decreed is confined only to a declaration sought in respect of an agreement to sell. Injunction was also sought only against the defendant- society or its officers or assigns. There is not even a whisper in the entire plaint or in suit proceedings about the sale deed executed in favour of the appellants by the General Power of Attorney holders or even for that matter in the judgment and decree of the Trial Court.23. The appellants have thus failed to demonstrate that they are prejudicially or adversely affected by the decree in question or any of their legal rights stands jeopardized so as to bring them within the ambit of the expression person aggrieved entitling them to maintain appeal against the decree24. In view of the facts and discussions, we find no infirmity in the judgment of the High Court dismissing the application filed by the appellants seeking leave to appeal against the decree. | 0 | 2,739 | 781 | ### Instruction:
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appeal with the leave of the Appellate Court. Reference be made to the observation of this Court in Smt. Jatan Kumar Golcha Vs. Golcha Properties Private Ltd. (1970) 3 SCC 573 :- It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the Judgment. 16. This Court in State of Punjab & Ors. Vs. Amar Singh & Anr. (1974) 2 SCC 70 while dealing with the maintainability of appeal by a person who is not party to a suit has observed thus :- Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co., [(1894) 2 Ch 410] have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. 17. In Baldev Singh Vs. Surinder Mohan Sharma and Ors (2003) 1 SCC 34 , this Court held that an appeal under Section 96 of the Civil Procedure Code, would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. While dealing with the concept of person aggrieved, it was observed in paragraph 15 as under:- A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned. 18. In A. Subash Babu Vs. State of A.P. and Anr. (2011) 7 SCC 616 , this Court held as under:- The expression aggrieved person denotes an elastic and an elusive concept. It cannot be confined that the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the complainants interest and the nature and extent of the prejudice or injuries suffered by him. 19. The expression person aggrieved does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji Vs. Home Insurance Co. of New York (1974) 2 SCC 387 and State of Rajasthan & Ors. Vs. Union of India & Ors .(1977) 3 SCC 592 ). 20. In Srimathi K. Ponnalagu Ammani Vs. The State Of Madras represented by the Secretary to the Revenue Department, Madras and Ors .66 Law Weekly 136, this Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in following words:- Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings. 21. Applying the above tests, we are of the considered opinion that appellants can neither be said to be aggrieved persons nor bound by the judgment and decree of the Trial Court in any manner. The relief claimed in the suit was cancellation of agreement to sell. On the other hand, the sale deeds which were the basis of the claim of the appellants were executed on the basis of General Power of Attorney, and had nothing to do with the agreement to sell which was subject matter of suit. The judgment and decree of the Trial Court is in no sense a judgment in rem and it is binding only as between the plaintiffs and defendants of the suit, and not upon the appellants. 22. Though it has been vehemently contended before us and also pleaded before the High Court that the judgment and decree of the Trial Court affects the appellants adversely. The appellants have failed to place any material or demonstrate as to how the judgment and decree passed by the Trial Court adversely or prejudicially affects them. Mere saying that the appellants are prejudicially affected by the decree is not sufficient. It has to be demonstrated that the decree affects the legal rights of the appellants and would have adverse effect when carried out. Facts of the case clearly demonstrate that suit which has been decreed is confined only to a declaration sought in respect of an agreement to sell. Injunction was also sought only against the defendant- society or its officers or assigns. There is not even a whisper in the entire plaint or in suit proceedings about the sale deed executed in favour of the appellants by the General Power of Attorney holders or even for that matter in the judgment and decree of the Trial Court. 23. The appellants have thus failed to demonstrate that they are prejudicially or adversely affected by the decree in question or any of their legal rights stands jeopardized so as to bring them within the ambit of the expression person aggrieved entitling them to maintain appeal against the decree. 24. In view of the facts and discussions, we find no infirmity in the judgment of the High Court dismissing the application filed by the appellants seeking leave to appeal against the decree.
### Response:
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### Explanation:
15. Section 96 and 100 of the Code of Civil Procedure provide for preferring an appeal from any original decree or from decree in appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. However, it is a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls with the category of aggrieved persons. It is only where a judgment and decree prejudicially affects a person who is not party to the proceedings, he can prefer an appeal with the leave of the Appellate Court.19. The expression person aggrieved does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji Vs. Home Insurance Co. of New York (1974) 2 SCC 387 and State of Rajasthan & Ors. Vs. Union of India & Ors .(1977) 3 SCC 592 ).20. In Srimathi K. Ponnalagu Ammani Vs. The State Of Madras represented by the Secretary to the Revenue Department, Madras and Ors .66 Law Weekly 136, this Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in following words:-Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.. Applying the above tests, we are of the considered opinion that appellants can neither be said to be aggrieved persons nor bound by the judgment and decree of the Trial Court in any manner. The relief claimed in the suit was cancellation of agreement to sell. On the other hand, the sale deeds which were the basis of the claim of the appellants were executed on the basis of General Power of Attorney, and had nothing to do with the agreement to sell which was subject matter of suit. The judgment and decree of the Trial Court is in no sense a judgment in rem and it is binding only as between the plaintiffs and defendants of the suit, and not upon the appellants22. Though it has been vehemently contended before us and also pleaded before the High Court that the judgment and decree of the Trial Court affects the appellants adversely. The appellants have failed to place any material or demonstrate as to how the judgment and decree passed by the Trial Court adversely or prejudicially affects them. Mere saying that the appellants are prejudicially affected by the decree is not sufficient. It has to be demonstrated that the decree affects the legal rights of the appellants and would have adverse effect when carried out. Facts of the case clearly demonstrate that suit which has been decreed is confined only to a declaration sought in respect of an agreement to sell. Injunction was also sought only against the defendant- society or its officers or assigns. There is not even a whisper in the entire plaint or in suit proceedings about the sale deed executed in favour of the appellants by the General Power of Attorney holders or even for that matter in the judgment and decree of the Trial Court.23. The appellants have thus failed to demonstrate that they are prejudicially or adversely affected by the decree in question or any of their legal rights stands jeopardized so as to bring them within the ambit of the expression person aggrieved entitling them to maintain appeal against the decree24. In view of the facts and discussions, we find no infirmity in the judgment of the High Court dismissing the application filed by the appellants seeking leave to appeal against the decree.
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R & M Trust Vs. Koramangala Resi.Vigilance Group | the matter as still in discretion of the High Court, and the High Court in us discretion can refuse the issue of a writ because of the laches of the applicant." 30. In the case of Ramana Dayaram Shetty vs. The International Airport Authority of India & Ors. reported in AIR 1979 SC 1628 , even five months delay was considered to be fatal. It was observed as follows: "Moreover, the writ petition was filed by the appellant more than live months after the acceptance of the tender of the 4th respondents and during this period, the 4th respondents incurred considerable expenditure aggregating to about Rs.1.25,000/- in making arrangements for putting up the restaurant and the snack bars and started running the same. It would now be most inequitous to set aside the contract of the 4th respondents at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of the 4th respondents but the appellant allowed a period of over five months to elapse during which the 4th respondents started their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution." 31. In the case of Ashok Kumar Mishra & Anr. vs. Collector, Raipur & Ors. reported in AIR 1980 SC 112 , it was observed that when the final electoral roll was published in Nov. 15, 1978 it was notified that the nominations could be filed on and after Nov.25, 1978 and the poll, if necessary, would take place on Dec.31, 1978. After Nov.25, 1978, a large number of nominations were received by the Returning Officer. It was only on Dec.5, 1978 for the first time that a letter was addressed by petitioner to the Collector drawing his attention to the error that had crept into the notice published under Rule 4(1) of the Rules. By that time, the nominations had all been received. The final list of candidates for the election with their symbols was published on Dece.20, 1978. The writ petition itself was filed on Dec.28, 1978 when the poll had to take place on Dec. 31, 1978. In that context. Their Lordships observed as follows: "No satisfactory explanation was given in the course of the petition by the petitioners, ad to why they delayed the filing of the petition till Dec.28, 1978 even though they knew that there was an error in the notice issued under R.4(1) of the Rules in the month of Oct.1978 more than 2 months before the date on which is was filed." Their Lordships dismissed the petition as there was no satisfactory explanation for the delay in preferring it. 32. In the case of State of Maharashtra, vs. Digambar reported in (1995) 4 SCC 683. Their Lordships observed as follows: "the power of the High Court to be exercised under Article 226 of the Constitution, if it is discretionary, its exercise must be judicious and reasonable, admits of no controversy. Persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully the High Court that the facts and circumstances of the case clearly justified the latches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where the High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as latches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State." 33. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights? 34. We are of the opinion that delay in this case is equally fatal, the construction already started by the appellant in 1987 and building had come upto three floors. Thereafter it was stopped in 1988 and in March, 1991 it resumed after permission was granted. The Writ Petition was filed in November, 1991 meanwhile almost construction was complete. Therefore, delay was fatal in the present case and learned single Judge rightly held it. It was also brought to our notice that 46 multi storey buildings have come up in this area. Learned counsel has produced photographs to show that buildings more than three and four floors have been constructed in and around this area. 35. However, we are satisfied that there is no prohibition under the provisions of the Act and Rules putting the ceiling on construction of the multi storey building. We are also satisfied that the delay is also fatal in the present case. 36. It was also contended by the learned counsel for the Appellant that the appellant had no locus standi to file this petition as the present association is neither representative association nor a registered body. Therefore, the Court should not have entertained the PIL on behalf of; such unregistered and unrecognized body. It is true locus in such Public Interest Litigation is very relevant factor & Court should always inquire into the locus of person before entertaining such petition. We have already observed above that Public Interest Litigation should be entertained in very rare cases. 37. Learned counsel has also invited our attention to Section 11 of the Transfer of Property Act to urge that once absolute right has been conferred on the property then no rider can be put to enjoyment of that property. It is not necessary to go into this question in this case. | 1[ds]We are primarily concerned with this Act and the Rules, subsequently, this Act of 1945 and Rules of 1964 have been repealed and they have been replaced by the Bangalore Development Authority Act, 1976, and the Bangalore Development Authority (Allotment of Sites) Rules, 1982. The entire controversy centres around these Acts and the Rules. The third Act with which we are concerned is the Karnataka Municipal Corporations Act, 1976.The conditions which have been set out in the lease agreement and which is relevant for our purpose is condition No.4. Condition No.4 has already been reproduced above which provides that lessee purchaser shall not sub-divide the property or construct more than one dwelling house. Condition No.12 says if the Lessee has performed all the conditions mentioned herein and committed no breach thereof the Lessor/Vendor shall, at the end of ten years referred to in clause 1 sell the property to the Lessee/Purchaser and all attendant expenses in connection with such sale such as stamp duty, registration charges, etc., shall be borne by the Lessee/Purchaser, Condition NO.13 says that on complying with the terms and conditions of this agreement in the manner stated above but not otherwise the Lessor/Vendor shall be obliged to execute the sale deed in favour of the Lessee/Purchaser. Therefore, looking to the scheme of the Act, the Rules and the terms and conditions of the lease cum sale agreement. It transpires that once an allotment is made to the lessee and he makes all payments then after the payment the lesser/vendor shall at the end of ten years sell the property to the lessee/purchaser and the lessee/purchaser will get the sale deed registered. Therefore, if all the conditions of the lease agreement are fulfilled, at the end of the stipulated period of ten years then outright agreement of sale shall be executed by the lessor/vendor with the lessee purchaser and the lessee will have absolute right. The lease agreement also says that during the currency of the lease, the lessee purchaser shall abide by the terms and conditions of the lease. As per condition 17(7) reproduced above the lessee purchaser shall not alienate the property during the period of tenancy. Once all the payments have been fulfilled by the lessee, then the land is registered in favour of the lessee by the lessor the lessee becomes absolute owner of the land. So long as the building is not constructed under condition No.4 of the agreement the lessee is neither entitled to alienate the property under condition 17 (7), nor shall be sub-divide the property or construct more than one dwelling house on it. These restrictions are there so long as the complete sale agreement is not executed under condition No.12 of the lease-cum-sale agreement. As soon as the lease agreement is executed conforming full title to the lessee then the conditions of the lease cum sale agreement come to an end and the lessee acquires full right to deal with the said property in accordance with the Act and the Rules bearing on the subject. After acquiring this full right the lessee has right to alienate the property or whenever either lessee or his successor wants to construct a building thereon he can do so in accordance with the provisions of law. Condition No.4 of the lease agreement was only to survive so long as the lessee continued to be lessee as his rights of lessee are restricted i.e he cannot alternate the property nor can he subdivide the property and he has to construct one dwelling house. The moment the lease cum sale agreement is executed after following the conditions of the lease as laid down, then there is no further hurdle or condition like not to construct multi-storeyed building or multi-dwelling house. The only condition that he will construct only one dwelling house is contained in Condition No.4 of the lease cum sale agreement and so long as the full rights are not transferred to the lessee-purchaser, this condition would survive and after the sale is made, this condition will no longer and conditions contained in absolute sale deed will govern. If the lessee or his successor wants to raise a construction, then the provisions of the Karnataka Municipal Corporation Act will come into play and he has to obtain prior sanction for construction of the building. As soon as the permission is granted by the Corporation, then he is to abide by those conditions along with the condition laid down in absolute sale deed.e conditions which have been set out in the lease agreement and which is relevant for our purpose is condition No.4. Condition No.4 has already been reproduced above which provides that lessee purchaser shall not sub-divide the property or construct more than one dwelling house. Condition No.12 says if the Lessee has performed all the conditions mentioned herein and committed no breach thereof the Lessor/Vendor shall, at the end of ten years referred to in clause 1 sell the property to the Lessee/Purchaser and all attendant expenses in connection with such sale such as stamp duty, registration charges, etc., shall be borne by the Lessee/Purchaser, Condition NO.13 says that on complying with the terms and conditions of this agreement in the manner stated above but not otherwise the Lessor/Vendor shall be obliged to execute the sale deed in favour of the Lessee/Purchaser. Therefore, looking to the scheme of the Act, the Rules and the terms and conditions of the lease cum sale agreement. It transpires that once an allotment is made to the lessee and he makes all payments then after the payment the lesser/vendor shall at the end of ten years sell the property to the lessee/purchaser and the lessee/purchaser will get the sale deed registered. Therefore, if all the conditions of the lease agreement are fulfilled, at the end of the stipulated period of ten years then outright agreement of sale shall be executed by the lessor/vendor with the lessee purchaser and the lessee will have absolute right. The lease agreement also says that during the currency of the lease, the lessee purchaser shall abide by the terms and conditions of the lease. As per condition 17(7) reproduced above the lessee purchaser shall not alienate the property during the period of tenancy. Once all the payments have been fulfilled by the lessee, then the land is registered in favour of the lessee by the lessor the lessee becomes absolute owner of the land. So long as the building is not constructed under condition No.4 of the agreement the lessee is neither entitled to alienate the property under condition 17 (7), nor shall be sub-divide the property or construct more than one dwelling house on it. These restrictions are there so long as the complete sale agreement is not executed under condition No.12 of the lease-cum-sale agreement. As soon as the lease agreement is executed conforming full title to the lessee then the conditions of the lease cum sale agreement come to an end and the lessee acquires full right to deal with the said property in accordance with the Act and the Rules bearing on the subject. After acquiring this full right the lessee has right to alienate the property or whenever either lessee or his successor wants to construct a building thereon he can do so in accordance with the provisions of law. Condition No.4 of the lease agreement was only to survive so long as the lessee continued to be lessee as his rights of lessee are restricted i.e he cannot alternate the property nor can he subdivide the property and he has to construct one dwelling house. The moment the lease cum sale agreement is executed after following the conditions of the lease as laid down, then there is no further hurdle or condition like not to construct multi-storeyed building or multi-dwelling house. The only condition that he will construct only one dwelling house is contained in Condition No.4 of the lease cum sale agreement and so long as the full rights are not transferred to the lessee-purchaser, this condition would survive and after the sale is made, this condition will no longer and conditions contained in absolute sale deed will govern. If the lessee or his successor wants to raise a construction, then the provisions of the Karnataka Municipal Corporation Act will come into play and he has to obtain prior sanction for construction of the building. As soon as the permission is granted by the Corporation, then he is to abide by those conditions along with the condition laid down in absolute sale deed.Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression "apartment" has been used which shows that there cannot be more than one dwelling house.Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression "apartment" has been used which shows that there cannot be more than one dwellingsacrosanct jurisdiction of Public Interest Litigation should be invoked very sparingly and in favour of vigilant litigant and not for the persons who invoke this jurisdiction for the sake of publicity or for the purpose of serving their private ends.We fully share the views expressed in the aforesaid decision of this Court and reiterate that it should go a warning to the Courts that this extra-ordinary power should be used sparingly and absolutely in necessary matter involving down trodden people.However, we are satisfied that there is no prohibition under the provisions of the Act and Rules putting the ceiling on construction of the multi storey building. We are also satisfied that the delay is also fatal in the presentis true locus in such Public Interest Litigation is very relevant factor & Court should always inquire into the locus of person before entertaining such petition. We have already observed above that Public Interest Litigation should be entertained in very rare cases. | 1 | 10,944 | 1,755 | ### Instruction:
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the matter as still in discretion of the High Court, and the High Court in us discretion can refuse the issue of a writ because of the laches of the applicant." 30. In the case of Ramana Dayaram Shetty vs. The International Airport Authority of India & Ors. reported in AIR 1979 SC 1628 , even five months delay was considered to be fatal. It was observed as follows: "Moreover, the writ petition was filed by the appellant more than live months after the acceptance of the tender of the 4th respondents and during this period, the 4th respondents incurred considerable expenditure aggregating to about Rs.1.25,000/- in making arrangements for putting up the restaurant and the snack bars and started running the same. It would now be most inequitous to set aside the contract of the 4th respondents at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of the 4th respondents but the appellant allowed a period of over five months to elapse during which the 4th respondents started their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution." 31. In the case of Ashok Kumar Mishra & Anr. vs. Collector, Raipur & Ors. reported in AIR 1980 SC 112 , it was observed that when the final electoral roll was published in Nov. 15, 1978 it was notified that the nominations could be filed on and after Nov.25, 1978 and the poll, if necessary, would take place on Dec.31, 1978. After Nov.25, 1978, a large number of nominations were received by the Returning Officer. It was only on Dec.5, 1978 for the first time that a letter was addressed by petitioner to the Collector drawing his attention to the error that had crept into the notice published under Rule 4(1) of the Rules. By that time, the nominations had all been received. The final list of candidates for the election with their symbols was published on Dece.20, 1978. The writ petition itself was filed on Dec.28, 1978 when the poll had to take place on Dec. 31, 1978. In that context. Their Lordships observed as follows: "No satisfactory explanation was given in the course of the petition by the petitioners, ad to why they delayed the filing of the petition till Dec.28, 1978 even though they knew that there was an error in the notice issued under R.4(1) of the Rules in the month of Oct.1978 more than 2 months before the date on which is was filed." Their Lordships dismissed the petition as there was no satisfactory explanation for the delay in preferring it. 32. In the case of State of Maharashtra, vs. Digambar reported in (1995) 4 SCC 683. Their Lordships observed as follows: "the power of the High Court to be exercised under Article 226 of the Constitution, if it is discretionary, its exercise must be judicious and reasonable, admits of no controversy. Persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully the High Court that the facts and circumstances of the case clearly justified the latches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where the High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as latches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State." 33. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights? 34. We are of the opinion that delay in this case is equally fatal, the construction already started by the appellant in 1987 and building had come upto three floors. Thereafter it was stopped in 1988 and in March, 1991 it resumed after permission was granted. The Writ Petition was filed in November, 1991 meanwhile almost construction was complete. Therefore, delay was fatal in the present case and learned single Judge rightly held it. It was also brought to our notice that 46 multi storey buildings have come up in this area. Learned counsel has produced photographs to show that buildings more than three and four floors have been constructed in and around this area. 35. However, we are satisfied that there is no prohibition under the provisions of the Act and Rules putting the ceiling on construction of the multi storey building. We are also satisfied that the delay is also fatal in the present case. 36. It was also contended by the learned counsel for the Appellant that the appellant had no locus standi to file this petition as the present association is neither representative association nor a registered body. Therefore, the Court should not have entertained the PIL on behalf of; such unregistered and unrecognized body. It is true locus in such Public Interest Litigation is very relevant factor & Court should always inquire into the locus of person before entertaining such petition. We have already observed above that Public Interest Litigation should be entertained in very rare cases. 37. Learned counsel has also invited our attention to Section 11 of the Transfer of Property Act to urge that once absolute right has been conferred on the property then no rider can be put to enjoyment of that property. It is not necessary to go into this question in this case.
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as the full rights are not transferred to the lessee-purchaser, this condition would survive and after the sale is made, this condition will no longer and conditions contained in absolute sale deed will govern. If the lessee or his successor wants to raise a construction, then the provisions of the Karnataka Municipal Corporation Act will come into play and he has to obtain prior sanction for construction of the building. As soon as the permission is granted by the Corporation, then he is to abide by those conditions along with the condition laid down in absolute sale deed.e conditions which have been set out in the lease agreement and which is relevant for our purpose is condition No.4. Condition No.4 has already been reproduced above which provides that lessee purchaser shall not sub-divide the property or construct more than one dwelling house. Condition No.12 says if the Lessee has performed all the conditions mentioned herein and committed no breach thereof the Lessor/Vendor shall, at the end of ten years referred to in clause 1 sell the property to the Lessee/Purchaser and all attendant expenses in connection with such sale such as stamp duty, registration charges, etc., shall be borne by the Lessee/Purchaser, Condition NO.13 says that on complying with the terms and conditions of this agreement in the manner stated above but not otherwise the Lessor/Vendor shall be obliged to execute the sale deed in favour of the Lessee/Purchaser. Therefore, looking to the scheme of the Act, the Rules and the terms and conditions of the lease cum sale agreement. It transpires that once an allotment is made to the lessee and he makes all payments then after the payment the lesser/vendor shall at the end of ten years sell the property to the lessee/purchaser and the lessee/purchaser will get the sale deed registered. Therefore, if all the conditions of the lease agreement are fulfilled, at the end of the stipulated period of ten years then outright agreement of sale shall be executed by the lessor/vendor with the lessee purchaser and the lessee will have absolute right. The lease agreement also says that during the currency of the lease, the lessee purchaser shall abide by the terms and conditions of the lease. As per condition 17(7) reproduced above the lessee purchaser shall not alienate the property during the period of tenancy. Once all the payments have been fulfilled by the lessee, then the land is registered in favour of the lessee by the lessor the lessee becomes absolute owner of the land. So long as the building is not constructed under condition No.4 of the agreement the lessee is neither entitled to alienate the property under condition 17 (7), nor shall be sub-divide the property or construct more than one dwelling house on it. These restrictions are there so long as the complete sale agreement is not executed under condition No.12 of the lease-cum-sale agreement. As soon as the lease agreement is executed conforming full title to the lessee then the conditions of the lease cum sale agreement come to an end and the lessee acquires full right to deal with the said property in accordance with the Act and the Rules bearing on the subject. After acquiring this full right the lessee has right to alienate the property or whenever either lessee or his successor wants to construct a building thereon he can do so in accordance with the provisions of law. Condition No.4 of the lease agreement was only to survive so long as the lessee continued to be lessee as his rights of lessee are restricted i.e he cannot alternate the property nor can he subdivide the property and he has to construct one dwelling house. The moment the lease cum sale agreement is executed after following the conditions of the lease as laid down, then there is no further hurdle or condition like not to construct multi-storeyed building or multi-dwelling house. The only condition that he will construct only one dwelling house is contained in Condition No.4 of the lease cum sale agreement and so long as the full rights are not transferred to the lessee-purchaser, this condition would survive and after the sale is made, this condition will no longer and conditions contained in absolute sale deed will govern. If the lessee or his successor wants to raise a construction, then the provisions of the Karnataka Municipal Corporation Act will come into play and he has to obtain prior sanction for construction of the building. As soon as the permission is granted by the Corporation, then he is to abide by those conditions along with the condition laid down in absolute sale deed.Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression "apartment" has been used which shows that there cannot be more than one dwelling house.Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression "apartment" has been used which shows that there cannot be more than one dwellingsacrosanct jurisdiction of Public Interest Litigation should be invoked very sparingly and in favour of vigilant litigant and not for the persons who invoke this jurisdiction for the sake of publicity or for the purpose of serving their private ends.We fully share the views expressed in the aforesaid decision of this Court and reiterate that it should go a warning to the Courts that this extra-ordinary power should be used sparingly and absolutely in necessary matter involving down trodden people.However, we are satisfied that there is no prohibition under the provisions of the Act and Rules putting the ceiling on construction of the multi storey building. We are also satisfied that the delay is also fatal in the presentis true locus in such Public Interest Litigation is very relevant factor & Court should always inquire into the locus of person before entertaining such petition. We have already observed above that Public Interest Litigation should be entertained in very rare cases.
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Ram Gopal Vs. Nand Lal And Others | Sunder Lal, the brother of Meria, was in occupation of the double-storied shop from long before the Tamliknama was executed and Meria got any legal title to it. It appears from the record that in 1920 a suit was instituted on behalf of the infant Nand Lal for evicting Sunder Lal from the shop and the allegation in the plaint was that Sunder Lal was occupying the property as a tenant since the time of Mt. Mithani by taking a settlement from her. Sunder Lal in his written statement filed in that suit expressly repudiated the allegation of tenancy and also the title of Nand Lal and openly asserted that it was Mt. Meria who was the actual owner of Mangal Sens estate. The suit ended in and compromise arrived at through the medium of arbitrators and the result was that although Sunder Lal admitted the title of the pltf; the latter had to abandon the claims which were made in the plaint for rents, costs and damages. Sunder Lal continued to be in occupation of the shop and executed a rent agreement in respect of the same in favour of Nand Lal promising to pay a rent of Rs. 12 p. m. A few months later, the Tamliknama was executed and this shop along with the residential house were given to Meria inmalikiright. The recitals in both the Tamliknama and the deed of relinquishment clearly indicate that the supreme anxiety on the part of Babu Ram, who was trying his best to safeguard the interests of the minor, was to put an end to all further disputes that might be raised by or on behalf of Mt. Meria with regard to the rights of Nand Lal to the properties of Mangal Sen and to make his title to the same absolutely impeccable. That seems to be the, reason why Meria was given a comparatively large portion of the properties left by Mangal Sen which would enable her to live in comfort and her interest was not limited to a bare right of maintenance. It is significant to note that the shop room, which was all along in possession of Sunder Lal, was included in this Tamliknama and soon after the grant was made Sunder Lal executed a rent agreement in respect of the shop in favour of Mt. Meria acknowledging her to be the owner of the property.18. It is true that the document does not make any reference to the heirs of Meria, but that is not at all necessary, nor is it essential that any express power of alienation should be given. The word "Malik" is too common an expression in this part of the country and its meaning and implications were fairly well settled by judicial pronouncements long before the document was executed. If really the grantee was intended to have only a life interest in the properties, there was no lack of appropriate words, prefectly well known in the locality, to express such intention.19. The H. C. seems to have been influenced to some extent by the fact that in the Tamliknama there was a guarantee given by Babu Ram to Meria herself and to no one else agreeing to compensate her in case she was dispossessed from the properties at the instance of Nand Lal. This covenant in the document was in the nature of a personal guarantee given by Babu Ram to Mt. Meria for the simple reason that the property belonged to an infant and it was as guardian of the minor that Babu Ram was purporting to act. It was too much to expect that Babu Ram would bind himself for all time to come and give a guarantee to the future heirs of Meria as well. Probably no such thing was contemplated by the parties and no such undertaking was insisted upon by the other side. But whatever the reason might be which led to the covenant being expressed in this particular form, I do not think that it has even a remote bearing on the question that arises for our consideration in the present case. It is of no assistance to the pltf. in support of the construction that is sought to be put upon the document on his behalf.20. I am also not at all impressed by the other fact referred to in the judgment of the H. C. that if the properties were given to Meria in absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed. I fail to see how the inclusion of the properties in the deed of relinquishment would go to indicate that Merias rights to these properties were of a restricted and not an absolute character. It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same transaction. Under the Tamliknama, Meria got two properties in absolute right out of the estate of Mangal Sen. By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the Tamliknama. After the Tamliknama was executed in her favour there was no further question of her claiming any right of maintenance in respect of these two items of property. She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquishment. On a construction of the entire document, my conclusion is that there is nothing in the context of the document, or in the surrounding circumstances which would displace the presumption of full proprietary rights which the use of the word "Malik" is apt ordinarily to convey. The first contention of the applt. therefore succeeds and in view of my decision on this point, the second question does not arise for determination at all.21. | 1[ds]8. It may be taken to be quite settled that there is no warrant for the proposition at law that when a grant at an immovable property made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her.The reasoning adopted by Mitter J. of the Calcutta H. C. in Mt. Kollani Koer v. Luchmee Prasad,24 W. R. 395 which was approved at and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the P. O, as early as in the case of Tayore v. Tagore, I. A. Sup. Vol. 47 at p. 65 : (9 Beng. L. R. 377 (P. C.) ) that if an estate were given to a man without express words at inheritance, it would, in the absence of a conflicting context, carry, by Hindu law, an estate at inheritance. This is the general principle of law which is recognised and embodied in S. 8, T. P Act and unless it is shown that under Hindu law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a widows estate, there is no justification for departing from this principle. There is certainly no such provision in Hindu law and no text could be supplied in support of the same.9. The position, therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be given ; it is enough if words are used at such amplitude as would convey full rights of ownership.I do not think that the mere fact that the gift of property is made for the support and maintenance of a female relation could be taken to be a prima facie indication at the intention at the donor, that the donee was to enjoy the property only during her life-time. The extent at interest, which the donee is to take, depends upon the intention at the donor as expressed by the language used, and if the dispositive words employed in the document are clear and un-ambiguos and import absolute ownership, the purpose at the grant would not, by itself, restrict or cut down the interest. The desire to provide maintenance or residence for the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a measure of the extent of themy opinion, the decision cited is no authority for the general proposition as is contended for by the learned counsel for the resp., and it is to be read in the context at the actual facts of the case which relate to grants at a particular type with special features at its own. It was a case where a Talukdar made a grant at certain villages to a junior member of the joint family for maintenance at the latter. The family was governed by the law at primogeniture and the estate descended to a single heir. In such cases the usual custom is that the junior members at the family, who can get no share in the property, are entitled to provisions by way of maintenance for which assignments at lands are generally made in their favour. The extent of interest taken by the grantee in the assigned lands depends entirely upon the circumstances at the particular case, or rather upon the usage that prevail in the particular family. In the case before the P. C. there was actually no deed at transfer. It was an oral assignment made by the Talukdar, and the nature of the grant had to be determined upon the recitals at a petn, for mutation of names made to the Revenue Department by the grantor after the verbal assignment was made and from other facts and circumstances at thedo not think that, on the facts of this case, any weight could be attached to this argument. In the first place, it is to be noted that whatever might have been the actual market value of the properties, what the widow got under the Tamliknama was a residential house and a shop, and the shop was the only property which fetched any income. This shop, it appears, was all along in possession of Sunder Lal, the brother of Meria, and the rent, which he paid or promised to pay in respect of the same, was only Rs. 12 a month. So from the income of this property it was hardly possible for Meria to have even a bare maintenance and this would rather support the inference that the properties were given to her absolutely and not for enjoyment merely, so long as she lived.17.It is true that the document does not make any reference to the heirs of Meria, but that is not at all necessary, nor is it essential that any express power of alienation should be given. The word "Malik" is too common an expression in this part of the country and its meaning and implications were fairly well settled by judicial pronouncements long before the document was executed. If really the grantee was intended to have only a life interest in the properties, there was no lack of appropriate words, prefectly well known in the locality, to express such intention.19.I am also not at all impressed by the other fact referred to in the judgment of the H. C. that if the properties were given to Meria in absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed. I fail to see how the inclusion of the properties in the deed of relinquishment would go to indicate that Merias rights to these properties were of a restricted and not an absolute character. It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same transaction. Under the Tamliknama, Meria got two properties in absolute right out of the estate of Mangal Sen. By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the Tamliknama. After the Tamliknama was executed in her favour there was no further question of her claiming any right of maintenance in respect of these two items of property. She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquishment. On a construction of the entire document, my conclusion is that there is nothing in the context of the document, or in the surrounding circumstances which would displace the presumption of full proprietary rights which the use of the word "Malik" is apt ordinarily to convey. The first contention of the applt. therefore succeeds and in view of my decision on this point, the second question does not arise for determination at all. | 1 | 4,844 | 1,283 | ### 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:
Sunder Lal, the brother of Meria, was in occupation of the double-storied shop from long before the Tamliknama was executed and Meria got any legal title to it. It appears from the record that in 1920 a suit was instituted on behalf of the infant Nand Lal for evicting Sunder Lal from the shop and the allegation in the plaint was that Sunder Lal was occupying the property as a tenant since the time of Mt. Mithani by taking a settlement from her. Sunder Lal in his written statement filed in that suit expressly repudiated the allegation of tenancy and also the title of Nand Lal and openly asserted that it was Mt. Meria who was the actual owner of Mangal Sens estate. The suit ended in and compromise arrived at through the medium of arbitrators and the result was that although Sunder Lal admitted the title of the pltf; the latter had to abandon the claims which were made in the plaint for rents, costs and damages. Sunder Lal continued to be in occupation of the shop and executed a rent agreement in respect of the same in favour of Nand Lal promising to pay a rent of Rs. 12 p. m. A few months later, the Tamliknama was executed and this shop along with the residential house were given to Meria inmalikiright. The recitals in both the Tamliknama and the deed of relinquishment clearly indicate that the supreme anxiety on the part of Babu Ram, who was trying his best to safeguard the interests of the minor, was to put an end to all further disputes that might be raised by or on behalf of Mt. Meria with regard to the rights of Nand Lal to the properties of Mangal Sen and to make his title to the same absolutely impeccable. That seems to be the, reason why Meria was given a comparatively large portion of the properties left by Mangal Sen which would enable her to live in comfort and her interest was not limited to a bare right of maintenance. It is significant to note that the shop room, which was all along in possession of Sunder Lal, was included in this Tamliknama and soon after the grant was made Sunder Lal executed a rent agreement in respect of the shop in favour of Mt. Meria acknowledging her to be the owner of the property.18. It is true that the document does not make any reference to the heirs of Meria, but that is not at all necessary, nor is it essential that any express power of alienation should be given. The word "Malik" is too common an expression in this part of the country and its meaning and implications were fairly well settled by judicial pronouncements long before the document was executed. If really the grantee was intended to have only a life interest in the properties, there was no lack of appropriate words, prefectly well known in the locality, to express such intention.19. The H. C. seems to have been influenced to some extent by the fact that in the Tamliknama there was a guarantee given by Babu Ram to Meria herself and to no one else agreeing to compensate her in case she was dispossessed from the properties at the instance of Nand Lal. This covenant in the document was in the nature of a personal guarantee given by Babu Ram to Mt. Meria for the simple reason that the property belonged to an infant and it was as guardian of the minor that Babu Ram was purporting to act. It was too much to expect that Babu Ram would bind himself for all time to come and give a guarantee to the future heirs of Meria as well. Probably no such thing was contemplated by the parties and no such undertaking was insisted upon by the other side. But whatever the reason might be which led to the covenant being expressed in this particular form, I do not think that it has even a remote bearing on the question that arises for our consideration in the present case. It is of no assistance to the pltf. in support of the construction that is sought to be put upon the document on his behalf.20. I am also not at all impressed by the other fact referred to in the judgment of the H. C. that if the properties were given to Meria in absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed. I fail to see how the inclusion of the properties in the deed of relinquishment would go to indicate that Merias rights to these properties were of a restricted and not an absolute character. It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same transaction. Under the Tamliknama, Meria got two properties in absolute right out of the estate of Mangal Sen. By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the Tamliknama. After the Tamliknama was executed in her favour there was no further question of her claiming any right of maintenance in respect of these two items of property. She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquishment. On a construction of the entire document, my conclusion is that there is nothing in the context of the document, or in the surrounding circumstances which would displace the presumption of full proprietary rights which the use of the word "Malik" is apt ordinarily to convey. The first contention of the applt. therefore succeeds and in view of my decision on this point, the second question does not arise for determination at all.21.
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gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a widows estate, there is no justification for departing from this principle. There is certainly no such provision in Hindu law and no text could be supplied in support of the same.9. The position, therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be given ; it is enough if words are used at such amplitude as would convey full rights of ownership.I do not think that the mere fact that the gift of property is made for the support and maintenance of a female relation could be taken to be a prima facie indication at the intention at the donor, that the donee was to enjoy the property only during her life-time. The extent at interest, which the donee is to take, depends upon the intention at the donor as expressed by the language used, and if the dispositive words employed in the document are clear and un-ambiguos and import absolute ownership, the purpose at the grant would not, by itself, restrict or cut down the interest. The desire to provide maintenance or residence for the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a measure of the extent of themy opinion, the decision cited is no authority for the general proposition as is contended for by the learned counsel for the resp., and it is to be read in the context at the actual facts of the case which relate to grants at a particular type with special features at its own. It was a case where a Talukdar made a grant at certain villages to a junior member of the joint family for maintenance at the latter. The family was governed by the law at primogeniture and the estate descended to a single heir. In such cases the usual custom is that the junior members at the family, who can get no share in the property, are entitled to provisions by way of maintenance for which assignments at lands are generally made in their favour. The extent of interest taken by the grantee in the assigned lands depends entirely upon the circumstances at the particular case, or rather upon the usage that prevail in the particular family. In the case before the P. C. there was actually no deed at transfer. It was an oral assignment made by the Talukdar, and the nature of the grant had to be determined upon the recitals at a petn, for mutation of names made to the Revenue Department by the grantor after the verbal assignment was made and from other facts and circumstances at thedo not think that, on the facts of this case, any weight could be attached to this argument. In the first place, it is to be noted that whatever might have been the actual market value of the properties, what the widow got under the Tamliknama was a residential house and a shop, and the shop was the only property which fetched any income. This shop, it appears, was all along in possession of Sunder Lal, the brother of Meria, and the rent, which he paid or promised to pay in respect of the same, was only Rs. 12 a month. So from the income of this property it was hardly possible for Meria to have even a bare maintenance and this would rather support the inference that the properties were given to her absolutely and not for enjoyment merely, so long as she lived.17.It is true that the document does not make any reference to the heirs of Meria, but that is not at all necessary, nor is it essential that any express power of alienation should be given. The word "Malik" is too common an expression in this part of the country and its meaning and implications were fairly well settled by judicial pronouncements long before the document was executed. If really the grantee was intended to have only a life interest in the properties, there was no lack of appropriate words, prefectly well known in the locality, to express such intention.19.I am also not at all impressed by the other fact referred to in the judgment of the H. C. that if the properties were given to Meria in absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed. I fail to see how the inclusion of the properties in the deed of relinquishment would go to indicate that Merias rights to these properties were of a restricted and not an absolute character. It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same transaction. Under the Tamliknama, Meria got two properties in absolute right out of the estate of Mangal Sen. By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the Tamliknama. After the Tamliknama was executed in her favour there was no further question of her claiming any right of maintenance in respect of these two items of property. She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquishment. On a construction of the entire document, my conclusion is that there is nothing in the context of the document, or in the surrounding circumstances which would displace the presumption of full proprietary rights which the use of the word "Malik" is apt ordinarily to convey. The first contention of the applt. therefore succeeds and in view of my decision on this point, the second question does not arise for determination at all.
|
Anil Hoble Vs. Kashinath Jairam Shetye & Others | the High Tide Line. That area has to be treated as “No Development Zone”, except for repairs of “existing authorized structures” (on the date of the Notification i.e. 19th February, 1991) and not exceeding the permissible FSI, plinth area and density and for permissible activities. Sub-clause (iii) deals with CRZ area between 200 to 500 metres of High Tide Line with which we are not concerned in the present case. In as much as, the finding of fact by the Tribunal about the location of the plot is that the plot was within 100 metres from the High Tide Line. There is nothing to doubt the correctness of this finding.10. The moot question then is: whether the structure as it existed when the respondents moved the Tribunal complaining about violation within the CRZ area was the same structure as on 19th February, 1991 when the CRZ Policy came into being. That finding of fact has been answered against the appellant by the Tribunal and we must agree with the same. For, the structure as it existed when the plot was purchased by the appellant on 3rd August, 1992 was a small structure at the corner of the subject plot and was used only as a garage or for repairs of vehicles and allied activity. The structure in respect of which complaint has been made before the Tribunal was completely different in shape, size and also location for which reason the Tribunal issued direction to remove the same. The view taken by the Tribunal relying on the decision of the Bombay High Court, which the Tribunal was bound to follow, permitted retention of only dwelling units within CRZ III area and constructed prior to 19th February, 1991. The direction given by the High Court in the case of Goa Foundation (supra) have been reproduced by the Tribunal in para 12 of the impugned judgment, which reads thus :-“12. The Hon’ble High Court summarized findings and gave directions in paragraph 32 as follows :(A) To conduct survey and enquiry as regards the number of dwelling units and all other structures and constructions which were existing in the CRZ-III Zone in Goa, village or town wise as on 19th February, 1991 and increase the number thereof thereafter, date-wise.(B) To identify on the basis of permission granted for construction of the dwelling units which are in excess of double the units with regard to those which were existing 19th February, 1991.(C) To identify all types of structures and constructions made in CRZ-III zone, except the dwelling units, after 19th February 1991 in the locality comprised of the dwelling units and to take action against the same for the demolition in accordance with the provisions of law.(D) To identify the open plots in CRZ-III zone which are available for construction of hotels and to frame appropriate policy/regulation for utilization thereof they are being allowed to be utilized for such construction activities.(E) Till the survey and enquiry is completed, as directed above, no new licence for any type of construction in CRZ-III zone, except repairs and renovation of the existing houses which shall be subject to the appropriate order on completion and result of the survey and enquiry to be held as directed above and this should be specifically stated in the licences to be granted for the purpose of repairs and/or renovation of the existing houses.(F) The Respondent No.5 to conduct an enquiry and fix responsibility for the violation of CRZ notification in relation to clause-III of CRZ-III zone and to take appropriate action against the persons responsible for such violation of the provisions of the Environmental Protection Act and the said notification in relation to the CRZ-III zone.(G) All this directions stated above are in relation to the CRZ-III zone in Goa in terms of the said notification.(H) The survey and enquiry should be conducted as expeditiously as possible and should be concluded preferably within the period of six months, and in any case, by 30th May, 2007, and report in that regard should be placed before this court in the first week after the summer vacation of 2007, for necessary for the order.(I) Meanwhile, on conclusion of the survey and inquiry, necessary action should proceed against the offending structures and report in that regard also should be placed along with the above effort report.(J) The Respondent No.3 and 4 shall ensure prompt compliance of the directions given in this judgment and shall be responsible for submitting the report required to be submitted as stated above.(K) All the records relating to the survey and the inquiry should be made available to the public available to the public and in that regard a website should be opened and the entire material should be displaced on the website. The Respondent No.3 should ensure due compliance of this direction by 10th of June, 2007.(L) The respondent No.1 and 3 shall pay costs of Rs.10,000/- in each of the petitions to the petitioners.(M) Report to be received from the respondents should be placed before this court in the third week of June, 2007.(N) Rule is made absolute in above terms.”So long as these directions are in force, the State Authorities or Municipal Authorities were bound by the same and they could not have granted permission to any applicant in breach thereof. Any permission given contrary to those directions must be viewed as nullity and non-est, having been given in complete disregard of the directions of the High Court. Thus, the permission granted to the appellant by GCZMA would be of no avail, as it is not consistent with the directions of the High Court.11. The fact remains that the structure directed to be demolished by the Tribunal, was obviously erected after 19th February, 1991. That being an unauthorized structure within the meaning of sub-clause (i) quoted above, could not be used for any purpose whatsoever and was required to be demolished. Therefore, the finding recorded by the Tribunal and the consequential directions given in that behalf are unassailable. | 0[ds]9. Relying on(i), (iii) and (iv), it was contended that the Tribunal committed error in law on two counts. Firstly, in assuming that the structure within CRZ area can be used only as a dwelling unit, and secondly, that repairs and renovation permission can be given only to such dwelling units. This submission does not commend us.(i) plainly mandates thatof any kind be permitted within 200 metres from the High Tide Line. That area has to be treated asexcept for repairs of(on the date of the Notification i.e. 19th February, 1991) and not exceeding the permissible FSI, plinth area and density and for permissible activities.(iii) deals with CRZ area between 200 to 500 metres of High Tide Line with which we are not concerned in the present case. In as much as, the finding of fact by the Tribunal about the location of the plot is that the plot was within 100 metres from the High Tide Line. There is nothing to doubt the correctness of this finding.10.The moot question then is: whether the structure as it existed when the respondents moved the Tribunal complaining about violation within the CRZ area was the same structure as on 19th February, 1991 when the CRZ Policy came into being.That finding of fact has been answered against the appellant by the Tribunal and we must agree with the same. For, the structure as it existed when the plot was purchased by the appellant on 3rd August, 1992 was a small structure at the corner of the subject plot and was used only as a garage or for repairs of vehicles and allied activity. The structure in respect of which complaint has been made before the Tribunal was completely different in shape, size and also location for which reason the Tribunal issued direction to remove the same. The view taken by the Tribunal relying on the decision of the Bombay High Court, which the Tribunal was bound to follow, permitted retention of only dwelling units within CRZ III area and constructed prior to 19th February, 1991. The direction given by the High Court in the case of Goa Foundation (supra) have been reproduced by the Tribunal in para 12 of the impugned judgment, which reads thusle High Court summarized findings and gave directions in paragraph 32 as follows :(A) To conduct survey and enquiry as regards the number of dwelling units and all other structures and constructions which were existing in theZone in Goa, village or town wise as on 19th February, 1991 and increase the number thereof thereafter,To identify on the basis of permission granted for construction of the dwelling units which are in excess of double the units with regard to those which were existing 19th February, 1991.(C) To identify all types of structures and constructions made inzone, except the dwelling units, after 19th February 1991 in the locality comprised of the dwelling units and to take action against the same for the demolition in accordance with the provisions of law.(D) To identify the open plots inzone which are available for construction of hotels and to frame appropriate policy/regulation for utilization thereof they are being allowed to be utilized for such construction activities.(E) Till the survey and enquiry is completed, as directed above, no new licence for any type of construction inzone, except repairs and renovation of the existing houses which shall be subject to the appropriate order on completion and result of the survey and enquiry to be held as directed above and this should be specifically stated in the licences to be granted for the purpose of repairs and/or renovation of the existing houses.(F) The Respondent No.5 to conduct an enquiry and fix responsibility for the violation of CRZ notification in relation toII zone and to take appropriate action against the persons responsible for such violation of the provisions of the Environmental Protection Act and the said notification in relation to thezone.(G) All this directions stated above are in relation to thezone in Goa in terms of the said notification.(H) The survey and enquiry should be conducted as expeditiously as possible and should be concluded preferably within the period of six months, and in any case, by 30th May, 2007, and report in that regard should be placed before this court in the first week after the summer vacation of 2007, for necessary for the order.(I) Meanwhile, on conclusion of the survey and inquiry, necessary action should proceed against the offending structures and report in that regard also should be placed along with the above effort report.(J) The Respondent No.3 and 4 shall ensure prompt compliance of the directions given in this judgment and shall be responsible for submitting the report required to be submitted as stated above.(K) All the records relating to the survey and the inquiry should be made available to the public available to the public and in that regard a website should be opened and the entire material should be displaced on the website. The Respondent No.3 should ensure due compliance of this direction by 10th of June, 2007.(L) The respondent No.1 and 3 shall pay costs of Rs.10,000/in each of the petitions to the petitioners.(M) Report to be received from the respondents should be placed before this court in the third week of June, 2007.(N) Rule is made absolute in abovelong as these directions are in force, the State Authorities or Municipal Authorities were bound by the same and they could not have granted permission to any applicant in breach thereof. Any permission given contrary to those directions must be viewed as nullity andhaving been given in complete disregard of the directions of the High Court. Thus, the permission granted to the appellant by GCZMA would be of no avail, as it is not consistent with the directions of the High Court.11. The fact remains that the structure directed to be demolished by the Tribunal, was obviously erected after 19th February, 1991. That being an unauthorized structure within the meaning of(i) quoted above, could not be used for any purpose whatsoever and was required to be demolished. Therefore, the finding recorded by the Tribunal and the consequential directions given in that behalf are unassailable. | 0 | 3,336 | 1,168 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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the High Tide Line. That area has to be treated as “No Development Zone”, except for repairs of “existing authorized structures” (on the date of the Notification i.e. 19th February, 1991) and not exceeding the permissible FSI, plinth area and density and for permissible activities. Sub-clause (iii) deals with CRZ area between 200 to 500 metres of High Tide Line with which we are not concerned in the present case. In as much as, the finding of fact by the Tribunal about the location of the plot is that the plot was within 100 metres from the High Tide Line. There is nothing to doubt the correctness of this finding.10. The moot question then is: whether the structure as it existed when the respondents moved the Tribunal complaining about violation within the CRZ area was the same structure as on 19th February, 1991 when the CRZ Policy came into being. That finding of fact has been answered against the appellant by the Tribunal and we must agree with the same. For, the structure as it existed when the plot was purchased by the appellant on 3rd August, 1992 was a small structure at the corner of the subject plot and was used only as a garage or for repairs of vehicles and allied activity. The structure in respect of which complaint has been made before the Tribunal was completely different in shape, size and also location for which reason the Tribunal issued direction to remove the same. The view taken by the Tribunal relying on the decision of the Bombay High Court, which the Tribunal was bound to follow, permitted retention of only dwelling units within CRZ III area and constructed prior to 19th February, 1991. The direction given by the High Court in the case of Goa Foundation (supra) have been reproduced by the Tribunal in para 12 of the impugned judgment, which reads thus :-“12. The Hon’ble High Court summarized findings and gave directions in paragraph 32 as follows :(A) To conduct survey and enquiry as regards the number of dwelling units and all other structures and constructions which were existing in the CRZ-III Zone in Goa, village or town wise as on 19th February, 1991 and increase the number thereof thereafter, date-wise.(B) To identify on the basis of permission granted for construction of the dwelling units which are in excess of double the units with regard to those which were existing 19th February, 1991.(C) To identify all types of structures and constructions made in CRZ-III zone, except the dwelling units, after 19th February 1991 in the locality comprised of the dwelling units and to take action against the same for the demolition in accordance with the provisions of law.(D) To identify the open plots in CRZ-III zone which are available for construction of hotels and to frame appropriate policy/regulation for utilization thereof they are being allowed to be utilized for such construction activities.(E) Till the survey and enquiry is completed, as directed above, no new licence for any type of construction in CRZ-III zone, except repairs and renovation of the existing houses which shall be subject to the appropriate order on completion and result of the survey and enquiry to be held as directed above and this should be specifically stated in the licences to be granted for the purpose of repairs and/or renovation of the existing houses.(F) The Respondent No.5 to conduct an enquiry and fix responsibility for the violation of CRZ notification in relation to clause-III of CRZ-III zone and to take appropriate action against the persons responsible for such violation of the provisions of the Environmental Protection Act and the said notification in relation to the CRZ-III zone.(G) All this directions stated above are in relation to the CRZ-III zone in Goa in terms of the said notification.(H) The survey and enquiry should be conducted as expeditiously as possible and should be concluded preferably within the period of six months, and in any case, by 30th May, 2007, and report in that regard should be placed before this court in the first week after the summer vacation of 2007, for necessary for the order.(I) Meanwhile, on conclusion of the survey and inquiry, necessary action should proceed against the offending structures and report in that regard also should be placed along with the above effort report.(J) The Respondent No.3 and 4 shall ensure prompt compliance of the directions given in this judgment and shall be responsible for submitting the report required to be submitted as stated above.(K) All the records relating to the survey and the inquiry should be made available to the public available to the public and in that regard a website should be opened and the entire material should be displaced on the website. The Respondent No.3 should ensure due compliance of this direction by 10th of June, 2007.(L) The respondent No.1 and 3 shall pay costs of Rs.10,000/- in each of the petitions to the petitioners.(M) Report to be received from the respondents should be placed before this court in the third week of June, 2007.(N) Rule is made absolute in above terms.”So long as these directions are in force, the State Authorities or Municipal Authorities were bound by the same and they could not have granted permission to any applicant in breach thereof. Any permission given contrary to those directions must be viewed as nullity and non-est, having been given in complete disregard of the directions of the High Court. Thus, the permission granted to the appellant by GCZMA would be of no avail, as it is not consistent with the directions of the High Court.11. The fact remains that the structure directed to be demolished by the Tribunal, was obviously erected after 19th February, 1991. That being an unauthorized structure within the meaning of sub-clause (i) quoted above, could not be used for any purpose whatsoever and was required to be demolished. Therefore, the finding recorded by the Tribunal and the consequential directions given in that behalf are unassailable.
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### Explanation:
be used only as a dwelling unit, and secondly, that repairs and renovation permission can be given only to such dwelling units. This submission does not commend us.(i) plainly mandates thatof any kind be permitted within 200 metres from the High Tide Line. That area has to be treated asexcept for repairs of(on the date of the Notification i.e. 19th February, 1991) and not exceeding the permissible FSI, plinth area and density and for permissible activities.(iii) deals with CRZ area between 200 to 500 metres of High Tide Line with which we are not concerned in the present case. In as much as, the finding of fact by the Tribunal about the location of the plot is that the plot was within 100 metres from the High Tide Line. There is nothing to doubt the correctness of this finding.10.The moot question then is: whether the structure as it existed when the respondents moved the Tribunal complaining about violation within the CRZ area was the same structure as on 19th February, 1991 when the CRZ Policy came into being.That finding of fact has been answered against the appellant by the Tribunal and we must agree with the same. For, the structure as it existed when the plot was purchased by the appellant on 3rd August, 1992 was a small structure at the corner of the subject plot and was used only as a garage or for repairs of vehicles and allied activity. The structure in respect of which complaint has been made before the Tribunal was completely different in shape, size and also location for which reason the Tribunal issued direction to remove the same. The view taken by the Tribunal relying on the decision of the Bombay High Court, which the Tribunal was bound to follow, permitted retention of only dwelling units within CRZ III area and constructed prior to 19th February, 1991. The direction given by the High Court in the case of Goa Foundation (supra) have been reproduced by the Tribunal in para 12 of the impugned judgment, which reads thusle High Court summarized findings and gave directions in paragraph 32 as follows :(A) To conduct survey and enquiry as regards the number of dwelling units and all other structures and constructions which were existing in theZone in Goa, village or town wise as on 19th February, 1991 and increase the number thereof thereafter,To identify on the basis of permission granted for construction of the dwelling units which are in excess of double the units with regard to those which were existing 19th February, 1991.(C) To identify all types of structures and constructions made inzone, except the dwelling units, after 19th February 1991 in the locality comprised of the dwelling units and to take action against the same for the demolition in accordance with the provisions of law.(D) To identify the open plots inzone which are available for construction of hotels and to frame appropriate policy/regulation for utilization thereof they are being allowed to be utilized for such construction activities.(E) Till the survey and enquiry is completed, as directed above, no new licence for any type of construction inzone, except repairs and renovation of the existing houses which shall be subject to the appropriate order on completion and result of the survey and enquiry to be held as directed above and this should be specifically stated in the licences to be granted for the purpose of repairs and/or renovation of the existing houses.(F) The Respondent No.5 to conduct an enquiry and fix responsibility for the violation of CRZ notification in relation toII zone and to take appropriate action against the persons responsible for such violation of the provisions of the Environmental Protection Act and the said notification in relation to thezone.(G) All this directions stated above are in relation to thezone in Goa in terms of the said notification.(H) The survey and enquiry should be conducted as expeditiously as possible and should be concluded preferably within the period of six months, and in any case, by 30th May, 2007, and report in that regard should be placed before this court in the first week after the summer vacation of 2007, for necessary for the order.(I) Meanwhile, on conclusion of the survey and inquiry, necessary action should proceed against the offending structures and report in that regard also should be placed along with the above effort report.(J) The Respondent No.3 and 4 shall ensure prompt compliance of the directions given in this judgment and shall be responsible for submitting the report required to be submitted as stated above.(K) All the records relating to the survey and the inquiry should be made available to the public available to the public and in that regard a website should be opened and the entire material should be displaced on the website. The Respondent No.3 should ensure due compliance of this direction by 10th of June, 2007.(L) The respondent No.1 and 3 shall pay costs of Rs.10,000/in each of the petitions to the petitioners.(M) Report to be received from the respondents should be placed before this court in the third week of June, 2007.(N) Rule is made absolute in abovelong as these directions are in force, the State Authorities or Municipal Authorities were bound by the same and they could not have granted permission to any applicant in breach thereof. Any permission given contrary to those directions must be viewed as nullity andhaving been given in complete disregard of the directions of the High Court. Thus, the permission granted to the appellant by GCZMA would be of no avail, as it is not consistent with the directions of the High Court.11. The fact remains that the structure directed to be demolished by the Tribunal, was obviously erected after 19th February, 1991. That being an unauthorized structure within the meaning of(i) quoted above, could not be used for any purpose whatsoever and was required to be demolished. Therefore, the finding recorded by the Tribunal and the consequential directions given in that behalf are unassailable.
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Commissioner of Income Tax, Faridabad Vs. Ghanshyam | Similarly, under Section 23(2) of the 1894 Act there is a provision for solatium which also represents part of enhanced compensation. Similarly, Section 28 empowers the court in its discretion to award interest on the excess amount of compensation over and above what is awarded by the Collector. It includes additional amount under Section 23(1A) and solatium under Section 23(2) of the said Act. Section 28 of the 1894 Act applies only in respect of the excess amount determined by the court after reference under Section 18 of the 1894 Act. It depends upon the claim, unlike interest under Section 34 which depends on undue delay in making the award. It is true that "interest" is not compensation. It is equally true that Section 45(5) of the 1961 Act refers to compensation. But as discussed hereinabove, we have to go by the provisions of the 1894 Act which awards "interest" both as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23(1A) and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45(5)(b) of the 1961 Act. In fact, what we have stated hereinabove is reinforced by the newly inserted clause (c) in Section 45(5) by the Finance Act, 2003 w.e.f.1.4.2004. This newly added clause envisages a situation where in the assessment for any year,- -the capital gain arising from the transfer of a capital asset is computed by taking the- -compensation or consideration referred to in clause (a) of section 45(5) or, as the case may be, -enhanced compensation or consideration referred to in clause (b) of section 45(5),and subsequently such compensation or consideration is reduced by any court, Tribunal or other authority.34. In such a situation, such assessed capital gain of that year shall be recomputed by taking the compensation or consideration as so reduced by such court, Tribunal or other authority to be the full value of the consideration. For giving effect to such recomputation, the provisions of the newly inserted (w.e.f. 1.4.2004) section 155(16) by the Finance Act, 2003 (32 of 2003), have been enacted.35. It was urged on behalf of the assessee that Section 45(5)(b) of the 1961 Act deals only with re-working, its object is not to convert the amount of enhanced compensation into deemed income on receipt. We find no merit in this argument. The scheme of Section 45(5) of the 1961 Act was inserted w.e.f. 1.4.88 as an overriding provision. As stated above, compensation under the L.A. Act, 1894, arises and is payable in multiple stages which does not happen in cases of transfers by sale etc. Hence, the legislature had to step in and say that as and when the assessee-claimant is in receipt of enhanced compensation it shall be treated as "deemed income" and taxed on receipt basis. Our above understanding is supported by insertion of clause (c) in Section 45(5) w.e.f. 1.4.04 and Section 155(16) which refers to a situation of a subsequent reduction by the Court, Tribunal or other authority and recomputation/amendment of the assessment order. Section 45(5) read as a whole (including clause "c") not only deals with re- working as urged on behalf of the assessee but also with the change in the full value of the consideration (computation) and since the enhanced compensation/consideration (including interest under Section 28 of the 1894 Act) becomes payable/paid under 1894 Act at different stages, the receipt of such enhanced compensation/consideration is to be taxed in the year of receipt subject to adjustment, if any, under Section 155(16) of the 1961 Act, later on. Hence, the year in which enhanced compensation is received is the year of taxability. Consequently, even in cases where pending appeal, the Court/Tribunal/Authority before which appeal is pending, permits the claimant to withdraw against security or otherwise the enhanced compensation (which is in dispute), the same is liable to be taxed under Section 45(5) of the 1961 Act. This is the scheme of Section 45(5) and Section 155(16) of the 1961 Act. We may clarify that even before the insertion of Section 45(5)(c) and Section 155(16) w.e.f. 1.4.04, the receipt of enhanced compensation under Section 45(5)(b) was taxable in the year of receipt which is only reinforced by insertion of clause (c) because the right to receive payment under the 1894 Act is not in doubt. It is important to note that compensation, including enhanced compensation/consideration under the 1894 Act, is based on the full value of property as on date of notification under Section 4 of that Act. When the Court/Tribunal directs payment of enhanced compensation under Section 23(1A), or Section 23(2) or under Section 28 of the 1894 Act it is on the basis that award of Collector or the Court, under reference, has not compensated the owner for the full value of the property as on date of notification.36. Having settled the controversy going on for last two decades, we are of the view that in this batch of cases which relate back to assessment years 1991-92 and 1992-93, possibly the proceedings under the L.A. Act 1894 would have ended. In number of cases we find that proceedings under the 1894 Act have been concluded and taxes have been paid. Therefore, by this judgment we have settled the law but we direct that since matters are decade old and since we are not aware of what has happened in Land Acquisition Act proceedings in pending appeals, the recomputation on the basis of our judgment herein, particularly in the context of type of interest under Section 28 vis-`-vis interest under Section 34, additional compensation under Section 23(1A) and solatium under Section 23(2) of the 1894 Act, would be extremely difficult after all these years, will not be done. | 1[ds]27. In the case of Hindustan Housing (supra) certain lands belonging to thewhich was in the business of dealing in land and which maintained its account on mercantile system, were first requisitioned and then compulsorily acquired by the State Government. The Land Acquisition Officer awarded Rs.24,97,249/as compensation. On appeal the Arbitrator made an award at Rs.30,10,873/with interest at 5% from the date of acquisition. Thereupon, the State preferred an appeal to the High Court. Pending the appeal, the State Government deposited in the Court Rs.7,36,691/being the additional amount payable under the award and the assessee was permitted to withdraw that additional amount on furnishing a security bond for refunding the amount in the event of the said Appeal being allowed. On receiving the amount, the assessee credited it in its suspense account on the same date. The question was : whether the additional amount of Rs.7,24,914/could be taxed as the income on the ground that it became payable pursuant to the award of the Arbitrator. The Tribunal held that the amount did not accrue to the assessee as its income and was, therefore, not taxable in the assessment yearThe financial year in which the additional amount came to be withdrawn ended on 31.3.56. It was held by this Court that although award was made on 29.7.1955, enhancing the amount of compensation payable to the assessee, the entire amount was in dispute in the appeal filed by the State. Therefore, there was no absolute right to receive the amount at that stage. It was held that if the Appeal was to be allowed in its entirety, the right to payment of enhanced compensation would have fallen altogether. Therefore, according to this Court, the extra amount of compensation of Rs.7,24,914/was not income arising or accruing to the assessee during the previous year relevant to the assessment yearthe outset, it may be noted that the judgment of this Court in Hindustan Housing (supra) was delivered on 29.7.86. It was prior to 1.4.88 when Section 45(5) stood incorporated by Finance Act 1987 w.e.f. 1.4.88. Further, the judgment of this Court in Hindustan Housing (supra) has been given in respect of assessment yeartax Act, 1922 whereas, in the present case, we are concerned with the 1961 Act which defines the word "transfer" in much wider sense under Section 2(47). Lastly, for the reasons given hereinafter, particularly in the context of introduction of Section 45(5) of the 1961 Act w.e.f.1.4.88 a totally new scheme stood introduced keeping in mind cases of compulsory acquisition under the 1894 Act under which compensation is payable at multiple stages and amounts stand withdrawn by theand used by the assessee(s) for several years, during which litigation is pending. It is in the context of Section 45(5) that we need to decide the year of taxability. It is significant to note that Section 12B of 1922 Act did not contain specific reference to compulsory acquisition as contained in Section 2(47) of the 1961 Act. Therefore, in our view, the judgment of this Court in Hindustan Housing (supra) is not applicable to the present case.29. From Section 45 it is clear that capital gains are not income accruing from day to day. It is deemed income which arises at a fixed point of time, viz, date of transfer. Section 45(5), newly inserted by the Finance Act, 1987, w.e.f. 1.4.88 and subsequently amended, retrospectively w.e.f. 1.4.88, by the Finance Act, 1991, enacts overriding provision and takes care of a situationwhere the capital gains arise from the transfer of a capital asset, being a transfer by way of compulsory acquisition and the compensation for such transfer stands enhanced in stages by any court, tribunal or authority. In such a situation, the capital gains so arising is, for and from assessment yearhas to be dealt with as underthe capital gains computed with respect to the compensation awarded in the first instance would be chargeable as Income under the head "Capital Gains" of the previous year in which such compensation or part thereof was first received; and(ii) amount by which compensation or consideration is enhanced or further enhanced by the court, tribunal or authority is to be Deemed Income chargeable under the head "Capital Gains" of the previous year in which such amount is received by the assessee.For the said purpose, the cost of acquisition is to be taken as Nil [See: Explanation (i)]. Also, where the enhanced compensation is received by any person, other than the transferor by reason of the death of the transferor or for any reason, the amount of such additional compensation or additional consideration is to be deemed to be the income of the recipient of the previous year in which such amount is received by him.31. Two aspects need to be highlighted. Firstly, Section 45(5) of the 1961 Act deals with transfer(s) by way of compulsory acquisition and not by way of transfers by way of sales etc. covered by Section 45(1) of the 1961 Act. Secondly, Section 45(5) of the 1961 Act talks about enhanced compensation or consideration which in terms of L.A. Act 1894 results in payment of additional compensation.32. The issue to be decided before uswhat is the meaning of the words "enhanced compensation/consideration" in Section 45(5)(b) of the 1961 Act? Will it cover "interest"? These questions also bring in the concept of the year of taxability.33. It is to answer the above questions that we have analysed the provisions of Sections 23, 23(1A), 23(2), 28 and 34 of the 1894 Act. As discussed hereinabove, Section 23(1A) provides for additional amount. It takes care of increase in the value at the rate of 12 % per annum. Similarly, under Section 23(2) of the 1894 Act there is a provision for solatium which also represents part of enhanced compensation. Similarly, Section 28 empowers the court in its discretion to award interest on the excess amount of compensation over and above what is awarded by the Collector. It includes additional amount under Section 23(1A) and solatium under Section 23(2) of the said Act. Section 28 of the 1894 Act applies only in respect of the excess amount determined by the court after reference under Section 18 of the 1894 Act. It depends upon the claim, unlike interest under Section 34 which depends on undue delay in making the award. It is true that "interest" is not compensation. It is equally true that Section 45(5) of the 1961 Act refers to compensation. But as discussed hereinabove, we have to go by the provisions of the 1894 Act which awards "interest" both as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23(1A) and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45(5)(b) of the 1961 Act. In fact, what we have stated hereinabove is reinforced by the newly inserted clause (c) in Section 45(5) by the Finance Act, 2003 w.e.f.1.4.2004. This newly added clause envisages a situation where in the assessment for anycapital gain arising from the transfer of a capital asset is computed by takingor consideration referred to in clause (a) of section 45(5) or, as the case maycompensation or consideration referred to in clause (b) of section 45(5),and subsequently such compensation or consideration is reduced by any court, Tribunal or other authority.34. In such a situation, such assessed capital gain of that year shall be recomputed by taking the compensation or consideration as so reduced by such court, Tribunal or other authority to be the full value of the consideration. For giving effect to such recomputation, the provisions of the newly inserted (w.e.f. 1.4.2004) section 155(16) by the Finance Act, 2003 (32 of 2003), have been enacted.35. It was urged on behalf of the assessee that Section 45(5)(b) of the 1961 Act deals only withits object is not to convert the amount of enhanced compensation into deemed income on receipt. We find no merit in this argument. The scheme of Section 45(5) of the 1961 Act was inserted w.e.f. 1.4.88 as an overriding provision. As stated above, compensation under the L.A. Act, 1894, arises and is payable in multiple stages which does not happen in cases of transfers by sale etc. Hence, the legislature had to step in and say that as and when theis in receipt of enhanced compensation it shall be treated as "deemed income" and taxed on receipt basis. Our above understanding is supported by insertion of clause (c) in Section 45(5) w.e.f. 1.4.04 and Section 155(16) which refers to a situation of a subsequent reduction by the Court, Tribunal or other authority and recomputation/amendment of the assessment order. Section 45(5) read as a whole (including clause "c") not only deals with reworking as urged on behalf of the assessee but also with the change in the full value of the consideration (computation) and since the enhanced compensation/consideration (including interest under Section 28 of the 1894 Act) becomes payable/paid under 1894 Act at different stages, the receipt of such enhanced compensation/consideration is to be taxed in the year of receipt subject to adjustment, if any, under Section 155(16) of the 1961 Act, later on. Hence, the year in which enhanced compensation is received is the year of taxability. Consequently, even in cases where pending appeal, the Court/Tribunal/Authority before which appeal is pending, permits the claimant to withdraw against security or otherwise the enhanced compensation (which is in dispute), the same is liable to be taxed under Section 45(5) of the 1961 Act. This is the scheme of Section 45(5) and Section 155(16) of the 1961 Act. We may clarify that even before the insertion of Section 45(5)(c) and Section 155(16) w.e.f. 1.4.04, the receipt of enhanced compensation under Section 45(5)(b) was taxable in the year of receipt which is only reinforced by insertion of clause (c) because the right to receive payment under the 1894 Act is not in doubt. It is important to note that compensation, including enhanced compensation/consideration under the 1894 Act, is based on the full value of property as on date of notification under Section 4 of that Act. When the Court/Tribunal directs payment of enhanced compensation under Section 23(1A), or Section 23(2) or under Section 28 of the 1894 Act it is on the basis that award of Collector or the Court, under reference, has not compensated the owner for the full value of the property as on date of notification.36. Having settled the controversy going on for last two decades, we are of the view that in this batch of cases which relate back to assessment years3, possibly the proceedings under the L.A. Act 1894 would have ended. In number of cases we find that proceedings under the 1894 Act have been concluded and taxes have been paid. Therefore, by this judgment we have settled the law but we direct that since matters are decade old and since we are not aware of what has happened in Land Acquisition Act proceedings in pending appeals, the recomputation on the basis of our judgment herein, particularly in the context of type of interest under Section 28interest under Section 34, additional compensation under Section 23(1A) and solatium under Section 23(2) of the 1894 Act, would be extremely difficult after all these years, will not be done. | 1 | 7,989 | 2,284 | ### 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:
Similarly, under Section 23(2) of the 1894 Act there is a provision for solatium which also represents part of enhanced compensation. Similarly, Section 28 empowers the court in its discretion to award interest on the excess amount of compensation over and above what is awarded by the Collector. It includes additional amount under Section 23(1A) and solatium under Section 23(2) of the said Act. Section 28 of the 1894 Act applies only in respect of the excess amount determined by the court after reference under Section 18 of the 1894 Act. It depends upon the claim, unlike interest under Section 34 which depends on undue delay in making the award. It is true that "interest" is not compensation. It is equally true that Section 45(5) of the 1961 Act refers to compensation. But as discussed hereinabove, we have to go by the provisions of the 1894 Act which awards "interest" both as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23(1A) and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45(5)(b) of the 1961 Act. In fact, what we have stated hereinabove is reinforced by the newly inserted clause (c) in Section 45(5) by the Finance Act, 2003 w.e.f.1.4.2004. This newly added clause envisages a situation where in the assessment for any year,- -the capital gain arising from the transfer of a capital asset is computed by taking the- -compensation or consideration referred to in clause (a) of section 45(5) or, as the case may be, -enhanced compensation or consideration referred to in clause (b) of section 45(5),and subsequently such compensation or consideration is reduced by any court, Tribunal or other authority.34. In such a situation, such assessed capital gain of that year shall be recomputed by taking the compensation or consideration as so reduced by such court, Tribunal or other authority to be the full value of the consideration. For giving effect to such recomputation, the provisions of the newly inserted (w.e.f. 1.4.2004) section 155(16) by the Finance Act, 2003 (32 of 2003), have been enacted.35. It was urged on behalf of the assessee that Section 45(5)(b) of the 1961 Act deals only with re-working, its object is not to convert the amount of enhanced compensation into deemed income on receipt. We find no merit in this argument. The scheme of Section 45(5) of the 1961 Act was inserted w.e.f. 1.4.88 as an overriding provision. As stated above, compensation under the L.A. Act, 1894, arises and is payable in multiple stages which does not happen in cases of transfers by sale etc. Hence, the legislature had to step in and say that as and when the assessee-claimant is in receipt of enhanced compensation it shall be treated as "deemed income" and taxed on receipt basis. Our above understanding is supported by insertion of clause (c) in Section 45(5) w.e.f. 1.4.04 and Section 155(16) which refers to a situation of a subsequent reduction by the Court, Tribunal or other authority and recomputation/amendment of the assessment order. Section 45(5) read as a whole (including clause "c") not only deals with re- working as urged on behalf of the assessee but also with the change in the full value of the consideration (computation) and since the enhanced compensation/consideration (including interest under Section 28 of the 1894 Act) becomes payable/paid under 1894 Act at different stages, the receipt of such enhanced compensation/consideration is to be taxed in the year of receipt subject to adjustment, if any, under Section 155(16) of the 1961 Act, later on. Hence, the year in which enhanced compensation is received is the year of taxability. Consequently, even in cases where pending appeal, the Court/Tribunal/Authority before which appeal is pending, permits the claimant to withdraw against security or otherwise the enhanced compensation (which is in dispute), the same is liable to be taxed under Section 45(5) of the 1961 Act. This is the scheme of Section 45(5) and Section 155(16) of the 1961 Act. We may clarify that even before the insertion of Section 45(5)(c) and Section 155(16) w.e.f. 1.4.04, the receipt of enhanced compensation under Section 45(5)(b) was taxable in the year of receipt which is only reinforced by insertion of clause (c) because the right to receive payment under the 1894 Act is not in doubt. It is important to note that compensation, including enhanced compensation/consideration under the 1894 Act, is based on the full value of property as on date of notification under Section 4 of that Act. When the Court/Tribunal directs payment of enhanced compensation under Section 23(1A), or Section 23(2) or under Section 28 of the 1894 Act it is on the basis that award of Collector or the Court, under reference, has not compensated the owner for the full value of the property as on date of notification.36. Having settled the controversy going on for last two decades, we are of the view that in this batch of cases which relate back to assessment years 1991-92 and 1992-93, possibly the proceedings under the L.A. Act 1894 would have ended. In number of cases we find that proceedings under the 1894 Act have been concluded and taxes have been paid. Therefore, by this judgment we have settled the law but we direct that since matters are decade old and since we are not aware of what has happened in Land Acquisition Act proceedings in pending appeals, the recomputation on the basis of our judgment herein, particularly in the context of type of interest under Section 28 vis-`-vis interest under Section 34, additional compensation under Section 23(1A) and solatium under Section 23(2) of the 1894 Act, would be extremely difficult after all these years, will not be done.
### Response:
1
### Explanation:
for additional amount. It takes care of increase in the value at the rate of 12 % per annum. Similarly, under Section 23(2) of the 1894 Act there is a provision for solatium which also represents part of enhanced compensation. Similarly, Section 28 empowers the court in its discretion to award interest on the excess amount of compensation over and above what is awarded by the Collector. It includes additional amount under Section 23(1A) and solatium under Section 23(2) of the said Act. Section 28 of the 1894 Act applies only in respect of the excess amount determined by the court after reference under Section 18 of the 1894 Act. It depends upon the claim, unlike interest under Section 34 which depends on undue delay in making the award. It is true that "interest" is not compensation. It is equally true that Section 45(5) of the 1961 Act refers to compensation. But as discussed hereinabove, we have to go by the provisions of the 1894 Act which awards "interest" both as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23(1A) and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45(5)(b) of the 1961 Act. In fact, what we have stated hereinabove is reinforced by the newly inserted clause (c) in Section 45(5) by the Finance Act, 2003 w.e.f.1.4.2004. This newly added clause envisages a situation where in the assessment for anycapital gain arising from the transfer of a capital asset is computed by takingor consideration referred to in clause (a) of section 45(5) or, as the case maycompensation or consideration referred to in clause (b) of section 45(5),and subsequently such compensation or consideration is reduced by any court, Tribunal or other authority.34. In such a situation, such assessed capital gain of that year shall be recomputed by taking the compensation or consideration as so reduced by such court, Tribunal or other authority to be the full value of the consideration. For giving effect to such recomputation, the provisions of the newly inserted (w.e.f. 1.4.2004) section 155(16) by the Finance Act, 2003 (32 of 2003), have been enacted.35. It was urged on behalf of the assessee that Section 45(5)(b) of the 1961 Act deals only withits object is not to convert the amount of enhanced compensation into deemed income on receipt. We find no merit in this argument. The scheme of Section 45(5) of the 1961 Act was inserted w.e.f. 1.4.88 as an overriding provision. As stated above, compensation under the L.A. Act, 1894, arises and is payable in multiple stages which does not happen in cases of transfers by sale etc. Hence, the legislature had to step in and say that as and when theis in receipt of enhanced compensation it shall be treated as "deemed income" and taxed on receipt basis. Our above understanding is supported by insertion of clause (c) in Section 45(5) w.e.f. 1.4.04 and Section 155(16) which refers to a situation of a subsequent reduction by the Court, Tribunal or other authority and recomputation/amendment of the assessment order. Section 45(5) read as a whole (including clause "c") not only deals with reworking as urged on behalf of the assessee but also with the change in the full value of the consideration (computation) and since the enhanced compensation/consideration (including interest under Section 28 of the 1894 Act) becomes payable/paid under 1894 Act at different stages, the receipt of such enhanced compensation/consideration is to be taxed in the year of receipt subject to adjustment, if any, under Section 155(16) of the 1961 Act, later on. Hence, the year in which enhanced compensation is received is the year of taxability. Consequently, even in cases where pending appeal, the Court/Tribunal/Authority before which appeal is pending, permits the claimant to withdraw against security or otherwise the enhanced compensation (which is in dispute), the same is liable to be taxed under Section 45(5) of the 1961 Act. This is the scheme of Section 45(5) and Section 155(16) of the 1961 Act. We may clarify that even before the insertion of Section 45(5)(c) and Section 155(16) w.e.f. 1.4.04, the receipt of enhanced compensation under Section 45(5)(b) was taxable in the year of receipt which is only reinforced by insertion of clause (c) because the right to receive payment under the 1894 Act is not in doubt. It is important to note that compensation, including enhanced compensation/consideration under the 1894 Act, is based on the full value of property as on date of notification under Section 4 of that Act. When the Court/Tribunal directs payment of enhanced compensation under Section 23(1A), or Section 23(2) or under Section 28 of the 1894 Act it is on the basis that award of Collector or the Court, under reference, has not compensated the owner for the full value of the property as on date of notification.36. Having settled the controversy going on for last two decades, we are of the view that in this batch of cases which relate back to assessment years3, possibly the proceedings under the L.A. Act 1894 would have ended. In number of cases we find that proceedings under the 1894 Act have been concluded and taxes have been paid. Therefore, by this judgment we have settled the law but we direct that since matters are decade old and since we are not aware of what has happened in Land Acquisition Act proceedings in pending appeals, the recomputation on the basis of our judgment herein, particularly in the context of type of interest under Section 28interest under Section 34, additional compensation under Section 23(1A) and solatium under Section 23(2) of the 1894 Act, would be extremely difficult after all these years, will not be done.
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State Of Punjab Vs. M/S. Jullunder Vegetables Syndicate | no assessment can be made on a firm which has lost its character as an assessable entity.10. To get over this legal position, a strong plea was made on the basis of S. 16 of the Act. Section 16, so far relevant to the present enquiry, only says that if a dealer discontinues his business, it shall within the prescribed time inform the prescribed authority accordingly. This section does not expressly state that a dealer, if it happens to be a firm, continues to have legal existence even if it has ceased to be a firm. Nor does the section permit a necessary implication to that effect. It serves only a limited purpose. It is enacted for administrative purposes so that the appropriate authority may take the necessary action.11. Nor does R. 40 of the East Punjab General Sales Tax Rules, 1949, carry the matter further. It only imposes a joint and several liability on the dealer and its partners for the payment of tax penalty or any amount due under the Act or the rules. It does not provide for a case of the dissolution of a firm and the assessment of the dissolved firm.12. Nor the provisions of the Partnership Act can possibly be called in aid to resuscitate a dissolved firm for the purpose of assessment. They deal only with the relationship between the partners and their rights and liabilities. They have no bearing on the question of assessment under a different statute. There is, therefore, a lacuna in the Act, which was filled up later on by an Amending Act; but the said Amending Act, it is conceded, is not retrospective in operation.13. The decisions cited at the Bar reflect conflicting views on the question. We have carefully gone through them. It is enough if we briefly touch upon them.14. The Allahabad High Court in Jagat Behari Tandon v. The Sales Tax Officer, Etawah, (1955) 6 STC 125: (AIR 1956 All 23 ), maintained the assessment of a dissolved firm on the ground that it was not a separate entity. The Madhya Pradesh High Court in Lalji v. Asst. Commr., Sales Tax, Raipur, (1958) 9 STC 571 (Madh Pra), relied upon S. 17 of the C. P. and Berar Sales Tax Act, 1947, similar to S. 16 of the present Act to sustain the continuity of a firm as a legal entity till a notice contemplated by that section was given. The Madras High Court in R. D. Fernandes, In re (1957) 8 STC 365 (Mad) , relied upon the provisions of the Partnership Act to reach the desired end. The Punjab High Court in Khushi Ram Behari Lal and Co. v. Assessing Authority, Sangrur, (1964) 15 STC 165 (Punj), distinguished the Full Bench decision, which is the subject-matter of the present appeal before us, on the ground that the dissolution of the firm in the case before it was long after the assessment proceedings were initiated. It also relied upon S. 16 of the Act to support its conclusion that the liability of the firm continued till the registration was cancelled. It may also be noticed that the question in that case arose after the amended definition wherein the expression "firm" was omitted. The Madras High Court in R. Ponnuswami Gramani v. Collector of Chingleput District, (1960) 11 STC 80 (Mad) , followed the earlier decision of that Court; and it does not contain any reasoning on the question. The Bombay High Court in Bankatlal Badruka v. State of Bombay, (1961) 12 STC 405 (Bom) , based its conclusion only on the circumstance that the notice of dissolution under R. 35 of the Hyderabad General Sales Tax Rules, 1950 was not given before the assessment. The Orissa High Court in Commr. of Sales Tax, Orissa v. Aurobindo Auto Service, (1963) 14 STC 46 (Orissa), also sustained the assessment after dissolution inter alia, on the ground that on notice of dissolution was given under S. 18 (b) of the Orissa Sales Tax Act, 1947, read with R. 14 of the Orissa Sales Tax Rules, 1947. But the main reason for that decision was based upon S. 19 (3) of the Orissa Sales Tax Act which is pari materia with S. 44 of the Income-tax Act, which has been construed by this Court to confer a power on the assessing authority to make such an assessment. All these decisions, if we say so with respect, were overburdened with the consequences of a contrary construction on the incidence of taxation and also by their mixing up the question of the statutory power of assessing a dissolved firm with the liability of the partners thereof to pay the tax so assessed on the firm before dissolution. For the reasons we have already, given earlier, we cannot accept the validity of the reasons given in the said judgment for maintaining an assessment on a dissolved firm, whether the proceedings were initiated before or after the firm was dissolved.15. Strong reliance was placed upon two judgments of this Court. The Court in C. A. Abraham v. Income-tax Officer, Kottayam, speaking through Shah, J., held that S. 44 of the Income-tax Act set up a machinery for assessing the tax liability of firms which have discontinued their business. This was followed by this Court again in Commr. of Income-tax, Madras v. S. V. Angidi Chettiar (1962) 44 ITR 739 : (AIR 1962 SC 970 ). These two decisions are of no help to the Revenue in the present case. Indeed, in a sense they are against it. The Income-tax Act contains an express provision for assessing a dissolved firm. Indeed, but for that provision no assessment could be made under that Act on dissolved firms.16. For the foregoing reasons we hold that the High Court was right in holding that the assessment order on the dissolved firm could not be supported under the provisions of the Act. The High Court has given a correct answer to the question propounded for its decision. | 0[ds]14. The Allahabad High Court in Jagat Behari Tandon v. The Sales Tax Officer, Etawah, (1955) 6 STC 125: (AIR 1956 All 23 ), maintained the assessment of a dissolved firm on the ground that it was not a separate entity. The Madhya Pradesh High Court in Lalji v. Asst. Commr., Sales Tax, Raipur, (1958) 9 STC 571 (Madh Pra), relied upon S. 17 of the C. P. and Berar Sales Tax Act, 1947, similar to S. 16 of the present Act to sustain the continuity of a firm as a legal entity till a notice contemplated by that section was given. The Madras High Court in R. D. Fernandes, In re (1957) 8 STC 365 (Mad) , relied upon the provisions of the Partnership Act to reach the desired end. The Punjab High Court in Khushi Ram Behari Lal and Co. v. Assessing Authority, Sangrur, (1964) 15 STC 165 (Punj), distinguished the Full Bench decision, which is the subject-matter of the present appeal before us, on the ground that the dissolution of the firm in the case before it was long after the assessment proceedings were initiated. It also relied upon S. 16 of the Act to support its conclusion that the liability of the firm continued till the registration was cancelled. It may also be noticed that the question in that case arose after the amended definition wherein the expression "firm" was omitted. The Madras High Court in R. Ponnuswami Gramani v. Collector of Chingleput District, (1960) 11 STC 80 (Mad) , followed the earlier decision of that Court; and it does not contain any reasoning on the question. The Bombay High Court in Bankatlal Badruka v. State of Bombay, (1961) 12 STC 405 (Bom) , based its conclusion only on the circumstance that the notice of dissolution under R. 35 of the Hyderabad General Sales Tax Rules, 1950 was not given before the assessment. The Orissa High Court in Commr. of Sales Tax, Orissa v. Aurobindo Auto Service, (1963) 14 STC 46 (Orissa), also sustained the assessment after dissolution inter alia, on the ground that on notice of dissolution was given under S. 18 (b) of the Orissa Sales Tax Act, 1947, read with R. 14 of the Orissa Sales Tax Rules, 1947. But the main reason for that decision was based upon S. 19 (3) of the Orissa Sales Tax Act which is pari materia with S. 44 of the Income-tax Act, which has been construed by this Court to confer a power on the assessing authority to make such an assessment. All these decisions, if we say so with respect, were overburdened with the consequences of a contrary construction on the incidence of taxation and also by their mixing up the question of the statutory power of assessing a dissolved firm with the liability of the partners thereof to pay the tax so assessed on the firm before dissolution. For the reasons we have already, given earlier, we cannot accept the validity of the reasons given in the said judgment for maintaining an assessment on a dissolved firm, whether the proceedings were initiated before or after the firm was dissolved.15. Strong reliance was placed upon two judgments of this Court. The Court in C. A. Abraham v. Income-tax Officer, Kottayam, speaking through Shah, J., held that S. 44 of the Income-tax Act set up a machinery for assessing the tax liability of firms which have discontinued their business. This was followed by this Court again in Commr. of Income-tax, Madras v. S. V. Angidi Chettiar (1962) 44 ITR 739 : (AIR 1962 SC 970 ). These two decisions are of no help to the Revenue in the present case. Indeed, in a sense they are against it. The Income-tax Act contains an express provision for assessing a dissolved firm. Indeed, but for that provision no assessment could be made under that Act on dissolved firms.16. For the foregoing reasons we hold that the High Court was right in holding that the assessment order on the dissolved firm could not be supported under the provisions of the Act. The High Court has given a correct answer to the question propounded for its decision. | 0 | 3,235 | 803 | ### Instruction:
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no assessment can be made on a firm which has lost its character as an assessable entity.10. To get over this legal position, a strong plea was made on the basis of S. 16 of the Act. Section 16, so far relevant to the present enquiry, only says that if a dealer discontinues his business, it shall within the prescribed time inform the prescribed authority accordingly. This section does not expressly state that a dealer, if it happens to be a firm, continues to have legal existence even if it has ceased to be a firm. Nor does the section permit a necessary implication to that effect. It serves only a limited purpose. It is enacted for administrative purposes so that the appropriate authority may take the necessary action.11. Nor does R. 40 of the East Punjab General Sales Tax Rules, 1949, carry the matter further. It only imposes a joint and several liability on the dealer and its partners for the payment of tax penalty or any amount due under the Act or the rules. It does not provide for a case of the dissolution of a firm and the assessment of the dissolved firm.12. Nor the provisions of the Partnership Act can possibly be called in aid to resuscitate a dissolved firm for the purpose of assessment. They deal only with the relationship between the partners and their rights and liabilities. They have no bearing on the question of assessment under a different statute. There is, therefore, a lacuna in the Act, which was filled up later on by an Amending Act; but the said Amending Act, it is conceded, is not retrospective in operation.13. The decisions cited at the Bar reflect conflicting views on the question. We have carefully gone through them. It is enough if we briefly touch upon them.14. The Allahabad High Court in Jagat Behari Tandon v. The Sales Tax Officer, Etawah, (1955) 6 STC 125: (AIR 1956 All 23 ), maintained the assessment of a dissolved firm on the ground that it was not a separate entity. The Madhya Pradesh High Court in Lalji v. Asst. Commr., Sales Tax, Raipur, (1958) 9 STC 571 (Madh Pra), relied upon S. 17 of the C. P. and Berar Sales Tax Act, 1947, similar to S. 16 of the present Act to sustain the continuity of a firm as a legal entity till a notice contemplated by that section was given. The Madras High Court in R. D. Fernandes, In re (1957) 8 STC 365 (Mad) , relied upon the provisions of the Partnership Act to reach the desired end. The Punjab High Court in Khushi Ram Behari Lal and Co. v. Assessing Authority, Sangrur, (1964) 15 STC 165 (Punj), distinguished the Full Bench decision, which is the subject-matter of the present appeal before us, on the ground that the dissolution of the firm in the case before it was long after the assessment proceedings were initiated. It also relied upon S. 16 of the Act to support its conclusion that the liability of the firm continued till the registration was cancelled. It may also be noticed that the question in that case arose after the amended definition wherein the expression "firm" was omitted. The Madras High Court in R. Ponnuswami Gramani v. Collector of Chingleput District, (1960) 11 STC 80 (Mad) , followed the earlier decision of that Court; and it does not contain any reasoning on the question. The Bombay High Court in Bankatlal Badruka v. State of Bombay, (1961) 12 STC 405 (Bom) , based its conclusion only on the circumstance that the notice of dissolution under R. 35 of the Hyderabad General Sales Tax Rules, 1950 was not given before the assessment. The Orissa High Court in Commr. of Sales Tax, Orissa v. Aurobindo Auto Service, (1963) 14 STC 46 (Orissa), also sustained the assessment after dissolution inter alia, on the ground that on notice of dissolution was given under S. 18 (b) of the Orissa Sales Tax Act, 1947, read with R. 14 of the Orissa Sales Tax Rules, 1947. But the main reason for that decision was based upon S. 19 (3) of the Orissa Sales Tax Act which is pari materia with S. 44 of the Income-tax Act, which has been construed by this Court to confer a power on the assessing authority to make such an assessment. All these decisions, if we say so with respect, were overburdened with the consequences of a contrary construction on the incidence of taxation and also by their mixing up the question of the statutory power of assessing a dissolved firm with the liability of the partners thereof to pay the tax so assessed on the firm before dissolution. For the reasons we have already, given earlier, we cannot accept the validity of the reasons given in the said judgment for maintaining an assessment on a dissolved firm, whether the proceedings were initiated before or after the firm was dissolved.15. Strong reliance was placed upon two judgments of this Court. The Court in C. A. Abraham v. Income-tax Officer, Kottayam, speaking through Shah, J., held that S. 44 of the Income-tax Act set up a machinery for assessing the tax liability of firms which have discontinued their business. This was followed by this Court again in Commr. of Income-tax, Madras v. S. V. Angidi Chettiar (1962) 44 ITR 739 : (AIR 1962 SC 970 ). These two decisions are of no help to the Revenue in the present case. Indeed, in a sense they are against it. The Income-tax Act contains an express provision for assessing a dissolved firm. Indeed, but for that provision no assessment could be made under that Act on dissolved firms.16. For the foregoing reasons we hold that the High Court was right in holding that the assessment order on the dissolved firm could not be supported under the provisions of the Act. The High Court has given a correct answer to the question propounded for its decision.
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14. The Allahabad High Court in Jagat Behari Tandon v. The Sales Tax Officer, Etawah, (1955) 6 STC 125: (AIR 1956 All 23 ), maintained the assessment of a dissolved firm on the ground that it was not a separate entity. The Madhya Pradesh High Court in Lalji v. Asst. Commr., Sales Tax, Raipur, (1958) 9 STC 571 (Madh Pra), relied upon S. 17 of the C. P. and Berar Sales Tax Act, 1947, similar to S. 16 of the present Act to sustain the continuity of a firm as a legal entity till a notice contemplated by that section was given. The Madras High Court in R. D. Fernandes, In re (1957) 8 STC 365 (Mad) , relied upon the provisions of the Partnership Act to reach the desired end. The Punjab High Court in Khushi Ram Behari Lal and Co. v. Assessing Authority, Sangrur, (1964) 15 STC 165 (Punj), distinguished the Full Bench decision, which is the subject-matter of the present appeal before us, on the ground that the dissolution of the firm in the case before it was long after the assessment proceedings were initiated. It also relied upon S. 16 of the Act to support its conclusion that the liability of the firm continued till the registration was cancelled. It may also be noticed that the question in that case arose after the amended definition wherein the expression "firm" was omitted. The Madras High Court in R. Ponnuswami Gramani v. Collector of Chingleput District, (1960) 11 STC 80 (Mad) , followed the earlier decision of that Court; and it does not contain any reasoning on the question. The Bombay High Court in Bankatlal Badruka v. State of Bombay, (1961) 12 STC 405 (Bom) , based its conclusion only on the circumstance that the notice of dissolution under R. 35 of the Hyderabad General Sales Tax Rules, 1950 was not given before the assessment. The Orissa High Court in Commr. of Sales Tax, Orissa v. Aurobindo Auto Service, (1963) 14 STC 46 (Orissa), also sustained the assessment after dissolution inter alia, on the ground that on notice of dissolution was given under S. 18 (b) of the Orissa Sales Tax Act, 1947, read with R. 14 of the Orissa Sales Tax Rules, 1947. But the main reason for that decision was based upon S. 19 (3) of the Orissa Sales Tax Act which is pari materia with S. 44 of the Income-tax Act, which has been construed by this Court to confer a power on the assessing authority to make such an assessment. All these decisions, if we say so with respect, were overburdened with the consequences of a contrary construction on the incidence of taxation and also by their mixing up the question of the statutory power of assessing a dissolved firm with the liability of the partners thereof to pay the tax so assessed on the firm before dissolution. For the reasons we have already, given earlier, we cannot accept the validity of the reasons given in the said judgment for maintaining an assessment on a dissolved firm, whether the proceedings were initiated before or after the firm was dissolved.15. Strong reliance was placed upon two judgments of this Court. The Court in C. A. Abraham v. Income-tax Officer, Kottayam, speaking through Shah, J., held that S. 44 of the Income-tax Act set up a machinery for assessing the tax liability of firms which have discontinued their business. This was followed by this Court again in Commr. of Income-tax, Madras v. S. V. Angidi Chettiar (1962) 44 ITR 739 : (AIR 1962 SC 970 ). These two decisions are of no help to the Revenue in the present case. Indeed, in a sense they are against it. The Income-tax Act contains an express provision for assessing a dissolved firm. Indeed, but for that provision no assessment could be made under that Act on dissolved firms.16. For the foregoing reasons we hold that the High Court was right in holding that the assessment order on the dissolved firm could not be supported under the provisions of the Act. The High Court has given a correct answer to the question propounded for its decision.
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State Of A.P Vs. Thakkidiram Reddy | be one of the tests to prove that he shared the common object, but it is not the sole test. Coming now to the present case, the fact that at the dead of night a mob of persons armed with various weapons forcibly trespassed into the house of the deceased after breaking open the door, clearly indicates that they had formed an unlawful assembly with a common object to commit some offence and each of them would be liable for the offence committed or knew likely to be committeed by any of the members of the mob. To ascertain what was the common object of the above unlawful assembly, we will advert later. Suffice it to say, at this stage, that in the facts and circumstances of this case the six accused (with whom only we are concerned in these appeals) would be guilty for the offence committed by any other member of the mob, in furtherance of the common object, without proof of any overt act committed by them. We do not, however, wish to dilate on this aspect of the matter any further as we find the second ground canvassed by the High Court that the ocular evidence regarding overt acts committed by A2 to A5 and A9 is not supported by medical evidence, is factually incorrect. 18. As stated earlier the deceased sustained 10 injuries (details of which we will refer to at later stage) including lacerations and abrasions and the doctor opined that all those injuries could be caused by hard and blunt weapon like crow-bar or stick. As regards the four injured, we get from the evidence of P.W.14 that P.W. 1 sustained four injuries, P.W. 2 and P.W.3 two each and G. Narsimha Reddy, six. He opined that injury Nos. 1 and 6 found on the person of Narsimha Reddy were grievous in nature and all other injuries on his person and the injuries found on the persons of the three witnesses were simple in nature. He further opined that the injuries could be caused by blunt weapon like stick. The injuries found on the person of the deceased as also the four injured fit in with the version of the eye witnesses regarding the manner of assault by A1 to A5 and A9 and we are at loss to understand how the High Court concluded that the medical evidence did not corroborate their evidence. 19. The next question that requires an answer is what was the common object of the unlawful assembly. Both the learned counsel appearing for the accused submitted that considering the nature of the injuries inflicted by the miscreants upon the deceased, it could not be said that their common object was to commit the murder. According to the learned Counsel, even if the entire prosecution case was believed the only inference that could be drawn was that the accused persons were guilty only of the offence under Section 325 for causing grievous hurt with blunt weapons, read with Section 149 IPC. To appreciate this contention raised on behalf of the appellants it will be necessary to refer to the injuries sustained by the deceased. PW 12, who held the post mortem examination upon the deceased stated that he found the following external injuries on his person : "1. Laceration left cheek 3"x1"x".2. Abrasion left shoulder 2"x1".3. Lacertain right leg 1"x1"x"4. Three abrasions on the left leg each 1"x1"5. Laceration right frontal area 5"x"x".6. Laceration right parietal area 6"x1"x1"7. Laceration occipital area 4"xx".8. Abrasions left lower chest 1"x1". So far as internal injuries are concerned he stated that on examination of the skull, he found fractures on the right temporal bone, partietal bone and occipital bone and the total length of the fracture was 7". He further stated that subarachnoid haemorrhage was present. He opined that the head injury alone was sufficient to cause the death of the deceased. 20. If the injuries were to be considered in isolation we might have persuaded ourselves to give a second thought to the above submission of the learned Counsel but when the injuries are considered in the context of the facts, that there was bitter enmity between the parties, that at an unearthly hour the miscreants armed with various weapons like crow-bars and sticks trespassed into the house of the deceased after breaking open the door, dragged him out of the bed room to the front yard and beat him to death, and that whoever came to his rescue was beaten up, the only conclusion that can be drawn was that they formed the unlawful assembly with the common object of committing murder of the deceased and as soon as their objective was achieved they left the place. 21. It was also contended by Mr. Arunachalam that since, admittedly, the injury inflicted by A1 caused the death of the deceased and the injuries inflicted by others on his person were simple in nature, it could not be conclusively said that A2 to A5 and A9 shared with A1 a common object to commit the murder. In other words, according to the learned Counsel, committing the murder was the individual act of A1 and not in furtherance of the common object of the unlawful assembly. We are unable to accept the above contention for the reasons mentioned earlier. That apart, the manner in which the incident took place clearly proves that even if we were to assume that A2 to A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with the second part of Section 149 IPC. In either view of the matter, therefore, we are of the opinion that the High Court was not at all justified in acquitting A2 to A5 and A9 of the charges under Sections 148 and 302/149 IPC. | 0[ds]Viewed in the context of the above observations of this court we are unable to hold that the accused persons were in any way prejudiced due to the errors and omissions in the charges pointed out by Mr. Arunachalam. Apart from the fact that this point was not agitated in either of the Courts below, from the fact that the material prosecution witnesses (who narrated the entire incident) were cross examined at length from all possible angles and the suggestions that were put forward to the eye witnesses we are fully satisfied that the accused persons were not in any way prejudiced in their defence. While on this point we may also mention that in their examination under Section 313 of the Code, the accused persons were specifically told of their having committed offences (besides others) under Sections 148 and 302/149 IPC. For all these reasons we reject the threshold contention of Mr. Arunachalam.12. Coming now to the facts of the case, it cannot be gainsaid that since the incident took place in the house of the deceased at the dead of night, PWs. 1, 2 and 3, who were members of his household, were the most natural and probable witnesses. Further, the injuries sustained by them in that night leaves no room for doubt that they were present when the incident took place. As regards P.Ws. 4 and 5, their claim that they saw the incident cannot also be doubted for they were the next door neighbours of the deceased. The evidence of the above five witnesses, so far as it relates to the manner in which the incident took place is consistent and cogent and does not suffer from anyall these materials on record it must be said that the concurrent findings of the Courts below that on the fateful night a mob armed with crow- bars, sticks and other weapons forcibly entered into the house of the deceased, killed him and injured four members of his family who came to his rescue, areis of course true that there are some contradictions in between their statements made in Court and before the police during investigation. Both the Courts below found those contradictions minor and of no moment; and having gone through them we are in complete agreement with the views so expressed.14. As noticed earlier, the High Court, while relying upon the evidence of the above witnesses to uphold the conviction of A1, rejected their evidence qua the other accused, only so far as it related to their convictions under Sections 148 and 302/149 IPC on the grounds, that without strict proof of their specific overt acts they could not be convicted for the above offences only on the omnibus statements of the five eye witnesses about their culpability and that their testimony regarding the overt acts of the other accused was not supported by the medical evidence. In our considered view, none of the ground can be sustained.From the above judgments of this Court it is evident that to ascertain whether a particular person shared the common object of the unlawful assembly it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed - or he knew was likely to be committed - by any other person, he would be guilty of that offence. Undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test. Coming now to the present case, the fact that at the dead of night a mob of persons armed with various weapons forcibly trespassed into the house of the deceased after breaking open the door, clearly indicates that they had formed an unlawful assembly with a common object to commit some offence and each of them would be liable for the offence committed or knew likely to be committeed by any of the members of the mob. To ascertain what was the common object of the above unlawful assembly, we will advert later. Suffice it to say, at this stage, that in the facts and circumstances of this case the six accused (with whom only we are concerned in these appeals) would be guilty for the offence committed by any other member of the mob, in furtherance of the common object, without proof of any overt act committed by them. We do not, however, wish to dilate on this aspect of the matter any further as we find the second ground canvassed by the High Court that the ocular evidence regarding overt acts committed by A2 to A5 and A9 is not supported by medical evidence, is factually incorrect.If the injuries were to be considered in isolation we might have persuaded ourselves to give a second thought to the above submission of the learned Counsel but when the injuries are considered in the context of the facts, that there was bitter enmity between the parties, that at an unearthly hour the miscreants armed with various weapons like crow-bars and sticks trespassed into the house of the deceased after breaking open the door, dragged him out of the bed room to the front yard and beat him to death, and that whoever came to his rescue was beaten up, the only conclusion that can be drawn was that they formed the unlawful assembly with the common object of committing murder of the deceased and as soon as their objective was achieved they left theare unable to accept the above contention for the reasons mentioned earlier. That apart, the manner in which the incident took place clearly proves that even if we were to assume that A2 to A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with the second part of Section 149 IPC. In either view of the matter, therefore, we are of the opinion that the High Court was not at all justified in acquitting A2 to A5 and A9 of the charges under Sections 148 and 302/149 IPC. | 0 | 5,288 | 1,161 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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be one of the tests to prove that he shared the common object, but it is not the sole test. Coming now to the present case, the fact that at the dead of night a mob of persons armed with various weapons forcibly trespassed into the house of the deceased after breaking open the door, clearly indicates that they had formed an unlawful assembly with a common object to commit some offence and each of them would be liable for the offence committed or knew likely to be committeed by any of the members of the mob. To ascertain what was the common object of the above unlawful assembly, we will advert later. Suffice it to say, at this stage, that in the facts and circumstances of this case the six accused (with whom only we are concerned in these appeals) would be guilty for the offence committed by any other member of the mob, in furtherance of the common object, without proof of any overt act committed by them. We do not, however, wish to dilate on this aspect of the matter any further as we find the second ground canvassed by the High Court that the ocular evidence regarding overt acts committed by A2 to A5 and A9 is not supported by medical evidence, is factually incorrect. 18. As stated earlier the deceased sustained 10 injuries (details of which we will refer to at later stage) including lacerations and abrasions and the doctor opined that all those injuries could be caused by hard and blunt weapon like crow-bar or stick. As regards the four injured, we get from the evidence of P.W.14 that P.W. 1 sustained four injuries, P.W. 2 and P.W.3 two each and G. Narsimha Reddy, six. He opined that injury Nos. 1 and 6 found on the person of Narsimha Reddy were grievous in nature and all other injuries on his person and the injuries found on the persons of the three witnesses were simple in nature. He further opined that the injuries could be caused by blunt weapon like stick. The injuries found on the person of the deceased as also the four injured fit in with the version of the eye witnesses regarding the manner of assault by A1 to A5 and A9 and we are at loss to understand how the High Court concluded that the medical evidence did not corroborate their evidence. 19. The next question that requires an answer is what was the common object of the unlawful assembly. Both the learned counsel appearing for the accused submitted that considering the nature of the injuries inflicted by the miscreants upon the deceased, it could not be said that their common object was to commit the murder. According to the learned Counsel, even if the entire prosecution case was believed the only inference that could be drawn was that the accused persons were guilty only of the offence under Section 325 for causing grievous hurt with blunt weapons, read with Section 149 IPC. To appreciate this contention raised on behalf of the appellants it will be necessary to refer to the injuries sustained by the deceased. PW 12, who held the post mortem examination upon the deceased stated that he found the following external injuries on his person : "1. Laceration left cheek 3"x1"x".2. Abrasion left shoulder 2"x1".3. Lacertain right leg 1"x1"x"4. Three abrasions on the left leg each 1"x1"5. Laceration right frontal area 5"x"x".6. Laceration right parietal area 6"x1"x1"7. Laceration occipital area 4"xx".8. Abrasions left lower chest 1"x1". So far as internal injuries are concerned he stated that on examination of the skull, he found fractures on the right temporal bone, partietal bone and occipital bone and the total length of the fracture was 7". He further stated that subarachnoid haemorrhage was present. He opined that the head injury alone was sufficient to cause the death of the deceased. 20. If the injuries were to be considered in isolation we might have persuaded ourselves to give a second thought to the above submission of the learned Counsel but when the injuries are considered in the context of the facts, that there was bitter enmity between the parties, that at an unearthly hour the miscreants armed with various weapons like crow-bars and sticks trespassed into the house of the deceased after breaking open the door, dragged him out of the bed room to the front yard and beat him to death, and that whoever came to his rescue was beaten up, the only conclusion that can be drawn was that they formed the unlawful assembly with the common object of committing murder of the deceased and as soon as their objective was achieved they left the place. 21. It was also contended by Mr. Arunachalam that since, admittedly, the injury inflicted by A1 caused the death of the deceased and the injuries inflicted by others on his person were simple in nature, it could not be conclusively said that A2 to A5 and A9 shared with A1 a common object to commit the murder. In other words, according to the learned Counsel, committing the murder was the individual act of A1 and not in furtherance of the common object of the unlawful assembly. We are unable to accept the above contention for the reasons mentioned earlier. That apart, the manner in which the incident took place clearly proves that even if we were to assume that A2 to A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with the second part of Section 149 IPC. In either view of the matter, therefore, we are of the opinion that the High Court was not at all justified in acquitting A2 to A5 and A9 of the charges under Sections 148 and 302/149 IPC.
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the eye witnesses we are fully satisfied that the accused persons were not in any way prejudiced in their defence. While on this point we may also mention that in their examination under Section 313 of the Code, the accused persons were specifically told of their having committed offences (besides others) under Sections 148 and 302/149 IPC. For all these reasons we reject the threshold contention of Mr. Arunachalam.12. Coming now to the facts of the case, it cannot be gainsaid that since the incident took place in the house of the deceased at the dead of night, PWs. 1, 2 and 3, who were members of his household, were the most natural and probable witnesses. Further, the injuries sustained by them in that night leaves no room for doubt that they were present when the incident took place. As regards P.Ws. 4 and 5, their claim that they saw the incident cannot also be doubted for they were the next door neighbours of the deceased. The evidence of the above five witnesses, so far as it relates to the manner in which the incident took place is consistent and cogent and does not suffer from anyall these materials on record it must be said that the concurrent findings of the Courts below that on the fateful night a mob armed with crow- bars, sticks and other weapons forcibly entered into the house of the deceased, killed him and injured four members of his family who came to his rescue, areis of course true that there are some contradictions in between their statements made in Court and before the police during investigation. Both the Courts below found those contradictions minor and of no moment; and having gone through them we are in complete agreement with the views so expressed.14. As noticed earlier, the High Court, while relying upon the evidence of the above witnesses to uphold the conviction of A1, rejected their evidence qua the other accused, only so far as it related to their convictions under Sections 148 and 302/149 IPC on the grounds, that without strict proof of their specific overt acts they could not be convicted for the above offences only on the omnibus statements of the five eye witnesses about their culpability and that their testimony regarding the overt acts of the other accused was not supported by the medical evidence. In our considered view, none of the ground can be sustained.From the above judgments of this Court it is evident that to ascertain whether a particular person shared the common object of the unlawful assembly it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed - or he knew was likely to be committed - by any other person, he would be guilty of that offence. Undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test. Coming now to the present case, the fact that at the dead of night a mob of persons armed with various weapons forcibly trespassed into the house of the deceased after breaking open the door, clearly indicates that they had formed an unlawful assembly with a common object to commit some offence and each of them would be liable for the offence committed or knew likely to be committeed by any of the members of the mob. To ascertain what was the common object of the above unlawful assembly, we will advert later. Suffice it to say, at this stage, that in the facts and circumstances of this case the six accused (with whom only we are concerned in these appeals) would be guilty for the offence committed by any other member of the mob, in furtherance of the common object, without proof of any overt act committed by them. We do not, however, wish to dilate on this aspect of the matter any further as we find the second ground canvassed by the High Court that the ocular evidence regarding overt acts committed by A2 to A5 and A9 is not supported by medical evidence, is factually incorrect.If the injuries were to be considered in isolation we might have persuaded ourselves to give a second thought to the above submission of the learned Counsel but when the injuries are considered in the context of the facts, that there was bitter enmity between the parties, that at an unearthly hour the miscreants armed with various weapons like crow-bars and sticks trespassed into the house of the deceased after breaking open the door, dragged him out of the bed room to the front yard and beat him to death, and that whoever came to his rescue was beaten up, the only conclusion that can be drawn was that they formed the unlawful assembly with the common object of committing murder of the deceased and as soon as their objective was achieved they left theare unable to accept the above contention for the reasons mentioned earlier. That apart, the manner in which the incident took place clearly proves that even if we were to assume that A2 to A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with the second part of Section 149 IPC. In either view of the matter, therefore, we are of the opinion that the High Court was not at all justified in acquitting A2 to A5 and A9 of the charges under Sections 148 and 302/149 IPC.
|
Rajesh Bajaj Vs. State Nct Of Delhi | the complaint that one of the representatives of appellants company went to Germany in October 1995 for realising the amount on the strength of an understanding reached between them that respondent would pay 2,00,000 D.M. in lieu of the remaining part of the price. However, the respondent did not honour even that subsequent understanding. 5. Appellant further mentioned in the complaint that he came to know later about the modus operandi which respondent adopted in regard to certain other manufacturers who too were duped by the respondent to the tune of rupees ten crores. 6. Learned Judges of the High Court have put forward three premises for quashing the FIR. First is that the complaint did not disclose commission of any offence of cheating punishable under Section 420 of the Indian Penal Code. Second is that there is nothing in the complaint to suggest that the petitioner had dishonest or fraudulent intention at the time the respondent exported goods worth 4,46,597.25 D.M. by 37 different invoices. There is also nothing to indicate that the respondent, by deceiving the complainant, induced him to export goods worth 4,48,597.25 D.M. The third is that on the face of the allegations contained in the complaint it is purely a commercial transaction which in a nut-shell is that the seller did not pay the balance amount of the goods received by him as per his assurance. After quoting Section 415 of IPC learned judges proceeded to consider the main elements of the offence in the following lines : A bare reading of the definition of cheating would suggest that there are two elements thereof, namely, deception and dishonest intention to do or omit to do something . In order to bring a case within the first part of Section 415, it is essential, in the first place, that the person, who delivers the property should have been deceived before he makes the delivery; and in the second place that he should have been induced to do so fraudulently or dishonestly. Were property is fraudulently or dishonestly obtained, Section 415 would bring the said Act within the ambit of cheating provided the property is to be obtained by deception. It was thereafter that the High Court scanned the complaint and found out that there is nothing in the complaint to suggest that the accused had dishonest or fraudulent intention at the time of export of goods. 7. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complaint should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal (supra) this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder : We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian Penal Code (illustrations f) is worthy of notice now : (f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities. 8. The High Court seems to have adopted a strictly hyper-technical approach and sieved the complaint through a cullendar of finest gauzes for testing the ingredients under Section 415, IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simplicitor wherein no semblance of criminal offence is involved. | 1[ds]The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities8. The High Court seems to have adopted a strictly hyper-technical approach and sieved the complaint through a cullendar of finest gauzes for testing the ingredients under Section 415,IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simplicitor wherein no semblance of criminal offence is involved. | 1 | 1,431 | 212 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the complaint that one of the representatives of appellants company went to Germany in October 1995 for realising the amount on the strength of an understanding reached between them that respondent would pay 2,00,000 D.M. in lieu of the remaining part of the price. However, the respondent did not honour even that subsequent understanding. 5. Appellant further mentioned in the complaint that he came to know later about the modus operandi which respondent adopted in regard to certain other manufacturers who too were duped by the respondent to the tune of rupees ten crores. 6. Learned Judges of the High Court have put forward three premises for quashing the FIR. First is that the complaint did not disclose commission of any offence of cheating punishable under Section 420 of the Indian Penal Code. Second is that there is nothing in the complaint to suggest that the petitioner had dishonest or fraudulent intention at the time the respondent exported goods worth 4,46,597.25 D.M. by 37 different invoices. There is also nothing to indicate that the respondent, by deceiving the complainant, induced him to export goods worth 4,48,597.25 D.M. The third is that on the face of the allegations contained in the complaint it is purely a commercial transaction which in a nut-shell is that the seller did not pay the balance amount of the goods received by him as per his assurance. After quoting Section 415 of IPC learned judges proceeded to consider the main elements of the offence in the following lines : A bare reading of the definition of cheating would suggest that there are two elements thereof, namely, deception and dishonest intention to do or omit to do something . In order to bring a case within the first part of Section 415, it is essential, in the first place, that the person, who delivers the property should have been deceived before he makes the delivery; and in the second place that he should have been induced to do so fraudulently or dishonestly. Were property is fraudulently or dishonestly obtained, Section 415 would bring the said Act within the ambit of cheating provided the property is to be obtained by deception. It was thereafter that the High Court scanned the complaint and found out that there is nothing in the complaint to suggest that the accused had dishonest or fraudulent intention at the time of export of goods. 7. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complaint should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal (supra) this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder : We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian Penal Code (illustrations f) is worthy of notice now : (f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities. 8. The High Court seems to have adopted a strictly hyper-technical approach and sieved the complaint through a cullendar of finest gauzes for testing the ingredients under Section 415, IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simplicitor wherein no semblance of criminal offence is involved.
### Response:
1
### Explanation:
The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities8. The High Court seems to have adopted a strictly hyper-technical approach and sieved the complaint through a cullendar of finest gauzes for testing the ingredients under Section 415,IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simplicitor wherein no semblance of criminal offence is involved.
|
Sagar Pandurang Dhundare Vs. Keshav Aaba Patil & Others | or brought to its notice, by following the procedure mentioned above.[(2A) If any Panchayat fails to take action under sub-section (2), the Collector suo motu or on an application made in this behalf, may take action as [provided in that sub-section, and submit the report thereof to the Commissioner]. The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment or unauthorized cultivation of the crop and shall be recoverable from such person as an arrear of land revenue.]"(Emphasis supplied)11. Thus, under the statutory scheme, an encroacher is liable to be evicted by the Panchayat and if the Panchayat fails, the Collector has to take action. The encroacher is also liable to be prosecuted. Encroachment is certainly to be condemned, the encroacher evicted and punished. Desirably, there should not be a member in the Panchayat with conflicting interest. But once a person is elected by the people, he can be unseated only in the manner provided under law. Even with the best of intention, if there is no statutory expression of the intention, the court cannot supply words for the sake of achieving the alleged intention of the law maker. It is entirely within the realm of the law maker to express clearly what they intend. No doubt, there is a limited extent to which the court can interpret a provision so as to achieve the legislative intent. That is in a situation where such an interpretation is permissible, otherwise feasible, when it is absolutely necessary, and where the intention is clear but the words used are either inadequate or ambiguous. That is not the situation here. In the Act, wherever the law-makers wanted to specify family, they have done so. As noted by some of the judgments of the High Court, in Explanation 2 for Section 14(1)(h), the failure to pay any tax or fee due to the Panchayat or Zila Parishad by a member of a Hindu Undivided Family (HUF) or by a person belonging to a group has been expressly mentioned as a disqualification on others in the family or group. It is, therefore, evident that when the intent of the legislature was to disqualify a member for the act of his family, it has specifically done so. The Court, in the process of interpretation, cannot lay down what is desirable in its own opinion, if from the words used, the legislative intention is otherwise discernible.12. Abhiram Singh v. C.D. Commachen (D) By Lrs. and others, (2017) 2 SCC 629 is a recent Constitution Bench judgment of this Court dealing with corrupt practices. Appeal on the grounds of religion, race, caste, community, language, etc. of the candidates and the electorate, and canvassing votes accordingly, has been held to be a corrupt practice. The Court, to hold so, adopted a purposive interpretative process declaring that the Representation of the People Act, 1951 should be interpreted in that context to be electorate centric rather than candidate centric. That is not the situation in the present case. The appellants were elected by the people to the Panchayat. There is no case that they are original encroachers on the public property. And this is not the case where the alleged act of encroachment has influenced the will of the people in which case, going by Abhiram Singh (supra), the court would have been justified in attempting a purposive interpretation to achieve a laudable object.13. The respondents have placed reliance on Hari Ram v. Jyoti Prasad and another, (2011) 2 SCC 682 to say that an encroachment is a continuing wrong. While there is no quarrel with the aforesaid position, this case does not further the point made by the respondents. It is a case where there was an allegation of encroachment upon a substantial part of a street by the appellant which was causing inconvenience to the users of the street. Hari Ram (supra) does not relate to interpretation of a statute dealing with election to a public office or disqualification on the ground of encroachment. Furthermore, it does not deal with the question of whether a legal heir can be considered an encroacher. Thus, the reliance on Hari Ram (supra) is misplaced in the light of the present case.14. As we have already noted above, the duty of the court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from the expressions used in the statute. The court can also traverse to an extent to see what is decipherable but not to the extent of laying down something desirable according to the court if the legislative intent is otherwise not discernible. What is desirable is the jurisdiction of the law-maker and only what is discernible is that of the court.15. From the Statements of Objects and Reasons for the amendment introduced in 2006, it is seen that the purpose was "to disqualify the person who has encroached upon the Government land or public property, from becoming member of the Panchayat or to continue as such". The person, who has encroached upon the Government land or public property, as the law now stands, for the purpose of disqualification, can only be the person, who has actually, for the first time, made the encroachment. However, in view of Section 53(1) of the Act, in case a member has been punished for encroachment, he shall be dismissed. Similarly, a member against whom there is a final order of eviction under Section 53(2) or (2A), shall also not be entitled to continue as a member.16. In case, the appellants suffer from any of the three situations indicated above, they shall be unseated. The rest is for the State to clarify by way of a proper amendment in case they really and truly want to achieve the laudable object of preventing persons with conflicting interest from becoming or continuing as members of the Panchayat. The extent of conflicting interest is also for the Legislature to specify. | 1[ds]10. The case before us is of a post election scenario, wherein the Collector has taken steps to disqualify an elected member on the petition filed by certain individuals much after the election.Thus, under the statutory scheme, an encroacher is liable to be evicted by the Panchayat and if the Panchayat fails, the Collector has to take action. The encroacher is also liable to be prosecuted. Encroachment is certainly to be condemned, the encroacher evicted and punished. Desirably, there should not be a member in the Panchayat with conflicting interest. But once a person is elected by the people, he can be unseated only in the manner provided under law. Even with the best of intention, if there is no statutory expression of the intention, the court cannot supply words for the sake of achieving the alleged intention of the law maker. It is entirely within the realm of the law maker to express clearly what they intend. No doubt, there is a limited extent to which the court can interpret a provision so as to achieve the legislative intent. That is in a situation where such an interpretation is permissible, otherwise feasible, when it is absolutely necessary, and where the intention is clear but the words used are either inadequate or ambiguous. That is not the situation here. In the Act, wherever thewanted to specify family, they have done so. As noted by some of the judgments of the High Court, in Explanation 2 for Section 14(1)(h), the failure to pay any tax or fee due to the Panchayat or Zila Parishad by a member of a Hindu Undivided Family (HUF) or by a person belonging to a group has been expressly mentioned as a disqualification on others in the family or group. It is, therefore, evident that when the intent of the legislature was to disqualify a member for the act of his family, it has specifically done so. The Court, in the process of interpretation, cannot lay down what is desirable in its own opinion, if from the words used, the legislative intention is otherwisethere is no quarrel with the aforesaid position, this case does not further the point made by the respondents. It is a case where there was an allegation of encroachment upon a substantial part of a street by the appellant which was causing inconvenience to the users of the street. Hari Ram (supra) does not relate to interpretation of a statute dealing with election to a public office or disqualification on the ground of encroachment. Furthermore, it does not deal with the question of whether a legal heir can be considered an encroacher. Thus, the reliance on Hari Ram (supra) is misplaced in the light of the present case.14. As we have already noted above, the duty of the court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from the expressions used in the statute. The court can also traverse to an extent to see what is decipherable but not to the extent of laying down something desirable according to the court if the legislative intent is otherwise not discernible. What is desirable is the jurisdiction of theand only what is discernible is that of the court.15. From the Statements of Objects and Reasons for the amendment introduced in 2006, it is seen that the purpose was "to disqualify the person who has encroached upon the Government land or public property, from becoming member of the Panchayat or to continue as such". The person, who has encroached upon the Government land or public property, as the law now stands, for the purpose of disqualification, can only be the person, who has actually, for the first time, made the encroachment. However, in view of Section 53(1) of the Act, in case a member has been punished for encroachment, he shall be dismissed. Similarly, a member against whom there is a final order of eviction under Section 53(2) or (2A), shall also not be entitled to continue as a member.16. In case, the appellants suffer from any of the three situations indicated above, they shall be unseated. The rest is for the State to clarify by way of a proper amendment in case they really and truly want to achieve the laudable object of preventing persons with conflicting interest from becoming or continuing as members of the Panchayat. The extent of conflicting interest is also for the Legislature to specify. | 1 | 5,133 | 849 | ### 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:
or brought to its notice, by following the procedure mentioned above.[(2A) If any Panchayat fails to take action under sub-section (2), the Collector suo motu or on an application made in this behalf, may take action as [provided in that sub-section, and submit the report thereof to the Commissioner]. The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment or unauthorized cultivation of the crop and shall be recoverable from such person as an arrear of land revenue.]"(Emphasis supplied)11. Thus, under the statutory scheme, an encroacher is liable to be evicted by the Panchayat and if the Panchayat fails, the Collector has to take action. The encroacher is also liable to be prosecuted. Encroachment is certainly to be condemned, the encroacher evicted and punished. Desirably, there should not be a member in the Panchayat with conflicting interest. But once a person is elected by the people, he can be unseated only in the manner provided under law. Even with the best of intention, if there is no statutory expression of the intention, the court cannot supply words for the sake of achieving the alleged intention of the law maker. It is entirely within the realm of the law maker to express clearly what they intend. No doubt, there is a limited extent to which the court can interpret a provision so as to achieve the legislative intent. That is in a situation where such an interpretation is permissible, otherwise feasible, when it is absolutely necessary, and where the intention is clear but the words used are either inadequate or ambiguous. That is not the situation here. In the Act, wherever the law-makers wanted to specify family, they have done so. As noted by some of the judgments of the High Court, in Explanation 2 for Section 14(1)(h), the failure to pay any tax or fee due to the Panchayat or Zila Parishad by a member of a Hindu Undivided Family (HUF) or by a person belonging to a group has been expressly mentioned as a disqualification on others in the family or group. It is, therefore, evident that when the intent of the legislature was to disqualify a member for the act of his family, it has specifically done so. The Court, in the process of interpretation, cannot lay down what is desirable in its own opinion, if from the words used, the legislative intention is otherwise discernible.12. Abhiram Singh v. C.D. Commachen (D) By Lrs. and others, (2017) 2 SCC 629 is a recent Constitution Bench judgment of this Court dealing with corrupt practices. Appeal on the grounds of religion, race, caste, community, language, etc. of the candidates and the electorate, and canvassing votes accordingly, has been held to be a corrupt practice. The Court, to hold so, adopted a purposive interpretative process declaring that the Representation of the People Act, 1951 should be interpreted in that context to be electorate centric rather than candidate centric. That is not the situation in the present case. The appellants were elected by the people to the Panchayat. There is no case that they are original encroachers on the public property. And this is not the case where the alleged act of encroachment has influenced the will of the people in which case, going by Abhiram Singh (supra), the court would have been justified in attempting a purposive interpretation to achieve a laudable object.13. The respondents have placed reliance on Hari Ram v. Jyoti Prasad and another, (2011) 2 SCC 682 to say that an encroachment is a continuing wrong. While there is no quarrel with the aforesaid position, this case does not further the point made by the respondents. It is a case where there was an allegation of encroachment upon a substantial part of a street by the appellant which was causing inconvenience to the users of the street. Hari Ram (supra) does not relate to interpretation of a statute dealing with election to a public office or disqualification on the ground of encroachment. Furthermore, it does not deal with the question of whether a legal heir can be considered an encroacher. Thus, the reliance on Hari Ram (supra) is misplaced in the light of the present case.14. As we have already noted above, the duty of the court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from the expressions used in the statute. The court can also traverse to an extent to see what is decipherable but not to the extent of laying down something desirable according to the court if the legislative intent is otherwise not discernible. What is desirable is the jurisdiction of the law-maker and only what is discernible is that of the court.15. From the Statements of Objects and Reasons for the amendment introduced in 2006, it is seen that the purpose was "to disqualify the person who has encroached upon the Government land or public property, from becoming member of the Panchayat or to continue as such". The person, who has encroached upon the Government land or public property, as the law now stands, for the purpose of disqualification, can only be the person, who has actually, for the first time, made the encroachment. However, in view of Section 53(1) of the Act, in case a member has been punished for encroachment, he shall be dismissed. Similarly, a member against whom there is a final order of eviction under Section 53(2) or (2A), shall also not be entitled to continue as a member.16. In case, the appellants suffer from any of the three situations indicated above, they shall be unseated. The rest is for the State to clarify by way of a proper amendment in case they really and truly want to achieve the laudable object of preventing persons with conflicting interest from becoming or continuing as members of the Panchayat. The extent of conflicting interest is also for the Legislature to specify.
### Response:
1
### Explanation:
10. The case before us is of a post election scenario, wherein the Collector has taken steps to disqualify an elected member on the petition filed by certain individuals much after the election.Thus, under the statutory scheme, an encroacher is liable to be evicted by the Panchayat and if the Panchayat fails, the Collector has to take action. The encroacher is also liable to be prosecuted. Encroachment is certainly to be condemned, the encroacher evicted and punished. Desirably, there should not be a member in the Panchayat with conflicting interest. But once a person is elected by the people, he can be unseated only in the manner provided under law. Even with the best of intention, if there is no statutory expression of the intention, the court cannot supply words for the sake of achieving the alleged intention of the law maker. It is entirely within the realm of the law maker to express clearly what they intend. No doubt, there is a limited extent to which the court can interpret a provision so as to achieve the legislative intent. That is in a situation where such an interpretation is permissible, otherwise feasible, when it is absolutely necessary, and where the intention is clear but the words used are either inadequate or ambiguous. That is not the situation here. In the Act, wherever thewanted to specify family, they have done so. As noted by some of the judgments of the High Court, in Explanation 2 for Section 14(1)(h), the failure to pay any tax or fee due to the Panchayat or Zila Parishad by a member of a Hindu Undivided Family (HUF) or by a person belonging to a group has been expressly mentioned as a disqualification on others in the family or group. It is, therefore, evident that when the intent of the legislature was to disqualify a member for the act of his family, it has specifically done so. The Court, in the process of interpretation, cannot lay down what is desirable in its own opinion, if from the words used, the legislative intention is otherwisethere is no quarrel with the aforesaid position, this case does not further the point made by the respondents. It is a case where there was an allegation of encroachment upon a substantial part of a street by the appellant which was causing inconvenience to the users of the street. Hari Ram (supra) does not relate to interpretation of a statute dealing with election to a public office or disqualification on the ground of encroachment. Furthermore, it does not deal with the question of whether a legal heir can be considered an encroacher. Thus, the reliance on Hari Ram (supra) is misplaced in the light of the present case.14. As we have already noted above, the duty of the court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from the expressions used in the statute. The court can also traverse to an extent to see what is decipherable but not to the extent of laying down something desirable according to the court if the legislative intent is otherwise not discernible. What is desirable is the jurisdiction of theand only what is discernible is that of the court.15. From the Statements of Objects and Reasons for the amendment introduced in 2006, it is seen that the purpose was "to disqualify the person who has encroached upon the Government land or public property, from becoming member of the Panchayat or to continue as such". The person, who has encroached upon the Government land or public property, as the law now stands, for the purpose of disqualification, can only be the person, who has actually, for the first time, made the encroachment. However, in view of Section 53(1) of the Act, in case a member has been punished for encroachment, he shall be dismissed. Similarly, a member against whom there is a final order of eviction under Section 53(2) or (2A), shall also not be entitled to continue as a member.16. In case, the appellants suffer from any of the three situations indicated above, they shall be unseated. The rest is for the State to clarify by way of a proper amendment in case they really and truly want to achieve the laudable object of preventing persons with conflicting interest from becoming or continuing as members of the Panchayat. The extent of conflicting interest is also for the Legislature to specify.
|
Pudumjee Pulp and Paper Mills Limited Vs. Union of India | cause notice but the representation was turned down by order dated July 4, 1979 and that gave rise to the filing of the present petition under Article 226 of the Constitution of India. It is required to be stated at this juncture that the advantage of Exemption Notification Nos. 198/76 and 216/76 was available only upto end of March 1979. ( 5 ) SHRI Nariman, learned Counsel appearing on behalf of the petitioners, submitted that the show cause notices were issued by the Assistance Collector, Central Excise, Pune, on the strength of trade notice, copy of which is annexed as Exhibit l to the found that the manufacture of grease proof and glassine paper was entitled to exemption from payment of excise duty in accordance with Notification Nos. 198/76 and 216/76 and, thereupon directed refund of excise duty between September 30, 1977 and December 25, 1977. Indeed, the Assistant Collector accepted the claim and the clearance was permitted on payment of duty in accordance with notifications from December 25, 1977 onwards. The learned counsel urged that there is a change of view on the part of the Assistant Collector only because of the trade notice. The learned counsel also submitted that it is obvious from mere perusal of the notifications that the Company is entitled to the clearance in excess of base clearances was satisfied. We find considerable merit in the submission of the learned counsel. As mentioned hereinabove, the petitioners were paying excise duty on the manufacture of grease proof and glassine paper by seeking advantage of exemption prescribed under Notification No. 42/73 dated March 1, 1973. Notification No. 216/76 dated July 24, 1976 entitled the Company to claim exemption provided the requirement that the Company should clear the manufactured goods in excess of base clearance was satisfied. The Company could not have availed of the benefit of Notification No. 216/76 as long as the benefit of Notification No. 42/73 was availed of notification No. 216/76 clearly provided that the advantage of exemption under that Notification is permissible, provided manufacturer is not seeking advantage from payment of excise duty under any other notification. The advantage of exemption available under Notification No. 42/73 ceased to be available with effect from June 18, 1977 because Notification No. 42/73 was replaced by Notification No. 129/77. Notification No. 129/77 specifically excluded advantage to the manufactures of grease proof and glassine paper, with the result that from June 18, 1977, the company was not entitled to exemption both under Notification No. 42/73 which was repealed and Notification No. 129/77 which did not exemption grease proof paper and glassine paper. As a result of publication of Notification No. 129/77, the Company could claim benefit under notification No. 216/76 provided the conditions of that notification were complied with. The conditions were complied with only with effect from September 30, 1977 and thereupon the company could not be denied advantage of exemption under Notification No. 216/76. The assistant Collector, therefore, rightly directed that duty should be paid at concessional rate from September 30, 1977 and indeed the duty was paid at concessional rate from December 25, 1977. The Company was also granted refund for the period between September 30, 1977 and December 25, 1977 in respect of excess duty paid.( 6 ) THE Assistant Collector issued the impugned show cause notice merely because of a trade notice issued by the Government of India. The trade notice pose the following question: -"Whether a manufacturer of paper availing of the concession under Notification No. 138/77 in respect of some of the varieties of paper manufactured by him, can also simultaneously get the benefit of concession under Notification No. 198/76 in respect of certain other varieties of paper produced by him for which he does get the exemption under Notification No. 128/77, or not" the question was answered in the negative by stating that the manufacturer of paper and paper board who avails of the concession under Notification No. 128 and 129/77 is debarred from availing of the benefit under Notification No. 198 and 216/76 even in respect of varieties of paper for which does not get the exemption under Notification No. 128 and 129/77. It is now well settled that the directions under trade notices are not binding upon the Assistant Collector while exercising quasi-judicial powers under the provisions of the Act. Though the show cause notices do not specifically refer to the trade notice, it is obvious that the Assistant Collector was prompted to issue show cause notice under the advise of trade notice. In our judgment, the advise given by the direction of trade notice is clearly erroneous. From the examination of the notifications referred to above, it is crystal clear that the Company is entitled to advantage of notification No. 198 and 216/76 from September 30, 1977. Once the Company was deprived of advantage of Notification Nos. 42/73 and 129/77, then the Company cannot be denied the advantage of exemption Notification No. 216/76. In our judgment, the entire basis of issuance of show cause notice for recovery of refund of duty already paid and demanding the duty on the ground of escarpment because of the Company availing exemption is entirely faulty and without jurisdiction. Consequently, the notices are required to be struck down. Shri Desai, learned counsel appearing for the Department, made a faint attempt to urge that the refund was secured even in respect of period when the Company had taken advantages of exemption available under notification No. 42/73. The submission is entirely incorrect. While seeking refund, the Company had specifically excluded clearance for which exemption was valid of under Notification No. 42/73. The Company was entitled to advantage of Notification No. 42/73 till it was superseded by Notification No. 129/77. The petitioners sought refund of duty only when the advantage of exemption Notification No. 216/76 was available with effect from September 30, 1977. In our judgment, all the four shows cause notices, in these circumstances, cannot be sustained and are required to be quashed. | 1[ds]We find considerable merit in the submission of the learned counsel. As mentioned hereinabove, the petitioners were paying excise duty on the manufacture of grease proof and glassine paper by seeking advantage of exemption prescribed under Notification No. 42/73 dated March 1, 1973. Notification No. 216/76 dated July 24, 1976 entitled the Company to claim exemption provided the requirement that the Company should clear the manufactured goods in excess of base clearance was satisfied. The Company could not have availed of the benefit of Notification No. 216/76 as long as the benefit of Notification No. 42/73 was availed of notification No. 216/76 clearly provided that the advantage of exemption under that Notification is permissible, provided manufacturer is not seeking advantage from payment of excise duty under any other notification. The advantage of exemption available under Notification No. 42/73 ceased to be available with effect from June 18, 1977 because Notification No. 42/73 was replaced by Notification No. 129/77. Notification No. 129/77 specifically excluded advantage to the manufactures of grease proof and glassine paper, with the result that from June 18, 1977, the company was not entitled to exemption both under Notification No. 42/73 which was repealed and Notification No. 129/77 which did not exemption grease proof paper and glassine paper. As a result of publication of Notification No. 129/77, the Company could claim benefit under notification No. 216/76 provided the conditions of that notification were complied with. The conditions were complied with only with effect from September 30, 1977 and thereupon the company could not be denied advantage of exemption under Notification No. 216/76. The assistant Collector, therefore, rightly directed that duty should be paid at concessional rate from September 30, 1977 and indeed the duty was paid at concessional rate from December 25, 1977. The Company was also granted refund for the period between September 30, 1977 and December 25, 1977 in respect of excess duty paid. | 1 | 2,186 | 362 | ### 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:
cause notice but the representation was turned down by order dated July 4, 1979 and that gave rise to the filing of the present petition under Article 226 of the Constitution of India. It is required to be stated at this juncture that the advantage of Exemption Notification Nos. 198/76 and 216/76 was available only upto end of March 1979. ( 5 ) SHRI Nariman, learned Counsel appearing on behalf of the petitioners, submitted that the show cause notices were issued by the Assistance Collector, Central Excise, Pune, on the strength of trade notice, copy of which is annexed as Exhibit l to the found that the manufacture of grease proof and glassine paper was entitled to exemption from payment of excise duty in accordance with Notification Nos. 198/76 and 216/76 and, thereupon directed refund of excise duty between September 30, 1977 and December 25, 1977. Indeed, the Assistant Collector accepted the claim and the clearance was permitted on payment of duty in accordance with notifications from December 25, 1977 onwards. The learned counsel urged that there is a change of view on the part of the Assistant Collector only because of the trade notice. The learned counsel also submitted that it is obvious from mere perusal of the notifications that the Company is entitled to the clearance in excess of base clearances was satisfied. We find considerable merit in the submission of the learned counsel. As mentioned hereinabove, the petitioners were paying excise duty on the manufacture of grease proof and glassine paper by seeking advantage of exemption prescribed under Notification No. 42/73 dated March 1, 1973. Notification No. 216/76 dated July 24, 1976 entitled the Company to claim exemption provided the requirement that the Company should clear the manufactured goods in excess of base clearance was satisfied. The Company could not have availed of the benefit of Notification No. 216/76 as long as the benefit of Notification No. 42/73 was availed of notification No. 216/76 clearly provided that the advantage of exemption under that Notification is permissible, provided manufacturer is not seeking advantage from payment of excise duty under any other notification. The advantage of exemption available under Notification No. 42/73 ceased to be available with effect from June 18, 1977 because Notification No. 42/73 was replaced by Notification No. 129/77. Notification No. 129/77 specifically excluded advantage to the manufactures of grease proof and glassine paper, with the result that from June 18, 1977, the company was not entitled to exemption both under Notification No. 42/73 which was repealed and Notification No. 129/77 which did not exemption grease proof paper and glassine paper. As a result of publication of Notification No. 129/77, the Company could claim benefit under notification No. 216/76 provided the conditions of that notification were complied with. The conditions were complied with only with effect from September 30, 1977 and thereupon the company could not be denied advantage of exemption under Notification No. 216/76. The assistant Collector, therefore, rightly directed that duty should be paid at concessional rate from September 30, 1977 and indeed the duty was paid at concessional rate from December 25, 1977. The Company was also granted refund for the period between September 30, 1977 and December 25, 1977 in respect of excess duty paid.( 6 ) THE Assistant Collector issued the impugned show cause notice merely because of a trade notice issued by the Government of India. The trade notice pose the following question: -"Whether a manufacturer of paper availing of the concession under Notification No. 138/77 in respect of some of the varieties of paper manufactured by him, can also simultaneously get the benefit of concession under Notification No. 198/76 in respect of certain other varieties of paper produced by him for which he does get the exemption under Notification No. 128/77, or not" the question was answered in the negative by stating that the manufacturer of paper and paper board who avails of the concession under Notification No. 128 and 129/77 is debarred from availing of the benefit under Notification No. 198 and 216/76 even in respect of varieties of paper for which does not get the exemption under Notification No. 128 and 129/77. It is now well settled that the directions under trade notices are not binding upon the Assistant Collector while exercising quasi-judicial powers under the provisions of the Act. Though the show cause notices do not specifically refer to the trade notice, it is obvious that the Assistant Collector was prompted to issue show cause notice under the advise of trade notice. In our judgment, the advise given by the direction of trade notice is clearly erroneous. From the examination of the notifications referred to above, it is crystal clear that the Company is entitled to advantage of notification No. 198 and 216/76 from September 30, 1977. Once the Company was deprived of advantage of Notification Nos. 42/73 and 129/77, then the Company cannot be denied the advantage of exemption Notification No. 216/76. In our judgment, the entire basis of issuance of show cause notice for recovery of refund of duty already paid and demanding the duty on the ground of escarpment because of the Company availing exemption is entirely faulty and without jurisdiction. Consequently, the notices are required to be struck down. Shri Desai, learned counsel appearing for the Department, made a faint attempt to urge that the refund was secured even in respect of period when the Company had taken advantages of exemption available under notification No. 42/73. The submission is entirely incorrect. While seeking refund, the Company had specifically excluded clearance for which exemption was valid of under Notification No. 42/73. The Company was entitled to advantage of Notification No. 42/73 till it was superseded by Notification No. 129/77. The petitioners sought refund of duty only when the advantage of exemption Notification No. 216/76 was available with effect from September 30, 1977. In our judgment, all the four shows cause notices, in these circumstances, cannot be sustained and are required to be quashed.
### Response:
1
### Explanation:
We find considerable merit in the submission of the learned counsel. As mentioned hereinabove, the petitioners were paying excise duty on the manufacture of grease proof and glassine paper by seeking advantage of exemption prescribed under Notification No. 42/73 dated March 1, 1973. Notification No. 216/76 dated July 24, 1976 entitled the Company to claim exemption provided the requirement that the Company should clear the manufactured goods in excess of base clearance was satisfied. The Company could not have availed of the benefit of Notification No. 216/76 as long as the benefit of Notification No. 42/73 was availed of notification No. 216/76 clearly provided that the advantage of exemption under that Notification is permissible, provided manufacturer is not seeking advantage from payment of excise duty under any other notification. The advantage of exemption available under Notification No. 42/73 ceased to be available with effect from June 18, 1977 because Notification No. 42/73 was replaced by Notification No. 129/77. Notification No. 129/77 specifically excluded advantage to the manufactures of grease proof and glassine paper, with the result that from June 18, 1977, the company was not entitled to exemption both under Notification No. 42/73 which was repealed and Notification No. 129/77 which did not exemption grease proof paper and glassine paper. As a result of publication of Notification No. 129/77, the Company could claim benefit under notification No. 216/76 provided the conditions of that notification were complied with. The conditions were complied with only with effect from September 30, 1977 and thereupon the company could not be denied advantage of exemption under Notification No. 216/76. The assistant Collector, therefore, rightly directed that duty should be paid at concessional rate from September 30, 1977 and indeed the duty was paid at concessional rate from December 25, 1977. The Company was also granted refund for the period between September 30, 1977 and December 25, 1977 in respect of excess duty paid.
|
BENGAL CHEMICALS AND PHARMACEUTICALS LTD Vs. AJIT NAIN | challenged the notice dated 23.05.2018 and filed a second writ petition being WP No.7934(W) of 2018 before the High Court of Calcutta. The Single Judge of the High Court vide order dated 19.06.2018 dismissed the writ petition by extending the time to file the show cause to the notices.10. Being aggrieved by the dismissal of the writ petition, respondent No.1 filed an appeal in MAT No.586 of 2018. No stay was granted by the Division Bench in the said appeal nor any direction was issued by the High Court not to proceed with the hearing of the eviction proceedings. As there was no stay granted by the Division Bench in MAT No.586 of 2018, the Estate Officer proceeded with the eviction proceedings. The Estate Officer granted as much as five further hearings dated 29.06.2018, 17.07.2018, 27.07.2018, 07.08.2018 and 21.08.2018. The Estate Officer vide order dated 01.10.2018 passed the eviction order directing respondent No.1 to vacate the premises within a week from the date of the eviction order. By the said order dated 01.10.2018, the Estate Officer assessed the damages and interest at Rs.4,61,63,624/- payable by respondent No.1 (Damages Rs.3,30,33,000/- plus interest at Rs.1,31,30,624/-).11. Being aggrieved by the order of eviction, respondent No.1 filed an application being CAN No.9489 of 2018. The High Court vide impugned order set aside the order dated 01.10.2018 passed by the Estate Officer and remitted the matter to the Estate Officer to consider the matter afresh in accordance with law. Being aggrieved, appellant No.1-Bengal Chemicals and Pharmaceuticals Limited has filed these appeals. Respondent No.1 entered appearance and filed a detailed counter affidavit. 12. We have heard Mr. Sarad Kumar Singhania, learned counsel appearing for the appellants and Mr. Biswaroop Bhattacharya, learned counsel appearing for respondent No.1. We have perused the impugned judgment and other materials on record and carefully considered the matter. 13. The learned counsel appearing for the appellants has submitted that respondent No.1 is running a school in the premises comprising of 6500 sq. ft. with open space measuring 2575.13 sq. ft. and respondent No.1 is enjoying the property for commercial purpose of running the school since 01.06.2014 without payment of any rent which is calculated approximately Rs.4.61 crores as assessed by the Estate Officer which is payable to appellant No.1. It was submitted that since respondent No.1 has not paid the rent, the Estate Officer rightly concluded that respondent No.1 is an unauthorized occupant and passed the order under Section 5(1) and sub-section (2) and (2A) of Section 7 of the Act. It was further urged that respondent No.1 has the right to file an appeal against the order dated 01.10.2018 passed by the Estate Officer under the provisions of Section 9 of the Act only before the Appellate Court that is the District Judge of the district and the writ petition filed is not maintainable. 14. The learned counsel appearing for respondent No.1 has submitted that by taking judicial notice of the fact of involvement of the previous Estate Officer in the eviction proceedings, the High Court has rightly set aside the order of eviction dated 01.10.2018 passed by the Estate Officer. It was submitted that no sufficient opportunity was afforded to respondent No.1 and the quantum of damages fixed by the Estate Officer is arbitrary and therefore, respondent No.1 is justified in challenging the order of the Estate Officer before the High Court in the pending appeal. The learned counsel further submitted that a rent of Rs.21/- per sq. ft. cannot all of a sudden become Rs.50/- per sq. ft. without any rhyme or reason and respondent No.1 has always been ready to pay a reasonable rent and not a rent which is unilaterally imposed on him. It was further submitted that in compliance with the order of the High Court dated 17.01.2018, respondent No.1 has deposited Rs.25,00,000/- and also paid the electricity charges which shows the bona fide of respondent-tenant. 15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata. | 1[ds]15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata. | 1 | 1,779 | 395 | ### 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:
challenged the notice dated 23.05.2018 and filed a second writ petition being WP No.7934(W) of 2018 before the High Court of Calcutta. The Single Judge of the High Court vide order dated 19.06.2018 dismissed the writ petition by extending the time to file the show cause to the notices.10. Being aggrieved by the dismissal of the writ petition, respondent No.1 filed an appeal in MAT No.586 of 2018. No stay was granted by the Division Bench in the said appeal nor any direction was issued by the High Court not to proceed with the hearing of the eviction proceedings. As there was no stay granted by the Division Bench in MAT No.586 of 2018, the Estate Officer proceeded with the eviction proceedings. The Estate Officer granted as much as five further hearings dated 29.06.2018, 17.07.2018, 27.07.2018, 07.08.2018 and 21.08.2018. The Estate Officer vide order dated 01.10.2018 passed the eviction order directing respondent No.1 to vacate the premises within a week from the date of the eviction order. By the said order dated 01.10.2018, the Estate Officer assessed the damages and interest at Rs.4,61,63,624/- payable by respondent No.1 (Damages Rs.3,30,33,000/- plus interest at Rs.1,31,30,624/-).11. Being aggrieved by the order of eviction, respondent No.1 filed an application being CAN No.9489 of 2018. The High Court vide impugned order set aside the order dated 01.10.2018 passed by the Estate Officer and remitted the matter to the Estate Officer to consider the matter afresh in accordance with law. Being aggrieved, appellant No.1-Bengal Chemicals and Pharmaceuticals Limited has filed these appeals. Respondent No.1 entered appearance and filed a detailed counter affidavit. 12. We have heard Mr. Sarad Kumar Singhania, learned counsel appearing for the appellants and Mr. Biswaroop Bhattacharya, learned counsel appearing for respondent No.1. We have perused the impugned judgment and other materials on record and carefully considered the matter. 13. The learned counsel appearing for the appellants has submitted that respondent No.1 is running a school in the premises comprising of 6500 sq. ft. with open space measuring 2575.13 sq. ft. and respondent No.1 is enjoying the property for commercial purpose of running the school since 01.06.2014 without payment of any rent which is calculated approximately Rs.4.61 crores as assessed by the Estate Officer which is payable to appellant No.1. It was submitted that since respondent No.1 has not paid the rent, the Estate Officer rightly concluded that respondent No.1 is an unauthorized occupant and passed the order under Section 5(1) and sub-section (2) and (2A) of Section 7 of the Act. It was further urged that respondent No.1 has the right to file an appeal against the order dated 01.10.2018 passed by the Estate Officer under the provisions of Section 9 of the Act only before the Appellate Court that is the District Judge of the district and the writ petition filed is not maintainable. 14. The learned counsel appearing for respondent No.1 has submitted that by taking judicial notice of the fact of involvement of the previous Estate Officer in the eviction proceedings, the High Court has rightly set aside the order of eviction dated 01.10.2018 passed by the Estate Officer. It was submitted that no sufficient opportunity was afforded to respondent No.1 and the quantum of damages fixed by the Estate Officer is arbitrary and therefore, respondent No.1 is justified in challenging the order of the Estate Officer before the High Court in the pending appeal. The learned counsel further submitted that a rent of Rs.21/- per sq. ft. cannot all of a sudden become Rs.50/- per sq. ft. without any rhyme or reason and respondent No.1 has always been ready to pay a reasonable rent and not a rent which is unilaterally imposed on him. It was further submitted that in compliance with the order of the High Court dated 17.01.2018, respondent No.1 has deposited Rs.25,00,000/- and also paid the electricity charges which shows the bona fide of respondent-tenant. 15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata.
### Response:
1
### Explanation:
15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata.
|
Oryx Fisheries Pvt.Ltd Vs. Union Of India | Rule 43 of the MPEDA Rules, read with office order Part II No.1840/2005 dated 25/11/2006, I hereby cancel the Registration Certificate No.MAI/ME/119/06 dated 03/03/2006 issued to you. The original Certificate of Registration issued should be returned to this office for cancellation immediately.In case you are aggrieved by this order of cancellation, you may prefer an appeal to the Chairman within 30 days of the date of receipt of this order vide Rule 44 of the MPEDA Rules." 38. Therefore, the bias of the third respondent which was latent in the show cause notice became patent in the order of cancellation of the registration certificate. The cancellation order quotes the show cause notice and is a non-speaking one and is virtually no order in the eye of law. Since the same order is an appealable one it is incumbent on the third respondent to give adequate reasons. 39. On the question whether the entire proceeding for cancellation of registration initiated by the show cause notice and culminating in the order of cancellation is vitiated by bias we can appropriately refer to the succinct formulation of the principle by Lord Reid in Ridge v. Baldwin and others (1964 A.C. 40). The Learned Law Lord, while dealing with several concepts, which are not susceptible of exact definition, held that by fair procedure one would mean that what a reasonable man would regard as fair in the particular circumstances (see page 65 of the Report). If we follow the aforesaid test, we are bound to hold that the procedure of cancellation registration in this case was not a fair one.40. On the requirement of disclosing reasons by a quasi- judicial authority in support of its order, this Court has recently delivered a judgment in the case of Kranti Associates Pvt. Ltd. & Anr. v. Sh. Masood Ahmed Khan & Others on 8th September 2010.41. In M/s Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.b. A quasi-judicial authority must record reasons in support of its conclusions.c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.g. Reasons facilitate the process of judicial review by superior Courts.h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.j. Insistence on reason is a requirement for both judicial accountability and transparency.k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".42. In the instant case the appellate order contains reasons. However, absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order. 43. In Institute of Chartered Accountants of India v. L.K. Ratna and others,(1986) 4 SCC 537 , it has been held: "......after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding." (See para 18, pages 553-554 of the report) | 1[ds]39. On the question whether the entire proceeding for cancellation of registration initiated by the show cause notice and culminating in the order of cancellation is vitiated by bias we can appropriately refer to the succinct formulation of the principle by Lord Reid inRidge v. Baldwin and others (1964 A.C.40). The Learned Law Lord, while dealing with several concepts, which are not susceptible of exact definition, held that by fair procedure one would mean that what a reasonable man would regard as fair in the particular circumstances (see page 65 of the Report). If we follow the aforesaid test, we are bound to hold that the procedure of cancellation registration in this case was not a fair one.40. On the requirement of disclosing reasons by a quasijudicial authority in support of its order, this Court has recently delivered a judgment in the case of Kranti Associates Pvt. Ltd. & Anr. v. Sh. Masood Ahmed Khan & Others on 8th September 2010.41. In M/s Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.b. Aauthority must record reasons in support of its conclusions.c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial andor even administrative power.e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial,and even by administrative bodies.g. Reasons facilitate the process of judicial review by superior Courts.h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.i. Judicial or evenopinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.j. Insistence on reason is a requirement for both judicial accountability and transparency.k. If a Judge or aauthority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons orSince the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anyavs. University of Oxford, 2001 EWCA Civwherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".42. In the instant case the appellate order contains reasons. However, absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order. | 1 | 4,888 | 692 | ### 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:
Rule 43 of the MPEDA Rules, read with office order Part II No.1840/2005 dated 25/11/2006, I hereby cancel the Registration Certificate No.MAI/ME/119/06 dated 03/03/2006 issued to you. The original Certificate of Registration issued should be returned to this office for cancellation immediately.In case you are aggrieved by this order of cancellation, you may prefer an appeal to the Chairman within 30 days of the date of receipt of this order vide Rule 44 of the MPEDA Rules." 38. Therefore, the bias of the third respondent which was latent in the show cause notice became patent in the order of cancellation of the registration certificate. The cancellation order quotes the show cause notice and is a non-speaking one and is virtually no order in the eye of law. Since the same order is an appealable one it is incumbent on the third respondent to give adequate reasons. 39. On the question whether the entire proceeding for cancellation of registration initiated by the show cause notice and culminating in the order of cancellation is vitiated by bias we can appropriately refer to the succinct formulation of the principle by Lord Reid in Ridge v. Baldwin and others (1964 A.C. 40). The Learned Law Lord, while dealing with several concepts, which are not susceptible of exact definition, held that by fair procedure one would mean that what a reasonable man would regard as fair in the particular circumstances (see page 65 of the Report). If we follow the aforesaid test, we are bound to hold that the procedure of cancellation registration in this case was not a fair one.40. On the requirement of disclosing reasons by a quasi- judicial authority in support of its order, this Court has recently delivered a judgment in the case of Kranti Associates Pvt. Ltd. & Anr. v. Sh. Masood Ahmed Khan & Others on 8th September 2010.41. In M/s Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.b. A quasi-judicial authority must record reasons in support of its conclusions.c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.g. Reasons facilitate the process of judicial review by superior Courts.h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.j. Insistence on reason is a requirement for both judicial accountability and transparency.k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".42. In the instant case the appellate order contains reasons. However, absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order. 43. In Institute of Chartered Accountants of India v. L.K. Ratna and others,(1986) 4 SCC 537 , it has been held: "......after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding." (See para 18, pages 553-554 of the report)
### Response:
1
### Explanation:
39. On the question whether the entire proceeding for cancellation of registration initiated by the show cause notice and culminating in the order of cancellation is vitiated by bias we can appropriately refer to the succinct formulation of the principle by Lord Reid inRidge v. Baldwin and others (1964 A.C.40). The Learned Law Lord, while dealing with several concepts, which are not susceptible of exact definition, held that by fair procedure one would mean that what a reasonable man would regard as fair in the particular circumstances (see page 65 of the Report). If we follow the aforesaid test, we are bound to hold that the procedure of cancellation registration in this case was not a fair one.40. On the requirement of disclosing reasons by a quasijudicial authority in support of its order, this Court has recently delivered a judgment in the case of Kranti Associates Pvt. Ltd. & Anr. v. Sh. Masood Ahmed Khan & Others on 8th September 2010.41. In M/s Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.b. Aauthority must record reasons in support of its conclusions.c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial andor even administrative power.e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial,and even by administrative bodies.g. Reasons facilitate the process of judicial review by superior Courts.h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.i. Judicial or evenopinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.j. Insistence on reason is a requirement for both judicial accountability and transparency.k. If a Judge or aauthority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons orSince the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anyavs. University of Oxford, 2001 EWCA Civwherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".42. In the instant case the appellate order contains reasons. However, absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order.
|
Antrix Corp. Ltd Vs. Devas Multimedia P. Ltd | would be governed by the 1996 Act and called upon Devas to appoint its nominee Arbitrator under the said provisions. As Devas did not respond to the Petitioners letter dated 30th July, 2011, the Petitioner filed the application under Section 11(6) of the 1996 Act.30. In the instant case, the Arbitration Agreement provides that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL. Rightly or wrongly, Devas made a request for arbitration to the ICC International Court of Arbitration on 29th June, 2011, in accordance with the aforesaid Agreement and one Mr. V.V. Veedar was appointed by Devas as its nominee Arbitrator. By the letter written by the International Chamber of Commerce on 5th July, 2011, the Petitioner was required to appoint its nominee Arbitrator, but it chose not to do so and instead made an application under Section 11(6) of the 1996 Act and also indicated that it had appointed Mrs. Justice Sujata V. Manohar, as its Arbitrator in terms of Article 20(9) of the Agreement.31. The matter is not as complex as it seems and in our view, once the Arbitration Agreement had been invoked by Devas and a nominee Arbitrator had also been appointed by it, the Arbitration Agreement could not have been invoked for a second time by the Petitioner, which was fully aware of the appointment made by the Respondent. It would lead to an anomalous state of affairs if the appointment of an Arbitrator once made, could be questioned in a subsequent proceeding initiated by the other party also for the appointment of an Arbitrator. In our view, while the Petitioner was certainly entitled to challenge the appointment of the Arbitrator at the instance of Devas, it could not do so by way of an independent proceeding under Section 11(6) of the 1996 Act. While power has been vested in the Chief Justice to appoint an Arbitrator under Section 11(6) of the 1996 Act, such appointment can be questioned under Section 13 thereof. In a proceeding under Section 11 of the 1996 Act, the Chief Justice cannot replace one Arbitrator already appointed in exercise of the Arbitration Agreement. It may be noted that in case of Gesellschaft Fur Biotechnologische Forschun GMBH Vs. Kopran Laboratories Ltd. & Anr. [(2004) 13 SCC 630], a learned Single Judge of the Bombay High Court, while hearing an appeal under Section 8 of the 1996 Act, directed the claims/disputes of the parties to be referred to the sole arbitration of a retired Chief Justice with the venue at Bombay, despite the fact that under the Arbitration Agreement it had been indicated that any disputes, controversy or claim arising out of or in relation to the Agreement, would be settled by arbitration in accordance with the Rules of Reconciliation of the International Chamber of Commerce, Paris, with the venue of arbitration in Bombay, Maharashtra, India. This Court held that when there was a deviation from the methodology for appointment of an Arbitrator, it was incumbent on the part of the Chief Justice to assign reasons for such departure.32. Sub-Section (6) of Section 11 of the 1996 Act, quite categorically provides that where the parties fail to act in terms of a procedure agreed upon by them, the provisions of Sub-Section (6) may be invoked by any of the parties. Where in terms of the Agreement, the arbitration clause has already been invoked by one of the parties thereto under the I.C.C. Rules, the provisions of Sub-section (6) cannot be invoked again, and, in case the other party is dissatisfied or aggrieved by the appointment of an Arbitrator in terms of the Agreement, his/its remedy would be by way of a petition under Section 13, and, thereafter, under Section 34 of the 1996 Act.33. The law is well settled that where an Arbitrator had already been appointed and intimation thereof had been conveyed to the other party, a separate application for appointment of an Arbitrator is not maintainable. Once the power has been exercised under the Arbitration Agreement, there is no power left to, once again, refer the same disputes to arbitration under Section 11 of the 1996 Act, unless the order closing the proceedings is subsequently set aside. In Som Datt Builders Pvt. Ltd. Vs. State of Punjab [2006 (3) RAJ 144 (P&H)], the Division Bench of the Punjab & Haryana High Court held, and we agree with the finding, that when the Arbitral Tribunal is already seized of the disputes between the parties to the Arbitration Agreement, constitution of another Arbitral Tribunal in respect of those same issues which are already pending before the Arbitral Tribunal for adjudication, would be without jurisdiction.34. In view of the language of Article 20 of the Arbitration Agreement which provided that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL, Devas was entitled to invoke the Rules of Arbitration of the ICC for the conduct of the arbitration proceedings. Article 19 of the Agreement provided that the rights and responsibilities of the parties thereunder would be subject to and construed in accordance with the laws of India. There is, therefore, a clear distinction between the law which was to operate as the governing law of the Agreement and the law which was to govern the arbitration proceedings. Once the provisions of the ICC Rules of Arbitration had been invoked by Devas, the proceedings initiated thereunder could not be interfered with in a proceeding under Section 11 of the 1996 Act. The invocation of the ICC Rules would, of course, be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Where the parties had agreed that the procedure for the arbitration would be governed by the ICC Rules, the same would necessarily include the appointment of an Arbitral Tribunal in terms of the Arbitration Agreement and the said Rules. | 0[ds]29. In the instant case, Devas, without responding to the Petitioners letter written in terms of Article 20 of the Arbitration Agreement, unilaterally addressed a Request for Arbitration to the ICC International Court of Arbitration for resolution of the disputes arising under the Agreement and also appointed its nominee Arbitrator. On the other hand, the Petitioner appointed its nominee Arbitrator with the caveat that the arbitration would be governed by the 1996 Act and called upon Devas to appoint its nominee Arbitrator under the said provisions. As Devas did not respond to the Petitioners letter dated 30th July, 2011, the Petitioner filed the application under Section 11(6) of the 1996 Act.30. In the instant case, the Arbitration Agreement provides that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL. Rightly or wrongly, Devas made a request for arbitration to the ICC International Court of Arbitration on 29th June, 2011, in accordance with the aforesaid Agreement and one Mr. V.V. Veedar was appointed by Devas as its nominee Arbitrator. By the letter written by the International Chamber of Commerce on 5th July, 2011, the Petitioner was required to appoint its nominee Arbitrator, but it chose not to do so and instead made an application under Section 11(6) of the 1996 Act and also indicated that it had appointed Mrs. Justice Sujata V. Manohar, as its Arbitrator in terms of Article 20(9) of the Agreement.31. The matter is not as complex as it seems and in our view, once the Arbitration Agreement had been invoked by Devas and a nominee Arbitrator had also been appointed by it, the Arbitration Agreement could not have been invoked for a second time by the Petitioner, which was fully aware of the appointment made by the Respondent. It would lead to an anomalous state of affairs if the appointment of an Arbitrator once made, could be questioned in a subsequent proceeding initiated by the other party also for the appointment of an Arbitrator. In our view, while the Petitioner was certainly entitled to challenge the appointment of the Arbitrator at the instance of Devas, it could not do so by way of an independent proceeding under Section 11(6) of the 1996 Act. While power has been vested in the Chief Justice to appoint an Arbitrator under Section 11(6) of the 1996 Act, such appointment can be questioned under Section 13 thereof. In a proceeding under Section 11 of the 1996 Act, the Chief Justice cannot replace one Arbitrator already appointed in exercise of the Arbitration Agreement. It may be noted that in case of Gesellschaft Fur Biotechnologische Forschun GMBH Vs. Kopran Laboratories Ltd. & Anr. [(2004) 13 SCC 630], a learned Single Judge of the Bombay High Court, while hearing an appeal under Section 8 of the 1996 Act, directed the claims/disputes of the parties to be referred to the sole arbitration of a retired Chief Justice with the venue at Bombay, despite the fact that under the Arbitration Agreement it had been indicated that any disputes, controversy or claim arising out of or in relation to the Agreement, would be settled by arbitration in accordance with the Rules of Reconciliation of the International Chamber of Commerce, Paris, with the venue of arbitration in Bombay, Maharashtra, India. This Court held that when there was a deviation from the methodology for appointment of an Arbitrator, it was incumbent on the part of the Chief Justice to assign reasons for such departure.32. Sub-Section (6) of Section 11 of the 1996 Act, quite categorically provides that where the parties fail to act in terms of a procedure agreed upon by them, the provisions of Sub-Section (6) may be invoked by any of the parties. Where in terms of the Agreement, the arbitration clause has already been invoked by one of the parties thereto under the I.C.C. Rules, the provisions of Sub-section (6) cannot be invoked again, and, in case the other party is dissatisfied or aggrieved by the appointment of an Arbitrator in terms of the Agreement, his/its remedy would be by way of a petition under Section 13, and, thereafter, under Section 34 of the 1996 Act.33. The law is well settled that where an Arbitrator had already been appointed and intimation thereof had been conveyed to the other party, a separate application for appointment of an Arbitrator is not maintainable. Once the power has been exercised under the Arbitration Agreement, there is no power left to, once again, refer the same disputes to arbitration under Section 11 of the 1996 Act, unless the order closing the proceedings is subsequently set aside. In Som Datt Builders Pvt. Ltd. Vs. State of Punjab [2006 (3) RAJ 144 (P&H)], the Division Bench of the Punjab & Haryana High Court held, and we agree with the finding, that when the Arbitral Tribunal is already seized of the disputes between the parties to the Arbitration Agreement, constitution of another Arbitral Tribunal in respect of those same issues which are already pending before the Arbitral Tribunal for adjudication, would be without jurisdiction.34. In view of the language of Article 20 of the Arbitration Agreement which provided that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL, Devas was entitled to invoke the Rules of Arbitration of the ICC for the conduct of the arbitration proceedings. Article 19 of the Agreement provided that the rights and responsibilities of the parties thereunder would be subject to and construed in accordance with the laws of India. There is, therefore, a clear distinction between the law which was to operate as the governing law of the Agreement and the law which was to govern the arbitration proceedings. Once the provisions of the ICC Rules of Arbitration had been invoked by Devas, the proceedings initiated thereunder could not be interfered with in a proceeding under Section 11 of the 1996 Act. The invocation of the ICC Rules would, of course, be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Where the parties had agreed that the procedure for the arbitration would be governed by the ICC Rules, the same would necessarily include the appointment of an Arbitral Tribunal in terms of the Arbitration Agreement and the said Rules. | 0 | 5,781 | 1,198 | ### 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:
would be governed by the 1996 Act and called upon Devas to appoint its nominee Arbitrator under the said provisions. As Devas did not respond to the Petitioners letter dated 30th July, 2011, the Petitioner filed the application under Section 11(6) of the 1996 Act.30. In the instant case, the Arbitration Agreement provides that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL. Rightly or wrongly, Devas made a request for arbitration to the ICC International Court of Arbitration on 29th June, 2011, in accordance with the aforesaid Agreement and one Mr. V.V. Veedar was appointed by Devas as its nominee Arbitrator. By the letter written by the International Chamber of Commerce on 5th July, 2011, the Petitioner was required to appoint its nominee Arbitrator, but it chose not to do so and instead made an application under Section 11(6) of the 1996 Act and also indicated that it had appointed Mrs. Justice Sujata V. Manohar, as its Arbitrator in terms of Article 20(9) of the Agreement.31. The matter is not as complex as it seems and in our view, once the Arbitration Agreement had been invoked by Devas and a nominee Arbitrator had also been appointed by it, the Arbitration Agreement could not have been invoked for a second time by the Petitioner, which was fully aware of the appointment made by the Respondent. It would lead to an anomalous state of affairs if the appointment of an Arbitrator once made, could be questioned in a subsequent proceeding initiated by the other party also for the appointment of an Arbitrator. In our view, while the Petitioner was certainly entitled to challenge the appointment of the Arbitrator at the instance of Devas, it could not do so by way of an independent proceeding under Section 11(6) of the 1996 Act. While power has been vested in the Chief Justice to appoint an Arbitrator under Section 11(6) of the 1996 Act, such appointment can be questioned under Section 13 thereof. In a proceeding under Section 11 of the 1996 Act, the Chief Justice cannot replace one Arbitrator already appointed in exercise of the Arbitration Agreement. It may be noted that in case of Gesellschaft Fur Biotechnologische Forschun GMBH Vs. Kopran Laboratories Ltd. & Anr. [(2004) 13 SCC 630], a learned Single Judge of the Bombay High Court, while hearing an appeal under Section 8 of the 1996 Act, directed the claims/disputes of the parties to be referred to the sole arbitration of a retired Chief Justice with the venue at Bombay, despite the fact that under the Arbitration Agreement it had been indicated that any disputes, controversy or claim arising out of or in relation to the Agreement, would be settled by arbitration in accordance with the Rules of Reconciliation of the International Chamber of Commerce, Paris, with the venue of arbitration in Bombay, Maharashtra, India. This Court held that when there was a deviation from the methodology for appointment of an Arbitrator, it was incumbent on the part of the Chief Justice to assign reasons for such departure.32. Sub-Section (6) of Section 11 of the 1996 Act, quite categorically provides that where the parties fail to act in terms of a procedure agreed upon by them, the provisions of Sub-Section (6) may be invoked by any of the parties. Where in terms of the Agreement, the arbitration clause has already been invoked by one of the parties thereto under the I.C.C. Rules, the provisions of Sub-section (6) cannot be invoked again, and, in case the other party is dissatisfied or aggrieved by the appointment of an Arbitrator in terms of the Agreement, his/its remedy would be by way of a petition under Section 13, and, thereafter, under Section 34 of the 1996 Act.33. The law is well settled that where an Arbitrator had already been appointed and intimation thereof had been conveyed to the other party, a separate application for appointment of an Arbitrator is not maintainable. Once the power has been exercised under the Arbitration Agreement, there is no power left to, once again, refer the same disputes to arbitration under Section 11 of the 1996 Act, unless the order closing the proceedings is subsequently set aside. In Som Datt Builders Pvt. Ltd. Vs. State of Punjab [2006 (3) RAJ 144 (P&H)], the Division Bench of the Punjab & Haryana High Court held, and we agree with the finding, that when the Arbitral Tribunal is already seized of the disputes between the parties to the Arbitration Agreement, constitution of another Arbitral Tribunal in respect of those same issues which are already pending before the Arbitral Tribunal for adjudication, would be without jurisdiction.34. In view of the language of Article 20 of the Arbitration Agreement which provided that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL, Devas was entitled to invoke the Rules of Arbitration of the ICC for the conduct of the arbitration proceedings. Article 19 of the Agreement provided that the rights and responsibilities of the parties thereunder would be subject to and construed in accordance with the laws of India. There is, therefore, a clear distinction between the law which was to operate as the governing law of the Agreement and the law which was to govern the arbitration proceedings. Once the provisions of the ICC Rules of Arbitration had been invoked by Devas, the proceedings initiated thereunder could not be interfered with in a proceeding under Section 11 of the 1996 Act. The invocation of the ICC Rules would, of course, be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Where the parties had agreed that the procedure for the arbitration would be governed by the ICC Rules, the same would necessarily include the appointment of an Arbitral Tribunal in terms of the Arbitration Agreement and the said Rules.
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would be governed by the 1996 Act and called upon Devas to appoint its nominee Arbitrator under the said provisions. As Devas did not respond to the Petitioners letter dated 30th July, 2011, the Petitioner filed the application under Section 11(6) of the 1996 Act.30. In the instant case, the Arbitration Agreement provides that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL. Rightly or wrongly, Devas made a request for arbitration to the ICC International Court of Arbitration on 29th June, 2011, in accordance with the aforesaid Agreement and one Mr. V.V. Veedar was appointed by Devas as its nominee Arbitrator. By the letter written by the International Chamber of Commerce on 5th July, 2011, the Petitioner was required to appoint its nominee Arbitrator, but it chose not to do so and instead made an application under Section 11(6) of the 1996 Act and also indicated that it had appointed Mrs. Justice Sujata V. Manohar, as its Arbitrator in terms of Article 20(9) of the Agreement.31. The matter is not as complex as it seems and in our view, once the Arbitration Agreement had been invoked by Devas and a nominee Arbitrator had also been appointed by it, the Arbitration Agreement could not have been invoked for a second time by the Petitioner, which was fully aware of the appointment made by the Respondent. It would lead to an anomalous state of affairs if the appointment of an Arbitrator once made, could be questioned in a subsequent proceeding initiated by the other party also for the appointment of an Arbitrator. In our view, while the Petitioner was certainly entitled to challenge the appointment of the Arbitrator at the instance of Devas, it could not do so by way of an independent proceeding under Section 11(6) of the 1996 Act. While power has been vested in the Chief Justice to appoint an Arbitrator under Section 11(6) of the 1996 Act, such appointment can be questioned under Section 13 thereof. In a proceeding under Section 11 of the 1996 Act, the Chief Justice cannot replace one Arbitrator already appointed in exercise of the Arbitration Agreement. It may be noted that in case of Gesellschaft Fur Biotechnologische Forschun GMBH Vs. Kopran Laboratories Ltd. & Anr. [(2004) 13 SCC 630], a learned Single Judge of the Bombay High Court, while hearing an appeal under Section 8 of the 1996 Act, directed the claims/disputes of the parties to be referred to the sole arbitration of a retired Chief Justice with the venue at Bombay, despite the fact that under the Arbitration Agreement it had been indicated that any disputes, controversy or claim arising out of or in relation to the Agreement, would be settled by arbitration in accordance with the Rules of Reconciliation of the International Chamber of Commerce, Paris, with the venue of arbitration in Bombay, Maharashtra, India. This Court held that when there was a deviation from the methodology for appointment of an Arbitrator, it was incumbent on the part of the Chief Justice to assign reasons for such departure.32. Sub-Section (6) of Section 11 of the 1996 Act, quite categorically provides that where the parties fail to act in terms of a procedure agreed upon by them, the provisions of Sub-Section (6) may be invoked by any of the parties. Where in terms of the Agreement, the arbitration clause has already been invoked by one of the parties thereto under the I.C.C. Rules, the provisions of Sub-section (6) cannot be invoked again, and, in case the other party is dissatisfied or aggrieved by the appointment of an Arbitrator in terms of the Agreement, his/its remedy would be by way of a petition under Section 13, and, thereafter, under Section 34 of the 1996 Act.33. The law is well settled that where an Arbitrator had already been appointed and intimation thereof had been conveyed to the other party, a separate application for appointment of an Arbitrator is not maintainable. Once the power has been exercised under the Arbitration Agreement, there is no power left to, once again, refer the same disputes to arbitration under Section 11 of the 1996 Act, unless the order closing the proceedings is subsequently set aside. In Som Datt Builders Pvt. Ltd. Vs. State of Punjab [2006 (3) RAJ 144 (P&H)], the Division Bench of the Punjab & Haryana High Court held, and we agree with the finding, that when the Arbitral Tribunal is already seized of the disputes between the parties to the Arbitration Agreement, constitution of another Arbitral Tribunal in respect of those same issues which are already pending before the Arbitral Tribunal for adjudication, would be without jurisdiction.34. In view of the language of Article 20 of the Arbitration Agreement which provided that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL, Devas was entitled to invoke the Rules of Arbitration of the ICC for the conduct of the arbitration proceedings. Article 19 of the Agreement provided that the rights and responsibilities of the parties thereunder would be subject to and construed in accordance with the laws of India. There is, therefore, a clear distinction between the law which was to operate as the governing law of the Agreement and the law which was to govern the arbitration proceedings. Once the provisions of the ICC Rules of Arbitration had been invoked by Devas, the proceedings initiated thereunder could not be interfered with in a proceeding under Section 11 of the 1996 Act. The invocation of the ICC Rules would, of course, be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Where the parties had agreed that the procedure for the arbitration would be governed by the ICC Rules, the same would necessarily include the appointment of an Arbitral Tribunal in terms of the Arbitration Agreement and the said Rules.
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Haryana State Electricity Board Vs. State of P.H. & Others | service, seniority shall be determined according to their seniority in that service if they are confirmed on the same date. 13. For all these reasons, we have no manner of doubt that according to rule 7-A the seniority of Pritam Singh had to be fixed according to his relative seniority in Class II. It is common ground that he was a senior to all the other respondents in that class and, therefore, ordinarily and in normal circumstances there was no reason why in the 1966 list he should not have been shown as senior to the respondents in the list of the Assistant Engineers Class. I. 14. There are still two hurdles which Pritam Singh has to cross before a proper writ and direction can be issued under Article 26 of the Constitution to give him the seniority according to his position in Class II leading to consequential promotions or demotions with regard to the respondents in the matter of their higher appointments which they are holding now. The first is the contention raised on behalf of the appellant that it was under the advice of the Public Service Commission that he was superseded by the respondents for promotion as officiating Assistant Engineer Class I and, therefore, according to the main proviso in rule 7-A, those members who were promoted earlier to the higher class were to retain their seniority over him. The High Court read this part of the proviso in a way which does not support that contention. According to the High Court it is only when a member or subordinate is promoted substantively earlier than another member or subordinate who is senior to him and who has been passed over on the score of the inefficiency that a member or subordinate so promoted, shall take the rank in the higher class. All the respondents other than Pritam Singh were certainly promoted in an officiating capacity as Assistant Engineers Class I before Pritam Singh was promoted as such but they were not promoted in a substantive capacity .The proviso refers only to promotion in a substantive capacity which took place with effect from the same date of all the respondents including Pritam Singh, viz. September 1, 1956.The decision of the High Court appears to be correct on this point and we do not consider that the case of Pritam Singh was covered by the aforesaid part of the proviso. His being passed over for promotion in an officiating capacity, therefore, cannot be a hurdle to his taking seniority above the others when they were all confirmed on the same date and when he was admittedly senior to them in Class II. 15. The second hurdle seems to be more formidable. It is true as would be apparent from the facts already stated that Pritam Singh made representations against his supersession in July, 1956 for the first time and later on in May, 1957 and July 1958. But all these representations were rejected. After he was promoted and appointed as officiating Executive Engineer in June, 1959, he made another representation on 13-2-1959 which was also rejected. Thereafter, various Respondents out of Respondents Nos. 3 to 17 and Respondent No 20 were confirmed as Executive Engineers on different dates from 1961 to 1964. On May, 11, 1965, Respondent No. 16 and Pritam Singh himself were ordered to be confirmed w.e.f. January 1, 1965. Only Respondent No. 15 was confirmed by an order dated August 1, 1968 but with effect from December 17, 1963. Pritam Singh took no steps by making any effective representation whatsoever or by filing any petition in the High Court to challenge the confirmation of those respondents who were confirmed by orders made on the various dates from 1961 to 1964, the last order being of April, 22, 1964. The question is whether he would be justified in getting any relief and disturbing the existing state of affairs with regard to those Respondents in respect of whom the orders of confirmation as Executive Engineers were made upto the end of April, 1964. The High Court was not oblivious of the situation but felt that Pritam Singh was justified in thinking that when he would be confirmed the order would take effect from an earlier date as was done in the case of the Respondents who were confirmed in 1961. It seems to us that the High Court did not keep in mind the way these questions were settled in S. G. Jaisinghani v. Union of India. 1967 (2) SCR 703 = (AIR 1967 SC 1427 ). It was found therein that promotees from Class II Grade III to Class I Grade II of the Income-Tax Service were in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards.. These promotees had been illegally promoted and the appellant in that case was held entitled to writ in the nature of mandamus that his seniority and that of the other officers similarly placed like him should be readjusted and a fresh seniority list be prepared in accordance with law keeping in view the quota rule. It was added: We, however, wish to make it clear that this order will not affect such Class II officers who have been appointed permanently as Assistant Commissioners of Income-Tax. But this order will apply to all other officers including those who have been appointed Assistant Commissioners of Income Tax provisionally pursuant to the orders of the High Court. 16. Therefore, even though under the rules, Pritam Singh is entitled to be declared senior to the Respondents, no direction or writ in the exercise of discretion should be as so issued as to disturb the seniority of those Respondents who were confirmed as Executive Engineers by orders made up to the end of April 1964. As regards Respondents Nos. 15 and 16 the orders of their confirmation as Executive Engineers were either made on the same date as in respect of Pritam Sing or subsequent to him in 1968. | 1[ds]9. In our judgment, the question of seniority between Pritam Singh and the Respondents had to be determined with reference to rulewhich was applicable to them as they were substantively appointed to a post in the service after November 17, 1948. Ruledeals with those who have been confirmed in a particular class and those who have not been confirmed. Clauses Firstly relates to those who have been confirmed in a particular class. The proviso appearing in that clause makes it clear that where two or more members are confirmed on the same date, they shall retain the order in which they stood with respect to each other immediately prior to confirmation. Clauses Secondly, deals with members of the service who have not been confirmed. In the present case we are not concerned with that clause and nothing more need be said about it. The first main proviso to both the clauses cannot be confined only to clause Secondly, but it is also applicable to Clause Firstly. The proviso explains what is meant by the words retain the order in which they stood with respect to each other immediately prior to confirmation. In clear terms, it provides that whenever members of the Service as well as holders of subordinate posts in the electricity branch are promoted their seniority in the same class has to take rank according to the relative seniority in the Class from which they were promoted. In other words, if a member of the service from Class II is promoted to Class I his seniority will be determined according to his position in the seniority list of Class II. The only exception contained in the proviso is that if anyone has been substantively promoted earlier than another who is senior to him but has been passed over on the ground of inefficiency, the member who has been promoted first shall take the rank in the higher class above the other member who has been passed over on the score of inefficiency.incorporates the general principle that promotion to posts on a higher scale shall be made on10. In order to find out how the authorities concerned have been dealing with the question of seniority, we got a Chart prepared relating to all the respondents containing the various relevant dates. It appears therefrom that it was not the officiating date of appointment in Class I of the officers by which seniority was shown in the final seniority list but it was the date of their confirmation in Class II from which they were promoted and which determined their seniority in Class I. Starting with R. D. Gupta, Respondent No. 3, he was confirmed as Assistant Engineer Class II on May 11, 1956 w.e.f. November 19, 1952. Respondent No. 4 T. S. Virdi was also confirmed on the same date as well as Respondent No. 5 although both of them were confirmed w.e.f. the 1st March, 1955. Gupta was promoted as officiating Assistant Engineer Class I on August 13, 1953, Viridi on August 10, 1953 and Malik on August 9, 1953. In other words, Malik was given the officiating appointment in Class I prior to both Virdi and Gupta and Virdi was appointed in an officiating capacity prior to Gupta. All these three Respondents were confirmed w.e.f. September 1, 1956 as Assistant Engineers Class I. Gupta was shown in the seniority list as senior to both Virdi and Malik. This could be so only if the date of his confirmation in Class II was to be taken into consideration and not the date of his appointment as officiating Assistant Engineer Class I. Indeed owing to that seniority, Gupta was confirmed as Executive Engineer on June 13, 1961 w.e.f. February 7, 1958 whereas Virdi and Malik were confirmed w.e.f. September 18, 1960 and November4, 1960 respectively as Executive Engineers. There are many other instances in this Chart which appear to indicate that it was the date of confirmation in class II by which seniority was determined and not the date of officiating appointment as Assistant Engineer Class I. Shri S. V. Gupte very fairly and properly agreed that the interpretation of Rulewhich he was supporting on behalf of the appellant could not be supported consistently according to what had been done by the predecessors of the appellant as also appellant in certain cases13. For all these reasons, we have no manner of doubt that according to rulethe seniority of Pritam Singh had to be fixed according to his relative seniority in Class II. It is common ground that he was a senior to all the other respondents in that class and, therefore, ordinarily and in normal circumstances there was no reason why in the 1966 list he should not have been shown as senior to the respondents in the list of the Assistant Engineers Class. I14. There are still two hurdles which Pritam Singh has to cross before a proper writ and direction can be issued under Article 26 of the Constitution to give him the seniority according to his position in Class II leading to consequential promotions or demotions with regard to the respondents in the matter of their higher appointments which they are holding now.The first is the contention raised on behalf of the appellant that it was under the advice of the Public Service Commission that he was superseded by the respondents for promotion as officiating Assistant Engineer Class I and, therefore, according to the main proviso in rule, those members who were promoted earlier to the higher class were to retain their seniority over him.The High Court read this part of the proviso in a way which does not support that contention. According to the High Court it is only when a member or subordinate is promoted substantively earlier than another member or subordinate who is senior to him and who has been passed over on the score of the inefficiency that a member or subordinate so promoted, shall take the rank in the higher class. All the respondents other than Pritam Singh were certainly promoted in an officiating capacity as Assistant Engineers Class I before Pritam Singh was promoted as such but they were not promoted in a substantive capacity .The proviso refers only to promotion in a substantive capacity which took place with effect from the same date of all the respondents including Pritam Singh, viz. September 1, 1956.The decision of the High Court appears to be correct on this point and we do not consider that the case of Pritam Singh was covered by the aforesaid part of the proviso. His being passed over for promotion in an officiating capacity, therefore, cannot be a hurdle to his taking seniority above the others when they were all confirmed on the same date and when he was admittedly senior to them in Class II15. The second hurdle seems to be more formidable. It is true as would be apparent from the facts already stated that Pritam Singh made representations against his supersession in July, 1956 for the first time and later on in May, 1957 and July 1958. But all these representations were rejected. After he was promoted and appointed as officiating Executive Engineer in June, 1959, he made another representation on9 which was also rejected. Thereafter, various Respondents out of Respondents Nos. 3 to 17 and Respondent No 20 were confirmed as Executive Engineers on different dates from 1961 to 1964. On May, 11, 1965, Respondent No. 16 and Pritam Singh himself were ordered to be confirmed w.e.f. January 1, 1965. Only Respondent No. 15 was confirmed by an order dated August 1, 1968 but with effect from December 17, 1963. Pritam Singh took no steps by making any effective representation whatsoever or by filing any petition in the High Court to challenge the confirmation of those respondents who were confirmed by orders made on the various dates from 1961 to 1964, the last order being of April, 22, 1964. The question is whether he would be justified in getting any relief and disturbing the existing state of affairs with regard to those Respondents in respect of whom the orders of confirmation as Executive Engineers were made upto the end of April, 1964. The High Court was not oblivious of the situation but felt that Pritam Singh was justified in thinking that when he would be confirmed the order would take effect from an earlier date as was done in the case of the Respondents who were confirmed in 1961. It seems to us that the High Court did not keep in mind the way these questions were settled in S. G. Jaisinghani v. Union of India. 1967 (2) SCR 703 = (AIR 1967 SC 1427 )16. Therefore, even though under the rules, Pritam Singh is entitled to be declared senior to the Respondents, no direction or writ in the exercise of discretion should be as so issued as to disturb the seniority of those Respondents who were confirmed as Executive Engineers by orders made up to the end of April 1964. As regards Respondents Nos. 15 and 16 the orders of their confirmation as Executive Engineers were either made on the same date as in respect of Pritam Sing or subsequent to him in 1968. | 1 | 4,293 | 1,661 | ### 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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service, seniority shall be determined according to their seniority in that service if they are confirmed on the same date. 13. For all these reasons, we have no manner of doubt that according to rule 7-A the seniority of Pritam Singh had to be fixed according to his relative seniority in Class II. It is common ground that he was a senior to all the other respondents in that class and, therefore, ordinarily and in normal circumstances there was no reason why in the 1966 list he should not have been shown as senior to the respondents in the list of the Assistant Engineers Class. I. 14. There are still two hurdles which Pritam Singh has to cross before a proper writ and direction can be issued under Article 26 of the Constitution to give him the seniority according to his position in Class II leading to consequential promotions or demotions with regard to the respondents in the matter of their higher appointments which they are holding now. The first is the contention raised on behalf of the appellant that it was under the advice of the Public Service Commission that he was superseded by the respondents for promotion as officiating Assistant Engineer Class I and, therefore, according to the main proviso in rule 7-A, those members who were promoted earlier to the higher class were to retain their seniority over him. The High Court read this part of the proviso in a way which does not support that contention. According to the High Court it is only when a member or subordinate is promoted substantively earlier than another member or subordinate who is senior to him and who has been passed over on the score of the inefficiency that a member or subordinate so promoted, shall take the rank in the higher class. All the respondents other than Pritam Singh were certainly promoted in an officiating capacity as Assistant Engineers Class I before Pritam Singh was promoted as such but they were not promoted in a substantive capacity .The proviso refers only to promotion in a substantive capacity which took place with effect from the same date of all the respondents including Pritam Singh, viz. September 1, 1956.The decision of the High Court appears to be correct on this point and we do not consider that the case of Pritam Singh was covered by the aforesaid part of the proviso. His being passed over for promotion in an officiating capacity, therefore, cannot be a hurdle to his taking seniority above the others when they were all confirmed on the same date and when he was admittedly senior to them in Class II. 15. The second hurdle seems to be more formidable. It is true as would be apparent from the facts already stated that Pritam Singh made representations against his supersession in July, 1956 for the first time and later on in May, 1957 and July 1958. But all these representations were rejected. After he was promoted and appointed as officiating Executive Engineer in June, 1959, he made another representation on 13-2-1959 which was also rejected. Thereafter, various Respondents out of Respondents Nos. 3 to 17 and Respondent No 20 were confirmed as Executive Engineers on different dates from 1961 to 1964. On May, 11, 1965, Respondent No. 16 and Pritam Singh himself were ordered to be confirmed w.e.f. January 1, 1965. Only Respondent No. 15 was confirmed by an order dated August 1, 1968 but with effect from December 17, 1963. Pritam Singh took no steps by making any effective representation whatsoever or by filing any petition in the High Court to challenge the confirmation of those respondents who were confirmed by orders made on the various dates from 1961 to 1964, the last order being of April, 22, 1964. The question is whether he would be justified in getting any relief and disturbing the existing state of affairs with regard to those Respondents in respect of whom the orders of confirmation as Executive Engineers were made upto the end of April, 1964. The High Court was not oblivious of the situation but felt that Pritam Singh was justified in thinking that when he would be confirmed the order would take effect from an earlier date as was done in the case of the Respondents who were confirmed in 1961. It seems to us that the High Court did not keep in mind the way these questions were settled in S. G. Jaisinghani v. Union of India. 1967 (2) SCR 703 = (AIR 1967 SC 1427 ). It was found therein that promotees from Class II Grade III to Class I Grade II of the Income-Tax Service were in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards.. These promotees had been illegally promoted and the appellant in that case was held entitled to writ in the nature of mandamus that his seniority and that of the other officers similarly placed like him should be readjusted and a fresh seniority list be prepared in accordance with law keeping in view the quota rule. It was added: We, however, wish to make it clear that this order will not affect such Class II officers who have been appointed permanently as Assistant Commissioners of Income-Tax. But this order will apply to all other officers including those who have been appointed Assistant Commissioners of Income Tax provisionally pursuant to the orders of the High Court. 16. Therefore, even though under the rules, Pritam Singh is entitled to be declared senior to the Respondents, no direction or writ in the exercise of discretion should be as so issued as to disturb the seniority of those Respondents who were confirmed as Executive Engineers by orders made up to the end of April 1964. As regards Respondents Nos. 15 and 16 the orders of their confirmation as Executive Engineers were either made on the same date as in respect of Pritam Sing or subsequent to him in 1968.
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were confirmed w.e.f. September 1, 1956 as Assistant Engineers Class I. Gupta was shown in the seniority list as senior to both Virdi and Malik. This could be so only if the date of his confirmation in Class II was to be taken into consideration and not the date of his appointment as officiating Assistant Engineer Class I. Indeed owing to that seniority, Gupta was confirmed as Executive Engineer on June 13, 1961 w.e.f. February 7, 1958 whereas Virdi and Malik were confirmed w.e.f. September 18, 1960 and November4, 1960 respectively as Executive Engineers. There are many other instances in this Chart which appear to indicate that it was the date of confirmation in class II by which seniority was determined and not the date of officiating appointment as Assistant Engineer Class I. Shri S. V. Gupte very fairly and properly agreed that the interpretation of Rulewhich he was supporting on behalf of the appellant could not be supported consistently according to what had been done by the predecessors of the appellant as also appellant in certain cases13. For all these reasons, we have no manner of doubt that according to rulethe seniority of Pritam Singh had to be fixed according to his relative seniority in Class II. It is common ground that he was a senior to all the other respondents in that class and, therefore, ordinarily and in normal circumstances there was no reason why in the 1966 list he should not have been shown as senior to the respondents in the list of the Assistant Engineers Class. I14. There are still two hurdles which Pritam Singh has to cross before a proper writ and direction can be issued under Article 26 of the Constitution to give him the seniority according to his position in Class II leading to consequential promotions or demotions with regard to the respondents in the matter of their higher appointments which they are holding now.The first is the contention raised on behalf of the appellant that it was under the advice of the Public Service Commission that he was superseded by the respondents for promotion as officiating Assistant Engineer Class I and, therefore, according to the main proviso in rule, those members who were promoted earlier to the higher class were to retain their seniority over him.The High Court read this part of the proviso in a way which does not support that contention. According to the High Court it is only when a member or subordinate is promoted substantively earlier than another member or subordinate who is senior to him and who has been passed over on the score of the inefficiency that a member or subordinate so promoted, shall take the rank in the higher class. All the respondents other than Pritam Singh were certainly promoted in an officiating capacity as Assistant Engineers Class I before Pritam Singh was promoted as such but they were not promoted in a substantive capacity .The proviso refers only to promotion in a substantive capacity which took place with effect from the same date of all the respondents including Pritam Singh, viz. September 1, 1956.The decision of the High Court appears to be correct on this point and we do not consider that the case of Pritam Singh was covered by the aforesaid part of the proviso. His being passed over for promotion in an officiating capacity, therefore, cannot be a hurdle to his taking seniority above the others when they were all confirmed on the same date and when he was admittedly senior to them in Class II15. The second hurdle seems to be more formidable. It is true as would be apparent from the facts already stated that Pritam Singh made representations against his supersession in July, 1956 for the first time and later on in May, 1957 and July 1958. But all these representations were rejected. After he was promoted and appointed as officiating Executive Engineer in June, 1959, he made another representation on9 which was also rejected. Thereafter, various Respondents out of Respondents Nos. 3 to 17 and Respondent No 20 were confirmed as Executive Engineers on different dates from 1961 to 1964. On May, 11, 1965, Respondent No. 16 and Pritam Singh himself were ordered to be confirmed w.e.f. January 1, 1965. Only Respondent No. 15 was confirmed by an order dated August 1, 1968 but with effect from December 17, 1963. Pritam Singh took no steps by making any effective representation whatsoever or by filing any petition in the High Court to challenge the confirmation of those respondents who were confirmed by orders made on the various dates from 1961 to 1964, the last order being of April, 22, 1964. The question is whether he would be justified in getting any relief and disturbing the existing state of affairs with regard to those Respondents in respect of whom the orders of confirmation as Executive Engineers were made upto the end of April, 1964. The High Court was not oblivious of the situation but felt that Pritam Singh was justified in thinking that when he would be confirmed the order would take effect from an earlier date as was done in the case of the Respondents who were confirmed in 1961. It seems to us that the High Court did not keep in mind the way these questions were settled in S. G. Jaisinghani v. Union of India. 1967 (2) SCR 703 = (AIR 1967 SC 1427 )16. Therefore, even though under the rules, Pritam Singh is entitled to be declared senior to the Respondents, no direction or writ in the exercise of discretion should be as so issued as to disturb the seniority of those Respondents who were confirmed as Executive Engineers by orders made up to the end of April 1964. As regards Respondents Nos. 15 and 16 the orders of their confirmation as Executive Engineers were either made on the same date as in respect of Pritam Sing or subsequent to him in 1968.
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Link International and Another Vs. Mandya National Paper Mills Ltd | though they were aware that only the shell was to be supplied, it is clear that the appellants as agents had facilitated playing of a fraud on the respondent. For this the appellants would in law also be personally liable.5. The High Court has dismissed the appeal of the appellants. The High Court has also, on an analysis of the correspondence, come to the conclusion that the appellants had entered into the contract on behalf of the UK Company. The High Court has held that the UK Company being a foreign party, the appellants remained liable for the loss caused to the respondent. The High Court has also noted as follows: "12. There is another important circumstance which is quite indicative of how the defendants, namely, the foreign merchant being the principal and their Indian agents, namely, the contesting defendants had conspired among themselves to defraud the plaintiff. It emerges out from the facts that when the complaint dated 5-3-1980 (Ext. P-55) was lodged by the plaintiff with the foreign merchant then they under their reply dated 22-4-1980 (Ext. P-59) inter alia communicated that:Kindly note that on our Invoice No. 661/79 we charged for shell only -- not a complete roll. Normally it is not necessary to carry a complete roll as a spare as only the shell needs to be replaced whilst the spare is being reground, etc.In order to avoid misunderstandings regarding the above order on 29-3-1978, we posted to our agents, Link International, a drawing AO 18.262 on which were tinted in red the parts included in our offer and we requested that this would be forwarded to you.13. But, the manager of the contesting defendants who stood in the witness box as DW 1 has clearly admitted that it is true that we never informed that we are going to supply shell only but not the suction press roll." Thus, the High Court has also, on facts, concluded that the appellants as agents had facilitated commission of a fraud on the respondent.6. It has been strenuously argued before us that the presumption under S.230 of the Contract Act, 1872 can only apply provided the agent has entered into the contract on behalf of the principal. It is, submitted that the term "entered into", as used in S.230, must necessarily mean not just participation in the contract as an agent but the agent signing the contract for and on behalf of the principal. In support of this contention, reliance was placed upon the authorities in the cases of Union of India v. Chinoy Chablani and Co., AIR 1982 Cal 365 , Deoki Nandan and Sons v. Ram Lal Qulak and Lockwood Bros., AIR 1923 Lah 296 and V.R. Mohanakrishnan v. Chimanlal Desai and Co., AIR 1960 Mad 452 This Court was also taken through the correspondence and it was contended that the finding of the Trial Court as well as the High Court that the appellants had entered into the contract on behalf of the principal was not correct. It was submitted that the appellants had merely acted as a post office between the respondent and the UK Company. It was submitted that the contract was a direct contract between the respondent and the UK Company. It was submitted that as the appellants had not entered into the contract on behalf of the UK Company, the appellants could not be made liable as they merely acted as agent. 7. A reading of the judgments of the Trial Court and the High Court does indicate that both these courts have given an extended meaning to the term "entered into" as used in S.230 of the Contract Act. In our view, on the facts of this case, it is not at all necessary for us to decide whether or not such an extended meaning can be given to the term "entered into" in S.230 of the Indian Contract Act. It is also not necessary for us to decide whether the finding that the appellants had entered into the contract on behalf of the UK Company is correct.8. In this case, admittedly, the appellants had acted as agents. We will presume that they had not entered into the contract on behalf of the principal. The fact still remains that two courts have, on the basis of evidence, concluded that the appellants had facilitated playing of a fraud upon the respondent. If that be so, the appellants as agents would be personally liable to the respondent for whatever loss is caused to the respondent. S.233 of the Contract Act permits the respondents to recover either from the agent or from the principal or from both. Nothing could be shown to us that the findings given by the Trial Court and the High Court that the appellants had facilitated fraud are not correct. In this view of the matter, even if the reasoning given by the two courts below is not correct, the appellants would still be liable to the respondent for the loss caused to them. We clarify that we have not concluded that the reasoning of the Trial Court and the High Court is not correct. 9. The next question is what would be the liability of the appellants. It is pointed out to us that the respondent has made a claim on the following basis: Table It will be seen that the actual loss caused to them is only Rs. 5,93,820/-. The other claims are for customs duty which would have been payable if those non supplied parts had come to India. Similarly, the claim for insurance, clearing and forwarding charges and transportation charges is in respect of parts not supplied. In our view, for these items the claim could not have been allowed. Therefore, while confirming the decree passed by the Trial Court as affirmed by the High Court, we clarify that the decree will only be in a sum of Rs. 5,93,820/- with interest thereon at the rate of 18% p.a. from 22-4-1980 till date of payment. | 0[ds]7. A reading of the judgments of the Trial Court and the High Court does indicate that both these courts have given an extended meaning to the term "entered into" as used in S.230 of the Contract Act. In our view, on the facts of this case, it is not at all necessary for us to decide whetheror not such an extended meaning can be given to the term "entered into" in S.230 of the Indian ContractAct. It is also not necessary for us to decide whether the finding that the appellants had entered into the contract on behalf of the UK Company is correct.8. In this case, admittedly, the appellants had acted as agents. We will presume that they had not entered into the contract on behalf of the principal. The fact still remains that two courts have, on the basis of evidence, concluded that the appellants had facilitated playing of a fraud upon the respondent. If that be so, the appellants as agents would be personally liable to the respondent for whatever loss is caused to the respondent. S.233 of the Contract Act permits the respondents to recover either from the agent or from the principal or from both. Nothing could be shown to us that the findings given by the Trial Court and the High Court that the appellants had facilitated fraud are not correct. In this view of the matter, even if the reasoning given by the two courts below is not correct, the appellants would still be liable to the respondent for the loss caused to them. We clarify that we have not concluded that the reasoning of the Trial Court and the High Court is notwill be seen that the actual loss caused to them is only Rs.The other claims are for customs duty which would have been payable if those non supplied parts had come to India. Similarly, the claim for insurance, clearing and forwarding charges and transportation charges is in respect of parts not supplied. In our view, for these items the claim could not have been allowed. Therefore, while confirming the decree passed by the Trial Court as affirmed by the High Court, we clarify that the decree will only be in a sum of Rs. 5,93,820/with interest thereon at the rate of 18% p.a. fromtill date of payment. | 0 | 1,708 | 428 | ### 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:
though they were aware that only the shell was to be supplied, it is clear that the appellants as agents had facilitated playing of a fraud on the respondent. For this the appellants would in law also be personally liable.5. The High Court has dismissed the appeal of the appellants. The High Court has also, on an analysis of the correspondence, come to the conclusion that the appellants had entered into the contract on behalf of the UK Company. The High Court has held that the UK Company being a foreign party, the appellants remained liable for the loss caused to the respondent. The High Court has also noted as follows: "12. There is another important circumstance which is quite indicative of how the defendants, namely, the foreign merchant being the principal and their Indian agents, namely, the contesting defendants had conspired among themselves to defraud the plaintiff. It emerges out from the facts that when the complaint dated 5-3-1980 (Ext. P-55) was lodged by the plaintiff with the foreign merchant then they under their reply dated 22-4-1980 (Ext. P-59) inter alia communicated that:Kindly note that on our Invoice No. 661/79 we charged for shell only -- not a complete roll. Normally it is not necessary to carry a complete roll as a spare as only the shell needs to be replaced whilst the spare is being reground, etc.In order to avoid misunderstandings regarding the above order on 29-3-1978, we posted to our agents, Link International, a drawing AO 18.262 on which were tinted in red the parts included in our offer and we requested that this would be forwarded to you.13. But, the manager of the contesting defendants who stood in the witness box as DW 1 has clearly admitted that it is true that we never informed that we are going to supply shell only but not the suction press roll." Thus, the High Court has also, on facts, concluded that the appellants as agents had facilitated commission of a fraud on the respondent.6. It has been strenuously argued before us that the presumption under S.230 of the Contract Act, 1872 can only apply provided the agent has entered into the contract on behalf of the principal. It is, submitted that the term "entered into", as used in S.230, must necessarily mean not just participation in the contract as an agent but the agent signing the contract for and on behalf of the principal. In support of this contention, reliance was placed upon the authorities in the cases of Union of India v. Chinoy Chablani and Co., AIR 1982 Cal 365 , Deoki Nandan and Sons v. Ram Lal Qulak and Lockwood Bros., AIR 1923 Lah 296 and V.R. Mohanakrishnan v. Chimanlal Desai and Co., AIR 1960 Mad 452 This Court was also taken through the correspondence and it was contended that the finding of the Trial Court as well as the High Court that the appellants had entered into the contract on behalf of the principal was not correct. It was submitted that the appellants had merely acted as a post office between the respondent and the UK Company. It was submitted that the contract was a direct contract between the respondent and the UK Company. It was submitted that as the appellants had not entered into the contract on behalf of the UK Company, the appellants could not be made liable as they merely acted as agent. 7. A reading of the judgments of the Trial Court and the High Court does indicate that both these courts have given an extended meaning to the term "entered into" as used in S.230 of the Contract Act. In our view, on the facts of this case, it is not at all necessary for us to decide whether or not such an extended meaning can be given to the term "entered into" in S.230 of the Indian Contract Act. It is also not necessary for us to decide whether the finding that the appellants had entered into the contract on behalf of the UK Company is correct.8. In this case, admittedly, the appellants had acted as agents. We will presume that they had not entered into the contract on behalf of the principal. The fact still remains that two courts have, on the basis of evidence, concluded that the appellants had facilitated playing of a fraud upon the respondent. If that be so, the appellants as agents would be personally liable to the respondent for whatever loss is caused to the respondent. S.233 of the Contract Act permits the respondents to recover either from the agent or from the principal or from both. Nothing could be shown to us that the findings given by the Trial Court and the High Court that the appellants had facilitated fraud are not correct. In this view of the matter, even if the reasoning given by the two courts below is not correct, the appellants would still be liable to the respondent for the loss caused to them. We clarify that we have not concluded that the reasoning of the Trial Court and the High Court is not correct. 9. The next question is what would be the liability of the appellants. It is pointed out to us that the respondent has made a claim on the following basis: Table It will be seen that the actual loss caused to them is only Rs. 5,93,820/-. The other claims are for customs duty which would have been payable if those non supplied parts had come to India. Similarly, the claim for insurance, clearing and forwarding charges and transportation charges is in respect of parts not supplied. In our view, for these items the claim could not have been allowed. Therefore, while confirming the decree passed by the Trial Court as affirmed by the High Court, we clarify that the decree will only be in a sum of Rs. 5,93,820/- with interest thereon at the rate of 18% p.a. from 22-4-1980 till date of payment.
### Response:
0
### Explanation:
7. A reading of the judgments of the Trial Court and the High Court does indicate that both these courts have given an extended meaning to the term "entered into" as used in S.230 of the Contract Act. In our view, on the facts of this case, it is not at all necessary for us to decide whetheror not such an extended meaning can be given to the term "entered into" in S.230 of the Indian ContractAct. It is also not necessary for us to decide whether the finding that the appellants had entered into the contract on behalf of the UK Company is correct.8. In this case, admittedly, the appellants had acted as agents. We will presume that they had not entered into the contract on behalf of the principal. The fact still remains that two courts have, on the basis of evidence, concluded that the appellants had facilitated playing of a fraud upon the respondent. If that be so, the appellants as agents would be personally liable to the respondent for whatever loss is caused to the respondent. S.233 of the Contract Act permits the respondents to recover either from the agent or from the principal or from both. Nothing could be shown to us that the findings given by the Trial Court and the High Court that the appellants had facilitated fraud are not correct. In this view of the matter, even if the reasoning given by the two courts below is not correct, the appellants would still be liable to the respondent for the loss caused to them. We clarify that we have not concluded that the reasoning of the Trial Court and the High Court is notwill be seen that the actual loss caused to them is only Rs.The other claims are for customs duty which would have been payable if those non supplied parts had come to India. Similarly, the claim for insurance, clearing and forwarding charges and transportation charges is in respect of parts not supplied. In our view, for these items the claim could not have been allowed. Therefore, while confirming the decree passed by the Trial Court as affirmed by the High Court, we clarify that the decree will only be in a sum of Rs. 5,93,820/with interest thereon at the rate of 18% p.a. fromtill date of payment.
|
M/s Oudh Sugar Mills Ltd Vs. Union of India & Anr | Determination for 1984-85 Production) Order, 1984 and Sugar Price Determination for 1985- 86 Production) Order, 1985 and direct the opposite parties to further continue to place the petitioners sugar factory along with the other sugar factories of district Sitapur in the Uttar Pradesh east zone and may further direct the opposite parties to pay the petitioners the price of levy sugar as per the price applicable for sugar factories in the Uttar Pradesh east zone; (iii) Declare Section 3(2)(f) and Section 3 (3c) of the Essential Commodities Act, 1955 as ultra vires of Article 14 and 19(1)(g) of the Constitution of India; (iv) Issue any other writ order or direction as the nature of case may warrant; (v) Issue an ad interim order in favor of the petitioners; (vi) Award the cost of the case to the petitioners. 3. As the appellant did not press for relief on the declaration sought on the validity of Section 3(2)(f) and 3(3c) of the Essential Commodities Act, 1955, the High Court did not go into the same as such. 4. For the crushing years 1984-85 and 1985-86 the appellant sugar mill was placed in central zone for the purpose of fixation of price for the levy sugar. Mainly, it was the case of the appellant that the geographical and climatic conditions of the sugar mills in the District of Sitapur, stand on the same footing as that of other similarly placed sugar factories namely Seksaria Biswan Sugar Factory Ltd. Biswan, District Sitapur and Kisan Sahkari Chini Mills Ltd. Mahmoodabad (Awadh), District Sitapur. Inspite of the same, these two factories were included in the eastern zone, while the appellant factory was discriminated against and kept in the central zone for the purpose of fixation of levy sugar price for the crushing years 1984-85 and 1985-86. 5. Considering the submissions made on behalf of both the sides and other material placed on record, the High Court, by recording a finding that the said decision was a policy decision which permitted the Central Government to make a reasonable classification and in absence of any case made out either of arbitrariness or hostile discrimination, dismissed the writ petition filed by the appellant. 6. We have heard Sri V. Shekhar, learned senior counsel appearing on behalf for the appellant and Ms. Binu Tamta, learned counsel appearing for the respondents and have perused the impugned orders and other material placed on record. 7. The price of levy sugar is fixed for a zone with an intention to ensure to the manufacturers of the sugar in the zone a reasonable return on their overall production and investment, provided that the units are running economically and efficiently. Sugar was a controlled commodity during the relevant time, covered by the provisions of the Essential Commodities Act, 1955. Certain quantity of sugar called levy sugar, was to be supplied to the Government at a price fixed by the Government and rest of the same was levy free sugar, which could be sold in open market. The price of levy sugar was fixed based on the Control Order framed under the Essential Commodities Act. The price of levy sugar was fixed by the Central Government, having regard to various factors, including the basis of basic–cost schedules drawn and recommended by the expert body. As is evident from the stand of the respondents it appears that the survey report of Bureau of Industrial Cost & Prices (BICP) regarding the zonal pattern was not found feasible by the Government of India and the same was not implemented. The appellant has claimed parity with sugar factories at Biswan and Mahmoodabad, but such units were transferred to eastern zone on merits adjudged by the State Government and BICP and levy prices are fixed for zones and not for each factory. Zones were also not as per the revenue districts. Merely because there is difference in price in central zone and eastern zone, the appellant cannot claim, as a matter of right, its unit was to be placed in eastern zone instead of central zone during the relevant years. The impugned Orders questioned in the writ petition were based on exhaustive study by experts. The conclusions reached by the Central Government in exercise of statutory power cannot be said to be either discriminatory or unreasonable. So far as sugar units at Biswan and Mahmoodabad are concerned, they were transferred to eastern zone on the basis of merits adjudged by the State. When the revenue districts are not the limits for zonal division, the appellant cannot claim parity with other units only on the ground that all the units are situated in Sitapur district. Even with regard to appellant unit, after a lapse of time it was considered feasible to place it in eastern zone and we are informed that the same was placed in eastern zone. As the appellant has failed to demonstrate any invidious discrimination and statutory violation, merely on the ground that other units in Sitapur district were transferred to eastern zone and that the representation of the appellant was not acceded to for the relevant crushing years, is no ground for interference. We are not persuaded to accept the plea that the appellant was discriminated against by placing the appellant unit in central zone and other units in Sitapur district in the eastern zone of Uttar Pradesh. The action of the Central Government in placing the factory of the appellant at two different times in two different zones also does not constitute any discrimination. The policy decision was taken from time to time subject to satisfaction of the Government by taking into account expert reports. It is also the case of the respondents that the factory at Mahmoodabad was established at a very higher free sale sugar over the normal quota as per incentive scheme of Government announced in November, 1980. Several relevant factors were considered by the State Government before announcing policy and for fixation of zones, during the crushing years of 1984-85 and 1985-86. | 0[ds]7. The price of levy sugar is fixed for a zone with an intention to ensure to the manufacturers of the sugar in the zone a reasonable return on their overall production and investment, provided that the units are running economically and efficiently. Sugar was a controlled commodity during the relevant time, covered by the provisions of the Essential Commodities Act, 1955. Certain quantity of sugar called levy sugar, was to be supplied to the Government at a price fixed by the Government and rest of the same was levy free sugar, which could be sold in open market. The price of levy sugar was fixed based on the Control Order framed under the Essential Commodities Act. The price of levy sugar was fixed by the Central Government, having regard to various factors, including the basis of basic–cost schedules drawn and recommended by the expert body. As is evident from the stand of the respondents it appears that the survey report of Bureau of Industrial Cost & Prices (BICP) regarding the zonal pattern was not found feasible by the Government of India and the same was not implemented. The appellant has claimed parity with sugar factories at Biswan and Mahmoodabad, but such units were transferred to eastern zone on merits adjudged by the State Government and BICP and levy prices are fixed for zones and not for each factory. Zones were also not as per the revenue districts. Merely because there is difference in price in central zone and eastern zone, the appellant cannot claim, as a matter of right, its unit was to be placed in eastern zone instead of central zone during the relevant years. The impugned Orders questioned in the writ petition were based on exhaustive study by experts. The conclusions reached by the Central Government in exercise of statutory power cannot be said to be either discriminatory or unreasonable. So far as sugar units at Biswan and Mahmoodabad are concerned, they were transferred to eastern zone on the basis of merits adjudged by the State. When the revenue districts are not the limits for zonal division, the appellant cannot claim parity with other units only on the ground that all the units are situated in Sitapur district. Even with regard to appellant unit, after a lapse of time it was considered feasible to place it in eastern zone and we are informed that the same was placed in eastern zone. As the appellant has failed to demonstrate any invidious discrimination and statutory violation, merely on the ground that other units in Sitapur district were transferred to eastern zone and that the representation of the appellant was not acceded to for the relevant crushing years, is no ground for interference. We are not persuaded to accept the plea that the appellant was discriminated against by placing the appellant unit in central zone and other units in Sitapur district in the eastern zone of Uttar Pradesh. The action of the Central Government in placing the factory of the appellant at two different times in two different zones also does not constitute any discrimination. The policy decision was taken from time to time subject to satisfaction of the Government by taking into account expert reports. It is also the case of the respondents that the factory at Mahmoodabad was established at a very higher free sale sugar over the normal quota as per incentive scheme of Government announced in November, 1980. Several relevant factors were considered by the State Government before announcing policy and for fixation of zones, during the crushing years of 1984-85 and 1985-86. | 0 | 1,351 | 645 | ### 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:
Determination for 1984-85 Production) Order, 1984 and Sugar Price Determination for 1985- 86 Production) Order, 1985 and direct the opposite parties to further continue to place the petitioners sugar factory along with the other sugar factories of district Sitapur in the Uttar Pradesh east zone and may further direct the opposite parties to pay the petitioners the price of levy sugar as per the price applicable for sugar factories in the Uttar Pradesh east zone; (iii) Declare Section 3(2)(f) and Section 3 (3c) of the Essential Commodities Act, 1955 as ultra vires of Article 14 and 19(1)(g) of the Constitution of India; (iv) Issue any other writ order or direction as the nature of case may warrant; (v) Issue an ad interim order in favor of the petitioners; (vi) Award the cost of the case to the petitioners. 3. As the appellant did not press for relief on the declaration sought on the validity of Section 3(2)(f) and 3(3c) of the Essential Commodities Act, 1955, the High Court did not go into the same as such. 4. For the crushing years 1984-85 and 1985-86 the appellant sugar mill was placed in central zone for the purpose of fixation of price for the levy sugar. Mainly, it was the case of the appellant that the geographical and climatic conditions of the sugar mills in the District of Sitapur, stand on the same footing as that of other similarly placed sugar factories namely Seksaria Biswan Sugar Factory Ltd. Biswan, District Sitapur and Kisan Sahkari Chini Mills Ltd. Mahmoodabad (Awadh), District Sitapur. Inspite of the same, these two factories were included in the eastern zone, while the appellant factory was discriminated against and kept in the central zone for the purpose of fixation of levy sugar price for the crushing years 1984-85 and 1985-86. 5. Considering the submissions made on behalf of both the sides and other material placed on record, the High Court, by recording a finding that the said decision was a policy decision which permitted the Central Government to make a reasonable classification and in absence of any case made out either of arbitrariness or hostile discrimination, dismissed the writ petition filed by the appellant. 6. We have heard Sri V. Shekhar, learned senior counsel appearing on behalf for the appellant and Ms. Binu Tamta, learned counsel appearing for the respondents and have perused the impugned orders and other material placed on record. 7. The price of levy sugar is fixed for a zone with an intention to ensure to the manufacturers of the sugar in the zone a reasonable return on their overall production and investment, provided that the units are running economically and efficiently. Sugar was a controlled commodity during the relevant time, covered by the provisions of the Essential Commodities Act, 1955. Certain quantity of sugar called levy sugar, was to be supplied to the Government at a price fixed by the Government and rest of the same was levy free sugar, which could be sold in open market. The price of levy sugar was fixed based on the Control Order framed under the Essential Commodities Act. The price of levy sugar was fixed by the Central Government, having regard to various factors, including the basis of basic–cost schedules drawn and recommended by the expert body. As is evident from the stand of the respondents it appears that the survey report of Bureau of Industrial Cost & Prices (BICP) regarding the zonal pattern was not found feasible by the Government of India and the same was not implemented. The appellant has claimed parity with sugar factories at Biswan and Mahmoodabad, but such units were transferred to eastern zone on merits adjudged by the State Government and BICP and levy prices are fixed for zones and not for each factory. Zones were also not as per the revenue districts. Merely because there is difference in price in central zone and eastern zone, the appellant cannot claim, as a matter of right, its unit was to be placed in eastern zone instead of central zone during the relevant years. The impugned Orders questioned in the writ petition were based on exhaustive study by experts. The conclusions reached by the Central Government in exercise of statutory power cannot be said to be either discriminatory or unreasonable. So far as sugar units at Biswan and Mahmoodabad are concerned, they were transferred to eastern zone on the basis of merits adjudged by the State. When the revenue districts are not the limits for zonal division, the appellant cannot claim parity with other units only on the ground that all the units are situated in Sitapur district. Even with regard to appellant unit, after a lapse of time it was considered feasible to place it in eastern zone and we are informed that the same was placed in eastern zone. As the appellant has failed to demonstrate any invidious discrimination and statutory violation, merely on the ground that other units in Sitapur district were transferred to eastern zone and that the representation of the appellant was not acceded to for the relevant crushing years, is no ground for interference. We are not persuaded to accept the plea that the appellant was discriminated against by placing the appellant unit in central zone and other units in Sitapur district in the eastern zone of Uttar Pradesh. The action of the Central Government in placing the factory of the appellant at two different times in two different zones also does not constitute any discrimination. The policy decision was taken from time to time subject to satisfaction of the Government by taking into account expert reports. It is also the case of the respondents that the factory at Mahmoodabad was established at a very higher free sale sugar over the normal quota as per incentive scheme of Government announced in November, 1980. Several relevant factors were considered by the State Government before announcing policy and for fixation of zones, during the crushing years of 1984-85 and 1985-86.
### Response:
0
### Explanation:
7. The price of levy sugar is fixed for a zone with an intention to ensure to the manufacturers of the sugar in the zone a reasonable return on their overall production and investment, provided that the units are running economically and efficiently. Sugar was a controlled commodity during the relevant time, covered by the provisions of the Essential Commodities Act, 1955. Certain quantity of sugar called levy sugar, was to be supplied to the Government at a price fixed by the Government and rest of the same was levy free sugar, which could be sold in open market. The price of levy sugar was fixed based on the Control Order framed under the Essential Commodities Act. The price of levy sugar was fixed by the Central Government, having regard to various factors, including the basis of basic–cost schedules drawn and recommended by the expert body. As is evident from the stand of the respondents it appears that the survey report of Bureau of Industrial Cost & Prices (BICP) regarding the zonal pattern was not found feasible by the Government of India and the same was not implemented. The appellant has claimed parity with sugar factories at Biswan and Mahmoodabad, but such units were transferred to eastern zone on merits adjudged by the State Government and BICP and levy prices are fixed for zones and not for each factory. Zones were also not as per the revenue districts. Merely because there is difference in price in central zone and eastern zone, the appellant cannot claim, as a matter of right, its unit was to be placed in eastern zone instead of central zone during the relevant years. The impugned Orders questioned in the writ petition were based on exhaustive study by experts. The conclusions reached by the Central Government in exercise of statutory power cannot be said to be either discriminatory or unreasonable. So far as sugar units at Biswan and Mahmoodabad are concerned, they were transferred to eastern zone on the basis of merits adjudged by the State. When the revenue districts are not the limits for zonal division, the appellant cannot claim parity with other units only on the ground that all the units are situated in Sitapur district. Even with regard to appellant unit, after a lapse of time it was considered feasible to place it in eastern zone and we are informed that the same was placed in eastern zone. As the appellant has failed to demonstrate any invidious discrimination and statutory violation, merely on the ground that other units in Sitapur district were transferred to eastern zone and that the representation of the appellant was not acceded to for the relevant crushing years, is no ground for interference. We are not persuaded to accept the plea that the appellant was discriminated against by placing the appellant unit in central zone and other units in Sitapur district in the eastern zone of Uttar Pradesh. The action of the Central Government in placing the factory of the appellant at two different times in two different zones also does not constitute any discrimination. The policy decision was taken from time to time subject to satisfaction of the Government by taking into account expert reports. It is also the case of the respondents that the factory at Mahmoodabad was established at a very higher free sale sugar over the normal quota as per incentive scheme of Government announced in November, 1980. Several relevant factors were considered by the State Government before announcing policy and for fixation of zones, during the crushing years of 1984-85 and 1985-86.
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United India Insurance Co. Ltd Vs. Rakesh Kumar Arora | Skandia Insurance Company Limited vs. Kokilaben Chandravadan and others 1987 ACJ 411. 13. Mr. K.L. Nandram, learned counsel appearing on behalf of the appellant contended that keeping in view the provisions of Secs.4 and 5 of the Motor Vehicles Act 1988, the question of any willful default on the part of the owner is wholly irrelevant in this case as neither a licence could be granted in favour of minor nor in fact the driver of the vehicle was holding a valid licence. Reliance in this behalf has been placed on National Insurance Co. Ltd. vs. Kaushalaya Devi & Ors. (2008 (8) SCALE 500. No body appears on behalf of respondent No.1. 14. The learned counsel appearing on behalf of the proforma respondent-Smt. Kaushalya Devi submitted before us that she has already received the amount of compensation which had been deposited by the appellant. 15. Section 4 of the Motor Vehicles Act prohibits driving of a vehicle by any person under the age of eighteen years in any public place. Section 5 of the Act imposes a statutory responsibility upon the owners of the motor vehicles not to cause or permit any person who does not satisfy the provisions of Sec.3 or 4 to drive the vehicle. 16. The vehicle in question admittedly was being driven by Karan Arora who was aged about fifteen years. The Tribunal, as noticed hereinbefore, in our opinion, rightly held that Karan Arora did not hold any valid licence on the date of accident, namely 5.2.1997. 17. The learned single Judge as also the Division Bench of the High Court did not put unto themselves a correct question of law. They proceeded on a wrong premise that it was for the Insurance Company to prove breach of conditions of the contract of insurance. 18. The High Court did not advert to itself the provisions of Sections 4 and 5 of the Motor Vehicles Act and thus misdirected itself in law. 19. This aspect of the matter has been considered by this Court in Oriental Insurance Co. Ltd. vs. Prithvi Raj (2008 (1) SCALE 727 ) wherein upon taking into consideration a large number of decisions, it was held that the Insurance Company was not liable, stating: "In the instant case, the State Commission has categorically found that the evidence on record clearly established that the licensing authority had not issued any license, as was claimed by the Driver and the respondent. The evidence of Shri A.V.V.Rajan, Junior Assistant of the Office of the Jt.Commissioner & Secretary, RTA, Hyderabad who produced the official records clearly established that no driving license was issued to Shri Ravinder Kumar or Ravinder Singh in order to enable and legally permit him to drive a motor vehicle. There was no cross examination of the said witness. The National Commission also found that there was no defect in the finding recorded by the State Commission in this regard." 20. Yet again this court in National Insurance Co.Ltd. vs. Kaushalaya Dvi & Ors. 2008 (8) SCALE 500 took the same view stating: "The provisions relating to the necessity of having a licence to drive a vehicle is contained in Section 3,4 and 10 of the Act. As various aspects of the said provisions, vis-à-vis, the liability of the Insurance Company to reimburse the owner in respect of a claim of a third party as provided in Section 149 thereof have been dealt with in several decisions, it is not necessary for us to reiterate the same once over again. Suffice it to notice some of the precedents operating in the field.In National Insurance Co. Ltd. vs. Swaran Singh & Ors. [(2004) 3 SCC 297] this Court held:"88. Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder there to drive the vehicle falling within that class or description.89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section."It was furthermore observed:"90. We have construed and determined the scope of sub-clause (ii) of sub-section (2) of Section 149 of the Act, Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties.91. On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court."The decision in Swaran Singh, however, was held to be not applicable in relation to the owner or a passenger of a vehicle which is insured." 21. In view of the authoritative pronouncement of this Court as noticed hereinbefore, the impugned judgment cannot be sustained. It is set aside accordingly and that of the learned Tribunal is restored. However, keeping in view the admitted fact that as no stay had been granted by the High Court the appellant has deposited the entire amount which has since been withdrawn by the claimant-respondent; we direct that the appellant shall be entitled to recover the amount in question from the owner of the vehicle, namely, respondent No.1. 22. | 1[ds]On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court."The decision in Swaran Singh, however, was held to be not applicable in relation to the owner or a passenger of a vehicle which is insured.In view of the authoritative pronouncement of this Court as noticed hereinbefore, the impugned judgment cannot be sustained. It is set aside accordingly and that of the learned Tribunal is restored. However, keeping in view the admitted fact that as no stay had been granted by the High Court the appellant has deposited the entire amount which has since been withdrawn by the claimant-respondent; we direct that the appellant shall be entitled to recover the amount in question from the owner of the vehicle, namely, respondent No.1. | 1 | 1,943 | 204 | ### 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:
Skandia Insurance Company Limited vs. Kokilaben Chandravadan and others 1987 ACJ 411. 13. Mr. K.L. Nandram, learned counsel appearing on behalf of the appellant contended that keeping in view the provisions of Secs.4 and 5 of the Motor Vehicles Act 1988, the question of any willful default on the part of the owner is wholly irrelevant in this case as neither a licence could be granted in favour of minor nor in fact the driver of the vehicle was holding a valid licence. Reliance in this behalf has been placed on National Insurance Co. Ltd. vs. Kaushalaya Devi & Ors. (2008 (8) SCALE 500. No body appears on behalf of respondent No.1. 14. The learned counsel appearing on behalf of the proforma respondent-Smt. Kaushalya Devi submitted before us that she has already received the amount of compensation which had been deposited by the appellant. 15. Section 4 of the Motor Vehicles Act prohibits driving of a vehicle by any person under the age of eighteen years in any public place. Section 5 of the Act imposes a statutory responsibility upon the owners of the motor vehicles not to cause or permit any person who does not satisfy the provisions of Sec.3 or 4 to drive the vehicle. 16. The vehicle in question admittedly was being driven by Karan Arora who was aged about fifteen years. The Tribunal, as noticed hereinbefore, in our opinion, rightly held that Karan Arora did not hold any valid licence on the date of accident, namely 5.2.1997. 17. The learned single Judge as also the Division Bench of the High Court did not put unto themselves a correct question of law. They proceeded on a wrong premise that it was for the Insurance Company to prove breach of conditions of the contract of insurance. 18. The High Court did not advert to itself the provisions of Sections 4 and 5 of the Motor Vehicles Act and thus misdirected itself in law. 19. This aspect of the matter has been considered by this Court in Oriental Insurance Co. Ltd. vs. Prithvi Raj (2008 (1) SCALE 727 ) wherein upon taking into consideration a large number of decisions, it was held that the Insurance Company was not liable, stating: "In the instant case, the State Commission has categorically found that the evidence on record clearly established that the licensing authority had not issued any license, as was claimed by the Driver and the respondent. The evidence of Shri A.V.V.Rajan, Junior Assistant of the Office of the Jt.Commissioner & Secretary, RTA, Hyderabad who produced the official records clearly established that no driving license was issued to Shri Ravinder Kumar or Ravinder Singh in order to enable and legally permit him to drive a motor vehicle. There was no cross examination of the said witness. The National Commission also found that there was no defect in the finding recorded by the State Commission in this regard." 20. Yet again this court in National Insurance Co.Ltd. vs. Kaushalaya Dvi & Ors. 2008 (8) SCALE 500 took the same view stating: "The provisions relating to the necessity of having a licence to drive a vehicle is contained in Section 3,4 and 10 of the Act. As various aspects of the said provisions, vis-à-vis, the liability of the Insurance Company to reimburse the owner in respect of a claim of a third party as provided in Section 149 thereof have been dealt with in several decisions, it is not necessary for us to reiterate the same once over again. Suffice it to notice some of the precedents operating in the field.In National Insurance Co. Ltd. vs. Swaran Singh & Ors. [(2004) 3 SCC 297] this Court held:"88. Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder there to drive the vehicle falling within that class or description.89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section."It was furthermore observed:"90. We have construed and determined the scope of sub-clause (ii) of sub-section (2) of Section 149 of the Act, Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties.91. On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court."The decision in Swaran Singh, however, was held to be not applicable in relation to the owner or a passenger of a vehicle which is insured." 21. In view of the authoritative pronouncement of this Court as noticed hereinbefore, the impugned judgment cannot be sustained. It is set aside accordingly and that of the learned Tribunal is restored. However, keeping in view the admitted fact that as no stay had been granted by the High Court the appellant has deposited the entire amount which has since been withdrawn by the claimant-respondent; we direct that the appellant shall be entitled to recover the amount in question from the owner of the vehicle, namely, respondent No.1. 22.
### Response:
1
### Explanation:
On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court."The decision in Swaran Singh, however, was held to be not applicable in relation to the owner or a passenger of a vehicle which is insured.In view of the authoritative pronouncement of this Court as noticed hereinbefore, the impugned judgment cannot be sustained. It is set aside accordingly and that of the learned Tribunal is restored. However, keeping in view the admitted fact that as no stay had been granted by the High Court the appellant has deposited the entire amount which has since been withdrawn by the claimant-respondent; we direct that the appellant shall be entitled to recover the amount in question from the owner of the vehicle, namely, respondent No.1.
|
UNION OF INDIA Vs. RAKESH MALHOTRA & ANR | data in regard to the quantity of oxygen which has been allocated to NCT of Delhi since 28 April 2021. The figures which have been indicated before the Court are as follows: 28 April 2021 - 431.26 MT 29 April 2021 - 409.38 MT 30 April 2021 - 324.63 MT 1 May 2021 - 422.04 MT 2 May 2021 - 447.59 MT 3 May 2021 - 433.09 MT 4 May 2021 - 555.01 MT17. The data which has been provided by the Senior Counsel for GNCTD suggests that there has been an increase in the availability of oxygen between 2, 3 and 4 May 2021, though the quantity of 700 MT which was prescribed in the order of this Court dated 30 April 2021 is yet to be achieved. 18. Mr Piyush Goyal, learned Additional Secretary, drew the attention of the Court to the fact that there was a drop in the supply on 30 April 2021 as a result of the non-availability of a specified source of supply. 19. At the outset, it needs to be clarified that the reason why this Court has been persuaded to take up these proceedings during the pendency of the contempt proceedings in the High Court is because recourse to the contempt jurisdiction against two officers (one of whom, Ms Dawra, has tested COVID-19 positive but continues to attend to her duties while in isolation) will not in itself resolve the problem which is confronting NCT of Delhi. At this stage, when the country is faced with a serious pandemic, the effort of the Court must be to facilitate problem solving by the active engagement and cooperation of all stake holders. The High Court of Delhi has been engaging with the situation virtually on a day to day basis and has been considering diverse aspects of the matter. The contempt notice is an expression of its anguish. The issue of the availability of oxygen for NCT of Delhi has to be resolved bearing in mind the availability of oxygen in the country so that suitable arrangements are made for allocation, transportation from the point of supply and distribution within the city. The Union Government cannot be oblivious to the urgent need and demand for oxygen to meet the requirements of the NCT of Delhi. It is with that end in view that this Court by its order dated 30 April 2021 directed the allocation of 700 MT of oxygen per day to NCT of Delhi. The effort to persuade the High Court that there was in fact no such direction by this Court was an evident attempt at legal disingenuity and has been correctly rejected. The Solicitor General has not pressed such a submission in these proceedings. 20. After hearing the submissions of the learned counsel as well as of Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior Counsels, who have appeared as amicus curiae, it appears to the Court that the problem has four dimensions. 21. The first aspect of the problem is the methodology or formula which is being employed by the Union Government for computing the requirement of oxygen to the States and the Union Territories. As we have noted earlier, the formula which has been arrived at by the expert group is on the basis of a certain requirement of oxygen per minute for ICU and non-ICU beds and the patient load. It is on the basis of this formula that an allocation is being made for diverse areas of the country. In view of the experience which has been gained since the formula was adopted, it would be necessary for the Central Government to look at the formula afresh and to determine as to whether it needs to be altered having regard to the specific requirements of areas such as NCT of Delhi which have been seriously affected by the second surge of the pandemic. For instance, one aspect which needs to be underlined is that the requirement of oxygen is tagged to the number of beds, both ICU and non-ICU beds. Apart from the requirement of oxygen in a formal institutional framework, oxygen is also being made available to individuals who are unable to get beds in hospitals. Hence, it would not be adequate to make an assessment of the quantity of oxygen required based exclusively on the formula which has been used thus far by the Central Government. While we have underscored this aspect, this is certainly a matter which would need to engage the fresh attention of a body of experts who may determine whether any change or modifications are required to meet the exigencies of a rapidly deteriorating situation. 22. The second aspect of the matter is the requirement of managing the resources of oxygen so as to optimize the availability of the NCT of Delhi. This would be dependent on the efficiency of the supply chain and a proper distribution of oxygen from the supply points up to the hospitals. Another aspect under this sub-head, which has already been emphasized by the order of this Court dated 30 April 2021 is the requirement of building up proper stocks of oxygen so that in the event of an emergency, alternate buffer stocks are available to prevent deaths due to the disruption of supplies. 23. The third aspect which needs to be emphasized is the actual availability of oxygen. We are inclined to reflect further on the submission which has been urged on behalf of the Union of India by the Solicitor General that some modalities may be put into place to carry out a scientific audit of the requirement of the NCT of Delhi. Whether the audit results in revealing a higher requirement than what has been indicated in the order of this Court dated 30 April 2021 will be seen. At this stage, it has emerged before the Court that efficient administrative modalities were placed into operation by the Municipal Corporation of Greater Mumbai during the second wave of the COVID-19 pandemic. | 1[ds]19. At the outset, it needs to be clarified that the reason why this Court has been persuaded to take up these proceedings during the pendency of the contempt proceedings in the High Court is because recourse to the contempt jurisdiction against two officers (one of whom, Ms Dawra, has tested COVID-19 positive but continues to attend to her duties while in isolation) will not in itself resolve the problem which is confronting NCT of Delhi. At this stage, when the country is faced with a serious pandemic, the effort of the Court must be to facilitate problem solving by the active engagement and cooperation of all stake holders. The High Court of Delhi has been engaging with the situation virtually on a day to day basis and has been considering diverse aspects of the matter. The contempt notice is an expression of its anguish. The issue of the availability of oxygen for NCT of Delhi has to be resolved bearing in mind the availability of oxygen in the country so that suitable arrangements are made for allocation, transportation from the point of supply and distribution within the city. The Union Government cannot be oblivious to the urgent need and demand for oxygen to meet the requirements of the NCT of Delhi. It is with that end in view that this Court by its order dated 30 April 2021 directed the allocation of 700 MT of oxygen per day to NCT of Delhi. The effort to persuade the High Court that there was in fact no such direction by this Court was an evident attempt at legal disingenuity and has been correctly rejected. The Solicitor General has not pressed such a submission in these proceedings.20. After hearing the submissions of the learned counsel as well as of Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior Counsels, who have appeared as amicus curiae, it appears to the Court that the problem has four dimensions.21. The first aspect of the problem is the methodology or formula which is being employed by the Union Government for computing the requirement of oxygen to the States and the Union Territories. As we have noted earlier, the formula which has been arrived at by the expert group is on the basis of a certain requirement of oxygen per minute for ICU and non-ICU beds and the patient load. It is on the basis of this formula that an allocation is being made for diverse areas of the country. In view of the experience which has been gained since the formula was adopted, it would be necessary for the Central Government to look at the formula afresh and to determine as to whether it needs to be altered having regard to the specific requirements of areas such as NCT of Delhi which have been seriously affected by the second surge of the pandemic. For instance, one aspect which needs to be underlined is that the requirement of oxygen is tagged to the number of beds, both ICU and non-ICU beds. Apart from the requirement of oxygen in a formal institutional framework, oxygen is also being made available to individuals who are unable to get beds in hospitals. Hence, it would not be adequate to make an assessment of the quantity of oxygen required based exclusively on the formula which has been used thus far by the Central Government. While we have underscored this aspect, this is certainly a matter which would need to engage the fresh attention of a body of experts who may determine whether any change or modifications are required to meet the exigencies of a rapidly deteriorating situation.22. The second aspect of the matter is the requirement of managing the resources of oxygen so as to optimize the availability of the NCT of Delhi. This would be dependent on the efficiency of the supply chain and a proper distribution of oxygen from the supply points up to the hospitals. Another aspect under this sub-head, which has already been emphasized by the order of this Court dated 30 April 2021 is the requirement of building up proper stocks of oxygen so that in the event of an emergency, alternate buffer stocks are available to prevent deaths due to the disruption of supplies.23. The third aspect which needs to be emphasized is the actual availability of oxygen. We are inclined to reflect further on the submission which has been urged on behalf of the Union of India by the Solicitor General that some modalities may be put into place to carry out a scientific audit of the requirement of the NCT of Delhi. Whether the audit results in revealing a higher requirement than what has been indicated in the order of this Court dated 30 April 2021 will be seen. At this stage, it has emerged before the Court that efficient administrative modalities were placed into operation by the Municipal Corporation of Greater Mumbai during the second wave of the COVID-19 pandemic. | 1 | 3,579 | 879 | ### 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:
data in regard to the quantity of oxygen which has been allocated to NCT of Delhi since 28 April 2021. The figures which have been indicated before the Court are as follows: 28 April 2021 - 431.26 MT 29 April 2021 - 409.38 MT 30 April 2021 - 324.63 MT 1 May 2021 - 422.04 MT 2 May 2021 - 447.59 MT 3 May 2021 - 433.09 MT 4 May 2021 - 555.01 MT17. The data which has been provided by the Senior Counsel for GNCTD suggests that there has been an increase in the availability of oxygen between 2, 3 and 4 May 2021, though the quantity of 700 MT which was prescribed in the order of this Court dated 30 April 2021 is yet to be achieved. 18. Mr Piyush Goyal, learned Additional Secretary, drew the attention of the Court to the fact that there was a drop in the supply on 30 April 2021 as a result of the non-availability of a specified source of supply. 19. At the outset, it needs to be clarified that the reason why this Court has been persuaded to take up these proceedings during the pendency of the contempt proceedings in the High Court is because recourse to the contempt jurisdiction against two officers (one of whom, Ms Dawra, has tested COVID-19 positive but continues to attend to her duties while in isolation) will not in itself resolve the problem which is confronting NCT of Delhi. At this stage, when the country is faced with a serious pandemic, the effort of the Court must be to facilitate problem solving by the active engagement and cooperation of all stake holders. The High Court of Delhi has been engaging with the situation virtually on a day to day basis and has been considering diverse aspects of the matter. The contempt notice is an expression of its anguish. The issue of the availability of oxygen for NCT of Delhi has to be resolved bearing in mind the availability of oxygen in the country so that suitable arrangements are made for allocation, transportation from the point of supply and distribution within the city. The Union Government cannot be oblivious to the urgent need and demand for oxygen to meet the requirements of the NCT of Delhi. It is with that end in view that this Court by its order dated 30 April 2021 directed the allocation of 700 MT of oxygen per day to NCT of Delhi. The effort to persuade the High Court that there was in fact no such direction by this Court was an evident attempt at legal disingenuity and has been correctly rejected. The Solicitor General has not pressed such a submission in these proceedings. 20. After hearing the submissions of the learned counsel as well as of Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior Counsels, who have appeared as amicus curiae, it appears to the Court that the problem has four dimensions. 21. The first aspect of the problem is the methodology or formula which is being employed by the Union Government for computing the requirement of oxygen to the States and the Union Territories. As we have noted earlier, the formula which has been arrived at by the expert group is on the basis of a certain requirement of oxygen per minute for ICU and non-ICU beds and the patient load. It is on the basis of this formula that an allocation is being made for diverse areas of the country. In view of the experience which has been gained since the formula was adopted, it would be necessary for the Central Government to look at the formula afresh and to determine as to whether it needs to be altered having regard to the specific requirements of areas such as NCT of Delhi which have been seriously affected by the second surge of the pandemic. For instance, one aspect which needs to be underlined is that the requirement of oxygen is tagged to the number of beds, both ICU and non-ICU beds. Apart from the requirement of oxygen in a formal institutional framework, oxygen is also being made available to individuals who are unable to get beds in hospitals. Hence, it would not be adequate to make an assessment of the quantity of oxygen required based exclusively on the formula which has been used thus far by the Central Government. While we have underscored this aspect, this is certainly a matter which would need to engage the fresh attention of a body of experts who may determine whether any change or modifications are required to meet the exigencies of a rapidly deteriorating situation. 22. The second aspect of the matter is the requirement of managing the resources of oxygen so as to optimize the availability of the NCT of Delhi. This would be dependent on the efficiency of the supply chain and a proper distribution of oxygen from the supply points up to the hospitals. Another aspect under this sub-head, which has already been emphasized by the order of this Court dated 30 April 2021 is the requirement of building up proper stocks of oxygen so that in the event of an emergency, alternate buffer stocks are available to prevent deaths due to the disruption of supplies. 23. The third aspect which needs to be emphasized is the actual availability of oxygen. We are inclined to reflect further on the submission which has been urged on behalf of the Union of India by the Solicitor General that some modalities may be put into place to carry out a scientific audit of the requirement of the NCT of Delhi. Whether the audit results in revealing a higher requirement than what has been indicated in the order of this Court dated 30 April 2021 will be seen. At this stage, it has emerged before the Court that efficient administrative modalities were placed into operation by the Municipal Corporation of Greater Mumbai during the second wave of the COVID-19 pandemic.
### Response:
1
### Explanation:
19. At the outset, it needs to be clarified that the reason why this Court has been persuaded to take up these proceedings during the pendency of the contempt proceedings in the High Court is because recourse to the contempt jurisdiction against two officers (one of whom, Ms Dawra, has tested COVID-19 positive but continues to attend to her duties while in isolation) will not in itself resolve the problem which is confronting NCT of Delhi. At this stage, when the country is faced with a serious pandemic, the effort of the Court must be to facilitate problem solving by the active engagement and cooperation of all stake holders. The High Court of Delhi has been engaging with the situation virtually on a day to day basis and has been considering diverse aspects of the matter. The contempt notice is an expression of its anguish. The issue of the availability of oxygen for NCT of Delhi has to be resolved bearing in mind the availability of oxygen in the country so that suitable arrangements are made for allocation, transportation from the point of supply and distribution within the city. The Union Government cannot be oblivious to the urgent need and demand for oxygen to meet the requirements of the NCT of Delhi. It is with that end in view that this Court by its order dated 30 April 2021 directed the allocation of 700 MT of oxygen per day to NCT of Delhi. The effort to persuade the High Court that there was in fact no such direction by this Court was an evident attempt at legal disingenuity and has been correctly rejected. The Solicitor General has not pressed such a submission in these proceedings.20. After hearing the submissions of the learned counsel as well as of Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior Counsels, who have appeared as amicus curiae, it appears to the Court that the problem has four dimensions.21. The first aspect of the problem is the methodology or formula which is being employed by the Union Government for computing the requirement of oxygen to the States and the Union Territories. As we have noted earlier, the formula which has been arrived at by the expert group is on the basis of a certain requirement of oxygen per minute for ICU and non-ICU beds and the patient load. It is on the basis of this formula that an allocation is being made for diverse areas of the country. In view of the experience which has been gained since the formula was adopted, it would be necessary for the Central Government to look at the formula afresh and to determine as to whether it needs to be altered having regard to the specific requirements of areas such as NCT of Delhi which have been seriously affected by the second surge of the pandemic. For instance, one aspect which needs to be underlined is that the requirement of oxygen is tagged to the number of beds, both ICU and non-ICU beds. Apart from the requirement of oxygen in a formal institutional framework, oxygen is also being made available to individuals who are unable to get beds in hospitals. Hence, it would not be adequate to make an assessment of the quantity of oxygen required based exclusively on the formula which has been used thus far by the Central Government. While we have underscored this aspect, this is certainly a matter which would need to engage the fresh attention of a body of experts who may determine whether any change or modifications are required to meet the exigencies of a rapidly deteriorating situation.22. The second aspect of the matter is the requirement of managing the resources of oxygen so as to optimize the availability of the NCT of Delhi. This would be dependent on the efficiency of the supply chain and a proper distribution of oxygen from the supply points up to the hospitals. Another aspect under this sub-head, which has already been emphasized by the order of this Court dated 30 April 2021 is the requirement of building up proper stocks of oxygen so that in the event of an emergency, alternate buffer stocks are available to prevent deaths due to the disruption of supplies.23. The third aspect which needs to be emphasized is the actual availability of oxygen. We are inclined to reflect further on the submission which has been urged on behalf of the Union of India by the Solicitor General that some modalities may be put into place to carry out a scientific audit of the requirement of the NCT of Delhi. Whether the audit results in revealing a higher requirement than what has been indicated in the order of this Court dated 30 April 2021 will be seen. At this stage, it has emerged before the Court that efficient administrative modalities were placed into operation by the Municipal Corporation of Greater Mumbai during the second wave of the COVID-19 pandemic.
|
The Commissioner Of Income-Tax,Bombay City Vs. The Khatau Makanji Spinning Andweaving Co. Ltd., Bombay | yearly Central Act. The Finance Act also follows the same scheme, and lays down the rate at which the tax is to be collected. In the Finance Act, the tax is laid on the total income, but two provisos modify the rate under certain circumstances. We may at this stage read the relevant provision (Part I, First Schedule):"B. In the case of every company – RateSurcharge On the whole of total incomeFour annas in the rupeeOne-twentieth of the rate specified in the preceding column : Provided that in the case of a company which, in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March, 1953, has made the prescribed arrangements for the declaration and payment within the territory of India excluding the State of Jammu and Kashmir, of the dividends payable out of such profits, and has deducted super-tax from the dividends in accordance with the provisions of sub-section (3D) or (3E) of Section 18 of the Act - (i) Where the total income, as reduced by seven annas in the rupee and by the amount, if any, exempt from income-tax, exceeds the amount of any dividends (including dividends payable at a fixed rate) declared in respect of the whole or part of the previous year for the assessment for the year ending on the 31st day of March, 1953, and no order has been made under sub-section (1) of Section 23A of the Income-tax Act, a rebate shall be allowed at the rate of one anna per rupee on the amount of such excess ; (ii) Where the amount of dividends referred to in clause (i) above exceeds the total income as reduced by seven annas in the rupee and by the amount, if any, exempt from income-tax, there shall be chargeable on the total income an additional income-tax equal to the sum, if any by which the aggregate amount of income-tax actually borne by such excess (hereinafter referred to as excess dividend) falls short of the amount calculated at the rate of five annas per rupee on the excess dividend. For the purpose of clause (ii) of the above proviso, the aggregate amount of income-tax actually borne by the excess dividend shall be determined as follows : (i) the excess dividend shall be deemed to be out of the whole or such portion of one or more years immediately preceding the previous year as would be just sufficient to cover the amount of the excess dividend and as have not likewise been taken into account to cover an excess dividend of a preceding year ; (ii) such portion of the excess dividend as is deemed to be out of the undistributed profits of each of the said years shall be deemed to have borne tax, - (a) if an order has been made under sub-section (1) of Section 23A of the Income-tax Act, in respect of the undistributed profits of that year, at the rate of five annas in the rupee, and (b) in respect of any other year, at the rate applicable to the total income of the company for that year reduced by the rate at which rebate, if any, was allowed on the undistributed profits". 8. By the first Proviso, a rebate of one anna per rupee is given to a company which pays dividends less than 9 annas in the rupee out of its profits. By the second Proviso, the rebate disappears, and an additional income-tax has to be paid on dividends in excess of that limit, paid in the year. The explanation says that."the excess dividend shall be deemed to be out of the whole or such portion of the undistributed profits of one or more years immediately preceding the previous year as would be just sufficient to cover the amount of the excess dividend and as have not likewise been taken into account to cover an excess dividend of a preceding year". This fiction, as we have already pointed out, provides only that the dividends shall be deemed to be out of the profits not of the previous year under assessment but of some other years.What the Finance Act fails to do is to make them "total income", so as to take in the rate which is prescribed for the total income in the Proviso.Unless the Finance Act stated that after the working out of the fiction the profits of the back year or years shall be deemed to be a part of the total income of the previous year under assessment, the purpose of the Act clearly fails.Income-tax is a tax on income of the previous year, and it would not cover something which is not the income of the previous year, or made fictionally so.The Finance Act could have gone further, as pointed out by the learned Chief Justice in the extract quoted, and made the profits a part of the total income of the previous year under assessment, but it did not do so. The Finance Act could have also resorted to some other fiction, which might conceivably have met the case; but it has failed to do so. Even if one considers the dividends as having come out of the profits of preceding years, they do not become the income of the relevant previous year, and unless the Finance Act expressly laid down that it should be taxed as part of the total income, the purpose is not achieved. Indeed, the Finance Act continues to say that the tax shall be on the total income, as defined in the Indian Income-tax Act and as determined under that Act. It is impossible to say that the additional income-tax was properly laid upon the total income, because what was actually taxed was never a part of the total income of the previous year. 9. For these reasons, we are of opinion that the High Court was right in answering the question which it had framed, in the negative. | 0[ds]8. By the first Proviso, a rebate of one anna per rupee is given to a company which pays dividends less than 9 annas in the rupee out of its profits. By the second Proviso, the rebate disappears, and an additional income-tax has to be paid on dividends in excess of that limit, paid in the yearThis fiction, as we have already pointed out, provides only that the dividends shall be deemed to be out of the profits not of the previous year under assessment but of some other years.What the Finance Act fails to do is to make them "total income", so as to take in the rate which is prescribed for the total income in the Proviso.Unless the Finance Act stated that after the working out of the fiction the profits of the back year or years shall be deemed to be a part of the total income of the previous year under assessment, the purpose of the Act clearly fails.Income-tax is a tax on income of the previous year, and it would not cover something which is not the income of the previous year, or made fictionally so.The Finance Act could have gone further, as pointed out by the learned Chief Justice in the extract quoted, and made the profits a part of the total income of the previous year under assessment, but it did not do so. The Finance Act could have also resorted to some other fiction, which might conceivably have met the case; but it has failed to do so. Even if one considers the dividends as having come out of the profits of preceding years, they do not become the income of the relevant previous year, and unless the Finance Act expressly laid down that it should be taxed as part of the total income, the purpose is not achieved. Indeed, the Finance Act continues to say that the tax shall be on the total income, as defined in the Indian Income-tax Act and as determined under that Act. It is impossible to say that the additional income-tax was properly laid upon the total income, because what was actually taxed was never a part of the total income of the previous year9. For these reasons, we are of opinion that the High Court was right in answering the question which it had framed, in ther arguments involved modifications of language suitable to sustain the tax independently of S. 3 of the Indian Income-tax Act, a procedure which we do not think is open, for reasons which we have given in Commr. of Income-tax v. Elphinstone Spinning and Weaving Mills, Civil Appeal No. 427 of 1957 : (AIR 1960 SC 1016 ), decided today. These modifications, which were suggested, involve a recasting of the entire relevant Paragraph of the Finance Act to make it independent of S. 3 of the Indian Income-tax Act, a course which is only open to a legislature and not to a Court. We need not give all the modifications suggested, because, in our opinion, the words of the Finance Act must be given their due meaning, and must be construed as they stand | 0 | 2,577 | 576 | ### 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:
yearly Central Act. The Finance Act also follows the same scheme, and lays down the rate at which the tax is to be collected. In the Finance Act, the tax is laid on the total income, but two provisos modify the rate under certain circumstances. We may at this stage read the relevant provision (Part I, First Schedule):"B. In the case of every company – RateSurcharge On the whole of total incomeFour annas in the rupeeOne-twentieth of the rate specified in the preceding column : Provided that in the case of a company which, in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March, 1953, has made the prescribed arrangements for the declaration and payment within the territory of India excluding the State of Jammu and Kashmir, of the dividends payable out of such profits, and has deducted super-tax from the dividends in accordance with the provisions of sub-section (3D) or (3E) of Section 18 of the Act - (i) Where the total income, as reduced by seven annas in the rupee and by the amount, if any, exempt from income-tax, exceeds the amount of any dividends (including dividends payable at a fixed rate) declared in respect of the whole or part of the previous year for the assessment for the year ending on the 31st day of March, 1953, and no order has been made under sub-section (1) of Section 23A of the Income-tax Act, a rebate shall be allowed at the rate of one anna per rupee on the amount of such excess ; (ii) Where the amount of dividends referred to in clause (i) above exceeds the total income as reduced by seven annas in the rupee and by the amount, if any, exempt from income-tax, there shall be chargeable on the total income an additional income-tax equal to the sum, if any by which the aggregate amount of income-tax actually borne by such excess (hereinafter referred to as excess dividend) falls short of the amount calculated at the rate of five annas per rupee on the excess dividend. For the purpose of clause (ii) of the above proviso, the aggregate amount of income-tax actually borne by the excess dividend shall be determined as follows : (i) the excess dividend shall be deemed to be out of the whole or such portion of one or more years immediately preceding the previous year as would be just sufficient to cover the amount of the excess dividend and as have not likewise been taken into account to cover an excess dividend of a preceding year ; (ii) such portion of the excess dividend as is deemed to be out of the undistributed profits of each of the said years shall be deemed to have borne tax, - (a) if an order has been made under sub-section (1) of Section 23A of the Income-tax Act, in respect of the undistributed profits of that year, at the rate of five annas in the rupee, and (b) in respect of any other year, at the rate applicable to the total income of the company for that year reduced by the rate at which rebate, if any, was allowed on the undistributed profits". 8. By the first Proviso, a rebate of one anna per rupee is given to a company which pays dividends less than 9 annas in the rupee out of its profits. By the second Proviso, the rebate disappears, and an additional income-tax has to be paid on dividends in excess of that limit, paid in the year. The explanation says that."the excess dividend shall be deemed to be out of the whole or such portion of the undistributed profits of one or more years immediately preceding the previous year as would be just sufficient to cover the amount of the excess dividend and as have not likewise been taken into account to cover an excess dividend of a preceding year". This fiction, as we have already pointed out, provides only that the dividends shall be deemed to be out of the profits not of the previous year under assessment but of some other years.What the Finance Act fails to do is to make them "total income", so as to take in the rate which is prescribed for the total income in the Proviso.Unless the Finance Act stated that after the working out of the fiction the profits of the back year or years shall be deemed to be a part of the total income of the previous year under assessment, the purpose of the Act clearly fails.Income-tax is a tax on income of the previous year, and it would not cover something which is not the income of the previous year, or made fictionally so.The Finance Act could have gone further, as pointed out by the learned Chief Justice in the extract quoted, and made the profits a part of the total income of the previous year under assessment, but it did not do so. The Finance Act could have also resorted to some other fiction, which might conceivably have met the case; but it has failed to do so. Even if one considers the dividends as having come out of the profits of preceding years, they do not become the income of the relevant previous year, and unless the Finance Act expressly laid down that it should be taxed as part of the total income, the purpose is not achieved. Indeed, the Finance Act continues to say that the tax shall be on the total income, as defined in the Indian Income-tax Act and as determined under that Act. It is impossible to say that the additional income-tax was properly laid upon the total income, because what was actually taxed was never a part of the total income of the previous year. 9. For these reasons, we are of opinion that the High Court was right in answering the question which it had framed, in the negative.
### Response:
0
### Explanation:
8. By the first Proviso, a rebate of one anna per rupee is given to a company which pays dividends less than 9 annas in the rupee out of its profits. By the second Proviso, the rebate disappears, and an additional income-tax has to be paid on dividends in excess of that limit, paid in the yearThis fiction, as we have already pointed out, provides only that the dividends shall be deemed to be out of the profits not of the previous year under assessment but of some other years.What the Finance Act fails to do is to make them "total income", so as to take in the rate which is prescribed for the total income in the Proviso.Unless the Finance Act stated that after the working out of the fiction the profits of the back year or years shall be deemed to be a part of the total income of the previous year under assessment, the purpose of the Act clearly fails.Income-tax is a tax on income of the previous year, and it would not cover something which is not the income of the previous year, or made fictionally so.The Finance Act could have gone further, as pointed out by the learned Chief Justice in the extract quoted, and made the profits a part of the total income of the previous year under assessment, but it did not do so. The Finance Act could have also resorted to some other fiction, which might conceivably have met the case; but it has failed to do so. Even if one considers the dividends as having come out of the profits of preceding years, they do not become the income of the relevant previous year, and unless the Finance Act expressly laid down that it should be taxed as part of the total income, the purpose is not achieved. Indeed, the Finance Act continues to say that the tax shall be on the total income, as defined in the Indian Income-tax Act and as determined under that Act. It is impossible to say that the additional income-tax was properly laid upon the total income, because what was actually taxed was never a part of the total income of the previous year9. For these reasons, we are of opinion that the High Court was right in answering the question which it had framed, in ther arguments involved modifications of language suitable to sustain the tax independently of S. 3 of the Indian Income-tax Act, a procedure which we do not think is open, for reasons which we have given in Commr. of Income-tax v. Elphinstone Spinning and Weaving Mills, Civil Appeal No. 427 of 1957 : (AIR 1960 SC 1016 ), decided today. These modifications, which were suggested, involve a recasting of the entire relevant Paragraph of the Finance Act to make it independent of S. 3 of the Indian Income-tax Act, a course which is only open to a legislature and not to a Court. We need not give all the modifications suggested, because, in our opinion, the words of the Finance Act must be given their due meaning, and must be construed as they stand
|
ARMED FORCES EX OFFICERS MULTI SERVICES COOPERATIVE SOCIETY LTD Vs. RASHTRIYA MAZDOOR SANGH (INTUC) | relied on the testimonies of retrenched drivers, admitting to unemployment post retrenchment. He relied on the decisions of this Court in Mackinnon Mackenzie and Company Ltd v. Mackinnon Employees Union (2015) 4 SCC 544, and Workmen of Subong Tea Estate, Represented by the Indian Tea Employees Union v. Outgoing Management of Subong Tea Estate and Anr (1964) 5 SCR 602. 13. In his rejoinder, Shri C.U. Singh submitted that even as per the Statement of Claim submitted by the Respondent Union before the Tribunal, it was clear that the employees always understood their termination as retrenchment and not in course of a closure. Analysis: 14. With respect to the first submission of Shri C. U. Singh, that this is not at all a case of closure but a simple case of retrenchment, the Tribunal as well as the High Court have held that the method and manner by which the workmen were retrenched clearly demonstrates that it is virtually a closure. We have no hesitation in confirming these findings of fact. The act of terminating the services of all the drivers at the same time, coupled with the statement of the Appellant that the entire business is closed down, was sufficient to convey to the workers and the Union that the transport business had come to a standstill and that there was no scope of continuing the business any further. Further, we also concur with the findings of fact about the lack of bona fide in the Appellants offers of re-employment on new terms and conditions, and without continuity of service. It is for these reasons that the Tribunal and the High Court held that it was virtually a case of closure and correctly so. 15. The second submission of Shri C.U. Singh that the management has a right to organise its business based on economic considerations is well taken. There is also no quarrel with the principle of Parry & Co. Ltd. v. P.C. Pal (1969) 2 SCR 976 , which laid down the proposition that a bona fide policy decision for reorganising the business based on economic considerations is within an enterprises proprietary decision and retrenchment in this context must be accepted as an inevitable consequence. The answer is here itself, and pertains to the material requirement of bona fide of the decision. In the present case, the Tribunal has come to the conclusion that the entirety of business is not lost due to the strike and the retrenchment seems to have been imposed as retribution against the workmen for going on a strike. It is for this reason that the decision of this Court in the case of Parry Company (supra) will not apply to the facts of the present case. 16. The further submission of the Appellant that the Tribunal is not justified in directing continuity of service, as in the case of retrenchment followed by reemployment, the workmen are not entitled to continuity of service needs to be answered. Even here, there is no quarrel with the principle of law that reemployment of retrenched workmen does not entitle them to claim continuity of service as held in Cement Corpn. of India Ltd. v. Presiding Officer Industrial Tribunal-cum-Labour Court and Anr. (2010) 15 SCC 754, as well as the Maruti Udyog Ltd v. Ram Lal and Ors. (2005) 2 SCC 638 . However, the principle laid down in these judgments will only apply to cases where the retrenchment is bona fide. The Tribunal has held that the retrenchment of all the drivers followed by an offer of re-employment on new terms and conditions is not bona fide. Once the orders of retrenchment are set aside, the workmen will naturally be entitled to continuity of service with order of back wages as determined by a Tribunal or a Court of law. 17. As regards the last submission by Shri C.U. Singh, about the legality of awarding 75% back wages, it was argued before us that the workmen were obligated to prove that they were not gainfully employed after the dismissal from service. It was also submitted that they must at least plead on oath that they were unemployed. Shri C.U. Singh took us through the evidence and on the basis of statements made therein has submitted that the parties have admitted to have worked at some place or the other through the pendency of the litigation. 18. The Tribunal has considered the matter in detail and after appreciating the oral and documentary evidence, the Tribunal directed reinstatement of the employees with only 75% back wages. Whether a workman was gainfully employed or not is again a question of fact, and the finding of the Tribunal as upheld by the High Court, cannot be interfered with by the Supreme Court in exercising its power under Article 136 of the Constitution of India. The following findings of the Tribunal are conclusive: In so far as back wages to be paid to the workers are concerned, it is a matter of record that 27 workers have stepped into the witness box. Even the President of the Second Party union is also examined. All the workers and President of the Union have consistently stated in their examination in chief that they have remained unemployed after their termination and they failed to procure alternate employment also. 19. In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (supra), this Court held: 38.3 ……If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service…….. (emphasis added) With respect to the obligation of the Appellant, the finding of the Tribunal is simple that: On the contrary, in the entire evidence filed by the First Party, the First Party has not brought an iota of evidence to show that all the workers were employed elsewhere and were earning for their livelihood. | 0[ds]14. With respect to the first submission of Shri C. U. Singh, that this is not at all a case of closure but a simple case of retrenchment, the Tribunal as well as the High Court have held that the method and manner by which the workmen were retrenched clearly demonstrates that it is virtually a closure. We have no hesitation in confirming these findings of fact. The act of terminating the services of all the drivers at the same time, coupled with the statement of the Appellant that the entire business is closed down, was sufficient to convey to the workers and the Union that the transport business had come to a standstill and that there was no scope of continuing the business any further. Further, we also concur with the findings of fact about the lack of bona fide in the Appellants offers of re-employment on new terms and conditions, and without continuity of service. It is for these reasons that the Tribunal and the High Court held that it was virtually a case of closure and correctly so.15. The second submission of Shri C.U. Singh that the management has a right to organise its business based on economic considerations is well taken. There is also no quarrel with the principle of Parry & Co. Ltd. v. P.C. Pal (1969) 2 SCR 976 , which laid down the proposition that a bona fide policy decision for reorganising the business based on economic considerations is within an enterprises proprietary decision and retrenchment in this context must be accepted as an inevitable consequence. The answer is here itself, and pertains to the material requirement of bona fide of the decision. In the present case, the Tribunal has come to the conclusion that the entirety of business is not lost due to the strike and the retrenchment seems to have been imposed as retribution against the workmen for going on a strike. It is for this reason that the decision of this Court in the case of Parry Company (supra) will not apply to the facts of the present case.16. The further submission of the Appellant that the Tribunal is not justified in directing continuity of service, as in the case of retrenchment followed by reemployment, the workmen are not entitled to continuity of service needs to be answered. Even here, there is no quarrel with the principle of law that reemployment of retrenched workmen does not entitle them to claim continuity of service as held in Cement Corpn. of India Ltd. v. Presiding Officer Industrial Tribunal-cum-Labour Court and Anr. (2010) 15 SCC 754, as well as the Maruti Udyog Ltd v. Ram Lal and Ors. (2005) 2 SCC 638 . However, the principle laid down in these judgments will only apply to cases where the retrenchment is bona fide. The Tribunal has held that the retrenchment of all the drivers followed by an offer of re-employment on new terms and conditions is not bona fide. Once the orders of retrenchment are set aside, the workmen will naturally be entitled to continuity of service with order of back wages as determined by a Tribunal or a Court of law.18. The Tribunal has considered the matter in detail and after appreciating the oral and documentary evidence, the Tribunal directed reinstatement of the employees with only 75% back wages. Whether a workman was gainfully employed or not is again a question of fact, and the finding of the Tribunal as upheld by the High Court, cannot be interfered with by the Supreme Court in exercising its power under Article 136 of the Constitution of India. The following findings of the Tribunal are conclusive:In so far as back wages to be paid to the workers are concerned, it is a matter of record that 27 workers have stepped into the witness box. Even the President of the Second Party union is also examined. All the workers and President of the Union have consistently stated in their examination in chief that they have remained unemployed after their termination and they failed to procure alternate employment also.19. In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (supra), this Court held:38.3 ……If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service……..With respect to the obligation of the Appellant, the finding of the Tribunal is simple that:On the contrary, in the entire evidence filed by the First Party, the First Party has not brought an iota of evidence to show that all the workers were employed elsewhere and were earning for their livelihood. | 0 | 2,464 | 862 | ### 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:
relied on the testimonies of retrenched drivers, admitting to unemployment post retrenchment. He relied on the decisions of this Court in Mackinnon Mackenzie and Company Ltd v. Mackinnon Employees Union (2015) 4 SCC 544, and Workmen of Subong Tea Estate, Represented by the Indian Tea Employees Union v. Outgoing Management of Subong Tea Estate and Anr (1964) 5 SCR 602. 13. In his rejoinder, Shri C.U. Singh submitted that even as per the Statement of Claim submitted by the Respondent Union before the Tribunal, it was clear that the employees always understood their termination as retrenchment and not in course of a closure. Analysis: 14. With respect to the first submission of Shri C. U. Singh, that this is not at all a case of closure but a simple case of retrenchment, the Tribunal as well as the High Court have held that the method and manner by which the workmen were retrenched clearly demonstrates that it is virtually a closure. We have no hesitation in confirming these findings of fact. The act of terminating the services of all the drivers at the same time, coupled with the statement of the Appellant that the entire business is closed down, was sufficient to convey to the workers and the Union that the transport business had come to a standstill and that there was no scope of continuing the business any further. Further, we also concur with the findings of fact about the lack of bona fide in the Appellants offers of re-employment on new terms and conditions, and without continuity of service. It is for these reasons that the Tribunal and the High Court held that it was virtually a case of closure and correctly so. 15. The second submission of Shri C.U. Singh that the management has a right to organise its business based on economic considerations is well taken. There is also no quarrel with the principle of Parry & Co. Ltd. v. P.C. Pal (1969) 2 SCR 976 , which laid down the proposition that a bona fide policy decision for reorganising the business based on economic considerations is within an enterprises proprietary decision and retrenchment in this context must be accepted as an inevitable consequence. The answer is here itself, and pertains to the material requirement of bona fide of the decision. In the present case, the Tribunal has come to the conclusion that the entirety of business is not lost due to the strike and the retrenchment seems to have been imposed as retribution against the workmen for going on a strike. It is for this reason that the decision of this Court in the case of Parry Company (supra) will not apply to the facts of the present case. 16. The further submission of the Appellant that the Tribunal is not justified in directing continuity of service, as in the case of retrenchment followed by reemployment, the workmen are not entitled to continuity of service needs to be answered. Even here, there is no quarrel with the principle of law that reemployment of retrenched workmen does not entitle them to claim continuity of service as held in Cement Corpn. of India Ltd. v. Presiding Officer Industrial Tribunal-cum-Labour Court and Anr. (2010) 15 SCC 754, as well as the Maruti Udyog Ltd v. Ram Lal and Ors. (2005) 2 SCC 638 . However, the principle laid down in these judgments will only apply to cases where the retrenchment is bona fide. The Tribunal has held that the retrenchment of all the drivers followed by an offer of re-employment on new terms and conditions is not bona fide. Once the orders of retrenchment are set aside, the workmen will naturally be entitled to continuity of service with order of back wages as determined by a Tribunal or a Court of law. 17. As regards the last submission by Shri C.U. Singh, about the legality of awarding 75% back wages, it was argued before us that the workmen were obligated to prove that they were not gainfully employed after the dismissal from service. It was also submitted that they must at least plead on oath that they were unemployed. Shri C.U. Singh took us through the evidence and on the basis of statements made therein has submitted that the parties have admitted to have worked at some place or the other through the pendency of the litigation. 18. The Tribunal has considered the matter in detail and after appreciating the oral and documentary evidence, the Tribunal directed reinstatement of the employees with only 75% back wages. Whether a workman was gainfully employed or not is again a question of fact, and the finding of the Tribunal as upheld by the High Court, cannot be interfered with by the Supreme Court in exercising its power under Article 136 of the Constitution of India. The following findings of the Tribunal are conclusive: In so far as back wages to be paid to the workers are concerned, it is a matter of record that 27 workers have stepped into the witness box. Even the President of the Second Party union is also examined. All the workers and President of the Union have consistently stated in their examination in chief that they have remained unemployed after their termination and they failed to procure alternate employment also. 19. In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (supra), this Court held: 38.3 ……If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service…….. (emphasis added) With respect to the obligation of the Appellant, the finding of the Tribunal is simple that: On the contrary, in the entire evidence filed by the First Party, the First Party has not brought an iota of evidence to show that all the workers were employed elsewhere and were earning for their livelihood.
### Response:
0
### Explanation:
14. With respect to the first submission of Shri C. U. Singh, that this is not at all a case of closure but a simple case of retrenchment, the Tribunal as well as the High Court have held that the method and manner by which the workmen were retrenched clearly demonstrates that it is virtually a closure. We have no hesitation in confirming these findings of fact. The act of terminating the services of all the drivers at the same time, coupled with the statement of the Appellant that the entire business is closed down, was sufficient to convey to the workers and the Union that the transport business had come to a standstill and that there was no scope of continuing the business any further. Further, we also concur with the findings of fact about the lack of bona fide in the Appellants offers of re-employment on new terms and conditions, and without continuity of service. It is for these reasons that the Tribunal and the High Court held that it was virtually a case of closure and correctly so.15. The second submission of Shri C.U. Singh that the management has a right to organise its business based on economic considerations is well taken. There is also no quarrel with the principle of Parry & Co. Ltd. v. P.C. Pal (1969) 2 SCR 976 , which laid down the proposition that a bona fide policy decision for reorganising the business based on economic considerations is within an enterprises proprietary decision and retrenchment in this context must be accepted as an inevitable consequence. The answer is here itself, and pertains to the material requirement of bona fide of the decision. In the present case, the Tribunal has come to the conclusion that the entirety of business is not lost due to the strike and the retrenchment seems to have been imposed as retribution against the workmen for going on a strike. It is for this reason that the decision of this Court in the case of Parry Company (supra) will not apply to the facts of the present case.16. The further submission of the Appellant that the Tribunal is not justified in directing continuity of service, as in the case of retrenchment followed by reemployment, the workmen are not entitled to continuity of service needs to be answered. Even here, there is no quarrel with the principle of law that reemployment of retrenched workmen does not entitle them to claim continuity of service as held in Cement Corpn. of India Ltd. v. Presiding Officer Industrial Tribunal-cum-Labour Court and Anr. (2010) 15 SCC 754, as well as the Maruti Udyog Ltd v. Ram Lal and Ors. (2005) 2 SCC 638 . However, the principle laid down in these judgments will only apply to cases where the retrenchment is bona fide. The Tribunal has held that the retrenchment of all the drivers followed by an offer of re-employment on new terms and conditions is not bona fide. Once the orders of retrenchment are set aside, the workmen will naturally be entitled to continuity of service with order of back wages as determined by a Tribunal or a Court of law.18. The Tribunal has considered the matter in detail and after appreciating the oral and documentary evidence, the Tribunal directed reinstatement of the employees with only 75% back wages. Whether a workman was gainfully employed or not is again a question of fact, and the finding of the Tribunal as upheld by the High Court, cannot be interfered with by the Supreme Court in exercising its power under Article 136 of the Constitution of India. The following findings of the Tribunal are conclusive:In so far as back wages to be paid to the workers are concerned, it is a matter of record that 27 workers have stepped into the witness box. Even the President of the Second Party union is also examined. All the workers and President of the Union have consistently stated in their examination in chief that they have remained unemployed after their termination and they failed to procure alternate employment also.19. In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (supra), this Court held:38.3 ……If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service……..With respect to the obligation of the Appellant, the finding of the Tribunal is simple that:On the contrary, in the entire evidence filed by the First Party, the First Party has not brought an iota of evidence to show that all the workers were employed elsewhere and were earning for their livelihood.
|
Union Of India Vs. Babubhai Nylchand Mehta | characteristics and uses. After quoting Item 17(2) of the schedule to the Act the High Court observed as under. "The mere perusal of this item makes it clear that the liability arises in relation to manufacture of paper and for which any process is ordinarily carried on with the aid of power. It is not in dispute that the respondents carry out the process of coating and impregnating with the aid of power, but Shri Sathe, learned counsel appearing on behalf of the respondents, very rightly submitted that these processes are carried out not in relation to the manufacture and that being the principle requirement of import of levy under Item 17(2), the mere fact that process of coating and impregnating is carried out cannot attract levy of duty. The liability to pay duty arises because of manufacture of paper and it is not in dispute that the respondents do not manufacture any paper but purchase kraft paper from the open market. The process carried out by the respondents as such kraft paper does not amount to manufacture, and, therefore, Item 17(2) is not attracted to the work undertaken by the respondents." * Learned Division Bench thus affirmed the judgment of learned Single Judge and dismissed the appeal. 4. We have heard Mr Krishnamurthy Iyer on behalf of the Union of India and Mr U.R. Lalit on behalf of the respondent. Mr Krishnamurthy Iyer submitted that the case is fully covered by a recent decision of this Court in Laminated Packings (P) Ltd. v. CCE [ 1990 (4) SCC 51 in which in similar circumstances it was held that by process of lamination of kraft paper with polyethylene different goods came into being. It was held that laminated kraft paper is distinct, separate and different goods known in the market as such from the kraft paper. The court did not approve the decision of Division Bench of Andhra Pradesh High Court in the case of Standard Packaging Nellore v. Union of India 1984 ECR 2635 : 1985 TaxLR 2538] which was relied on by the Collector of Central Excise, Guntur for reaching to the conclusion that the appellant would be eligible to claim refund of duty paid by them in this regard.5. Mr Lalit on the other hand tried to distinguish the above case and further submitted as an alternative argument that even if the case is covered by the above decision, no evidence was placed on record by the appellant to show that the goods in question were known in the market as having distinct, separate and identifiable function. 6. We have given our careful consideration to the arguments advanced by learned counsel for both the parties. In our view the above decision in Laminated Packings (P) Ltd. v. CCE [ 1990 (4) SCC 51 is an authority directly clinching the issue involved before us. In the above case the short question for consideration was whether the lamination of duty paid kraft paper with polyethylene resulting in polyethylene laminated kraft paper would amount to manufacture and excisable under law or not. Dealing with the above question it was observed as under : (SCC p. 52, paras 4 and 5) "Lamination, indisputable by the well settled principles of excise law, amounts to manufacture. This question, in our opinion, is settled by the decisions of this Court. Reference may be made to the decision this Court in Empire Industries Ltd. v. Union of India [ 1985 (3) SCC 314 We are, therefore, of the opinion that by process of lamination of kraft paper with polyethylene different goods come into being. Laminated kraft paper is distinct, separate and different goods known in the market as such from the kraft paper Counsel for the appellant sought to contend that the kraft paper was duty paid goods and there was no change in the essential characteristic or the user of the paper after lamination. The fact that the duty has been paid on the kraft paper is irrelevant for consideration of the issue before. If duty has been paid, then benefit or credit for the duty paid would be available to the appellant under Rule 56-A of the Central Excise Rules, 1944." * 7. It is no doubt correct that in the above case it was also observed that manufacture is bringing into being goods as known in the excise laws, that is to say known in the market as having distinct, separate and identifiable function. On this score in our opinion, there is sufficient evidence. On the basis of the above observations it was strenuously contended by Mr Lalit that in the above case there was sufficient evidence on record to hold that after manufacture the goods were known in the market as having distinct, separate and identifiable function but there is no such evidence on record in the case in hand before us. 8. We find no force in the above contention. Once we hold that the coating and lamination and other process applied by the company in its factory amounts to manufacture, new products come into being. It does not remain an ordinary kraft paper and as such it is liable to excise duty of 40 per cent ad valorem as provided, under Central Excise Tariff Item 17(2). In the above Laminated Packings case [ 1990 (4) SCC 51it was clearly held that by process of lamination of kraft paper with polyethylene different goods come into being. Laminated kraft paper is distinct, separate and different goods known in the market as such from the kraft paper. 9. We are in agreement with the view. The entire case before the Assistant Collector was understood and argued on the basis of controversy regarding manufacture. Once it is held that the products which come into being are manufactured from kraft paper, then in the facts and circumstances of this case there can be no controversy that new goods come into being and they are sold in the market as distinct, separate and different goods. | 1[ds]8. We find no force in the above contention. Once we hold that the coating and lamination and other process applied by the company in its factory amounts to manufacture, new products come into being. It does not remain an ordinary kraft paper and as such it is liable to excise duty of 40 per cent ad valorem as provided, under Central Excise Tariff Item 17(2). In the above Laminated Packings case [ 1990 (4) SCC 51it was clearly held that by process of lamination of kraft paper with polyethylene different goods come into being. Laminated kraft paper is distinct, separate and different goods known in the market as such from the kraftWe are in agreement with the view. The entire case before the Assistant Collector was understood and argued on the basis of controversy regarding manufacture. Once it is held that the products which come into being are manufactured from kraft paper, then in the facts and circumstances of this case there can be no controversy that new goods come into being and they are sold in the market as distinct, separate and different goods | 1 | 1,824 | 207 | ### 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:
characteristics and uses. After quoting Item 17(2) of the schedule to the Act the High Court observed as under. "The mere perusal of this item makes it clear that the liability arises in relation to manufacture of paper and for which any process is ordinarily carried on with the aid of power. It is not in dispute that the respondents carry out the process of coating and impregnating with the aid of power, but Shri Sathe, learned counsel appearing on behalf of the respondents, very rightly submitted that these processes are carried out not in relation to the manufacture and that being the principle requirement of import of levy under Item 17(2), the mere fact that process of coating and impregnating is carried out cannot attract levy of duty. The liability to pay duty arises because of manufacture of paper and it is not in dispute that the respondents do not manufacture any paper but purchase kraft paper from the open market. The process carried out by the respondents as such kraft paper does not amount to manufacture, and, therefore, Item 17(2) is not attracted to the work undertaken by the respondents." * Learned Division Bench thus affirmed the judgment of learned Single Judge and dismissed the appeal. 4. We have heard Mr Krishnamurthy Iyer on behalf of the Union of India and Mr U.R. Lalit on behalf of the respondent. Mr Krishnamurthy Iyer submitted that the case is fully covered by a recent decision of this Court in Laminated Packings (P) Ltd. v. CCE [ 1990 (4) SCC 51 in which in similar circumstances it was held that by process of lamination of kraft paper with polyethylene different goods came into being. It was held that laminated kraft paper is distinct, separate and different goods known in the market as such from the kraft paper. The court did not approve the decision of Division Bench of Andhra Pradesh High Court in the case of Standard Packaging Nellore v. Union of India 1984 ECR 2635 : 1985 TaxLR 2538] which was relied on by the Collector of Central Excise, Guntur for reaching to the conclusion that the appellant would be eligible to claim refund of duty paid by them in this regard.5. Mr Lalit on the other hand tried to distinguish the above case and further submitted as an alternative argument that even if the case is covered by the above decision, no evidence was placed on record by the appellant to show that the goods in question were known in the market as having distinct, separate and identifiable function. 6. We have given our careful consideration to the arguments advanced by learned counsel for both the parties. In our view the above decision in Laminated Packings (P) Ltd. v. CCE [ 1990 (4) SCC 51 is an authority directly clinching the issue involved before us. In the above case the short question for consideration was whether the lamination of duty paid kraft paper with polyethylene resulting in polyethylene laminated kraft paper would amount to manufacture and excisable under law or not. Dealing with the above question it was observed as under : (SCC p. 52, paras 4 and 5) "Lamination, indisputable by the well settled principles of excise law, amounts to manufacture. This question, in our opinion, is settled by the decisions of this Court. Reference may be made to the decision this Court in Empire Industries Ltd. v. Union of India [ 1985 (3) SCC 314 We are, therefore, of the opinion that by process of lamination of kraft paper with polyethylene different goods come into being. Laminated kraft paper is distinct, separate and different goods known in the market as such from the kraft paper Counsel for the appellant sought to contend that the kraft paper was duty paid goods and there was no change in the essential characteristic or the user of the paper after lamination. The fact that the duty has been paid on the kraft paper is irrelevant for consideration of the issue before. If duty has been paid, then benefit or credit for the duty paid would be available to the appellant under Rule 56-A of the Central Excise Rules, 1944." * 7. It is no doubt correct that in the above case it was also observed that manufacture is bringing into being goods as known in the excise laws, that is to say known in the market as having distinct, separate and identifiable function. On this score in our opinion, there is sufficient evidence. On the basis of the above observations it was strenuously contended by Mr Lalit that in the above case there was sufficient evidence on record to hold that after manufacture the goods were known in the market as having distinct, separate and identifiable function but there is no such evidence on record in the case in hand before us. 8. We find no force in the above contention. Once we hold that the coating and lamination and other process applied by the company in its factory amounts to manufacture, new products come into being. It does not remain an ordinary kraft paper and as such it is liable to excise duty of 40 per cent ad valorem as provided, under Central Excise Tariff Item 17(2). In the above Laminated Packings case [ 1990 (4) SCC 51it was clearly held that by process of lamination of kraft paper with polyethylene different goods come into being. Laminated kraft paper is distinct, separate and different goods known in the market as such from the kraft paper. 9. We are in agreement with the view. The entire case before the Assistant Collector was understood and argued on the basis of controversy regarding manufacture. Once it is held that the products which come into being are manufactured from kraft paper, then in the facts and circumstances of this case there can be no controversy that new goods come into being and they are sold in the market as distinct, separate and different goods.
### Response:
1
### Explanation:
8. We find no force in the above contention. Once we hold that the coating and lamination and other process applied by the company in its factory amounts to manufacture, new products come into being. It does not remain an ordinary kraft paper and as such it is liable to excise duty of 40 per cent ad valorem as provided, under Central Excise Tariff Item 17(2). In the above Laminated Packings case [ 1990 (4) SCC 51it was clearly held that by process of lamination of kraft paper with polyethylene different goods come into being. Laminated kraft paper is distinct, separate and different goods known in the market as such from the kraftWe are in agreement with the view. The entire case before the Assistant Collector was understood and argued on the basis of controversy regarding manufacture. Once it is held that the products which come into being are manufactured from kraft paper, then in the facts and circumstances of this case there can be no controversy that new goods come into being and they are sold in the market as distinct, separate and different goods
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Alembic Glass Industries Limited Vs. Collector of Central Excise and Customs | the maximum price, as the case may be, so fixed, shall, in relation to the goods so sold, be deemed to be the normal price thereof;(iii) where the assesses so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related persons shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons) who sell such goods in retail;(b) Where the normal price of such goods is not ascertainable for the reason that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed.(2)-(3) * * *(4) For the purpose of this section,--(a)-(b) * * *(c) related person means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and including a holding company, subsidiary company, a relative and a distributor of the assessee, and any sub-, distributor of such distributor.Explanation.- In this clause, holding company, subsidiary company and relative have the same meanings as in the Companies Act, 1956(1 of 1956);(d)-(e) * * *" 4. It was submitted by learned counsel for the assessee that the assessee was a public limited company as was the chemical company and two public limited companies could not be said to be related persons, unless one was the holding or the subsidiary company of the other, which was not the case here. The fact that the assessee held shares of the chemical company and that the chemical company held shares of the assessee and that they had common directors could not lead to the conclusion that the assessee and the chemical company had an interest, directly or indirectly, in each others business so as to make them related persons.5. Learned counsel for the revenue submitted that it was not necessary that one public limited company should be the holding or the subsidiary company of another public limited company, for the definition of related person in S.4 was inclusive. He submitted that, in the present case, the assessee held shares in the chemical company and vice versa and there were common directors which clearly showed that the one had an interest in the business of the other and that, therefore, the valuation of the assessees glassware sold to the chemical company would have to be made having due regard to the relationship, of related persons, between the assessee and the chemical company. 6. Both sides relied upon the judgment of this Court in the case of Union of India and Ors. v. Atic Industries Limited (1984 (3) SCC 575 : 1984 (17) ELT 323 ). Briefly put, the assessee in that case was a limited company that manufactured dyes. Its share capital was held by two companies. The assessee had sold its dyes to the two companies. The question was whether it could be said that the sales had been made to "related persons". In this regard, this Court said: "There are two points of view from which the relationship between the assessee and Atul Products Limited may be considered. First, it may be noted that Atul Products Limited is a shareholder of the assessee to the extent of 50 per cent of the share capital. But we fail to see how it can be said that a limited company has any interest, direct or indirect, in the business carried on by one of its shareholders, even though the shareholding of such shareholder may be 50 per cent." (Emphasis supplied) 7. In our view, this is the heart of the matter. The shareholders of a public limited company do not, by reason only of their shareholding, have an interest in the business of the company. Equally, the fact that two public limited companies have common directors does not mean that the one company has an interest in the business of the other. It is, therefore, not possible to uphold the conclusion of the tribunal that the assessee and the chemical company were related persons. This being so, it is unnecessary to go into the alternate arguments advanced on behalf of the assessee.8. At this stage of the judgment, learned counsel for the revenue draws our attention to the judgment, of a bench of two learned judges of this Court, in Calcutta Chromotype Limited v. Collector of Central Excise, Calcutta (1998 (3) SCC 681 : JT 1998 (2) SC 747 ). It does not appear to us that the judgment carries the case of the revenue any further, nor does learned counsel so suggest. He says that he has referred to it because of this sentence therein: "The principle that a company under the Companies Act, 1956 is a separate entity and, therefore where the manufacturer and the buyer are two separate companies, they cannot be anything more than related persons within the meaning of Clause (c) of Sub-section (4) of S.4 of the Act is not the universal application." We have difficulty, for the reasons already stated, in accepting this as correct sentence. It appears to have been so stated in relation to and in the context of facts of that case. Therefore, the learned judges, it should be added, remanded the matter for further inquiry into the facts.9. At an earlier stage, this Court had directed a stay of the order of the tribunal provided, the appellant deposited fifty per cent of the additional duty demanded and furnished a bank guarantee for the balance, that has been done: Now that the appeal succeeds, the revenue shall refund to the assessee the deposit towards duty and the bank guarantee for the balance shall stand discharged. | 1[ds]7. In our view, this is the heart of the matter. The shareholders of a public limited company do not, by reason only of their shareholding, have an interest in the business of the company. Equally, the fact that two public limited companies have common directors does not mean that the one company has an interest in the business of the other. It is, therefore, not possible to uphold the conclusion of the tribunal that the assessee and the chemical company were related persons. This being so, it is unnecessary to go into the alternate arguments advanced on behalf of the assessee.8. At this stage of the judgment, learned counsel for the revenue draws our attention to the judgment, of a bench of two learned judges of this Court, in Calcutta Chromotype Limited v. Collector of Central Excise, Calcutta (1998 (3) SCC 681 : JT 1998 (2) SC 747 ). It does not appear to us that the judgment carries the case of the revenue any further, nor does learned counsel so suggest. He says that he has referred to it because of this sentence therein: "The principle that a company under the Companies Act, 1956 is a separate entity and, therefore where the manufacturer and the buyer are two separate companies, they cannot be anything more than related persons within the meaning of Clause (c) of(4) of S.4 of the Act is not the universal application." We have difficulty, for the reasons already stated, in accepting this as correct sentence. It appears to have been so stated in relation to and in the context of facts of that case. Therefore, the learned judges, it should be added, remanded the matter for further inquiry into the facts.9. At an earlier stage, this Court had directed a stay of the order of the tribunal provided, the appellant deposited fifty per cent of the additional duty demanded and furnished a bank guarantee for the balance, that has been done: Now that the appeal succeeds, the revenue shall refund to the assessee the deposit towards duty and the bank guarantee for the balance shall stand discharged. | 1 | 1,771 | 409 | ### 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:
the maximum price, as the case may be, so fixed, shall, in relation to the goods so sold, be deemed to be the normal price thereof;(iii) where the assesses so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related persons shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons) who sell such goods in retail;(b) Where the normal price of such goods is not ascertainable for the reason that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed.(2)-(3) * * *(4) For the purpose of this section,--(a)-(b) * * *(c) related person means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and including a holding company, subsidiary company, a relative and a distributor of the assessee, and any sub-, distributor of such distributor.Explanation.- In this clause, holding company, subsidiary company and relative have the same meanings as in the Companies Act, 1956(1 of 1956);(d)-(e) * * *" 4. It was submitted by learned counsel for the assessee that the assessee was a public limited company as was the chemical company and two public limited companies could not be said to be related persons, unless one was the holding or the subsidiary company of the other, which was not the case here. The fact that the assessee held shares of the chemical company and that the chemical company held shares of the assessee and that they had common directors could not lead to the conclusion that the assessee and the chemical company had an interest, directly or indirectly, in each others business so as to make them related persons.5. Learned counsel for the revenue submitted that it was not necessary that one public limited company should be the holding or the subsidiary company of another public limited company, for the definition of related person in S.4 was inclusive. He submitted that, in the present case, the assessee held shares in the chemical company and vice versa and there were common directors which clearly showed that the one had an interest in the business of the other and that, therefore, the valuation of the assessees glassware sold to the chemical company would have to be made having due regard to the relationship, of related persons, between the assessee and the chemical company. 6. Both sides relied upon the judgment of this Court in the case of Union of India and Ors. v. Atic Industries Limited (1984 (3) SCC 575 : 1984 (17) ELT 323 ). Briefly put, the assessee in that case was a limited company that manufactured dyes. Its share capital was held by two companies. The assessee had sold its dyes to the two companies. The question was whether it could be said that the sales had been made to "related persons". In this regard, this Court said: "There are two points of view from which the relationship between the assessee and Atul Products Limited may be considered. First, it may be noted that Atul Products Limited is a shareholder of the assessee to the extent of 50 per cent of the share capital. But we fail to see how it can be said that a limited company has any interest, direct or indirect, in the business carried on by one of its shareholders, even though the shareholding of such shareholder may be 50 per cent." (Emphasis supplied) 7. In our view, this is the heart of the matter. The shareholders of a public limited company do not, by reason only of their shareholding, have an interest in the business of the company. Equally, the fact that two public limited companies have common directors does not mean that the one company has an interest in the business of the other. It is, therefore, not possible to uphold the conclusion of the tribunal that the assessee and the chemical company were related persons. This being so, it is unnecessary to go into the alternate arguments advanced on behalf of the assessee.8. At this stage of the judgment, learned counsel for the revenue draws our attention to the judgment, of a bench of two learned judges of this Court, in Calcutta Chromotype Limited v. Collector of Central Excise, Calcutta (1998 (3) SCC 681 : JT 1998 (2) SC 747 ). It does not appear to us that the judgment carries the case of the revenue any further, nor does learned counsel so suggest. He says that he has referred to it because of this sentence therein: "The principle that a company under the Companies Act, 1956 is a separate entity and, therefore where the manufacturer and the buyer are two separate companies, they cannot be anything more than related persons within the meaning of Clause (c) of Sub-section (4) of S.4 of the Act is not the universal application." We have difficulty, for the reasons already stated, in accepting this as correct sentence. It appears to have been so stated in relation to and in the context of facts of that case. Therefore, the learned judges, it should be added, remanded the matter for further inquiry into the facts.9. At an earlier stage, this Court had directed a stay of the order of the tribunal provided, the appellant deposited fifty per cent of the additional duty demanded and furnished a bank guarantee for the balance, that has been done: Now that the appeal succeeds, the revenue shall refund to the assessee the deposit towards duty and the bank guarantee for the balance shall stand discharged.
### Response:
1
### Explanation:
7. In our view, this is the heart of the matter. The shareholders of a public limited company do not, by reason only of their shareholding, have an interest in the business of the company. Equally, the fact that two public limited companies have common directors does not mean that the one company has an interest in the business of the other. It is, therefore, not possible to uphold the conclusion of the tribunal that the assessee and the chemical company were related persons. This being so, it is unnecessary to go into the alternate arguments advanced on behalf of the assessee.8. At this stage of the judgment, learned counsel for the revenue draws our attention to the judgment, of a bench of two learned judges of this Court, in Calcutta Chromotype Limited v. Collector of Central Excise, Calcutta (1998 (3) SCC 681 : JT 1998 (2) SC 747 ). It does not appear to us that the judgment carries the case of the revenue any further, nor does learned counsel so suggest. He says that he has referred to it because of this sentence therein: "The principle that a company under the Companies Act, 1956 is a separate entity and, therefore where the manufacturer and the buyer are two separate companies, they cannot be anything more than related persons within the meaning of Clause (c) of(4) of S.4 of the Act is not the universal application." We have difficulty, for the reasons already stated, in accepting this as correct sentence. It appears to have been so stated in relation to and in the context of facts of that case. Therefore, the learned judges, it should be added, remanded the matter for further inquiry into the facts.9. At an earlier stage, this Court had directed a stay of the order of the tribunal provided, the appellant deposited fifty per cent of the additional duty demanded and furnished a bank guarantee for the balance, that has been done: Now that the appeal succeeds, the revenue shall refund to the assessee the deposit towards duty and the bank guarantee for the balance shall stand discharged.
|
Kumaranand Vs. Brij Mohan Lal & Another | statutory proceeding unknown to the common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequence of non-compliance with certain procedural requirements laid down by it. xx xx xx xxIn cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected."4. The question which then has to be considered is whether in case of failure to comply with requirements of Section 119A the High Court had jurisdiction to rectify the mistake committed in making the deposit for costs. There can be no doubt that an amount of Rs.500 was intended to be and was in fact deposited by the appellant as security for costs of the respondent, though it was described in the tender by the somewhat inappropriate caption "security deposit". It appears that the Advocate appearing for the appellant in the High Court did not properly appreciate the scope of the amendment made in the Act by Act 56 of 1956, which incorporated Section 119A. He proceeded as if this was an ordinary civil appeal in which security for costs was required by law to _ be deposited in Court. In not acquainting himself with the statutory provisions applicable to the due lodgment of the memorandum of appeal, the Advocate undoubtedly acted negligently, and if that was the only circumstance governing the disposal of the appeal, we would not be justified in interfering with the order of the High Court. There are, however, certain other considerations which have not been given due effect by the High Court before dismissing the appeal. In the absence of any penalty prescribed by the Legislature for failure to comply with the requirements of S. 119A the jurisdiction of the High Court to entertain the appeal is not affected or jeopardised. The appellant was, it is true, not entitled on that account to ignore the statutory provision requiring that a Government Treasury receipt for the requisite amount in favour of the Election Commission as security for the costs of the appeal shall be enclosed. But when there is default in complying with the requirement, it is for the Court in each case to consider whether it will exercise its discretion to proceed with the appeal after rectifying the mistake committed or it will decline to proceed with the appeal.5. In the present case as observed earlier the Advocate failed to acquaint himself about the provisions of S. 119A. It is also some what unfortunate that the office of the Registrar of the High Court shared the ignorance of the Advocate. The tender form which was produced before the High Court clearly discloses that the amount of Rs. 500 was intended to be deposited as security for costs of the respondent in the Election appeal : Kumaranand v. Brij Mohan Lal. Instead of depositing that amount in a Government Treasury or in the Reserve Bank, the amount was deposited in the High Court. The amount was accepted and the receipt was filed with the record, and this was regarded as sufficient compliance with the requirements of S. 119A. The Deputy Registrar of the High Court accepted the presentation and numbered the appeal without raising any objection to the procedure followed. This would justify an inference that the office of the Registrar of the High Court was misinformed, as the Advocate was, as to the statutory requirements imposed by the Representation of the People Act in the matter of deposit of security for costs of the appeal. If the memorandum of appeal had not been accepted by the Registrars office, because it was not accompanied by a Government Treasury receipt as required by the statute, the defect could have been cured by the appellant. But the memorandum of appeal was accepted, and was numbered as an appeal, and notice of the appeal was issued to the respondent. The objection to the regularity in the procedure was, it appears, brought to the notice of the Court only at the hearing. That the Advocate for the appellant was negligent cannot be gainsaid. But the conduct of the office of the Registrar of the High Court in accepting presentation of the appeal which did not comply with the requirements of S. 119A has largely contributed to the irregularity of the procedure followed. It is a trite saying that it it duty of the Court to take care that the act of the Court does no injury to any suitor. The Court is by statute not ob1iged to dismiss the appeal for failure to comply with the requirements of S: 119A : it has therefore jurisdiction having regard to the circumstances, either to permit rectification of the mistake, or to decline to proceed with the appeal which does not comply with the statutory requirements. In the present case we think that the High Court erred in not taking into consideration the conduct of the office of the Registrar in accepting the deposit of costs and also a defective presentation if the appeal which contributed to the irregularity of the procedure adopted by the appellant. In our view the High Court should have directed that the amount which had been deposited under the tender form on October 2l, 1963, be deposited in the Government Treasury in the name of the Election Commission, and a Government Treasury receipt be obtained in favour of the Election Commission as security for costs of the appeal preferred before the High Court. | 0[ds]It is clear from the terms of the tender that the amount was deposited in the High Court on behalf of the appellant Kumaranand as "security deposit" in the proceeding "Election appeal Kumaranand v. Brij Mohan Lal";, and the cashier endorsed on the tender form that the amount paid "may be deposited". The receipt was then entered in the Register and it "was ordered by the Accountant that it may be filed with the record. This deposit of Rs. 500 in the High Court manifestly did not comply with the requirements of S. 119A of the Act. The tender form did not indicate that the deposit was at the disposal of the Election Commission or that it was to be utilised in the manner authorised by law. Even it did not recite that the Election Commission had control over the amount or was payable on proper application being made in that behalf.In the present case as observed earlier the Advocate failed to acquaint himself about the provisions of S. 119A. It is also some what unfortunate that the office of the Registrar of the High Court shared the ignorance of the Advocate. The tender form which was produced before the High Court clearly discloses that the amount of Rs. 500 was intended to be deposited as security for costs of the respondent in the Election appeal : Kumaranand v. Brij Mohan Lal. Instead of depositing that amount in a Government Treasury or in the Reserve Bank, the amount was deposited in the High Court. The amount was accepted and the receipt was filed with the record, and this was regarded as sufficient compliance with the requirements of S. 119A. The Deputy Registrar of the High Court accepted the presentation and numbered the appeal without raising any objection to the procedure followed. This would justify an inference that the office of the Registrar of the High Court was misinformed, as the Advocate was, as to the statutory requirements imposed by the Representation of the People Act in the matter of deposit of security for costs of the appeal. If the memorandum of appeal had not been accepted by the Registrars office, because it was not accompanied by a Government Treasury receipt as required by the statute, the defect could have been cured by the appellant. But the memorandum of appeal was accepted, and was numbered as an appeal, and notice of the appeal was issued to the respondent. The objection to the regularity in the procedure was, it appears, brought to the notice of the Court only at the hearing. That the Advocate for the appellant was negligent cannot be gainsaid. But the conduct of the office of the Registrar of the High Court in accepting presentation of the appeal which did not comply with the requirements of S. 119A has largely contributed to the irregularity of the procedure followed. It is a trite saying that it it duty of the Court to take care that the act of the Court does no injury to any suitor. The Court is by statute not ob1iged to dismiss the appeal for failure to comply with the requirements of S: 119A : it has therefore jurisdiction having regard to the circumstances, either to permit rectification of the mistake, or to decline to proceed with the appeal which does not comply with the statutory requirements. In the present case we think that the High Court erred in not taking into consideration the conduct of the office of the Registrar in accepting the deposit of costs and also a defective presentation if the appeal which contributed to the irregularity of the procedure adopted by the appellant. In our view the High Court should have directed that the amount which had been deposited under the tender form on October 2l, 1963, be deposited in the Government Treasury in the name of the Election Commission, and a Government Treasury receipt be obtained in favour of the Election Commission as security for costs of the appeal preferred before the Highcan be no doubt that an amount of Rs.500 was intended to be and was in fact deposited by the appellant as security for costs of the respondent, though it was described in the tender by the somewhat inappropriate caption "security deposit". It appears that the Advocate appearing for the appellant in the High Court did not properly appreciate the scope of the amendment made in the Act by Act 56 of 1956, which incorporated Section 119A. He proceeded as if this was an ordinary civil appeal in which security for costs was required by law to _ be deposited in Court. In not acquainting himself with the statutory provisions applicable to the due lodgment of the memorandum of appeal, the Advocate undoubtedly acted negligently, and if that was the only circumstance governing the disposal of the appeal, we would not be justified in interfering with the order of the High Court. There are, however, certain other considerations which have not been given due effect by the High Court before dismissing the appeal. In the absence of any penalty prescribed by the Legislature for failure to comply with the requirements of S. 119A the jurisdiction of the High Court to entertain the appeal is not affected or jeopardised. The appellant was, it is true, not entitled on that account to ignore the statutory provision requiring that a Government Treasury receipt for the requisite amount in favour of the Election Commission as security for the costs of the appeal shall be enclosed. But when there is default in complying with the requirement, it is for the Court in each case to consider whether it will exercise its discretion to proceed with the appeal after rectifying the mistake committed or it will decline to proceed with the appeal. | 0 | 2,491 | 1,037 | ### 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:
statutory proceeding unknown to the common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequence of non-compliance with certain procedural requirements laid down by it. xx xx xx xxIn cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected."4. The question which then has to be considered is whether in case of failure to comply with requirements of Section 119A the High Court had jurisdiction to rectify the mistake committed in making the deposit for costs. There can be no doubt that an amount of Rs.500 was intended to be and was in fact deposited by the appellant as security for costs of the respondent, though it was described in the tender by the somewhat inappropriate caption "security deposit". It appears that the Advocate appearing for the appellant in the High Court did not properly appreciate the scope of the amendment made in the Act by Act 56 of 1956, which incorporated Section 119A. He proceeded as if this was an ordinary civil appeal in which security for costs was required by law to _ be deposited in Court. In not acquainting himself with the statutory provisions applicable to the due lodgment of the memorandum of appeal, the Advocate undoubtedly acted negligently, and if that was the only circumstance governing the disposal of the appeal, we would not be justified in interfering with the order of the High Court. There are, however, certain other considerations which have not been given due effect by the High Court before dismissing the appeal. In the absence of any penalty prescribed by the Legislature for failure to comply with the requirements of S. 119A the jurisdiction of the High Court to entertain the appeal is not affected or jeopardised. The appellant was, it is true, not entitled on that account to ignore the statutory provision requiring that a Government Treasury receipt for the requisite amount in favour of the Election Commission as security for the costs of the appeal shall be enclosed. But when there is default in complying with the requirement, it is for the Court in each case to consider whether it will exercise its discretion to proceed with the appeal after rectifying the mistake committed or it will decline to proceed with the appeal.5. In the present case as observed earlier the Advocate failed to acquaint himself about the provisions of S. 119A. It is also some what unfortunate that the office of the Registrar of the High Court shared the ignorance of the Advocate. The tender form which was produced before the High Court clearly discloses that the amount of Rs. 500 was intended to be deposited as security for costs of the respondent in the Election appeal : Kumaranand v. Brij Mohan Lal. Instead of depositing that amount in a Government Treasury or in the Reserve Bank, the amount was deposited in the High Court. The amount was accepted and the receipt was filed with the record, and this was regarded as sufficient compliance with the requirements of S. 119A. The Deputy Registrar of the High Court accepted the presentation and numbered the appeal without raising any objection to the procedure followed. This would justify an inference that the office of the Registrar of the High Court was misinformed, as the Advocate was, as to the statutory requirements imposed by the Representation of the People Act in the matter of deposit of security for costs of the appeal. If the memorandum of appeal had not been accepted by the Registrars office, because it was not accompanied by a Government Treasury receipt as required by the statute, the defect could have been cured by the appellant. But the memorandum of appeal was accepted, and was numbered as an appeal, and notice of the appeal was issued to the respondent. The objection to the regularity in the procedure was, it appears, brought to the notice of the Court only at the hearing. That the Advocate for the appellant was negligent cannot be gainsaid. But the conduct of the office of the Registrar of the High Court in accepting presentation of the appeal which did not comply with the requirements of S. 119A has largely contributed to the irregularity of the procedure followed. It is a trite saying that it it duty of the Court to take care that the act of the Court does no injury to any suitor. The Court is by statute not ob1iged to dismiss the appeal for failure to comply with the requirements of S: 119A : it has therefore jurisdiction having regard to the circumstances, either to permit rectification of the mistake, or to decline to proceed with the appeal which does not comply with the statutory requirements. In the present case we think that the High Court erred in not taking into consideration the conduct of the office of the Registrar in accepting the deposit of costs and also a defective presentation if the appeal which contributed to the irregularity of the procedure adopted by the appellant. In our view the High Court should have directed that the amount which had been deposited under the tender form on October 2l, 1963, be deposited in the Government Treasury in the name of the Election Commission, and a Government Treasury receipt be obtained in favour of the Election Commission as security for costs of the appeal preferred before the High Court.
### Response:
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### Explanation:
It is clear from the terms of the tender that the amount was deposited in the High Court on behalf of the appellant Kumaranand as "security deposit" in the proceeding "Election appeal Kumaranand v. Brij Mohan Lal";, and the cashier endorsed on the tender form that the amount paid "may be deposited". The receipt was then entered in the Register and it "was ordered by the Accountant that it may be filed with the record. This deposit of Rs. 500 in the High Court manifestly did not comply with the requirements of S. 119A of the Act. The tender form did not indicate that the deposit was at the disposal of the Election Commission or that it was to be utilised in the manner authorised by law. Even it did not recite that the Election Commission had control over the amount or was payable on proper application being made in that behalf.In the present case as observed earlier the Advocate failed to acquaint himself about the provisions of S. 119A. It is also some what unfortunate that the office of the Registrar of the High Court shared the ignorance of the Advocate. The tender form which was produced before the High Court clearly discloses that the amount of Rs. 500 was intended to be deposited as security for costs of the respondent in the Election appeal : Kumaranand v. Brij Mohan Lal. Instead of depositing that amount in a Government Treasury or in the Reserve Bank, the amount was deposited in the High Court. The amount was accepted and the receipt was filed with the record, and this was regarded as sufficient compliance with the requirements of S. 119A. The Deputy Registrar of the High Court accepted the presentation and numbered the appeal without raising any objection to the procedure followed. This would justify an inference that the office of the Registrar of the High Court was misinformed, as the Advocate was, as to the statutory requirements imposed by the Representation of the People Act in the matter of deposit of security for costs of the appeal. If the memorandum of appeal had not been accepted by the Registrars office, because it was not accompanied by a Government Treasury receipt as required by the statute, the defect could have been cured by the appellant. But the memorandum of appeal was accepted, and was numbered as an appeal, and notice of the appeal was issued to the respondent. The objection to the regularity in the procedure was, it appears, brought to the notice of the Court only at the hearing. That the Advocate for the appellant was negligent cannot be gainsaid. But the conduct of the office of the Registrar of the High Court in accepting presentation of the appeal which did not comply with the requirements of S. 119A has largely contributed to the irregularity of the procedure followed. It is a trite saying that it it duty of the Court to take care that the act of the Court does no injury to any suitor. The Court is by statute not ob1iged to dismiss the appeal for failure to comply with the requirements of S: 119A : it has therefore jurisdiction having regard to the circumstances, either to permit rectification of the mistake, or to decline to proceed with the appeal which does not comply with the statutory requirements. In the present case we think that the High Court erred in not taking into consideration the conduct of the office of the Registrar in accepting the deposit of costs and also a defective presentation if the appeal which contributed to the irregularity of the procedure adopted by the appellant. In our view the High Court should have directed that the amount which had been deposited under the tender form on October 2l, 1963, be deposited in the Government Treasury in the name of the Election Commission, and a Government Treasury receipt be obtained in favour of the Election Commission as security for costs of the appeal preferred before the Highcan be no doubt that an amount of Rs.500 was intended to be and was in fact deposited by the appellant as security for costs of the respondent, though it was described in the tender by the somewhat inappropriate caption "security deposit". It appears that the Advocate appearing for the appellant in the High Court did not properly appreciate the scope of the amendment made in the Act by Act 56 of 1956, which incorporated Section 119A. He proceeded as if this was an ordinary civil appeal in which security for costs was required by law to _ be deposited in Court. In not acquainting himself with the statutory provisions applicable to the due lodgment of the memorandum of appeal, the Advocate undoubtedly acted negligently, and if that was the only circumstance governing the disposal of the appeal, we would not be justified in interfering with the order of the High Court. There are, however, certain other considerations which have not been given due effect by the High Court before dismissing the appeal. In the absence of any penalty prescribed by the Legislature for failure to comply with the requirements of S. 119A the jurisdiction of the High Court to entertain the appeal is not affected or jeopardised. The appellant was, it is true, not entitled on that account to ignore the statutory provision requiring that a Government Treasury receipt for the requisite amount in favour of the Election Commission as security for the costs of the appeal shall be enclosed. But when there is default in complying with the requirement, it is for the Court in each case to consider whether it will exercise its discretion to proceed with the appeal after rectifying the mistake committed or it will decline to proceed with the appeal.
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Saraladevi Vs. Divisional Manager, Royal Sundaram Alliance Ins. Co. Ltd | income of the deceased, the balance amount works out to Rs.20,13,000/- which amounts to a total loss of dependency (Rs.30,19,500/- minus Rs.10,06,500/-). The High Court further held that there is contributory negligence on the part of the deceased which was assessed at 25% which amount would be Rs.5,03,250/-. When this amount was deducted out of Rs.20,13,000/-, the High Court held that the legal heirs of the deceased are entitled to Rs.15,09,750/- towards loss of dependency. Thus, the High Court reduced the total compensation and awarded under the following heads: CHART 8. Thus, the High Court while partly allowing the Civil Miscellaneous Appeal of the Insurance Company, directed it to deposit the above said amount with an interest at the rate of 7.5% per annum from the date of the petition, within a period of six weeks before the Tribunal after deducting the amount already deposited.9. Aggrieved by the impugned judgement and final Order dated 12.09.2012 passed by the High Court, the appellants filed this appeal before this Court urging various tenable grounds namely, as to whether the High Court was justified in holding that there is a contributory negligence on the part of the deceased contrary to the evidence of the eye witness; whether the High Court was justified in fixing the ratio of contributory negligence as 25% on the part of the deceased on the basis of an erroneous finding; whether the High Court was justified in reducing the amounts awarded by the Tribunal from Rs.37,33,248/- to Rs.15,84,750/- and lastly, whether the High Court was justified in deducting 1/3rd amount towards personal expenses of the deceased contrary to the law laid down by this Court in various judgements? 10. In our considered view, the High Court has erred in not considering the principles laid down in the case of Sarla Verma & Ors. (supra) in so far as deduction of 1/4th of the monthly income of the deceased to arrive at the multiplicand and reducing the compensation by adopting the split up multiplier. Further, recording the finding of contributory negligence on the part of the deceased in the absence of evidence on record in this regard rendered the finding erroneous in law and error in law as the same is contrary to the decision of this Court reported in Jiju Kuruvila and Ors. v. Kunjujamma Mohan & Ors. [2013) 9 SCC 166 ]. At the time of death, Vasanthan was 58 years old and was earning a salary of Rs.50,809/- per month i.e. Rs.6,09,708/- annually. By applying the appropriate multiplier of 8 as laid down under Kerala Road Transport Corporation v. Susamma Thomas [AIR 1994 SC 1631 ], the loss of dependency comes to Rs.48,77,708/-. 11. Further, deduction towards personal expenses of the deceased out of the annual income would be 1/4th as held by this Court in the case of Sarla Verma & Ors.(supra), the relevant portion of the judgment reads thus : – “30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one- fifth (1/5th) where the number of dependent family members exceeds six.” The High Court failed to follow the above judgement and committed an error in law in deducting 1/3rd amount towards personal expenses of the deceased. Therefore, as per the above judgement the deduction ought to be 1/4th only as correctly calculated by the Tribunal. Thus, after deducting 1/4th i.e. Rs.12,19,416/- towards personal expenses; the loss of dependency would be Rs.36,58,248/. Further, we affirm the sum granted by the Tribunal as Rs.5,000/- for funeral expenses, under the head of loss of estate at Rs.10,000/-, loss of consortium at Rs.10,000/- and Rs.50,000/- for loss of love and affection of the deceased.12. Further, the High Court has erred in not following the decision of Rajesh and Ors. v. Rajbir Singh and Ors. [(2013) 9 SCC 54] by awarding only Rs.10,000/- for loss of consortium, instead of Rs.1,00,000/-. Towards loss of estate, the High Court awarded Rs.10,000/- instead of Rs.1,00,000/. Therefore, to this extent there is loss caused to the appellants in not being compensated correctly under different heads such as, loss of consortium, loss of estate, and loss of love and affection. Further, as per Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [2011) 14 SCC 481 ], the appellants are entitled for 9% interest per annum on the compensation awarded from the date of filing of the application till the date of payment. Thus, there will be a difference of 1.5% interest amount payable on the total compensation awarded by both the Tribunal and the High Court as they have awarded at 7.5% interest. Therefore, if the less awarded difference of interest amount @ 1.5% by both the Tribunal and the High Court is taken into consideration on the total compensation awarded in favour of the appellants, it would take care of the amount that was required to be deducted towards income tax out of the gross salary of the deceased for determining the compensation under the heading of loss of dependency.13. Since, the High Court has erred in not correctly awarding compensation under the above heads and having regard to the facts and circumstances of the case, we affirm the Award of the Tribunal and the same is restored. Therefore, the determination of compensation under the loss of dependency under other heads as indicated in the following paragraph is perfectly legal and valid as the said compensation is just and reasonable keeping in view the monthly income at Rs.50,809/- as per the documentary evidence (Ex.P-7), the salary certificate. | 1[ds]10. In our considered view, the High Court has erred in not considering the principles laid down in the case of Sarla Verma & Ors. (supra) in so far as deduction of 1/4th of the monthly income of the deceased to arrive at the multiplicand and reducing the compensation by adopting the split up multiplier. Further, recording the finding of contributory negligence on the part of the deceased in the absence of evidence on record in this regard rendered the finding erroneous in law and error in law as the same is contrary to the decision of this Court reported in Jiju Kuruvila and Ors. v. Kunjujamma Mohan & Ors. [2013) 9 SCC 166 ]. At the time of death, Vasanthan was 58 years old and was earning a salary of Rs.50,809/per month i.e. Rs.6,09,708/Further, deduction towards personal expenses of the deceased out of the annual income would be 1/4th as held by this Court in the case of Sarla Verma & Ors.(supra), the relevant portion of the judgment reads thus :Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be(1/3rd) where the number of dependent family members is 2 to 3,(1/4th) where the number of dependent family members is 4 to 6, and onefifth (1/5th) where the number of dependent family members exceedsHigh Court failed to follow the above judgement and committed an error in law in deducting 1/3rd amount towards personal expenses of the deceased. Therefore, as per the above judgement the deduction ought to be 1/4th only as correctly calculated by the Tribunal. Thus, after deducting 1/4th i.e. Rs.12,19,416/towards personal expenses; the loss of dependency would be Rs.36,58,248/. Further, we affirm the sum granted by the Tribunal as Rs.5,000/for funeral expenses, under the head of loss of estate atloss of consortium at Rs.10,000/or loss of love and affection of the deceased.12. Further, the High Court has erred in not following the decision of Rajesh and Ors. v. Rajbir Singh and Ors. [(2013) 9 SCC 54] by awarding only Rs.10,000/for loss of consortium, instead of Rs.Towards loss of estate, the High Court awarded Rs.10,000/instead of Rs.1,00,000/. Therefore, to this extent there is loss caused to the appellants in not being compensated correctly under different heads such as, loss of consortium, loss of estate, and loss of love and affection. Further, as per Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [2011) 14 SCC 481 ], the appellants are entitled for 9% interest per annum on the compensation awarded from the date of filing of the application till the date of payment. Thus, there will be a difference of 1.5% interest amount payable on the total compensation awarded by both the Tribunal and the High Court as they have awarded at 7.5% interest. Therefore, if the less awarded difference of interest amount @ 1.5% by both the Tribunal and the High Court is taken into consideration on the total compensation awarded in favour of the appellants, it would take care of the amount that was required to be deducted towards income tax out of the gross salary of the deceased for determining the compensation under the heading of loss of dependency.13. Since, the High Court has erred in not correctly awarding compensation under the above heads and having regard to the facts and circumstances of the case, we affirm the Award of the Tribunal and the same isthe determination of compensation under the loss of dependency under other heads as indicated in the following paragraph is perfectly legal and valid as the said compensation is just and reasonable keeping in view the monthly income at Rs.50,809/as per the documentary evidencethe salary certificate. | 1 | 2,162 | 743 | ### 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:
income of the deceased, the balance amount works out to Rs.20,13,000/- which amounts to a total loss of dependency (Rs.30,19,500/- minus Rs.10,06,500/-). The High Court further held that there is contributory negligence on the part of the deceased which was assessed at 25% which amount would be Rs.5,03,250/-. When this amount was deducted out of Rs.20,13,000/-, the High Court held that the legal heirs of the deceased are entitled to Rs.15,09,750/- towards loss of dependency. Thus, the High Court reduced the total compensation and awarded under the following heads: CHART 8. Thus, the High Court while partly allowing the Civil Miscellaneous Appeal of the Insurance Company, directed it to deposit the above said amount with an interest at the rate of 7.5% per annum from the date of the petition, within a period of six weeks before the Tribunal after deducting the amount already deposited.9. Aggrieved by the impugned judgement and final Order dated 12.09.2012 passed by the High Court, the appellants filed this appeal before this Court urging various tenable grounds namely, as to whether the High Court was justified in holding that there is a contributory negligence on the part of the deceased contrary to the evidence of the eye witness; whether the High Court was justified in fixing the ratio of contributory negligence as 25% on the part of the deceased on the basis of an erroneous finding; whether the High Court was justified in reducing the amounts awarded by the Tribunal from Rs.37,33,248/- to Rs.15,84,750/- and lastly, whether the High Court was justified in deducting 1/3rd amount towards personal expenses of the deceased contrary to the law laid down by this Court in various judgements? 10. In our considered view, the High Court has erred in not considering the principles laid down in the case of Sarla Verma & Ors. (supra) in so far as deduction of 1/4th of the monthly income of the deceased to arrive at the multiplicand and reducing the compensation by adopting the split up multiplier. Further, recording the finding of contributory negligence on the part of the deceased in the absence of evidence on record in this regard rendered the finding erroneous in law and error in law as the same is contrary to the decision of this Court reported in Jiju Kuruvila and Ors. v. Kunjujamma Mohan & Ors. [2013) 9 SCC 166 ]. At the time of death, Vasanthan was 58 years old and was earning a salary of Rs.50,809/- per month i.e. Rs.6,09,708/- annually. By applying the appropriate multiplier of 8 as laid down under Kerala Road Transport Corporation v. Susamma Thomas [AIR 1994 SC 1631 ], the loss of dependency comes to Rs.48,77,708/-. 11. Further, deduction towards personal expenses of the deceased out of the annual income would be 1/4th as held by this Court in the case of Sarla Verma & Ors.(supra), the relevant portion of the judgment reads thus : – “30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one- fifth (1/5th) where the number of dependent family members exceeds six.” The High Court failed to follow the above judgement and committed an error in law in deducting 1/3rd amount towards personal expenses of the deceased. Therefore, as per the above judgement the deduction ought to be 1/4th only as correctly calculated by the Tribunal. Thus, after deducting 1/4th i.e. Rs.12,19,416/- towards personal expenses; the loss of dependency would be Rs.36,58,248/. Further, we affirm the sum granted by the Tribunal as Rs.5,000/- for funeral expenses, under the head of loss of estate at Rs.10,000/-, loss of consortium at Rs.10,000/- and Rs.50,000/- for loss of love and affection of the deceased.12. Further, the High Court has erred in not following the decision of Rajesh and Ors. v. Rajbir Singh and Ors. [(2013) 9 SCC 54] by awarding only Rs.10,000/- for loss of consortium, instead of Rs.1,00,000/-. Towards loss of estate, the High Court awarded Rs.10,000/- instead of Rs.1,00,000/. Therefore, to this extent there is loss caused to the appellants in not being compensated correctly under different heads such as, loss of consortium, loss of estate, and loss of love and affection. Further, as per Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [2011) 14 SCC 481 ], the appellants are entitled for 9% interest per annum on the compensation awarded from the date of filing of the application till the date of payment. Thus, there will be a difference of 1.5% interest amount payable on the total compensation awarded by both the Tribunal and the High Court as they have awarded at 7.5% interest. Therefore, if the less awarded difference of interest amount @ 1.5% by both the Tribunal and the High Court is taken into consideration on the total compensation awarded in favour of the appellants, it would take care of the amount that was required to be deducted towards income tax out of the gross salary of the deceased for determining the compensation under the heading of loss of dependency.13. Since, the High Court has erred in not correctly awarding compensation under the above heads and having regard to the facts and circumstances of the case, we affirm the Award of the Tribunal and the same is restored. Therefore, the determination of compensation under the loss of dependency under other heads as indicated in the following paragraph is perfectly legal and valid as the said compensation is just and reasonable keeping in view the monthly income at Rs.50,809/- as per the documentary evidence (Ex.P-7), the salary certificate.
### Response:
1
### Explanation:
10. In our considered view, the High Court has erred in not considering the principles laid down in the case of Sarla Verma & Ors. (supra) in so far as deduction of 1/4th of the monthly income of the deceased to arrive at the multiplicand and reducing the compensation by adopting the split up multiplier. Further, recording the finding of contributory negligence on the part of the deceased in the absence of evidence on record in this regard rendered the finding erroneous in law and error in law as the same is contrary to the decision of this Court reported in Jiju Kuruvila and Ors. v. Kunjujamma Mohan & Ors. [2013) 9 SCC 166 ]. At the time of death, Vasanthan was 58 years old and was earning a salary of Rs.50,809/per month i.e. Rs.6,09,708/Further, deduction towards personal expenses of the deceased out of the annual income would be 1/4th as held by this Court in the case of Sarla Verma & Ors.(supra), the relevant portion of the judgment reads thus :Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be(1/3rd) where the number of dependent family members is 2 to 3,(1/4th) where the number of dependent family members is 4 to 6, and onefifth (1/5th) where the number of dependent family members exceedsHigh Court failed to follow the above judgement and committed an error in law in deducting 1/3rd amount towards personal expenses of the deceased. Therefore, as per the above judgement the deduction ought to be 1/4th only as correctly calculated by the Tribunal. Thus, after deducting 1/4th i.e. Rs.12,19,416/towards personal expenses; the loss of dependency would be Rs.36,58,248/. Further, we affirm the sum granted by the Tribunal as Rs.5,000/for funeral expenses, under the head of loss of estate atloss of consortium at Rs.10,000/or loss of love and affection of the deceased.12. Further, the High Court has erred in not following the decision of Rajesh and Ors. v. Rajbir Singh and Ors. [(2013) 9 SCC 54] by awarding only Rs.10,000/for loss of consortium, instead of Rs.Towards loss of estate, the High Court awarded Rs.10,000/instead of Rs.1,00,000/. Therefore, to this extent there is loss caused to the appellants in not being compensated correctly under different heads such as, loss of consortium, loss of estate, and loss of love and affection. Further, as per Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [2011) 14 SCC 481 ], the appellants are entitled for 9% interest per annum on the compensation awarded from the date of filing of the application till the date of payment. Thus, there will be a difference of 1.5% interest amount payable on the total compensation awarded by both the Tribunal and the High Court as they have awarded at 7.5% interest. Therefore, if the less awarded difference of interest amount @ 1.5% by both the Tribunal and the High Court is taken into consideration on the total compensation awarded in favour of the appellants, it would take care of the amount that was required to be deducted towards income tax out of the gross salary of the deceased for determining the compensation under the heading of loss of dependency.13. Since, the High Court has erred in not correctly awarding compensation under the above heads and having regard to the facts and circumstances of the case, we affirm the Award of the Tribunal and the same isthe determination of compensation under the loss of dependency under other heads as indicated in the following paragraph is perfectly legal and valid as the said compensation is just and reasonable keeping in view the monthly income at Rs.50,809/as per the documentary evidencethe salary certificate.
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KEISHAM MEGHACHANDRA SINGH Vs. THE HONBLE SPEAKER MANIPUR LEGISLATIVE ASSEMBLY | meant to be outside the pale of judicial review in paragraph 110 of Kihoto Hollohan (supra) are quia timet actions in the sense of injunctions to prevent the Speaker from making a decision on the ground of imminent apprehended danger which will be irreparable in the sense that if the Speaker proceeds to decide that the person be disqualified, he would incur the penalty of forfeiting his membership of the House for a long period. Paragraphs 110 and 111 of Kihoto Hollohan (supra) do not, therefore, in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule. Indeed, the Speaker, in acting as a Tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable period. What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana (supra), if they have infracted the provisions of the Tenth Schedule. 29. In the years that have followed the enactment of the Tenth Schedule in 1985, this Courts experience of decisions made by Speakers generally leads us to believe that the fears of the minority judgment in Kihoto Hollohan (supra) have actually come home to roost. Verma, J. had held : 181. The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a Member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes. Rule of law has in it firmly entrenched, natural justice, of which, rule against bias is a necessary concomitant; and basic postulates of rule against bias are: nemo judex in causa sua — A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased; and it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. This appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House. The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy. There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court is outside the judiciary in the Parliament under Article 124(4). On the same principle the authority to decide the question of disqualification of a Member of Legislature is outside the House as envisaged by Articles 103 and 192. 182. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speakers decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the Speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality. 30. It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto. Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy. 31. It is not possible to accede to Shri Sibals submission that this Court issue a writ of quo warranto quashing the appointment of the Respondent No.3 as a minister of a cabinet led by a BJP government. Mrs. Madhavi Divan is right in stating that a disqualification under the Tenth Schedule from being an MLA and consequently minister must first be decided by the exclusive authority in this behalf, namely, the Speaker of the Manipur Legislative Assembly. It is also not possible to accede to the argument of Shri Sibal that the disqualification petition be decided by this Court in these appeals given the inaction of the Speaker. It cannot be said that the facts in the present case are similar to the facts in Rajinder Singh Rana (supra). In the present case, the life of the legislative assembly comes to an end only in March, 2022 unlike in Rajinder Singh Rana (supra) where, but for this Court deciding the disqualification petition in effect, no relief could have been given to the petitioner in that case as the life of the legislative assembly was about to come to an end. | 1[ds]11. We would have acceded to Mrs. Madhavi Divans plea that in view of this order of a Division Bench of this Court, the hearing of this case ought to be deferred until the pronouncement by a Five Judge Bench of this Court on the issues raised in the present petition. However, we find that this very issue was addressed by a Five Judge Bench judgment in Rajendra Singh Rana (supra) and has already been answered. Unfortunately, the decision contained in the aforesaid judgment was not brought to the notice of the Division Bench which referred the matter to Five Honble Judges of this Court, though Rajendra Singh Rana (supra) was sought to be distinguished in Kuldeep Bishnoi (supra), which was brought to the notice of the Division Bench of this Court22. It is clear from a reading of the judgment in Rajendra Singh Rana (supra) and, in particular, the underlined portions of paragraphs 40 and 41 that the very question referred by the Two Judge Bench in S.A. Sampath Kumar (supra) has clearly been answered stating that a failure to exercise jurisdiction vested in a Speaker cannot be covered by the shield contained in paragraph 6 of the Tenth Schedule, and that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error which attracted jurisdiction of the High Court in exercise of the power of judicial review23. Indeed, the same result would ensue on a proper reading of Kihoto Hollohan (supra). Paragraphs 110 and 111 of the said judgment when read together would make it clear that what the finality clause in paragraph 6 of the Tenth Schedule protects is the exclusive jurisdiction that vests in the Speaker to decide disqualification petitions so that nothing should come in the way of deciding such petitions. The exception that is made is also of importance in that interlocutory interference with decisions of the Speaker can only be qua interlocutory disqualifications or suspensions, which may have grave, immediate, and irreversible repercussions. Indeed, the Court made it clear that judicial review is not available at a stage prior to the making of a decision by the Speaker either by a way of quia timet action or by other interlocutory orders28. A reading of the aforesaid decisions, therefore, shows that what was meant to be outside the pale of judicial review in paragraph 110 of Kihoto Hollohan (supra) are quia timet actions in the sense of injunctions to prevent the Speaker from making a decision on the ground of imminent apprehended danger which will be irreparable in the sense that if the Speaker proceeds to decide that the person be disqualified, he would incur the penalty of forfeiting his membership of the House for a long period. Paragraphs 110 and 111 of Kihoto Hollohan (supra) do not, therefore, in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule. Indeed, the Speaker, in acting as a Tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable period. What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana (supra), if they have infracted the provisions of the Tenth Schedule31. It is not possible to accede to Shri Sibals submission that this Court issue a writ of quo warranto quashing the appointment of the Respondent No.3 as a minister of a cabinet led by a BJP government. Mrs. Madhavi Divan is right in stating that a disqualification under the Tenth Schedule from being an MLA and consequently minister must first be decided by the exclusive authority in this behalf, namely, the Speaker of the Manipur Legislative Assembly. It is also not possible to accede to the argument of Shri Sibal that the disqualification petition be decided by this Court in these appeals given the inaction of the Speaker. It cannot be said that the facts in the present case are similar to the facts in Rajinder Singh Rana (supra). In the present case, the life of the legislative assembly comes to an end only in March, 2022 unlike in Rajinder Singh Rana (supra) where, but for this Court deciding the disqualification petition in effect, no relief could have been given to the petitioner in that case as the life of the legislative assembly was about to come to an end. | 1 | 8,993 | 922 | ### 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:
meant to be outside the pale of judicial review in paragraph 110 of Kihoto Hollohan (supra) are quia timet actions in the sense of injunctions to prevent the Speaker from making a decision on the ground of imminent apprehended danger which will be irreparable in the sense that if the Speaker proceeds to decide that the person be disqualified, he would incur the penalty of forfeiting his membership of the House for a long period. Paragraphs 110 and 111 of Kihoto Hollohan (supra) do not, therefore, in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule. Indeed, the Speaker, in acting as a Tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable period. What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana (supra), if they have infracted the provisions of the Tenth Schedule. 29. In the years that have followed the enactment of the Tenth Schedule in 1985, this Courts experience of decisions made by Speakers generally leads us to believe that the fears of the minority judgment in Kihoto Hollohan (supra) have actually come home to roost. Verma, J. had held : 181. The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a Member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes. Rule of law has in it firmly entrenched, natural justice, of which, rule against bias is a necessary concomitant; and basic postulates of rule against bias are: nemo judex in causa sua — A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased; and it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. This appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House. The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy. There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court is outside the judiciary in the Parliament under Article 124(4). On the same principle the authority to decide the question of disqualification of a Member of Legislature is outside the House as envisaged by Articles 103 and 192. 182. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speakers decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the Speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality. 30. It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto. Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy. 31. It is not possible to accede to Shri Sibals submission that this Court issue a writ of quo warranto quashing the appointment of the Respondent No.3 as a minister of a cabinet led by a BJP government. Mrs. Madhavi Divan is right in stating that a disqualification under the Tenth Schedule from being an MLA and consequently minister must first be decided by the exclusive authority in this behalf, namely, the Speaker of the Manipur Legislative Assembly. It is also not possible to accede to the argument of Shri Sibal that the disqualification petition be decided by this Court in these appeals given the inaction of the Speaker. It cannot be said that the facts in the present case are similar to the facts in Rajinder Singh Rana (supra). In the present case, the life of the legislative assembly comes to an end only in March, 2022 unlike in Rajinder Singh Rana (supra) where, but for this Court deciding the disqualification petition in effect, no relief could have been given to the petitioner in that case as the life of the legislative assembly was about to come to an end.
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11. We would have acceded to Mrs. Madhavi Divans plea that in view of this order of a Division Bench of this Court, the hearing of this case ought to be deferred until the pronouncement by a Five Judge Bench of this Court on the issues raised in the present petition. However, we find that this very issue was addressed by a Five Judge Bench judgment in Rajendra Singh Rana (supra) and has already been answered. Unfortunately, the decision contained in the aforesaid judgment was not brought to the notice of the Division Bench which referred the matter to Five Honble Judges of this Court, though Rajendra Singh Rana (supra) was sought to be distinguished in Kuldeep Bishnoi (supra), which was brought to the notice of the Division Bench of this Court22. It is clear from a reading of the judgment in Rajendra Singh Rana (supra) and, in particular, the underlined portions of paragraphs 40 and 41 that the very question referred by the Two Judge Bench in S.A. Sampath Kumar (supra) has clearly been answered stating that a failure to exercise jurisdiction vested in a Speaker cannot be covered by the shield contained in paragraph 6 of the Tenth Schedule, and that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error which attracted jurisdiction of the High Court in exercise of the power of judicial review23. Indeed, the same result would ensue on a proper reading of Kihoto Hollohan (supra). Paragraphs 110 and 111 of the said judgment when read together would make it clear that what the finality clause in paragraph 6 of the Tenth Schedule protects is the exclusive jurisdiction that vests in the Speaker to decide disqualification petitions so that nothing should come in the way of deciding such petitions. The exception that is made is also of importance in that interlocutory interference with decisions of the Speaker can only be qua interlocutory disqualifications or suspensions, which may have grave, immediate, and irreversible repercussions. Indeed, the Court made it clear that judicial review is not available at a stage prior to the making of a decision by the Speaker either by a way of quia timet action or by other interlocutory orders28. A reading of the aforesaid decisions, therefore, shows that what was meant to be outside the pale of judicial review in paragraph 110 of Kihoto Hollohan (supra) are quia timet actions in the sense of injunctions to prevent the Speaker from making a decision on the ground of imminent apprehended danger which will be irreparable in the sense that if the Speaker proceeds to decide that the person be disqualified, he would incur the penalty of forfeiting his membership of the House for a long period. Paragraphs 110 and 111 of Kihoto Hollohan (supra) do not, therefore, in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule. Indeed, the Speaker, in acting as a Tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable period. What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana (supra), if they have infracted the provisions of the Tenth Schedule31. It is not possible to accede to Shri Sibals submission that this Court issue a writ of quo warranto quashing the appointment of the Respondent No.3 as a minister of a cabinet led by a BJP government. Mrs. Madhavi Divan is right in stating that a disqualification under the Tenth Schedule from being an MLA and consequently minister must first be decided by the exclusive authority in this behalf, namely, the Speaker of the Manipur Legislative Assembly. It is also not possible to accede to the argument of Shri Sibal that the disqualification petition be decided by this Court in these appeals given the inaction of the Speaker. It cannot be said that the facts in the present case are similar to the facts in Rajinder Singh Rana (supra). In the present case, the life of the legislative assembly comes to an end only in March, 2022 unlike in Rajinder Singh Rana (supra) where, but for this Court deciding the disqualification petition in effect, no relief could have been given to the petitioner in that case as the life of the legislative assembly was about to come to an end.
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Ebrahim Aboobaker and Another Vs. Tek Chand Dolwani | done in consequence thereof."The section shows that where the property has vested in the Custodian, then the death of the evacuee or his ceasing to be an evacuee afterwards shall not affect the vesting or render invalid anything done in consequence thereof. The section seems to suggest that the vesting must take place in the life-time of the alleged evacuee, otherwise there was no point in providing that the vesting will not be affected by the death of the evacuee or the evacuee ceasing to be so.24. The Solicitor-General contended that s. 43 embodies the principle "once an evacuee always an evacuee." This conclusion is hardly justified on the terms of S. 43 as explained above and it finds no support from the other provisions of the Act. The object and the scheme of the Act leave little doubt that the Act was intended, as its title shows, to provide for the administration of evacuee property and it is common ground that this property has ultimately to be used for compensating the refugees who had lost their property in Pakistan. The Act contains elaborate provisions as to how the administration is to be carried out.25. Section 9 enables the Custodian to take possession of the evacuee property vested in him under S. 8 and S. 10 which defines the powers of the Custodian generally enables him to take such measures as he considers necessary or expedient for the purposes of administering, preserving and managing any evacuee property. These are mentioned in detail in sub-s. (2) of S. 10, cl. (j), which authorizes the Custodian to institute defend or continue any legal proceedings in any civil or Revenue court on behalf of the evacuee.26. Section 15 imposes an obligation on him to maintain a separate account of the property of each evacuee.27. Section 16 empowers the Custodian to restore the evacuee property upon application to the evacuee or any person claiming to be his heir provided he produces a certificate from the Central Government that the evacuee property may be restored to him. Upon restoration the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored.28. By S. 52 of the Act, it is open to the Central Government by notification in the Official Gazette, to exempt any person or class of persons or any property or class of property from the operation of all or any of the provisions of this Act. In pursuance of this section the Central Government issued Notification No. S. R. O. 260, dated 3-7-1950 which was published in the Gazette of India Part II-S. 3, dated 15-7-1950, page 254, in which broadly three categories of persons were exempted:(a) Any person who on or after 1-3-1947, migrated from India to Pakistan but had returned to India before 18-7-1948, and had settled therein;(b) Any person who has left or leaves for Pakistan on a temporary visit taking with himself a No objection to return certificate, and has returned, or returns, to India under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent return to India; and(c) Any person who has come from Pakistan to India before 18-10-1949, under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent resettlement in India.29. These provisions far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and into property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him. These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions. The property does not suffer from any inherent infirmity but becomes evacuee because of the disability attaching to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner.30. Mr. Desai, counsel for the petitioner, referred in the course of the arguments to S. 93.Presidency-Towns Insolvency Act and S. 17, Provincial Insolvency Act. According to the former ;"If a debtor by or against whom an insolvency petition has been presented dies, the Proceedings in the matter shall, unless the court otherwise orders, be continued as if he were alive."By the latter section :"if a debtor by or against whom an insolvency petition has been presented dies, the proceedings in the matter shall, unless the court otherwise orders, be continued so far as may be necessary for the realisation and distribution of the property of the debtor."Though there is slight difference in the language of these two sections, the principle underlying the Insolvency law seems to be that the death of the insolvent during the pendency of the application for insolvency does not cause the proceedings to abate but that they must be continued so that his property could be administered for the benefit of the creditors. There is no such provision in the Act before us. It follows, therefore, that if the intention of the legislature had been to treat the person proceeded against under S. 7 as alive for purposes of the proceedings even after his death, such a provision would have been incorporated into the Act.31. After giving our best consideration to the case we are of opinion that the order of 30-7-1951, passed by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and the property left by him as evacuee property cannot stand and must be set aside | 1[ds]He might have misapplied or misappreciated the law or committed an error in the assumption or exercise of jurisdiction, but that would not bring the case within the purview of Art. 31 (1) read with Art. 19 (1) (f) of the Constitution. The point is debatable and we do not desire to express any opinion upon this point as we propose to examine the validity of the order of the Custodian General dated 30-7-1951, in the appeal (Civil Appeal No. 65 of 1953) which arose out of Petition No. 105 of 1952 for special leave and not on the petition under Art. 32.The use of the present tense "leaves or has left in the definition of evacuee and has in the definition of evacuee property is relied upon in support of the contention that the object of the legislature in enacting these provisions was to confine their operation to a living person only. This line of argument may not per se be of any compelling force but it receives support from the rest of the provisions of the Act16. It is obvious that property must be declared to be evacuee property under S. 7 before it can vest under S. 8. There is no doubt that when the property does so vest the vesting takes effect retrospectively, but where the man dies before any such declaration is made, the doctrine of relation back cannot be invoked so as to affect the vesting of such property in the legal heirs by operation ofReading ss. 7 and 8 together, it appears that the Custodian gets dominion over the property only after the declaration is made. The declaration follows upon the inquiry made under s. 7, but until the proceeding is taken under S. 7, there can be no vesting of the property and consequently no right in the Custodian to take possession of it. Now if the alleged evacuee dies before the declaration, has the Custodian any right to take possession of the property ?If he cannot take possession of the property of a living person before the declaration, by the same token he cannot take possession after the death of the alleged evacuee when the property had passed into the hands of the heirs. The inquiry under S. 7 is a condition precedent to the making of a declaration under S. 8 and the right of the Custodian to exercise dominion over the property does not arise until the declaration is made. There is no reason, therefore, why the heirs should be deprived of their property before the Custodian obtains dominion.The matter may be looked at from another point of view. Section 141, Civil P. C. which makes the procedure of the Court in regard to suits applicable in all proceedings in any Court of civil jurisdiction does not apply, as the Custodian is not a Court, though the proceedings held by him are of a quasi-judicial nature. Section 45 of the Act applies the provisions of the Code only in respect of enforcing the attendance of any person and examining him on oath and compelling the discovery and production of documents.19. The provision of the Code relating to substitution are, therefore, inapplicable and there is no other provision in the Act for the heirs to be substituted in place of the deceased so as to continue proceedings against them. If the proceedings cannot be continued against the heirs upon the death of the alleged evacuee, it is logical to hold that they cannot be initiated against them. We hold, therefore, that the proceedings must lapse upon the death of such person.It is a well-recognised proposition of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death, and the is neither suspended by reason of debts due from the deceased, nor is the distribution of the shares inherited postponed till the payment of the debts. It is also well understood that property vests in the heirs under the Mohammedan law, unlike the Indian Succession Act, without the intervention of an administrator.It was contended before us that the Act aims at fixing the nature of the property from a particular date and that the proceedings taken are against the property and not against the person.This argument is fallacious. There can be no property evacuee or otherwise unless there is a person who owns that property. It is the property of the owner which is declared to be evacuee property by reason of the fact that he is subject to disability on certain grounds.These provisions far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and into property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him. These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions. The property does not suffer from any inherent infirmity but becomes evacuee because of the disability attaching to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner.After giving our best consideration to the case we are of opinion that the order of 30-7-1951, passed by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and the property left by him as evacuee property cannot stand and must be set | 1 | 5,782 | 1,028 | ### 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:
done in consequence thereof."The section shows that where the property has vested in the Custodian, then the death of the evacuee or his ceasing to be an evacuee afterwards shall not affect the vesting or render invalid anything done in consequence thereof. The section seems to suggest that the vesting must take place in the life-time of the alleged evacuee, otherwise there was no point in providing that the vesting will not be affected by the death of the evacuee or the evacuee ceasing to be so.24. The Solicitor-General contended that s. 43 embodies the principle "once an evacuee always an evacuee." This conclusion is hardly justified on the terms of S. 43 as explained above and it finds no support from the other provisions of the Act. The object and the scheme of the Act leave little doubt that the Act was intended, as its title shows, to provide for the administration of evacuee property and it is common ground that this property has ultimately to be used for compensating the refugees who had lost their property in Pakistan. The Act contains elaborate provisions as to how the administration is to be carried out.25. Section 9 enables the Custodian to take possession of the evacuee property vested in him under S. 8 and S. 10 which defines the powers of the Custodian generally enables him to take such measures as he considers necessary or expedient for the purposes of administering, preserving and managing any evacuee property. These are mentioned in detail in sub-s. (2) of S. 10, cl. (j), which authorizes the Custodian to institute defend or continue any legal proceedings in any civil or Revenue court on behalf of the evacuee.26. Section 15 imposes an obligation on him to maintain a separate account of the property of each evacuee.27. Section 16 empowers the Custodian to restore the evacuee property upon application to the evacuee or any person claiming to be his heir provided he produces a certificate from the Central Government that the evacuee property may be restored to him. Upon restoration the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored.28. By S. 52 of the Act, it is open to the Central Government by notification in the Official Gazette, to exempt any person or class of persons or any property or class of property from the operation of all or any of the provisions of this Act. In pursuance of this section the Central Government issued Notification No. S. R. O. 260, dated 3-7-1950 which was published in the Gazette of India Part II-S. 3, dated 15-7-1950, page 254, in which broadly three categories of persons were exempted:(a) Any person who on or after 1-3-1947, migrated from India to Pakistan but had returned to India before 18-7-1948, and had settled therein;(b) Any person who has left or leaves for Pakistan on a temporary visit taking with himself a No objection to return certificate, and has returned, or returns, to India under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent return to India; and(c) Any person who has come from Pakistan to India before 18-10-1949, under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent resettlement in India.29. These provisions far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and into property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him. These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions. The property does not suffer from any inherent infirmity but becomes evacuee because of the disability attaching to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner.30. Mr. Desai, counsel for the petitioner, referred in the course of the arguments to S. 93.Presidency-Towns Insolvency Act and S. 17, Provincial Insolvency Act. According to the former ;"If a debtor by or against whom an insolvency petition has been presented dies, the Proceedings in the matter shall, unless the court otherwise orders, be continued as if he were alive."By the latter section :"if a debtor by or against whom an insolvency petition has been presented dies, the proceedings in the matter shall, unless the court otherwise orders, be continued so far as may be necessary for the realisation and distribution of the property of the debtor."Though there is slight difference in the language of these two sections, the principle underlying the Insolvency law seems to be that the death of the insolvent during the pendency of the application for insolvency does not cause the proceedings to abate but that they must be continued so that his property could be administered for the benefit of the creditors. There is no such provision in the Act before us. It follows, therefore, that if the intention of the legislature had been to treat the person proceeded against under S. 7 as alive for purposes of the proceedings even after his death, such a provision would have been incorporated into the Act.31. After giving our best consideration to the case we are of opinion that the order of 30-7-1951, passed by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and the property left by him as evacuee property cannot stand and must be set aside
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### Explanation:
He might have misapplied or misappreciated the law or committed an error in the assumption or exercise of jurisdiction, but that would not bring the case within the purview of Art. 31 (1) read with Art. 19 (1) (f) of the Constitution. The point is debatable and we do not desire to express any opinion upon this point as we propose to examine the validity of the order of the Custodian General dated 30-7-1951, in the appeal (Civil Appeal No. 65 of 1953) which arose out of Petition No. 105 of 1952 for special leave and not on the petition under Art. 32.The use of the present tense "leaves or has left in the definition of evacuee and has in the definition of evacuee property is relied upon in support of the contention that the object of the legislature in enacting these provisions was to confine their operation to a living person only. This line of argument may not per se be of any compelling force but it receives support from the rest of the provisions of the Act16. It is obvious that property must be declared to be evacuee property under S. 7 before it can vest under S. 8. There is no doubt that when the property does so vest the vesting takes effect retrospectively, but where the man dies before any such declaration is made, the doctrine of relation back cannot be invoked so as to affect the vesting of such property in the legal heirs by operation ofReading ss. 7 and 8 together, it appears that the Custodian gets dominion over the property only after the declaration is made. The declaration follows upon the inquiry made under s. 7, but until the proceeding is taken under S. 7, there can be no vesting of the property and consequently no right in the Custodian to take possession of it. Now if the alleged evacuee dies before the declaration, has the Custodian any right to take possession of the property ?If he cannot take possession of the property of a living person before the declaration, by the same token he cannot take possession after the death of the alleged evacuee when the property had passed into the hands of the heirs. The inquiry under S. 7 is a condition precedent to the making of a declaration under S. 8 and the right of the Custodian to exercise dominion over the property does not arise until the declaration is made. There is no reason, therefore, why the heirs should be deprived of their property before the Custodian obtains dominion.The matter may be looked at from another point of view. Section 141, Civil P. C. which makes the procedure of the Court in regard to suits applicable in all proceedings in any Court of civil jurisdiction does not apply, as the Custodian is not a Court, though the proceedings held by him are of a quasi-judicial nature. Section 45 of the Act applies the provisions of the Code only in respect of enforcing the attendance of any person and examining him on oath and compelling the discovery and production of documents.19. The provision of the Code relating to substitution are, therefore, inapplicable and there is no other provision in the Act for the heirs to be substituted in place of the deceased so as to continue proceedings against them. If the proceedings cannot be continued against the heirs upon the death of the alleged evacuee, it is logical to hold that they cannot be initiated against them. We hold, therefore, that the proceedings must lapse upon the death of such person.It is a well-recognised proposition of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death, and the is neither suspended by reason of debts due from the deceased, nor is the distribution of the shares inherited postponed till the payment of the debts. It is also well understood that property vests in the heirs under the Mohammedan law, unlike the Indian Succession Act, without the intervention of an administrator.It was contended before us that the Act aims at fixing the nature of the property from a particular date and that the proceedings taken are against the property and not against the person.This argument is fallacious. There can be no property evacuee or otherwise unless there is a person who owns that property. It is the property of the owner which is declared to be evacuee property by reason of the fact that he is subject to disability on certain grounds.These provisions far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and into property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him. These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions. The property does not suffer from any inherent infirmity but becomes evacuee because of the disability attaching to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner.After giving our best consideration to the case we are of opinion that the order of 30-7-1951, passed by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and the property left by him as evacuee property cannot stand and must be set
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V. K. A. Ranganatha Konar Vs. The Tiruchirappalli Municipal Council, By Itscommissioner, | the building and trees thereon. Section 4(4) contains a mandatory provision that if the amount found due is not paid within three months, the suit of the landlord shall stand dismissed. We will presently deal with the question of construing these two sub-sections. Meanwhile, we may refer to S. 10. Section 10(1) provides that Section 4, 5, 6, 8, 9 and 9-A shall, inter alia, apply to suits in ejectment which are pending or in which decrees for ejectment have been passed, but have not been executed. Section 10(2) deals with cases in which decrees for ejectment have been passed, but the amount of compensation has not been determined, and if provides that on an application by the tenant, such amount would be determined in accordance with S. 4. Section 10(3) deals with cases of decrees which are pending execution; and it requires that the Court shall, on the application of the tenant, recall execution orders, ascertain the amount of compensation, and pass an interim order under S. 4. It will thus be clear that wherever the Act is extended, the protection afforded by the Act and the benefits conferred by it can be claimed not only by tenants against whom suits are pending or would be filed in future, but also by tenants against whom decrees have already been passed, but have not been fully executed. Section 10 clearly brings out the fact that the policy of the legislature was to extend ample protection to the tenants in the areas to which the Act would be extended from time to time.10. Reverting then to the question of construing S. 4(1) and (4), it would appear that what S. 4(1) purports to do is to require that the decree in the suit to which it applies shall, in the first instance, declare the amount found due by way of compensation. The said provision also requires that the decree shall declare that the tenant shall put the landlord into possession of the land on payment by the landlord into court, within three months from the date of the decree, of the amount found due. The two operative parts of the decree as contemplated by S. 4 (1) are: the declaration of the amount due to the tenant, and the direction to the tenant to deliver possession of the land to the landlord in case he paid into Court within three months of the date of the decree the amount declared due. It is true that the decree would state that the landlord has to pay the amount within three months from its date; but having regard to the specific and mandatory terms in which S. 4(4) is couched, it would not be reasonable to construe S. 4(1) as controlling S. 4(4).The relevant clause provides that the decree shall direct that on payment by the landlord into Court, within three months, of the amount found due, the tenant shall put the landlord into possession. The clause in respect of the payment by the landlord into court within three months amounts to a condition which has to be satisfied by the landlord before the tenant is required to deliver to him possession of the property in question. In other words, reference to the payment by the landlord of the amount found due within the specified period in S. 4(1) is not so much a direction issued by the Court as specification of a condition expressly and independently provided by S. 4(4).11. The provision of S. 4 (4) clearly shows that if the amount found due is not paid within three months, the suit of the landlord shall stand dismissed. The opening clause of S. 4(4) shows that the amount has to be paid within three months from the date of the decree passed under sub-s. (1). The expression "the decree under sub-s. (1)" merely describes the sub-section under which the decree is passed, the emphasis in the context being on the date of the said decree and not so much on the strict compliance with the form prescribed by S. 4(1). If the decree is passed under S. 4 (1), its date is material for the purpose of deciding the period beyond which S. 4 (4) would come into operation. In other words, as soon as it is shown by a tenant that a decree has been passed under S. 4 (1) declaring the amount of compensation due to him from the landlord, he is entitled to claim that he is no longer under obligation to deliver possession of the property to the landlord, because three months have passed from the date of the decree and the amount declared as compensation has not been paid to him. If the decree happens to be defective in the sense that it does not reproduce the requirement of S. 4 (1) expressly in its terms, that would not take the case outside the purview of S. 4 (4). We are inclined to think that having regard to the mandatory terms used in S. 4 (4), it would be illogical and unreasonable to suggest that a defective decree like the present enables the landlord to circumvent the provisions of S. 4 (4).The applicability of S. 4 (4) cannot be repelled merely on the ground that the decree passed under S. 4 (1) does not specify the period of three months within which the amount found due has to be paid. In our opinion, the logical way to reconcile S. 4 (1) and S. 4 (4) would be to treat the provision prescribed by S. 4 (4) as mandatory and paramount and read the relevant portion of S. 4 (1) accordingly. That is why even if the decree does not mention that the amount has to be paid within three months, the landlords obligation to make the payment within three months is still enforceable under S. 4 (4), otherwise defective decrees would deprive the tenants of the benefit intended to be conferred on them by S. 4 (4). | 0[ds]In the case of such a decree, S. 4(4) cannot apply, because S. 4(4) postulates that a proper and valid decree has been passed in conformity with the requirements of S. 4(1). Section 4(4) provides a period of three months "from the date of the decree under sub-section (1)": it is the decree under sub-section (1) which is the decree under sub-section (1) which starts the period of limitation, and before a decree can be said to be a decree under sub-section (1), it must comply with all the requirements prescribed by the said sub-section; in the present case, the decree did not specify that the amount in question should be paid within three months, and so, it is not a decree properly passed under sub-section (1) and as such S. 4(4) cannot beis true that the decree would state that the landlord has to pay the amount within three months from its date; but having regard to the specific and mandatory terms in which S. 4(4) is couched, it would not be reasonable to construe S. 4(1) as controlling S. 4(4).The relevant clause provides that the decree shall direct that on payment by the landlord into Court, within three months, of the amount found due, the tenant shall put the landlord into possession. The clause in respect of the payment by the landlord into court within three months amounts to a condition which has to be satisfied by the landlord before the tenant is required to deliver to him possession of the property in question. In other words, reference to the payment by the landlord of the amount found due within the specified period in S. 4(1) is not so much a direction issued by the Court as specification of a condition expressly and independently provided by S. 4(4).11. The provision of S. 4 (4) clearly shows that if the amount found due is not paid within three months, the suit of the landlord shall stand dismissed. The opening clause of S. 4(4) shows that the amount has to be paid within three months from the date of the decree passed under sub-s. (1). The expression "the decree under sub-s. (1)" merely describes the sub-section under which the decree is passed, the emphasis in the context being on the date of the said decree and not so much on the strict compliance with the form prescribed by S. 4(1). If the decree is passed under S. 4 (1), its date is material for the purpose of deciding the period beyond which S. 4 (4) would come into operation. In other words, as soon as it is shown by a tenant that a decree has been passed under S. 4 (1) declaring the amount of compensation due to him from the landlord, he is entitled to claim that he is no longer under obligation to deliver possession of the property to the landlord, because three months have passed from the date of the decree and the amount declared as compensation has not been paid to him. If the decree happens to be defective in the sense that it does not reproduce the requirement of S. 4 (1) expressly in its terms, that would not take the case outside the purview of S. 4 (4). We are inclined to think that having regard to the mandatory terms used in S. 4 (4), it would be illogical and unreasonable to suggest that a defective decree like the present enables the landlord to circumvent the provisions of S. 4 (4).The applicability of S. 4 (4) cannot be repelled merely on the ground that the decree passed under S. 4 (1) does not specify the period of three months within which the amount found due has to be paid. In our opinion, the logical way to reconcile S. 4 (1) and S. 4 (4) would be to treat the provision prescribed by S. 4 (4) as mandatory and paramount and read the relevant portion of S. 4 (1) accordingly. That is why even if the decree does not mention that the amount has to be paid within three months, the landlords obligation to make the payment within three months is still enforceable under S. 4 (4), otherwise defective decrees would deprive the tenants of the benefit intended to be conferred on them by S. 4would appear that what S. 4(1) purports to do is to require that the decree in the suit to which it applies shall, in the first instance, declare the amount found due by way of compensation. The said provision also requires that the decree shall declare that the tenant shall put the landlord into possession of the land on payment by the landlord into court, within three months from the date of the decree, of the amount found due. The two operative parts of the decree as contemplated by S. 4 (1) are: the declaration of the amount due to the tenant, and the direction to the tenant to deliver possession of the land to the landlord in case he paid into Court within three months of the date of the decree the amount declared due. | 0 | 3,292 | 1,002 | ### 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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the building and trees thereon. Section 4(4) contains a mandatory provision that if the amount found due is not paid within three months, the suit of the landlord shall stand dismissed. We will presently deal with the question of construing these two sub-sections. Meanwhile, we may refer to S. 10. Section 10(1) provides that Section 4, 5, 6, 8, 9 and 9-A shall, inter alia, apply to suits in ejectment which are pending or in which decrees for ejectment have been passed, but have not been executed. Section 10(2) deals with cases in which decrees for ejectment have been passed, but the amount of compensation has not been determined, and if provides that on an application by the tenant, such amount would be determined in accordance with S. 4. Section 10(3) deals with cases of decrees which are pending execution; and it requires that the Court shall, on the application of the tenant, recall execution orders, ascertain the amount of compensation, and pass an interim order under S. 4. It will thus be clear that wherever the Act is extended, the protection afforded by the Act and the benefits conferred by it can be claimed not only by tenants against whom suits are pending or would be filed in future, but also by tenants against whom decrees have already been passed, but have not been fully executed. Section 10 clearly brings out the fact that the policy of the legislature was to extend ample protection to the tenants in the areas to which the Act would be extended from time to time.10. Reverting then to the question of construing S. 4(1) and (4), it would appear that what S. 4(1) purports to do is to require that the decree in the suit to which it applies shall, in the first instance, declare the amount found due by way of compensation. The said provision also requires that the decree shall declare that the tenant shall put the landlord into possession of the land on payment by the landlord into court, within three months from the date of the decree, of the amount found due. The two operative parts of the decree as contemplated by S. 4 (1) are: the declaration of the amount due to the tenant, and the direction to the tenant to deliver possession of the land to the landlord in case he paid into Court within three months of the date of the decree the amount declared due. It is true that the decree would state that the landlord has to pay the amount within three months from its date; but having regard to the specific and mandatory terms in which S. 4(4) is couched, it would not be reasonable to construe S. 4(1) as controlling S. 4(4).The relevant clause provides that the decree shall direct that on payment by the landlord into Court, within three months, of the amount found due, the tenant shall put the landlord into possession. The clause in respect of the payment by the landlord into court within three months amounts to a condition which has to be satisfied by the landlord before the tenant is required to deliver to him possession of the property in question. In other words, reference to the payment by the landlord of the amount found due within the specified period in S. 4(1) is not so much a direction issued by the Court as specification of a condition expressly and independently provided by S. 4(4).11. The provision of S. 4 (4) clearly shows that if the amount found due is not paid within three months, the suit of the landlord shall stand dismissed. The opening clause of S. 4(4) shows that the amount has to be paid within three months from the date of the decree passed under sub-s. (1). The expression "the decree under sub-s. (1)" merely describes the sub-section under which the decree is passed, the emphasis in the context being on the date of the said decree and not so much on the strict compliance with the form prescribed by S. 4(1). If the decree is passed under S. 4 (1), its date is material for the purpose of deciding the period beyond which S. 4 (4) would come into operation. In other words, as soon as it is shown by a tenant that a decree has been passed under S. 4 (1) declaring the amount of compensation due to him from the landlord, he is entitled to claim that he is no longer under obligation to deliver possession of the property to the landlord, because three months have passed from the date of the decree and the amount declared as compensation has not been paid to him. If the decree happens to be defective in the sense that it does not reproduce the requirement of S. 4 (1) expressly in its terms, that would not take the case outside the purview of S. 4 (4). We are inclined to think that having regard to the mandatory terms used in S. 4 (4), it would be illogical and unreasonable to suggest that a defective decree like the present enables the landlord to circumvent the provisions of S. 4 (4).The applicability of S. 4 (4) cannot be repelled merely on the ground that the decree passed under S. 4 (1) does not specify the period of three months within which the amount found due has to be paid. In our opinion, the logical way to reconcile S. 4 (1) and S. 4 (4) would be to treat the provision prescribed by S. 4 (4) as mandatory and paramount and read the relevant portion of S. 4 (1) accordingly. That is why even if the decree does not mention that the amount has to be paid within three months, the landlords obligation to make the payment within three months is still enforceable under S. 4 (4), otherwise defective decrees would deprive the tenants of the benefit intended to be conferred on them by S. 4 (4).
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### Explanation:
In the case of such a decree, S. 4(4) cannot apply, because S. 4(4) postulates that a proper and valid decree has been passed in conformity with the requirements of S. 4(1). Section 4(4) provides a period of three months "from the date of the decree under sub-section (1)": it is the decree under sub-section (1) which is the decree under sub-section (1) which starts the period of limitation, and before a decree can be said to be a decree under sub-section (1), it must comply with all the requirements prescribed by the said sub-section; in the present case, the decree did not specify that the amount in question should be paid within three months, and so, it is not a decree properly passed under sub-section (1) and as such S. 4(4) cannot beis true that the decree would state that the landlord has to pay the amount within three months from its date; but having regard to the specific and mandatory terms in which S. 4(4) is couched, it would not be reasonable to construe S. 4(1) as controlling S. 4(4).The relevant clause provides that the decree shall direct that on payment by the landlord into Court, within three months, of the amount found due, the tenant shall put the landlord into possession. The clause in respect of the payment by the landlord into court within three months amounts to a condition which has to be satisfied by the landlord before the tenant is required to deliver to him possession of the property in question. In other words, reference to the payment by the landlord of the amount found due within the specified period in S. 4(1) is not so much a direction issued by the Court as specification of a condition expressly and independently provided by S. 4(4).11. The provision of S. 4 (4) clearly shows that if the amount found due is not paid within three months, the suit of the landlord shall stand dismissed. The opening clause of S. 4(4) shows that the amount has to be paid within three months from the date of the decree passed under sub-s. (1). The expression "the decree under sub-s. (1)" merely describes the sub-section under which the decree is passed, the emphasis in the context being on the date of the said decree and not so much on the strict compliance with the form prescribed by S. 4(1). If the decree is passed under S. 4 (1), its date is material for the purpose of deciding the period beyond which S. 4 (4) would come into operation. In other words, as soon as it is shown by a tenant that a decree has been passed under S. 4 (1) declaring the amount of compensation due to him from the landlord, he is entitled to claim that he is no longer under obligation to deliver possession of the property to the landlord, because three months have passed from the date of the decree and the amount declared as compensation has not been paid to him. If the decree happens to be defective in the sense that it does not reproduce the requirement of S. 4 (1) expressly in its terms, that would not take the case outside the purview of S. 4 (4). We are inclined to think that having regard to the mandatory terms used in S. 4 (4), it would be illogical and unreasonable to suggest that a defective decree like the present enables the landlord to circumvent the provisions of S. 4 (4).The applicability of S. 4 (4) cannot be repelled merely on the ground that the decree passed under S. 4 (1) does not specify the period of three months within which the amount found due has to be paid. In our opinion, the logical way to reconcile S. 4 (1) and S. 4 (4) would be to treat the provision prescribed by S. 4 (4) as mandatory and paramount and read the relevant portion of S. 4 (1) accordingly. That is why even if the decree does not mention that the amount has to be paid within three months, the landlords obligation to make the payment within three months is still enforceable under S. 4 (4), otherwise defective decrees would deprive the tenants of the benefit intended to be conferred on them by S. 4would appear that what S. 4(1) purports to do is to require that the decree in the suit to which it applies shall, in the first instance, declare the amount found due by way of compensation. The said provision also requires that the decree shall declare that the tenant shall put the landlord into possession of the land on payment by the landlord into court, within three months from the date of the decree, of the amount found due. The two operative parts of the decree as contemplated by S. 4 (1) are: the declaration of the amount due to the tenant, and the direction to the tenant to deliver possession of the land to the landlord in case he paid into Court within three months of the date of the decree the amount declared due.
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SAI WARDHA POWER GENERATION LIMITED Vs. THE TATA POWER COMPANY LIMITED DISTRIBUTION & ORS | The basis for the order of the Commission dated 12.03.2018, allowing the petition filed by the HPCL is two- fold. Firstly, the Commission held that transmission licence was granted to TPC-T on 14.08.2014, in which the two110 kV Trombay - HPCL lines were shown as a part of TPC-T. The Commission observed that as long as the lines remained part of the transmission licence, TPC-D cannot claim wheeling charges. The Commission further observed that HPCL is directly connected to 110 kV transmission system in terms of TPC-Ts transmission licence and not to the distribution network of TPC-D. The Commission remarked that mere filing of a petition by TPC-T for amendment of its transmission licence does not entitle TPC-D to levy wheeling charges. The Commission further referred to the submission of TPC-D in case No.47 of 2016 that the assets of TPC-D do not include any part of TPCs transmission network. The submission of TPC-D relating to the inadvertent error in showing 2x110 kV lines in the transmission network was rejected. 15. Secondly, the Commission relied upon an E-mail of the Maharashtra State Load Despatch Centre (MSLDC) dated 11.12.2015 addressed to SWPGL in which it was stated that no wheeling charges can be levied on HPCL as it was connected at 110 kV level. The Commission referred to the CEA Regulations, 2010 and Central Electricity Authoritys Manual on Transmission Planning Criteria) 2013 and Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 to hold that all lines up to 33 kV shall be part of the distribution system and those above 33 kV form part of transmission lines. 16. The order of the Commission was set aside by the Tribunal. The Tribunal observed that 2x110 kV HPCL feeder was being used for supplying electricity since inception and hence it is an integral part of TPC-D system. By placing reliance on a judgment in OPTCL, the Tribunal held that HPCL cannot receive power supply directly from TPC-T. The Tribunal further held that there is no embargo on the inclusion of the 2x110 kV lines in the distribution network and distribution can be undertaken at high voltage levels forming high voltage distribution system. While answering the second point, the Tribunal held that a consumer can directly be connected to the works of a transmission licensee. However, in the instant case, HPCL was paying wheeling charges from a long time to TPC-D. Hence, the 2x110 kV lines are part of the distribution system of TPC-D. Further, the T echnical Regulations framed by the CEA defining level of voltage for distribution and transmission heads were held to be generic in nature by the Tribunal. 17. Admittedly, separate licenses for transmission and distribution to TPC-T and TPC-D respectively were granted in 2014. There is no dispute that TPC-T included the 2x110 kV lines in its transmission assets. The network roll out plan submitted by TPC-D included lines upto 33 kV in its distribution network. An application was filed by TPC-T for amendment of the licence which is pending before the Commission, following the remand by the Tribunal. The Tribunal did not advert to the application filed by TPC-T for amendment of the transmission licence. The Tribunal also did not refer to its order by which it set aside the order of the Commission disallowing the application for amendment of the transmission license and remanded the matter back to the Commission. The Tribunal committed an error in ignoring the existing transmission licence of TPC-T before coming to a conclusion that 2x110 kV lines are part of the distribution network. The Tribunal ought to have directed the Commission to adjudicate the application filed by TPC-T for amendment of the transmission licence. Thereafter, the Tribunal should have decided an appeal, if any, filed against the decision of the Commission on the application for amendment before taking up the appeal filed by TPC-T against the order of Commission dated 12.03.2018. The Tribunal stressed on the fact that HPCL was receiving power from TPC-D from a very long time for which reason, the 2x110 kV lines should form part of the distribution system of the TPC-D. The Tribunal was wrong in not taking note of the application filed by TPC-T for amendment of its transmission licence in which the 2x110 kV lines were included in the transmission network. Till the transmission licence of TPC-T is not modified, the 2x110 kV lines form part of the transmission network of TPC-T. The Tribunal could not have held that 2x110 kV lines should be included in the distribution system of TPC-D. 18. The CEA Regulations 2010, the Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 and the Maharashtra Electricity Regulatory Commission (Distribution Open Access) Regulations, 2016 provide for demarcation between the transmission and distribution boundaries on the basis of voltage. The Tribunal erred in ignoring the said Regulations while holding that 2x110 kV lines are part of the distribution system. 19. We are of the opinion that the judgment of the Tribunal is required to be set aside and that the matter should be remanded back for fresh consideration. Therefore, we are not expressing any opinion on the findings recorded by the Tribunal on interpretation of the provisions of the Electricity Act, 2003. As a matter of fact, the transmission licence issued to TPC-T includes 2x110 kV lines as part of the transmission system. Therefore, it is not open to TPC-T to contend that 2x110 kV line is a part of the distribution system of TPC-D till the transmission licence is modified. It is essential that the application filed by TPC-T for amendment of its transmission licence is decided first. If the application filed for amendment by TPC-T is allowed and reaches finality, the 2x110 kV lines will not form part of the transmission network. On the other hand, if the application of TPC-T for amendment of its licence is rejected, TPC-D cannot have a case for seeking inclusion of 2x110 kV lines in its distribution system for imposing wheeling charges on HPCL. | 1[ds]17. Admittedly, separate licenses for transmission and distribution to TPC-T and TPC-D respectively were granted in 2014. There is no dispute that TPC-T included the 2x110 kV lines in its transmission assets. The network roll out plan submitted by TPC-D included lines upto 33 kV in its distribution network. An application was filed by TPC-T for amendment of the licence which is pending before the Commission, following the remand by the Tribunal. The Tribunal did not advert to the application filed by TPC-T for amendment of the transmission licence. The Tribunal also did not refer to its order by which it set aside the order of the Commission disallowing the application for amendment of the transmission license and remanded the matter back to the Commission. The Tribunal committed an error in ignoring the existing transmission licence of TPC-T before coming to a conclusion that 2x110 kV lines are part of the distribution network. The Tribunal ought to have directed the Commission to adjudicate the application filed by TPC-T for amendment of the transmission licence. Thereafter, the Tribunal should have decided an appeal, if any, filed against the decision of the Commission on the application for amendment before taking up the appeal filed by TPC-T against the order of Commission dated 12.03.2018. The Tribunal stressed on the fact that HPCL was receiving power from TPC-D from a very long time for which reason, the 2x110 kV lines should form part of the distribution system of the TPC-D. The Tribunal was wrong in not taking note of the application filed by TPC-T for amendment of its transmission licence in which the 2x110 kV lines were included in the transmission network. Till the transmission licence of TPC-T is not modified, the 2x110 kV lines form part of the transmission network of TPC-T. The Tribunal could not have held that 2x110 kV lines should be included in the distribution system of TPC-D18. The CEA Regulations 2010, the Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 and the Maharashtra Electricity Regulatory Commission (Distribution Open Access) Regulations, 2016 provide for demarcation between the transmission and distribution boundaries on the basis of voltage. The Tribunal erred in ignoring the said Regulations while holding that 2x110 kV lines are part of the distribution system19. We are of the opinion that the judgment of the Tribunal is required to be set aside and that the matter should be remanded back for fresh consideration. Therefore, we are not expressing any opinion on the findings recorded by the Tribunal on interpretation of the provisions of the Electricity Act, 2003. As a matter of fact, the transmission licence issued to TPC-T includes 2x110 kV lines as part of the transmission system. Therefore, it is not open to TPC-T to contend that 2x110 kV line is a part of the distribution system of TPC-D till the transmission licence is modified. It is essential that the application filed by TPC-T for amendment of its transmission licence is decided first. If the application filed for amendment by TPC-T is allowed and reaches finality, the 2x110 kV lines will not form part of the transmission network. On the other hand, if the application of TPC-T for amendment of its licence is rejected, TPC-D cannot have a case for seeking inclusion of 2x110 kV lines in its distribution system for imposing wheeling charges on HPCL. | 1 | 3,170 | 608 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
The basis for the order of the Commission dated 12.03.2018, allowing the petition filed by the HPCL is two- fold. Firstly, the Commission held that transmission licence was granted to TPC-T on 14.08.2014, in which the two110 kV Trombay - HPCL lines were shown as a part of TPC-T. The Commission observed that as long as the lines remained part of the transmission licence, TPC-D cannot claim wheeling charges. The Commission further observed that HPCL is directly connected to 110 kV transmission system in terms of TPC-Ts transmission licence and not to the distribution network of TPC-D. The Commission remarked that mere filing of a petition by TPC-T for amendment of its transmission licence does not entitle TPC-D to levy wheeling charges. The Commission further referred to the submission of TPC-D in case No.47 of 2016 that the assets of TPC-D do not include any part of TPCs transmission network. The submission of TPC-D relating to the inadvertent error in showing 2x110 kV lines in the transmission network was rejected. 15. Secondly, the Commission relied upon an E-mail of the Maharashtra State Load Despatch Centre (MSLDC) dated 11.12.2015 addressed to SWPGL in which it was stated that no wheeling charges can be levied on HPCL as it was connected at 110 kV level. The Commission referred to the CEA Regulations, 2010 and Central Electricity Authoritys Manual on Transmission Planning Criteria) 2013 and Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 to hold that all lines up to 33 kV shall be part of the distribution system and those above 33 kV form part of transmission lines. 16. The order of the Commission was set aside by the Tribunal. The Tribunal observed that 2x110 kV HPCL feeder was being used for supplying electricity since inception and hence it is an integral part of TPC-D system. By placing reliance on a judgment in OPTCL, the Tribunal held that HPCL cannot receive power supply directly from TPC-T. The Tribunal further held that there is no embargo on the inclusion of the 2x110 kV lines in the distribution network and distribution can be undertaken at high voltage levels forming high voltage distribution system. While answering the second point, the Tribunal held that a consumer can directly be connected to the works of a transmission licensee. However, in the instant case, HPCL was paying wheeling charges from a long time to TPC-D. Hence, the 2x110 kV lines are part of the distribution system of TPC-D. Further, the T echnical Regulations framed by the CEA defining level of voltage for distribution and transmission heads were held to be generic in nature by the Tribunal. 17. Admittedly, separate licenses for transmission and distribution to TPC-T and TPC-D respectively were granted in 2014. There is no dispute that TPC-T included the 2x110 kV lines in its transmission assets. The network roll out plan submitted by TPC-D included lines upto 33 kV in its distribution network. An application was filed by TPC-T for amendment of the licence which is pending before the Commission, following the remand by the Tribunal. The Tribunal did not advert to the application filed by TPC-T for amendment of the transmission licence. The Tribunal also did not refer to its order by which it set aside the order of the Commission disallowing the application for amendment of the transmission license and remanded the matter back to the Commission. The Tribunal committed an error in ignoring the existing transmission licence of TPC-T before coming to a conclusion that 2x110 kV lines are part of the distribution network. The Tribunal ought to have directed the Commission to adjudicate the application filed by TPC-T for amendment of the transmission licence. Thereafter, the Tribunal should have decided an appeal, if any, filed against the decision of the Commission on the application for amendment before taking up the appeal filed by TPC-T against the order of Commission dated 12.03.2018. The Tribunal stressed on the fact that HPCL was receiving power from TPC-D from a very long time for which reason, the 2x110 kV lines should form part of the distribution system of the TPC-D. The Tribunal was wrong in not taking note of the application filed by TPC-T for amendment of its transmission licence in which the 2x110 kV lines were included in the transmission network. Till the transmission licence of TPC-T is not modified, the 2x110 kV lines form part of the transmission network of TPC-T. The Tribunal could not have held that 2x110 kV lines should be included in the distribution system of TPC-D. 18. The CEA Regulations 2010, the Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 and the Maharashtra Electricity Regulatory Commission (Distribution Open Access) Regulations, 2016 provide for demarcation between the transmission and distribution boundaries on the basis of voltage. The Tribunal erred in ignoring the said Regulations while holding that 2x110 kV lines are part of the distribution system. 19. We are of the opinion that the judgment of the Tribunal is required to be set aside and that the matter should be remanded back for fresh consideration. Therefore, we are not expressing any opinion on the findings recorded by the Tribunal on interpretation of the provisions of the Electricity Act, 2003. As a matter of fact, the transmission licence issued to TPC-T includes 2x110 kV lines as part of the transmission system. Therefore, it is not open to TPC-T to contend that 2x110 kV line is a part of the distribution system of TPC-D till the transmission licence is modified. It is essential that the application filed by TPC-T for amendment of its transmission licence is decided first. If the application filed for amendment by TPC-T is allowed and reaches finality, the 2x110 kV lines will not form part of the transmission network. On the other hand, if the application of TPC-T for amendment of its licence is rejected, TPC-D cannot have a case for seeking inclusion of 2x110 kV lines in its distribution system for imposing wheeling charges on HPCL.
### Response:
1
### Explanation:
17. Admittedly, separate licenses for transmission and distribution to TPC-T and TPC-D respectively were granted in 2014. There is no dispute that TPC-T included the 2x110 kV lines in its transmission assets. The network roll out plan submitted by TPC-D included lines upto 33 kV in its distribution network. An application was filed by TPC-T for amendment of the licence which is pending before the Commission, following the remand by the Tribunal. The Tribunal did not advert to the application filed by TPC-T for amendment of the transmission licence. The Tribunal also did not refer to its order by which it set aside the order of the Commission disallowing the application for amendment of the transmission license and remanded the matter back to the Commission. The Tribunal committed an error in ignoring the existing transmission licence of TPC-T before coming to a conclusion that 2x110 kV lines are part of the distribution network. The Tribunal ought to have directed the Commission to adjudicate the application filed by TPC-T for amendment of the transmission licence. Thereafter, the Tribunal should have decided an appeal, if any, filed against the decision of the Commission on the application for amendment before taking up the appeal filed by TPC-T against the order of Commission dated 12.03.2018. The Tribunal stressed on the fact that HPCL was receiving power from TPC-D from a very long time for which reason, the 2x110 kV lines should form part of the distribution system of the TPC-D. The Tribunal was wrong in not taking note of the application filed by TPC-T for amendment of its transmission licence in which the 2x110 kV lines were included in the transmission network. Till the transmission licence of TPC-T is not modified, the 2x110 kV lines form part of the transmission network of TPC-T. The Tribunal could not have held that 2x110 kV lines should be included in the distribution system of TPC-D18. The CEA Regulations 2010, the Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 and the Maharashtra Electricity Regulatory Commission (Distribution Open Access) Regulations, 2016 provide for demarcation between the transmission and distribution boundaries on the basis of voltage. The Tribunal erred in ignoring the said Regulations while holding that 2x110 kV lines are part of the distribution system19. We are of the opinion that the judgment of the Tribunal is required to be set aside and that the matter should be remanded back for fresh consideration. Therefore, we are not expressing any opinion on the findings recorded by the Tribunal on interpretation of the provisions of the Electricity Act, 2003. As a matter of fact, the transmission licence issued to TPC-T includes 2x110 kV lines as part of the transmission system. Therefore, it is not open to TPC-T to contend that 2x110 kV line is a part of the distribution system of TPC-D till the transmission licence is modified. It is essential that the application filed by TPC-T for amendment of its transmission licence is decided first. If the application filed for amendment by TPC-T is allowed and reaches finality, the 2x110 kV lines will not form part of the transmission network. On the other hand, if the application of TPC-T for amendment of its licence is rejected, TPC-D cannot have a case for seeking inclusion of 2x110 kV lines in its distribution system for imposing wheeling charges on HPCL.
|
State Of Rajasthan Vs. Babu Ram | Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter - The Rule of Literal Construction -page 78 - Ninth ed.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376 , S.R. Das, J. said: - "The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation." 8. A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 9. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. 10. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh (1999 (6) SCC 172) and para 12 of the reports is being reproduced below: "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 11. The Bench recorded its conclusion in para 57 of the reports and sub-paras (1), (2), (3) and (6) are being reproduced below: "57. On the basis of the reasoning and discussion above, the following conclusions arise:(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.xx xx xx(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law." 12. These aspects were highlighted in State of H.P. v. Pawan Kumar (2005 (4) SCC 350 ). 13. In view of the aforesaid judgment by a three Judge Bench of this Court, the acquittal, as directed by the High Court, is clearly unsustainable. However, we find that other points were urged in support of the appeal before the High Court, but the High Court allowed the appeal filed by the accused only on the ground of non-compliance of Section 50 of the Act. It did not examine the other grounds of challenge. We, therefore, remit the matter to the High Court to hear the appeal afresh on grounds other than that of alleged non-compliance with Section 50 of the Act, which, as noted above, has no application to the facts of the case. | 1[ds]13. In view of the aforesaid judgment by a three Judge Bench of this Court, the acquittal, as directed by the High Court, is clearly unsustainable. However, we find that other points were urged in support of the appeal before the High Court, but the High Court allowed the appeal filed by the accused only on the ground of non-compliance of Section 50 of the Act. It did not examine the other grounds of challenge. We, therefore, remit the matter to the High Court to hear the appeal afresh on grounds other than that of alleged non-compliance with Section 50 of the Act, which, as noted above, has no application to the facts of the case. | 1 | 2,069 | 135 | ### 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:
Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter - The Rule of Literal Construction -page 78 - Ninth ed.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376 , S.R. Das, J. said: - "The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation." 8. A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 9. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. 10. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh (1999 (6) SCC 172) and para 12 of the reports is being reproduced below: "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 11. The Bench recorded its conclusion in para 57 of the reports and sub-paras (1), (2), (3) and (6) are being reproduced below: "57. On the basis of the reasoning and discussion above, the following conclusions arise:(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.xx xx xx(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law." 12. These aspects were highlighted in State of H.P. v. Pawan Kumar (2005 (4) SCC 350 ). 13. In view of the aforesaid judgment by a three Judge Bench of this Court, the acquittal, as directed by the High Court, is clearly unsustainable. However, we find that other points were urged in support of the appeal before the High Court, but the High Court allowed the appeal filed by the accused only on the ground of non-compliance of Section 50 of the Act. It did not examine the other grounds of challenge. We, therefore, remit the matter to the High Court to hear the appeal afresh on grounds other than that of alleged non-compliance with Section 50 of the Act, which, as noted above, has no application to the facts of the case.
### Response:
1
### Explanation:
13. In view of the aforesaid judgment by a three Judge Bench of this Court, the acquittal, as directed by the High Court, is clearly unsustainable. However, we find that other points were urged in support of the appeal before the High Court, but the High Court allowed the appeal filed by the accused only on the ground of non-compliance of Section 50 of the Act. It did not examine the other grounds of challenge. We, therefore, remit the matter to the High Court to hear the appeal afresh on grounds other than that of alleged non-compliance with Section 50 of the Act, which, as noted above, has no application to the facts of the case.
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Satyendra Narain Singh and Others Vs. Ram Nath Singh and Others | CHANDRACHUD, C.J. Special Leave granted limited to the question of the propriety of briefing a son to appear before his father.1. In Bihar, there is an Association called the State Society for the Prevention of Cruelty to Animals. As if other forums do not provide enough opportunities for factious fights, there was an unseemly wrangle amongst the members of the Society over its day-to day management. So much indeed, that inspired by the lofty ideal of preventing cruelty to animals, they forgot that they did not have to be unkind to their own brotherhood. Their petty disputes led to the filing of a suit in the Court of the learned Munsif, 3rd Court, Patna. That suit was instituted by respondent 1, who claims. to be a life member of the Society. He filed an application in the suit for an injunction restraining the appellants and respondent 3 from interfering with the working of the Society. That application was allowed by the tri al Court. The appeal filed against the order of interim injunction was dismissed by the learned Additional District Judge-VI, Patna. So much was enough litigative wastefulness. But a litigation, once begun, has to run its full course, particularly when it is believed that what is involved is prestige and so-called principles.2. The appellants filed a revision application in the High Court of Patna against the order of the District Court. A learned single Judge of the High Court issued a Rule on that application, calling upon respondent 1 to show cause why the order of injunction should not be set aside. The revision application came up for hearing before Justice S.K. Jha on July 3, 1980 when Shri Bindeswari Chaudhury, Advocate , who appeared for the appellants asked for an adjournment. The learned Judge adjourned the case to July 9, 1980. On July 8, the appellants engaged Justice S.K. Jhas advocate son Shri Sailendra Kumar Jha to appear for them. The learned Judge was surprised to find that the appearance of his son was filed in a case of which he was already seized. It is alleged that the appellants told Shri Sailendra Kumar Jha that the case was not ready for hearing and that it was not even on the monthly cause list. It appears that the learned advocate had made it clear to them that he will not appear in the case if it was listed before his father.On July 9, Shri Bindeswari Chaudhury did not press the revision application saying that he would rather return the papers to his clients. The learned Judge dismissed the application since it was not pressed.3. In these circumstances, nothing requires to be done in the matter of the interim injunction. It has to operate during the pendency of the suit. We hope. that the parties will remember that the dumb animals for whose welfare they have floated the Society, will be crying for their attention while they will be litigating, at leisure, the right to manage the affairs of the Society.4. It is not quite clear whether the appellants made an untrue representation to Shri Sailendra Kumar Jha that the case was not ready for hearing and that it had not even appeared in the monthly cause list. We do not want to condemn them unheard. Audi alteram partem.5. There are a few black sheep in every profession, nay, in every walk of life. But few as they are, they tarnish, by their machinations, the fair name of age-old institutions. Therefore, persons who occupy high public offices must take care to see that those who claim to be close to them are not allowed to exploit that closeness, alleged or real. O | 1[ds]In these circumstances, nothing requires to be done in the matter of the interim injunction. It has to operate during the pendency of the suit. We hope. that the parties will remember that the dumb animals for whose welfare they have floated the Society, will be crying for their attention while they will be litigating, at leisure, the right to manage the affairs of theis not quite clear whether the appellants made an untrue representation to Shri Sailendra Kumar Jha that the case was not ready for hearing and that it had not even appeared in the monthly cause list. We do not want to condemn them unheard. Audi alteramare a few black sheep in every profession, nay, in every walk of life. But few as they are, they tarnish, by their machinations, the fair name of age-old institutions. Therefore, persons who occupy high public offices must take care to see that those who claim to be close to them are not allowed to exploit that closeness, alleged or real. On the facts of this case, we will only say that Shri Sailendra Kumar Jha took a correct decision in not appearing in the case any further and, with respect, his father Justice S.K. Jha acted in the best traditions of the Judiciary in seeing that his son withdrew from the case. It is better that in such circumstances the advocate son, rather than the Judge father, withdraws from the case. | 1 | 676 | 272 | ### 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:
CHANDRACHUD, C.J. Special Leave granted limited to the question of the propriety of briefing a son to appear before his father.1. In Bihar, there is an Association called the State Society for the Prevention of Cruelty to Animals. As if other forums do not provide enough opportunities for factious fights, there was an unseemly wrangle amongst the members of the Society over its day-to day management. So much indeed, that inspired by the lofty ideal of preventing cruelty to animals, they forgot that they did not have to be unkind to their own brotherhood. Their petty disputes led to the filing of a suit in the Court of the learned Munsif, 3rd Court, Patna. That suit was instituted by respondent 1, who claims. to be a life member of the Society. He filed an application in the suit for an injunction restraining the appellants and respondent 3 from interfering with the working of the Society. That application was allowed by the tri al Court. The appeal filed against the order of interim injunction was dismissed by the learned Additional District Judge-VI, Patna. So much was enough litigative wastefulness. But a litigation, once begun, has to run its full course, particularly when it is believed that what is involved is prestige and so-called principles.2. The appellants filed a revision application in the High Court of Patna against the order of the District Court. A learned single Judge of the High Court issued a Rule on that application, calling upon respondent 1 to show cause why the order of injunction should not be set aside. The revision application came up for hearing before Justice S.K. Jha on July 3, 1980 when Shri Bindeswari Chaudhury, Advocate , who appeared for the appellants asked for an adjournment. The learned Judge adjourned the case to July 9, 1980. On July 8, the appellants engaged Justice S.K. Jhas advocate son Shri Sailendra Kumar Jha to appear for them. The learned Judge was surprised to find that the appearance of his son was filed in a case of which he was already seized. It is alleged that the appellants told Shri Sailendra Kumar Jha that the case was not ready for hearing and that it was not even on the monthly cause list. It appears that the learned advocate had made it clear to them that he will not appear in the case if it was listed before his father.On July 9, Shri Bindeswari Chaudhury did not press the revision application saying that he would rather return the papers to his clients. The learned Judge dismissed the application since it was not pressed.3. In these circumstances, nothing requires to be done in the matter of the interim injunction. It has to operate during the pendency of the suit. We hope. that the parties will remember that the dumb animals for whose welfare they have floated the Society, will be crying for their attention while they will be litigating, at leisure, the right to manage the affairs of the Society.4. It is not quite clear whether the appellants made an untrue representation to Shri Sailendra Kumar Jha that the case was not ready for hearing and that it had not even appeared in the monthly cause list. We do not want to condemn them unheard. Audi alteram partem.5. There are a few black sheep in every profession, nay, in every walk of life. But few as they are, they tarnish, by their machinations, the fair name of age-old institutions. Therefore, persons who occupy high public offices must take care to see that those who claim to be close to them are not allowed to exploit that closeness, alleged or real. O
### Response:
1
### Explanation:
In these circumstances, nothing requires to be done in the matter of the interim injunction. It has to operate during the pendency of the suit. We hope. that the parties will remember that the dumb animals for whose welfare they have floated the Society, will be crying for their attention while they will be litigating, at leisure, the right to manage the affairs of theis not quite clear whether the appellants made an untrue representation to Shri Sailendra Kumar Jha that the case was not ready for hearing and that it had not even appeared in the monthly cause list. We do not want to condemn them unheard. Audi alteramare a few black sheep in every profession, nay, in every walk of life. But few as they are, they tarnish, by their machinations, the fair name of age-old institutions. Therefore, persons who occupy high public offices must take care to see that those who claim to be close to them are not allowed to exploit that closeness, alleged or real. On the facts of this case, we will only say that Shri Sailendra Kumar Jha took a correct decision in not appearing in the case any further and, with respect, his father Justice S.K. Jha acted in the best traditions of the Judiciary in seeing that his son withdrew from the case. It is better that in such circumstances the advocate son, rather than the Judge father, withdraws from the case.
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Hanumanagouda Vs. United India Ins. Co. Ltd. | Shiva Kirti Singh, J. 1. Heard learned counsel for the appellant and learned counsel for the respondent-Insurance Company. 2. Due to accident involving a goods vehicle, a lorry, two persons died and others received injuries. All the thirteen claim petitions were decided by a common judgment dated 21.01.2002 by the Motor Vehicle Accidents Claim Tribunal (hereinafter referred to as `The Tribunal’) presided by the Principal District Judge at Raichur (Karnataka). This appeal relates only to claim filed by dependents and legal representatives of deceased Hanumanth which included his widow Smt. Mariyamma and three minor children, who are respondents 2 to 4 in this appeal. The Tribunal allowed their claim in MCV No. 616 of 1999 and held them entitled for compensation of Rs.2,55,000/- from the owner-cum-driver of the lorry, the appellant and also from respondent-Insurance Company as they were held responsible jointly and severally. The claim was allowed with 6% interest from the date of claim petition till its realization with costs fixed at Rs.200/-.3. In appeals preferred by the Insurance Company, the High Court by the order under Appeal dated 17.10.2005 interfered with the Award made against the Insurer in respect of death of Hanumanth and held that the Award was bad in law because the deceased was in a clerical cadre working as a Gumasthe accompanying the goods in transit for the purpose of delivery and as such he could not be covered by the clause under which premium was paid for covering the risk of the persons employed in connection with the operation of loading and unloading of the goods. Against this order passed in MFA No.2451 of 2002, the appellant/owner of the goods vehicle has preferred this appeal.4. The only issue requiring determination is whether the clause IMT 17 for which premium was paid to the insurer in respect of the concerned lorry will cover the deceased Hamumanth or not. 5. For deciding the above issue, one is simply required to go through the relevant clause IMT 17 of the policy, whose copy has been made available to us. The clause reads thus: “Add: for LL to persons employed in connection with the operation and/or loading unloading of motor vehicle IMT 17”. 6. The High Court has clearly fallen in error in holding that the insurer is not liable in respect of death of Hanumanth. The clause - “persons employed in connection with the operation” is clearly over and above the coverage provided by the policy to “persons employed in connection with loading/unloading of motor vehicle”. As Gumasthe, the deceased was accompanying the goods in transit for the purpose of delivery of goods. This has been accepted by the High Court. Obviously, as Gumasthe the deceased would be covered by the expression “persons employed in connection with operation of motor vehicle” The operation of the aforesaid clause has wrongly been restricted and limited only to persons employed in connection with loading/unloading of the motor vehicle.7. | 1[ds]The High Court has clearly fallen in error in holding that the insurer is not liable in respect of death of Hanumanth. The clause -employed in connection with theis clearly over and above the coverage provided by the policy toemployed in connection with loading/unloading of motorAs Gumasthe, the deceased was accompanying the goods in transit for the purpose of delivery of goods. This has been accepted by the High Court. Obviously, as Gumasthe the deceased would be covered by the expressionemployed in connection with operation of motorThe operation of the aforesaid clause has wrongly been restricted and limited only to persons employed in connection with loading/unloading of the motor vehicle. | 1 | 540 | 120 | ### 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:
Shiva Kirti Singh, J. 1. Heard learned counsel for the appellant and learned counsel for the respondent-Insurance Company. 2. Due to accident involving a goods vehicle, a lorry, two persons died and others received injuries. All the thirteen claim petitions were decided by a common judgment dated 21.01.2002 by the Motor Vehicle Accidents Claim Tribunal (hereinafter referred to as `The Tribunal’) presided by the Principal District Judge at Raichur (Karnataka). This appeal relates only to claim filed by dependents and legal representatives of deceased Hanumanth which included his widow Smt. Mariyamma and three minor children, who are respondents 2 to 4 in this appeal. The Tribunal allowed their claim in MCV No. 616 of 1999 and held them entitled for compensation of Rs.2,55,000/- from the owner-cum-driver of the lorry, the appellant and also from respondent-Insurance Company as they were held responsible jointly and severally. The claim was allowed with 6% interest from the date of claim petition till its realization with costs fixed at Rs.200/-.3. In appeals preferred by the Insurance Company, the High Court by the order under Appeal dated 17.10.2005 interfered with the Award made against the Insurer in respect of death of Hanumanth and held that the Award was bad in law because the deceased was in a clerical cadre working as a Gumasthe accompanying the goods in transit for the purpose of delivery and as such he could not be covered by the clause under which premium was paid for covering the risk of the persons employed in connection with the operation of loading and unloading of the goods. Against this order passed in MFA No.2451 of 2002, the appellant/owner of the goods vehicle has preferred this appeal.4. The only issue requiring determination is whether the clause IMT 17 for which premium was paid to the insurer in respect of the concerned lorry will cover the deceased Hamumanth or not. 5. For deciding the above issue, one is simply required to go through the relevant clause IMT 17 of the policy, whose copy has been made available to us. The clause reads thus: “Add: for LL to persons employed in connection with the operation and/or loading unloading of motor vehicle IMT 17”. 6. The High Court has clearly fallen in error in holding that the insurer is not liable in respect of death of Hanumanth. The clause - “persons employed in connection with the operation” is clearly over and above the coverage provided by the policy to “persons employed in connection with loading/unloading of motor vehicle”. As Gumasthe, the deceased was accompanying the goods in transit for the purpose of delivery of goods. This has been accepted by the High Court. Obviously, as Gumasthe the deceased would be covered by the expression “persons employed in connection with operation of motor vehicle” The operation of the aforesaid clause has wrongly been restricted and limited only to persons employed in connection with loading/unloading of the motor vehicle.7.
### Response:
1
### Explanation:
The High Court has clearly fallen in error in holding that the insurer is not liable in respect of death of Hanumanth. The clause -employed in connection with theis clearly over and above the coverage provided by the policy toemployed in connection with loading/unloading of motorAs Gumasthe, the deceased was accompanying the goods in transit for the purpose of delivery of goods. This has been accepted by the High Court. Obviously, as Gumasthe the deceased would be covered by the expressionemployed in connection with operation of motorThe operation of the aforesaid clause has wrongly been restricted and limited only to persons employed in connection with loading/unloading of the motor vehicle.
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Delhi Cloth and General Mills Limited Vs. Union of India | he then was) in Motilal Padampat Sugar Mills Co. Ltd. v. State of U. P. ((1979) 2 SCR 641 at p. 695 : (1979) 2 SCC 409 ). The learned Judge had said : (SCC p. 452, para 33)We do not think that in order to invoke the doctrine of promissory estoppel it is necessary for the promisee to show that he suffered detriment as a result of acting in reliance on the promise. But we may make it clear that if by detriment we mean injustice to the promisee which could result if the promisor were to recede from his promise, then detriment would certainly come in as a necessary ingredient. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise. 23. The view taken in Motilal Padampat Sugar Mills case ((1979) 2 SCR 641 at p. 695 : (1979) 2 SCC 409 ) has been reiterated in Union of India v. Godfrey Philips India Ltd. ((1985) 4 SCC 369 : 1985 Supp 3 SCR 123) 24. The concept of detriment as we now understand it is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation. 25. It is, however, quite fundamental that the doctrine of promissory estoppel, cannot be used to compel the public bodies or the government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. It, therefore, requires that he who seeks equity must do equity. The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement. 26. We may also state that for the purpose of invoking the doctrine, it is not necessary for the company to show that the assurance contained in Ex. C-5 was mainly responsible for establishing the factory at Kota. There may be several representations to one party from different authorities in regard to different matters. Or, there may be several representations from the same party in regard to different matters. As in the instant case, there was one representation by the Rajasthan Government to supply power to the company at concessional rate. There was another representation from the same government to exempt the company from payment of tax for certain period. There may be other representations from the same or some other authorities. If those representations have been relied upon by the company, the court would compel those parties to adhere to their respective representations. It is immaterial whether each of the representations was wholly responsible or partly responsible for locating the factory at Kota. It is sufficient if the company was induced to act on that representation. 27. The last and final aspect of the matter to which attention should be drawn is that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it is necessary to state that the representation must be clear and unambiguous and not tentative or uncertain. In this context we may usefully refer to the following passage from Halsburys Laws of England (4th Edn., Vol. 16, p. 1071, para 1595)1595. Representation must be unambiguous. - To found an estoppel a representation must be clear and unambiguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at. This is merely an application of the old maxim applicable to all estoppels, that they "must be certain to every intent. 28. The question now is whether the assurance given by the Railway Board in the letter Ex. C-5 was clear and unqualified. But unfortunately, it is not so. It was subject to review to be undertaken when the company starts moving the raw material. Ex. C-5 reads: New Delhi 1 Dated November 5, 1966 Dear Sir Sub. : Integrated Fertilizer - PVC project at Kota Rajasthan - Rail movement of Naptha Ref. : Your letter No. SFC/Gen-72 dated September 5, 1966 I am directed to state that the Railway Board agree to quote a special rate equal to class 85-B (Special) CC : K for transport of Naptha in train loads from Bombay or Koyali to Kota, for manufacture of fertilizers. The proposed special rate will apply at owners risk Since the special rate is being quoted ahead of the actual setting up of the factory the rate may need to be reviewed when thetraffic actually begins to move. The Railway may accordingly be approached before the traffic actually starts moving Yours faithfully Sd/- R. L. Sharma for Secretary Railway Board 29. What does this letter mean ? The first part of the letter offering the concessional rate equal to class 85-B (special) has been completely watered down in the second part of the letter. It has been expressly stated that the rate may need be reviewed when the traffic actually begins to move. The company was put to notice that it has to again approach the Railway Administration. The Railway authorities now state that they have reviewed the whole matter and found no justification to offer a concessional freight rate for Naptha, since fertilizers are deliberately given a low classification in the tariff. From the tenor of Ex. C-5 the Railways are entitled to state so, and it does not amount to resiling form the earlier assurance. No question of estoppel arises in favour of appellant out of the representation made in Ex. C-5. 30. We, therefore, agree with the conclusion of the Tribunal but not for all the reasons stated. | 0[ds]Section 28 is obviously based on the principle that the power derived from the monopoly of railway carriage must be used in a fair and just manner in respect of all persons and all descriptions of traffic passing over the railway area. In other words, equal charges should normally be levied against persons or goods of the same or similar kinds passing over the same or similar circumstances; but this rule does not mean that, if the railway administration charges unequal rates in respect of the same or similar class of goods travelling over the same or similar areas, the inequality of rates necessarily attracts the provisions of Section 28. All cases of unequal rates cannot necessarily be treated as cases of preference because the very concept of preference postulates competition between the person or traffic receiving preference and the person or traffic suffering prejudice in consequence. It is only as between competitors in the same trade that a complaint of preference can be made by one in reference to theIn the light of these principles, the Tribunal considering the material on record held that there is no evidence produced by the company to justify any grievance under Section 28. We see no reason to disagree with this conclusion. It is, in our opinion, perfectly justified. In fact Mr. K. K. Jain learned counsel for the appellant also did not seriously dispute the correctness of that finding recorded by theThe last and final aspect of the matter to which attention should be drawn is that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it is necessary to state that the representation must be clear and unambiguous and not tentative or uncertain. In this context we may usefully refer to the following passage from Halsburys Laws of England (4th Edn., Vol. 16, p. 1071, para 1595)1595. Representation must be unambiguous. - To found an estoppel a representation must be clear and unambiguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at. This is merely an application of the old maxim applicable to all estoppels, that they "must be certain to every intent | 0 | 4,730 | 427 | ### 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:
he then was) in Motilal Padampat Sugar Mills Co. Ltd. v. State of U. P. ((1979) 2 SCR 641 at p. 695 : (1979) 2 SCC 409 ). The learned Judge had said : (SCC p. 452, para 33)We do not think that in order to invoke the doctrine of promissory estoppel it is necessary for the promisee to show that he suffered detriment as a result of acting in reliance on the promise. But we may make it clear that if by detriment we mean injustice to the promisee which could result if the promisor were to recede from his promise, then detriment would certainly come in as a necessary ingredient. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise. 23. The view taken in Motilal Padampat Sugar Mills case ((1979) 2 SCR 641 at p. 695 : (1979) 2 SCC 409 ) has been reiterated in Union of India v. Godfrey Philips India Ltd. ((1985) 4 SCC 369 : 1985 Supp 3 SCR 123) 24. The concept of detriment as we now understand it is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation. 25. It is, however, quite fundamental that the doctrine of promissory estoppel, cannot be used to compel the public bodies or the government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. It, therefore, requires that he who seeks equity must do equity. The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement. 26. We may also state that for the purpose of invoking the doctrine, it is not necessary for the company to show that the assurance contained in Ex. C-5 was mainly responsible for establishing the factory at Kota. There may be several representations to one party from different authorities in regard to different matters. Or, there may be several representations from the same party in regard to different matters. As in the instant case, there was one representation by the Rajasthan Government to supply power to the company at concessional rate. There was another representation from the same government to exempt the company from payment of tax for certain period. There may be other representations from the same or some other authorities. If those representations have been relied upon by the company, the court would compel those parties to adhere to their respective representations. It is immaterial whether each of the representations was wholly responsible or partly responsible for locating the factory at Kota. It is sufficient if the company was induced to act on that representation. 27. The last and final aspect of the matter to which attention should be drawn is that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it is necessary to state that the representation must be clear and unambiguous and not tentative or uncertain. In this context we may usefully refer to the following passage from Halsburys Laws of England (4th Edn., Vol. 16, p. 1071, para 1595)1595. Representation must be unambiguous. - To found an estoppel a representation must be clear and unambiguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at. This is merely an application of the old maxim applicable to all estoppels, that they "must be certain to every intent. 28. The question now is whether the assurance given by the Railway Board in the letter Ex. C-5 was clear and unqualified. But unfortunately, it is not so. It was subject to review to be undertaken when the company starts moving the raw material. Ex. C-5 reads: New Delhi 1 Dated November 5, 1966 Dear Sir Sub. : Integrated Fertilizer - PVC project at Kota Rajasthan - Rail movement of Naptha Ref. : Your letter No. SFC/Gen-72 dated September 5, 1966 I am directed to state that the Railway Board agree to quote a special rate equal to class 85-B (Special) CC : K for transport of Naptha in train loads from Bombay or Koyali to Kota, for manufacture of fertilizers. The proposed special rate will apply at owners risk Since the special rate is being quoted ahead of the actual setting up of the factory the rate may need to be reviewed when thetraffic actually begins to move. The Railway may accordingly be approached before the traffic actually starts moving Yours faithfully Sd/- R. L. Sharma for Secretary Railway Board 29. What does this letter mean ? The first part of the letter offering the concessional rate equal to class 85-B (special) has been completely watered down in the second part of the letter. It has been expressly stated that the rate may need be reviewed when the traffic actually begins to move. The company was put to notice that it has to again approach the Railway Administration. The Railway authorities now state that they have reviewed the whole matter and found no justification to offer a concessional freight rate for Naptha, since fertilizers are deliberately given a low classification in the tariff. From the tenor of Ex. C-5 the Railways are entitled to state so, and it does not amount to resiling form the earlier assurance. No question of estoppel arises in favour of appellant out of the representation made in Ex. C-5. 30. We, therefore, agree with the conclusion of the Tribunal but not for all the reasons stated.
### Response:
0
### Explanation:
Section 28 is obviously based on the principle that the power derived from the monopoly of railway carriage must be used in a fair and just manner in respect of all persons and all descriptions of traffic passing over the railway area. In other words, equal charges should normally be levied against persons or goods of the same or similar kinds passing over the same or similar circumstances; but this rule does not mean that, if the railway administration charges unequal rates in respect of the same or similar class of goods travelling over the same or similar areas, the inequality of rates necessarily attracts the provisions of Section 28. All cases of unequal rates cannot necessarily be treated as cases of preference because the very concept of preference postulates competition between the person or traffic receiving preference and the person or traffic suffering prejudice in consequence. It is only as between competitors in the same trade that a complaint of preference can be made by one in reference to theIn the light of these principles, the Tribunal considering the material on record held that there is no evidence produced by the company to justify any grievance under Section 28. We see no reason to disagree with this conclusion. It is, in our opinion, perfectly justified. In fact Mr. K. K. Jain learned counsel for the appellant also did not seriously dispute the correctness of that finding recorded by theThe last and final aspect of the matter to which attention should be drawn is that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it is necessary to state that the representation must be clear and unambiguous and not tentative or uncertain. In this context we may usefully refer to the following passage from Halsburys Laws of England (4th Edn., Vol. 16, p. 1071, para 1595)1595. Representation must be unambiguous. - To found an estoppel a representation must be clear and unambiguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at. This is merely an application of the old maxim applicable to all estoppels, that they "must be certain to every intent
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Associated Aluminium Industries (P) Limited Vs. The Registrar of Companies, Mumbai | licence agreement with prior written approval of the licensor to be granted on fulfillment of the condition, inter alia, that amalgamation or restructuring is sanctioned and approved by the High Court or Tribunal as per the law in force. The Department of Telecommunications guidelines provided that prior approval of the Department of Telecommunications shall be necessary for merger of the licence, that consequent upon the merger of licences in a service area, the postmerger licensee entity shall be entitled to the total amount of spectrum held by the merging entities, subject to the condition that after merger, the licensee shall meet, within a period of 3 months from date of approval of merger by the licensor, the prevailing spectrum allocation criterion, that any permission for merger shall be accorded only after completion of 3 years from the effective date of licences. Neither in the merger applications nor in the demerger applications were copies of licences or the Merger Guidelines 2008, or the correspondence exchanged between the appellant and the Department of Telecommunications placed on record. The High Court sanctioned the scheme of amalgamation which provided that overlapping licences would be transferred in accordance with the scheme of demerger. Upon the merger scheme being sanctioned by the Court, overlapping licences stood vested in the appellant and that the Department of Telecommunications had no other option but to grant its formal approval for transfer of licences. The Department of Telecommunications, however, refused permission and on the ground that the amalgamation of Spice with the appellant was resorted to without the knowledge or taking consent of or notice of the proceedings to it, moved an application for recall of the orders of sanction and demerger of the two companies. The Learned Single Judge held, by notifying that a communication from the Department of Telecommunications to appellant that merger and demerger as proposed was impermissible as some of the overlapping licences were less than 3 years old was suppressed from the Court when the matter was argued and judgment reserved, that sanction to the scheme had been obtained by fraud. The Court, however, instead of recalling the order granting sanction, modified it to bring the sanctioned scheme in conformity with the licence and Merger Guidelines, 2008 to the effect that the six overlapping licences of Spice would not stand transferred to or vested in the appellant till prior permission of the Department of Telecommunications was obtained but would stand vested with the Department of Telecommunications and that the spectrum allocated for such overlapping licences shall also forthwith revert to the Department of Telecommunications.15. The Division Bench upheld this conclusion of the Learned Single Judge with some minor modifications. The facts in the applications being heard are totally different. At one point, Shri Sethi tried to suggest that the application dated 9th March, 2016 of Transferee to Chief Engineer, Maharashtra State Electricity Distribution Company Limited (MSEDCL) is still pending disposal and hence the windmill business has not yet been transferred to Transferee and the Scheme is conditional upon the requisite approval being received from various authorities as mentioned in Clause 20 (a) (ii) of the scheme.16. In my view, this submission of Shri Sethi is of no assistance to applicants because if this permission was a condition precedent for carrying on windmill business by Transferee, Transferee would not have made the Scheme effective by filing Form 21 alongwith copy of the order and Scheme with the Registrar of Companies on 15th October, 2013. The fact that Transferee has already started showing revenue from windmill business in its accounts and has started filing income tax returns also belies the submissions of Shri Sethi that the pendency of the application before the Chief Engineer, MSEDCL means the windmill business has not yet been transferred to Transferee. Shri Sethis submissions further cannot be accepted because Transferee took almost three years to file this application dated 9th March, 2016 before the Chief Engineer, MSEDCL for sanction. If what Shri Sethi stated was correct, Transferee would have applied to MSEDCL before making the Scheme effective or soon thereafter.17. Shri Sethi also relied upon a judgment of High Court of Punjab and Haryana in re : Highway Cycle Industries Limited and Anr. (2003) 115 Comp Cas 260 (P & H)to submit that the Courts have allowed even shifting of the transfer date which, according to Shri Sethi, is much more a serious issue than what applicants are seeking in the present two applications. I am afraid, it is like comparing apples with oranges. Each application has to be considered in its own merits and conclusion arrived at.It should be noted that when an order sanctioning a scheme under Section 391 of the Act is passed, it operates in rem. It affects the rights of several persons including creditors, investors, etc. and also creates liabilities in favour of persons like the Income Tax Authorities. These rights and liabilities became vested once the scheme becomes effective. The windmill business was transferred to Transferee and the Scheme was made effective by Transferee by filing Form 21 with the Registrar of Companies, Transferee having started earning revenue and having filed income tax returns, undoubtedly created rights and liabilities in favour of the Income Tax Authorities.18. It should be noted that Transferee has filed returns for 3 years before this applications were filed. Therefore, these applications are not just for a simple or minor modification of the scheme. If the Court grants the prayers as sought, the net effect would be of recalling the order sanctioning the Scheme to the extent of windmill business. Just because certain tax benefits have been lost does not mean that the Scheme is not workable. Hence no modifications are required. If the reliefs as sought are granted, would effectively amount to tampering with the essence of the scheme which is impermissible. The basic fabric of the Scheme would change and will go beyond the confines of what the Court while sanctioning the Scheme understood in the provisions of the Scheme. | 0[ds]11. Section 392, therefore, makes it clear that after the Court sanctions a compromise or an arrangement under Section 391 of the Act, it has power to supervise the carrying out of the compromise or an arrangement. The Court may also give such directions in regard to any matter or make such modifications in the compromise or arrangement as it may consider necessary for the proper working of the compromise or arrangement and it may make an order winding up the company if it satisfied that a compromise or an arrangement under Section 391 of the Act cannot be worked satisfactorily with or without modifications. Section 392 codifies the power of the Court to deal with the Scheme post sanction. Therefore, the Companies Act specifically prescribes the powers vested in the Court once the Scheme is sanctioned by the Court. Section 392 shows that the Act empowers the Court to give directions and allow modifications in the compromise or arrangement but has not given any powers to the Court to recall/rescind/cancel the order sanctioning the compromise or arrangement. If at all the Court is satisfied that the compromise or arrangement sanctioned under Section 391 of the Act cannot be worked satisfactorily with or without modifications, the Court can suo motu or on the application of any person interested in the affairs of the company, make an order winding up the company.Therefore, once a scheme is sanctioned and made effective, the changes allowed therein should be minor ones and not wholesale changes which would tamper with the essence of the scheme and if a company desires to modify a sanctioned scheme, though not necessary to do so for the proper working thereof, it is required to follow the procedure prescribed under Section 391 of the Act.I also find support from the judgment of this Court in Unique Delta Force (Supra). In Idea Cellular Limited (Supra), which Shri Lohia placed for Courts consideration, the facts were entirely different. There appellant, Idea, was the holder of a cellular mobile telephone service licence granted to it by the Department of Telecommunications in the service areas of Haryana, Maharashtra, Andhra Pradesh and Delhi. Spice was a telecom service provider in the service areas of Punjab and Karnataka. The licence stipulated that the licensee may transfer or assign the licence agreement with prior written approval of the licensor to be granted on fulfillment of certain conditions. The unified access service licence provided that any change in shareholding shall be subject to all applicable statutory permissions, that no single company/legal person, either directly or through its associates, shall have substantial equity holding, i.e., 10 per cent or more in more than one licensee company in the same service area for the access services. The licence also provided that the licensee shall not, without the prior written consent of the licensor, either directly or indirectly, assign or transfer the licence to a third party or enter into any agreement for sublicence or partnership, that the licensee may transfer or assign the licence agreement with prior written approval of the licensor to be granted on fulfillment of the condition, inter alia, that amalgamation or restructuring is sanctioned and approved by the High Court or Tribunal as per the law in force. The Department of Telecommunications guidelines provided that prior approval of the Department of Telecommunications shall be necessary for merger of the licence, that consequent upon the merger of licences in a service area, the postmerger licensee entity shall be entitled to the total amount of spectrum held by the merging entities, subject to the condition that after merger, the licensee shall meet, within a period of 3 months from date of approval of merger by the licensor, the prevailing spectrum allocation criterion, that any permission for merger shall be accorded only after completion of 3 years from the effective date of licences. Neither in the merger applications nor in the demerger applications were copies of licences or the Merger Guidelines 2008, or the correspondence exchanged between the appellant and the Department of Telecommunications placed on record. The High Court sanctioned the scheme of amalgamation which provided that overlapping licences would be transferred in accordance with the scheme of demerger. Upon the merger scheme being sanctioned by the Court, overlapping licences stood vested in the appellant and that the Department of Telecommunications had no other option but to grant its formal approval for transfer of licences. The Department of Telecommunications, however, refused permission and on the ground that the amalgamation of Spice with the appellant was resorted to without the knowledge or taking consent of or notice of the proceedings to it, moved an application for recall of the orders of sanction and demerger of the two companies. The Learned Single Judge held, by notifying that a communication from the Department of Telecommunications to appellant that merger and demerger as proposed was impermissible as some of the overlapping licences were less than 3 years old was suppressed from the Court when the matter was argued and judgment reserved, that sanction to the scheme had been obtained by fraud. The Court, however, instead of recalling the order granting sanction, modified it to bring the sanctioned scheme in conformity with the licence and Merger Guidelines, 2008 to the effect that the six overlapping licences of Spice would not stand transferred to or vested in the appellant till prior permission of the Department of Telecommunications was obtained but would stand vested with the Department of Telecommunications and that the spectrum allocated for such overlapping licences shall also forthwith revert to the Department of Telecommunications.15. The Division Bench upheld this conclusion of the Learned Single Judge with some minor modifications. The facts in the applications being heard are totally different. At one point, Shri Sethi tried to suggest that the application dated 9th March, 2016 of Transferee to Chief Engineer, Maharashtra State Electricity Distribution Company Limited (MSEDCL) is still pending disposal and hence the windmill business has not yet been transferred to Transferee and the Scheme is conditional upon the requisite approval being received from various authorities as mentioned in Clause 20 (a) (ii) of the scheme.16. In my view, this submission of Shri Sethi is of no assistance to applicants because if this permission was a condition precedent for carrying on windmill business by Transferee, Transferee would not have made the Scheme effective by filing Form 21 alongwith copy of the order and Scheme with the Registrar of Companies on 15th October, 2013. The fact that Transferee has already started showing revenue from windmill business in its accounts and has started filing income tax returns also belies the submissions of Shri Sethi that the pendency of the application before the Chief Engineer, MSEDCL means the windmill business has not yet been transferred to Transferee. Shri Sethis submissions further cannot be accepted because Transferee took almost three years to file this application dated 9th March, 2016 before the Chief Engineer, MSEDCL for sanction. If what Shri Sethi stated was correct, Transferee would have applied to MSEDCL before making the Scheme effective or soon thereafter.17. Shri Sethi also relied upon a judgment of High Court of Punjab and Haryana in re : Highway Cycle Industries Limited and Anr. (2003) 115 Comp Cas 260 (PH)to submit that the Courts have allowed even shifting of the transfer date which, according to Shri Sethi, is much more a serious issue than what applicants are seeking in the present two applications. I am afraid, it is like comparing apples with oranges. Each application has to be considered in its own merits and conclusion arrived at.It should be noted that when an order sanctioning a scheme under Section 391 of the Act is passed, it operates in rem. It affects the rights of several persons including creditors, investors, etc. and also creates liabilities in favour of persons like the Income Tax Authorities. These rights and liabilities became vested once the scheme becomes effective. The windmill business was transferred to Transferee and the Scheme was made effective by Transferee by filing Form 21 with the Registrar of Companies, Transferee having started earning revenue and having filed income tax returns, undoubtedly created rights and liabilities in favour of the Income Tax Authorities.18. It should be noted that Transferee has filed returns for 3 years before this applications were filed. Therefore, these applications are not just for a simple or minor modification of the scheme. If the Court grants the prayers as sought, the net effect would be of recalling the order sanctioning the Scheme to the extent of windmill business. Just because certain tax benefits have been lost does not mean that the Scheme is not workable. Hence no modifications are required. If the reliefs as sought are granted, would effectively amount to tampering with the essence of the scheme which is impermissible. The basic fabric of the Scheme would change and will go beyond the confines of what the Court while sanctioning the Scheme understood in the provisions of the Scheme. | 0 | 6,194 | 1,631 | ### 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:
licence agreement with prior written approval of the licensor to be granted on fulfillment of the condition, inter alia, that amalgamation or restructuring is sanctioned and approved by the High Court or Tribunal as per the law in force. The Department of Telecommunications guidelines provided that prior approval of the Department of Telecommunications shall be necessary for merger of the licence, that consequent upon the merger of licences in a service area, the postmerger licensee entity shall be entitled to the total amount of spectrum held by the merging entities, subject to the condition that after merger, the licensee shall meet, within a period of 3 months from date of approval of merger by the licensor, the prevailing spectrum allocation criterion, that any permission for merger shall be accorded only after completion of 3 years from the effective date of licences. Neither in the merger applications nor in the demerger applications were copies of licences or the Merger Guidelines 2008, or the correspondence exchanged between the appellant and the Department of Telecommunications placed on record. The High Court sanctioned the scheme of amalgamation which provided that overlapping licences would be transferred in accordance with the scheme of demerger. Upon the merger scheme being sanctioned by the Court, overlapping licences stood vested in the appellant and that the Department of Telecommunications had no other option but to grant its formal approval for transfer of licences. The Department of Telecommunications, however, refused permission and on the ground that the amalgamation of Spice with the appellant was resorted to without the knowledge or taking consent of or notice of the proceedings to it, moved an application for recall of the orders of sanction and demerger of the two companies. The Learned Single Judge held, by notifying that a communication from the Department of Telecommunications to appellant that merger and demerger as proposed was impermissible as some of the overlapping licences were less than 3 years old was suppressed from the Court when the matter was argued and judgment reserved, that sanction to the scheme had been obtained by fraud. The Court, however, instead of recalling the order granting sanction, modified it to bring the sanctioned scheme in conformity with the licence and Merger Guidelines, 2008 to the effect that the six overlapping licences of Spice would not stand transferred to or vested in the appellant till prior permission of the Department of Telecommunications was obtained but would stand vested with the Department of Telecommunications and that the spectrum allocated for such overlapping licences shall also forthwith revert to the Department of Telecommunications.15. The Division Bench upheld this conclusion of the Learned Single Judge with some minor modifications. The facts in the applications being heard are totally different. At one point, Shri Sethi tried to suggest that the application dated 9th March, 2016 of Transferee to Chief Engineer, Maharashtra State Electricity Distribution Company Limited (MSEDCL) is still pending disposal and hence the windmill business has not yet been transferred to Transferee and the Scheme is conditional upon the requisite approval being received from various authorities as mentioned in Clause 20 (a) (ii) of the scheme.16. In my view, this submission of Shri Sethi is of no assistance to applicants because if this permission was a condition precedent for carrying on windmill business by Transferee, Transferee would not have made the Scheme effective by filing Form 21 alongwith copy of the order and Scheme with the Registrar of Companies on 15th October, 2013. The fact that Transferee has already started showing revenue from windmill business in its accounts and has started filing income tax returns also belies the submissions of Shri Sethi that the pendency of the application before the Chief Engineer, MSEDCL means the windmill business has not yet been transferred to Transferee. Shri Sethis submissions further cannot be accepted because Transferee took almost three years to file this application dated 9th March, 2016 before the Chief Engineer, MSEDCL for sanction. If what Shri Sethi stated was correct, Transferee would have applied to MSEDCL before making the Scheme effective or soon thereafter.17. Shri Sethi also relied upon a judgment of High Court of Punjab and Haryana in re : Highway Cycle Industries Limited and Anr. (2003) 115 Comp Cas 260 (P & H)to submit that the Courts have allowed even shifting of the transfer date which, according to Shri Sethi, is much more a serious issue than what applicants are seeking in the present two applications. I am afraid, it is like comparing apples with oranges. Each application has to be considered in its own merits and conclusion arrived at.It should be noted that when an order sanctioning a scheme under Section 391 of the Act is passed, it operates in rem. It affects the rights of several persons including creditors, investors, etc. and also creates liabilities in favour of persons like the Income Tax Authorities. These rights and liabilities became vested once the scheme becomes effective. The windmill business was transferred to Transferee and the Scheme was made effective by Transferee by filing Form 21 with the Registrar of Companies, Transferee having started earning revenue and having filed income tax returns, undoubtedly created rights and liabilities in favour of the Income Tax Authorities.18. It should be noted that Transferee has filed returns for 3 years before this applications were filed. Therefore, these applications are not just for a simple or minor modification of the scheme. If the Court grants the prayers as sought, the net effect would be of recalling the order sanctioning the Scheme to the extent of windmill business. Just because certain tax benefits have been lost does not mean that the Scheme is not workable. Hence no modifications are required. If the reliefs as sought are granted, would effectively amount to tampering with the essence of the scheme which is impermissible. The basic fabric of the Scheme would change and will go beyond the confines of what the Court while sanctioning the Scheme understood in the provisions of the Scheme.
### Response:
0
### Explanation:
assign the licence agreement with prior written approval of the licensor to be granted on fulfillment of the condition, inter alia, that amalgamation or restructuring is sanctioned and approved by the High Court or Tribunal as per the law in force. The Department of Telecommunications guidelines provided that prior approval of the Department of Telecommunications shall be necessary for merger of the licence, that consequent upon the merger of licences in a service area, the postmerger licensee entity shall be entitled to the total amount of spectrum held by the merging entities, subject to the condition that after merger, the licensee shall meet, within a period of 3 months from date of approval of merger by the licensor, the prevailing spectrum allocation criterion, that any permission for merger shall be accorded only after completion of 3 years from the effective date of licences. Neither in the merger applications nor in the demerger applications were copies of licences or the Merger Guidelines 2008, or the correspondence exchanged between the appellant and the Department of Telecommunications placed on record. The High Court sanctioned the scheme of amalgamation which provided that overlapping licences would be transferred in accordance with the scheme of demerger. Upon the merger scheme being sanctioned by the Court, overlapping licences stood vested in the appellant and that the Department of Telecommunications had no other option but to grant its formal approval for transfer of licences. The Department of Telecommunications, however, refused permission and on the ground that the amalgamation of Spice with the appellant was resorted to without the knowledge or taking consent of or notice of the proceedings to it, moved an application for recall of the orders of sanction and demerger of the two companies. The Learned Single Judge held, by notifying that a communication from the Department of Telecommunications to appellant that merger and demerger as proposed was impermissible as some of the overlapping licences were less than 3 years old was suppressed from the Court when the matter was argued and judgment reserved, that sanction to the scheme had been obtained by fraud. The Court, however, instead of recalling the order granting sanction, modified it to bring the sanctioned scheme in conformity with the licence and Merger Guidelines, 2008 to the effect that the six overlapping licences of Spice would not stand transferred to or vested in the appellant till prior permission of the Department of Telecommunications was obtained but would stand vested with the Department of Telecommunications and that the spectrum allocated for such overlapping licences shall also forthwith revert to the Department of Telecommunications.15. The Division Bench upheld this conclusion of the Learned Single Judge with some minor modifications. The facts in the applications being heard are totally different. At one point, Shri Sethi tried to suggest that the application dated 9th March, 2016 of Transferee to Chief Engineer, Maharashtra State Electricity Distribution Company Limited (MSEDCL) is still pending disposal and hence the windmill business has not yet been transferred to Transferee and the Scheme is conditional upon the requisite approval being received from various authorities as mentioned in Clause 20 (a) (ii) of the scheme.16. In my view, this submission of Shri Sethi is of no assistance to applicants because if this permission was a condition precedent for carrying on windmill business by Transferee, Transferee would not have made the Scheme effective by filing Form 21 alongwith copy of the order and Scheme with the Registrar of Companies on 15th October, 2013. The fact that Transferee has already started showing revenue from windmill business in its accounts and has started filing income tax returns also belies the submissions of Shri Sethi that the pendency of the application before the Chief Engineer, MSEDCL means the windmill business has not yet been transferred to Transferee. Shri Sethis submissions further cannot be accepted because Transferee took almost three years to file this application dated 9th March, 2016 before the Chief Engineer, MSEDCL for sanction. If what Shri Sethi stated was correct, Transferee would have applied to MSEDCL before making the Scheme effective or soon thereafter.17. Shri Sethi also relied upon a judgment of High Court of Punjab and Haryana in re : Highway Cycle Industries Limited and Anr. (2003) 115 Comp Cas 260 (PH)to submit that the Courts have allowed even shifting of the transfer date which, according to Shri Sethi, is much more a serious issue than what applicants are seeking in the present two applications. I am afraid, it is like comparing apples with oranges. Each application has to be considered in its own merits and conclusion arrived at.It should be noted that when an order sanctioning a scheme under Section 391 of the Act is passed, it operates in rem. It affects the rights of several persons including creditors, investors, etc. and also creates liabilities in favour of persons like the Income Tax Authorities. These rights and liabilities became vested once the scheme becomes effective. The windmill business was transferred to Transferee and the Scheme was made effective by Transferee by filing Form 21 with the Registrar of Companies, Transferee having started earning revenue and having filed income tax returns, undoubtedly created rights and liabilities in favour of the Income Tax Authorities.18. It should be noted that Transferee has filed returns for 3 years before this applications were filed. Therefore, these applications are not just for a simple or minor modification of the scheme. If the Court grants the prayers as sought, the net effect would be of recalling the order sanctioning the Scheme to the extent of windmill business. Just because certain tax benefits have been lost does not mean that the Scheme is not workable. Hence no modifications are required. If the reliefs as sought are granted, would effectively amount to tampering with the essence of the scheme which is impermissible. The basic fabric of the Scheme would change and will go beyond the confines of what the Court while sanctioning the Scheme understood in the provisions of the Scheme.
|
The Income Tax Officer, Distt. II (ii), Kanpur & Others Vs. Mani Ram & Others | S. 18A (1) so as to include only a "regular assessment" under Section 23 of the Act. There is no reason why Parliament did not add the word "regularly" in the sub-section so as to qualify the word "assessed". Since there is no such qualification, the word "assessed" in Section l8A (3) should be read in its ordinary sense as including every kind of assessment including a provisional assessment under Section 23B of the Act.7. In the last place, counsel on behalf of the appellants referred to the language of Sections 210 and 212 (3) of the Income Tax Act, 1961 which state:"210. Order by Income Tax Officer :- (1) where a person has been previously assessed by way of regular assessment under this Act or under the Indian Income Tax Act, 1922 (11 of 1922), the Income Tax Officer may, on or after the 1st day of April in the financial year, by order in writing require him to pay to the credit of the Central Government advance tax determined in accordance with the provisions of Sections 207, 208 and 209.(2) The notice of demand issued under Section 156 in pursuance of such order shall specify the instalments in which the advance tax is payable under Sec. 211.(3) If, after the making of an order by the Income Tax Officer under this Section and before the 15th day of February of the Financial year tax is paid by the assessee under Section 140-A or a regular assessment or a provisional assessment under Section 141 of the assessee or of the registered firm of which he is a partner is made in respect of a previous year later than that referred to in the order of the Income Tax Officer, the Income Tax Officer may make an amended order requiring the assessee to pay in one instalment on the specified date, or in equal instalments on the specified dates, if more than one, falling after the date of the amended order, the advance tax computed on the basis of the total income on which tax has been paid under Section 140-A or in respect of which the regular assessment or the provisional assessment aforesaid has been made as reduced by the amount, if any, pad in accordance with the original order.212. Estimate by assessee, - (l) . . . . .* * * * * * *(3) Any person who has not previously been assessed by way of regular assessment under this Act or under the Indian Income Tax Act, 1922 (11 of 1922) shall, before the first day of March in each financial year, if his total income exclusive of capital gains of the period which would be the previous year for the immediately following assessment year is likely to exceed the maximum amount not chargeable to income-tax in his case by two thousand five hundred rupees, send to the Income Tax Officer-(i) an estimate of the total income exclusive of capital gains of the said previous year;(ii) an estimate of the advance tax payable by him calculated in the manner laid down in Section 209;and shall pay such amount as accords with his estimate, on such of the dates specified in Section 211 as have not expired, by instalments which may be revised according to sub-section (2) ".8. The argument was that these Sections apply to a case of a regular assessment an the enactment of these Sections should be treated as a Parliamentary exposition of Section 18A (3) of the earlier Act as referring only to a case of regular assessment. We are unable to accept this argument as correct. There is nothing in 1961 Act to suggest that Parliament intended to explain the meaning or clear up doubts about the meaning of the word "assessed" in Section 18A (3) of the earlier Act.Generally speaking, a subsequent Act of Parliament affords no useful guide to the meaning of another Act which came into existence before the later one was ever framed. Under special circumstances, the law does however admit of a subsequent Act to be resorted to for this purpose but the conditions under which the later Act may be resorted for the interpretation of the earlier Act are strict; both must be laws on the same subject and the part of the earlier Act which it is sought to construe must be ambiguous and capable of different meanings.For example, in Kirkness (Inspector of Taxes) v. John Hudson and Co. Ltd., 1955 AC 696 it was held by the House of Lords that the ordinary meaning of the word "sale" importing a consensual relation is to be attributed to the use of it in the context of S. 17 (1) (a) of the Act of 1945. Since there was no ambiguity in the Section, it was not permissible to seek guidance in its construction from later Finance Acts, although it was directed by Parliament to be construed as one with them. At page 714 of the Report Viscount Simonds states:"I have looked at the later Acts to which the Attorney General referred to in order to satisfy myself that they do not contain a retrospective declaration as to the meaning of the earlier Act. They clearly do not, and I do not think that it has been contended that they do. At the highest it can be said that they may proceed upon an erroneous assumption that the word "sold in Section 17 (1) (a) of the Income Tax Act, 1945, has a meaning which I hold it has not. This may be so and, if so, it is an excellent example of the proposition to which reference was made in the report of the Committee of the Privy Council. In In re, Mac Manasway, 1951 AC 161 and again by my noble and learned friend Lord Radcliffe in Inland Revenue Commissioners v. Dowdall, OMahoney and Co. Ltd., 1952 AC 401 that the beliefs or assumptions of those who frame Acts of Parliament cannot make the law." | 0[ds]We are unable to accept this argument as correct. It should be noticed that the Parliament introduced certain amendments in S. 18A of the Act consequential to the introduction of S. 23B of the Act. There is a reference to the provisional assessment made under Section 23B in sub-section (5) of Section 18A, but Parliament took no step to restrict the meaning of the word "assessed" in Section 18A (3) so as to exclude a reference to provisional assessment under Section 23B of the Act. If Parliament contemplated that Section 18A (3) should apply only in the case of a "regular assessment", there was no reason why it did not put some qualifying words or expressions before or after the word "assessed" in Section 18A (1). It is not possible to accept the submission of the appellants that Parliament in fact intended to bring about such a decision but only accidentally omitted to do so. On the other hand, the language of Section 18A (1) as it stands, can only lead to interpretation that the provisions contained in it would become applicable whenever a person has been assessed whatever be the nature of the assessment- whether it be a regular assessment or a provisionalare unable to accept this argument as correct. There is nothing in 1961 Act to suggest that Parliament intended to explain the meaning or clear up doubts about the meaning of the word "assessed" in Section 18A (3) of the earlier Act. | 0 | 4,289 | 280 | ### 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:
S. 18A (1) so as to include only a "regular assessment" under Section 23 of the Act. There is no reason why Parliament did not add the word "regularly" in the sub-section so as to qualify the word "assessed". Since there is no such qualification, the word "assessed" in Section l8A (3) should be read in its ordinary sense as including every kind of assessment including a provisional assessment under Section 23B of the Act.7. In the last place, counsel on behalf of the appellants referred to the language of Sections 210 and 212 (3) of the Income Tax Act, 1961 which state:"210. Order by Income Tax Officer :- (1) where a person has been previously assessed by way of regular assessment under this Act or under the Indian Income Tax Act, 1922 (11 of 1922), the Income Tax Officer may, on or after the 1st day of April in the financial year, by order in writing require him to pay to the credit of the Central Government advance tax determined in accordance with the provisions of Sections 207, 208 and 209.(2) The notice of demand issued under Section 156 in pursuance of such order shall specify the instalments in which the advance tax is payable under Sec. 211.(3) If, after the making of an order by the Income Tax Officer under this Section and before the 15th day of February of the Financial year tax is paid by the assessee under Section 140-A or a regular assessment or a provisional assessment under Section 141 of the assessee or of the registered firm of which he is a partner is made in respect of a previous year later than that referred to in the order of the Income Tax Officer, the Income Tax Officer may make an amended order requiring the assessee to pay in one instalment on the specified date, or in equal instalments on the specified dates, if more than one, falling after the date of the amended order, the advance tax computed on the basis of the total income on which tax has been paid under Section 140-A or in respect of which the regular assessment or the provisional assessment aforesaid has been made as reduced by the amount, if any, pad in accordance with the original order.212. Estimate by assessee, - (l) . . . . .* * * * * * *(3) Any person who has not previously been assessed by way of regular assessment under this Act or under the Indian Income Tax Act, 1922 (11 of 1922) shall, before the first day of March in each financial year, if his total income exclusive of capital gains of the period which would be the previous year for the immediately following assessment year is likely to exceed the maximum amount not chargeable to income-tax in his case by two thousand five hundred rupees, send to the Income Tax Officer-(i) an estimate of the total income exclusive of capital gains of the said previous year;(ii) an estimate of the advance tax payable by him calculated in the manner laid down in Section 209;and shall pay such amount as accords with his estimate, on such of the dates specified in Section 211 as have not expired, by instalments which may be revised according to sub-section (2) ".8. The argument was that these Sections apply to a case of a regular assessment an the enactment of these Sections should be treated as a Parliamentary exposition of Section 18A (3) of the earlier Act as referring only to a case of regular assessment. We are unable to accept this argument as correct. There is nothing in 1961 Act to suggest that Parliament intended to explain the meaning or clear up doubts about the meaning of the word "assessed" in Section 18A (3) of the earlier Act.Generally speaking, a subsequent Act of Parliament affords no useful guide to the meaning of another Act which came into existence before the later one was ever framed. Under special circumstances, the law does however admit of a subsequent Act to be resorted to for this purpose but the conditions under which the later Act may be resorted for the interpretation of the earlier Act are strict; both must be laws on the same subject and the part of the earlier Act which it is sought to construe must be ambiguous and capable of different meanings.For example, in Kirkness (Inspector of Taxes) v. John Hudson and Co. Ltd., 1955 AC 696 it was held by the House of Lords that the ordinary meaning of the word "sale" importing a consensual relation is to be attributed to the use of it in the context of S. 17 (1) (a) of the Act of 1945. Since there was no ambiguity in the Section, it was not permissible to seek guidance in its construction from later Finance Acts, although it was directed by Parliament to be construed as one with them. At page 714 of the Report Viscount Simonds states:"I have looked at the later Acts to which the Attorney General referred to in order to satisfy myself that they do not contain a retrospective declaration as to the meaning of the earlier Act. They clearly do not, and I do not think that it has been contended that they do. At the highest it can be said that they may proceed upon an erroneous assumption that the word "sold in Section 17 (1) (a) of the Income Tax Act, 1945, has a meaning which I hold it has not. This may be so and, if so, it is an excellent example of the proposition to which reference was made in the report of the Committee of the Privy Council. In In re, Mac Manasway, 1951 AC 161 and again by my noble and learned friend Lord Radcliffe in Inland Revenue Commissioners v. Dowdall, OMahoney and Co. Ltd., 1952 AC 401 that the beliefs or assumptions of those who frame Acts of Parliament cannot make the law."
### Response:
0
### Explanation:
We are unable to accept this argument as correct. It should be noticed that the Parliament introduced certain amendments in S. 18A of the Act consequential to the introduction of S. 23B of the Act. There is a reference to the provisional assessment made under Section 23B in sub-section (5) of Section 18A, but Parliament took no step to restrict the meaning of the word "assessed" in Section 18A (3) so as to exclude a reference to provisional assessment under Section 23B of the Act. If Parliament contemplated that Section 18A (3) should apply only in the case of a "regular assessment", there was no reason why it did not put some qualifying words or expressions before or after the word "assessed" in Section 18A (1). It is not possible to accept the submission of the appellants that Parliament in fact intended to bring about such a decision but only accidentally omitted to do so. On the other hand, the language of Section 18A (1) as it stands, can only lead to interpretation that the provisions contained in it would become applicable whenever a person has been assessed whatever be the nature of the assessment- whether it be a regular assessment or a provisionalare unable to accept this argument as correct. There is nothing in 1961 Act to suggest that Parliament intended to explain the meaning or clear up doubts about the meaning of the word "assessed" in Section 18A (3) of the earlier Act.
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Shradha Devi Vs. K.C. Pant and Others | on that basis, the preferences were valued and the points counted. Once again respondent 1 secured more points. The election petition was dismissed again and the appellant is once more before us.3. As already mentioned, the dispute is now confined to Ballot Paper No. 6. All the three of us (Desai, Chinnappa Reddy and Varadarajan, JJ.) examined the ballot paper with the naked eye and with the aid of a magnifying glass as well. We are not a little surprised that the Election Tribunal came to the conclusion that it did. The Tribunal said :I have pursued that mark. At the outset it must be mentioned that the alleged mark is not in ink. It has also not been made with the aid of any other instrument. It seems that it is something which has stuck with the paper. Either it was stuck while the paper was being manufactured or thereafter but it is not mark made be any elector.* * *Now I have also seen the ballot paper myself very closely and I am of the definite opinion that it is not a first preference mark made by the elector. It is something which is a manufacturing defect or any impurity. The tip of the mark is in the nature of Y and is not a mark made by the elector with the aid of any instrument whatsoever.........* * *I, therefore, record a finding that there is no mark of first preference set opposite the name of Smt. Manohara. That being the position, there was only one first preference mark set opposite the name of Shri G. C. Bhattacharya.We do not have the slightest hesitation in saying that there was clearly a mark - the numeral 1 - against the name of Manohara and that there was no manufacturing or other defect in the paper and nothing was stuck to the paper. Dr. Chitale appearing for respondent 1 tried to persuade us to accept the view of the Tribunal but we find it difficult to let our imagination run away.4. As we found at the earlier stage of hearing that two first preferences were marked in Ballot Paper No. 6, we came to the conclusion that it had to be excluded from the count as invalid. On that basis we required two officers of the Election Commission, who were appointed by us as Commissioners for that purpose, to value the preference and count the points. The Commissioners have reported to us that as a result of the fresh count made by them, they have found that the first respondent has secured 3338 points and the appellant has secured 3315 points. The appellant has objected to the computation made by the Commissioners. The appellant says that the Commissioner were in error in making a recount by valuing all the 420 valid ballot papers instead of confining themselves to the ten disputed ballot papers which have been found to be valid. The submission was that the 10 ballot papers which have been rejected by the Returning Officer, but which have now been accepted may be treated as valid for fixing the minimum quota to be obtained by a candidate in order to be declared elected, but should be ruled out for the purpose of counting votes cast in favour of any candidate. The submission is wholly devoid of any merit. We do not see how a recounting could be done in the manner suggested by the appellant. Such a method of recounting would be wholly alien to the scheme of counting explained and adumbrated at such length in the Schedule to the Representation of the People Act. The appellant attempted to take advantage of a sentence occurring in the earlier judgment of this Court where it has been said, " the scrutiny and recount was to be confined specifically to the decision of the Returning Officer rejecting eleven votes as invalid ". This Court was not intending to lay down any new method of recounting the points. All that was meant was that the 11 rejected ballot papers were to be scrutinised in the light of the judgment of the Court, and thereafter a recount was to be made. The recount had to be in accordance with the provisions of the Representation of the People Act and the Rules. Here we may refer to the following observations of this Court in Anirudh Prasad v. Rajeshwari Saroj Das : (SCC pp. 112-13, para 17)Initially, 306 ballot papers were accepted as valid by the Returning Officer. The minimum quota was accordingly fixed at 2551 : [306 x 100 = 30600 / 11 + 1 = 2550 + 1 + 2551]. The High Court held that 6 ballot papers were wrongly rejected by the Returning Officer as a result of which the number of valid ballot papers rose to 312. The minimum quota correspondingly rose to 2601 : (312 x 100 = 31200 / 12 = 2600 + 1 = 2601). The minimum quota which is fixed primarily on the basis of valid ballot papers is the key-point of counting and transfer of surplus votes. Surplus Votes means votes in excess of the minimum quota and it is such surplus votes that are transferred to other candidates left in the filed. The various rules and their working as illustrated in the Schedule to the Rules show that the system of proportional representation by a single transferable vote involves a progressive interlinked method of counting votes. It is therefore difficult to accept the appellants argument that a ballot paper may be treated as valid for fixation of the minimum quota but should be ruled out for purposes of counting the votes cast therein in favour of any candidate. If the ballot paper Ex. B/2 is valid, it must be treated as valid for all purposes and therefore the first preference vote contained therein in favour of respondent 8 must be involve no recrimination between respondent 8 and the appellant, both of whom were successful candidates. | 1[ds]The appellant says that the Commissioner were in error in making a recount by valuing all the 420 valid ballot papers instead of confining themselves to the ten disputed ballot papers which have been found to be valid. The submission was that the 10 ballot papers which have been rejected by the Returning Officer, but which have now been accepted may be treated as valid for fixing the minimum quota to be obtained by a candidate in order to be declared elected, but should be ruled out for the purpose of counting votes cast in favour of any candidate. The submission is wholly devoid of any merit. We do not see how a recounting could be done in the manner suggested by the appellant. Such a method of recounting would be wholly alien to the scheme of counting explained and adumbrated at such length in the Schedule to the Representation of the Peopleminimum quota which is fixed primarily on the basis of valid ballot papers is theof counting and transfer of surplus votes. Surplus Votes means votes in excess of the minimum quota and it is such surplus votes that are transferred to other candidates left in the filed. The various rules and their working as illustrated in the Schedule to the Rules show that the system of proportional representation by a single transferable vote involves a progressive interlinked method of counting votes. It is therefore difficult to accept the appellants argument that a ballot paper may be treated as valid for fixation of the minimum quota but should be ruled out for purposes of counting the votes cast therein in favour of any candidate. If the ballot paper Ex. B/2 is valid, it must be treated as valid for all purposes and therefore the first preference vote contained therein in favour of respondent 8 must be involve no recrimination between respondent 8 and the appellant, both of whom were successful candidates. | 1 | 1,757 | 340 | ### 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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on that basis, the preferences were valued and the points counted. Once again respondent 1 secured more points. The election petition was dismissed again and the appellant is once more before us.3. As already mentioned, the dispute is now confined to Ballot Paper No. 6. All the three of us (Desai, Chinnappa Reddy and Varadarajan, JJ.) examined the ballot paper with the naked eye and with the aid of a magnifying glass as well. We are not a little surprised that the Election Tribunal came to the conclusion that it did. The Tribunal said :I have pursued that mark. At the outset it must be mentioned that the alleged mark is not in ink. It has also not been made with the aid of any other instrument. It seems that it is something which has stuck with the paper. Either it was stuck while the paper was being manufactured or thereafter but it is not mark made be any elector.* * *Now I have also seen the ballot paper myself very closely and I am of the definite opinion that it is not a first preference mark made by the elector. It is something which is a manufacturing defect or any impurity. The tip of the mark is in the nature of Y and is not a mark made by the elector with the aid of any instrument whatsoever.........* * *I, therefore, record a finding that there is no mark of first preference set opposite the name of Smt. Manohara. That being the position, there was only one first preference mark set opposite the name of Shri G. C. Bhattacharya.We do not have the slightest hesitation in saying that there was clearly a mark - the numeral 1 - against the name of Manohara and that there was no manufacturing or other defect in the paper and nothing was stuck to the paper. Dr. Chitale appearing for respondent 1 tried to persuade us to accept the view of the Tribunal but we find it difficult to let our imagination run away.4. As we found at the earlier stage of hearing that two first preferences were marked in Ballot Paper No. 6, we came to the conclusion that it had to be excluded from the count as invalid. On that basis we required two officers of the Election Commission, who were appointed by us as Commissioners for that purpose, to value the preference and count the points. The Commissioners have reported to us that as a result of the fresh count made by them, they have found that the first respondent has secured 3338 points and the appellant has secured 3315 points. The appellant has objected to the computation made by the Commissioners. The appellant says that the Commissioner were in error in making a recount by valuing all the 420 valid ballot papers instead of confining themselves to the ten disputed ballot papers which have been found to be valid. The submission was that the 10 ballot papers which have been rejected by the Returning Officer, but which have now been accepted may be treated as valid for fixing the minimum quota to be obtained by a candidate in order to be declared elected, but should be ruled out for the purpose of counting votes cast in favour of any candidate. The submission is wholly devoid of any merit. We do not see how a recounting could be done in the manner suggested by the appellant. Such a method of recounting would be wholly alien to the scheme of counting explained and adumbrated at such length in the Schedule to the Representation of the People Act. The appellant attempted to take advantage of a sentence occurring in the earlier judgment of this Court where it has been said, " the scrutiny and recount was to be confined specifically to the decision of the Returning Officer rejecting eleven votes as invalid ". This Court was not intending to lay down any new method of recounting the points. All that was meant was that the 11 rejected ballot papers were to be scrutinised in the light of the judgment of the Court, and thereafter a recount was to be made. The recount had to be in accordance with the provisions of the Representation of the People Act and the Rules. Here we may refer to the following observations of this Court in Anirudh Prasad v. Rajeshwari Saroj Das : (SCC pp. 112-13, para 17)Initially, 306 ballot papers were accepted as valid by the Returning Officer. The minimum quota was accordingly fixed at 2551 : [306 x 100 = 30600 / 11 + 1 = 2550 + 1 + 2551]. The High Court held that 6 ballot papers were wrongly rejected by the Returning Officer as a result of which the number of valid ballot papers rose to 312. The minimum quota correspondingly rose to 2601 : (312 x 100 = 31200 / 12 = 2600 + 1 = 2601). The minimum quota which is fixed primarily on the basis of valid ballot papers is the key-point of counting and transfer of surplus votes. Surplus Votes means votes in excess of the minimum quota and it is such surplus votes that are transferred to other candidates left in the filed. The various rules and their working as illustrated in the Schedule to the Rules show that the system of proportional representation by a single transferable vote involves a progressive interlinked method of counting votes. It is therefore difficult to accept the appellants argument that a ballot paper may be treated as valid for fixation of the minimum quota but should be ruled out for purposes of counting the votes cast therein in favour of any candidate. If the ballot paper Ex. B/2 is valid, it must be treated as valid for all purposes and therefore the first preference vote contained therein in favour of respondent 8 must be involve no recrimination between respondent 8 and the appellant, both of whom were successful candidates.
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1
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The appellant says that the Commissioner were in error in making a recount by valuing all the 420 valid ballot papers instead of confining themselves to the ten disputed ballot papers which have been found to be valid. The submission was that the 10 ballot papers which have been rejected by the Returning Officer, but which have now been accepted may be treated as valid for fixing the minimum quota to be obtained by a candidate in order to be declared elected, but should be ruled out for the purpose of counting votes cast in favour of any candidate. The submission is wholly devoid of any merit. We do not see how a recounting could be done in the manner suggested by the appellant. Such a method of recounting would be wholly alien to the scheme of counting explained and adumbrated at such length in the Schedule to the Representation of the Peopleminimum quota which is fixed primarily on the basis of valid ballot papers is theof counting and transfer of surplus votes. Surplus Votes means votes in excess of the minimum quota and it is such surplus votes that are transferred to other candidates left in the filed. The various rules and their working as illustrated in the Schedule to the Rules show that the system of proportional representation by a single transferable vote involves a progressive interlinked method of counting votes. It is therefore difficult to accept the appellants argument that a ballot paper may be treated as valid for fixation of the minimum quota but should be ruled out for purposes of counting the votes cast therein in favour of any candidate. If the ballot paper Ex. B/2 is valid, it must be treated as valid for all purposes and therefore the first preference vote contained therein in favour of respondent 8 must be involve no recrimination between respondent 8 and the appellant, both of whom were successful candidates.
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Ahmad and Ors Vs. Mohd. Osman | the tenants. Incidentally, it also held that the premises in question are not required for bona fide purpose of the landlord i.e. for additional accommodation. The orders passed by the Principal Rent Controller, Secunderabad were questioned by the landlord/respondent herein in R.A. No.23 of 2001 and R.A. No.232 of 1999 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad, which came to be allowed. The judgments passed by the Rent Appellate Court were affirmed by the High Court of Judicature Andhra Pradesh in Civil Revision No.2374 of 2004 and Civil Revision No.2375 of 2004. Hence, the aggrieved tenants are before this Court.3. Learned counsel for the appellants/tenants, taking us through the material on record, submit that the tenants and the landlord are the encroachers upon the Government property; and thus, the respondent herein is not real landlord and consequently, they are not tenants under him. She further submits that the denial of title by the tenants is bona fide; one encroacher cannot evict another encroacher and, therefore, the orders of the Rent Controller need to be restored by setting aside the judgments of the Rent Appellate Tribunal as well as the High Court.Learned counsel appearing on behalf of the respondent/landlord argued in support of the concurrent judgments of the Courts below.4. The entire property bearing Cantonment Municipal No.1-19-1 to 13 (Old Nos. 105 and 106) situated at Guntroop Bazar, Rasoolpura, Secunderabad Cantonment measuring about 3000 sq. yards was purchased by the father of the respondent-landlord under two registered sale deeds in the years 1911 and 1912. Respondent-landlord has filed the registered sale deeds Exhibits P41 and P45 which clearly establish that the entire property of which the demised premises is also a part, the father of the respondent-landlord was the absolute owner. As pointed out by the first appellate court and also the High Court, the above sale deeds and other documents were produced and accepted as documents of title of the landlord in O.S. No. 3292 of 1979 on the file of XI Assistant Judge, City Civil Court, Secunderabad which suit was filed by the landlord and other legal heirs of father of the landlord for evicting one Mumtaz Begum and others who were in illegal occupation of some portions of the said properties. Upon perusal of the title deeds of the property, the said suit, O.S. No.3292 of 1979, came to be decreed in favour of the respondent-landlord. The said judgment was also confirmed in appeal in A.S. No.197 of 1987 by the Additional Chief Judge, City Small Causes Court, Secunderabad.5. The ownership of the property including demised premises is also established by the assessment records maintained by the Secunderabad Cantonment Board. The Cantonments Board letter Exhibit P2 dated 21.12.1983, addressed to the mother of the respondent-landlord, mentions that the house Nos.105 and 106 situated in the locality known as Guntroop Bazar till 1956 which is assigned the new house No.1-19-1 to 13, is situated in the same locality now called Rasoolpura, Secunderabad. The premises No.1-19-1 to 13 situated in Secunderabad stands mutated in the name of mother of the landlord as per the records of the Cantonment Board. The mother, brother and sister of the respondent-landlord executed the release deed as per Exhibit P15 and relinquished their rights, the portion of the house bearing old Nos.105 and 106 (New No.1-19-1 to 13) to an extent of 997 sq. yards, Secunderabad in favour of the landlord.6. Insofar as the stand taken by the tenant that he is in occupation of 1-19-6, the appellant-tenant has not produced any oral or documentary evidence to prove that the said property bearing No.1-19-6 is in his occupation in his own right. According to respondent-landlord, the portion occupied by the tenant forms part and parcel of house No.1-19-1 to 13. The courts below have referred to the report of the Commissioner that the demised premises which is in occupation of the appellant-tenant is adjoining to the premises in occupation of the landlord and is just separated by a wall.6A. Insofar as the contention of the appellant that the property is the government property, PW-5 Balaiah, Mandal Revenue Officer, Secunderabad has stated in his evidence that after perusing the title deeds, Exhibit X2 was issued and that the land in question along with building Municipal No.1-19-1 to 13 Secunderabad is a private property. There are about twenty tenants in the premises No.1-19-1 to 13 and that the respondent-landlord had been directed to pay the arrears of tax by the Municipality is yet another evidence establishing the ownership of the respondent-landlord.6B. Apart from the documentary evidence, respondent-landlord had also adduced oral evidence by examining his mother (PW-3), who has spoken about the tenancy and quantum of rent and she used to collect rents from the tenants. PW-4 who is in occupation of the other portion of the same building since 1965 till 1995 and who subsequently purchased the same from the legal heirs of M.A. Razack has also spoken about the tenancy of appellant-tenant.7. We find that the Rent Appellate Court as well as the High Court have rightly and concurrently concluded that the respondent-landlord has established a jural relationship. The landlords mother, though was not in the habit of issuing rent receipts, had maintained the account book Exhibit P4, which depicts the rent paid by tenants. Based on the number of documents filed by the respondent-landlord and the oral evidence, the High Court as well as the first appellate court have recorded a concurrent finding of the fact that the tenant failed to establish his ownership in the demised premises and that there is no bona fide in the denial of ownership of the respondent-landlord and we find no reason to interfere with the same.8. It is also established by the landlord, as is clear from the definite findings of the Courts below, that he has proved his bona fide requirement inasmuch as he needs the premises for his additional accommodation. Even otherwise there is no serious contest on this point. | 0[ds]7. We find that the Rent Appellate Court as well as the High Court have rightly and concurrently concluded that thehas established a jural relationship. The landlords mother, though was not in the habit of issuing rent receipts, had maintained the account book Exhibit P4, which depicts the rent paid by tenants. Based on the number of documents filed by theand the oral evidence, the High Court as well as the first appellate court have recorded a concurrent finding of the fact that the tenant failed to establish his ownership in the demised premises and that there is no bona fide in the denial of ownership of theand we find no reason to interfere with the same.8. It is also established by the landlord, as is clear from the definite findings of the Courts below, that he has proved his bona fide requirement inasmuch as he needs the premises for his additional accommodation. Even otherwise there is no serious contest on this point. | 0 | 1,225 | 179 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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the tenants. Incidentally, it also held that the premises in question are not required for bona fide purpose of the landlord i.e. for additional accommodation. The orders passed by the Principal Rent Controller, Secunderabad were questioned by the landlord/respondent herein in R.A. No.23 of 2001 and R.A. No.232 of 1999 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad, which came to be allowed. The judgments passed by the Rent Appellate Court were affirmed by the High Court of Judicature Andhra Pradesh in Civil Revision No.2374 of 2004 and Civil Revision No.2375 of 2004. Hence, the aggrieved tenants are before this Court.3. Learned counsel for the appellants/tenants, taking us through the material on record, submit that the tenants and the landlord are the encroachers upon the Government property; and thus, the respondent herein is not real landlord and consequently, they are not tenants under him. She further submits that the denial of title by the tenants is bona fide; one encroacher cannot evict another encroacher and, therefore, the orders of the Rent Controller need to be restored by setting aside the judgments of the Rent Appellate Tribunal as well as the High Court.Learned counsel appearing on behalf of the respondent/landlord argued in support of the concurrent judgments of the Courts below.4. The entire property bearing Cantonment Municipal No.1-19-1 to 13 (Old Nos. 105 and 106) situated at Guntroop Bazar, Rasoolpura, Secunderabad Cantonment measuring about 3000 sq. yards was purchased by the father of the respondent-landlord under two registered sale deeds in the years 1911 and 1912. Respondent-landlord has filed the registered sale deeds Exhibits P41 and P45 which clearly establish that the entire property of which the demised premises is also a part, the father of the respondent-landlord was the absolute owner. As pointed out by the first appellate court and also the High Court, the above sale deeds and other documents were produced and accepted as documents of title of the landlord in O.S. No. 3292 of 1979 on the file of XI Assistant Judge, City Civil Court, Secunderabad which suit was filed by the landlord and other legal heirs of father of the landlord for evicting one Mumtaz Begum and others who were in illegal occupation of some portions of the said properties. Upon perusal of the title deeds of the property, the said suit, O.S. No.3292 of 1979, came to be decreed in favour of the respondent-landlord. The said judgment was also confirmed in appeal in A.S. No.197 of 1987 by the Additional Chief Judge, City Small Causes Court, Secunderabad.5. The ownership of the property including demised premises is also established by the assessment records maintained by the Secunderabad Cantonment Board. The Cantonments Board letter Exhibit P2 dated 21.12.1983, addressed to the mother of the respondent-landlord, mentions that the house Nos.105 and 106 situated in the locality known as Guntroop Bazar till 1956 which is assigned the new house No.1-19-1 to 13, is situated in the same locality now called Rasoolpura, Secunderabad. The premises No.1-19-1 to 13 situated in Secunderabad stands mutated in the name of mother of the landlord as per the records of the Cantonment Board. The mother, brother and sister of the respondent-landlord executed the release deed as per Exhibit P15 and relinquished their rights, the portion of the house bearing old Nos.105 and 106 (New No.1-19-1 to 13) to an extent of 997 sq. yards, Secunderabad in favour of the landlord.6. Insofar as the stand taken by the tenant that he is in occupation of 1-19-6, the appellant-tenant has not produced any oral or documentary evidence to prove that the said property bearing No.1-19-6 is in his occupation in his own right. According to respondent-landlord, the portion occupied by the tenant forms part and parcel of house No.1-19-1 to 13. The courts below have referred to the report of the Commissioner that the demised premises which is in occupation of the appellant-tenant is adjoining to the premises in occupation of the landlord and is just separated by a wall.6A. Insofar as the contention of the appellant that the property is the government property, PW-5 Balaiah, Mandal Revenue Officer, Secunderabad has stated in his evidence that after perusing the title deeds, Exhibit X2 was issued and that the land in question along with building Municipal No.1-19-1 to 13 Secunderabad is a private property. There are about twenty tenants in the premises No.1-19-1 to 13 and that the respondent-landlord had been directed to pay the arrears of tax by the Municipality is yet another evidence establishing the ownership of the respondent-landlord.6B. Apart from the documentary evidence, respondent-landlord had also adduced oral evidence by examining his mother (PW-3), who has spoken about the tenancy and quantum of rent and she used to collect rents from the tenants. PW-4 who is in occupation of the other portion of the same building since 1965 till 1995 and who subsequently purchased the same from the legal heirs of M.A. Razack has also spoken about the tenancy of appellant-tenant.7. We find that the Rent Appellate Court as well as the High Court have rightly and concurrently concluded that the respondent-landlord has established a jural relationship. The landlords mother, though was not in the habit of issuing rent receipts, had maintained the account book Exhibit P4, which depicts the rent paid by tenants. Based on the number of documents filed by the respondent-landlord and the oral evidence, the High Court as well as the first appellate court have recorded a concurrent finding of the fact that the tenant failed to establish his ownership in the demised premises and that there is no bona fide in the denial of ownership of the respondent-landlord and we find no reason to interfere with the same.8. It is also established by the landlord, as is clear from the definite findings of the Courts below, that he has proved his bona fide requirement inasmuch as he needs the premises for his additional accommodation. Even otherwise there is no serious contest on this point.
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0
### Explanation:
7. We find that the Rent Appellate Court as well as the High Court have rightly and concurrently concluded that thehas established a jural relationship. The landlords mother, though was not in the habit of issuing rent receipts, had maintained the account book Exhibit P4, which depicts the rent paid by tenants. Based on the number of documents filed by theand the oral evidence, the High Court as well as the first appellate court have recorded a concurrent finding of the fact that the tenant failed to establish his ownership in the demised premises and that there is no bona fide in the denial of ownership of theand we find no reason to interfere with the same.8. It is also established by the landlord, as is clear from the definite findings of the Courts below, that he has proved his bona fide requirement inasmuch as he needs the premises for his additional accommodation. Even otherwise there is no serious contest on this point.
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Kalanka Devi Sansthan Vs. Maharashtra Revenue Tribunal, Nagpurl & Ors | in Section 2 (12) of the Act a person who is subject to any physical or mental disability shall be deemed to cultivate the land personally if it is cultivated by the servants or by hired labourer. In other words an idol or a Sansthan that would fall within the meaning of the word "person" can well be regarded to be subject to a physical or mental disability and land can be cultivated on its behalf by servants or hired labourers. It is urged that in Explanation (I) the idol would be in the same position as a minor and it can certainly cultivate the land personally within the meaning of Section 2 (12).It is difficult to accept the suggestion that the case of the appellant would fall within Explanation (I) in Section 2 (12). Physical or mental disability as defined by S. 2 (22) lays emphasis on the words "personal labour or supervision". As has been rightly pointed out in Shri Kesheoraj Deo Sansthan, Karanja v. Bapurao Deoba, 1964 Mah LJ 589 in which an identically similar point came up for consideration, the dominating idea of anything done personally or in person is that the thing must be done by the person himself and not by or through someone else.In our opinion the following passage in that judgment at p. 593 explains the whole position correctly:"It should thus appear that the legislative intent clearly is that in order to claim a cultivation as a personal cultivation there must be established a direct nexus between the person who makes such a claim, and the agricultural processes or activities carried on the land. In other words, all the agricultural operations, though allowed to be done through hired labour or workers must be under the labour or workers must be under the direct supervision, control, or management of the landlord. It is in the sense that the word "personal supervision" must be understood. In other words, the requirement of personal supervision under the third category of personal cultivation provided for in the definition does not admit of an inermediary between the landlord and the labourer, who can act as agent of the landlord for supervising the operations of the agricultural worker. If that is not possible in the case of one landlord, we do not see how it is possible in the case of another landlord merely because the landlord in the latter case is a juristic person".In other words the intention is that the cultivation of the land concerned must be by natural persons and not by legal persons.5. It has next been contended that in the provisions of the Berar Regulation of Agricultural Leases Act 1951 public trusts of charitable nature were included among those who could claim possession from a tenant on the ground of personal cultivation. It is not possible to see how the provisions of a repealed statute which was no longer in force, after the enactment of the Act, could be of any avail to the appellant. The decision in Ishwardas v. Maharashtra Revenue Tribunal, (1968) 3 SCR 441 = (AIR 1968 SC 1364 ) has also been referred to by the counsel for the appellant. In that case it was said that under Section 2 (18) of the Bombay Public Trusts Act a trustee has been defined as meaning a person in whom either alone or in association with other persons the trust property is vested and includes a manager. In view of this definition the properties of the trusts vest in the managing trustee and he is the landlord under Clause 32 of Sec. 2 of the Act. As he is the landlord, he can ask for a surrender from the tenant of the lands of the trust "to cultivate personally". In the present case it is common ground that the Sansthan is a private trust and is not governed by the provisions of the Bombay Public Trusts Act. The manager or the Wahiwatdar of the Sansthan cannot, therefore, fall within the definition of the word "trustee" as given in Section 2 (18) of that Act. It may be mentioned that in Ishwardas case, (1968) 3 SCR 441 = (AIR 1968 SC 1364 ) the court refrained from expressing any opinion on the question whether a manager or a Shebait of the properties of an idol or the manager of the Sansthan can or cannot apply for surrender by a tenant of lands for personal cultivation.The distinction between a manager or a Shebait of an idol and a trustee where a trust has been created is well recognised. The properties of the trust in law vest in the trustee whereas in the case of an idol or a Sansthan they do not vest in the manager or the Shebait.It is the deity or the Sansthan which owns and holds the properties. It is only the possession and the management which vest in the manager.6. It has lastly been contended that the relevant provisions of the Act which have the effect of debarring the appellant from claiming possession for personal cultivation violate the provisions of Articles 14 and 19 (1) (f) of the Constitution. It is urged that discrimination is writ large between animate and juristic persons who fall within the definition of the word "person". Such a contention, however, cannot be entertained in view of Article 31A of the Constitution.The Act had received the assent of the President and is rendered immune for attack or challenge on the ground of violation of Articles 14 or 19 of the Constitution.In Mahadeo Paikaji Kolhe Yavatmal v. State of Bombay, (1962) 1 SCR 733 = (AIR 1961 SC 1517 ) the constitutional validity of the Act itself was canvassed but the challenge failed. Similarly the validity of the Bombay Tenancy and Agricultural Lands Amendment Act, 1956 as applied to Vidarbha Region and Kutch Area was upheld in Sri Ram Ram Narain Medhi v. The State of Bombay, (1959) (Supp) 1 SCR 489 = (AIR 1959 SC 459). | 0[ds]4. Now it is well known that when property is given absolutely for the worship of an idol it vests in the idol itself as a juristic person. As pointed out in Mukherjeas Hindu Law of Religions and Charitable Trust at Pages 142-143 this view is in accordance with the Hindu ideas and has been uniformly accepted in a long series of judicial decisions. The idol is capable of holding property in the same way as a naturalis not possible to see how the provisions of a repealed statute which was no longer in force, after the enactment of the Act, could be of any avail to thethe present case it is common ground that the Sansthan is a private trust and is not governed by the provisions of the Bombay Public Trusts Act. The manager or the Wahiwatdar of the Sansthan cannot, therefore, fall within the definition of the word "trustee" as given in Section 2 (18) of that Act. It may be mentioned that in Ishwardas case, (1968) 3 SCR 441 = (AIR 1968 SC 1364 ) the court refrained from expressing any opinion on the question whether a manager or a Shebait of the properties of an idol or the manager of the Sansthan can or cannot apply for surrender by a tenant of lands for personal cultivation.The distinction between a manager or a Shebait of an idol and a trustee where a trust has been created is well recognised. The properties of the trust in law vest in the trustee whereas in the case of an idol or a Sansthan they do not vest in the manager or the Shebait.It is the deity or the Sansthan which owns and holds the properties. It is only the possession and the management which vest in thea contention, however, cannot be entertained in view of Article 31A of the Constitution.The Act had received the assent of the President and is rendered immune for attack or challenge on the ground of violation of Articles 14 or 19 of the Constitution.In Mahadeo Paikaji Kolhe Yavatmal v. State of Bombay, (1962) 1 SCR 733 = (AIR 1961 SC 1517 ) the constitutional validity of the Act itself was canvassed but the challenge failed. Similarly the validity of the Bombay Tenancy and Agricultural Lands Amendment Act, 1956 as applied to Vidarbha Region and Kutch Area was upheld in Sri Ram Ram Narain Medhi v. The State of Bombay, (1959) (Supp) 1 SCR 489 = (AIR 1959 SCis difficult to accept the suggestion that the case of the appellant would fall within Explanation (I) in Section 2 (12). Physical or mental disability as defined by S. 2 (22) lays emphasis on the words "personal labour or supervision". As has been rightly pointed out in Shri Kesheoraj Deo Sansthan, Karanja v. Bapurao Deoba, 1964 Mah LJ 589 in which an identically similar point came up for consideration, the dominating idea of anything done personally or in person is that the thing must be done by the person himself and not by or through someone else.In our opinion the following passage in that judgment at p. 593 explains the whole positionshould thus appear that the legislative intent clearly is that in order to claim a cultivation as a personal cultivation there must be established a direct nexus between the person who makes such a claim, and the agricultural processes or activities carried on the land. In other words, all the agricultural operations, though allowed to be done through hired labour or workers must be under the labour or workers must be under the direct supervision, control, or management of the landlord. It is in the sense that the word "personal supervision" must be understood. In other words, the requirement of personal supervision under the third category of personal cultivation provided for in the definition does not admit of an inermediary between the landlord and the labourer, who can act as agent of the landlord for supervising the operations of the agricultural worker. If that is not possible in the case of one landlord, we do not see how it is possible in the case of another landlord merely because the landlord in the latter case is a juristicother words the intention is that the cultivation of the land concerned must be by natural persons and not by legal persons. | 0 | 2,009 | 791 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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in Section 2 (12) of the Act a person who is subject to any physical or mental disability shall be deemed to cultivate the land personally if it is cultivated by the servants or by hired labourer. In other words an idol or a Sansthan that would fall within the meaning of the word "person" can well be regarded to be subject to a physical or mental disability and land can be cultivated on its behalf by servants or hired labourers. It is urged that in Explanation (I) the idol would be in the same position as a minor and it can certainly cultivate the land personally within the meaning of Section 2 (12).It is difficult to accept the suggestion that the case of the appellant would fall within Explanation (I) in Section 2 (12). Physical or mental disability as defined by S. 2 (22) lays emphasis on the words "personal labour or supervision". As has been rightly pointed out in Shri Kesheoraj Deo Sansthan, Karanja v. Bapurao Deoba, 1964 Mah LJ 589 in which an identically similar point came up for consideration, the dominating idea of anything done personally or in person is that the thing must be done by the person himself and not by or through someone else.In our opinion the following passage in that judgment at p. 593 explains the whole position correctly:"It should thus appear that the legislative intent clearly is that in order to claim a cultivation as a personal cultivation there must be established a direct nexus between the person who makes such a claim, and the agricultural processes or activities carried on the land. In other words, all the agricultural operations, though allowed to be done through hired labour or workers must be under the labour or workers must be under the direct supervision, control, or management of the landlord. It is in the sense that the word "personal supervision" must be understood. In other words, the requirement of personal supervision under the third category of personal cultivation provided for in the definition does not admit of an inermediary between the landlord and the labourer, who can act as agent of the landlord for supervising the operations of the agricultural worker. If that is not possible in the case of one landlord, we do not see how it is possible in the case of another landlord merely because the landlord in the latter case is a juristic person".In other words the intention is that the cultivation of the land concerned must be by natural persons and not by legal persons.5. It has next been contended that in the provisions of the Berar Regulation of Agricultural Leases Act 1951 public trusts of charitable nature were included among those who could claim possession from a tenant on the ground of personal cultivation. It is not possible to see how the provisions of a repealed statute which was no longer in force, after the enactment of the Act, could be of any avail to the appellant. The decision in Ishwardas v. Maharashtra Revenue Tribunal, (1968) 3 SCR 441 = (AIR 1968 SC 1364 ) has also been referred to by the counsel for the appellant. In that case it was said that under Section 2 (18) of the Bombay Public Trusts Act a trustee has been defined as meaning a person in whom either alone or in association with other persons the trust property is vested and includes a manager. In view of this definition the properties of the trusts vest in the managing trustee and he is the landlord under Clause 32 of Sec. 2 of the Act. As he is the landlord, he can ask for a surrender from the tenant of the lands of the trust "to cultivate personally". In the present case it is common ground that the Sansthan is a private trust and is not governed by the provisions of the Bombay Public Trusts Act. The manager or the Wahiwatdar of the Sansthan cannot, therefore, fall within the definition of the word "trustee" as given in Section 2 (18) of that Act. It may be mentioned that in Ishwardas case, (1968) 3 SCR 441 = (AIR 1968 SC 1364 ) the court refrained from expressing any opinion on the question whether a manager or a Shebait of the properties of an idol or the manager of the Sansthan can or cannot apply for surrender by a tenant of lands for personal cultivation.The distinction between a manager or a Shebait of an idol and a trustee where a trust has been created is well recognised. The properties of the trust in law vest in the trustee whereas in the case of an idol or a Sansthan they do not vest in the manager or the Shebait.It is the deity or the Sansthan which owns and holds the properties. It is only the possession and the management which vest in the manager.6. It has lastly been contended that the relevant provisions of the Act which have the effect of debarring the appellant from claiming possession for personal cultivation violate the provisions of Articles 14 and 19 (1) (f) of the Constitution. It is urged that discrimination is writ large between animate and juristic persons who fall within the definition of the word "person". Such a contention, however, cannot be entertained in view of Article 31A of the Constitution.The Act had received the assent of the President and is rendered immune for attack or challenge on the ground of violation of Articles 14 or 19 of the Constitution.In Mahadeo Paikaji Kolhe Yavatmal v. State of Bombay, (1962) 1 SCR 733 = (AIR 1961 SC 1517 ) the constitutional validity of the Act itself was canvassed but the challenge failed. Similarly the validity of the Bombay Tenancy and Agricultural Lands Amendment Act, 1956 as applied to Vidarbha Region and Kutch Area was upheld in Sri Ram Ram Narain Medhi v. The State of Bombay, (1959) (Supp) 1 SCR 489 = (AIR 1959 SC 459).
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4. Now it is well known that when property is given absolutely for the worship of an idol it vests in the idol itself as a juristic person. As pointed out in Mukherjeas Hindu Law of Religions and Charitable Trust at Pages 142-143 this view is in accordance with the Hindu ideas and has been uniformly accepted in a long series of judicial decisions. The idol is capable of holding property in the same way as a naturalis not possible to see how the provisions of a repealed statute which was no longer in force, after the enactment of the Act, could be of any avail to thethe present case it is common ground that the Sansthan is a private trust and is not governed by the provisions of the Bombay Public Trusts Act. The manager or the Wahiwatdar of the Sansthan cannot, therefore, fall within the definition of the word "trustee" as given in Section 2 (18) of that Act. It may be mentioned that in Ishwardas case, (1968) 3 SCR 441 = (AIR 1968 SC 1364 ) the court refrained from expressing any opinion on the question whether a manager or a Shebait of the properties of an idol or the manager of the Sansthan can or cannot apply for surrender by a tenant of lands for personal cultivation.The distinction between a manager or a Shebait of an idol and a trustee where a trust has been created is well recognised. The properties of the trust in law vest in the trustee whereas in the case of an idol or a Sansthan they do not vest in the manager or the Shebait.It is the deity or the Sansthan which owns and holds the properties. It is only the possession and the management which vest in thea contention, however, cannot be entertained in view of Article 31A of the Constitution.The Act had received the assent of the President and is rendered immune for attack or challenge on the ground of violation of Articles 14 or 19 of the Constitution.In Mahadeo Paikaji Kolhe Yavatmal v. State of Bombay, (1962) 1 SCR 733 = (AIR 1961 SC 1517 ) the constitutional validity of the Act itself was canvassed but the challenge failed. Similarly the validity of the Bombay Tenancy and Agricultural Lands Amendment Act, 1956 as applied to Vidarbha Region and Kutch Area was upheld in Sri Ram Ram Narain Medhi v. The State of Bombay, (1959) (Supp) 1 SCR 489 = (AIR 1959 SCis difficult to accept the suggestion that the case of the appellant would fall within Explanation (I) in Section 2 (12). Physical or mental disability as defined by S. 2 (22) lays emphasis on the words "personal labour or supervision". As has been rightly pointed out in Shri Kesheoraj Deo Sansthan, Karanja v. Bapurao Deoba, 1964 Mah LJ 589 in which an identically similar point came up for consideration, the dominating idea of anything done personally or in person is that the thing must be done by the person himself and not by or through someone else.In our opinion the following passage in that judgment at p. 593 explains the whole positionshould thus appear that the legislative intent clearly is that in order to claim a cultivation as a personal cultivation there must be established a direct nexus between the person who makes such a claim, and the agricultural processes or activities carried on the land. In other words, all the agricultural operations, though allowed to be done through hired labour or workers must be under the labour or workers must be under the direct supervision, control, or management of the landlord. It is in the sense that the word "personal supervision" must be understood. In other words, the requirement of personal supervision under the third category of personal cultivation provided for in the definition does not admit of an inermediary between the landlord and the labourer, who can act as agent of the landlord for supervising the operations of the agricultural worker. If that is not possible in the case of one landlord, we do not see how it is possible in the case of another landlord merely because the landlord in the latter case is a juristicother words the intention is that the cultivation of the land concerned must be by natural persons and not by legal persons.
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Amolak Chand Vs. Raghuveer Singh | Mr. Gupte put forward the argument that under the scheme and policy of the Act an elector can propose only one candidate for a single seat constituency and not more than one candidate and if more than one nomination is made for a single seat constituency, all the nominations should be taken to be null and void. We are unable to accept this argument as correct. Section 33 (2) of the Act as it was originally enacted in 1951, contained an express ban against the same elector proposing more than one candidate for a single seat constituency.Section 33 (2) states :"Any person whose name is registered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in Section 16 of the Representation of the People Act, 1950 may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filled but no more."Section 36 ( 7) (b) reads as follows :"(7) For the purposes of this section (b) where a person has subscribed, whether as proposer or seconder, a larger number of nomination papers than there are vacancies to be filled, those of the papers so subscribed which have been first received, upto the number of vacancies to be filled shall he deemed to be valid."But by the Amending Act 27 of 1956, Ss. 33 and 36 have been recast and do not contain any ban as that contemplated by S. .33 (2) of the unamended Act. Section 33 (1) and (2) after the amendment reads thus:"33. Presentation of nomination paper and requirements for a valid nomination.-(1) On or before the date appointed under clause (a) of Section 30 each candidate shall, either in person or by his proposer between the hours of eleven oclock in the forenoon and three oclock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.Provided that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State."It is true that S. 33 (6) as it stands at present enables a proposer to file more than one nomination paper in respect of the same candidate, but this sub-section has no bearing on the question presented for determination in the present appeal. It is manifest that there is no express ban or prohibition under S. 33 or S 36 of the present Act against an elector proposing more than one candidate for a single seat constituency. Mr. Gupte teas not been able to point out anything in the context or language of other sections of the Act for leading to the necessary implication that an elector cannot propose more than one candidate for a single seat constituency. On the other hand, the amendment to S. 33 of the Act by the Amending Act 27 of 1956 indicates that it was the intention of Parliament that there should be no ban on the number of nomination papers or the number of candidates to be proposed by an elector for a single seat constituency.On behalf of the appellant reference was made to page 133 of Schofields Parliamentary Elections, Second Edition in which it is said that "no person is permitted to sign more than one nomination paper at the same election and if he does then his signature is operative only in the case of the paper which is first delivered". But this statement is based on R. 8 (2) of the Parliamentary Elections Rules of the British Parliament. There is no such statutory provision made under the Act for Parliamentary elections in India and the analogy is not applicable. We are accordingly of the opinion that Counsel for the appellant has been unable to make good his submission on this aspect of the case.4. It was contended, in the next place that Nathu and Sita Ram had mentioned in the nomination papers that they were Balais belonging to the Scheduled Caste and this was contrary to the direction that the column indicating caste or tribe should be struck off except in the case of reserved seat. It was therefore argued that the nomination papers of Nathu and Sita Ram were rightly rejected by the Returning Officer. In our opinion, there is no substance in this argument. The printed form 2-A is meant both for general and reserved constituencies but while it is obligatory for candidates in the reserved constituency to make a declaration in the proper column that he is a member of a particular caste or tribe, there is no such rule with regard to a general constituency.Section 33 (2) of the Act imposes an obligation on the candidate in the reserved constituency to make a declarations in the proper column, but there is no such direction in the statute with regard to the general constituency. In our opinion, the mention of the caste of the candidate in the nomination form was a clear superfluity because it was not necessary for the candidate to fill in the column when he was contesting in a general constituency; but there is nothing either in the section or in the rules forbidding the candidate from mentioning his caste. In our opinion, there is no violation of the provisions of S.33 of the Act or the breach of general directions contained in Rule 4 and the nomination papers cannot be held to be invalid on this account. | 1[ds]It is true that S. 33 (6) as it stands at present enables a proposer to file more than one nomination paper in respect of the same candidate, but this sub-section has no bearing on the question presented for determination in the present appeal. It is manifest that there is no express ban or prohibition under S. 33 or S 36 of the present Act against an elector proposing more than one candidate for a single seat constituency. Mr. Gupte teas not been able to point out anything in the context or language of other sections of the Act for leading to the necessary implication that an elector cannot propose more than one candidate for a single seat constituency. On the other hand, the amendment to S. 33 of the Act by the Amending Act 27 of 1956 indicates that it was the intention of Parliament that there should be no ban on the number of nomination papers or the number of candidates to be proposed by an elector for a single seat constituency.On behalf of the appellant reference was made to page 133 of Schofields Parliamentary Elections, Second Edition in which it is said that "no person is permitted to sign more than one nomination paper at the same election and if he does then his signature is operative only in the case of the paper which is first delivered". But this statement is based on R. 8 (2) of the Parliamentary Elections Rules of the British Parliament. There is no such statutory provision made under the Act for Parliamentary elections in India and the analogy is not applicable. We are accordingly of the opinion that Counsel for the appellant has been unable to make good his submission on this aspect of the case.4. It was contended, in the next place that Nathu and Sita Ram had mentioned in the nomination papers that they were Balais belonging to the Scheduled Caste and this was contrary to the direction that the column indicating caste or tribe should be struck off except in the case of reserved seat. It was therefore argued that the nomination papers of Nathu and Sita Ram were rightly rejected by the Returning Officer. In our opinion, there is no substance in this argument. The printed form 2-A is meant both for general and reserved constituencies but while it is obligatory for candidates in the reserved constituency to make a declaration in the proper column that he is a member of a particular caste or tribe, there is no such rule with regard to a general constituency.Section 33 (2) of the Act imposes an obligation on the candidate in the reserved constituency to make a declarations in the proper column, but there is no such direction in the statute with regard to the general constituency. In our opinion, the mention of the caste of the candidate in the nomination form was a clear superfluity because it was not necessary for the candidate to fill in the column when he was contesting in a general constituency; but there is nothing either in the section or in the rules forbidding the candidate from mentioning his caste. In our opinion, there is no violation of the provisions of S.33 of the Act or the breach of general directions contained in Rule 4 and the nomination papers cannot be held to be invalid on this account. | 1 | 1,521 | 602 | ### Instruction:
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Mr. Gupte put forward the argument that under the scheme and policy of the Act an elector can propose only one candidate for a single seat constituency and not more than one candidate and if more than one nomination is made for a single seat constituency, all the nominations should be taken to be null and void. We are unable to accept this argument as correct. Section 33 (2) of the Act as it was originally enacted in 1951, contained an express ban against the same elector proposing more than one candidate for a single seat constituency.Section 33 (2) states :"Any person whose name is registered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in Section 16 of the Representation of the People Act, 1950 may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filled but no more."Section 36 ( 7) (b) reads as follows :"(7) For the purposes of this section (b) where a person has subscribed, whether as proposer or seconder, a larger number of nomination papers than there are vacancies to be filled, those of the papers so subscribed which have been first received, upto the number of vacancies to be filled shall he deemed to be valid."But by the Amending Act 27 of 1956, Ss. 33 and 36 have been recast and do not contain any ban as that contemplated by S. .33 (2) of the unamended Act. Section 33 (1) and (2) after the amendment reads thus:"33. Presentation of nomination paper and requirements for a valid nomination.-(1) On or before the date appointed under clause (a) of Section 30 each candidate shall, either in person or by his proposer between the hours of eleven oclock in the forenoon and three oclock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.Provided that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State."It is true that S. 33 (6) as it stands at present enables a proposer to file more than one nomination paper in respect of the same candidate, but this sub-section has no bearing on the question presented for determination in the present appeal. It is manifest that there is no express ban or prohibition under S. 33 or S 36 of the present Act against an elector proposing more than one candidate for a single seat constituency. Mr. Gupte teas not been able to point out anything in the context or language of other sections of the Act for leading to the necessary implication that an elector cannot propose more than one candidate for a single seat constituency. On the other hand, the amendment to S. 33 of the Act by the Amending Act 27 of 1956 indicates that it was the intention of Parliament that there should be no ban on the number of nomination papers or the number of candidates to be proposed by an elector for a single seat constituency.On behalf of the appellant reference was made to page 133 of Schofields Parliamentary Elections, Second Edition in which it is said that "no person is permitted to sign more than one nomination paper at the same election and if he does then his signature is operative only in the case of the paper which is first delivered". But this statement is based on R. 8 (2) of the Parliamentary Elections Rules of the British Parliament. There is no such statutory provision made under the Act for Parliamentary elections in India and the analogy is not applicable. We are accordingly of the opinion that Counsel for the appellant has been unable to make good his submission on this aspect of the case.4. It was contended, in the next place that Nathu and Sita Ram had mentioned in the nomination papers that they were Balais belonging to the Scheduled Caste and this was contrary to the direction that the column indicating caste or tribe should be struck off except in the case of reserved seat. It was therefore argued that the nomination papers of Nathu and Sita Ram were rightly rejected by the Returning Officer. In our opinion, there is no substance in this argument. The printed form 2-A is meant both for general and reserved constituencies but while it is obligatory for candidates in the reserved constituency to make a declaration in the proper column that he is a member of a particular caste or tribe, there is no such rule with regard to a general constituency.Section 33 (2) of the Act imposes an obligation on the candidate in the reserved constituency to make a declarations in the proper column, but there is no such direction in the statute with regard to the general constituency. In our opinion, the mention of the caste of the candidate in the nomination form was a clear superfluity because it was not necessary for the candidate to fill in the column when he was contesting in a general constituency; but there is nothing either in the section or in the rules forbidding the candidate from mentioning his caste. In our opinion, there is no violation of the provisions of S.33 of the Act or the breach of general directions contained in Rule 4 and the nomination papers cannot be held to be invalid on this account.
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It is true that S. 33 (6) as it stands at present enables a proposer to file more than one nomination paper in respect of the same candidate, but this sub-section has no bearing on the question presented for determination in the present appeal. It is manifest that there is no express ban or prohibition under S. 33 or S 36 of the present Act against an elector proposing more than one candidate for a single seat constituency. Mr. Gupte teas not been able to point out anything in the context or language of other sections of the Act for leading to the necessary implication that an elector cannot propose more than one candidate for a single seat constituency. On the other hand, the amendment to S. 33 of the Act by the Amending Act 27 of 1956 indicates that it was the intention of Parliament that there should be no ban on the number of nomination papers or the number of candidates to be proposed by an elector for a single seat constituency.On behalf of the appellant reference was made to page 133 of Schofields Parliamentary Elections, Second Edition in which it is said that "no person is permitted to sign more than one nomination paper at the same election and if he does then his signature is operative only in the case of the paper which is first delivered". But this statement is based on R. 8 (2) of the Parliamentary Elections Rules of the British Parliament. There is no such statutory provision made under the Act for Parliamentary elections in India and the analogy is not applicable. We are accordingly of the opinion that Counsel for the appellant has been unable to make good his submission on this aspect of the case.4. It was contended, in the next place that Nathu and Sita Ram had mentioned in the nomination papers that they were Balais belonging to the Scheduled Caste and this was contrary to the direction that the column indicating caste or tribe should be struck off except in the case of reserved seat. It was therefore argued that the nomination papers of Nathu and Sita Ram were rightly rejected by the Returning Officer. In our opinion, there is no substance in this argument. The printed form 2-A is meant both for general and reserved constituencies but while it is obligatory for candidates in the reserved constituency to make a declaration in the proper column that he is a member of a particular caste or tribe, there is no such rule with regard to a general constituency.Section 33 (2) of the Act imposes an obligation on the candidate in the reserved constituency to make a declarations in the proper column, but there is no such direction in the statute with regard to the general constituency. In our opinion, the mention of the caste of the candidate in the nomination form was a clear superfluity because it was not necessary for the candidate to fill in the column when he was contesting in a general constituency; but there is nothing either in the section or in the rules forbidding the candidate from mentioning his caste. In our opinion, there is no violation of the provisions of S.33 of the Act or the breach of general directions contained in Rule 4 and the nomination papers cannot be held to be invalid on this account.
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RAMESH CHAND (D) THR. LRS. AND ORS Vs. NAND LAL AND ORS | 1. This appeal has been filed by the appellants against the judgment and order dated 25.10.2010 passed by the High Court of Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Civil) No.16 of 2000.2. The plaintiffs suit for redemption of mortgage of four properties was initially decreed by the learned trial Court. In appeal, the decree was partially reversed insofar as the two items of properties are concerned. The said two items are properties were the subject matter of sale agreements between the mortgagor and the mortgagee pursuant whereto on full payment of the agreed amount by the mortgagee to the mortgagor the mortgagee was allowed to continue to remain in possession under the sale agreements. It is in these circumstances that the First Appellate Court and the High Court took the view that the plaintiffs suit insofar as the redemption of the aforesaid two items of properties are concerned could not have been decreed in view of the provision of Section 53A of the Transfer of Property Act, 1882.3. The contention of the plaintiff with regard to readiness and willingness on the part of the defendants to comply with the terms of the agreements was also negatived.4. The plaintiffs suit for redemption in the face of the terms of the sale agreements insofar as the two items of properties are concerned, could not have been decreed in view of Section 53A of the Transfer of Property Act, 1882. The plaintiffs could have but did not not bring an action for declaration of title and recovery of possession on the basis of title. In such circumstances the fault on the part of the defendants to bring a suit for specific performance of the sale agreements to enable the transaction of agreement to sell to fructify into a valid sale cannot defeat their right under Section 53A of the Transfer of Property Act, 1882.5. Insofar as the issue of readiness and willingness on the part of the defendants to comply with the terms of the sale agreements is concerned, as two Courts have decided the issue against the defendants on consideration of the evidence on record, we do not consider it appropriate to reopen the said question. | 0[ds]suit for redemption in the face of the terms of the sale agreements insofar as the two items of properties are concerned, could not have been decreed in view of Section 53A of the Transfer of Property Act, 1882. The plaintiffs could have but did not not bring an action for declaration of title and recovery of possession on the basis of title. In such circumstanceson the part of the defendants to bring a suit for specific performance of the sale agreements to enable the transaction of agreement to sell to fructify into a valid sale cannot defeat their right under Section 53A of the Transfer of Property Act, 18825. Insofar as the issue of readiness and willingness on the part of the defendants to comply with the terms of the sale agreements is concerned, as two Courts have decided the issue against the defendants on consideration of the evidence on record, we do not consider it appropriate to reopen the said question. | 0 | 389 | 177 | ### Instruction:
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1. This appeal has been filed by the appellants against the judgment and order dated 25.10.2010 passed by the High Court of Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Civil) No.16 of 2000.2. The plaintiffs suit for redemption of mortgage of four properties was initially decreed by the learned trial Court. In appeal, the decree was partially reversed insofar as the two items of properties are concerned. The said two items are properties were the subject matter of sale agreements between the mortgagor and the mortgagee pursuant whereto on full payment of the agreed amount by the mortgagee to the mortgagor the mortgagee was allowed to continue to remain in possession under the sale agreements. It is in these circumstances that the First Appellate Court and the High Court took the view that the plaintiffs suit insofar as the redemption of the aforesaid two items of properties are concerned could not have been decreed in view of the provision of Section 53A of the Transfer of Property Act, 1882.3. The contention of the plaintiff with regard to readiness and willingness on the part of the defendants to comply with the terms of the agreements was also negatived.4. The plaintiffs suit for redemption in the face of the terms of the sale agreements insofar as the two items of properties are concerned, could not have been decreed in view of Section 53A of the Transfer of Property Act, 1882. The plaintiffs could have but did not not bring an action for declaration of title and recovery of possession on the basis of title. In such circumstances the fault on the part of the defendants to bring a suit for specific performance of the sale agreements to enable the transaction of agreement to sell to fructify into a valid sale cannot defeat their right under Section 53A of the Transfer of Property Act, 1882.5. Insofar as the issue of readiness and willingness on the part of the defendants to comply with the terms of the sale agreements is concerned, as two Courts have decided the issue against the defendants on consideration of the evidence on record, we do not consider it appropriate to reopen the said question.
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suit for redemption in the face of the terms of the sale agreements insofar as the two items of properties are concerned, could not have been decreed in view of Section 53A of the Transfer of Property Act, 1882. The plaintiffs could have but did not not bring an action for declaration of title and recovery of possession on the basis of title. In such circumstanceson the part of the defendants to bring a suit for specific performance of the sale agreements to enable the transaction of agreement to sell to fructify into a valid sale cannot defeat their right under Section 53A of the Transfer of Property Act, 18825. Insofar as the issue of readiness and willingness on the part of the defendants to comply with the terms of the sale agreements is concerned, as two Courts have decided the issue against the defendants on consideration of the evidence on record, we do not consider it appropriate to reopen the said question.
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M/S. D.J. MALPANI Vs. COMMISSIONER OF CENTRAL EXCISE, NASHIK | to spend the amount over charities will not affect character of the deposit. 17. This Court also relied on CIT, West Bengal, Calcutta vs. T ollygunge Club Ltd., Calcutta (1977) 2 SCC 790 : (1977) 107 ITR 776. In that case, the Court considered the nature of a surcharge of eight annas over and above the admission fees into the enclosure of the club at the time of the races. The proceeds of this surcharge were to go to the Red Cross Fund and other local charities. This Court approved the decision of the Calcutta High Court and held that the ?surcharge was not part of the price for admission but made for the specific purpose of being applied to local charities? . It observed the admission to the enclosure is the occasion and not the consideration for the surcharge taken from the race-goer. It rejected the contention that the payment was involuntary, observing ?that does not render the payment of the surcharge involuntary, because it is out of his own volition that he seeks admittance to the enclosure?. Applying the above decisions to the case before it, this Court held in Bijli Cotton Mills (supra) that Dharmada amounts cannot be said to have been paid involuntarily by the customers and in any case the compulsory nature of the payments, if there be any, cannot impress the receipts with the character of being trading receipts. 18. We find from the facts of the case before us that the receipts on account of Dharmada were voluntary, earmarked for charity and in fact credited as such. Though the payment as Dharmada has been found to be voluntary, it would make no difference to the true character and nature of the receipts even if there were found to be paid compulsorily because the purchaser, purchased the goods out of their own volition. The purchase of the goods is the occasion and not consideration for the Dharmada paid by the customer as held in Bijli Cotton Mills (supra) vide para 15: -15. …… It is true that without payment of ?Dharmada? amount the customer may not be able to purchase the goods from the assessee but that would not make the payment of ?Dharmada? amount involuntary inasmuch as it is out of his own volition that he purchases yarn and cotton from the assessee. The ?Dharmada? amount is, therefore, clearly not a part of the price, but a payment for the specific purpose of being spent on charitable purposes. ……...?19. In this case, the CESTAT decided against the assessee relaying on Panchmukhi (supra). The case of Panchmukhi (supra) was apparently decided not after a discussion on facts and law but because the counsel for the revenue submitted that the matter is covered by the decision in T ata Iron & Steel (supra) and the counsel for the assessee ?was not in a position to dispute this legal position? . The judgment in Panchmukhi (supra) has little precedential value. The point whether Dharmada involved in Panchmukhi (supra) and the surcharge held as price in T ata Iron & Steel (supra) were identical and liable to be included in the transaction value passed sub-silentio. Salmond on Jurisprudence T welfth Edition p.15h states that a decision held is not binding since it was decided ?without argument, without reference to the crucial words of the rule, and without any citation of authority? , therefore, would not be followed. The author also states that precedents sub-silentio and without arguments are of no moment. This is enough reason for not treating the decision in Panchmukhi (supra) as a binding precedent. It is, therefore, necessary to take a look at T ata Iron & Steel (supra). That was a case where the customer paid a surcharge on the price of steel. This surcharge was added to generate money for a steel development fund to implement schemes entrusted to the committee by the Central Government. The surcharge went to the committee for use in its various schemes and for the expenditure incurred towards discharge of the committee?s function. 20. Nonetheless, the surcharge was part of the consideration paid by the customer for the price of steel. The notifications under which the surcharge was added clearly stated as follows: -(i) ?The Committee may add an element to the ex- works prices determined ……..? and (ii) ?The Committee may require members steel plants to add the elements listed below to their ex-works………?The purpose of this addition was to constitute a steel development fund for modernisation, research & development, diversification etc. for improving the quantum of technology and efficiency of production of iron and steel and their quality. 21. The other objects of the fund, were to implement specific schemes entrusted to the Committee by the Central Government and towards the Engineering Goods Export Assistance Fund. This Court considered the question whether the addition would fall under the meaning of the term ?other taxes? within the meaning of Section 4 (ii) which excluded the amount of other taxes payable on such goods from value. It was contended on behalf of the assessee that they were compelled by law to collect this charge over and above the price without the right to appropriate it for themselves and with a duty of making it over to a third party and therefore the charges could not be regarded as part of the consideration of the sale price of goods. This Court held that the charges were clearly added as an element of price and observed, ?thus what was being added was to the price?. Another aspect to be kept in mind is that the ultimate beneficiaries of these amounts are the steel plants themselves. 22. We find that the decision in T ata Iron & Steel (supra) is completely inapposite to the circumstances of the case before us. The reliance placed on T ata Iron & Steel (supra) and Panchmukhi (supra) which was a case of Dharmada, is misplaced. Panchmukhi (supra) cannot be said to be good law. | 1[ds]14. In case of a sale of goods, excise duty is chargeable where price is the sole consideration of a sale on `Transaction value?. `Transaction value? means the price actually paid or payable for the goods and any additional amount the buyer is liable to pay to the assessee or anyone on his behalf in connection with the sale vide Section 4(3)(d) supra. Rule 6 of the Central Excise Valuation (Determination of Price and Excisable Goods), Rules 2000 provides that in case of a sale, the value of such goods shall be deemed to be the transaction value and the amount of money value of any considerations following directly or indirectly from the buyer to the assessee. Thus, duty is chargeable on the ?price actually paid for the goods?, in other words, the price paid as consideration for transfer of property in the goods. The test for determining whether in a transaction of sale any amount has been paid as price so that it can be treated as transaction value is only whether, the money was paid for the goods as consideration or the money value on any additional consideration paid in connection with the sale of goods. No amount not paid as consideration for the goods can go to make transaction value. `Consideration? means, vide Garner?s Dictionary of Legal Usage, 3 rd Edition: `the act, forbearance or promise by which one party to the contract keep the promise of another?. The term valuable consideration refers to an act, forbearance or promise having an economic value. In this case, it is clear that only the money paid for the promise of transferring goods was the valuable consideration contemplated by the Excise Act and the Rules. The transaction value was the sale of goods and the consideration was the price or value paid for the goods. The transaction value must be construedfairly clears up the character of any other amount paid at the time of the transaction of sale of goods. Thus, if an amount is paid at the time of the sale transaction for a purpose other than the price of the goods, it cannot form part of the transaction value; also for the reason that such payment is not for the transaction of sale i.e. for the transfer of possession of goods. Any payment made along side such a transaction cannot be treated as consideration for the goods.This takes us to the nature of the ?Dharmada? when given along with the sale price of goods. Dharmada is well known in India to be a donation or an offering made for the purpose of charity as distinct from a commercial transaction. This Court considered the nature and character of Dharmada in Bijli Cotton Mills (supra). That case arose under the Income T ax Act. The assessee used to realise certain amounts on account of Dharmada from his customers on sales of yarn and bales of cotton. The rate was one anna per bundle of ten pounds of yarn and two annas per bale of cotton. The receipts of Dharmada were not credited to the trading account but the assessee maintained a separate account known as the Dharmada account. The authorities under the Act held that the amounts held by the assessee could not be regarded as having been held under trust for charitable purposes.The High Court, however, held that the impugned amounts paid as Dharmada were never the income of the assessee and assessee was merely acting as a conduit for passing on the amounts to the objects of charity. These amounts were never treated as trading receipts or as surcharge on the sale price which was evident from the fact that such realisations were never credited to the trading account nor shown in the profit and loss statement for anyCourt considered the question in great detail and after referring to Professor Wilson?s Glossary and Molesworth?s Dictionary observed that Dharmada means ?an alms or a gift in charity?. This Court observed that though there might be some vagueness as a matter of law, in the word Dharma, there was none in relation to Dharmada or Dharmadaya and such a payment would not be invalid for vagueness or uncertainty. This Court accepted the decision of the Allahabad High Court in Thakur Das Shyam Sunder vs. Additional CIT 93 ITR 27 and observed that?it cannot be disputed that among the trading or commercial community in various parts of the country, a gift or payment for Dharmada is by custom invariably regarded as a gift for charitable. This Court observed that the answer to the question depended on the nature of the obligation created by the customer and approved the finding of the Allahabad High Court to the effect that merely because under the law relating to trust legal ownership over the trust fund and the power to control and dispose of always vest in the trustees, the discretion vested in the trustee to spend the amount over charities will not affect character of thethe above decisions to the case before it, this Court held in Bijli Cotton Mills (supra) that Dharmada amounts cannot be said to have been paid involuntarily by the customers and in any case the compulsory nature of the payments, if there be any, cannot impress the receipts with the character of being trading receipts.We find from the facts of the case before us that the receipts on account of Dharmada were voluntary, earmarked for charity and in fact credited as such. Though the payment as Dharmada has been found to be voluntary, it would make no difference to the true character and nature of the receipts even if there were found to be paid compulsorily because the purchaser, purchased the goods out of their own volition.In this case, the CESTAT decided against the assessee relaying on Panchmukhi (supra). The case of Panchmukhi (supra) was apparently decided not after a discussion on facts and law but because the counsel for the revenue submitted that the matter is covered by the decision in T ata Iron & Steel (supra) and the counsel for the assessee?was not in a position to dispute this legal. The judgment in Panchmukhi (supra) has little precedential value. The point whether Dharmada involved in Panchmukhi (supra) and the surcharge held as price in T ata Iron & Steel (supra) were identical and liable to be included in the transaction value passed sub-silentio. Salmond on Jurisprudence T welfth Edition p.15h states that a decision held is not binding since it was decided?without argument, without reference to the crucial words of the rule, and without any citation of authority?, therefore, would not be followed. The author also states that precedents sub-silentio and without arguments are of no moment. This is enough reason for not treating the decision in Panchmukhi (supra) as a bindingis, therefore, necessary to take a look at T ata Iron & Steel (supra). That was a case where the customer paid a surcharge on the price of steel. This surcharge was added to generate money for a steel development fund to implement schemes entrusted to the committee by the Central Government. The surcharge went to the committee for use in its various schemes and for the expenditure incurred towards discharge of the committee?s function.The other objects of the fund, were to implement specific schemes entrusted to the Committee by the Central Government and towards the Engineering Goods Export Assistance Fund. This Court considered the question whether the addition would fall under the meaning of the term ?other taxes? within the meaning of Section 4 (ii) which excluded the amount of other taxes payable on such goods from value. It was contended on behalf of the assessee that they were compelled by law to collect this charge over and above the price without the right to appropriate it for themselves and with a duty of making it over to a third party and therefore the charges could not be regarded as part of the consideration of the sale price ofCourt held that the charges were clearly added as an element of price and observed, ?thus what was being added was to the price?. Another aspect to be kept in mind is that the ultimate beneficiaries of these amounts are the steel plants themselves.We find that the decision in T ata Iron & Steel (supra) is completely inapposite to the circumstances of the case before us. The reliance placed on T ata Iron & Steel (supra) and Panchmukhi (supra) which was a case of Dharmada, is misplaced. Panchmukhi (supra) cannot be said to be good law. | 1 | 3,386 | 1,589 | ### Instruction:
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to spend the amount over charities will not affect character of the deposit. 17. This Court also relied on CIT, West Bengal, Calcutta vs. T ollygunge Club Ltd., Calcutta (1977) 2 SCC 790 : (1977) 107 ITR 776. In that case, the Court considered the nature of a surcharge of eight annas over and above the admission fees into the enclosure of the club at the time of the races. The proceeds of this surcharge were to go to the Red Cross Fund and other local charities. This Court approved the decision of the Calcutta High Court and held that the ?surcharge was not part of the price for admission but made for the specific purpose of being applied to local charities? . It observed the admission to the enclosure is the occasion and not the consideration for the surcharge taken from the race-goer. It rejected the contention that the payment was involuntary, observing ?that does not render the payment of the surcharge involuntary, because it is out of his own volition that he seeks admittance to the enclosure?. Applying the above decisions to the case before it, this Court held in Bijli Cotton Mills (supra) that Dharmada amounts cannot be said to have been paid involuntarily by the customers and in any case the compulsory nature of the payments, if there be any, cannot impress the receipts with the character of being trading receipts. 18. We find from the facts of the case before us that the receipts on account of Dharmada were voluntary, earmarked for charity and in fact credited as such. Though the payment as Dharmada has been found to be voluntary, it would make no difference to the true character and nature of the receipts even if there were found to be paid compulsorily because the purchaser, purchased the goods out of their own volition. The purchase of the goods is the occasion and not consideration for the Dharmada paid by the customer as held in Bijli Cotton Mills (supra) vide para 15: -15. …… It is true that without payment of ?Dharmada? amount the customer may not be able to purchase the goods from the assessee but that would not make the payment of ?Dharmada? amount involuntary inasmuch as it is out of his own volition that he purchases yarn and cotton from the assessee. The ?Dharmada? amount is, therefore, clearly not a part of the price, but a payment for the specific purpose of being spent on charitable purposes. ……...?19. In this case, the CESTAT decided against the assessee relaying on Panchmukhi (supra). The case of Panchmukhi (supra) was apparently decided not after a discussion on facts and law but because the counsel for the revenue submitted that the matter is covered by the decision in T ata Iron & Steel (supra) and the counsel for the assessee ?was not in a position to dispute this legal position? . The judgment in Panchmukhi (supra) has little precedential value. The point whether Dharmada involved in Panchmukhi (supra) and the surcharge held as price in T ata Iron & Steel (supra) were identical and liable to be included in the transaction value passed sub-silentio. Salmond on Jurisprudence T welfth Edition p.15h states that a decision held is not binding since it was decided ?without argument, without reference to the crucial words of the rule, and without any citation of authority? , therefore, would not be followed. The author also states that precedents sub-silentio and without arguments are of no moment. This is enough reason for not treating the decision in Panchmukhi (supra) as a binding precedent. It is, therefore, necessary to take a look at T ata Iron & Steel (supra). That was a case where the customer paid a surcharge on the price of steel. This surcharge was added to generate money for a steel development fund to implement schemes entrusted to the committee by the Central Government. The surcharge went to the committee for use in its various schemes and for the expenditure incurred towards discharge of the committee?s function. 20. Nonetheless, the surcharge was part of the consideration paid by the customer for the price of steel. The notifications under which the surcharge was added clearly stated as follows: -(i) ?The Committee may add an element to the ex- works prices determined ……..? and (ii) ?The Committee may require members steel plants to add the elements listed below to their ex-works………?The purpose of this addition was to constitute a steel development fund for modernisation, research & development, diversification etc. for improving the quantum of technology and efficiency of production of iron and steel and their quality. 21. The other objects of the fund, were to implement specific schemes entrusted to the Committee by the Central Government and towards the Engineering Goods Export Assistance Fund. This Court considered the question whether the addition would fall under the meaning of the term ?other taxes? within the meaning of Section 4 (ii) which excluded the amount of other taxes payable on such goods from value. It was contended on behalf of the assessee that they were compelled by law to collect this charge over and above the price without the right to appropriate it for themselves and with a duty of making it over to a third party and therefore the charges could not be regarded as part of the consideration of the sale price of goods. This Court held that the charges were clearly added as an element of price and observed, ?thus what was being added was to the price?. Another aspect to be kept in mind is that the ultimate beneficiaries of these amounts are the steel plants themselves. 22. We find that the decision in T ata Iron & Steel (supra) is completely inapposite to the circumstances of the case before us. The reliance placed on T ata Iron & Steel (supra) and Panchmukhi (supra) which was a case of Dharmada, is misplaced. Panchmukhi (supra) cannot be said to be good law.
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the purpose of charity as distinct from a commercial transaction. This Court considered the nature and character of Dharmada in Bijli Cotton Mills (supra). That case arose under the Income T ax Act. The assessee used to realise certain amounts on account of Dharmada from his customers on sales of yarn and bales of cotton. The rate was one anna per bundle of ten pounds of yarn and two annas per bale of cotton. The receipts of Dharmada were not credited to the trading account but the assessee maintained a separate account known as the Dharmada account. The authorities under the Act held that the amounts held by the assessee could not be regarded as having been held under trust for charitable purposes.The High Court, however, held that the impugned amounts paid as Dharmada were never the income of the assessee and assessee was merely acting as a conduit for passing on the amounts to the objects of charity. These amounts were never treated as trading receipts or as surcharge on the sale price which was evident from the fact that such realisations were never credited to the trading account nor shown in the profit and loss statement for anyCourt considered the question in great detail and after referring to Professor Wilson?s Glossary and Molesworth?s Dictionary observed that Dharmada means ?an alms or a gift in charity?. This Court observed that though there might be some vagueness as a matter of law, in the word Dharma, there was none in relation to Dharmada or Dharmadaya and such a payment would not be invalid for vagueness or uncertainty. This Court accepted the decision of the Allahabad High Court in Thakur Das Shyam Sunder vs. Additional CIT 93 ITR 27 and observed that?it cannot be disputed that among the trading or commercial community in various parts of the country, a gift or payment for Dharmada is by custom invariably regarded as a gift for charitable. This Court observed that the answer to the question depended on the nature of the obligation created by the customer and approved the finding of the Allahabad High Court to the effect that merely because under the law relating to trust legal ownership over the trust fund and the power to control and dispose of always vest in the trustees, the discretion vested in the trustee to spend the amount over charities will not affect character of thethe above decisions to the case before it, this Court held in Bijli Cotton Mills (supra) that Dharmada amounts cannot be said to have been paid involuntarily by the customers and in any case the compulsory nature of the payments, if there be any, cannot impress the receipts with the character of being trading receipts.We find from the facts of the case before us that the receipts on account of Dharmada were voluntary, earmarked for charity and in fact credited as such. Though the payment as Dharmada has been found to be voluntary, it would make no difference to the true character and nature of the receipts even if there were found to be paid compulsorily because the purchaser, purchased the goods out of their own volition.In this case, the CESTAT decided against the assessee relaying on Panchmukhi (supra). The case of Panchmukhi (supra) was apparently decided not after a discussion on facts and law but because the counsel for the revenue submitted that the matter is covered by the decision in T ata Iron & Steel (supra) and the counsel for the assessee?was not in a position to dispute this legal. The judgment in Panchmukhi (supra) has little precedential value. The point whether Dharmada involved in Panchmukhi (supra) and the surcharge held as price in T ata Iron & Steel (supra) were identical and liable to be included in the transaction value passed sub-silentio. Salmond on Jurisprudence T welfth Edition p.15h states that a decision held is not binding since it was decided?without argument, without reference to the crucial words of the rule, and without any citation of authority?, therefore, would not be followed. The author also states that precedents sub-silentio and without arguments are of no moment. This is enough reason for not treating the decision in Panchmukhi (supra) as a bindingis, therefore, necessary to take a look at T ata Iron & Steel (supra). That was a case where the customer paid a surcharge on the price of steel. This surcharge was added to generate money for a steel development fund to implement schemes entrusted to the committee by the Central Government. The surcharge went to the committee for use in its various schemes and for the expenditure incurred towards discharge of the committee?s function.The other objects of the fund, were to implement specific schemes entrusted to the Committee by the Central Government and towards the Engineering Goods Export Assistance Fund. This Court considered the question whether the addition would fall under the meaning of the term ?other taxes? within the meaning of Section 4 (ii) which excluded the amount of other taxes payable on such goods from value. It was contended on behalf of the assessee that they were compelled by law to collect this charge over and above the price without the right to appropriate it for themselves and with a duty of making it over to a third party and therefore the charges could not be regarded as part of the consideration of the sale price ofCourt held that the charges were clearly added as an element of price and observed, ?thus what was being added was to the price?. Another aspect to be kept in mind is that the ultimate beneficiaries of these amounts are the steel plants themselves.We find that the decision in T ata Iron & Steel (supra) is completely inapposite to the circumstances of the case before us. The reliance placed on T ata Iron & Steel (supra) and Panchmukhi (supra) which was a case of Dharmada, is misplaced. Panchmukhi (supra) cannot be said to be good law.
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Ceat Limited (Formerly Known As Ceat Tyres of India Limited) Vs. The State of Maharashtra and 5 Others | no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants but that would not make it the subject of acquisition. 21. In the instant case, the Government has not transferred the title of the acquired land in favour of the Petitioner, but has only allotted the land to the Petitioner for setting up a tyre manufacturing factory. In normal circumstances, the Government could not have unilaterally resumed the land which was required for public purpose without invoking provisions of Land Acquisition Act and paying compensation to the Petitioner for the interest held by him or rights created in his favour in respect of such land. However the obligation on the part of the Government to acquire the land by invoking the provisions of Land Acquisition Act has been obviated by the Petitioner by accepting the terms and conditions set out in Clause 5 of the Sanad, which reads thus:- If at any time or times the whole or any part of the said lands is required by Government for the purpose of making any new public road or for any purpose connected with public health, safety, utility or necessity (as to which matter the Company shall accept as final the decision of Government) the Company on being thereunto required by the Government in writing shall transfer to the Government the whole or part of the said land as the Government shall specify to be necessary for any of the aforesaid purposes and in consideration of such transfer Government shall pay to the Company a sum equal to the amount of compensation awarded under the said Act and paid by the Company in respect of land so transferred including the percentage awarded under Section 23(2) of the said Act, together with such amount as shall be estimated by the Executive Engineer, Presidency Division, whose decision in the matter shall be final as to the costs of the development of the land so transferred which shall include the value at the date of transfer of any structures standing thereon and when part of building lies on the land so transferred and part is on the adjoining land reasonable compensation for the injurious affection of the part of the building on the adjoining land. 22. A plain reading of this Clause clearly indicates that when the land or any part thereof is required for public purpose, the PetitionerCompany, on being called upon by the Government in writing, is bound to transfer such land to the Government. In consideration of such transfer the Government is liable to pay to the PetitionerCompany a sum equal to the amount of compensation awarded under the said Act and paid by the Company in respect of land so transferred including the percentage awarded under Section 23(2) of the said Act together with costs of development, value of any strucvture and other components specified in clause 5 of the Sanad and as estimated by the Executive Engineer. The Petitioner-Company having accepted the allotment of the land under the Sanad is bound by the terms and conditions stipulated in the Sanad. The law in this regard is well settled. A reference in this regard can be made to the decision of the Apex Court in New Bihar Biri Leaves Company and Ors. vs. State of Bihar and Ors.(1981) 1 SCC 537 wherein it is observed thus:- 48. It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat, (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton L.J. Verschures Creameries, Ltd. v. Hull & Netherlands Steamship Co.; See Douglas Menzies v. Umphelby; See also Strouds Judicial Dictionary, Vol. I, page 169, 3rd Edn.). 23. In the instant case, the Petitioner-Company having voluntarily accepted the terms and conditions of the allotment as stipulated in Sanad, the State Government is not liable to acquire the land or pay the compensation to the Petitioner-Company under the provisions of the Right to Fair Compensation Act. In our considered view, issuance of writ of mandamus would result in permitting the Petitioner-Company to wriggle out of its obligation under Clause 5 of the Sanad. Suffice it to say, the writ of mandamus cannot be issued to avoid obligation under the contract. Hence the writ of mandamus as prayed for cannot be issued. 24. It is to be noted that the Petitioner-Company has already surrendered the possession of the land admeasuring 357.9 sq.meters from CTS No.354 under possession receipt dated 30.06.2006, copy of which is annexed to the Petition at Exhibit-I. The Government was therefore bound to pay to the Petitioner-Company compensation as stipulated in clause 5 of the Sanad. It is not in dispute that the Government has not paid the compensation in respect of the said land under the premise that the Petitioner-Company had not raised its claim for compensation. Clause 5 of the Sanad does not necessitate raising of such claim but cast an obligation on the Government to quantify the compensation as stipulated therein. The Government was therefore not justified in not paying the compensation. Be that as it may, in the affidavit-in-reply, the Deputy Collector has stated that the Petitioner-Company can file an application for compensation in accordance with clause 5 of the Sanad with the office of the Respondent No.5 and that the same will be considered in accordance with law. | 1[ds]11. We have perused the record and considered the rival submissions advanced by the learned Counsel for the respective parties. It is not in dispute that the Petitioner-Company had applied to the erstwhile Government to allot land for setting up a tyre manufacturing unit at Bhandup. Pursuant to two separate agreements dated 15.10.1958 and 17.01.1969 entered with the Petitioner-Company, the Government acquired the land and upon payment of compensation under the Award, allotted the acquired land to the Petitioner-Company under Sanads dated 29.12.1969 and 23.6.1975. The Sanads state that the lands have been vested in the Petitioner-Company subject to the provisions of the Maharashtra Land Revenue Code. The Petitioner-Company has sought to construe the term vested as transfer of ownership15. The aforesaid pronouncements make it clear that vesting does not necessarily connote vesting in title but also includes vesting of interest, vesting in possession or vesting of right to enjoy the property, etc. Since the word vest is of ambiguous import and has no fixed connotation, it would be necessary to refer to the relevant terms and conditions of the Sanad to understand the meaning of the word and the context in which it is used18. A plain reading of the terms and conditions of the Sanad clearly indicate that the Government had acquired the land under the Land Acquisition Act and vested the same in favour of the Petitioner Company in accordance with the provisions of Maharashtra Land Revenue Code. The allotment of the land to the Petitioner-Company was for a specific purpose of setting up a tyre manufacturing unit. The Sanad restricts the user of the land and restrains the PetitionerCompany from dealing with the property or using the same for any other purpose without prior permission of the Government. The Government has also imposed absolute restrain on alienation of the land or any part thereof in any manner without prior permission of the Government. This restriction in particular clearly indicates that the Government had not vested absolute title in favour of the Petitioner-Company but had conferred on the Petitioner-Company the status of Class-II occupant. In terms of Section 2(23) r/w. Section 29 of Maharashtra Land Revenue Code, the occupant Class II is only a holder in actual possession of unalienated land in perpetuity subject to restrictions on right to transfer. The status of a Class II occupant cannot be equated with that of a owner. Hence, we are not inclined to accept the submissions of the learned Counsel for the PetitionerCompany that the Petitioner-Company is the absolute owner of the acquired land21. In the instant case, the Government has not transferred the title of the acquired land in favour of the Petitioner, but has only allotted the land to the Petitioner for setting up a tyre manufacturing factory. In normal circumstances, the Government could not have unilaterally resumed the land which was required for public purpose without invoking provisions of Land Acquisition Act and paying compensation to the Petitioner for the interest held by him or rights created in his favour in respect of such land. However the obligation on the part of the Government to acquire the land by invoking the provisions of Land Acquisition Act has been obviated by the Petitioner by accepting the terms and conditions set out in Clause 5 of the Sanad22. A plain reading of this Clause clearly indicates that when the land or any part thereof is required for public purpose, the PetitionerCompany, on being called upon by the Government in writing, is bound to transfer such land to the Government. In consideration of such transfer the Government is liable to pay to the PetitionerCompany a sum equal to the amount of compensation awarded under the said Act and paid by the Company in respect of land so transferred including the percentage awarded under Section 23(2) of the said Act together with costs of development, value of any strucvture and other components specified in clause 5 of the Sanad and as estimated by the Executive Engineer. The Petitioner-Company having accepted the allotment of the land under the Sanad is bound by the terms and conditions stipulated in the Sanad. The law in this regard is well settled23. In the instant case, the Petitioner-Company having voluntarily accepted the terms and conditions of the allotment as stipulated in Sanad, the State Government is not liable to acquire the land or pay the compensation to the Petitioner-Company under the provisions of the Right to Fair Compensation Act. In our considered view, issuance of writ of mandamus would result in permitting the Petitioner-Company to wriggle out of its obligation under Clause 5 of the Sanad. Suffice it to say, the writ of mandamus cannot be issued to avoid obligation under the contract. Hence the writ of mandamus as prayed for cannot be issued24. It is to be noted that the Petitioner-Company has already surrendered the possession of the land admeasuring 357.9 sq.meters from CTS No.354 under possession receipt dated 30.06.2006, copy of which is annexed to the Petition at Exhibit-I. The Government was therefore bound to pay to the Petitioner-Company compensation as stipulated in clause 5 of the Sanad. It is not in dispute that the Government has not paid the compensation in respect of the said land under the premise that the Petitioner-Company had not raised its claim for compensation. Clause 5 of the Sanad does not necessitate raising of such claim but cast an obligation on the Government to quantify the compensation as stipulated therein. The Government was therefore not justified in not paying the compensation. Be that as it may, in the affidavit-in-reply, the Deputy Collector has stated that the Petitioner-Company can file an application for compensation in accordance with clause 5 of the Sanad with the office of the Respondent No.5 and that the same will be considered in accordance with law. | 1 | 5,394 | 1,040 | ### Instruction:
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no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants but that would not make it the subject of acquisition. 21. In the instant case, the Government has not transferred the title of the acquired land in favour of the Petitioner, but has only allotted the land to the Petitioner for setting up a tyre manufacturing factory. In normal circumstances, the Government could not have unilaterally resumed the land which was required for public purpose without invoking provisions of Land Acquisition Act and paying compensation to the Petitioner for the interest held by him or rights created in his favour in respect of such land. However the obligation on the part of the Government to acquire the land by invoking the provisions of Land Acquisition Act has been obviated by the Petitioner by accepting the terms and conditions set out in Clause 5 of the Sanad, which reads thus:- If at any time or times the whole or any part of the said lands is required by Government for the purpose of making any new public road or for any purpose connected with public health, safety, utility or necessity (as to which matter the Company shall accept as final the decision of Government) the Company on being thereunto required by the Government in writing shall transfer to the Government the whole or part of the said land as the Government shall specify to be necessary for any of the aforesaid purposes and in consideration of such transfer Government shall pay to the Company a sum equal to the amount of compensation awarded under the said Act and paid by the Company in respect of land so transferred including the percentage awarded under Section 23(2) of the said Act, together with such amount as shall be estimated by the Executive Engineer, Presidency Division, whose decision in the matter shall be final as to the costs of the development of the land so transferred which shall include the value at the date of transfer of any structures standing thereon and when part of building lies on the land so transferred and part is on the adjoining land reasonable compensation for the injurious affection of the part of the building on the adjoining land. 22. A plain reading of this Clause clearly indicates that when the land or any part thereof is required for public purpose, the PetitionerCompany, on being called upon by the Government in writing, is bound to transfer such land to the Government. In consideration of such transfer the Government is liable to pay to the PetitionerCompany a sum equal to the amount of compensation awarded under the said Act and paid by the Company in respect of land so transferred including the percentage awarded under Section 23(2) of the said Act together with costs of development, value of any strucvture and other components specified in clause 5 of the Sanad and as estimated by the Executive Engineer. The Petitioner-Company having accepted the allotment of the land under the Sanad is bound by the terms and conditions stipulated in the Sanad. The law in this regard is well settled. A reference in this regard can be made to the decision of the Apex Court in New Bihar Biri Leaves Company and Ors. vs. State of Bihar and Ors.(1981) 1 SCC 537 wherein it is observed thus:- 48. It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat, (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton L.J. Verschures Creameries, Ltd. v. Hull & Netherlands Steamship Co.; See Douglas Menzies v. Umphelby; See also Strouds Judicial Dictionary, Vol. I, page 169, 3rd Edn.). 23. In the instant case, the Petitioner-Company having voluntarily accepted the terms and conditions of the allotment as stipulated in Sanad, the State Government is not liable to acquire the land or pay the compensation to the Petitioner-Company under the provisions of the Right to Fair Compensation Act. In our considered view, issuance of writ of mandamus would result in permitting the Petitioner-Company to wriggle out of its obligation under Clause 5 of the Sanad. Suffice it to say, the writ of mandamus cannot be issued to avoid obligation under the contract. Hence the writ of mandamus as prayed for cannot be issued. 24. It is to be noted that the Petitioner-Company has already surrendered the possession of the land admeasuring 357.9 sq.meters from CTS No.354 under possession receipt dated 30.06.2006, copy of which is annexed to the Petition at Exhibit-I. The Government was therefore bound to pay to the Petitioner-Company compensation as stipulated in clause 5 of the Sanad. It is not in dispute that the Government has not paid the compensation in respect of the said land under the premise that the Petitioner-Company had not raised its claim for compensation. Clause 5 of the Sanad does not necessitate raising of such claim but cast an obligation on the Government to quantify the compensation as stipulated therein. The Government was therefore not justified in not paying the compensation. Be that as it may, in the affidavit-in-reply, the Deputy Collector has stated that the Petitioner-Company can file an application for compensation in accordance with clause 5 of the Sanad with the office of the Respondent No.5 and that the same will be considered in accordance with law.
### Response:
1
### Explanation:
11. We have perused the record and considered the rival submissions advanced by the learned Counsel for the respective parties. It is not in dispute that the Petitioner-Company had applied to the erstwhile Government to allot land for setting up a tyre manufacturing unit at Bhandup. Pursuant to two separate agreements dated 15.10.1958 and 17.01.1969 entered with the Petitioner-Company, the Government acquired the land and upon payment of compensation under the Award, allotted the acquired land to the Petitioner-Company under Sanads dated 29.12.1969 and 23.6.1975. The Sanads state that the lands have been vested in the Petitioner-Company subject to the provisions of the Maharashtra Land Revenue Code. The Petitioner-Company has sought to construe the term vested as transfer of ownership15. The aforesaid pronouncements make it clear that vesting does not necessarily connote vesting in title but also includes vesting of interest, vesting in possession or vesting of right to enjoy the property, etc. Since the word vest is of ambiguous import and has no fixed connotation, it would be necessary to refer to the relevant terms and conditions of the Sanad to understand the meaning of the word and the context in which it is used18. A plain reading of the terms and conditions of the Sanad clearly indicate that the Government had acquired the land under the Land Acquisition Act and vested the same in favour of the Petitioner Company in accordance with the provisions of Maharashtra Land Revenue Code. The allotment of the land to the Petitioner-Company was for a specific purpose of setting up a tyre manufacturing unit. The Sanad restricts the user of the land and restrains the PetitionerCompany from dealing with the property or using the same for any other purpose without prior permission of the Government. The Government has also imposed absolute restrain on alienation of the land or any part thereof in any manner without prior permission of the Government. This restriction in particular clearly indicates that the Government had not vested absolute title in favour of the Petitioner-Company but had conferred on the Petitioner-Company the status of Class-II occupant. In terms of Section 2(23) r/w. Section 29 of Maharashtra Land Revenue Code, the occupant Class II is only a holder in actual possession of unalienated land in perpetuity subject to restrictions on right to transfer. The status of a Class II occupant cannot be equated with that of a owner. Hence, we are not inclined to accept the submissions of the learned Counsel for the PetitionerCompany that the Petitioner-Company is the absolute owner of the acquired land21. In the instant case, the Government has not transferred the title of the acquired land in favour of the Petitioner, but has only allotted the land to the Petitioner for setting up a tyre manufacturing factory. In normal circumstances, the Government could not have unilaterally resumed the land which was required for public purpose without invoking provisions of Land Acquisition Act and paying compensation to the Petitioner for the interest held by him or rights created in his favour in respect of such land. However the obligation on the part of the Government to acquire the land by invoking the provisions of Land Acquisition Act has been obviated by the Petitioner by accepting the terms and conditions set out in Clause 5 of the Sanad22. A plain reading of this Clause clearly indicates that when the land or any part thereof is required for public purpose, the PetitionerCompany, on being called upon by the Government in writing, is bound to transfer such land to the Government. In consideration of such transfer the Government is liable to pay to the PetitionerCompany a sum equal to the amount of compensation awarded under the said Act and paid by the Company in respect of land so transferred including the percentage awarded under Section 23(2) of the said Act together with costs of development, value of any strucvture and other components specified in clause 5 of the Sanad and as estimated by the Executive Engineer. The Petitioner-Company having accepted the allotment of the land under the Sanad is bound by the terms and conditions stipulated in the Sanad. The law in this regard is well settled23. In the instant case, the Petitioner-Company having voluntarily accepted the terms and conditions of the allotment as stipulated in Sanad, the State Government is not liable to acquire the land or pay the compensation to the Petitioner-Company under the provisions of the Right to Fair Compensation Act. In our considered view, issuance of writ of mandamus would result in permitting the Petitioner-Company to wriggle out of its obligation under Clause 5 of the Sanad. Suffice it to say, the writ of mandamus cannot be issued to avoid obligation under the contract. Hence the writ of mandamus as prayed for cannot be issued24. It is to be noted that the Petitioner-Company has already surrendered the possession of the land admeasuring 357.9 sq.meters from CTS No.354 under possession receipt dated 30.06.2006, copy of which is annexed to the Petition at Exhibit-I. The Government was therefore bound to pay to the Petitioner-Company compensation as stipulated in clause 5 of the Sanad. It is not in dispute that the Government has not paid the compensation in respect of the said land under the premise that the Petitioner-Company had not raised its claim for compensation. Clause 5 of the Sanad does not necessitate raising of such claim but cast an obligation on the Government to quantify the compensation as stipulated therein. The Government was therefore not justified in not paying the compensation. Be that as it may, in the affidavit-in-reply, the Deputy Collector has stated that the Petitioner-Company can file an application for compensation in accordance with clause 5 of the Sanad with the office of the Respondent No.5 and that the same will be considered in accordance with law.
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The Management of Narendra & Company Private Limited Vs. The Workmen of Narendra & Company | Kurian Joseph, J. 1. Leave granted. 2. Short question is whether the respondents-workmen are entitled to the back wages till the beginning of January, 1995 or till January, 1999. The Labour Court, Bangalore by award dated 02.08.2002 directed reinstatement of the workmen with 50 per cent back wages. That award was challenged by the appellant before the High Court of Karnataka at Bangalore by judgment dated 14.03.2008 in Writ Petition No. 41489 of 2002. Though the appellant attacked the award on several grounds, the learned Single Judge declined to interfere with the award on reinstatement. However, taking note of the fact that the industry was virtually closed by the beginning of January, 1995, it was ordered that the award on back wages would be limited to January, 1995. The learned Single Judge, in fact, had entered a finding in that regard which reads as follows: From the record it shows that the industry was functioning till the beginning of 1995 and the Union though has led the evidence but has not proved as to whether the industry was functioning thereafter or not. 3. In appeal, the Division Bench took the view that apart from the sole evidence of MW-3, there was no other evidence on record to prove that the industry was not functional after January, 1995. However, there was no dispute with regard to the fact that the industry was closed, and therefore, reinstatement was not possible. In that background, without any further material available on record, the Division Bench took the view that interest of justice would be met by extending the benefit of 50 per cent back wages upto the end of January, 1999 and consequential benefits with closure compensation as well as gratuity upto that date. We may extract the relevant consideration by the Division Bench in the impugned judgment: … According to MW-3, the machines were operated only till the beginning of January, 1995. However, to substantiate that contention, there is no evidence on record. In the light of such evidence on record, it is not possible to record a categorical finding that the industry was closed in the year 1995 itself. Having regard to the fact that the industry was closed, the order of re-instatement has been set aside by the learned single Judge and the workmen were entitled to retrenchment compensation and only 50% back wages is awarded, we are of the view that justice would be met by extending the benefit of 50% back wages upto the end of January 1999 and they are also entitled to consequential benefits with closure compensation as well as gratuity upto that date. … 4. Once the learned Single Judge having seen the records and come to the conclusion that the industry was not functioning after January, 1995, there is no justification in entering a different finding without any further material before the Division Bench. The appellate bench ought to have noticed that the statement of MW-3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief. 5. When the matter came up before this Court on 08.07.2013, the Court directed the appellant to file an affidavit indicating the actual year of closure of the industry so as to determine the question as to from what date retrenchment compensation should be paid to the workmen. Accordingly, affidavit dated 11.07.2013 was filed wherein it is clearly stated that the industry became non-functional by the beginning of January, 1995 and remained defunct thereafter. In the counter affidavit filed by the respondent-workmen also, there is nothing to establish that the industry was functioning thereafter. 6. Hence, the order for payment of back wages beyond January, 1995 is vacated, and in all the other aspects, the order passed by the Division Bench is retained. In case, the workmen have not been paid the benefits which they are entitled to, the same shall be paid within a period of three months from today, failing which, the respondent-workmen shall be entitled to interest at the rate of 10 per cent per annum. | 1[ds]6. Hence, the order for payment of back wages beyond January, 1995 is vacated, and in all the other aspects, the order passed by the Division Bench is retained. In case, the workmen have not been paid the benefits which they are entitled to, the same shall be paid within a period of three months from today, failing which, the respondent-workmen shall be entitled to interest at the rate of 10 per cent per annum | 1 | 824 | 89 | ### 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:
Kurian Joseph, J. 1. Leave granted. 2. Short question is whether the respondents-workmen are entitled to the back wages till the beginning of January, 1995 or till January, 1999. The Labour Court, Bangalore by award dated 02.08.2002 directed reinstatement of the workmen with 50 per cent back wages. That award was challenged by the appellant before the High Court of Karnataka at Bangalore by judgment dated 14.03.2008 in Writ Petition No. 41489 of 2002. Though the appellant attacked the award on several grounds, the learned Single Judge declined to interfere with the award on reinstatement. However, taking note of the fact that the industry was virtually closed by the beginning of January, 1995, it was ordered that the award on back wages would be limited to January, 1995. The learned Single Judge, in fact, had entered a finding in that regard which reads as follows: From the record it shows that the industry was functioning till the beginning of 1995 and the Union though has led the evidence but has not proved as to whether the industry was functioning thereafter or not. 3. In appeal, the Division Bench took the view that apart from the sole evidence of MW-3, there was no other evidence on record to prove that the industry was not functional after January, 1995. However, there was no dispute with regard to the fact that the industry was closed, and therefore, reinstatement was not possible. In that background, without any further material available on record, the Division Bench took the view that interest of justice would be met by extending the benefit of 50 per cent back wages upto the end of January, 1999 and consequential benefits with closure compensation as well as gratuity upto that date. We may extract the relevant consideration by the Division Bench in the impugned judgment: … According to MW-3, the machines were operated only till the beginning of January, 1995. However, to substantiate that contention, there is no evidence on record. In the light of such evidence on record, it is not possible to record a categorical finding that the industry was closed in the year 1995 itself. Having regard to the fact that the industry was closed, the order of re-instatement has been set aside by the learned single Judge and the workmen were entitled to retrenchment compensation and only 50% back wages is awarded, we are of the view that justice would be met by extending the benefit of 50% back wages upto the end of January 1999 and they are also entitled to consequential benefits with closure compensation as well as gratuity upto that date. … 4. Once the learned Single Judge having seen the records and come to the conclusion that the industry was not functioning after January, 1995, there is no justification in entering a different finding without any further material before the Division Bench. The appellate bench ought to have noticed that the statement of MW-3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief. 5. When the matter came up before this Court on 08.07.2013, the Court directed the appellant to file an affidavit indicating the actual year of closure of the industry so as to determine the question as to from what date retrenchment compensation should be paid to the workmen. Accordingly, affidavit dated 11.07.2013 was filed wherein it is clearly stated that the industry became non-functional by the beginning of January, 1995 and remained defunct thereafter. In the counter affidavit filed by the respondent-workmen also, there is nothing to establish that the industry was functioning thereafter. 6. Hence, the order for payment of back wages beyond January, 1995 is vacated, and in all the other aspects, the order passed by the Division Bench is retained. In case, the workmen have not been paid the benefits which they are entitled to, the same shall be paid within a period of three months from today, failing which, the respondent-workmen shall be entitled to interest at the rate of 10 per cent per annum.
### Response:
1
### Explanation:
6. Hence, the order for payment of back wages beyond January, 1995 is vacated, and in all the other aspects, the order passed by the Division Bench is retained. In case, the workmen have not been paid the benefits which they are entitled to, the same shall be paid within a period of three months from today, failing which, the respondent-workmen shall be entitled to interest at the rate of 10 per cent per annum
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Fahim Ahmad Vs. United India Insurance Co. Ltd. | N.V. Ramana, J. 1. The short question, which arises for consideration in this appeal, is who is liable to pay the amount of compensation awarded by the Motor Accident Claims Tribunal, Udham Singh Nagar (for short, the Tribunal) in M.A.C.P. No. 98/2003 vide Award dated 06.08.2004. 2. Brief facts of the case are thus : On 06.03.2003, the deceased Atma Singh, the husband of appellant – No. 1 and the father of appellants No. 2 and 3 herein, was going from Kashipur crossing towards Tada Ujjain. When he reached the Station Road in front of godown, suddenly one tractor having registration No. UP-21-H-4596 coming at a high speed in a rash and negligent manner hit the deceased from behind, as a result of which, he became seriously injured and died on the spot. Thus, the appellants-claimants claimed compensation of Rs.5,00,000/- and averred that the deceased was 49 years old having monthly income of Rs.4,600/- (Rs.3,600/- from mason work and Rs.1,000/- from selling of milk of 2–3 buffaloes). The Tribunal assessed the annual income of the deceased at Rs.24,000/- and applying the multiplier of 13, awarded the compensation of Rs.3,12,000/- with interest. However, the Tribunal held the Insurance Company, i.e., respondent No. 1 herein, liable to pay the said compensation because the tractor was insured with it as per rule at the time of the accident. 3. Against the award of the Tribunal, the appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short, the said Act) registered as A.O. No. 425 of 2004 in the High Court of Uttranchal at Nainital was partly allowed on 18.05.2006 to the extent that the amount of compensation so awarded by the Tribunal shall be paid by the insurance company, but it shall have a right to recover the same from the owner of the offending tractor as there was breach of condition of the insurance policy. This was so held because at the time of the accident, the tractor was carrying sand. It is this decision, which has been assailed in the present appeal. 4. We have heard arguments advanced by learned counsel for the parties and perused the records. 5. A perusal of the records shows that, at the time of the accident, a trolley was attached with the tractor, which was carrying sand for the purpose of construction of underground tank near the farm land for irrigation purpose(s). However, merely because it was carrying sand would not mean that the tractor was being used for commercial purpose and consequently, there was a breach of the condition of policy on the part of the insured. There is nothing on record to show that the tractor was being used for commercial purpose(s) or purpose(s) other than agricultural purpose(s), i.e., for hire or reward, as contemplated under Section 149(2)(a)(i)(a) of the said Act. 6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No. 1-Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein. 7. We may also notice that this Court in National Insurance Co. Ltd. Vs. V. Chinnamma & Ors., JT 2004 (7) SC 167 , held that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes, but the same itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. Thus, a tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the said Act. 8. In view of above, we are of the view that, in the facts and circumstances of the case, the High Court was not justified in transferring the burden of paying the amount of compensation from respondent No. 1- Insurance Company to the appellants herein. | 1[ds]6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No.e Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein7. We may also notice that this Court in National Insurance Co. Ltd. Vs. V. Chinnamma & Ors., JT 2004 (7) SC 167 , held that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes, but the same itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. Thus, a tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the said Act8. In view of above, we are of the view that, in the facts and circumstances of the case, the High Court was not justified in transferring the burden of paying the amount of compensation from respondent No. 1 | 1 | 842 | 273 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
N.V. Ramana, J. 1. The short question, which arises for consideration in this appeal, is who is liable to pay the amount of compensation awarded by the Motor Accident Claims Tribunal, Udham Singh Nagar (for short, the Tribunal) in M.A.C.P. No. 98/2003 vide Award dated 06.08.2004. 2. Brief facts of the case are thus : On 06.03.2003, the deceased Atma Singh, the husband of appellant – No. 1 and the father of appellants No. 2 and 3 herein, was going from Kashipur crossing towards Tada Ujjain. When he reached the Station Road in front of godown, suddenly one tractor having registration No. UP-21-H-4596 coming at a high speed in a rash and negligent manner hit the deceased from behind, as a result of which, he became seriously injured and died on the spot. Thus, the appellants-claimants claimed compensation of Rs.5,00,000/- and averred that the deceased was 49 years old having monthly income of Rs.4,600/- (Rs.3,600/- from mason work and Rs.1,000/- from selling of milk of 2–3 buffaloes). The Tribunal assessed the annual income of the deceased at Rs.24,000/- and applying the multiplier of 13, awarded the compensation of Rs.3,12,000/- with interest. However, the Tribunal held the Insurance Company, i.e., respondent No. 1 herein, liable to pay the said compensation because the tractor was insured with it as per rule at the time of the accident. 3. Against the award of the Tribunal, the appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short, the said Act) registered as A.O. No. 425 of 2004 in the High Court of Uttranchal at Nainital was partly allowed on 18.05.2006 to the extent that the amount of compensation so awarded by the Tribunal shall be paid by the insurance company, but it shall have a right to recover the same from the owner of the offending tractor as there was breach of condition of the insurance policy. This was so held because at the time of the accident, the tractor was carrying sand. It is this decision, which has been assailed in the present appeal. 4. We have heard arguments advanced by learned counsel for the parties and perused the records. 5. A perusal of the records shows that, at the time of the accident, a trolley was attached with the tractor, which was carrying sand for the purpose of construction of underground tank near the farm land for irrigation purpose(s). However, merely because it was carrying sand would not mean that the tractor was being used for commercial purpose and consequently, there was a breach of the condition of policy on the part of the insured. There is nothing on record to show that the tractor was being used for commercial purpose(s) or purpose(s) other than agricultural purpose(s), i.e., for hire or reward, as contemplated under Section 149(2)(a)(i)(a) of the said Act. 6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No. 1-Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein. 7. We may also notice that this Court in National Insurance Co. Ltd. Vs. V. Chinnamma & Ors., JT 2004 (7) SC 167 , held that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes, but the same itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. Thus, a tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the said Act. 8. In view of above, we are of the view that, in the facts and circumstances of the case, the High Court was not justified in transferring the burden of paying the amount of compensation from respondent No. 1- Insurance Company to the appellants herein.
### Response:
1
### Explanation:
6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No.e Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein7. We may also notice that this Court in National Insurance Co. Ltd. Vs. V. Chinnamma & Ors., JT 2004 (7) SC 167 , held that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes, but the same itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. Thus, a tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the said Act8. In view of above, we are of the view that, in the facts and circumstances of the case, the High Court was not justified in transferring the burden of paying the amount of compensation from respondent No. 1
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Gujarat Maritime Board Vs. L&T Infrastructure Development Projects Ltd. | its executive capacity and is bound by the obligations of fairness.70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discrimination.70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc.70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred.70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business.70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.” 11. It is contended on behalf of the first respondent that the invocation of Bank Guarantee depends on the cancellation of the contract and once the cancellation of the contract is not justified, the invocation of Bank Guarantee also is not justified. We are afraid that the contention cannot be appreciated. The bank guarantee is a separate contact and is not qualified by the contract on performance of the obligations. No doubt, in terms of the bank guarantee also, the invocation is only against a breach of the conditions in the LoI. But between the appellant and the bank, it has been stipulated that the decision of the appellant as to the breach shall be absolute and binding on the bank.12. An injunction against the invocation of an absolute and an unconditional bank guarantee cannot be granted except in situations of egregious fraud or irretrievable injury to one of the parties concerned. This position also is no more res integra. In Himadri Chemicals Industries Limited v. Coal Tar Refining Company (2007) 8 SCC 110 ), at paragraph -14: “14. From the discussions made hereinabove relating to the principles for grant or refusal to grant of injunction to restrain enforcement of a bank guarantee or a letter of credit, we find that the following principles should be noted in the matter of injunction to restrain the encashment of a bank guarantee or a letter of credit:(i) While dealing with an application for injunction in the course of commercial dealings, and when an unconditional bank guarantee or letter of credit is given or accepted, the beneficiary is entitled to realise such a bank guarantee or a letter of credit in terms thereof irrespective of any pending disputes relating to the terms of the contract.(ii) The bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer.(iii) The courts should be slow in granting an order of injunction to restrain the realisation of a bank guarantee or a letter of credit.(iv) Since a bank guarantee or a letter of credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees or letters of credit.(v) Fraud of an egregious nature which would vitiate the very foundation of such a bank guarantee or letter of credit and the beneficiary seeks to take advantage of the situation.(vi) Allowing encashment of an unconditional bank guarantee or a letter of credit would result in irretrievable harm or injustice to one of the parties concerned.” 13. Guarantee given by the bank to the appellant contains only the condition that in case of breach by the lead promoter, viz., the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the bank should honour it … “without any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform the covenants…”. It has also been undertaken by the bank that such written demand from the appellant on the bank shall be … “conclusive, absolute and unequivocal as regards the amount due and payable by the bank under this guarantee”. Between the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 06.02.2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc., are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the bank is bound to honour the payment under the guarantee. | 1[ds]13. Guarantee given by the bank to the appellant contains only the condition that in case of breach by the lead promoter, viz., the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the bank should honour it …any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform theIt has also been undertaken by the bank that such written demand from the appellant on the bank shall be …absolute and unequivocal as regards the amount due and payable by the bank under thisBetween the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 06.02.2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc., are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the bank is bound to honour the payment under the guarantee. | 1 | 3,782 | 284 | ### 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:
its executive capacity and is bound by the obligations of fairness.70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discrimination.70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc.70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred.70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business.70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.” 11. It is contended on behalf of the first respondent that the invocation of Bank Guarantee depends on the cancellation of the contract and once the cancellation of the contract is not justified, the invocation of Bank Guarantee also is not justified. We are afraid that the contention cannot be appreciated. The bank guarantee is a separate contact and is not qualified by the contract on performance of the obligations. No doubt, in terms of the bank guarantee also, the invocation is only against a breach of the conditions in the LoI. But between the appellant and the bank, it has been stipulated that the decision of the appellant as to the breach shall be absolute and binding on the bank.12. An injunction against the invocation of an absolute and an unconditional bank guarantee cannot be granted except in situations of egregious fraud or irretrievable injury to one of the parties concerned. This position also is no more res integra. In Himadri Chemicals Industries Limited v. Coal Tar Refining Company (2007) 8 SCC 110 ), at paragraph -14: “14. From the discussions made hereinabove relating to the principles for grant or refusal to grant of injunction to restrain enforcement of a bank guarantee or a letter of credit, we find that the following principles should be noted in the matter of injunction to restrain the encashment of a bank guarantee or a letter of credit:(i) While dealing with an application for injunction in the course of commercial dealings, and when an unconditional bank guarantee or letter of credit is given or accepted, the beneficiary is entitled to realise such a bank guarantee or a letter of credit in terms thereof irrespective of any pending disputes relating to the terms of the contract.(ii) The bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer.(iii) The courts should be slow in granting an order of injunction to restrain the realisation of a bank guarantee or a letter of credit.(iv) Since a bank guarantee or a letter of credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees or letters of credit.(v) Fraud of an egregious nature which would vitiate the very foundation of such a bank guarantee or letter of credit and the beneficiary seeks to take advantage of the situation.(vi) Allowing encashment of an unconditional bank guarantee or a letter of credit would result in irretrievable harm or injustice to one of the parties concerned.” 13. Guarantee given by the bank to the appellant contains only the condition that in case of breach by the lead promoter, viz., the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the bank should honour it … “without any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform the covenants…”. It has also been undertaken by the bank that such written demand from the appellant on the bank shall be … “conclusive, absolute and unequivocal as regards the amount due and payable by the bank under this guarantee”. Between the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 06.02.2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc., are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the bank is bound to honour the payment under the guarantee.
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1
### Explanation:
13. Guarantee given by the bank to the appellant contains only the condition that in case of breach by the lead promoter, viz., the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the bank should honour it …any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform theIt has also been undertaken by the bank that such written demand from the appellant on the bank shall be …absolute and unequivocal as regards the amount due and payable by the bank under thisBetween the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 06.02.2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc., are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the bank is bound to honour the payment under the guarantee.
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Sri Agasthyar Trust, Madras Vs. Commissioner of Income Tax, Madras | became an irrevocable trust. The powers of the trustee in respect of the said Trust continued to remain the same as set out in clause (8) of the partnership deed which has been extracted hereinabove. The said trustee was only required to carry out the objects of the Trust and spend the trust funds for charitable purposes in the manner indicated therein. No power was given to the trustee to amend, alter, vary or change in any manner the objects of the Trust as created in 1941. The result of this is that neither the trustee nor the founders could bring about any change in the objects of the Trust as set out in their partnership deed dated 28-11-1941. This being so, the document dated 1-7-1944 executed by the trustee was clearly without any authority and was non est. He had no right or jurisdiction to execute the document of 1-7-1944 which in effect changed the objects of the Trust radically and in fact converted what was meant to be a public charitable trust to a non-charitable trust as held by this Court in East India Industries case when the deed dated 1-7-1944 was construed by it. It will be useful at this juncture to refer to the following passage from Tudor on Charities (6th Edn.). At p. 131, it is stated as follows "When a charity has been founded and trusts have been declared, the founder has no power to revoke, vary or add to the trusts. This is so irrespective of whether the trusts have been declared by an individual, or by a body of subscribers, or by the trustees." * 15. When the founders of the Trust have no power to alter or vary the terms of the Trust, a trustee appointed to manage the properties of the Trust for securing its object can under no circumstances be regarded as having such a power specially when the original deed dated 28-11-1941 does not bestow such power on him. Such a question also came up for consideration before the Madras High Court in Thanthi Trust v. ITO (Mad)). Dealing with the question whether the founder of a trust had power to revoke the same, at pp. 284-85, this Court observed as follows "It is well established that the subsequent acts and conduct of the founder of the trust cannot affect the trust if there has been already a complete dedication. (Vide Krishnaswamy Pillai v. Kothandarama Naicken ( 1914 (27) MLJ 582 : 25 IC 428 (Mad)), Sunder Singh Mallah Singh Sanatan Dharam High School Trust v. Managing Committee ( 1938 (1) MLJ 359 : 1938 AIR(PC) 73)) and Gokuldas Jumnadas and Co. v. Lakshminarasimhalu Chetti 1940 (2) MLJ 409 : 1940 AIR(Mad) 920). If a valid and complete dedication had taken place, there would be no power left in the founder to revoke and no assertion on his part or the subsequent conduct of himself or his descendants contrary to such dedication would have the effect of nullifying it. If the trust had been really and validly created, any deviation by the founder of the trust or the trustees from the declared purposes would amount only to a breach of trust and would not detract from the declaration of trust. Therefore, the subsequent conduct of the founder in dealing with the funds of the trust long after the creation of the trust may not put an end to the trust itself." * 16. We are in full agreement with the principle stated in the aforesaid passage and we hold that the trustee had no authority or jurisdiction to execute a fresh trust deed and the document dated 1-7-1944 is of no consequence and is no more than a scrap of paper. The Trust as originally established by the deed dated 28-11-1941 remained unchanged or unaffected by the latter document dated 1-7-1944 17. As the trust deed dated 1-7-1944 is of no consequence, now what has to be seen is whether, by reason of the partnership deed dated 28-11-1941, the Trust which has been constituted is a public charitable trust or not. This question was gone into by the Madras High Court when it had to decide an appeal arising out of the judgment in a suit instituted by Nanjappa Chettiar, one of the partners of the firm which had established the Trust. In this suit for accounts which was filed by Nanjappa Chettiar, one of the pleas which was taken related to the genuineness of the Trust. The contention of the plaintiff was that no valid or genuine trust was created or established by the deed dated 28-11-1941 and on the dissolution of partnership, the assets of the Trust were also liable to be distributed amongst the partners. This contention not having been accepted by the trial court, the same was reagitated in appeal before the Madras High Court. A Division Bench of that Court by its judgment dated 26-10-1951 in V. S. Nanjappa Chettiar v. K. Rajgopal Chetty (OS (Appeal) No. 69 of 1949) held that the dedication for religious and charitable object by the deed dated 28-11-1941, after the power to revoke had been withdrawn, was absolute and irrevocable. It concluded that there was a real dedication to charity and the plaintiff therein was not entitled to a share in the funds set apart for charity or in the properties purchased therefrom18. In view of the aforesaid decision, it can be safely concluded that an irrevocable trust had been established by the partnership deed dated 28-11-1941. The objects of the Trust are contained in clause (8) of the deed and, in our opinion, none of the objects contained therein can be regarded as non-charitable. The Tribunal, therefore, was right in considering the said objects and in coming to the conclusion that the appellant was a public charitable trust. In view of the aforesaid discussion, we would answer all the six questions of law referred by the Tribunal in the affirmative and in favour of the assessee | 1[ds]16. We are in full agreement with the principle stated in the aforesaid passage and we hold that the trustee had no authority or jurisdiction to execute a fresh trust deed and the document datedis of no consequence and is no more than a scrap of paper. The Trust as originally established by the deed datedremained unchanged or unaffected by the latter document datedAs the trust deed datedis of no consequence, now what has to be seen is whether, by reason of the partnership deed datedthe Trust which has been constituted is a public charitable trust or not. This question was gone into by the Madras High Court when it had to decide an appeal arising out of the judgment in a suit instituted by Nanjappa Chettiar, one of the partners of the firm which had established the Trust. In this suit for accounts which was filed by Nanjappa Chettiar, one of the pleas which was taken related to the genuineness of the Trust. The contention of the plaintiff was that no valid or genuine trust was created or established by the deed datedand on the dissolution of partnership, the assets of the Trust were also liable to be distributed amongst the partners. This contention not having been accepted by the trial court, the same was reagitated in appeal before the Madras High Court. A Division Bench of that Court by its judgment datedin V. S. Nanjappa Chettiar v. K. Rajgopal Chetty (OS (Appeal) No. 69 of 1949) held that the dedication for religious and charitable object by the deed datedafter the power to revoke had been withdrawn, was absolute and irrevocable. It concluded that there was a real dedication to charity and the plaintiff therein was not entitled to a share in the funds set apart for charity or in the properties purchased therefrom18. In view of the aforesaid decision, it can be safely concluded that an irrevocable trust had been established by the partnership deed datedThe objects of the Trust are contained in clause (8) of the deed and, in our opinion, none of the objects contained therein can be regarded asThe Tribunal, therefore, was right in considering the said objects and in coming to the conclusion that the appellant was a public charitable trust. In view of the aforesaid discussion, we would answer all the six questions of law referred by the Tribunal in the affirmative and in favour of the assessee | 1 | 3,667 | 439 | ### 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:
became an irrevocable trust. The powers of the trustee in respect of the said Trust continued to remain the same as set out in clause (8) of the partnership deed which has been extracted hereinabove. The said trustee was only required to carry out the objects of the Trust and spend the trust funds for charitable purposes in the manner indicated therein. No power was given to the trustee to amend, alter, vary or change in any manner the objects of the Trust as created in 1941. The result of this is that neither the trustee nor the founders could bring about any change in the objects of the Trust as set out in their partnership deed dated 28-11-1941. This being so, the document dated 1-7-1944 executed by the trustee was clearly without any authority and was non est. He had no right or jurisdiction to execute the document of 1-7-1944 which in effect changed the objects of the Trust radically and in fact converted what was meant to be a public charitable trust to a non-charitable trust as held by this Court in East India Industries case when the deed dated 1-7-1944 was construed by it. It will be useful at this juncture to refer to the following passage from Tudor on Charities (6th Edn.). At p. 131, it is stated as follows "When a charity has been founded and trusts have been declared, the founder has no power to revoke, vary or add to the trusts. This is so irrespective of whether the trusts have been declared by an individual, or by a body of subscribers, or by the trustees." * 15. When the founders of the Trust have no power to alter or vary the terms of the Trust, a trustee appointed to manage the properties of the Trust for securing its object can under no circumstances be regarded as having such a power specially when the original deed dated 28-11-1941 does not bestow such power on him. Such a question also came up for consideration before the Madras High Court in Thanthi Trust v. ITO (Mad)). Dealing with the question whether the founder of a trust had power to revoke the same, at pp. 284-85, this Court observed as follows "It is well established that the subsequent acts and conduct of the founder of the trust cannot affect the trust if there has been already a complete dedication. (Vide Krishnaswamy Pillai v. Kothandarama Naicken ( 1914 (27) MLJ 582 : 25 IC 428 (Mad)), Sunder Singh Mallah Singh Sanatan Dharam High School Trust v. Managing Committee ( 1938 (1) MLJ 359 : 1938 AIR(PC) 73)) and Gokuldas Jumnadas and Co. v. Lakshminarasimhalu Chetti 1940 (2) MLJ 409 : 1940 AIR(Mad) 920). If a valid and complete dedication had taken place, there would be no power left in the founder to revoke and no assertion on his part or the subsequent conduct of himself or his descendants contrary to such dedication would have the effect of nullifying it. If the trust had been really and validly created, any deviation by the founder of the trust or the trustees from the declared purposes would amount only to a breach of trust and would not detract from the declaration of trust. Therefore, the subsequent conduct of the founder in dealing with the funds of the trust long after the creation of the trust may not put an end to the trust itself." * 16. We are in full agreement with the principle stated in the aforesaid passage and we hold that the trustee had no authority or jurisdiction to execute a fresh trust deed and the document dated 1-7-1944 is of no consequence and is no more than a scrap of paper. The Trust as originally established by the deed dated 28-11-1941 remained unchanged or unaffected by the latter document dated 1-7-1944 17. As the trust deed dated 1-7-1944 is of no consequence, now what has to be seen is whether, by reason of the partnership deed dated 28-11-1941, the Trust which has been constituted is a public charitable trust or not. This question was gone into by the Madras High Court when it had to decide an appeal arising out of the judgment in a suit instituted by Nanjappa Chettiar, one of the partners of the firm which had established the Trust. In this suit for accounts which was filed by Nanjappa Chettiar, one of the pleas which was taken related to the genuineness of the Trust. The contention of the plaintiff was that no valid or genuine trust was created or established by the deed dated 28-11-1941 and on the dissolution of partnership, the assets of the Trust were also liable to be distributed amongst the partners. This contention not having been accepted by the trial court, the same was reagitated in appeal before the Madras High Court. A Division Bench of that Court by its judgment dated 26-10-1951 in V. S. Nanjappa Chettiar v. K. Rajgopal Chetty (OS (Appeal) No. 69 of 1949) held that the dedication for religious and charitable object by the deed dated 28-11-1941, after the power to revoke had been withdrawn, was absolute and irrevocable. It concluded that there was a real dedication to charity and the plaintiff therein was not entitled to a share in the funds set apart for charity or in the properties purchased therefrom18. In view of the aforesaid decision, it can be safely concluded that an irrevocable trust had been established by the partnership deed dated 28-11-1941. The objects of the Trust are contained in clause (8) of the deed and, in our opinion, none of the objects contained therein can be regarded as non-charitable. The Tribunal, therefore, was right in considering the said objects and in coming to the conclusion that the appellant was a public charitable trust. In view of the aforesaid discussion, we would answer all the six questions of law referred by the Tribunal in the affirmative and in favour of the assessee
### Response:
1
### Explanation:
16. We are in full agreement with the principle stated in the aforesaid passage and we hold that the trustee had no authority or jurisdiction to execute a fresh trust deed and the document datedis of no consequence and is no more than a scrap of paper. The Trust as originally established by the deed datedremained unchanged or unaffected by the latter document datedAs the trust deed datedis of no consequence, now what has to be seen is whether, by reason of the partnership deed datedthe Trust which has been constituted is a public charitable trust or not. This question was gone into by the Madras High Court when it had to decide an appeal arising out of the judgment in a suit instituted by Nanjappa Chettiar, one of the partners of the firm which had established the Trust. In this suit for accounts which was filed by Nanjappa Chettiar, one of the pleas which was taken related to the genuineness of the Trust. The contention of the plaintiff was that no valid or genuine trust was created or established by the deed datedand on the dissolution of partnership, the assets of the Trust were also liable to be distributed amongst the partners. This contention not having been accepted by the trial court, the same was reagitated in appeal before the Madras High Court. A Division Bench of that Court by its judgment datedin V. S. Nanjappa Chettiar v. K. Rajgopal Chetty (OS (Appeal) No. 69 of 1949) held that the dedication for religious and charitable object by the deed datedafter the power to revoke had been withdrawn, was absolute and irrevocable. It concluded that there was a real dedication to charity and the plaintiff therein was not entitled to a share in the funds set apart for charity or in the properties purchased therefrom18. In view of the aforesaid decision, it can be safely concluded that an irrevocable trust had been established by the partnership deed datedThe objects of the Trust are contained in clause (8) of the deed and, in our opinion, none of the objects contained therein can be regarded asThe Tribunal, therefore, was right in considering the said objects and in coming to the conclusion that the appellant was a public charitable trust. In view of the aforesaid discussion, we would answer all the six questions of law referred by the Tribunal in the affirmative and in favour of the assessee
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Duke and Sons Vs. Union of India | Counsel, the order of the Assistant Collector declining to grant deduction in respect of transport cost of return of empty bottles to the factory cannot be sustained. ( 4 ) MRS. Mody then complained that the Assistant Collector was in error in disallowing the claim in respect of trade discount (rebate on cash sales). The learned Counsel urged that by letter dated February 1, 1984, it was pointed out to the Assistant Collector that the rebate is granted to a customer for a period of over 30 years. The letter further recites that outlets stocking Dukes beverages and generating a minimum sale of 1,800 dozen annually are eligible for this rebate and this rebate is restricted to the metropolitan city of Bombay. The Percentage of trade discount is also determined as 5% in respect of soda and flavoured aerated beverages and 3% in respect of ready to serve beverages. The letter further recites that the rebate books are given to the customers to write daily purchases and to hand over the counter-foils of the salesman concerned. Mrs. Mody submitted that the Company had offered to produce the vouchers and ledgers before the Assistant Collector and the accuracy of the claim was examined by the Department but rebates was disallowed on the claim was examined by the Department but rebate was disallowed on the ground that the amounts of rebate are not certain at the time of clearance from the factory gate. The Assistant Collector felt that the rebate is not in the nature of discount but is in the nature of incentive and granted after the invoices are raised and the removal of the goods was complete. Mrs. Mody submits and, in our judgment, with considerable merit that the Assistant collector has failed to properly examine the claim made by the Company. The learned Counsel urged that the Company has presented a specific case before the Assistant Collector that the rebate is granted for a period of over 30 years and the percentage of trade discount is fixed and the vouchers and ledger accounts are maintained in respect of grant of rebate. Mrs. Mody submitted that it is well- settled that the question as to whether the rebate is granted and whether it forms normal discount is to be determined with reference to the facts of every case and it is not permissible to overlook the factual data produced by the Company and deny the deduction claimed. In our judgment, the submission is correct and deserves acceptance. It is necessary for the Assistant Collector to examine whether the claim made by the Company that the rebate was granted for a period over 30 years at fixed rate and is reflected in the vouchers and account books is correct or otherwise. The Assistant Collector will examine the record relied upon by the company and then determine afresh whether a trade discount should be allowed or otherwise. It is, therefore, necessary to remit the proceedings back to the Assistant Collector for determination of this aspect.( 5 ) MRS. Mody then submitted that the Assistant Collector was in error in disallowing the distributors expenses claimed by the Company. We are unable to find any merit in the contention. The Company claimed that the distributors expenses were towards expenses of 25 independent persons appointed by the Company and who were responsible for ensuring that the empty bottles and crates are returned. The learned Counsel urged that such distributors were paid 2 to 2 1/2% of the net sales value for ensuring the return of empty bottles and crates. It was contended that the task of distributor was, therefore, to fulfill the sales transaction and not to promote the sales. The Assistant Collector turned down the contention by holding that the claim made in respect of sales promotion and the decision of the Supreme Court in Bombay Tyer international specifically provides that such expenses cannot be deducted but are to be included. Mrs. Mody submitted that the Company will be able to produce evidence to establish that 2 1/2% of net sale value was paid towards distributors expenses for return of bottles and crates. We enquired from the learned counsel as to whether any argument is entered into with distributors providing for this kind of payment and the reply was that there is no agreement with the distributors. In theses circumstances, we are unable to accede to the submission of the learned counsel that the finding of the Assistant Collector on this aspect suffers from infirmity. In our judgment, the Assistant Collector has rightly held that the amount claimed is in respect of promotion of sales and will have to be included. ( 6 ) THE last items in respect of which Mrs. Mody made grievance is commission to cartmen (Delivery Department expenses). The learned Counsel urged that the commission paid to cartmen is in respect of transportation work and as transportation costs are liable to be excluded while determining the assessable value, the Assistant Collector was in error in disallowing commission to cartmen. The Assistant Collector held that in the light of the decision of the supreme Court reported in 1986 (23) E. L. T. 6 [mopeds (India) v. assistant Collector of central excise], it is not permissible to grant deduction on this count. We enquired from Mrs. Mody as to why the commission to cartmen is not included in the transportation cost and there was no satisfactory answer. It was urged that commission was paid to the purpose of loading bottles and crates in pursuance of the agreement entered into with the Employees Union. The question is not why the payment is made to the cartmen but why it was not included as part of the transport cost. The fact that the Company had not earlier included the expenses for determination of assessable value makes it doubtful whether the amount was really towards transportation cost. In our judgment, the finding on this aspect of the Assistant Collector is not required to be disturbed. | 1[ds]In our judgment, the submission is correct and deserves acceptance. It is necessary for the Assistant Collector to examine whether the claim made by the Company that the rebate was granted for a period over 30 years at fixed rate and is reflected in the vouchers and account books is correct or otherwise. The Assistant Collector will examine the record relied upon by the company and then determine afresh whether a trade discount should be allowed or otherwise. It is, therefore, necessary to remit the proceedings back to the Assistant Collector for determination of thisare unable to find any merit in theenquired from the learned counsel as to whether any argument is entered into with distributors providing for this kind of payment and the reply was that there is no agreement with the distributors. In theses circumstances, we are unable to accede to the submission of the learned counsel that the finding of the Assistant Collector on this aspect suffers from infirmity. In our judgment, the Assistant Collector has rightly held that the amount claimed is in respect of promotion of sales and will have to bequestion is not why the payment is made to the cartmen but why it was not included as part of the transport cost. The fact that the Company had not earlier included the expenses for determination of assessable value makes it doubtful whether the amount was really towards transportation cost. In our judgment, the finding on this aspect of the Assistant Collector is not required to be disturbed. | 1 | 1,684 | 272 | ### 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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Counsel, the order of the Assistant Collector declining to grant deduction in respect of transport cost of return of empty bottles to the factory cannot be sustained. ( 4 ) MRS. Mody then complained that the Assistant Collector was in error in disallowing the claim in respect of trade discount (rebate on cash sales). The learned Counsel urged that by letter dated February 1, 1984, it was pointed out to the Assistant Collector that the rebate is granted to a customer for a period of over 30 years. The letter further recites that outlets stocking Dukes beverages and generating a minimum sale of 1,800 dozen annually are eligible for this rebate and this rebate is restricted to the metropolitan city of Bombay. The Percentage of trade discount is also determined as 5% in respect of soda and flavoured aerated beverages and 3% in respect of ready to serve beverages. The letter further recites that the rebate books are given to the customers to write daily purchases and to hand over the counter-foils of the salesman concerned. Mrs. Mody submitted that the Company had offered to produce the vouchers and ledgers before the Assistant Collector and the accuracy of the claim was examined by the Department but rebates was disallowed on the claim was examined by the Department but rebate was disallowed on the ground that the amounts of rebate are not certain at the time of clearance from the factory gate. The Assistant Collector felt that the rebate is not in the nature of discount but is in the nature of incentive and granted after the invoices are raised and the removal of the goods was complete. Mrs. Mody submits and, in our judgment, with considerable merit that the Assistant collector has failed to properly examine the claim made by the Company. The learned Counsel urged that the Company has presented a specific case before the Assistant Collector that the rebate is granted for a period of over 30 years and the percentage of trade discount is fixed and the vouchers and ledger accounts are maintained in respect of grant of rebate. Mrs. Mody submitted that it is well- settled that the question as to whether the rebate is granted and whether it forms normal discount is to be determined with reference to the facts of every case and it is not permissible to overlook the factual data produced by the Company and deny the deduction claimed. In our judgment, the submission is correct and deserves acceptance. It is necessary for the Assistant Collector to examine whether the claim made by the Company that the rebate was granted for a period over 30 years at fixed rate and is reflected in the vouchers and account books is correct or otherwise. The Assistant Collector will examine the record relied upon by the company and then determine afresh whether a trade discount should be allowed or otherwise. It is, therefore, necessary to remit the proceedings back to the Assistant Collector for determination of this aspect.( 5 ) MRS. Mody then submitted that the Assistant Collector was in error in disallowing the distributors expenses claimed by the Company. We are unable to find any merit in the contention. The Company claimed that the distributors expenses were towards expenses of 25 independent persons appointed by the Company and who were responsible for ensuring that the empty bottles and crates are returned. The learned Counsel urged that such distributors were paid 2 to 2 1/2% of the net sales value for ensuring the return of empty bottles and crates. It was contended that the task of distributor was, therefore, to fulfill the sales transaction and not to promote the sales. The Assistant Collector turned down the contention by holding that the claim made in respect of sales promotion and the decision of the Supreme Court in Bombay Tyer international specifically provides that such expenses cannot be deducted but are to be included. Mrs. Mody submitted that the Company will be able to produce evidence to establish that 2 1/2% of net sale value was paid towards distributors expenses for return of bottles and crates. We enquired from the learned counsel as to whether any argument is entered into with distributors providing for this kind of payment and the reply was that there is no agreement with the distributors. In theses circumstances, we are unable to accede to the submission of the learned counsel that the finding of the Assistant Collector on this aspect suffers from infirmity. In our judgment, the Assistant Collector has rightly held that the amount claimed is in respect of promotion of sales and will have to be included. ( 6 ) THE last items in respect of which Mrs. Mody made grievance is commission to cartmen (Delivery Department expenses). The learned Counsel urged that the commission paid to cartmen is in respect of transportation work and as transportation costs are liable to be excluded while determining the assessable value, the Assistant Collector was in error in disallowing commission to cartmen. The Assistant Collector held that in the light of the decision of the supreme Court reported in 1986 (23) E. L. T. 6 [mopeds (India) v. assistant Collector of central excise], it is not permissible to grant deduction on this count. We enquired from Mrs. Mody as to why the commission to cartmen is not included in the transportation cost and there was no satisfactory answer. It was urged that commission was paid to the purpose of loading bottles and crates in pursuance of the agreement entered into with the Employees Union. The question is not why the payment is made to the cartmen but why it was not included as part of the transport cost. The fact that the Company had not earlier included the expenses for determination of assessable value makes it doubtful whether the amount was really towards transportation cost. In our judgment, the finding on this aspect of the Assistant Collector is not required to be disturbed.
### Response:
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In our judgment, the submission is correct and deserves acceptance. It is necessary for the Assistant Collector to examine whether the claim made by the Company that the rebate was granted for a period over 30 years at fixed rate and is reflected in the vouchers and account books is correct or otherwise. The Assistant Collector will examine the record relied upon by the company and then determine afresh whether a trade discount should be allowed or otherwise. It is, therefore, necessary to remit the proceedings back to the Assistant Collector for determination of thisare unable to find any merit in theenquired from the learned counsel as to whether any argument is entered into with distributors providing for this kind of payment and the reply was that there is no agreement with the distributors. In theses circumstances, we are unable to accede to the submission of the learned counsel that the finding of the Assistant Collector on this aspect suffers from infirmity. In our judgment, the Assistant Collector has rightly held that the amount claimed is in respect of promotion of sales and will have to bequestion is not why the payment is made to the cartmen but why it was not included as part of the transport cost. The fact that the Company had not earlier included the expenses for determination of assessable value makes it doubtful whether the amount was really towards transportation cost. In our judgment, the finding on this aspect of the Assistant Collector is not required to be disturbed.
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Vikrant Tyres Ltd Vs. First Income Tax Officer, Mysore | authority which went in favour of the assessee, the Revenue refunded the amount due as per the said order of authority. Thereafter, when the matter was taken up ultimately in Reference to the High Court and the assessee lost the case, fresh demand notices were issued and it is also an admitted fact that in satisfaction of the said demand notices the appellant had paid the amount as demanded within the time stipulated therein. The question, therefore, is : whether the Revenue is entitled to demand interest in regard to the amount which was refunded to the assessee by virtue of the judgment of the appellate authority and which was re-paid to the Revenue after decision in the Reference by the High Court on fresh demand notices being issued to the assessee ? Admittedly, on a literal meaning of the provisions of Section 220(2) of the Act, such a demand for interest cannot be made. The High Court by a liberal interpretation of the said Section and relying upon Section 3 of the Validation Act has held that the Revenue is entitled to invoke Section 220(2) of the Act for the purpose of demanding interest on such retention of money. 9. We are not in agreement with the High Court on the interpretation p0laced by it on Section 220(2) of the Act in regard to the right of the Revenue to demand interest in a situation where the assessee has promptly satisfied the demand made by the Revenue in regard to the tax originally assessed. 10. It is a settled principle in law that the Courts while construing Revenue Acts have to give a fair and reasonable construction to the language of a Statute without leaning to one side or the other, meaning thereby that no tax or levy can be imposed on a subject by an Act of Parliament without the words of the Statute clearly showing an intention to lay the burden on the subject. In this process, the Courts must adhere to the words of the Statute and the so-called equitable construction of those words of the Statute is not permissible. The task of the Court is to construe the provisions of the taxing enactments according to the ordinary and natural meaning of the language used and then to apply that meaning to the facts of the case and in that process if the tax-payer is brought within the net he is caught, otherwise he has to go free. This principle in law is settled by this Court in Indian Carbon Ltd. and others v. State of Assam, 1997(6) SCC 479 wherein this Court held "Interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf." A Constitution Bench of this Court speaking through one of us (Hon. Bharucha, J.) in the case of V.V.S. Sugars v. Government of A.P. and others, 1999(4) SCC 192 reiterated the proposition laid down in the India Carbon Ltd. case (supra) in the following words : "The Act in question is a taxing statute and, therefore, must be interpreted as it reads, with no additions and no subtractions, on the ground of legislative intendment or otherwise." If we apply this principle in interpreting Section 220 of the Act, we find that the condition precedent for invoking the said Section is only if there is a default in payment of amount demanded under a notice by the Revenue within the time stipulated therein and if such a demand is not satisfied then Section 220(2) can be invoked. 11. The High Court also fell in error in relying on Section 3 of the Validation Act to construe Section 220(2) in the manner in which it has done in the impugned judgment. Section 3 of the Validation Act, in our opinion, cannot be relied upon to construe the authority of the Revenue to demand interest under Section 220 of the Act. The said Section was enacted to cope up with a different fact-situation. That Section only revives the old demand notice which had never been satisfied by the assessee and which notice got quashed during some stage of the challenge and finally the said quashed notice gets restored by an order of a higher forum. In such situation, Section 3 of the Validation Act restored the original demand notice which was never satisfied by the assessee and the said Section does away with the need to issue a fresh notice. Beyond that that Section cannot be resorted to for reviving a demand notice which is already fully satisfied. 12. In a similar fact-situation, a Division Bench of the Kerala High Court in I.T.O. v. A.V. Thomas and Company, 1986(160) ITR 818 had held that the condition precedent for invoking Section 220(2) is that even after the notice of demand under Section 156 and after a further period of 35 days as provided under Section 220(1), the assessee should continue as a defaulter in the matter of payment of tax demanded. It further held that only in case the assessee defaults in payment of tax assessed, 35 days after the notice of demand under Section 156, the liability to pay interest accrues. In that case also, admittedly, the assessee had paid the tax when he received the demand notice under Section 156, hence, the High Court held that the requirements under Section 220(2) for attracting the liability to pay interest did not exist. 13. We are in agreement with the said view of the Kerala High Court. Though this judgment was brought to the notice of the Karnataka High Court in the impugned judgment, the said High Court thought it fit not to place reliance on the same which, in our opinion, is erroneous. 14. In the light of the above, we are of the opinion that Section 220(2) of the Act cannot be invoked to demand any interest from the appellant for the assessment years in question. | 1[ds]9. We are not in agreement with the High Court on the interpretation p0laced by it on Section 220(2) of the Act in regard to the right of the Revenue to demand interest in a situation where the assessee has promptly satisfied the demand made by the Revenue in regard to the tax originallywe apply this principle in interpreting Section 220 of the Act, we find that the condition precedent for invoking the said Section is only if there is a default in payment of amount demanded under a notice by the Revenue within the time stipulated therein and if such a demand is not satisfied then Section 220(2) can besuch situation, Section 3 of the Validation Act restored the original demand notice which was never satisfied by the assessee and the said Section does away with the need to issue a fresh notice. Beyond that that Section cannot be resorted to for reviving a demand notice which is already fully satisfied.In a similara Division Bench of the Kerala High Court in I.T.O. v. A.V. Thomas and Company, 1986(160) ITR 818 had held that the condition precedent for invoking Section 220(2) is that even after the notice of demand under Section 156 and after a further period of 35 days as provided under Section 220(1), the assessee should continue as a defaulter in the matter of payment of tax demanded. It further held that only in case the assessee defaults in payment of tax assessed, 35 days after the notice of demand under Section 156, the liability to pay interest accrues. In that case also, admittedly, the assessee had paid the tax when he received the demand notice under Section 156, hence, the High Court held that the requirements under Section 220(2) for attracting the liability to pay interest did not exist.We are in agreement with the said view of the Kerala High Court. Though this judgment was brought to the notice of the Karnataka High Court in the impugned judgment, the said High Court thought it fit not to place reliance on the same which, in our opinion, is erroneous.In the light of the above, we are of the opinion that Section 220(2) of the Act cannot be invoked to demand any interest from the appellant for the assessment years in question. | 1 | 2,274 | 432 | ### Instruction:
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authority which went in favour of the assessee, the Revenue refunded the amount due as per the said order of authority. Thereafter, when the matter was taken up ultimately in Reference to the High Court and the assessee lost the case, fresh demand notices were issued and it is also an admitted fact that in satisfaction of the said demand notices the appellant had paid the amount as demanded within the time stipulated therein. The question, therefore, is : whether the Revenue is entitled to demand interest in regard to the amount which was refunded to the assessee by virtue of the judgment of the appellate authority and which was re-paid to the Revenue after decision in the Reference by the High Court on fresh demand notices being issued to the assessee ? Admittedly, on a literal meaning of the provisions of Section 220(2) of the Act, such a demand for interest cannot be made. The High Court by a liberal interpretation of the said Section and relying upon Section 3 of the Validation Act has held that the Revenue is entitled to invoke Section 220(2) of the Act for the purpose of demanding interest on such retention of money. 9. We are not in agreement with the High Court on the interpretation p0laced by it on Section 220(2) of the Act in regard to the right of the Revenue to demand interest in a situation where the assessee has promptly satisfied the demand made by the Revenue in regard to the tax originally assessed. 10. It is a settled principle in law that the Courts while construing Revenue Acts have to give a fair and reasonable construction to the language of a Statute without leaning to one side or the other, meaning thereby that no tax or levy can be imposed on a subject by an Act of Parliament without the words of the Statute clearly showing an intention to lay the burden on the subject. In this process, the Courts must adhere to the words of the Statute and the so-called equitable construction of those words of the Statute is not permissible. The task of the Court is to construe the provisions of the taxing enactments according to the ordinary and natural meaning of the language used and then to apply that meaning to the facts of the case and in that process if the tax-payer is brought within the net he is caught, otherwise he has to go free. This principle in law is settled by this Court in Indian Carbon Ltd. and others v. State of Assam, 1997(6) SCC 479 wherein this Court held "Interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf." A Constitution Bench of this Court speaking through one of us (Hon. Bharucha, J.) in the case of V.V.S. Sugars v. Government of A.P. and others, 1999(4) SCC 192 reiterated the proposition laid down in the India Carbon Ltd. case (supra) in the following words : "The Act in question is a taxing statute and, therefore, must be interpreted as it reads, with no additions and no subtractions, on the ground of legislative intendment or otherwise." If we apply this principle in interpreting Section 220 of the Act, we find that the condition precedent for invoking the said Section is only if there is a default in payment of amount demanded under a notice by the Revenue within the time stipulated therein and if such a demand is not satisfied then Section 220(2) can be invoked. 11. The High Court also fell in error in relying on Section 3 of the Validation Act to construe Section 220(2) in the manner in which it has done in the impugned judgment. Section 3 of the Validation Act, in our opinion, cannot be relied upon to construe the authority of the Revenue to demand interest under Section 220 of the Act. The said Section was enacted to cope up with a different fact-situation. That Section only revives the old demand notice which had never been satisfied by the assessee and which notice got quashed during some stage of the challenge and finally the said quashed notice gets restored by an order of a higher forum. In such situation, Section 3 of the Validation Act restored the original demand notice which was never satisfied by the assessee and the said Section does away with the need to issue a fresh notice. Beyond that that Section cannot be resorted to for reviving a demand notice which is already fully satisfied. 12. In a similar fact-situation, a Division Bench of the Kerala High Court in I.T.O. v. A.V. Thomas and Company, 1986(160) ITR 818 had held that the condition precedent for invoking Section 220(2) is that even after the notice of demand under Section 156 and after a further period of 35 days as provided under Section 220(1), the assessee should continue as a defaulter in the matter of payment of tax demanded. It further held that only in case the assessee defaults in payment of tax assessed, 35 days after the notice of demand under Section 156, the liability to pay interest accrues. In that case also, admittedly, the assessee had paid the tax when he received the demand notice under Section 156, hence, the High Court held that the requirements under Section 220(2) for attracting the liability to pay interest did not exist. 13. We are in agreement with the said view of the Kerala High Court. Though this judgment was brought to the notice of the Karnataka High Court in the impugned judgment, the said High Court thought it fit not to place reliance on the same which, in our opinion, is erroneous. 14. In the light of the above, we are of the opinion that Section 220(2) of the Act cannot be invoked to demand any interest from the appellant for the assessment years in question.
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9. We are not in agreement with the High Court on the interpretation p0laced by it on Section 220(2) of the Act in regard to the right of the Revenue to demand interest in a situation where the assessee has promptly satisfied the demand made by the Revenue in regard to the tax originallywe apply this principle in interpreting Section 220 of the Act, we find that the condition precedent for invoking the said Section is only if there is a default in payment of amount demanded under a notice by the Revenue within the time stipulated therein and if such a demand is not satisfied then Section 220(2) can besuch situation, Section 3 of the Validation Act restored the original demand notice which was never satisfied by the assessee and the said Section does away with the need to issue a fresh notice. Beyond that that Section cannot be resorted to for reviving a demand notice which is already fully satisfied.In a similara Division Bench of the Kerala High Court in I.T.O. v. A.V. Thomas and Company, 1986(160) ITR 818 had held that the condition precedent for invoking Section 220(2) is that even after the notice of demand under Section 156 and after a further period of 35 days as provided under Section 220(1), the assessee should continue as a defaulter in the matter of payment of tax demanded. It further held that only in case the assessee defaults in payment of tax assessed, 35 days after the notice of demand under Section 156, the liability to pay interest accrues. In that case also, admittedly, the assessee had paid the tax when he received the demand notice under Section 156, hence, the High Court held that the requirements under Section 220(2) for attracting the liability to pay interest did not exist.We are in agreement with the said view of the Kerala High Court. Though this judgment was brought to the notice of the Karnataka High Court in the impugned judgment, the said High Court thought it fit not to place reliance on the same which, in our opinion, is erroneous.In the light of the above, we are of the opinion that Section 220(2) of the Act cannot be invoked to demand any interest from the appellant for the assessment years in question.
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Majestic Infracon Private Limited Vs. Etisalat Mauritius Limited, Republic of Mauritius & Others | orders along with these applications which are the subject matter of the appeals and by an ex parte interim order made on July 13, 1981, the learned company court judge appointed a Commissioner and that was questioned in the appeal. One of the objections of the appellants was that the learned judge had no jurisdiction to pass an interim order under section 443(1)(c) at the stage of admission of the winding-up petition and that only at the time of the hearing of the winding-up petition the company court can make interim orders. While rejecting this contention, the Bench has observed (at page 233)."In our judgment, the investiture of the court with the winding up jurisdiction, as of other powers, must be interpreted as adding to the gamut of the courts existing jurisdiction. It would be a mistake to interpret the statute as stripping the court of all his powers first, and then conferring on it only such powers as are permitted, say by section 443(1) and other related provisions. We are satisfied that having regard to the scheme of the Companies Act, we cannot read any provision in the statute which relates to jurisdiction of courts, as being in derogation of the full plenitude of the courts powers under the common law, unless we can find in it a clearly expressed or equally clearly implicit, bar of restriction of the courts jurisdiction."176. In our view, the power of the company court to pass interim orders commences from the time the petition for winding-up is presented / lodged / filed. There are cases where it is necessary to pass urgent interim orders the moment the petition is filed. This would be so irrespective of whether the petition for winding up is on the ground that the company is unable to pay its dues or on the ground that it is just and equitable to do so.177. We, however, wish to make it clear that we do not approve of the observations of the Division Bench of the Madras High Court which follow the extracts quoted above. These observations were quoted by the Division Bench from an earlier judgment in a case between the same parties reported in (1983) II MLJ 227. For instance we, with respect, do not agree with the observation that there was a folly on the part of the draftsman of section 443. Nor do we agree that section 443(1)(b) is an insane provision or that the draftsman there was dense.178. This judgment was followed by a learned single Judge of the Karnataka High Court in Smt. Usha R. Shetty & Ors. v. Radeesh Rubber Pvt. Ltd. & Anr. 1995 84 Com. Cases 602. The learned Judge held as under :"Learned counsel, referring to section 536(2) of the Companies Act, has submitted that no transfer of the assets during the pendency of the winding up petition should be effected. As per section 536(2) in the case of winding up by or subject to the supervision of the court, any disposition of the property (including actionable claims) of the company, and any transfer of shares in the company or alteration in the status of its members, made after the commencement of the winding up, shall, unless the court otherwise orders, be void. Thus, it clearly indicates that the court has power to order transfer or to sell the assets of the company when the winding up petition is pending. There is no inherent indication in the section so as to warrant the conclusion that this power can be exercised only after the winding up order is made. It is difficult to spell out the limits on the jurisdiction of the courts from the opening words in the section, viz., "in the case of winding up" so as to mean "only if the company is ordered to be wound up". It would be reading more than what the Legislature intended in the said wording. I am of the view that the court can exercise jurisdiction under section 536(2) of the Act even before the winding up order is made. The fact that the order becomes otiose, if the application for winding up is ultimately rejected, does not take away the jurisdiction. Therefore, even before the winding up order is made, the jurisdiction of the court can be invoked under section 536(2) of the Act for permission for disposal of the assets of the company. The contention of Mr. Jayaram, learned counsel appearing for the second respondent, in view of the decision of the Supreme Court as well as the decision of the High Court referred to above, is unsustainable.I am also of the view that, at the stage of entertaining the winding up petition or admitting the winding up petition and on further hearing of the respondent after deciding to entertain the winding up petition, the court has inherent power to do that which is necessary to advance the cause of justice or make such orders which are necessary to meet the ends of justice. This inherent power of the court is not taken away or in any way restricted by section 443(1) of the Companies Act."We are in respectful agreement with the learned Judge. We, however, express no opinion on the observation that an order of sale would be otiose if the application for winding up is rejected.179. The judgment of the Division Bench of the Punjab & Haryana High Court in Altos India Ltd. v. Bharati Telecom Ltd. (2001) 103 Com. Cases 6, does support Mr. Madons submission. In that case, the learned company Judge had ordered the sale of the properties of the company even before the company was actually wound up on the ground that the company was heavily indebted to various financial institutions and that the sale of the machinery even before the final order of winding up would benefit all the parties concerned, including the company by reducing its liability to the maximum extent. The issue of law, however, was not discussed in detail. | 0[ds]4. The petitioner contended that it is just and equitable to wind up the company,on the ground that the substratum of the company has almost completely been eroded, that there is a deadlock in the management of the company and on the Board of Directors of the company and that there is a complete lack of uberrimafides between the main shareholders of the company viz., the petitioner and the appellant, which is a glorifiedpartnership.We have found each of these submissions to be wellappellant firstly denied the aforesaid contentions although they were unable to deny the main facts viz. the cancellation of the 2G licences, the extent of the indebtedness of the company and the existence of a deadlock. Inthe alternative, it was contended that even assuming that the petitioners case is held to be well founded, the petition ought to be dismissed in view of the conduct of the petitioner, both before and after the petition wasfiled. We have found no substance in the alternate submissions either.The petitioner has made out more than just a strong prima facie case that the substratum of the company is completely eroded and that there is almost no hope of reviving the company; that there is a complete loss of faith between the main shareholders of the company viz. the petitioner and the appellant and that there is a complete deadlock in the management and on the Board of Directors of the company.The order admitting the petition must be sustained on these three grounds which we have held require further consideration at the final hearing of the petition.30(A)(i) We referred earlier to the public interest litigations and the judgment of the Supreme Court in respect of the allocation of the 2G spectrum. The Supreme Court, by its judgment dated 2nd February, 2012 in Writ Petition (Civil) No.423 of 2010 Centre for Public Interest LitigationOrs. v. Union of IndiaOrs., quashed all the 2G licences, including those allotted to theWe must clarify here that it is not necessary for the purpose of these proceedings to express any opinion about the conduct of any particular individual. The same is the subject matter of investigation by the authorities.et dated 22nd October, 2011, has also been filed,against the said Balwa and Goenka in the Court of Special Judge, CBI in what is now referred to as theSpectrum case. The same alleges various illegalities and criminal acts on their part. Criminal conspiracy on their part along with others has also been alleged. The result of the case is not material. Theh various others factors, including the judgment of the Supreme Court, prima facie, at least, is sufficient ground for the company court coming to the conclusion that the petition for winding up the company on the just and equitable ground warrantsthe case before us, the facts leading to the cancellation of the licence by the Supreme Court are relevant while deciding whether or not the company ought to be wound up on the just and equitable ground. In the present case, this fact, added to the other facts that we have referred to already, makes the case, atleast for the admission of the petition, that muchpercent of the equity shares of the petitioner is controlled by the Government of U.A.E. The Supreme Court of India having made the said observations and the regulatory authorities having taken action against the persons connected with the company would justify a Government of another country being reluctant to continue with a venture which, prima facie, at least, is tainted in respect of a predominant part of its commercial activities. The justification is greater as the petitioner joined the venture on the basis of this very activity to be undertaken on the basis of the 2G licences cancelled by the Supreme Court.34. The learned Judge rightly came to the conclusion that with the cancellation of the thirteen 2G licences, the company was left without a commercial enterprise. The 2G licences were the most valuable asset of the company. The commercial existence of the company depended on these licences. They were undoubtedly the basis on which the petitioner was pursuaded to invest a sum of over Rs.3500 crores in the company.35. The appellants denial of the company having lost its substratum is based essentially on the fact that the company still has three telephone licences viz. International Long Distance, National Long Distance and Internet Service Provider licences. It is contended that the company can carry on business utilizing these three licences.36. The appellant was unable to indicate how on the basis of the three subsisting licences the company would be able to carry on business profitably even in the distant future. Although these are business decisions which the company is entitled to assess, it is incumbent especially in such cases for the party to establish even prima facie that the company is at least likely in future to be a commercially and financially viable undertaking. Our attention has not been brought to any material which even remotely indicates the same. Nothing except a purported schemeand we use the term "purported" advisedlywhich we will refer to shortly. The petitioners investment in the company was almost entirely if not only in view of the 2G licences held by the company. It was not on the basis of the three subsisting licences. As noted by the learned Judge there has never been a proposal or plan to operate a business using these three subsisting licences. Nor is there a technical or a business plan indicating the resources required and the manner of conducting the business based on the three subsisting licences.37. An indication of the relative values of the 2G licences and the three subsisting licences is the cost of acquisition of the licences. The thirteen 2G licences were acquired at a cost of Rs.1600 crores whereas the three subsisting licences were acquired for a mere Rs.5.20 crores. The value of the three subsisting licences is merely 0.325% of the value of the 2G licences. The petitioners submission that even if the company were to commence business utilising the three subsisting licences, the costs involved in setting up the same would only generate further liabilities and the earnings in any event, would be insufficient to service the existing debts is, therefore, well founded. In the facts and circumstances of this case, the learned Judge justifiably held that it would not be in the interest of the company to even attempt to commence such business.Mr. Madon stated that only two companies had been held to be guilty of a fraud and that in the other companies which continue to function the Indian shareholders had exited.Even ignoring Mr. Madons contentions it would make no difference. The factors relevant to the financial and commercial viability of the companies are not the same. Each company has its own strengths and weaknesses. The appellant has not even attempted to indicate any similarities between the companies that continue to function despite the cancellation of the 2G licences allotted to them and the company in this case. The mere cancellation of the 2G licences is not the only factor that determines the commercial viability of an enterprise. Our attention was not invited to any material that would justify a comparison between those companies and the company before us.40. The indebtedness of the company is, as on date, over Rs. 4,500 crores. Mr.Kamdar stated that the Reliance group of companies is opposing the winding up. However, the Reliance companies have also sought repayment of amounts in excess of Rs.1700 crores.They have not given up their claim. In fact, the attempt on the part of Balwa and Goenka was to ensure repayment to the Reliance companies in priority to the other creditors. Clause 4(b)(ii) of the minutes of the meeting of the Board of Directors of the company held on 19th December, 2011, records that Balwa pointed out that the company must confirm to Reliance an undisputed amount owed to it and "make immediate payment of it". That probably is why Reliance is opposing the winding up petition. The two major creditorsStandard Chartered Bank and Citibank, to whom an amount of over Rs.2,000 crores is due, have not only not waived their claims, but have adopted proceedings to recover the same and have even sought for and obtained orders from the DRT appointing a Receiver in respect of the assets of the company. The order for Receiver has merely been suspended and that too only in view of the fact that the Authorized Person has been appointed by the company Judge. If, therefore, the appointment of the Authorized Person is revoked, the Receiver would take possession of the assets of the company in any event. It is difficult to see how in that event the company would at all be able to function. Moreover, even assuming that the company continues to function under the Receiver, there is nothing to indicate that the revenues would, even in the distant future, be sufficient to pay the dues of the company.41. The appellant had sought permission from the company Judge to bid at the fresh auction after the judgment of the Supreme Court. The learned company Judge rejected the application. The order was upheld in appeal. There is, therefore, no question of the company conducting any business on the basis of the 2G licences as the same stand cancelled. We will deal with Mr. Kamdars submissions that the company ought not to be wound up on the application of the petitioner as it had opposed the application to bid at the fresh auction later. Suffice it to state at this stage that we have rejected the contention.42. The appellant did not deny the averment in the petition that a minimum of USD 18 million was required to continue the operations by the company. It merely stated that the petitioner had made contrary submissions as in paragraph 17B of the petition the petitioner alleged that the company incurs an expense of USD 38.9 million per month. However, it is also stated that this expenditure had reduced considerably to USD 6.5 million in the month of February, 2012. This would stand further reduced considerably on account of the fact that the services of several employees have been terminated even thereafter. What is important to note is that the appellant does not even indicate the amount that would be required to continue the operations on the basis of the three subsistingMr. Kamdar relied on the following observations in InRe: Cine Industriesg Company Limited (1941) 44 BLR 387 :"Therefore on the authorities the position seems to be that the substratum of the company is deemed to be gone when (a) theof the company is gone, or (b) the object for which it was incorporated has substantially failed, or (c) it is impossible to carry on the business of the company except at a loss which has been construed by the Privy Council to mean that there is no reasonable hope that the object of trading at a profit can be attained, or (d) the existing and probable assets are insufficient to meet the existing liabilities. None of these four tests can apply to the facts of the presentThe judgment is of no assistance to the appellant.(i) As we observed earlier, the subject matter of the company is gone. Condition (a) that the subject matter of the company is gone does not imply that it must have gone entirely. It is sufficient if the court comes to the conclusion that it has substantially or almost entirely gone. It can hardly be suggested that what was meant was that even if a minuscule part of the subject matter of the company remains it cannot be said that the substratum of the company has gone. In the case before us, the thirteen 2G licences have been cancelled leaving the company with the three subsisting licence. The monetary value of the three subsisting licences is only 0.325% of the value of thirteen 2G licences. The monetary values are at least an indication of the extent of the erosion of the substratum of the company.(ii) Condition (b) refers to the object for which the company was incorporated. This condition does not apply only to the initial object for which the company was incorporated. The applicability of this principle would indeed depend upon the facts of each case. We would extend this principle to cases where an investor joins a glorified partnership in view of the main business carried on at the time of his joining. It would be necessary to establish that the main or predominant business at the time and on the basis of which the investor joined the company has substantially failed. Applying this principle to the present case it can hardly be doubted that the petitioner invested an amount of about Rs.3500 crores almost entirely if not entirely on the basis and in view of the thirteen 2G licences. The licences having been cancelled, the object for which the company was incorporated and in any event the object on the basis of which the petitioner invested over Rs.3500 crores has not merely substantially, but entirely failed.(iii) In view of what we have held regarding the financial position of the company and the lack of any prospect of revival conditions (c) and (d) are also met. That the existing and probable assets are insufficient to meet the existing liabilities is, if not admitted, established beyond doubt. The only fact relied upon by the appellant to indicate the future business prospects of the company is the purported scheme which, as we have held later, inspires no confidence.(C) The judgment, far from supporting the appellant, in fact, supports the petitioner.45.Mr. Kamdars reliance upon the judgment of the Supreme Court in MadhusudanGordhandas v. Madhu Woolen Industries Pvt. Ltd., (1971) 3 SCC 532, paragraph29 is also unfounded.Mr. Madon relied upon the judgment of a Division Bench of the Gujarat High Court in InRe: Kermeen Foods Pvt. Ltd. 1985 58, Company Cases, 156. Mr. Madon relied upon the judgment as, according to him, the facts were similar to the facts in the present case.That, however, does not carry the matter any further on the question of law.Mr. Madon relied upon the judgment of a learned single Judge of the Calcutta High Court in InRe: Darjeeling Bank Limited, AIR 1948 Cal. 335 and 1977 Company Cases, 15, in support of his submission that the absence of a statutory notice under section 434(1) (a) would not make a difference as that would only disentitle a petitioner to avail of the deeming provision under section 434(1)(a) that the company is unable to pay its debts.The judgment is irrelevant as the point before us is quite different. What Mr.Kamdar submitted was that as this is not a petition under section 433(e) i.e. an application for winding up on the ground that the company is unable to pay its debts, the financial position of the company is irrelevant.The question, therefore, is whetherthe financial position of a company is an irrelevant consideration in a petition for winding up a company on the just and equitable ground under section433(f). The submission in a matter such as this is not well founded. The petitioner does not seek to have the company wound up on the ground that it is unable to pay the debts of the petitioner. One of the grounds in support of the petition for winding up the company on the just and equitable ground is that the substratum of the company has gone. This is not, therefore, a matter where only a particular debt is in question. The matter involves the very substratum of the company. The substratum of a company having gone is a relevant ground while considering a petition for winging up a company on the just and equitable ground. The just and equitable ground may be invoked in a case where the substratum has gone, where there is a deadlock and there is a justifiable loss of confidence between the major shareholders.This brings us to the purported scheme upon which the appellant relies to contend that the company is capable of carrying on business and ought to be afforded an opportunity to do so.54. It is necessary to note the circumstances in which the scheme was prepared and placed before the learned Judge. They are set out in paragraph 3 of the judgment. In paragraph 3.6 the learned Judge noted that during the hearing on 30th October, 2012, counsel on behalf of the appellant submitted that the appellant was in a position to place a revival scheme before the Court even without receiving the funds due to the company which were held up with the Telecom authorities and/or banks. The learned Judge, even at that stage, afforded the appellant, albeit without prejudice to the contentions of the parties, an opportunity to place the revival scheme before the Court within one month i.e. by 30th November, 2012. The scheme was circulated on 5th December, 2012.55. The learned Judge rightly held that the scheme did not take the appellants case any further. It was impossible for him to have accepted it. The scheme inspires little, if any confidence. It is vague and without any material particulars.The doubt, if any, about the sheer inefficacy of the scheme is put to rest by a fundamental and an even more important fact. The scheme was only tendered in Court. It was not annexed to any affidavit. Nor is any affidavit filed by or on behalf of the appellant deposing to the scheme. This was despite the fact that the petitioner rightly insisted upon the scheme being put on affidavit. The scheme, therefore, cannot even be looked at.57. The learned Judge also rightly noted that the consent of the petitioner would be required for any such venture. This is clear from the terms of the shareholders agreement and theagreement. The petitioners refusal to agree to the same cannot be termed as unreasonable. The learned Judge recorded the petitioners statement that it did not intend pursing the suggested enterprise as it posed additional risks and liabilities for the company which would only worsen its financial position as well as its ability to repay the debts due to creditors. Considering the facts and circumstances of the case, the petitioners stand is understandable and justified.58. As we noted earlier, the company was indebted to various creditors and is liable for various other dues aggregating to about Rs.4500 crores. The scheme does not even indicate how the company can turn the corner and become a viable enterprise.59. It is not necessary in this case, therefore, to consider whether the court can compel the petitioner, who invested such a large amount in the company on the basis of the 2G licences to continue to deploy his funds on a different venture. It would have been necessary to consider this question had there been a possibility of the company undertaking another business venture in a commercially viable manner.60. Moreover, the leaned Judge has clarified that a genuine comprehensive scheme which is in the interest of the company, its shareholders and creditors can always be placed before the Court for its consideration even after the admission of the company petition. No such attempt has been made to date.61. In the circumstances, we are entirely in agreement with the learned Judge that the company has lost its substratum and that the appellants contention that the company is capable of being revised is unrealistic.The petitioner further contended that there is a complete loss of faith and trust between the appellant and the petitioner.This, in turn, has resulted in a deadlock in the management of the company and on the Board of Directors. As a result thereof also it is just and equitable that the company be wound up.63. We referred to the judgment of the Supreme Court and the criminal proceedings. The same have resulted in the petitioner loosing faith in the appellant, its main partner. In view of these facts alone, it is not possible to hold that the petitioners loss of faith is not understandable.64.Mr. Kamdars first contention that the petitioner had not pleaded that there was a deadlock or even the possibility of adeadlock is incorrect. The pleadings are sufficient to contend that there is a deadlock and in any event a very high probability of a deadlock in the management of the company. The allegations andestablish that the two major shareholders viz. the petitioner and the appellant who hold about 45% each of the equity share capital of the company are not likely to agree to important policy decisions. We, in fact, need go no further than to note the purpose of this petition itself. The petitioner unequivocally refuses to continue any association or venture with the appellant and is against the company continuing to function. This is a clear indication by itself of abreakdown in themanagement of the company.The petitioner has, therefore, expressly pleaded that there is a complete lack of uberrimafides between the majority shareholders and that there is a deadlock in the management. The contention that the petitioner has not pleaded the same isIn view of the facts that have transpired, including those set out earlier, it is futile to presume or even imagine that the majority shareholders would cooperate with each other. There is nothing on record to suggest that the two minority shareholders who together hold about 10% shares are likely towith either the appellant or with the respondent. Even assuming that they agree toonly with the appellant, it would make little difference for two reasons. Firstly, in view of the petitioner holding 45% of the equity shares, there is no possibility of special resolutions being passed. This itself would hamper the smooth functioning of the company. Secondly, and more important is that even assuming that the minority shareholders agree to support only the appellant, it would make no difference in view of the provisions of the agreements between the parties and the Articles of Association of the company. Clauses 8, 16, 20 and 21 of the Articles of Association of the company make it virtually impossible for the company to function in any meaningful way without the cooperation of the appellant and the petitioner.Clause 21 merely provides that the parties "shall endeavour to resolve the deadlock". The parties are not bound to resolve the deadlock. There is nomechanism that provides a solution to a deadlock.Even absent provisions such as those contained in clauses 8, 16 and 20 of the Articles of Association, the submission is not well founded. Mr. Kamdar relied upon paragraph 33 of the judgment of the Supreme Court in Hind Overseas Pvt. Ltd. v. Raghunath Prasad Jhunjhunuwalla (1976) 3 SCC 259. Mr. Kamdars submission, in fact, militates against the judgment of the Supreme Court.If the Court is satisfied that a deadlock is likely to arise in future, it must entertain the petition for winding up on the just and equitable ground. There is nothing in the Companies Act that suggests otherwise. Indeed, it would be neither just nor equitable to compel a party to stand by and permit a catastrophe to occur and then entertain the petition only as a remedial measure. It is well within the jurisdiction of a company court to interfere even earlier. Mr. Kamdars submission is not supported by any authority. Nor do we find it well founded on principle.76. In any event, in the case before us, there is not merely a possibility but a high degree of probability that a deadlock in the management will arise. Indeed it has arisen.77. In the circumstance, the petition must be admitted on the ground that there is more than just a strongcase that the substratum of the company has gone with almost no hope of it being revived; there is a completebreakdown in thefaith and trust between the main partnersthe appellant and the petitioner and there is a total deadlock in the management of the company and on its Board of Directors.Mr. Madon stated that during the pendency of this appeal, the appellant exercised the Put Option.The appellants claim, therefore, now can only be for money. The parties had entered into a Put Option Agreement dated 17th December, 2008. The appellant and the petitioner are referred to as the Founding Shareholder and Strategic Investor respectively.The appellant, therefore, has opted to exit from the company. The appellant is entitled to adopt proceedings, including for specific performance of the Put Option Deed and/or for damages. The appellant would only be entitled to monetary relief in any proceedings to enforce the rights under the Put Option Deed. Having exercised this right, the appellant cannot have any interest in the company, irrespective of whether it continues or is wound up.That the appellant may withdraw the exercise of its right under the Put Option agreement would make no difference for, as on date, the appellant has not done so. It is unnecessary to consider at this stage the effect of the appellant withdrawing its action on the admissibility of the petition on this ground.83. Having said that, however, we do not at this stage express an opinion whether this fact by itself would justify the admission of a petition on the just and equitable ground. We leave this for further consideration at the hearing of the petition.Mr. Madon further submitted that the petitioner was not informed that the Reliance group of companies were also involved in the company. Had it been so informed, it would have never entered into the venture as Reliance are its competitors. The petitioner became aware of the involvement of Reliance in the company and the interest of Reliance in the said 2G license only from the PIL before the Supreme Court.This may at the highest be only one amongst several factors relevant for the purpose of admitting the winding up petition. If the petitioners contention is factually correct, it may well entitle the petitioner to exit on the terms and conditions to be fixed by the Court, but it would not necessarily by itself result in the company being wound up. This aspect would require further consideration at the final hearing of the petition.86.Mr. Madon also submitted that the appellant had itself admitted and agreed that this is a case for winding up on the just and equitable ground. He relies upon the fact that the petitioner had filed Company Petition No.55 of 2011 under sections 397 and 398 of the Companies Act before the Company Law Board. The appellant alleged in paragraph 75 of the petition that the petitioner, its nominees and group companies have mismanaged the affairs of the company and their conduct was oppressive, burdensome, harsh and wrongful and has caused and continues to cause irreparable grave prejudice, harm and injury to the appellant. The appellant further stated : The facts stated herein clearly establish that it is just and equitable to wind up the company. However, the petitioner submits that to wind up the company would unfairly prejudice and cause harm and injury to the petitioner, who is a minority shareholder.We are not inclined, at this stage, to consider the effect of these averments. They are made in the context of a petition under sections 397 and 398. That petition would have to be analyzed to see whether the averments therein militate against the appellants defence to this company petition. The grounds in support of the appellants averments in the petition before the CLB that the conduct of the petitioner herein warrants winding up on the just and equitable ground may be entirely different from the grounds upon which the petitioner herein seeks winding up of the company. This aspect must be left open for consideration, at the final hearing of the petition.Mr. Kamdar submitted that a winding up petition based on the just and equitable clause must be decided only on the basis of the facts as on the date of the petition. According to him, the facts subsequent to the filing of the petition are irrelevant and cannot be taken into consideration while deciding whether such a petition ought to be entertained. Thus, for instance, the judgment of the Supreme Court cancelling the 2G licenses, the further proceedings in the criminal cases, the reduction in the number of employees, the increased liabilities of the company after the petition was filed, are irrelevant, as these facts arose subsequent to the filing of the petition.The submission is not well founded either on authority or in principle. On principle there is no reason why the subsequent facts cannot be taken into consideration. The provisions of the Companies Act do not preclude the Court from taking into consideration the facts that transpire after the petition is filed. The powers of the Company Court ought not to be curtailed in this manner.Mr. Kamdars submission, if accepted, would be detrimental to the interest of a company and the other parties. As Mr. Madon rightly pointed out, even assuming that on the date the petition was filed, factors existed justifying its winding up, the Company Court may well refuse to winding up the company if on account of the subsequent events, the factors no longer exist. There may well be cases where the substratum of the company is gone on the date of the filing of the petition but at the time it reaches final hearing the financial health of the company has revived. It would be absurd then for the Company Court to find itself compelled to wind up the company merely because on the date on which the petition was filed, the factors for winding up the company existed. Such a view could not be in the interest of any party. It would be equally absurd in such cases to first wind up the company and then leave it to the parties to file an application for bringing the company out of liquidation.92. Nor do we find Mr. Kamdars submissions to be supported by any authority. The authorities are to the contrary.A learned single Judge of this Court in KhimjiM. Shah v. Ratilal Damodardas Modi 1988, Mh. L.J. 38, considered an application for amendment of a petition filed under sections 397 and 398 of the Companies Act. The respondent opposed the application,on the ground that the amendments dealt with the events subsequent to the filing of the petition. It was contended that the subsequent events cannot be gone into in deciding the petition under sections 397 and 398. Rejecting the contention, the learned Judge held in paragraph 8 as underUnder Rule 6 of the Companies (Court) Rules, 1959 the provisions of the Code of Civil Procedure, so far as applicable, shall apply to all proceedings under the Companies Act. The provisions relating to amendments of pleadings would, therefore, apply to amendment of pleadings under the Companies Act. There is no bar to an amendment which incorporates subsequent events if the amendment is otherwise necessary for proper determination of issue between the parties. In the case of Promode Kumar Mittal v. Southern Steel Ltd., reported in (1980)50 Comp. Cas. 555 the Calcutta High Court observed in a petition under sections 397 and 398 of the Companies Act that the Court can take notice of all subsequent events to grant reliefs finally after trial in a company matter and the interim orders passed from time to time by the Court in all applications, the meetings held under the Chairman appointed by the Court, and the resolutions passed by majority shareholders and directors present therein are all relevant. In the case of Inder Kumar Jain v. Osra Bottling Co. (P) Ltd., reported in (1977)47 Comp. Cas. 194, the Delhi High Court has held that on an analogy of Order VI, Rule 17 of the Code of Civil Procedure, the High court has power to grant leave or amend a pleading in a petition under section 397 to 398 of the Companies Act, 1956 for relief against mismanagement or oppression in the affairs of a company. In the case of Bastar Transport and Trading Co. v. Court of Wards, reported in A.I.R. 1955 Nagpur 78 the Court held that the provisions of the Code of Civil Procedure so far as applicable, would govern proceedings under the Companies Act also. There is thus no provision under the Companies Act which prohibits a Court from looking at subsequent events in a petition under sections 397 and 398 of the Companies Act."We entirely agree with the learned Judge. The ratio of the judgment would also apply to a petition for winding up under the just and equitable clausesection 433 (f). As we mentioned earlier, we see no reason on principle to ignore the subsequent facts.n support of this submission, he relied upon a judgment of the Supreme Court in SangramsinghP. Gaikwad vs. Shantidevi P. Gaikwad, (2005) 11 SCC 314. Paragraph 200 reads as underIt is now well settled that a case for grant of relief under Sections 397 and 398 of the Companies Act must be made out in the petition itself and the defects contained therein cannot be cured nor the lacuna filled up by other evidence oral or documentary. (See Bengal Luxmi Cotton Mills Ltd., In re.)The reference in the judgment to the documentary evidence is not to pleadings. This question whether subsequent or even additional facts must be introduced by having the petition amended or whether they can be introduced on affidavits did not arise before the Supreme Court. Nor was it decided by the Supreme Court. The judgment merely requires the case to be pleaded. It requires the case to be supported by pleadings and not just by evidence, oral or documentary. The judgment, therefore, does not support Mr. Kamdars case.100. In the circumstances, it is held that the subsequent facts can be relied upon by the Company Court while considering a petition under sections 433(f) on the just and equitable ground. The subsequent events may be pleaded either by amending the petition or by filing further affidavits.101.Mr. Kamdar submitted that as only two creditors supported the winding up petition, and fourteen creditors opposed it, the petition ought to have been dismissed.The number of petitioners supporting or opposing a winding up is not relevant. What is relevant is that the two creditors, who support the petitioner, have an aggregate claim of over Rs.2003.00 crores, whereas the fourteen creditors, who opposed the petition have a claim of about Rs.1000.00 crores. The learned Judge can hardly be faulted for not dismissing the petition merely because fourteen creditors opposed it.103. In the result, circumstances certainly exist warranting an admission of the petition for winding up the company on the basis of the just and equitable clause.Mr. Kamdar submitted that the learned Judge had only set out the rival contentions and the facts and made the above observations. In other words, according to him, the judgment does not contain any reasons.The submission is incorrect for the learned Judge has set out the facts in considerable detail and the manner in which they have been set out support the conclusion.Mr. Kamdars submission that the petitioner ought not to be permitted to maintain this petition on the ground that it failed to meet the roll out obligation is rejected for the abovereasons. The allegations in this regard are, to say the least, vague and without material particulars. Mr. Kamdar himself faced difficulty in substantiating this submission which was evident from the fact that he essentially only read out paragraph 54.1 of the affidavit in reply dated 11th April, 2012 of one Adil Patel. Paragraph 54.1 of the affidavit itself contains bare allegations and is devoid of any particulars substantiating the same. The allegations,are that the competitors have gained a significant market share whereas the company has not because of the petitioners failure; the petitioner took unilateral/secret/illegal decisions; the petitioner failed to contribute its share of the capital call and failed to formulate and carry out a business plan as per the shareholders agreement and other agreements; the petitioner incurred unnecessary expenses for travel.In the affidavit in rejoinder, the petitioner rightly contended that the allegations were without anyassuming that there was a failure to roll out, the petitioner cannot be held solely responsible for the same. The appellant also participated in the management of the business. There are no mala fides alleged against the petitioner. It is not suggested that the petitioner deliberately failed to roll out the business. It is not suggested that the appellant made valuable suggestions which were not accepted by the petitioner and that had they been accepted, the company would have done well. There is nothing to indicate that the appellant took any steps or made any suggestions which were wrong or were rejected by the petitioner.Mr. Kamdar had considerable difficulty even indicating precisely what the roll out objectives were. At one stage, he indicated that the roll out obligation is as per the initial business plan set out in Schedule I to theagreement dated 23rd September, 2008. Even assuming that to be so, there are no particulars as to which part of it was not met by the petitioner. Nor are there any particulars as to how the petitioner failed to meet the obligations. Further, this aspect of the matter does not appear to have been taken before the learned single Judge. It is not difficult to see why this point was not taken by the learned Judge. The business plan does not appear to have been crystallized at any point of time. This is evident from the minutes of the meeting of the Board of Directors of the company held on 24th August, 2011. Paragraph 6(b) is titled "EDB Way forward". It is recorded that the Board directed the management "to prepare a business plan with targeted roll out" and barter deal with other operators which would be presented to the Board after the shareholders meeting. The allegations that the company did not achieve anyis incorrect. A document annexed to the affidavit dated 21st August, 2012, on behalf of the appellant belies the contention. It indicates that roll out did take place in about 16 places, including Mumbai, Chennai, Delhi, Lucknow, Bangalore and Hyderabad.Mr. Kamdar then submitted that the company had suffered losses due to the petitioner havingthree vendors.122. There is no substance in this allegation. The transactions with the three vendors took place in the year 2009. It is significant that the contracts had not been entered into between the petitioner with the vendors. The petitioner had merely obtained their offers and placed the same before the management. At a meeting of the Board of Directors held on 13th May, 2009, Balwa stated that the vendors proposals were higher than those of the other operators. In view of the assertion awas formed by the company to negotiate with the vendors. Thecomprised of the petitioners representatives as well as Balwa. Even during thethe prices did not differ substantially. In fact, the vendors stated that they could not offer better prices. The price was thereafter unanimously approved by the board.Mr. Kamdar submitted that the fact that the petitioner agreed to have the pricesf indicated mala fides.The submission is entirely unjustified. There was nothing surreptitious about the manner in which the petitioner went about the matter. The agreements were not even concluded with the vendors in the first instance. It is only after theentered into further negotiations with the vendors that the price was finalized. It is not unusual for organizations to negotiate right upto the last moment. The petition, therefore, cannot be dismissed on the basis of this allegation.Firstly, it is important to note that the petitioner did make an application to the FIPB, but the FIPB refused to grant the approval. It cannot, therefore, be said that the petitioner had failed to make an application to the FIPB for approval. Further, the appellant had filed a petition before the CLB under sections 397 and 398 of the Companies Act in which it raised this issue. The appellant thereafter withdrew the company petition.126. It is also important to see the appellants case on affidavit with regard to Mr. Kamdars contention that the failure to apply for the FIPB approval resulted in a financial crunch. As Mr. Madon rightly pointed out, assuming there was any failure on the part of the petitioner, as alleged in this regard, it affects the rights, if any, of the appellant and not of the | 0 | 28,349 | 7,388 | ### Instruction:
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orders along with these applications which are the subject matter of the appeals and by an ex parte interim order made on July 13, 1981, the learned company court judge appointed a Commissioner and that was questioned in the appeal. One of the objections of the appellants was that the learned judge had no jurisdiction to pass an interim order under section 443(1)(c) at the stage of admission of the winding-up petition and that only at the time of the hearing of the winding-up petition the company court can make interim orders. While rejecting this contention, the Bench has observed (at page 233)."In our judgment, the investiture of the court with the winding up jurisdiction, as of other powers, must be interpreted as adding to the gamut of the courts existing jurisdiction. It would be a mistake to interpret the statute as stripping the court of all his powers first, and then conferring on it only such powers as are permitted, say by section 443(1) and other related provisions. We are satisfied that having regard to the scheme of the Companies Act, we cannot read any provision in the statute which relates to jurisdiction of courts, as being in derogation of the full plenitude of the courts powers under the common law, unless we can find in it a clearly expressed or equally clearly implicit, bar of restriction of the courts jurisdiction."176. In our view, the power of the company court to pass interim orders commences from the time the petition for winding-up is presented / lodged / filed. There are cases where it is necessary to pass urgent interim orders the moment the petition is filed. This would be so irrespective of whether the petition for winding up is on the ground that the company is unable to pay its dues or on the ground that it is just and equitable to do so.177. We, however, wish to make it clear that we do not approve of the observations of the Division Bench of the Madras High Court which follow the extracts quoted above. These observations were quoted by the Division Bench from an earlier judgment in a case between the same parties reported in (1983) II MLJ 227. For instance we, with respect, do not agree with the observation that there was a folly on the part of the draftsman of section 443. Nor do we agree that section 443(1)(b) is an insane provision or that the draftsman there was dense.178. This judgment was followed by a learned single Judge of the Karnataka High Court in Smt. Usha R. Shetty & Ors. v. Radeesh Rubber Pvt. Ltd. & Anr. 1995 84 Com. Cases 602. The learned Judge held as under :"Learned counsel, referring to section 536(2) of the Companies Act, has submitted that no transfer of the assets during the pendency of the winding up petition should be effected. As per section 536(2) in the case of winding up by or subject to the supervision of the court, any disposition of the property (including actionable claims) of the company, and any transfer of shares in the company or alteration in the status of its members, made after the commencement of the winding up, shall, unless the court otherwise orders, be void. Thus, it clearly indicates that the court has power to order transfer or to sell the assets of the company when the winding up petition is pending. There is no inherent indication in the section so as to warrant the conclusion that this power can be exercised only after the winding up order is made. It is difficult to spell out the limits on the jurisdiction of the courts from the opening words in the section, viz., "in the case of winding up" so as to mean "only if the company is ordered to be wound up". It would be reading more than what the Legislature intended in the said wording. I am of the view that the court can exercise jurisdiction under section 536(2) of the Act even before the winding up order is made. The fact that the order becomes otiose, if the application for winding up is ultimately rejected, does not take away the jurisdiction. Therefore, even before the winding up order is made, the jurisdiction of the court can be invoked under section 536(2) of the Act for permission for disposal of the assets of the company. The contention of Mr. Jayaram, learned counsel appearing for the second respondent, in view of the decision of the Supreme Court as well as the decision of the High Court referred to above, is unsustainable.I am also of the view that, at the stage of entertaining the winding up petition or admitting the winding up petition and on further hearing of the respondent after deciding to entertain the winding up petition, the court has inherent power to do that which is necessary to advance the cause of justice or make such orders which are necessary to meet the ends of justice. This inherent power of the court is not taken away or in any way restricted by section 443(1) of the Companies Act."We are in respectful agreement with the learned Judge. We, however, express no opinion on the observation that an order of sale would be otiose if the application for winding up is rejected.179. The judgment of the Division Bench of the Punjab & Haryana High Court in Altos India Ltd. v. Bharati Telecom Ltd. (2001) 103 Com. Cases 6, does support Mr. Madons submission. In that case, the learned company Judge had ordered the sale of the properties of the company even before the company was actually wound up on the ground that the company was heavily indebted to various financial institutions and that the sale of the machinery even before the final order of winding up would benefit all the parties concerned, including the company by reducing its liability to the maximum extent. The issue of law, however, was not discussed in detail.
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crores. The learned Judge can hardly be faulted for not dismissing the petition merely because fourteen creditors opposed it.103. In the result, circumstances certainly exist warranting an admission of the petition for winding up the company on the basis of the just and equitable clause.Mr. Kamdar submitted that the learned Judge had only set out the rival contentions and the facts and made the above observations. In other words, according to him, the judgment does not contain any reasons.The submission is incorrect for the learned Judge has set out the facts in considerable detail and the manner in which they have been set out support the conclusion.Mr. Kamdars submission that the petitioner ought not to be permitted to maintain this petition on the ground that it failed to meet the roll out obligation is rejected for the abovereasons. The allegations in this regard are, to say the least, vague and without material particulars. Mr. Kamdar himself faced difficulty in substantiating this submission which was evident from the fact that he essentially only read out paragraph 54.1 of the affidavit in reply dated 11th April, 2012 of one Adil Patel. Paragraph 54.1 of the affidavit itself contains bare allegations and is devoid of any particulars substantiating the same. The allegations,are that the competitors have gained a significant market share whereas the company has not because of the petitioners failure; the petitioner took unilateral/secret/illegal decisions; the petitioner failed to contribute its share of the capital call and failed to formulate and carry out a business plan as per the shareholders agreement and other agreements; the petitioner incurred unnecessary expenses for travel.In the affidavit in rejoinder, the petitioner rightly contended that the allegations were without anyassuming that there was a failure to roll out, the petitioner cannot be held solely responsible for the same. The appellant also participated in the management of the business. There are no mala fides alleged against the petitioner. It is not suggested that the petitioner deliberately failed to roll out the business. It is not suggested that the appellant made valuable suggestions which were not accepted by the petitioner and that had they been accepted, the company would have done well. There is nothing to indicate that the appellant took any steps or made any suggestions which were wrong or were rejected by the petitioner.Mr. Kamdar had considerable difficulty even indicating precisely what the roll out objectives were. At one stage, he indicated that the roll out obligation is as per the initial business plan set out in Schedule I to theagreement dated 23rd September, 2008. Even assuming that to be so, there are no particulars as to which part of it was not met by the petitioner. Nor are there any particulars as to how the petitioner failed to meet the obligations. Further, this aspect of the matter does not appear to have been taken before the learned single Judge. It is not difficult to see why this point was not taken by the learned Judge. The business plan does not appear to have been crystallized at any point of time. This is evident from the minutes of the meeting of the Board of Directors of the company held on 24th August, 2011. Paragraph 6(b) is titled "EDB Way forward". It is recorded that the Board directed the management "to prepare a business plan with targeted roll out" and barter deal with other operators which would be presented to the Board after the shareholders meeting. The allegations that the company did not achieve anyis incorrect. A document annexed to the affidavit dated 21st August, 2012, on behalf of the appellant belies the contention. It indicates that roll out did take place in about 16 places, including Mumbai, Chennai, Delhi, Lucknow, Bangalore and Hyderabad.Mr. Kamdar then submitted that the company had suffered losses due to the petitioner havingthree vendors.122. There is no substance in this allegation. The transactions with the three vendors took place in the year 2009. It is significant that the contracts had not been entered into between the petitioner with the vendors. The petitioner had merely obtained their offers and placed the same before the management. At a meeting of the Board of Directors held on 13th May, 2009, Balwa stated that the vendors proposals were higher than those of the other operators. In view of the assertion awas formed by the company to negotiate with the vendors. Thecomprised of the petitioners representatives as well as Balwa. Even during thethe prices did not differ substantially. In fact, the vendors stated that they could not offer better prices. The price was thereafter unanimously approved by the board.Mr. Kamdar submitted that the fact that the petitioner agreed to have the pricesf indicated mala fides.The submission is entirely unjustified. There was nothing surreptitious about the manner in which the petitioner went about the matter. The agreements were not even concluded with the vendors in the first instance. It is only after theentered into further negotiations with the vendors that the price was finalized. It is not unusual for organizations to negotiate right upto the last moment. The petition, therefore, cannot be dismissed on the basis of this allegation.Firstly, it is important to note that the petitioner did make an application to the FIPB, but the FIPB refused to grant the approval. It cannot, therefore, be said that the petitioner had failed to make an application to the FIPB for approval. Further, the appellant had filed a petition before the CLB under sections 397 and 398 of the Companies Act in which it raised this issue. The appellant thereafter withdrew the company petition.126. It is also important to see the appellants case on affidavit with regard to Mr. Kamdars contention that the failure to apply for the FIPB approval resulted in a financial crunch. As Mr. Madon rightly pointed out, assuming there was any failure on the part of the petitioner, as alleged in this regard, it affects the rights, if any, of the appellant and not of the
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Suresh Pathrella Vs. Oriental Bank Of Commerce | was an employee of insurance company. The disciplinary proceeding was initiated against him on the ground of antedating an insurance cover, which was decided against him. His appeal was dismissed by the appellate authority. The firm whose goods were destroyed in fire filed a suit against the insurance company impleading the appellant as a defendant. The Trial Court decreed the suit holding that there was no antedating of the cover note. The appeal filed by the insurance company was dismissed by the High Court. Thereafter, the matter attained finality, since no further appeal was preferred by the insurance company. It is in that given facts this Court held that the Managing Director when approached by the appellant ought to have applied his mind to the subsequent event namely the decision of the civil court rendered in the suit filed by the firm. It is in these circumstances, this Court was of the view that since the proceedings were initiated as late as in 1976, instead of remitting the matter to the disciplinary authority, the appellant was directed to be reinstated with only 50 per cent of back wages. The facts of that case are distinguishable from the facts of the present case. In the present case there was no such civil suit filed in which the decree was passed in favour of the appellant. This decision, therefore, would be of no help to the appellant.17. The third contention of the appellant is that the charge as framed was for misappropriation of Rs.10 lacs. But during the enquiry misappropriation of Rs.10 lacs was not established and in fact no loss was occasioned to the bank thereby. Therefore, the punishment of removal is disproportionate to the offence charged and proved.18. It will be noticed that the appellant was charged for the alleged violation of Regulation 3 (1) of the Regulations 1982. Regulation 3(1) reads: "Every officer employee shall, at all times take all possible steps to ensure and protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a bank officer". The Regulation ensures that every officer at all times take all possible steps to protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. Such regulations are made to instill the public confidence in the bank so that the interests of customers/depositors are well safeguarded. In such a situation the fact that no amount was lost to the bank would be no ground to take a lenient view for the proved misconduct of a bank officer. 19. In Disciplinary Authority-cum-Regional Manager vs. Nikunja Bihari Patnaik, (1996) 9 SCC 69 this Court held that a bank officers acting beyond his authority constituted misconduct and no further proof of loss is necessary. 20. In the case of Regional Manager, U.P.SRTC. vs. Hoti Lal, (2003) 3 SCC 605 , this Court held in paragraph 10 at scc p.614 as under: "If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transaction or acts in a fiduciary capacity, the highest degree of integrity and trust-worthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding order of dismissal". 21. In the case of Chairman and Managing Director, United Commercial Bank vs. P.C.Kakkar, (2003) 4 SCC 364 , this Court said in paragraph 14 at scc p.376 as under: "A Bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to project the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court In Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, (1996) 9 SCC 69. It is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond ones authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court". 22. In the present case the appellant acted beyond his authority in breach of banks Regulation. Regulation 3(1) of the banks Regulation required that every officer of the bank at all times take all possible steps to protect the interest of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. It is a case of loss of confidence in the officer by the bank. In such a situation, it would be a futile exercise of judicial review to embark upon the decision of the disciplinary authority removing the officer from service, preceded by an enquiry, and to direct the bank to take back the officer in whom the bank has lost confidence, unless the decision to remove the officer is tainted with malafide, or in violation of principles of natural justice and prejudice to the officer is made out. No such case is made out in the present case. | 0[ds]11. In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.12. It is not the case of the appellant that the enquiry has been conducted without affording an opportunity to the appellant or behind the back of the appellant and thereby violated the principle of naturalcontention deserves to be rejected outright. The disciplinary enquiry was completed on 3.2.1998. The appellant was removed from service by an order dated 28.5.1998. In the alleged disclosure statement made on 19.7.2001 under Sections 406/420 IPC Mr.G.C.Luthra is seen to have stated that he got a typed letter issued to the Senior Manager, Oriental Bank of Commerce to open a new saving bank account and credited in that new bank account the amount of Rs.10 lacs.It will be noticed that the appellant was charged for the alleged violation of Regulation 3 (1) of the Regulations 1982. Regulation 3(1)officer employee shall, at all times take all possible steps to ensure and protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a bankRegulation ensures that every officer at all times take all possible steps to protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. Such regulations are made to instill the public confidence in the bank so that the interests of customers/depositors are well safeguarded. In such a situation the fact that no amount was lost to the bank would be no ground to take a lenient view for the proved misconduct of a bank officer.In the present case the appellant acted beyond his authority in breach of banks Regulation. Regulation 3(1) of the banks Regulation required that every officer of the bank at all times take all possible steps to protect the interest of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. It is a case of loss of confidence in the officer by the bank. In such a situation, it would be a futile exercise of judicial review to embark upon the decision of the disciplinary authority removing the officer from service, preceded by an enquiry, and to direct the bank to take back the officer in whom the bank has lost confidence, unless the decision to remove the officer is tainted with malafide, or in violation of principles of natural justice and prejudice to the officer is made out. No such case is made out in the present case. | 0 | 3,278 | 559 | ### 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:
was an employee of insurance company. The disciplinary proceeding was initiated against him on the ground of antedating an insurance cover, which was decided against him. His appeal was dismissed by the appellate authority. The firm whose goods were destroyed in fire filed a suit against the insurance company impleading the appellant as a defendant. The Trial Court decreed the suit holding that there was no antedating of the cover note. The appeal filed by the insurance company was dismissed by the High Court. Thereafter, the matter attained finality, since no further appeal was preferred by the insurance company. It is in that given facts this Court held that the Managing Director when approached by the appellant ought to have applied his mind to the subsequent event namely the decision of the civil court rendered in the suit filed by the firm. It is in these circumstances, this Court was of the view that since the proceedings were initiated as late as in 1976, instead of remitting the matter to the disciplinary authority, the appellant was directed to be reinstated with only 50 per cent of back wages. The facts of that case are distinguishable from the facts of the present case. In the present case there was no such civil suit filed in which the decree was passed in favour of the appellant. This decision, therefore, would be of no help to the appellant.17. The third contention of the appellant is that the charge as framed was for misappropriation of Rs.10 lacs. But during the enquiry misappropriation of Rs.10 lacs was not established and in fact no loss was occasioned to the bank thereby. Therefore, the punishment of removal is disproportionate to the offence charged and proved.18. It will be noticed that the appellant was charged for the alleged violation of Regulation 3 (1) of the Regulations 1982. Regulation 3(1) reads: "Every officer employee shall, at all times take all possible steps to ensure and protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a bank officer". The Regulation ensures that every officer at all times take all possible steps to protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. Such regulations are made to instill the public confidence in the bank so that the interests of customers/depositors are well safeguarded. In such a situation the fact that no amount was lost to the bank would be no ground to take a lenient view for the proved misconduct of a bank officer. 19. In Disciplinary Authority-cum-Regional Manager vs. Nikunja Bihari Patnaik, (1996) 9 SCC 69 this Court held that a bank officers acting beyond his authority constituted misconduct and no further proof of loss is necessary. 20. In the case of Regional Manager, U.P.SRTC. vs. Hoti Lal, (2003) 3 SCC 605 , this Court held in paragraph 10 at scc p.614 as under: "If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transaction or acts in a fiduciary capacity, the highest degree of integrity and trust-worthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding order of dismissal". 21. In the case of Chairman and Managing Director, United Commercial Bank vs. P.C.Kakkar, (2003) 4 SCC 364 , this Court said in paragraph 14 at scc p.376 as under: "A Bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to project the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court In Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, (1996) 9 SCC 69. It is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond ones authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court". 22. In the present case the appellant acted beyond his authority in breach of banks Regulation. Regulation 3(1) of the banks Regulation required that every officer of the bank at all times take all possible steps to protect the interest of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. It is a case of loss of confidence in the officer by the bank. In such a situation, it would be a futile exercise of judicial review to embark upon the decision of the disciplinary authority removing the officer from service, preceded by an enquiry, and to direct the bank to take back the officer in whom the bank has lost confidence, unless the decision to remove the officer is tainted with malafide, or in violation of principles of natural justice and prejudice to the officer is made out. No such case is made out in the present case.
### Response:
0
### Explanation:
11. In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.12. It is not the case of the appellant that the enquiry has been conducted without affording an opportunity to the appellant or behind the back of the appellant and thereby violated the principle of naturalcontention deserves to be rejected outright. The disciplinary enquiry was completed on 3.2.1998. The appellant was removed from service by an order dated 28.5.1998. In the alleged disclosure statement made on 19.7.2001 under Sections 406/420 IPC Mr.G.C.Luthra is seen to have stated that he got a typed letter issued to the Senior Manager, Oriental Bank of Commerce to open a new saving bank account and credited in that new bank account the amount of Rs.10 lacs.It will be noticed that the appellant was charged for the alleged violation of Regulation 3 (1) of the Regulations 1982. Regulation 3(1)officer employee shall, at all times take all possible steps to ensure and protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a bankRegulation ensures that every officer at all times take all possible steps to protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. Such regulations are made to instill the public confidence in the bank so that the interests of customers/depositors are well safeguarded. In such a situation the fact that no amount was lost to the bank would be no ground to take a lenient view for the proved misconduct of a bank officer.In the present case the appellant acted beyond his authority in breach of banks Regulation. Regulation 3(1) of the banks Regulation required that every officer of the bank at all times take all possible steps to protect the interest of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. It is a case of loss of confidence in the officer by the bank. In such a situation, it would be a futile exercise of judicial review to embark upon the decision of the disciplinary authority removing the officer from service, preceded by an enquiry, and to direct the bank to take back the officer in whom the bank has lost confidence, unless the decision to remove the officer is tainted with malafide, or in violation of principles of natural justice and prejudice to the officer is made out. No such case is made out in the present case.
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Commissioner Of Income-Tax Bihar And Orissa Vs. Manager, Court Of Wards Estate, Bettiah | Mitter, J.1. This is an appeal from a judgment and answer of the High Court of Judicature, Patna, on a certificate granted by it under S.66-A (2) of the Income-tax Act of 1922 corresponding to S. 261 of the Income-tax Act of 1961. The Tribunal referred two questions of law to the High Court under S. 66 (1) :"1. Whether on the facts and circumstances of the case, could assessment be made upon the Manager of Court of Wards, Bettiah Estate, in respect of the income from the Bettiah Estate ?2. If the assessment could be made on the Manager of the Court of Wards in respect of the income from the Bettiah Estate, was it chargeable to tax at maximum rates under S. 41 (1) of the Income-tax Act ?"2. The facts of the case are as follows :- Maharani Janki Kuer who was the last holder of the Bettiah Estate in Bihar died on November 27, 1954. For many years past before her death, the estate was under the management of the Court of Wards and continued under such management even after her death as it was not known whether she had left any heirs. Under S. 13 of the Bengal Court of Wards Act (IX of 1879)."Whenever, on the death of any ward, the succession to his property or any part thereof is in dispute, the Court may either direct that such property or part thereof be made over to any person claiming such property, or may retain charge of the same until the right to possession of the claimant has been determined under Bengal Act VII of 1876, or until the dispute has been determined by a competent Civil Court.""Court" here means the Court of Wards. One Suresh Nandan Sinha filed a suit claiming the estate on the allegation that he was the nearest heir of the deceased Maharani. After the death of the Maharani, the Income-tax Officer made an assessment on the Manager of the Court of Wards as representing the estate of Bettiah, the assessment relating to the assessment year 193457 the accounting year being the financial year 1955-56. The Government of Bihar claimed that the estate had vested in the State Government by escheat and the Manager, Court of Wards put forward that claim before the Income-tax authorities. There was a further contention raised by the Manager that even if the assessment was made on him representing the estate, the income should not be taxed, at a maximum rate under S. 41 (1) of the Income-tax Act, 1922. As the litigation was pending, the Income-tax Officer and the Appellate Assistant Commissioner both held that it could not be said of the estate that the same had vested in the State by escheat and they also held that the income was taxable at the maximum rate. The same plea was raised before the Appellate Tribunal and the Tribunal observed that as no notification had been issued by the Government on the death of the Maharani or later to the effect that the estate had vested in the State of Bihar by escheat, there was no certainty as to who would be found to be the ultimate heir in view of the pending litigation.3. The High Court on the case stated, referred to Arts. 289 and 296 of the Constitution and taking note of the contention urged on behalf of the parties observed :"In the circumstances of the present case, it is manifest that the Income-tax authorities cannot validly impose a tax upon the Manager, Court of Wards, Bettiah Estate, merely because a title suit has been filed with regard to the heirship of the Bettiah Estate without deciding the question as to whether the claim of the State of Bihar that the property has vested in it by escheat is established or not"On this view, the first question was answered in favour of the assessee and no answer was given to the second question because it was academic.4. It was asserted on behalf of the respondent-and not denied by the appellant-that the Suit of Suresh Nandan Sinha had been dismissed, but an appeal had been preferred therefrom and was pending. On the facts as the same appear to us at persent it is not possible to hold that the estate of Bettiah has escheated to the State of Bihar. It is obvious that in case of such esheat there can be no assessment to income-tax. The position will be clarified after the appeal by Suresh Nandan Sinha is disposed of. | 1[ds]On the facts as the same appear to us at persent it is not possible to hold that the estate of Bettiah has escheated to the State of Bihar. It is obvious that in case of such esheat there can be no assessment to income-tax. The position will be clarified after the appeal by Suresh Nandan Sinha is disposed of. | 1 | 834 | 67 | ### 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:
Mitter, J.1. This is an appeal from a judgment and answer of the High Court of Judicature, Patna, on a certificate granted by it under S.66-A (2) of the Income-tax Act of 1922 corresponding to S. 261 of the Income-tax Act of 1961. The Tribunal referred two questions of law to the High Court under S. 66 (1) :"1. Whether on the facts and circumstances of the case, could assessment be made upon the Manager of Court of Wards, Bettiah Estate, in respect of the income from the Bettiah Estate ?2. If the assessment could be made on the Manager of the Court of Wards in respect of the income from the Bettiah Estate, was it chargeable to tax at maximum rates under S. 41 (1) of the Income-tax Act ?"2. The facts of the case are as follows :- Maharani Janki Kuer who was the last holder of the Bettiah Estate in Bihar died on November 27, 1954. For many years past before her death, the estate was under the management of the Court of Wards and continued under such management even after her death as it was not known whether she had left any heirs. Under S. 13 of the Bengal Court of Wards Act (IX of 1879)."Whenever, on the death of any ward, the succession to his property or any part thereof is in dispute, the Court may either direct that such property or part thereof be made over to any person claiming such property, or may retain charge of the same until the right to possession of the claimant has been determined under Bengal Act VII of 1876, or until the dispute has been determined by a competent Civil Court.""Court" here means the Court of Wards. One Suresh Nandan Sinha filed a suit claiming the estate on the allegation that he was the nearest heir of the deceased Maharani. After the death of the Maharani, the Income-tax Officer made an assessment on the Manager of the Court of Wards as representing the estate of Bettiah, the assessment relating to the assessment year 193457 the accounting year being the financial year 1955-56. The Government of Bihar claimed that the estate had vested in the State Government by escheat and the Manager, Court of Wards put forward that claim before the Income-tax authorities. There was a further contention raised by the Manager that even if the assessment was made on him representing the estate, the income should not be taxed, at a maximum rate under S. 41 (1) of the Income-tax Act, 1922. As the litigation was pending, the Income-tax Officer and the Appellate Assistant Commissioner both held that it could not be said of the estate that the same had vested in the State by escheat and they also held that the income was taxable at the maximum rate. The same plea was raised before the Appellate Tribunal and the Tribunal observed that as no notification had been issued by the Government on the death of the Maharani or later to the effect that the estate had vested in the State of Bihar by escheat, there was no certainty as to who would be found to be the ultimate heir in view of the pending litigation.3. The High Court on the case stated, referred to Arts. 289 and 296 of the Constitution and taking note of the contention urged on behalf of the parties observed :"In the circumstances of the present case, it is manifest that the Income-tax authorities cannot validly impose a tax upon the Manager, Court of Wards, Bettiah Estate, merely because a title suit has been filed with regard to the heirship of the Bettiah Estate without deciding the question as to whether the claim of the State of Bihar that the property has vested in it by escheat is established or not"On this view, the first question was answered in favour of the assessee and no answer was given to the second question because it was academic.4. It was asserted on behalf of the respondent-and not denied by the appellant-that the Suit of Suresh Nandan Sinha had been dismissed, but an appeal had been preferred therefrom and was pending. On the facts as the same appear to us at persent it is not possible to hold that the estate of Bettiah has escheated to the State of Bihar. It is obvious that in case of such esheat there can be no assessment to income-tax. The position will be clarified after the appeal by Suresh Nandan Sinha is disposed of.
### Response:
1
### Explanation:
On the facts as the same appear to us at persent it is not possible to hold that the estate of Bettiah has escheated to the State of Bihar. It is obvious that in case of such esheat there can be no assessment to income-tax. The position will be clarified after the appeal by Suresh Nandan Sinha is disposed of.
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High Court of Delhi Vs. Devina Sharma | the learned senior counsel for the petitioner to inform the respondents through mobile phone or e-mail to submit their applications within the time limit prescribed by the High Court i.e. 12.03.2022, which shall, however, remain subject to the outcome of these petitions. Learned senior counsel is further directed to inform the counsel for the respondents about the instant order also. List these matters on 14.03.2022. 12. Following the interim order of this Court, the petitioners before the High Court have appeared through learned counsel. In addition, this Court is also seized of a number of intervention applications by persons who are not before the High Court, but claim the benefit of the directions contained in the interim orders dated 11 March 2022. 13. We have heard Mr A D N Rao, learned senior counsel appearing on behalf of the High Court of Delhi. On behalf of the respondents and the intervenors, we have heard Mr Devadatt Kamat and Mr Amarjit Singh Chandhiok, learned senior counsel. The intervenors have been represented in these proceedings by Mr Sidharth Luthra, Ms Anitha Shenoy and Mr Dama Seshadri Naidu, learned senior counsel and Mr Aditya Singh, Mr Amarjit Singh Chandhiok, Mr Ranjan Nikhil Dharnidhar and Mr Deepkaran Dalal, learned counsel. Mr Anuj Sharma, one of the intervenors has also appeared in-person. 14. We would deal with the issues pertaining to DJS and DHJS separately. 15. In order to enable the Court to render a full and complete adjudication of the proceedings, the writ petitions (WP (C) No 3914 of 2022 & WP (C) Nos 3636/2020, 3650/2022, 3665/2022 & 3684/2022) before the High Court under Article 226 of the Constitution stand transferred to this Court. We have had the benefit of the submissions urged on both the sides. 16. At the outset, Mr A D N Rao, learned senior counsel appearing on behalf of the High Court of Delhi has stated that the High Court did not conduct the examination which was scheduled to be held in 2020 and in 2021 for DJS. The examination for 2020 could not be held for procedural reasons since the process for the earlier recruitment year, 2019, had not been completed. As regards the examination for 2021, it has been stated by the learned senior counsel that the examination was not held due to the onset of the Covid -19 pandemic. In this backdrop, learned senior counsel submitted that candidates who would otherwise qualify in terms of the upper age limit of 32 years if the exams were held in 2020 and 2021, would now become age barred since the examination is being held pursuant to the notification which was issued on 23 February 2022. 17. Having regard to the above situation, it has been submitted by Mr A D N Rao that this Court may, particularly having regard to the interim order dated 11 March 2022, grant the same benefit to all candidates, who would have qualified for the examination, had the examination been conducted in 2020 and 2021 on the basis of the rules as they then stood. In order to effectuate this, it has been submitted on behalf of the High Court of Delhi that the last date for the acceptance of applications may be suitably postponed by this Court, with the consequence that the dates for the examination may be rescheduled. The High Court has stated that if this Court were to accept the suggestion, a communication would be uploaded on the website of the High Court for the intimation of all prospective applicants so that candidates who would have been eligible during the recruitment years 2020 and 2021 may be considered for the ensuing process as a one-on time measure. 18. The time schedule for conducting the recruitment process to the judicial service has been stipulated by the judgment of this Court in Malik Mazhar Sultan (3) vs Uttar Pradesh Public Service Commission (2008) 17 SCC 703 . The object and purpose of the directions of this Court has been to ensure that the recruitment process for the judicial service is conducted on schedule every year, subject to the rules of each High Court. The High Court of Delhi held its last examination for recruitment to DJS in 2019. Admittedly, no examination has been held in 2020 or in 2021. The examination for 2020 could not be conducted since the process for 2019 was still to be completed. The examination for 2020 could not be held due to the onset of the Covid-19 pandemic. In this backdrop, since the examination was not conducted for two recruitment years, the High Court has after considering the issue stated before this Court through the learned senior counsel that as a one-time measure, this Court may accept the suggestion that candidates who would have qualified for the examinations were they to be held on schedule for recruitment years 2020 and 2021 in terms of the rules as they then stood, may be permitted to appear for the ensuing examinations. 19. Having regard to the fact that the recruitment examination for DJS has been last held in 2019 and two recruitment years have elapsed in the meantime, we are of the view that the suggestion of the High Court should be accepted for this year. The consequence of the acceptance of the suggestion by this Court, would be that candidates who would have fulfilled the upper age limit of 32 years, for the recruitment years 2020 and 2021 would be eligible to participate in the examination for the ensuing recruitment year 2022. The age bar which they would now encounter is not of their own volition. The real element of hardship faced by such candidates has been remedied by the High Court and there is no reason for this court not to accept the suggestion. The examination cannot however, be postponed indefinitely nor can the candidates who have applied be left in a state of uncertainty. The existing candidates can have no grievance by the widening of the competition. | 1[ds]18. The time schedule for conducting the recruitment process to the judicial service has been stipulated by the judgment of this Court in Malik Mazhar Sultan (3) vs Uttar Pradesh Public Service Commission (2008) 17 SCC 703 . The object and purpose of the directions of this Court has been to ensure that the recruitment process for the judicial service is conducted on schedule every year, subject to the rules of each High Court. The High Court of Delhi held its last examination for recruitment to DJS in 2019. Admittedly, no examination has been held in 2020 or in 2021. The examination for 2020 could not be conducted since the process for 2019 was still to be completed. The examination for 2020 could not be held due to the onset of the Covid-19 pandemic. In this backdrop, since the examination was not conducted for two recruitment years, the High Court has after considering the issue stated before this Court through the learned senior counsel that as a one-time measure, this Court may accept the suggestion that candidates who would have qualified for the examinations were they to be held on schedule for recruitment years 2020 and 2021 in terms of the rules as they then stood, may be permitted to appear for the ensuing examinations.19. Having regard to the fact that the recruitment examination for DJS has been last held in 2019 and two recruitment years have elapsed in the meantime, we are of the view that the suggestion of the High Court should be accepted for this year. The consequence of the acceptance of the suggestion by this Court, would be that candidates who would have fulfilled the upper age limit of 32 years, for the recruitment years 2020 and 2021 would be eligible to participate in the examination for the ensuing recruitment year 2022. The age bar which they would now encounter is not of their own volition. The real element of hardship faced by such candidates has been remedied by the High Court and there is no reason for this court not to accept the suggestion. The examination cannot however, be postponed indefinitely nor can the candidates who have applied be left in a state of uncertainty. The existing candidates can have no grievance by the widening of the competition.25. The recommendations of the Shetty Commission were initially followed by an order of a three-Judge Bench of this Court in All India Judges Association vs Union of India (2002) 4 SCC 274 . By the order of this Court, the States and the Union Territories to whom a copy of the report had been submitted were directed to submit their responses to the Union of India expeditiously. Eventually, the report of the Shetty Commission resulted in the judgment of a three-Judge Bench of this Court in All India Judges Association vs Union of India (2002) 4 SCC 247 . The rules of several High Courts provide that for recruitment to the Higher Judicial Service, the candidate should be of a minimum age of 35, with a maximum age limit of 45 years. For instance, the rules pertaining to the UP Higher Judicial Service were noticed in a decision of a two-Judge Bench of this Court in Hirandra Kumar vs High Court of Judicature at Allahabad (2020) 17 SCC 401 (Hirandra Kumar). The prescription of a rule providing for a minimum age requirement or maximum age for entry into service is essentially a matter of policy. After noticing the earlier precedents on the subject, this Court in Hirandra Kumar (supra) observed that the determination of cut-offs lies in the realm of policy.26. The submission of the appellants, to the effect that the prescription of a minimum age would be contrary to the constitutional provision contained in Article 233 of the Constitution, cannot be accepted. Article 233(2) of the Constitution stipulates that a person not already in the service of the Union or of a State shall only be eligible to be appointed a District Judge if he has been, for not less than 7 years, an advocate or a pleader and is recommended by the High Court for appointment. Clause (1) of Article 233 stipulates that appointments of persons, posting and promotion of District Judges shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to the State. Article 235 entrusts to the High Court control over the district courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service to the State and holding any post inferior to the post of District Judge. The Constitution has prescribed the requirement to the effect that a person shall be eligible for appointment as a District Judge only if he has been an advocate or a pleader for at least seven years. What this means is that a person who has not fulfilled the seven year norm is not eligible. The Constitution does not preclude the exercise of the rule making power by the High Courts to regulate the conditions of service or appointment. The silences of the Constitution have to be and are supplemented by those entrusted with the duty to apply its provisions. The Constitution being silent in regard to the prescription of a minimum age, the High Courts in the exercise of their rule making authority are entitled to prescribe such a requirement. Direct recruitment to the Higher Judicial Service is intended to be from members of the Bar who have sufficient experience. The post of a District Judge is at a senior level in the cadre. Age is not extraneous to the acquisition of maturity and experience, especially in judicial institutions which handle real problems and confront challenges to liberty and justice. The High Courts are well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judiciary. The requirement that a candidate should be at least 35 years of age is intended to sub-serve this. Except for a short period when the requirement of a minimum age of thirty- five was deleted, the Delhi High Court has followed the norm.27. In the circumstances, we are of the view that there is no merit in the submission which has been urged on behalf of the petitioners before the High Court and the intervenors who have not fulfilled the age requirement of 35 years. Though for a short period of about a year, the High Court had deleted the requirement of a minimum age of 35 years for entry into the Higher Judicial Service, the High Court has set right the rule so as to bring it into conformity with the recommendations of the Shetty Commission. The deletion of the minimum age requirement of 35 years in 2019 may have been guided by the need to attract a larger pool of applicants to DHJS. But the reinstatement of a minimum age requirement of 35 years is a matter of policy. This conforms to the recommendation of the Shetty Commission. Hence, there is no valid basis for this court to hold that the requirement that a candidate for the DHJS should be at least thirty-five years of age is invalid. We do not find any merit in the challenge which has been urged on behalf of the appellants to that extent.28. During the course of the hearing, this Court has been apprised of the fact that several applicants for the higher judicial service examination would have qualified in terms of the upper age limit of 45 years in 2020 or, as the case may be, 2021. As a matter of fact, Mr A D N Rao indicates that he has instructions to the effect that some of those candidates may already have or would be in the process of moving petitions before the High Court. The reasons which have weighed with this Court in allowing the High Court, as a one-time measure, to permit candidates for the DJS examination who had qualified in terms of the upper age limit of 32 years during the recruitment years 2020 and 2021, should on a parity of reasoning be extended to candidates for the DHJS examination who would have qualified in terms of the upper age limit of 45 years during the recruitment years 2020 and 2021 during which no examinations could take place for the reasons which have been noticed earlier. | 1 | 2,605 | 1,515 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the learned senior counsel for the petitioner to inform the respondents through mobile phone or e-mail to submit their applications within the time limit prescribed by the High Court i.e. 12.03.2022, which shall, however, remain subject to the outcome of these petitions. Learned senior counsel is further directed to inform the counsel for the respondents about the instant order also. List these matters on 14.03.2022. 12. Following the interim order of this Court, the petitioners before the High Court have appeared through learned counsel. In addition, this Court is also seized of a number of intervention applications by persons who are not before the High Court, but claim the benefit of the directions contained in the interim orders dated 11 March 2022. 13. We have heard Mr A D N Rao, learned senior counsel appearing on behalf of the High Court of Delhi. On behalf of the respondents and the intervenors, we have heard Mr Devadatt Kamat and Mr Amarjit Singh Chandhiok, learned senior counsel. The intervenors have been represented in these proceedings by Mr Sidharth Luthra, Ms Anitha Shenoy and Mr Dama Seshadri Naidu, learned senior counsel and Mr Aditya Singh, Mr Amarjit Singh Chandhiok, Mr Ranjan Nikhil Dharnidhar and Mr Deepkaran Dalal, learned counsel. Mr Anuj Sharma, one of the intervenors has also appeared in-person. 14. We would deal with the issues pertaining to DJS and DHJS separately. 15. In order to enable the Court to render a full and complete adjudication of the proceedings, the writ petitions (WP (C) No 3914 of 2022 & WP (C) Nos 3636/2020, 3650/2022, 3665/2022 & 3684/2022) before the High Court under Article 226 of the Constitution stand transferred to this Court. We have had the benefit of the submissions urged on both the sides. 16. At the outset, Mr A D N Rao, learned senior counsel appearing on behalf of the High Court of Delhi has stated that the High Court did not conduct the examination which was scheduled to be held in 2020 and in 2021 for DJS. The examination for 2020 could not be held for procedural reasons since the process for the earlier recruitment year, 2019, had not been completed. As regards the examination for 2021, it has been stated by the learned senior counsel that the examination was not held due to the onset of the Covid -19 pandemic. In this backdrop, learned senior counsel submitted that candidates who would otherwise qualify in terms of the upper age limit of 32 years if the exams were held in 2020 and 2021, would now become age barred since the examination is being held pursuant to the notification which was issued on 23 February 2022. 17. Having regard to the above situation, it has been submitted by Mr A D N Rao that this Court may, particularly having regard to the interim order dated 11 March 2022, grant the same benefit to all candidates, who would have qualified for the examination, had the examination been conducted in 2020 and 2021 on the basis of the rules as they then stood. In order to effectuate this, it has been submitted on behalf of the High Court of Delhi that the last date for the acceptance of applications may be suitably postponed by this Court, with the consequence that the dates for the examination may be rescheduled. The High Court has stated that if this Court were to accept the suggestion, a communication would be uploaded on the website of the High Court for the intimation of all prospective applicants so that candidates who would have been eligible during the recruitment years 2020 and 2021 may be considered for the ensuing process as a one-on time measure. 18. The time schedule for conducting the recruitment process to the judicial service has been stipulated by the judgment of this Court in Malik Mazhar Sultan (3) vs Uttar Pradesh Public Service Commission (2008) 17 SCC 703 . The object and purpose of the directions of this Court has been to ensure that the recruitment process for the judicial service is conducted on schedule every year, subject to the rules of each High Court. The High Court of Delhi held its last examination for recruitment to DJS in 2019. Admittedly, no examination has been held in 2020 or in 2021. The examination for 2020 could not be conducted since the process for 2019 was still to be completed. The examination for 2020 could not be held due to the onset of the Covid-19 pandemic. In this backdrop, since the examination was not conducted for two recruitment years, the High Court has after considering the issue stated before this Court through the learned senior counsel that as a one-time measure, this Court may accept the suggestion that candidates who would have qualified for the examinations were they to be held on schedule for recruitment years 2020 and 2021 in terms of the rules as they then stood, may be permitted to appear for the ensuing examinations. 19. Having regard to the fact that the recruitment examination for DJS has been last held in 2019 and two recruitment years have elapsed in the meantime, we are of the view that the suggestion of the High Court should be accepted for this year. The consequence of the acceptance of the suggestion by this Court, would be that candidates who would have fulfilled the upper age limit of 32 years, for the recruitment years 2020 and 2021 would be eligible to participate in the examination for the ensuing recruitment year 2022. The age bar which they would now encounter is not of their own volition. The real element of hardship faced by such candidates has been remedied by the High Court and there is no reason for this court not to accept the suggestion. The examination cannot however, be postponed indefinitely nor can the candidates who have applied be left in a state of uncertainty. The existing candidates can have no grievance by the widening of the competition.
### Response:
1
### Explanation:
4 SCC 274 . By the order of this Court, the States and the Union Territories to whom a copy of the report had been submitted were directed to submit their responses to the Union of India expeditiously. Eventually, the report of the Shetty Commission resulted in the judgment of a three-Judge Bench of this Court in All India Judges Association vs Union of India (2002) 4 SCC 247 . The rules of several High Courts provide that for recruitment to the Higher Judicial Service, the candidate should be of a minimum age of 35, with a maximum age limit of 45 years. For instance, the rules pertaining to the UP Higher Judicial Service were noticed in a decision of a two-Judge Bench of this Court in Hirandra Kumar vs High Court of Judicature at Allahabad (2020) 17 SCC 401 (Hirandra Kumar). The prescription of a rule providing for a minimum age requirement or maximum age for entry into service is essentially a matter of policy. After noticing the earlier precedents on the subject, this Court in Hirandra Kumar (supra) observed that the determination of cut-offs lies in the realm of policy.26. The submission of the appellants, to the effect that the prescription of a minimum age would be contrary to the constitutional provision contained in Article 233 of the Constitution, cannot be accepted. Article 233(2) of the Constitution stipulates that a person not already in the service of the Union or of a State shall only be eligible to be appointed a District Judge if he has been, for not less than 7 years, an advocate or a pleader and is recommended by the High Court for appointment. Clause (1) of Article 233 stipulates that appointments of persons, posting and promotion of District Judges shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to the State. Article 235 entrusts to the High Court control over the district courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service to the State and holding any post inferior to the post of District Judge. The Constitution has prescribed the requirement to the effect that a person shall be eligible for appointment as a District Judge only if he has been an advocate or a pleader for at least seven years. What this means is that a person who has not fulfilled the seven year norm is not eligible. The Constitution does not preclude the exercise of the rule making power by the High Courts to regulate the conditions of service or appointment. The silences of the Constitution have to be and are supplemented by those entrusted with the duty to apply its provisions. The Constitution being silent in regard to the prescription of a minimum age, the High Courts in the exercise of their rule making authority are entitled to prescribe such a requirement. Direct recruitment to the Higher Judicial Service is intended to be from members of the Bar who have sufficient experience. The post of a District Judge is at a senior level in the cadre. Age is not extraneous to the acquisition of maturity and experience, especially in judicial institutions which handle real problems and confront challenges to liberty and justice. The High Courts are well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judiciary. The requirement that a candidate should be at least 35 years of age is intended to sub-serve this. Except for a short period when the requirement of a minimum age of thirty- five was deleted, the Delhi High Court has followed the norm.27. In the circumstances, we are of the view that there is no merit in the submission which has been urged on behalf of the petitioners before the High Court and the intervenors who have not fulfilled the age requirement of 35 years. Though for a short period of about a year, the High Court had deleted the requirement of a minimum age of 35 years for entry into the Higher Judicial Service, the High Court has set right the rule so as to bring it into conformity with the recommendations of the Shetty Commission. The deletion of the minimum age requirement of 35 years in 2019 may have been guided by the need to attract a larger pool of applicants to DHJS. But the reinstatement of a minimum age requirement of 35 years is a matter of policy. This conforms to the recommendation of the Shetty Commission. Hence, there is no valid basis for this court to hold that the requirement that a candidate for the DHJS should be at least thirty-five years of age is invalid. We do not find any merit in the challenge which has been urged on behalf of the appellants to that extent.28. During the course of the hearing, this Court has been apprised of the fact that several applicants for the higher judicial service examination would have qualified in terms of the upper age limit of 45 years in 2020 or, as the case may be, 2021. As a matter of fact, Mr A D N Rao indicates that he has instructions to the effect that some of those candidates may already have or would be in the process of moving petitions before the High Court. The reasons which have weighed with this Court in allowing the High Court, as a one-time measure, to permit candidates for the DJS examination who had qualified in terms of the upper age limit of 32 years during the recruitment years 2020 and 2021, should on a parity of reasoning be extended to candidates for the DHJS examination who would have qualified in terms of the upper age limit of 45 years during the recruitment years 2020 and 2021 during which no examinations could take place for the reasons which have been noticed earlier.
|
State Bank of India Vs. Collector of Customs, Bombay | countrywide use of software in the second invoice could be the charges for the right to reproduction and were these added to the price actually paid or payable for the imported goods. If we refer to the agreement, software is not sold to the SBI as such but it was to remain property of Kindle. There is no other value of the software indicated in the agreement except the licence fee. Price is payable only for allowing SBI to use the software in a limited way at its own centers for a limited period and that is why the amount charged is called the licence fee. After five years SBI is required to pay only recurring licence fee. Countrywide use of the software and reproduction of software are two different things and licence fee for countrywide use cannot be considered as the charges for the right to reproduce the imported goods. Under the agreement copying, storage, removal, etc. are under the strict control of kindle and all copies are the property of the Kindle. SBI can use the software for its internal requirements only. Licence has been given to SBI to use the property of Kindle at its branches and not for reproduction of the software as claimed by the SBI. The words in the agreement are specific that SBI shall pay the licensor the initial licence fee and the recurring licence fees for use under the provisions of this agreement. 17. It is difficult to accept the contention of the SBI that the countrywide licence fee paid by it is basically the reproduction charges only and by virtue of interpretative note to Rule 9(1)(c) the said charges could not be included in the assessable value for the purpose of levying of customs duty. Countrywide licence fee paid by SBI is not the same as the charges for the right to reproduce as envisaged in the interpretative note to Rule 9(1)(c). Total cost incurred would be transaction value on which customs duty has to be charged and total cost for the purpose of assessment of customs duty would include single site licence fee as well as countrywide licence fee. Rule 3(1) of the Rules provides that value of the imported goods shall be transaction value as defined by Rule 4 and which in the present case would mean the price actually paid or payable for the goods when sold for export to India. The amount payable to the supplier was US $ 4,084,475 which was correctly taken as assessable value. 18. We may also take notice of the argument of the SBI that reproduction or making copies is unavoidable in its case as it has to have a countrywide computer network which works on LAN (Local Area Network) version and is not a mainframe system. In the case of mainframe it is possible to use the programme countrywide without having to reproduce software. But then even in such a situation SBI would have to pay the licence fee for countrywide use because it is the extent of the use which is determinative of the quantum of the licence fee. The act of reproduction is only the intermediary stage in the process of putting the programme to countrywide productive use. The term productive use has been defined in Clause 1.8 of the agreement which means use of software or any part thereof to process all or part of SBIs actual business transaction in parallel or live mode. The amount of US $ 3,683,428 has been paid as licence fee for countrywide use of software to process all or part of SBIs actual business transaction and not for acquiring the right to use the software programme. 19. Kindle supplied to the SBI countrywide licence for India of software package containing various modules as given in the invoice and consisting of 46 diskettes and 82 manuals (including cost of insurance and freight) for US $ 4,084,475.00. This amount in the subsequent invoice was bifurcated into (I) Licence Fee for use of software package at single site (including cost of 82 manuals and 46 diskettes of US $ 14,300) - US $ 401,047 and (2) Licencing Fee for right to use countrywide -- US $ 3,683,428.00 (totalling US $ 4,084,475). 20. Reproduction and use are two different things. Now under the agreement user is specifically limited to licence sites. Transaction as a whole is to be seen. Press Note is of no help to the SBI. Rule 9(1)(c) and the interpretative note thereto did not apply as nothing was added to the price actually paid for the imported goods by way of royalties etc. Refund would be allowable only if there was something added on to the royalty payment which was not in the present case. The invoice originally presented was complete in itself. Second invoice was not filed along with the Bill of Entry. In the second invoice also it is licence fee for right to use countrywide and it is not right to reproduce as claimed by the SBI. Schedule I to the agreement is module and copies are modalities for the use of software by the SBI with various restrictions. If we again refer to Clause 6.4 of the agreement there is a complete restraint on SBI which says SBI shall not use, print, copy, reproduce or disclose the software or documentation in whole or in part except as is expressly permitted by the agreement nor shall SBI permit any of the foregoing. SBI is also barred from allowing access to its software or documentation except what is permitted under the agreement. Again SBI is barred from selling, charging or otherwise making the software or documentation available to any person except what is expressly permitted under the agreement. Clause 6.5 of the agreement says that SBI shall not copy or permit copying of the software supplied to it by Kindle save as may be strictly required for delivery to licence sites. The terms of the agreement also apply to the copies. | 1[ds]11. The agreement is dated June 29, 1991 between the SBI and Kindle (the licensor) and is for the supply and support of software. It is a detailed one runs into 30 parts with various clauses and Schedules. If we refer to some of the relevant clauses we find that Kindle is to provide a software to the SBI along with manuals for the internal requirements only of SBI which shall be entitled to use of the software or any part thereof to process all or part of the actual business transactions of SBI, in parallel or live mode. Use of the software is strictly confined to the employees of the SBI at any branch or office of SBI in India called licence site. Software and manuals are to be delivered at one place called Support center where SBI shall maintain its principal team of support personnel for licence sites in the country. Use means copying of any portion of software into a machine and then processing of the machine instructions etc. Kindle has granted to SBI a non-transferable and non-exclusive licence to use the software in India and to provide technical assistance in the implementation of the software at the licence sites. Use of the software and manual by the SBI is under terms of strict confidentiality. SBI is forbidden to copy or promote a copy of the software save as may be strictly required for delivery to the licence sites. Use of the software and manual outside the term of the agreement is also forbidden. Schedule-11 to the agreement describes the licensed software modules and single site licence fees totalling US $401,047. The whole software package consisting of 12 modules is called BANK MASTER. For this licence fee is US $ 422,322 but since all the Modules were not agreed to be supplied the licence fee for single site came to US $ 401,047. Schedule-II describes the initial licence fees and recurring licence fees. Initial licence fees for a countrywide licence in India for the software modules specified in Schedule-I for use under the terms of the agreement shall be US $ 4,084,475. This fee would be for a period of five years. Thereafter, it is the annual recurring licence fees as described in the agreement.. The case of the SBI is that only one set of diskettes was imported which comprised the software programme. This was to be kept in the Support Center at Bombay and as and when the software programme had to be made available to the branches of the Bank copies of these programmes were to be taken on blank floppies and sent to branches for use. It was stated that this process is reproduction. The agreement refers to licence fee payable in respect of single site in Schedule-I and Schedule-II refers to the fee for the countrywide licence and both are indicated separately. The claim for refund was in respect of Schedule-II. Though the original invoice did not show the split up the detailed invoice which was received later on did show licence fee for use at single site (including cost of manuals and diskettes) and that for the right to use countrywide. It is on that account it was submitted that software could be made available to branches only by reproduction process at the support center and that licence fees charged for right to use countrywide is reproduction charges and the same, therefore, could not be charged to duty.15. It is not, however, clear as to why the second invoice giving details having the same invoice number and the date was not available at the time of original assessment. Mr. Nariman could not give clear answer to that. He, however, stressed that details were already there on the back of Bill of Entry in the form of declaration, which we have reproduced above. This does not appear to be correct. This declaration appears to have been filed subsequently at the time of claiming refund. There is no mention of split up of charges anywhere in the body of the Bill of Entry. In column 9 of the Bill of Entry assessable value under Section 14 of the Customs Act has been shown as Rs. 10,75,70,267/-. There is no indication whatsoever that any other document towards declaration was filed showing different chargesone for the use of the software at single site and the other for use of the software countrywide. This certainly appears to us to be an after thought. At the time when Bill of Entry was filed there is no doubt that what was mentioned in column 9 was the transaction value which is covered by the definition given in Clause (f) of Rule 2 of the Rules.If we refer to the agreement, software is not sold to the SBI as such but it was to remain property of Kindle. There is no other value of the software indicated in the agreement except the licence fee. Price is payable only for allowing SBI to use the software in a limited way at its own centers for a limited period and that is why the amount charged is called the licence fee. After five years SBI is required to pay only recurring licence fee. Countrywide use of the software and reproduction of software are two different things and licence fee for countrywide use cannot be considered as the charges for the right to reproduce the imported goods. Under the agreement copying, storage, removal, etc. are under the strict control of kindle and all copies are the property of the Kindle. SBI can use the software for its internal requirements only. Licence has been given to SBI to use the property of Kindle at its branches and not for reproduction of the software as claimed by the SBI. The words in the agreement are specific that SBI shall pay the licensor the initial licence fee and the recurring licence fees for use under the provisions of this agreement.17. It is difficult to accept the contention of the SBI that the countrywide licence fee paid by it is basically the reproduction charges only and by virtue of interpretative note to Rule 9(1)(c) the said charges could not be included in the assessable value for the purpose of levying of customs duty. Countrywide licence fee paid by SBI is not the same as the charges for the right to reproduce as envisaged in the interpretative note to Rule 9(1)(c). Total cost incurred would be transaction value on which customs duty has to be charged and total cost for the purpose of assessment of customs duty would include single site licence fee as well as countrywide licence fee. Rule 3(1) of the Rules provides that value of the imported goods shall be transaction value as defined by Rule 4 and which in the present case would mean the price actually paid or payable for the goods when sold for export to India. The amount payable to the supplier was US $ 4,084,475 which was correctly taken as assessable value.18. We may also take notice of the argument of the SBI that reproduction or making copies is unavoidable in its case as it has to have a countrywide computer network which works on LAN (Local Area Network) version and is not a mainframe system. In the case of mainframe it is possible to use the programme countrywide without having to reproduce software. But then even in such a situation SBI would have to pay the licence fee for countrywide use because it is the extent of the use which is determinative of the quantum of the licence fee. The act of reproduction is only the intermediary stage in the process of putting the programme to countrywide productive use. The term productive use has been defined in Clause 1.8 of the agreement which means use of software or any part thereof to process all or part of SBIs actual business transaction in parallel or live mode. The amount of US $ 3,683,428 has been paid as licence fee for countrywide use of software to process all or part of SBIs actual business transaction and not for acquiring the right to use the software programme.19. Kindle supplied to the SBI countrywide licence for India of software package containing various modules as given in the invoice and consisting of 46 diskettes and 82 manuals (including cost of insurance and freight) for US $ 4,084,475.00. This amount in the subsequent invoice was bifurcated into (I) Licence Fee for use of software package at single site (including cost of 82 manuals and 46 diskettes of US $ 14,300) - US $ 401,047 and (2) Licencing Fee for right to use countrywideUS $ 3,683,428.00 (totalling US $ 4,084,475).20. Reproduction and use are two different things. Now under the agreement user is specifically limited to licence sites. Transaction as a whole is to be seen. Press Note is of no help to the SBI. Rule 9(1)(c) and the interpretative note thereto did not apply as nothing was added to the price actually paid for the imported goods by way of royalties etc. Refund would be allowable only if there was something added on to the royalty payment which was not in the present case. The invoice originally presented was complete in itself. Second invoice was not filed along with the Bill of Entry. In the second invoice also it is licence fee for right to use countrywide and it is not right to reproduce as claimed by the SBI. Schedule I to the agreement is module and copies are modalities for the use of software by the SBI with various restrictions. If we again refer to Clause 6.4 of the agreement there is a complete restraint on SBI which says SBI shall not use, print, copy, reproduce or disclose the software or documentation in whole or in part except as is expressly permitted by the agreement nor shall SBI permit any of the foregoing. SBI is also barred from allowing access to its software or documentation except what is permitted under the agreement. Again SBI is barred from selling, charging or otherwise making the software or documentation available to any person except what is expressly permitted under the agreement. Clause 6.5 of the agreement says that SBI shall not copy or permit copying of the software supplied to it by Kindle save as may be strictly required for delivery to licence sites. The terms of the agreement also apply to the copies. | 1 | 5,361 | 1,885 | ### 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:
countrywide use of software in the second invoice could be the charges for the right to reproduction and were these added to the price actually paid or payable for the imported goods. If we refer to the agreement, software is not sold to the SBI as such but it was to remain property of Kindle. There is no other value of the software indicated in the agreement except the licence fee. Price is payable only for allowing SBI to use the software in a limited way at its own centers for a limited period and that is why the amount charged is called the licence fee. After five years SBI is required to pay only recurring licence fee. Countrywide use of the software and reproduction of software are two different things and licence fee for countrywide use cannot be considered as the charges for the right to reproduce the imported goods. Under the agreement copying, storage, removal, etc. are under the strict control of kindle and all copies are the property of the Kindle. SBI can use the software for its internal requirements only. Licence has been given to SBI to use the property of Kindle at its branches and not for reproduction of the software as claimed by the SBI. The words in the agreement are specific that SBI shall pay the licensor the initial licence fee and the recurring licence fees for use under the provisions of this agreement. 17. It is difficult to accept the contention of the SBI that the countrywide licence fee paid by it is basically the reproduction charges only and by virtue of interpretative note to Rule 9(1)(c) the said charges could not be included in the assessable value for the purpose of levying of customs duty. Countrywide licence fee paid by SBI is not the same as the charges for the right to reproduce as envisaged in the interpretative note to Rule 9(1)(c). Total cost incurred would be transaction value on which customs duty has to be charged and total cost for the purpose of assessment of customs duty would include single site licence fee as well as countrywide licence fee. Rule 3(1) of the Rules provides that value of the imported goods shall be transaction value as defined by Rule 4 and which in the present case would mean the price actually paid or payable for the goods when sold for export to India. The amount payable to the supplier was US $ 4,084,475 which was correctly taken as assessable value. 18. We may also take notice of the argument of the SBI that reproduction or making copies is unavoidable in its case as it has to have a countrywide computer network which works on LAN (Local Area Network) version and is not a mainframe system. In the case of mainframe it is possible to use the programme countrywide without having to reproduce software. But then even in such a situation SBI would have to pay the licence fee for countrywide use because it is the extent of the use which is determinative of the quantum of the licence fee. The act of reproduction is only the intermediary stage in the process of putting the programme to countrywide productive use. The term productive use has been defined in Clause 1.8 of the agreement which means use of software or any part thereof to process all or part of SBIs actual business transaction in parallel or live mode. The amount of US $ 3,683,428 has been paid as licence fee for countrywide use of software to process all or part of SBIs actual business transaction and not for acquiring the right to use the software programme. 19. Kindle supplied to the SBI countrywide licence for India of software package containing various modules as given in the invoice and consisting of 46 diskettes and 82 manuals (including cost of insurance and freight) for US $ 4,084,475.00. This amount in the subsequent invoice was bifurcated into (I) Licence Fee for use of software package at single site (including cost of 82 manuals and 46 diskettes of US $ 14,300) - US $ 401,047 and (2) Licencing Fee for right to use countrywide -- US $ 3,683,428.00 (totalling US $ 4,084,475). 20. Reproduction and use are two different things. Now under the agreement user is specifically limited to licence sites. Transaction as a whole is to be seen. Press Note is of no help to the SBI. Rule 9(1)(c) and the interpretative note thereto did not apply as nothing was added to the price actually paid for the imported goods by way of royalties etc. Refund would be allowable only if there was something added on to the royalty payment which was not in the present case. The invoice originally presented was complete in itself. Second invoice was not filed along with the Bill of Entry. In the second invoice also it is licence fee for right to use countrywide and it is not right to reproduce as claimed by the SBI. Schedule I to the agreement is module and copies are modalities for the use of software by the SBI with various restrictions. If we again refer to Clause 6.4 of the agreement there is a complete restraint on SBI which says SBI shall not use, print, copy, reproduce or disclose the software or documentation in whole or in part except as is expressly permitted by the agreement nor shall SBI permit any of the foregoing. SBI is also barred from allowing access to its software or documentation except what is permitted under the agreement. Again SBI is barred from selling, charging or otherwise making the software or documentation available to any person except what is expressly permitted under the agreement. Clause 6.5 of the agreement says that SBI shall not copy or permit copying of the software supplied to it by Kindle save as may be strictly required for delivery to licence sites. The terms of the agreement also apply to the copies.
### Response:
1
### Explanation:
the time when Bill of Entry was filed there is no doubt that what was mentioned in column 9 was the transaction value which is covered by the definition given in Clause (f) of Rule 2 of the Rules.If we refer to the agreement, software is not sold to the SBI as such but it was to remain property of Kindle. There is no other value of the software indicated in the agreement except the licence fee. Price is payable only for allowing SBI to use the software in a limited way at its own centers for a limited period and that is why the amount charged is called the licence fee. After five years SBI is required to pay only recurring licence fee. Countrywide use of the software and reproduction of software are two different things and licence fee for countrywide use cannot be considered as the charges for the right to reproduce the imported goods. Under the agreement copying, storage, removal, etc. are under the strict control of kindle and all copies are the property of the Kindle. SBI can use the software for its internal requirements only. Licence has been given to SBI to use the property of Kindle at its branches and not for reproduction of the software as claimed by the SBI. The words in the agreement are specific that SBI shall pay the licensor the initial licence fee and the recurring licence fees for use under the provisions of this agreement.17. It is difficult to accept the contention of the SBI that the countrywide licence fee paid by it is basically the reproduction charges only and by virtue of interpretative note to Rule 9(1)(c) the said charges could not be included in the assessable value for the purpose of levying of customs duty. Countrywide licence fee paid by SBI is not the same as the charges for the right to reproduce as envisaged in the interpretative note to Rule 9(1)(c). Total cost incurred would be transaction value on which customs duty has to be charged and total cost for the purpose of assessment of customs duty would include single site licence fee as well as countrywide licence fee. Rule 3(1) of the Rules provides that value of the imported goods shall be transaction value as defined by Rule 4 and which in the present case would mean the price actually paid or payable for the goods when sold for export to India. The amount payable to the supplier was US $ 4,084,475 which was correctly taken as assessable value.18. We may also take notice of the argument of the SBI that reproduction or making copies is unavoidable in its case as it has to have a countrywide computer network which works on LAN (Local Area Network) version and is not a mainframe system. In the case of mainframe it is possible to use the programme countrywide without having to reproduce software. But then even in such a situation SBI would have to pay the licence fee for countrywide use because it is the extent of the use which is determinative of the quantum of the licence fee. The act of reproduction is only the intermediary stage in the process of putting the programme to countrywide productive use. The term productive use has been defined in Clause 1.8 of the agreement which means use of software or any part thereof to process all or part of SBIs actual business transaction in parallel or live mode. The amount of US $ 3,683,428 has been paid as licence fee for countrywide use of software to process all or part of SBIs actual business transaction and not for acquiring the right to use the software programme.19. Kindle supplied to the SBI countrywide licence for India of software package containing various modules as given in the invoice and consisting of 46 diskettes and 82 manuals (including cost of insurance and freight) for US $ 4,084,475.00. This amount in the subsequent invoice was bifurcated into (I) Licence Fee for use of software package at single site (including cost of 82 manuals and 46 diskettes of US $ 14,300) - US $ 401,047 and (2) Licencing Fee for right to use countrywideUS $ 3,683,428.00 (totalling US $ 4,084,475).20. Reproduction and use are two different things. Now under the agreement user is specifically limited to licence sites. Transaction as a whole is to be seen. Press Note is of no help to the SBI. Rule 9(1)(c) and the interpretative note thereto did not apply as nothing was added to the price actually paid for the imported goods by way of royalties etc. Refund would be allowable only if there was something added on to the royalty payment which was not in the present case. The invoice originally presented was complete in itself. Second invoice was not filed along with the Bill of Entry. In the second invoice also it is licence fee for right to use countrywide and it is not right to reproduce as claimed by the SBI. Schedule I to the agreement is module and copies are modalities for the use of software by the SBI with various restrictions. If we again refer to Clause 6.4 of the agreement there is a complete restraint on SBI which says SBI shall not use, print, copy, reproduce or disclose the software or documentation in whole or in part except as is expressly permitted by the agreement nor shall SBI permit any of the foregoing. SBI is also barred from allowing access to its software or documentation except what is permitted under the agreement. Again SBI is barred from selling, charging or otherwise making the software or documentation available to any person except what is expressly permitted under the agreement. Clause 6.5 of the agreement says that SBI shall not copy or permit copying of the software supplied to it by Kindle save as may be strictly required for delivery to licence sites. The terms of the agreement also apply to the copies.
|
Wahab Uddin & Ors Vs. Km. Meenakshi Gahlot & Ors | in the year 1987. They never applied for the post of Hindi Stenographers in the year 1987. Since there were no vacancies of English Stenographers in the District Court, Moradabad no appointments were made and appellants were not appointed on the post of English Stenographers of which they applied. However, they were placed on the select list on 14.07.1987. As per Rule 14(3) of the Rules, 1947 the validity of the select list was for one year and therefore, the said select list dated 14.07.1987 came to an end on 13.07.1988. Thereafter the appellants could not have claimed any appointment on the basis of the expired select list. However, it appears that there were some leave vacancies of temporary nature in the post of Hindi Stenographers and therefore, the appellants were appointed purely on temporary basis on the said leave vacancies, for a period of one month from 14.10.1987 to 15.11.1987. At this stage, it is required to be noted that in the appointment letter itself it was stated that their appointment shall be terminated once the regular employees resume their duties. It is not in dispute that thereafter a fresh examination was conducted for the post of Hindi Stenographers on 24.09.1988 and Respondent Nos. 1 to 3 were appointed. However, thereafter though the services of the appellants were required to be terminated on the Respondent Nos. 1 to 3 being selected for the post of Hindi Stenographers, pursuant to the communication dated 22.05.1990 by the Deputy Registrar, High Court by which it was directed that the approved list of ex-stenos and Hindi Stenos dated 14.07.1987 be prepared and their names be arranged in the order of merit, and though the appellants failed to clear the speed test for the post of Hindi Stenographers as required as per Rule 5(c) of the Rules, 1947, the District Judge, Moradabad appointed the appellants and terminated the services of Respondent Nos. 1 to 3. The appointment of the appellants and the termination of the Respondent Nos. 1 to 3 has been rightly quashed and set aside by the High Court, firstly on the ground that in the year 1990 no direction could have been issued to make the appointment on the basis of the select list dated 14.07.1987 as the select list dated 14.07.1987 expired and came to an end on 13.07.1988; secondly, the appellants failed to clear/pass the speed test for the post of Hindi Stenographers; thirdly, the appellants were never appointed after following due procedure of selection, against which the Respondent Nos. 1 to 3 were selected and appointed pursuant to the fresh examination which was conducted for the post of Hindi Stenographers on 24.09.1988 and thereafter they were appointed after following due procedure of selection and that the appointment of the appellants in the year 1987 was against the leave vacancies and in the appointment order itself it was specifically mentioned that their appointment shall be terminated once the regular employees resume their duties. Considering the aforesaid facts and circumstances, the High Court has rightly quashed and set aside the appointment of the appellants and has rightly quashed and set aside the orders terminating the services of Respondent Nos. 1 to 3 who were selected after due process and in accordance with the Rules, 1947. The submission on behalf of the appellants that the Respondent Nos. 1 to 3 were appointed in the year 2012 is factually incorrect as in the year 1988 itself Respondent Nos. 1 to 3 were appointed and their services were terminated in the year 1990 by the District Judge, Moradabad and the appellants were appointed and thereafter pursuant to the interim orders passed by the Division Bench of the High Court, the Respondent Nos. 1 to 3 were also accommodated in the year 2012. Therefore, as such the Respondent Nos. 1 to 3 have suffered for the period between 1992 - 2012 for no fault of them and though they were selected and appointed after following due procedure of selection. In fact, the appellants have gained illegally and they were continued in service pursuant to the interim order of the High Court. Once the appellants continued on the aforementioned post pursuant to the interim order passed by the High Court and their appointment is subsequently held to be bad in law and not only that their continuation in service is also held to be bad in law, thereafter they cannot be permitted to submit that as they worked for a long time their services should be protected, though their appointments are not legally tenable. Once their appointments are held to be illegal and it is held that they have no right to continue on the post to be occupied by other eligible candidates, the necessary consequences shall follow. Once the Respondent Nos.1 to 3 are to be accommodated and/or appointed who were selected after due process and the appointment of the appellants were on leave vacancies with a specific condition in the appointment order that their appointment shall be terminated once the regular employees resume their duties, necessary consequences shall follow and the services of the appellants are to be terminated and/or put to an end. Unfortunately, it has so happened that after 2012 on the post of Hindi Stenographers the appellants as well as Respondent Nos. 1 to 3 are working, which is not permissible. There cannot be appointment of two persons on one sanctioned post. Otherwise, there will be financial burden on the State of two persons on one sanctioned post. Under the circumstances the prayer of the appellants to continue them in services and to pay them pensionary benefits etc. also cannot be granted. Appellants are not entitled to any relief. In fact, they are benefitted by continuing in the service after 1988 though their services were required to be put to an end after the fresh selection in the year 1988 and after the Respondent Nos. 1 to 3 were appointed after following due process and procedure as per Rules, 1947. | 0[ds]9. At the outset, it is required to be noted that initially the appellants participated in the selection process for the post of English Stenographers in the year 1987. They never applied for the post of Hindi Stenographers in the year 1987. Since there were no vacancies of English Stenographers in the District Court, Moradabad no appointments were made and appellants were not appointed on the post of English Stenographers of which they applied. However, they were placed on the select list on 14.07.1987. As per Rule 14(3) of the Rules, 1947 the validity of the select list was for one year and therefore, the said select list dated 14.07.1987 came to an end on 13.07.1988. Thereafter the appellants could not have claimed any appointment on the basis of the expired select list. However, it appears that there were some leave vacancies of temporary nature in the post of Hindi Stenographers and therefore, the appellants were appointed purely on temporary basis on the said leave vacancies, for a period of one month from 14.10.1987 to 15.11.1987. At this stage, it is required to be noted that in the appointment letter itself it was stated that their appointment shall be terminated once the regular employees resume their duties. It is not in dispute that thereafter a fresh examination was conducted for the post of Hindi Stenographers on 24.09.1988 and Respondent Nos. 1 to 3 were appointed. However, thereafter though the services of the appellants were required to be terminated on the Respondent Nos. 1 to 3 being selected for the post of Hindi Stenographers, pursuant to the communication dated 22.05.1990 by the Deputy Registrar, High Court by which it was directed that the approved list of ex-stenos and Hindi Stenos dated 14.07.1987 be prepared and their names be arranged in the order of merit, and though the appellants failed to clear the speed test for the post of Hindi Stenographers as required as per Rule 5(c) of the Rules, 1947, the District Judge, Moradabad appointed the appellants and terminated the services of Respondent Nos. 1 to 3. The appointment of the appellants and the termination of the Respondent Nos. 1 to 3 has been rightly quashed and set aside by the High Court, firstly on the ground that in the year 1990 no direction could have been issued to make the appointment on the basis of the select list dated 14.07.1987 as the select list dated 14.07.1987 expired and came to an end on 13.07.1988; secondly, the appellants failed to clear/pass the speed test for the post of Hindi Stenographers; thirdly, the appellants were never appointed after following due procedure of selection, against which the Respondent Nos. 1 to 3 were selected and appointed pursuant to the fresh examination which was conducted for the post of Hindi Stenographers on 24.09.1988 and thereafter they were appointed after following due procedure of selection and that the appointment of the appellants in the year 1987 was against the leave vacancies and in the appointment order itself it was specifically mentioned that their appointment shall be terminated once the regular employees resume their duties. Considering the aforesaid facts and circumstances, the High Court has rightly quashed and set aside the appointment of the appellants and has rightly quashed and set aside the orders terminating the services of Respondent Nos. 1 to 3 who were selected after due process and in accordance with the Rules, 1947.The submission on behalf of the appellants that the Respondent Nos. 1 to 3 were appointed in the year 2012 is factually incorrect as in the year 1988 itself Respondent Nos. 1 to 3 were appointed and their services were terminated in the year 1990 by the District Judge, Moradabad and the appellants were appointed and thereafter pursuant to the interim orders passed by the Division Bench of the High Court, the Respondent Nos. 1 to 3 were also accommodated in the year 2012. Therefore, as such the Respondent Nos. 1 to 3 have suffered for the period between 1992 - 2012 for no fault of them and though they were selected and appointed after following due procedure of selection. In fact, the appellants have gained illegally and they were continued in service pursuant to the interim order of the High Court. Once the appellants continued on the aforementioned post pursuant to the interim order passed by the High Court and their appointment is subsequently held to be bad in law and not only that their continuation in service is also held to be bad in law, thereafter they cannot be permitted to submit that as they worked for a long time their services should be protected, though their appointments are not legally tenable. Once their appointments are held to be illegal and it is held that they have no right to continue on the post to be occupied by other eligible candidates, the necessary consequences shall follow. Once the Respondent Nos.1 to 3 are to be accommodated and/or appointed who were selected after due process and the appointment of the appellants were on leave vacancies with a specific condition in the appointment order that their appointment shall be terminated once the regular employees resume their duties, necessary consequences shall follow and the services of the appellants are to be terminated and/or put to an end. Unfortunately, it has so happened that after 2012 on the post of Hindi Stenographers the appellants as well as Respondent Nos. 1 to 3 are working, which is not permissible. There cannot be appointment of two persons on one sanctioned post. Otherwise, there will be financial burden on the State of two persons on one sanctioned post. Under the circumstances the prayer of the appellants to continue them in services and to pay them pensionary benefits etc. also cannot be granted. Appellants are not entitled to any relief. In fact, they are benefitted by continuing in the service after 1988 though their services were required to be put to an end after the fresh selection in the year 1988 and after the Respondent Nos. 1 to 3 were appointed after following due process and procedure as per Rules, 1947. | 0 | 2,973 | 1,111 | ### 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 the year 1987. They never applied for the post of Hindi Stenographers in the year 1987. Since there were no vacancies of English Stenographers in the District Court, Moradabad no appointments were made and appellants were not appointed on the post of English Stenographers of which they applied. However, they were placed on the select list on 14.07.1987. As per Rule 14(3) of the Rules, 1947 the validity of the select list was for one year and therefore, the said select list dated 14.07.1987 came to an end on 13.07.1988. Thereafter the appellants could not have claimed any appointment on the basis of the expired select list. However, it appears that there were some leave vacancies of temporary nature in the post of Hindi Stenographers and therefore, the appellants were appointed purely on temporary basis on the said leave vacancies, for a period of one month from 14.10.1987 to 15.11.1987. At this stage, it is required to be noted that in the appointment letter itself it was stated that their appointment shall be terminated once the regular employees resume their duties. It is not in dispute that thereafter a fresh examination was conducted for the post of Hindi Stenographers on 24.09.1988 and Respondent Nos. 1 to 3 were appointed. However, thereafter though the services of the appellants were required to be terminated on the Respondent Nos. 1 to 3 being selected for the post of Hindi Stenographers, pursuant to the communication dated 22.05.1990 by the Deputy Registrar, High Court by which it was directed that the approved list of ex-stenos and Hindi Stenos dated 14.07.1987 be prepared and their names be arranged in the order of merit, and though the appellants failed to clear the speed test for the post of Hindi Stenographers as required as per Rule 5(c) of the Rules, 1947, the District Judge, Moradabad appointed the appellants and terminated the services of Respondent Nos. 1 to 3. The appointment of the appellants and the termination of the Respondent Nos. 1 to 3 has been rightly quashed and set aside by the High Court, firstly on the ground that in the year 1990 no direction could have been issued to make the appointment on the basis of the select list dated 14.07.1987 as the select list dated 14.07.1987 expired and came to an end on 13.07.1988; secondly, the appellants failed to clear/pass the speed test for the post of Hindi Stenographers; thirdly, the appellants were never appointed after following due procedure of selection, against which the Respondent Nos. 1 to 3 were selected and appointed pursuant to the fresh examination which was conducted for the post of Hindi Stenographers on 24.09.1988 and thereafter they were appointed after following due procedure of selection and that the appointment of the appellants in the year 1987 was against the leave vacancies and in the appointment order itself it was specifically mentioned that their appointment shall be terminated once the regular employees resume their duties. Considering the aforesaid facts and circumstances, the High Court has rightly quashed and set aside the appointment of the appellants and has rightly quashed and set aside the orders terminating the services of Respondent Nos. 1 to 3 who were selected after due process and in accordance with the Rules, 1947. The submission on behalf of the appellants that the Respondent Nos. 1 to 3 were appointed in the year 2012 is factually incorrect as in the year 1988 itself Respondent Nos. 1 to 3 were appointed and their services were terminated in the year 1990 by the District Judge, Moradabad and the appellants were appointed and thereafter pursuant to the interim orders passed by the Division Bench of the High Court, the Respondent Nos. 1 to 3 were also accommodated in the year 2012. Therefore, as such the Respondent Nos. 1 to 3 have suffered for the period between 1992 - 2012 for no fault of them and though they were selected and appointed after following due procedure of selection. In fact, the appellants have gained illegally and they were continued in service pursuant to the interim order of the High Court. Once the appellants continued on the aforementioned post pursuant to the interim order passed by the High Court and their appointment is subsequently held to be bad in law and not only that their continuation in service is also held to be bad in law, thereafter they cannot be permitted to submit that as they worked for a long time their services should be protected, though their appointments are not legally tenable. Once their appointments are held to be illegal and it is held that they have no right to continue on the post to be occupied by other eligible candidates, the necessary consequences shall follow. Once the Respondent Nos.1 to 3 are to be accommodated and/or appointed who were selected after due process and the appointment of the appellants were on leave vacancies with a specific condition in the appointment order that their appointment shall be terminated once the regular employees resume their duties, necessary consequences shall follow and the services of the appellants are to be terminated and/or put to an end. Unfortunately, it has so happened that after 2012 on the post of Hindi Stenographers the appellants as well as Respondent Nos. 1 to 3 are working, which is not permissible. There cannot be appointment of two persons on one sanctioned post. Otherwise, there will be financial burden on the State of two persons on one sanctioned post. Under the circumstances the prayer of the appellants to continue them in services and to pay them pensionary benefits etc. also cannot be granted. Appellants are not entitled to any relief. In fact, they are benefitted by continuing in the service after 1988 though their services were required to be put to an end after the fresh selection in the year 1988 and after the Respondent Nos. 1 to 3 were appointed after following due process and procedure as per Rules, 1947.
### Response:
0
### Explanation:
Stenographers in the year 1987. They never applied for the post of Hindi Stenographers in the year 1987. Since there were no vacancies of English Stenographers in the District Court, Moradabad no appointments were made and appellants were not appointed on the post of English Stenographers of which they applied. However, they were placed on the select list on 14.07.1987. As per Rule 14(3) of the Rules, 1947 the validity of the select list was for one year and therefore, the said select list dated 14.07.1987 came to an end on 13.07.1988. Thereafter the appellants could not have claimed any appointment on the basis of the expired select list. However, it appears that there were some leave vacancies of temporary nature in the post of Hindi Stenographers and therefore, the appellants were appointed purely on temporary basis on the said leave vacancies, for a period of one month from 14.10.1987 to 15.11.1987. At this stage, it is required to be noted that in the appointment letter itself it was stated that their appointment shall be terminated once the regular employees resume their duties. It is not in dispute that thereafter a fresh examination was conducted for the post of Hindi Stenographers on 24.09.1988 and Respondent Nos. 1 to 3 were appointed. However, thereafter though the services of the appellants were required to be terminated on the Respondent Nos. 1 to 3 being selected for the post of Hindi Stenographers, pursuant to the communication dated 22.05.1990 by the Deputy Registrar, High Court by which it was directed that the approved list of ex-stenos and Hindi Stenos dated 14.07.1987 be prepared and their names be arranged in the order of merit, and though the appellants failed to clear the speed test for the post of Hindi Stenographers as required as per Rule 5(c) of the Rules, 1947, the District Judge, Moradabad appointed the appellants and terminated the services of Respondent Nos. 1 to 3. The appointment of the appellants and the termination of the Respondent Nos. 1 to 3 has been rightly quashed and set aside by the High Court, firstly on the ground that in the year 1990 no direction could have been issued to make the appointment on the basis of the select list dated 14.07.1987 as the select list dated 14.07.1987 expired and came to an end on 13.07.1988; secondly, the appellants failed to clear/pass the speed test for the post of Hindi Stenographers; thirdly, the appellants were never appointed after following due procedure of selection, against which the Respondent Nos. 1 to 3 were selected and appointed pursuant to the fresh examination which was conducted for the post of Hindi Stenographers on 24.09.1988 and thereafter they were appointed after following due procedure of selection and that the appointment of the appellants in the year 1987 was against the leave vacancies and in the appointment order itself it was specifically mentioned that their appointment shall be terminated once the regular employees resume their duties. Considering the aforesaid facts and circumstances, the High Court has rightly quashed and set aside the appointment of the appellants and has rightly quashed and set aside the orders terminating the services of Respondent Nos. 1 to 3 who were selected after due process and in accordance with the Rules, 1947.The submission on behalf of the appellants that the Respondent Nos. 1 to 3 were appointed in the year 2012 is factually incorrect as in the year 1988 itself Respondent Nos. 1 to 3 were appointed and their services were terminated in the year 1990 by the District Judge, Moradabad and the appellants were appointed and thereafter pursuant to the interim orders passed by the Division Bench of the High Court, the Respondent Nos. 1 to 3 were also accommodated in the year 2012. Therefore, as such the Respondent Nos. 1 to 3 have suffered for the period between 1992 - 2012 for no fault of them and though they were selected and appointed after following due procedure of selection. In fact, the appellants have gained illegally and they were continued in service pursuant to the interim order of the High Court. Once the appellants continued on the aforementioned post pursuant to the interim order passed by the High Court and their appointment is subsequently held to be bad in law and not only that their continuation in service is also held to be bad in law, thereafter they cannot be permitted to submit that as they worked for a long time their services should be protected, though their appointments are not legally tenable. Once their appointments are held to be illegal and it is held that they have no right to continue on the post to be occupied by other eligible candidates, the necessary consequences shall follow. Once the Respondent Nos.1 to 3 are to be accommodated and/or appointed who were selected after due process and the appointment of the appellants were on leave vacancies with a specific condition in the appointment order that their appointment shall be terminated once the regular employees resume their duties, necessary consequences shall follow and the services of the appellants are to be terminated and/or put to an end. Unfortunately, it has so happened that after 2012 on the post of Hindi Stenographers the appellants as well as Respondent Nos. 1 to 3 are working, which is not permissible. There cannot be appointment of two persons on one sanctioned post. Otherwise, there will be financial burden on the State of two persons on one sanctioned post. Under the circumstances the prayer of the appellants to continue them in services and to pay them pensionary benefits etc. also cannot be granted. Appellants are not entitled to any relief. In fact, they are benefitted by continuing in the service after 1988 though their services were required to be put to an end after the fresh selection in the year 1988 and after the Respondent Nos. 1 to 3 were appointed after following due process and procedure as per Rules, 1947.
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Hindustan Brown Boveri Ltd. Etc Vs. State Of Gujarat | immediately on the goods being manufactured by the appellants as at that stage the goods were really taxable and that a subsequent event of sale to the electrical undertaking cannot be considered as having violated the said condition. The third ground urged by the appellants is that a transaction of sale involved two facets-a sale and a purchase and if a sale is exempted from tax, it cannot be said the purchase is also exempted. On the above footing it is contended that since under section 49(2) only the tax on sale is exempted and nothing is said a bout the liability of the purchaser to tax, it cannot be said that the goods which were otherwise taxable had become non- taxable on being sold under a transaction which attracted section 49(2) of the Act.11. We find no substance in any of t he three grounds urged on behalf of the appellants for the reason that the present case is governed by the definition of the expression taxable goods in section 2(33) of the Act. It is interesting to note that the Bombay Sales Tax Act, 1959 (Bombay Act No. 1 of 1959) which was in force in the State of Gujarat before the Act came into force and which was repealed by section 88 of the Act contained the definition of the expression taxable goods in section 2(33) thereof. T he expression taxable goods was defined in the Bombay Act as goods other than those on the sale or purchase of which no tax is payable under section 5. In the Bombay Act there was also a provision corresponding to section 49 of the Act in section 4 1 thereof which empowered the State Government subject to such conditions as it may impose to exempt by a notification published in the Official Gazette any specified class of sales or purchases from payment of the whole or any part of any tax payable thereunder if the State Government was satisfied that it was necessary so to do in the public interest. Still the definition of taxable goods in that Act did not refer to sales exempted under section 41 thereof. But in the Act which repealed and replaced the Bombay Act the meaning of the expression taxable goods has been narrowed down as section 2(33) of the Act reads taxable goods means goods other than those on the sale or purchase of which no tax is payable under section 5 (which corresponds to section 5 of the Bombay Act) and section 49 of the Act (which corresponds to section 41 of the Bombay Act) or a notification issued thereunder. By this definition, the dichotomy that is stated to exist between taxable goods and taxable events has been given a go by. It may be that section 5 and Schedule I refer to goods only but section 49 deals with only taxable events which result in the exemption from payment of tax on the conditions mentioned th erein or in the notification issued thereunder being satisfied even though the goods in question do not come under Schedule I. Secondly one has to wait till the disposal of the goods by the dealer to find out whether the goods are taxable goods or not in view of the definition of the said expression which takes away goods sold under circumstances attracting section 49 from the scope of the meaning of that expression. Nor does the third ground survive for the very same reason. If the sale is exempt from tax under section 49 of the Act, the goods sold would not be taxable goods. We need not go into the question whether the purchaser in a sale under section 49 of the Act has to pay tax in these cases. This reason also disposes o f an allied argument of the appellants that the possibility of any liability arising under section 50 of the Act on the breach of any condition imposed by section 49 or the notification issued thereunder would absolve the appellants of their liability to pay the tax under section 16 of the Act. Any such levy made under section 50 has not been shown to have any effect in law on the liability of the appellants under section 16.The scheme of the Act appears to be that sales tax should be levied on goods which are not included in Schedule I at least once inside the State in the series of sales and purchases even though they may have been converted into manufactured goods and that is why Form No. 19 requires the purchaser to state that the goods will be used by him as raw or processing materials or as consumable stores in the manufacture of taxable goods for sale by him inside the State and section 16 of the Act provides that where any dealer has purchased any taxable goods under a certificate given by him under section 12 or section 13 of the Act and contrary to such certificate the goods are used for another purpose or are not resold or despatched in the manner and within the period certified or on the resales in the course of inter-State trade or commerce, of the goods so purchased no tax under the Central Sales Tax Act is actually payable by him on account of any deductions admissible under any of the provisions of that Act, then such dealer shall b e liable to pay tax on the purchase price of the goods purchased under such certificate. The deliberate alteration of the definition of taxable goods in the Act also is attributable to the said intention of the State legislature.12. The appellants also cannot derive any assistance from the decision of this Court in Polestar Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales Tax and Anr. as these cases are governed by the provisions of the Act and as there appears to be no similarity between the facts of these appeals and the facts involved in that case.13. | 0[ds]The solution to the question, therefore, lies on the true meaning of the expression taxablefind no substance in any of t he three grounds urged on behalf of the appellants for the reason that the present case is governed by the definition of the expression taxable goods in section 2(33) of the Act. It is interesting to note that the Bombay Sales Tax Act, 1959 (Bombay Act No. 1 of 1959) which was in force in the State of Gujarat before the Act came into force and which was repealed by section 88 of the Act contained the definition of the expression taxable goods in section 2(33) thereof. T he expression taxable goods was defined in the Bombay Act as goods other than those on the sale or purchase of which no tax is payable under section 5. In the Bombay Act there was also a provision corresponding to section 49 of the Act in section 4 1 thereof which empowered the State Government subject to such conditions as it may impose to exempt by a notification published in the Official Gazette any specified class of sales or purchases from payment of the whole or any part of any tax payable thereunder if the State Government was satisfied that it was necessary so to do in the public interest. Still the definition of taxable goods in that Act did not refer to sales exempted under section 41 thereof. But in the Act which repealed and replaced the Bombay Act the meaning of the expression taxable goods has been narrowed down as section 2(33) of the Act reads taxable goods means goods other than those on the sale or purchase of which no tax is payable under section 5 (which corresponds to section 5 of the Bombay Act) and section 49 of the Act (which corresponds to section 41 of the Bombay Act) or a notification issued thereunder. By this definition, the dichotomy that is stated to exist between taxable goods and taxable events has been given a go by. It may be that section 5 and Schedule I refer to goods only but section 49 deals with only taxable events which result in the exemption from payment of tax on the conditions mentioned th erein or in the notification issued thereunder being satisfied even though the goods in question do not come under Schedule I. Secondly one has to wait till the disposal of the goods by the dealer to find out whether the goods are taxable goods or not in view of the definition of the said expression which takes away goods sold under circumstances attracting section 49 from the scope of the meaning of that expression. Nor does the third ground survive for the very same reason. If the sale is exempt from tax under section 49 of the Act, the goods sold would not be taxable goods. We need not go into the question whether the purchaser in a sale under section 49 of the Act has to pay tax in these cases. This reason also disposes o f an allied argument of the appellants that the possibility of any liability arising under section 50 of the Act on the breach of any condition imposed by section 49 or the notification issued thereunder would absolve the appellants of their liability to pay the tax under section 16 of the Act. Any such levy made under section 50 has not been shown to have any effect in law on the liability of the appellants under section 16.The scheme of the Act appears to be that sales tax should be levied on goods which are not included in Schedule I at least once inside the State in the series of sales and purchases even though they may have been converted into manufactured goods and that is why Form No. 19 requires the purchaser to state that the goods will be used by him as raw or processing materials or as consumable stores in the manufacture of taxable goods for sale by him inside the State and section 16 of the Act provides that where any dealer has purchased any taxable goods under a certificate given by him under section 12 or section 13 of the Act and contrary to such certificate the goods are used for another purpose or are not resold or despatched in the manner and within the period certified or on the resales in the course oftrade or commerce, of the goods so purchased no tax under the Central Sales Tax Act is actually payable by him on account of any deductions admissible under any of the provisions of that Act, then such dealer shall b e liable to pay tax on the purchase price of the goods purchased under such certificate. The deliberate alteration of the definition of taxable goods in the Act also is attributable to the said intention of the State legislature.The appellants also cannot derive any assistance from the decision of this Court in Polestar Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales Tax and Anr. as these cases are governed by the provisions of the Act and as there appears to be no similarity between the facts of these appeals and the facts involved in that case. | 0 | 4,900 | 923 | ### 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:
immediately on the goods being manufactured by the appellants as at that stage the goods were really taxable and that a subsequent event of sale to the electrical undertaking cannot be considered as having violated the said condition. The third ground urged by the appellants is that a transaction of sale involved two facets-a sale and a purchase and if a sale is exempted from tax, it cannot be said the purchase is also exempted. On the above footing it is contended that since under section 49(2) only the tax on sale is exempted and nothing is said a bout the liability of the purchaser to tax, it cannot be said that the goods which were otherwise taxable had become non- taxable on being sold under a transaction which attracted section 49(2) of the Act.11. We find no substance in any of t he three grounds urged on behalf of the appellants for the reason that the present case is governed by the definition of the expression taxable goods in section 2(33) of the Act. It is interesting to note that the Bombay Sales Tax Act, 1959 (Bombay Act No. 1 of 1959) which was in force in the State of Gujarat before the Act came into force and which was repealed by section 88 of the Act contained the definition of the expression taxable goods in section 2(33) thereof. T he expression taxable goods was defined in the Bombay Act as goods other than those on the sale or purchase of which no tax is payable under section 5. In the Bombay Act there was also a provision corresponding to section 49 of the Act in section 4 1 thereof which empowered the State Government subject to such conditions as it may impose to exempt by a notification published in the Official Gazette any specified class of sales or purchases from payment of the whole or any part of any tax payable thereunder if the State Government was satisfied that it was necessary so to do in the public interest. Still the definition of taxable goods in that Act did not refer to sales exempted under section 41 thereof. But in the Act which repealed and replaced the Bombay Act the meaning of the expression taxable goods has been narrowed down as section 2(33) of the Act reads taxable goods means goods other than those on the sale or purchase of which no tax is payable under section 5 (which corresponds to section 5 of the Bombay Act) and section 49 of the Act (which corresponds to section 41 of the Bombay Act) or a notification issued thereunder. By this definition, the dichotomy that is stated to exist between taxable goods and taxable events has been given a go by. It may be that section 5 and Schedule I refer to goods only but section 49 deals with only taxable events which result in the exemption from payment of tax on the conditions mentioned th erein or in the notification issued thereunder being satisfied even though the goods in question do not come under Schedule I. Secondly one has to wait till the disposal of the goods by the dealer to find out whether the goods are taxable goods or not in view of the definition of the said expression which takes away goods sold under circumstances attracting section 49 from the scope of the meaning of that expression. Nor does the third ground survive for the very same reason. If the sale is exempt from tax under section 49 of the Act, the goods sold would not be taxable goods. We need not go into the question whether the purchaser in a sale under section 49 of the Act has to pay tax in these cases. This reason also disposes o f an allied argument of the appellants that the possibility of any liability arising under section 50 of the Act on the breach of any condition imposed by section 49 or the notification issued thereunder would absolve the appellants of their liability to pay the tax under section 16 of the Act. Any such levy made under section 50 has not been shown to have any effect in law on the liability of the appellants under section 16.The scheme of the Act appears to be that sales tax should be levied on goods which are not included in Schedule I at least once inside the State in the series of sales and purchases even though they may have been converted into manufactured goods and that is why Form No. 19 requires the purchaser to state that the goods will be used by him as raw or processing materials or as consumable stores in the manufacture of taxable goods for sale by him inside the State and section 16 of the Act provides that where any dealer has purchased any taxable goods under a certificate given by him under section 12 or section 13 of the Act and contrary to such certificate the goods are used for another purpose or are not resold or despatched in the manner and within the period certified or on the resales in the course of inter-State trade or commerce, of the goods so purchased no tax under the Central Sales Tax Act is actually payable by him on account of any deductions admissible under any of the provisions of that Act, then such dealer shall b e liable to pay tax on the purchase price of the goods purchased under such certificate. The deliberate alteration of the definition of taxable goods in the Act also is attributable to the said intention of the State legislature.12. The appellants also cannot derive any assistance from the decision of this Court in Polestar Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales Tax and Anr. as these cases are governed by the provisions of the Act and as there appears to be no similarity between the facts of these appeals and the facts involved in that case.13.
### Response:
0
### Explanation:
The solution to the question, therefore, lies on the true meaning of the expression taxablefind no substance in any of t he three grounds urged on behalf of the appellants for the reason that the present case is governed by the definition of the expression taxable goods in section 2(33) of the Act. It is interesting to note that the Bombay Sales Tax Act, 1959 (Bombay Act No. 1 of 1959) which was in force in the State of Gujarat before the Act came into force and which was repealed by section 88 of the Act contained the definition of the expression taxable goods in section 2(33) thereof. T he expression taxable goods was defined in the Bombay Act as goods other than those on the sale or purchase of which no tax is payable under section 5. In the Bombay Act there was also a provision corresponding to section 49 of the Act in section 4 1 thereof which empowered the State Government subject to such conditions as it may impose to exempt by a notification published in the Official Gazette any specified class of sales or purchases from payment of the whole or any part of any tax payable thereunder if the State Government was satisfied that it was necessary so to do in the public interest. Still the definition of taxable goods in that Act did not refer to sales exempted under section 41 thereof. But in the Act which repealed and replaced the Bombay Act the meaning of the expression taxable goods has been narrowed down as section 2(33) of the Act reads taxable goods means goods other than those on the sale or purchase of which no tax is payable under section 5 (which corresponds to section 5 of the Bombay Act) and section 49 of the Act (which corresponds to section 41 of the Bombay Act) or a notification issued thereunder. By this definition, the dichotomy that is stated to exist between taxable goods and taxable events has been given a go by. It may be that section 5 and Schedule I refer to goods only but section 49 deals with only taxable events which result in the exemption from payment of tax on the conditions mentioned th erein or in the notification issued thereunder being satisfied even though the goods in question do not come under Schedule I. Secondly one has to wait till the disposal of the goods by the dealer to find out whether the goods are taxable goods or not in view of the definition of the said expression which takes away goods sold under circumstances attracting section 49 from the scope of the meaning of that expression. Nor does the third ground survive for the very same reason. If the sale is exempt from tax under section 49 of the Act, the goods sold would not be taxable goods. We need not go into the question whether the purchaser in a sale under section 49 of the Act has to pay tax in these cases. This reason also disposes o f an allied argument of the appellants that the possibility of any liability arising under section 50 of the Act on the breach of any condition imposed by section 49 or the notification issued thereunder would absolve the appellants of their liability to pay the tax under section 16 of the Act. Any such levy made under section 50 has not been shown to have any effect in law on the liability of the appellants under section 16.The scheme of the Act appears to be that sales tax should be levied on goods which are not included in Schedule I at least once inside the State in the series of sales and purchases even though they may have been converted into manufactured goods and that is why Form No. 19 requires the purchaser to state that the goods will be used by him as raw or processing materials or as consumable stores in the manufacture of taxable goods for sale by him inside the State and section 16 of the Act provides that where any dealer has purchased any taxable goods under a certificate given by him under section 12 or section 13 of the Act and contrary to such certificate the goods are used for another purpose or are not resold or despatched in the manner and within the period certified or on the resales in the course oftrade or commerce, of the goods so purchased no tax under the Central Sales Tax Act is actually payable by him on account of any deductions admissible under any of the provisions of that Act, then such dealer shall b e liable to pay tax on the purchase price of the goods purchased under such certificate. The deliberate alteration of the definition of taxable goods in the Act also is attributable to the said intention of the State legislature.The appellants also cannot derive any assistance from the decision of this Court in Polestar Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales Tax and Anr. as these cases are governed by the provisions of the Act and as there appears to be no similarity between the facts of these appeals and the facts involved in that case.
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Kashmiri Lal Vs. State of Uttar Pradesh | for reasonable suspicion of the stores being stolen or obtained unlawfully. It is only when the burden in respect of this is discharged by the prosecution that the onus shifts to the accused to account satisfactorily of his possession of the same.He may, for instance, show that he had purchased the property in open marked where goods of this kind are usually sold or that he had bought them from some one bona fide in the behalf that the vendor had lawfully obtained the same.4. The facts in this case are as follows : On the strength of some information received on 28th July, 1964 that some stolen railway property was being sent out of Lucknow through a motor transport agency, a Sub-Inspector attached to the Railway Protection Force along with another Sub-Inspector of Police searched the premises of the motor transport company at Lucknow the same night. The search which took place in the presence of the appellant and the manager of the transport company revealed that a large number of parts of railway machinery (railway engines) bearing railway marks were contained in 23 bags of metal scrap booked the same days by the appellant for consignment to Jullunder. The usual formality of preparing a recovery memo and the sealing of goods in bags in the presence of witnesses was gone through. One Jaswant Singh, described as an expert of railway machinery parts and Foreman and Chief Inspector of N. R. Kotwali Chowk, Lucknow, examined the goods said to be railway stores and kept in 11 bags and made a report to the effect that they were all railway stores being parts of a railway engine. It was the case for the prosecution that the appellant failed to offer any satisfactory explanation of his possession of the goods. On the strength of the evidence adduced and principally on the report of Jaswant Singh along with his oral testimony the Magistrate found him guilty and sentenced him to imprisonment for two years. The conviction was maintained by the Sessions Judge and the High Court.5. The report made by Jaswant Singh shows that he had examined the material which he classified under 38 head and described the same as unauctionable property. Against each item he put a remark either "O" or "N" O signifying old goods and N meaning new ones. The report seems to suggest that the goods being unauctionable, a third party could not lawfully obtain possession of the same. Curiously in his testimony before the Court although he said that he had prepared the report and signed the same he made no statement to the effect that the contents of the report were correct. His definite averment was :Railway engine is auctioned in the market. I cannot say if these articles were auctioned in the market. I cannot say if these articles were auctioned or not."In his cross-examination he repeated the same averment in different words but only added that he had examined the articles and they were parts of an engine and that railway articles were mixed with other goods in the bags. From his deposition it is not possible to spell out any averment to the effect that the items mentioned in his report were used or intended to be used in the construction, operation or maintenance of a railway.6. In our view there was no evidence before the Courts to prove that the articles seized were railway stores within the meaning Sec. 2 of the Act. Our attention was drawn to the case of Moyalal Rostagir v. The State, (1962) 66 Cal WN 269, wherein it was held that in order to prove that the articles were railway stores it was necessary to establish that the articles in question were not only the property belonging to a railway administration but they were used or intended to be used for the construction or operation of a railway. Counsel for the respondent however, cited a decision of the Orissa High Court in Udaya Dalai v. The State, 30 Cut LT 275 = ((1965 (2) Cri LJ 831). The materials seized in that case were tie-bars and iron sleepers which were brand new. According to the learned Judge of the Orissa High Court.".....section 2 of the Act does not require the prosecution to prove that the incriminating articles belonged to a particular railway. From the evidence of P. W. 5 it can be reasonably inferred that as the seized articles were found to conform to the specifications of the India Railway standards they held that they belonged to any of the railways in India. His further evidence that they were "brand new" is also sufficient to show that they were intended to be used in the construction, operation or maintenance of the railway."In our view although the prosecution is not called upon to prove that the goods belonged to any particular railway administration it has to establish that the articles were the property of a railway administration. Evidence to the effect that the goods conformed to the Railway standards falls short of such proof. In most cases the burden of proof in this respect may be discharged by leading evidence about the identifying marks on the goods or some peculiarity of the goods not to be found in cases of non-railway goods. Again, the mere description of the goods as new would not fulfil the requirement of Section 2 (b). Some evidence will have to be led to the effect that the goods of the kind were being actually used by a railway administration and that the goods were in a serviceable condition. In the case of goods which had been put to use, evidence would have to be led to established that they had been manufactured for such use.7. The evidence in the case before us did not establish that the goods were railway stores within the meaning of Section 2 of the Act and as such the question of punishment under Section 3 did not arise. | 1[ds]3. Before any one can be charged with the offence under Section 3, it must be shown that he was in possession of railway stores which by the definition of section does not include all articles which are the property of a railway administration but only those which are used or intended to be used in the construction, operation or maintenance of a railway. Mere unlawful possession of the property of any railway administration is not an offence. The prosecution must also prove that the articles were being actually used or were intended to be used for by the railway. Thus any article which is the property of a railway administration but which has been discarded or rejected for further use would be outside the definition of railway stores. Railway stores may be new or old and an offence may be committed in respect of stores of either kind. If the railway administration has no further use of them, be they new or old as in the case where they have become unserviceable or outmoded, no person can be charged with an offence under Section 3 in respect thereof.It is only when the articles satisfy the definition of railway stores that the prosecution can be successfully launched against a person in unlawful possession thereof.Even in such a case the prosecution must first adduce evidence to show that there was cause for reasonable suspicion of the stores being stolen or obtained unlawfully. It is only when the burden in respect of this is discharged by the prosecution that the onus shifts to the accused to account satisfactorily of his possession of the same.The report made by Jaswant Singh shows that he had examined the material which he classified under 38 head and described the same as unauctionable property. Against each item he put a remark either "O" or "N" O signifying old goods and N meaning new ones. The report seems to suggest that the goods being unauctionable, a third party could not lawfully obtain possession of the same. Curiously in his testimony before the Court although he said that he had prepared the report and signed the same he made no statement to the effect that the contents of the report were correct.The report made by Jaswant Singh shows that he had examined the material which he classified under 38 head and described the same as unauctionable property. Against each item he put a remark either "O" or "N" O signifying old goods and N meaning new ones. The report seems to suggest that the goods being unauctionable, a third party could not lawfully obtain possession of the same. Curiously in his testimony before the Court although he said that he had prepared the report and signed the same he made no statement to the effect that the contents of the report were correct.In our view there was no evidence before the Courts to prove that the articles seized were railway stores within the meaning Sec. 2 of the Act.The evidence in the case before us did not establish that the goods were railway stores within the meaning of Section 2 of the Act and as such the question of punishment under Section 3 did notour view although the prosecution is not called upon to prove that the goods belonged to any particular railway administration it has to establish that the articles were the property of a railway administration. Evidence to the effect that the goods conformed to the Railway standards falls short of such proof. In most cases the burden of proof in this respect may be discharged by leading evidence about the identifying marks on the goods or some peculiarity of the goods not to be found in cases ofgoods. Again, the mere description of the goods as new would not fulfil the requirement of Section 2 (b). Some evidence will have to be led to the effect that the goods of the kind were being actually used by a railway administration and that the goods were in a serviceable condition. In the case of goods which had been put to use, evidence would have to be led to established that they had been manufactured for such use. | 1 | 1,507 | 742 | ### 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:
for reasonable suspicion of the stores being stolen or obtained unlawfully. It is only when the burden in respect of this is discharged by the prosecution that the onus shifts to the accused to account satisfactorily of his possession of the same.He may, for instance, show that he had purchased the property in open marked where goods of this kind are usually sold or that he had bought them from some one bona fide in the behalf that the vendor had lawfully obtained the same.4. The facts in this case are as follows : On the strength of some information received on 28th July, 1964 that some stolen railway property was being sent out of Lucknow through a motor transport agency, a Sub-Inspector attached to the Railway Protection Force along with another Sub-Inspector of Police searched the premises of the motor transport company at Lucknow the same night. The search which took place in the presence of the appellant and the manager of the transport company revealed that a large number of parts of railway machinery (railway engines) bearing railway marks were contained in 23 bags of metal scrap booked the same days by the appellant for consignment to Jullunder. The usual formality of preparing a recovery memo and the sealing of goods in bags in the presence of witnesses was gone through. One Jaswant Singh, described as an expert of railway machinery parts and Foreman and Chief Inspector of N. R. Kotwali Chowk, Lucknow, examined the goods said to be railway stores and kept in 11 bags and made a report to the effect that they were all railway stores being parts of a railway engine. It was the case for the prosecution that the appellant failed to offer any satisfactory explanation of his possession of the goods. On the strength of the evidence adduced and principally on the report of Jaswant Singh along with his oral testimony the Magistrate found him guilty and sentenced him to imprisonment for two years. The conviction was maintained by the Sessions Judge and the High Court.5. The report made by Jaswant Singh shows that he had examined the material which he classified under 38 head and described the same as unauctionable property. Against each item he put a remark either "O" or "N" O signifying old goods and N meaning new ones. The report seems to suggest that the goods being unauctionable, a third party could not lawfully obtain possession of the same. Curiously in his testimony before the Court although he said that he had prepared the report and signed the same he made no statement to the effect that the contents of the report were correct. His definite averment was :Railway engine is auctioned in the market. I cannot say if these articles were auctioned in the market. I cannot say if these articles were auctioned or not."In his cross-examination he repeated the same averment in different words but only added that he had examined the articles and they were parts of an engine and that railway articles were mixed with other goods in the bags. From his deposition it is not possible to spell out any averment to the effect that the items mentioned in his report were used or intended to be used in the construction, operation or maintenance of a railway.6. In our view there was no evidence before the Courts to prove that the articles seized were railway stores within the meaning Sec. 2 of the Act. Our attention was drawn to the case of Moyalal Rostagir v. The State, (1962) 66 Cal WN 269, wherein it was held that in order to prove that the articles were railway stores it was necessary to establish that the articles in question were not only the property belonging to a railway administration but they were used or intended to be used for the construction or operation of a railway. Counsel for the respondent however, cited a decision of the Orissa High Court in Udaya Dalai v. The State, 30 Cut LT 275 = ((1965 (2) Cri LJ 831). The materials seized in that case were tie-bars and iron sleepers which were brand new. According to the learned Judge of the Orissa High Court.".....section 2 of the Act does not require the prosecution to prove that the incriminating articles belonged to a particular railway. From the evidence of P. W. 5 it can be reasonably inferred that as the seized articles were found to conform to the specifications of the India Railway standards they held that they belonged to any of the railways in India. His further evidence that they were "brand new" is also sufficient to show that they were intended to be used in the construction, operation or maintenance of the railway."In our view although the prosecution is not called upon to prove that the goods belonged to any particular railway administration it has to establish that the articles were the property of a railway administration. Evidence to the effect that the goods conformed to the Railway standards falls short of such proof. In most cases the burden of proof in this respect may be discharged by leading evidence about the identifying marks on the goods or some peculiarity of the goods not to be found in cases of non-railway goods. Again, the mere description of the goods as new would not fulfil the requirement of Section 2 (b). Some evidence will have to be led to the effect that the goods of the kind were being actually used by a railway administration and that the goods were in a serviceable condition. In the case of goods which had been put to use, evidence would have to be led to established that they had been manufactured for such use.7. The evidence in the case before us did not establish that the goods were railway stores within the meaning of Section 2 of the Act and as such the question of punishment under Section 3 did not arise.
### Response:
1
### Explanation:
3. Before any one can be charged with the offence under Section 3, it must be shown that he was in possession of railway stores which by the definition of section does not include all articles which are the property of a railway administration but only those which are used or intended to be used in the construction, operation or maintenance of a railway. Mere unlawful possession of the property of any railway administration is not an offence. The prosecution must also prove that the articles were being actually used or were intended to be used for by the railway. Thus any article which is the property of a railway administration but which has been discarded or rejected for further use would be outside the definition of railway stores. Railway stores may be new or old and an offence may be committed in respect of stores of either kind. If the railway administration has no further use of them, be they new or old as in the case where they have become unserviceable or outmoded, no person can be charged with an offence under Section 3 in respect thereof.It is only when the articles satisfy the definition of railway stores that the prosecution can be successfully launched against a person in unlawful possession thereof.Even in such a case the prosecution must first adduce evidence to show that there was cause for reasonable suspicion of the stores being stolen or obtained unlawfully. It is only when the burden in respect of this is discharged by the prosecution that the onus shifts to the accused to account satisfactorily of his possession of the same.The report made by Jaswant Singh shows that he had examined the material which he classified under 38 head and described the same as unauctionable property. Against each item he put a remark either "O" or "N" O signifying old goods and N meaning new ones. The report seems to suggest that the goods being unauctionable, a third party could not lawfully obtain possession of the same. Curiously in his testimony before the Court although he said that he had prepared the report and signed the same he made no statement to the effect that the contents of the report were correct.The report made by Jaswant Singh shows that he had examined the material which he classified under 38 head and described the same as unauctionable property. Against each item he put a remark either "O" or "N" O signifying old goods and N meaning new ones. The report seems to suggest that the goods being unauctionable, a third party could not lawfully obtain possession of the same. Curiously in his testimony before the Court although he said that he had prepared the report and signed the same he made no statement to the effect that the contents of the report were correct.In our view there was no evidence before the Courts to prove that the articles seized were railway stores within the meaning Sec. 2 of the Act.The evidence in the case before us did not establish that the goods were railway stores within the meaning of Section 2 of the Act and as such the question of punishment under Section 3 did notour view although the prosecution is not called upon to prove that the goods belonged to any particular railway administration it has to establish that the articles were the property of a railway administration. Evidence to the effect that the goods conformed to the Railway standards falls short of such proof. In most cases the burden of proof in this respect may be discharged by leading evidence about the identifying marks on the goods or some peculiarity of the goods not to be found in cases ofgoods. Again, the mere description of the goods as new would not fulfil the requirement of Section 2 (b). Some evidence will have to be led to the effect that the goods of the kind were being actually used by a railway administration and that the goods were in a serviceable condition. In the case of goods which had been put to use, evidence would have to be led to established that they had been manufactured for such use.
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All India Reporter Karamchari Sangh & Ors Vs. All India Reporter Limited And Ors | a law report could be used as a reference book at a later stage was not sufficient to hold that the law report did not contain public news when it was received by the subscriber.The High Court of Madras declined to follow the above decision of the Orissa High Court in its decision in T. V. Ramnath v. Union of India 1975 Lab IC 488 in which the Madras Law Journal, a law report published from Madras, was held to be a newspaper and the establishment in which the said law report was being published was a newspaper establishment which attracted the provisions of that Act. We agree with the following observations made in the said decision by Ismail, J. (as he then was) : "Similarly, the publications of the petitioner in the second writ petition can be said to contain public news or comments on public news since it contains reports of the judgments of the courts as well as comments on such judgments. Even though, the same may be primarily intended for that section of the public which is concerned with law and the administration of law, in the present days, nothing prevents any educated individual taking interest in such publications and the news themselves being of interest to such persons. Therefore I am clearly of the opinion that the expression public news is of sufficiently wide amplitude to cover the publications of both the petitioners in question." 9. It is seen that the editor of the law report containing the above decision has appended an editorial comment on this stating that this decision is wrong and that the Orissa High Courts decision was right. Justice A. N. Grover, who later became a Judge of the Supreme Court of India and the Chairman of the Press Council, as a Judge of the Punjab and Haryana High Court held in L. D. Jain v. General Manager, Government of India Press ILR (1967) P & H 193 that the Gazette of India which was the official publication of all kinds of news and information was a newspaper within the meaning of section 2(b) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 and that it was not essential for a newspaper to conform strictly to the usual pattern of a daily or weekly or monthly newspaper or a magazine containing news which members of the public ordinarily read in order to get reports of recent events, comments on them, etc. In doing so, he distinguished the decision of the Australian Court in Ex Parte Stillwell (1923) 29 VLR 413 in which the Bradshaws Guide was held to be a book of reference which lacked every element of what could be called a newspaper on which the Orissa High Court had relied.The 1st respondent cannot derive any assistance from the decision of the High Court of Bombay in Commissioner on Sales Tax v. Express Printing Press [1983] 52 STC 290 ; AIR 1983 Bom 190 , in which the Bombay High Court held that the two publications by name "Joker" and "Jabara" which contained predictions or forecasts of lucky numbers were not newspapers since those publications had nothing to do with any recent event which had taken place. 10. In the Annual Report of the Registrar of Newspapers for India, 1957 there is an interesting discussion of certain specific cases in which the question whether the publications involved were newspapers or not. In the course of the said report it is observed thus : "In this connection the Press Registrar scrutinised reports published in certain foreign countries regarding their own Press and it was noticed that in the catalogues prepared by them specialised newspapers such as the one under consideration were not excluded from the list of newspapers. Even technical journals such as medical periodicals, journals related to sciences, arts, etc., were included. A catalogue of Yugoslav newspapers and magazines, for instance, includes publications relation to the following subjects : 11. Political information; economics; law and States administration; education; philology; natural sciences; medicine; agriculture; technology; geography; ethnography; history; archives; archaeology; literature; music; applied art; film; chess; photography; tourism; stamp collecting; physical culture and sport; humour and religion. 12. In a catalogue of Russian papers for 1958 all the above categories of newspapers and periodicals have been included in addition to many others which deal exclusively with party affairs."It is significant that the expression "newspaper" as defined in the Act includes not merely "public news" but also "comments on public news". Every law report contains the editorial note at the commencement of the decisions printed therein and also comments on some of the recent decisions. Law reports also contain, newly enacted Acts, Rules and Regulations, books reviews and advertisements relating to law books, handwriting and finger print experts, etc., speeches made at conferences in which the legal fraternity is interested, etc. Though the publication of these items by itself may not occupy a substantial part of a law report to make it a newspaper, the publication of the recent judgments itself is sufficient to make a law report a newspaper which may after sometime cease to be a newspaper and become a book of reference. 13. The Act in question is a beneficent legislation which is enacted for the purpose of improving the conditions of service of the employees of the newspaper establishments and hence even if it is possible to have two opinions on the construction of the provisions of the Act the one which advances the object of the Act and is in favour of the employees for whose benefit the Act is passed has to be accepted. 14. We are of the view that the law reports published by the 1st respondent are newspapers and the employees employed by the 1st respondent in their production or publication of the said law reports should be extended the benefit of the orders passed by the Central Government on the basis of the recommendations made by the Palekar Award. | 1[ds]The Act in question is a beneficent legislation which is enacted for the purpose of improving the conditions of service of the employees of the newspaper establishments and hence even if it is possible to have two opinions on the construction of the provisions of the Act the one which advances the object of the Act and is in favour of the employees for whose benefit the Act is passed has to be acceptedWe are of the view that the law reports published by the 1st respondent are newspapers and the employees employed by the 1st respondent in their production or publication of the said law reports should be extended the benefit of the orders passed by the Central Government on the basis of the recommendations made by the Palekar Award. | 1 | 4,266 | 136 | ### Instruction:
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a law report could be used as a reference book at a later stage was not sufficient to hold that the law report did not contain public news when it was received by the subscriber.The High Court of Madras declined to follow the above decision of the Orissa High Court in its decision in T. V. Ramnath v. Union of India 1975 Lab IC 488 in which the Madras Law Journal, a law report published from Madras, was held to be a newspaper and the establishment in which the said law report was being published was a newspaper establishment which attracted the provisions of that Act. We agree with the following observations made in the said decision by Ismail, J. (as he then was) : "Similarly, the publications of the petitioner in the second writ petition can be said to contain public news or comments on public news since it contains reports of the judgments of the courts as well as comments on such judgments. Even though, the same may be primarily intended for that section of the public which is concerned with law and the administration of law, in the present days, nothing prevents any educated individual taking interest in such publications and the news themselves being of interest to such persons. Therefore I am clearly of the opinion that the expression public news is of sufficiently wide amplitude to cover the publications of both the petitioners in question." 9. It is seen that the editor of the law report containing the above decision has appended an editorial comment on this stating that this decision is wrong and that the Orissa High Courts decision was right. Justice A. N. Grover, who later became a Judge of the Supreme Court of India and the Chairman of the Press Council, as a Judge of the Punjab and Haryana High Court held in L. D. Jain v. General Manager, Government of India Press ILR (1967) P & H 193 that the Gazette of India which was the official publication of all kinds of news and information was a newspaper within the meaning of section 2(b) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 and that it was not essential for a newspaper to conform strictly to the usual pattern of a daily or weekly or monthly newspaper or a magazine containing news which members of the public ordinarily read in order to get reports of recent events, comments on them, etc. In doing so, he distinguished the decision of the Australian Court in Ex Parte Stillwell (1923) 29 VLR 413 in which the Bradshaws Guide was held to be a book of reference which lacked every element of what could be called a newspaper on which the Orissa High Court had relied.The 1st respondent cannot derive any assistance from the decision of the High Court of Bombay in Commissioner on Sales Tax v. Express Printing Press [1983] 52 STC 290 ; AIR 1983 Bom 190 , in which the Bombay High Court held that the two publications by name "Joker" and "Jabara" which contained predictions or forecasts of lucky numbers were not newspapers since those publications had nothing to do with any recent event which had taken place. 10. In the Annual Report of the Registrar of Newspapers for India, 1957 there is an interesting discussion of certain specific cases in which the question whether the publications involved were newspapers or not. In the course of the said report it is observed thus : "In this connection the Press Registrar scrutinised reports published in certain foreign countries regarding their own Press and it was noticed that in the catalogues prepared by them specialised newspapers such as the one under consideration were not excluded from the list of newspapers. Even technical journals such as medical periodicals, journals related to sciences, arts, etc., were included. A catalogue of Yugoslav newspapers and magazines, for instance, includes publications relation to the following subjects : 11. Political information; economics; law and States administration; education; philology; natural sciences; medicine; agriculture; technology; geography; ethnography; history; archives; archaeology; literature; music; applied art; film; chess; photography; tourism; stamp collecting; physical culture and sport; humour and religion. 12. In a catalogue of Russian papers for 1958 all the above categories of newspapers and periodicals have been included in addition to many others which deal exclusively with party affairs."It is significant that the expression "newspaper" as defined in the Act includes not merely "public news" but also "comments on public news". Every law report contains the editorial note at the commencement of the decisions printed therein and also comments on some of the recent decisions. Law reports also contain, newly enacted Acts, Rules and Regulations, books reviews and advertisements relating to law books, handwriting and finger print experts, etc., speeches made at conferences in which the legal fraternity is interested, etc. Though the publication of these items by itself may not occupy a substantial part of a law report to make it a newspaper, the publication of the recent judgments itself is sufficient to make a law report a newspaper which may after sometime cease to be a newspaper and become a book of reference. 13. The Act in question is a beneficent legislation which is enacted for the purpose of improving the conditions of service of the employees of the newspaper establishments and hence even if it is possible to have two opinions on the construction of the provisions of the Act the one which advances the object of the Act and is in favour of the employees for whose benefit the Act is passed has to be accepted. 14. We are of the view that the law reports published by the 1st respondent are newspapers and the employees employed by the 1st respondent in their production or publication of the said law reports should be extended the benefit of the orders passed by the Central Government on the basis of the recommendations made by the Palekar Award.
### Response:
1
### Explanation:
The Act in question is a beneficent legislation which is enacted for the purpose of improving the conditions of service of the employees of the newspaper establishments and hence even if it is possible to have two opinions on the construction of the provisions of the Act the one which advances the object of the Act and is in favour of the employees for whose benefit the Act is passed has to be acceptedWe are of the view that the law reports published by the 1st respondent are newspapers and the employees employed by the 1st respondent in their production or publication of the said law reports should be extended the benefit of the orders passed by the Central Government on the basis of the recommendations made by the Palekar Award.
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RAJA RAM Vs. JAI PRAKASH SINGH | the deceased was living with him and had accompanied him to the office of the sub¬registrar. The plaintiff has not pleaded or led any evidence that the wife of the deceased was also completely dominated by the original defendants. In every cast, creed, religion and civilized society, looking after the elders of the family is considered a sacred and pious duty. Nonetheless, today it has become a matter of serious concern. The Parliament taking note of the same enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. We are of the considered opinion, in the changing times and social mores, that to straightway infer undue influence merely because a sibling was looking after the family elder, is an extreme proposition which cannot be countenanced in absence of sufficient and adequate evidence. Any other interpretation by inferring a reverse burden of proof straightway, on those who were taking care of the elders, as having exercised undue influence can lead to very undesirable consequences. It may not necessarily lead to neglect, but can certainly create doubts and apprehensions leading to lack of full and proper care under the fear of allegations with regard to exercise of undue influence. Law and life run together. If certain members of the family are looking after the elderly and others by choice or by compulsion of vocation are unable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after them day to day. 12. In Bishundeo Narain (supra) it was observed as follows: We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. 13. In Subhas Chandra (supra), distinguishing between influence and undue influence, it was observed as follows: It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kappanna Chettiar and others 47 I.A. p. 1 :- It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point influence alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, undue. 14. In Subhas Chandra (supra), it was further observed that there was no presumption of imposition merely because a donor was old and weak. Mere close relation also was insufficient to presume undue influence, observing as follows: Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal [1964] 1 SCR 270 above referred to. In that case it was observed (at p. 295): A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. 15. Krishna Mohan (supra) is distinguishable on its own fact. The executant was undisputably over 100 years of age. The witnesses proved that he was paralytic and virtually bedridden. None of the witnesses could substantiate that the executant had put his thumb impression. 16. The first appellate court, completely erred in appreciation of the facts and evidence in the case. There can be no application of the law sans the facts of a case. The primary ingredients of the law need to be first established by proper pleading supported by relevant evidence. Cases cannot be decided on assumptions or presumptions. We do not think that the present calls for exercise of any discretionary jurisdiction under Article 136 of the Constitution as a fourth court of appeal. In Pritam Singh (supra) it was observed: 9. …Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. Since the present case does not in our opinion fulfil any of these conditions, we cannot interfere with the decision of the High Court, and the appeal must be dismissed. 17. On a consideration of the entirety of the matter we find no reason to interfere with the concurrent findings arrived at by two courts. | 0[ds]The pleadings in the plaint are completely bereft of any details or circumstances with regard to the nature, manner or kind of undue influence exercised by the original defendants over the deceased. A mere bald statement has been made attributed to the infirmity of the deceased. We have already held that the deceased was not completely physically and mentally incapacitated. There can be no doubt that the original defendants were in a fiduciary relationship with the deceased. Their conduct in looking after the deceased and his wife in old age may have influenced the thinking of the deceased. But that per se cannot lead to the only irresistible conclusion that the original defendants were therefore in a position to dominate the will of the deceased or that the sale deed executed was unconscionable. The onus would shift upon the original defendants under Section 16 of the Contract Act read with Section 111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh (supra), only after the plaintiff would have established a prima facie case. The wife of the deceased was living with him and had accompanied him to the office of the sub¬registrar. The plaintiff has not pleaded or led any evidence that the wife of the deceased was also completely dominated by the original defendants. In every cast, creed, religion and civilized society, looking after the elders of the family is considered a sacred and pious duty. Nonetheless, today it has become a matter of serious concern. The Parliament taking note of the same enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. We are of the considered opinion, in the changing times and social mores, that to straightway infer undue influence merely because a sibling was looking after the family elder, is an extreme proposition which cannot be countenanced in absence of sufficient and adequate evidence. Any other interpretation by inferring a reverse burden of proof straightway, on those who were taking care of the elders, as having exercised undue influence can lead to very undesirable consequences. It may not necessarily lead to neglect, but can certainly create doubts and apprehensions leading to lack of full and proper care under the fear of allegations with regard to exercise of undue influence. Law and life run together. If certain members of the family are looking after the elderly and others by choice or by compulsion of vocation are unable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after them day to day16. The first appellate court, completely erred in appreciation of the facts and evidence in the case. There can be no application of the law sans the facts of a case. The primary ingredients of the law need to be first established by proper pleading supported by relevant evidence. Cases cannot be decided on assumptions or presumptions. We do not think that the present calls for exercise of any discretionary jurisdiction under Article 136 of the Constitution as a fourth court of appeal. In Pritam Singh (supra) it was observed:9. …Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. Since the present case does not in our opinion fulfil any of these conditions, we cannot interfere with the decision of the High Court, and the appeal must be dismissed17. On a consideration of the entirety of the matter we find no reason to interfere with the concurrent findings arrived at by two courtsThe sale deed executed by the deceased in favour of one Babu Ram and Munshi Lal two years earlier in 1968 has not been assailed by the appellant on the ground that the deceased was devoid of the power of reasoning, because of mental impairment. There is no evidence of any such rapid deterioration in the condition of the deceased in these two years10. The deceased on account of his advanced age may have been old and infirm with a deteriorating eye sight, and unable to move freely. There is no credible evidence that he was bed ridden. Hardness of hearing by old age cannot be equated with deafness. The plaintiff, despite being the son of the deceased, except for bald statement in the plaint, has not led any evidence in support of his averments. It is an undisputed fact that the deceased appeared before the sub-registrar for registration. It demolishes the entire case of the plaintiff that the deceased was bed ridden. He had put his thumb impression in presence of the sub-registrar after the sale deed had been read over and explained to him. The deceased had acknowledged receipt of the entire consideration in presence of the sub-registrar only after which the deed was executed and registered. The wife of the deceased had accompanied him to the office of the sub-registrar. The sale deed being a registered instrument, there shall be a presumption in favour of the defendants. The onus for rebuttal lay on the plaintiff which he failed to discharge. Notwithstanding the finding of enmity between PW-2 and PW-3 with original defendant no.2, the First Appellate Court erred in relying upon these two witnesses by holding that they were independent witnesses and convincing. DW-1, though related was a witness to the sale deed. His evidence in support of the events before the sub-registrar therefore has to be accepted. The plaintiff could have led evidence in rebuttal of the sub-registrar but he did not do so. | 0 | 3,048 | 1,033 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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the deceased was living with him and had accompanied him to the office of the sub¬registrar. The plaintiff has not pleaded or led any evidence that the wife of the deceased was also completely dominated by the original defendants. In every cast, creed, religion and civilized society, looking after the elders of the family is considered a sacred and pious duty. Nonetheless, today it has become a matter of serious concern. The Parliament taking note of the same enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. We are of the considered opinion, in the changing times and social mores, that to straightway infer undue influence merely because a sibling was looking after the family elder, is an extreme proposition which cannot be countenanced in absence of sufficient and adequate evidence. Any other interpretation by inferring a reverse burden of proof straightway, on those who were taking care of the elders, as having exercised undue influence can lead to very undesirable consequences. It may not necessarily lead to neglect, but can certainly create doubts and apprehensions leading to lack of full and proper care under the fear of allegations with regard to exercise of undue influence. Law and life run together. If certain members of the family are looking after the elderly and others by choice or by compulsion of vocation are unable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after them day to day. 12. In Bishundeo Narain (supra) it was observed as follows: We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. 13. In Subhas Chandra (supra), distinguishing between influence and undue influence, it was observed as follows: It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kappanna Chettiar and others 47 I.A. p. 1 :- It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point influence alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, undue. 14. In Subhas Chandra (supra), it was further observed that there was no presumption of imposition merely because a donor was old and weak. Mere close relation also was insufficient to presume undue influence, observing as follows: Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal [1964] 1 SCR 270 above referred to. In that case it was observed (at p. 295): A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. 15. Krishna Mohan (supra) is distinguishable on its own fact. The executant was undisputably over 100 years of age. The witnesses proved that he was paralytic and virtually bedridden. None of the witnesses could substantiate that the executant had put his thumb impression. 16. The first appellate court, completely erred in appreciation of the facts and evidence in the case. There can be no application of the law sans the facts of a case. The primary ingredients of the law need to be first established by proper pleading supported by relevant evidence. Cases cannot be decided on assumptions or presumptions. We do not think that the present calls for exercise of any discretionary jurisdiction under Article 136 of the Constitution as a fourth court of appeal. In Pritam Singh (supra) it was observed: 9. …Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. Since the present case does not in our opinion fulfil any of these conditions, we cannot interfere with the decision of the High Court, and the appeal must be dismissed. 17. On a consideration of the entirety of the matter we find no reason to interfere with the concurrent findings arrived at by two courts.
### Response:
0
### Explanation:
The pleadings in the plaint are completely bereft of any details or circumstances with regard to the nature, manner or kind of undue influence exercised by the original defendants over the deceased. A mere bald statement has been made attributed to the infirmity of the deceased. We have already held that the deceased was not completely physically and mentally incapacitated. There can be no doubt that the original defendants were in a fiduciary relationship with the deceased. Their conduct in looking after the deceased and his wife in old age may have influenced the thinking of the deceased. But that per se cannot lead to the only irresistible conclusion that the original defendants were therefore in a position to dominate the will of the deceased or that the sale deed executed was unconscionable. The onus would shift upon the original defendants under Section 16 of the Contract Act read with Section 111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh (supra), only after the plaintiff would have established a prima facie case. The wife of the deceased was living with him and had accompanied him to the office of the sub¬registrar. The plaintiff has not pleaded or led any evidence that the wife of the deceased was also completely dominated by the original defendants. In every cast, creed, religion and civilized society, looking after the elders of the family is considered a sacred and pious duty. Nonetheless, today it has become a matter of serious concern. The Parliament taking note of the same enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. We are of the considered opinion, in the changing times and social mores, that to straightway infer undue influence merely because a sibling was looking after the family elder, is an extreme proposition which cannot be countenanced in absence of sufficient and adequate evidence. Any other interpretation by inferring a reverse burden of proof straightway, on those who were taking care of the elders, as having exercised undue influence can lead to very undesirable consequences. It may not necessarily lead to neglect, but can certainly create doubts and apprehensions leading to lack of full and proper care under the fear of allegations with regard to exercise of undue influence. Law and life run together. If certain members of the family are looking after the elderly and others by choice or by compulsion of vocation are unable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after them day to day16. The first appellate court, completely erred in appreciation of the facts and evidence in the case. There can be no application of the law sans the facts of a case. The primary ingredients of the law need to be first established by proper pleading supported by relevant evidence. Cases cannot be decided on assumptions or presumptions. We do not think that the present calls for exercise of any discretionary jurisdiction under Article 136 of the Constitution as a fourth court of appeal. In Pritam Singh (supra) it was observed:9. …Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. Since the present case does not in our opinion fulfil any of these conditions, we cannot interfere with the decision of the High Court, and the appeal must be dismissed17. On a consideration of the entirety of the matter we find no reason to interfere with the concurrent findings arrived at by two courtsThe sale deed executed by the deceased in favour of one Babu Ram and Munshi Lal two years earlier in 1968 has not been assailed by the appellant on the ground that the deceased was devoid of the power of reasoning, because of mental impairment. There is no evidence of any such rapid deterioration in the condition of the deceased in these two years10. The deceased on account of his advanced age may have been old and infirm with a deteriorating eye sight, and unable to move freely. There is no credible evidence that he was bed ridden. Hardness of hearing by old age cannot be equated with deafness. The plaintiff, despite being the son of the deceased, except for bald statement in the plaint, has not led any evidence in support of his averments. It is an undisputed fact that the deceased appeared before the sub-registrar for registration. It demolishes the entire case of the plaintiff that the deceased was bed ridden. He had put his thumb impression in presence of the sub-registrar after the sale deed had been read over and explained to him. The deceased had acknowledged receipt of the entire consideration in presence of the sub-registrar only after which the deed was executed and registered. The wife of the deceased had accompanied him to the office of the sub-registrar. The sale deed being a registered instrument, there shall be a presumption in favour of the defendants. The onus for rebuttal lay on the plaintiff which he failed to discharge. Notwithstanding the finding of enmity between PW-2 and PW-3 with original defendant no.2, the First Appellate Court erred in relying upon these two witnesses by holding that they were independent witnesses and convincing. DW-1, though related was a witness to the sale deed. His evidence in support of the events before the sub-registrar therefore has to be accepted. The plaintiff could have led evidence in rebuttal of the sub-registrar but he did not do so.
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Shankar Kisanrao Khade Vs. State of Maharashtra | personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child (including pornographic, sexually related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police, as the case may be. Section 21 prescribes punishment for failure to report or record a case, which reads as follows: ?21. (1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both. (2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.? 50. I may also point out that, in large numbers of cases, children are abused by persons known to them or who have influence over them. Criminal Courts in this country are galore with cases where children are abused by adults addicted to alcohol, drugs, depression, marital discord etc. Preventive aspects have seldom been given importance or taken care of. Penal laws focus more on situations after commission of offences like violence, abuse, exploitation of the children. Witnesses of many such heinous crimes often keep mum taking shelter on factors like social stigma, community pressure, and difficulties of navigating the criminal justice system, total dependency on perpetrator emotionally and economically and so on. Some adult members of family including parents choose not to report such crimes to the police on the plea that it was for the sake of protecting the child from social stigma and it would also do more harm to the victim. Further, they also take shelter pointing out that in such situations some of the close family members having known such incidents would not extend medical help to the child to keep the same confidential and so on, least bothered about the emotional, psychological and physical harm done to the child. Sexual abuse can be in any form like sexually molesting or assaulting a child or allowing a child to be sexually molested or assaulted or encouraging, inducing or forcing the child to be used for the sexual gratification of another person, using a child or deliberately exposing a child to sexual activities or pornography or procuring or allowing a child to be procured for commercial exploitation and so on. 51. In my view, whenever we deal with an issue of child abuse, we must apply the best interest child standard, since best interest of the child is paramount and not the interest of perpetrator of the crime. Our approach must be child centric. Complaints received from any quarter, of course, have to be kept confidential without casting any stigma on the child and the family members. But, if the tormentor is the family member himself, he shall not go scot free. Proper and sufficient safeguards also have to be given to the persons who come forward to report such incidents to the police or to the Juvenile Justice Board. 52. The conduct of the police for not registering a case under Section 377 IPC against the accused, the agony undergone by a child of 11 years with moderate intellectual disability, non-reporting of offence of rape committed on her, after having witnessed the incident either to the local police or to the J.J. Board compel us to give certain directions for compliance in future which, in my view, are necessary to protect our children from such sexual abuses. This Court as parens patriae has a duty to do so because Court has guardianship over minor children, especially with regard to the children having intellectual disability, since they are suffering from legal disability. Prompt reporting of the crime in this case could have perhaps, saved the life of a minor child of moderate intellectual disability. 53. President of India on 3rd February, 2013 promulgated an ordinance titled ?The Criminal Law (Amendment) Ordinance, 2013, further to amend the Code of Criminal Procedure Code, 1973, Indian Evidence Act, 1872 and the Indian Penal Code, 1860. By the ordinance Sections 375, 376, 376-A, 376-B, 376-C and 376-D of the Code have been substituted by new Sections. The word ?rape? has been replaced by the word ?sexual assault?. Section 375 has also clarified that lack of physical resistance is immaterial for constituting an offence. A new Section 376-A has been added which reads as follows: 376A. Whoever, commits an offence punishable under sub-section (I) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years=, but which may extend to imprisonment for life, which shall mean the remainder of that person?s natural life, or with death?. Therefore a person, who commits an offence punishable under subsection (1) and sub-section (2) of Section 376 and causes death shall be punishable with rigorous imprisonment for a term which shall not be less than twelve years but which my extend to imprisonment for life, which shall be mean the remainder of that periods natural life or with death. 54. Considering the entire facts and circumstances of the case, I am inclined to convert death sentence awarded to the accused to rigorous imprisonment for life and that all the sentences awarded will run consecutively. 55. I | 0[ds]14. The above facts would clearly establish that the girl was last seen with the accused. PW8 evidence discloses that the girl and the accused were seen together at a point of time in proximity with the time and date of the commission of the offence. Last seen theory was successfully established by the prosecution beyond any reasonable doubtIn my considered view that the tests that we have to apply, while awarding death sentence, are ?crime test?, ?criminal test? and the R-R Test and not ?balancing test?. To award death sentence, the ?crime test? has to be fully satisfied, that is 100% and ?criminal test? 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the ?criminal test? may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of the society that is ?society centric? and not ?Judge centric? that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society?s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges37. I find it difficult to endorse this view of the High Court. In my view, the mere pendency of criminal cases as such cannot be an aggravating factor to be taken note of while granting appropriate sentence38. Therefore, the mere pendency of few criminal cases as such is not an aggravating circumstance to be taken note of while awarding death sentence unless the accused is found guilty and convicted in those cases. High Court was, therefore, in error in holding that those are relevant factors to be considered in awarding appropriate sentence39. But what disturbed me the most is that the police after booking the accused for offence under Section 377 IPC failed to charge sheet him, in spite of the fact the medical evidence had clearly established the commission of carnal intercourse on a minor girl with moderate intellectual disability. Dr. Kewade - PW3, who conducted the post mortem, had clearly spelt out the facts of sodomy in his report as well as in his deposition. Prosecuting agency has also failed in his duty to point out the same to the court that a case had been made out under Section 377 IPC52. The conduct of the police for not registering a case under Section 377 IPC against the accused, the agony undergone by a child of 11 years with moderate intellectual disability, non-reporting of offence of rape committed on her, after having witnessed the incident either to the local police or to the J.J. Board compel us to give certain directions for compliance in future which, in my view, are necessary to protect our children from such sexual abuses. This Court as parens patriae has a duty to do so because Court has guardianship over minor children, especially with regard to the children having intellectual disability, since they are suffering from legal disability. Prompt reporting of the crime in this case could have perhaps, saved the life of a minor child of moderate intellectual disability53. President of India on 3rd February, 2013 promulgated an ordinance titled ?The Criminal Law (Amendment) Ordinance, 2013, further to amend the Code of Criminal Procedure Code, 1973, Indian Evidence Act, 1872 and the Indian Penal Code, 1860. By the ordinance Sections 375, 376, 376-A, 376-B, 376-C and 376-D of the Code have been substituted by new Sections. The word ?rape? has been replaced by the word ?sexual assault?. Section 375 has also clarified that lack of physical resistance is immaterial for constituting an offence. A new Section 376-A has been added which reads as follows:376A. Whoever, commits an offence punishable under sub-section (I) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years=, but which may extend to imprisonment for life, which shall mean the remainder of that person?s natural life, or with death?. Therefore a person, who commits an offence punishable under subsection (1) and sub-section (2) of Section 376 and causes death shall be punishable with rigorous imprisonment for a term which shall not be less than twelve years but which my extend to imprisonment for life, which shall be mean the remainder of that periods natural life or with death54. Considering the entire facts and circumstances of the case, I am inclined to convert death sentence awarded to the accused to rigorous imprisonment for life and that all the sentences awarded will run consecutively. | 0 | 12,420 | 1,037 | ### Instruction:
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personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child (including pornographic, sexually related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police, as the case may be. Section 21 prescribes punishment for failure to report or record a case, which reads as follows: ?21. (1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both. (2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.? 50. I may also point out that, in large numbers of cases, children are abused by persons known to them or who have influence over them. Criminal Courts in this country are galore with cases where children are abused by adults addicted to alcohol, drugs, depression, marital discord etc. Preventive aspects have seldom been given importance or taken care of. Penal laws focus more on situations after commission of offences like violence, abuse, exploitation of the children. Witnesses of many such heinous crimes often keep mum taking shelter on factors like social stigma, community pressure, and difficulties of navigating the criminal justice system, total dependency on perpetrator emotionally and economically and so on. Some adult members of family including parents choose not to report such crimes to the police on the plea that it was for the sake of protecting the child from social stigma and it would also do more harm to the victim. Further, they also take shelter pointing out that in such situations some of the close family members having known such incidents would not extend medical help to the child to keep the same confidential and so on, least bothered about the emotional, psychological and physical harm done to the child. Sexual abuse can be in any form like sexually molesting or assaulting a child or allowing a child to be sexually molested or assaulted or encouraging, inducing or forcing the child to be used for the sexual gratification of another person, using a child or deliberately exposing a child to sexual activities or pornography or procuring or allowing a child to be procured for commercial exploitation and so on. 51. In my view, whenever we deal with an issue of child abuse, we must apply the best interest child standard, since best interest of the child is paramount and not the interest of perpetrator of the crime. Our approach must be child centric. Complaints received from any quarter, of course, have to be kept confidential without casting any stigma on the child and the family members. But, if the tormentor is the family member himself, he shall not go scot free. Proper and sufficient safeguards also have to be given to the persons who come forward to report such incidents to the police or to the Juvenile Justice Board. 52. The conduct of the police for not registering a case under Section 377 IPC against the accused, the agony undergone by a child of 11 years with moderate intellectual disability, non-reporting of offence of rape committed on her, after having witnessed the incident either to the local police or to the J.J. Board compel us to give certain directions for compliance in future which, in my view, are necessary to protect our children from such sexual abuses. This Court as parens patriae has a duty to do so because Court has guardianship over minor children, especially with regard to the children having intellectual disability, since they are suffering from legal disability. Prompt reporting of the crime in this case could have perhaps, saved the life of a minor child of moderate intellectual disability. 53. President of India on 3rd February, 2013 promulgated an ordinance titled ?The Criminal Law (Amendment) Ordinance, 2013, further to amend the Code of Criminal Procedure Code, 1973, Indian Evidence Act, 1872 and the Indian Penal Code, 1860. By the ordinance Sections 375, 376, 376-A, 376-B, 376-C and 376-D of the Code have been substituted by new Sections. The word ?rape? has been replaced by the word ?sexual assault?. Section 375 has also clarified that lack of physical resistance is immaterial for constituting an offence. A new Section 376-A has been added which reads as follows: 376A. Whoever, commits an offence punishable under sub-section (I) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years=, but which may extend to imprisonment for life, which shall mean the remainder of that person?s natural life, or with death?. Therefore a person, who commits an offence punishable under subsection (1) and sub-section (2) of Section 376 and causes death shall be punishable with rigorous imprisonment for a term which shall not be less than twelve years but which my extend to imprisonment for life, which shall be mean the remainder of that periods natural life or with death. 54. Considering the entire facts and circumstances of the case, I am inclined to convert death sentence awarded to the accused to rigorous imprisonment for life and that all the sentences awarded will run consecutively. 55. I
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14. The above facts would clearly establish that the girl was last seen with the accused. PW8 evidence discloses that the girl and the accused were seen together at a point of time in proximity with the time and date of the commission of the offence. Last seen theory was successfully established by the prosecution beyond any reasonable doubtIn my considered view that the tests that we have to apply, while awarding death sentence, are ?crime test?, ?criminal test? and the R-R Test and not ?balancing test?. To award death sentence, the ?crime test? has to be fully satisfied, that is 100% and ?criminal test? 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the ?criminal test? may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of the society that is ?society centric? and not ?Judge centric? that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society?s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges37. I find it difficult to endorse this view of the High Court. In my view, the mere pendency of criminal cases as such cannot be an aggravating factor to be taken note of while granting appropriate sentence38. Therefore, the mere pendency of few criminal cases as such is not an aggravating circumstance to be taken note of while awarding death sentence unless the accused is found guilty and convicted in those cases. High Court was, therefore, in error in holding that those are relevant factors to be considered in awarding appropriate sentence39. But what disturbed me the most is that the police after booking the accused for offence under Section 377 IPC failed to charge sheet him, in spite of the fact the medical evidence had clearly established the commission of carnal intercourse on a minor girl with moderate intellectual disability. Dr. Kewade - PW3, who conducted the post mortem, had clearly spelt out the facts of sodomy in his report as well as in his deposition. Prosecuting agency has also failed in his duty to point out the same to the court that a case had been made out under Section 377 IPC52. The conduct of the police for not registering a case under Section 377 IPC against the accused, the agony undergone by a child of 11 years with moderate intellectual disability, non-reporting of offence of rape committed on her, after having witnessed the incident either to the local police or to the J.J. Board compel us to give certain directions for compliance in future which, in my view, are necessary to protect our children from such sexual abuses. This Court as parens patriae has a duty to do so because Court has guardianship over minor children, especially with regard to the children having intellectual disability, since they are suffering from legal disability. Prompt reporting of the crime in this case could have perhaps, saved the life of a minor child of moderate intellectual disability53. President of India on 3rd February, 2013 promulgated an ordinance titled ?The Criminal Law (Amendment) Ordinance, 2013, further to amend the Code of Criminal Procedure Code, 1973, Indian Evidence Act, 1872 and the Indian Penal Code, 1860. By the ordinance Sections 375, 376, 376-A, 376-B, 376-C and 376-D of the Code have been substituted by new Sections. The word ?rape? has been replaced by the word ?sexual assault?. Section 375 has also clarified that lack of physical resistance is immaterial for constituting an offence. A new Section 376-A has been added which reads as follows:376A. Whoever, commits an offence punishable under sub-section (I) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years=, but which may extend to imprisonment for life, which shall mean the remainder of that person?s natural life, or with death?. Therefore a person, who commits an offence punishable under subsection (1) and sub-section (2) of Section 376 and causes death shall be punishable with rigorous imprisonment for a term which shall not be less than twelve years but which my extend to imprisonment for life, which shall be mean the remainder of that periods natural life or with death54. Considering the entire facts and circumstances of the case, I am inclined to convert death sentence awarded to the accused to rigorous imprisonment for life and that all the sentences awarded will run consecutively.
|
Serajuddin and Ors Vs. The State of Orissa | ) (supra) Shah J, speaking for the majority in the case of Ben Gorm Nilgiri Plantations Co. (AIR 1964 SC 1752 ) (supra) observed:"This was undoubtedly a case of two sales resulting in export, and the first sale was held immune from State taxation: but that was so because the property in the goods had passed to the Indian purchaser when the goods were in the export stream. The first sale itself was so inextricably connected with the export that it was regarded as a sale in the course of export."The above observations clearly lend support to the view that even in the case of two sales the first sale would be immune against taxation if the property in the goods passed to the Indian purchaser when the goods were in the export stream. The reason for that was that the first sale was so inextricably connected with the export that it was regarded as a sale in the course of export.74. Another test which was laid down in the case of Ben Gorm Nilgiri Plantations Co. (AIR 1964 SC 1752 ) was as under:"Where the export is the result of sale, the export being inextricably linked up with the sale so that the bond cannot be dissociated without a breach of the obligation arising by statute, contract or mutual understanding between the parties arising from the nature of the transaction, the sale isin the course ofexport."Applying the above test also, the sale by the appellant to STC would qualify for exemption from taxation. It is plain that a breach of the appellants obligation arising under the above contract of sale would result in a situation that STC would not be able to export the chrome concentrates to the foreign buyer.75. I would, therefore, accept the appeals with costs, set aside the judgment of the High Court and answer the question referred to it in favour of the assessee and against the revenue. One hearing fee.76. In civil appeals Nos. 2063 to 2082 of 1974 which have been filed by Nandaram Huntaram, the appellants were lessees of mines. They entered into a contract with STC for the sale of iron ore. STC in its turn entered into export contracts with foreign buyers. The appellants were assessed to tax under the Central Sales Tax Act and as their declaration was not produced within the requisite time, the full rate was applied. The Sales Tax Tribunal negatived the appellants contention that the sales were exempt from payment of tax for being in the course of export. The declaration filed by the appellants was accepted and it was directed that the assessments be made at the concessional rate. The Tribunal in holding the appellants to be liable to pay central sales tax found that the appellants had no direct connection with the export and that the sale by the appellants to STC was independent of the export. It was further observed that the contracts with STC had occasioned inter-State movement of the goods and as such the turnover was liable to be assessed under the Central Sales Tax Act. An application was thereafter made by the appellants to refer the following questions for decision to the High Court:"1. Whether in the facts and circumstances of the case the Tribunal was right in holding that sale of iron ore was not in course of export?2. Whether in the facts and circumstances of the case the contract between the petitioner and State Trading Corporation of India and State Trading Corporation of India and foreign buyers are all inter-connected?3. Whether in the facts and circumstances of the case the sale of iron ore is liable to be taxed under Central Sales Tax Act at all?4. Whether in the facts and circumstances of the case there was material available on record for assessing the petitioner under the provisions of Central Tax Act?5. Whether the sale by the petitioner had occasioned movement of goods in course of export and is protected by Article 286 of the Constitution of India?"The Tribunal dismissed the above application. The appellants then filed applications before the High Court that the Tribunal be called upon to file a statement of the case in respect of the above mentioned questions The High Court dismissed those applications and in doing so relied upon the judgment in the case of Md. Serajuddin v. State of Orissa which is the subject-matter of the other 10 appeals, namely, civil appeals Nos.697 to 706 of 197.3. The above mentioned 20 appeals have been filed against the order of the High Court dismissing those applications.77. Mr. Bhandare on behalf of the State has urged in these 20 appeals that the facts of these cases are materially different from those in the cases of Md. Serajuddin and as such even if we accept the appeals in the cases of Md. Serajuddin, we should not interfere with the order of the High Court in these 20 appeals. So far as the above submission is concerned, I may observe that I do not express any opinion on the point as to whether the facts of these cases are similar to those in cases of Md. Serajuddin. This is a matter which would have to be gone into after a reference and statement of case is submitted to the High Court. For our purpose it is sufficient to note that the High Court in dismissing the applications filed by the appellants placed reliance upon its decision in the cases of Md. Serajuddin. As the judgment in the cases of Md. Serajuddin is being set aside, the ground for refusing to call for a reference no longer holds good. I, therefore, accept the 20 appeals filed by Nandaram Huntaram set aside the judgment of the High Court and direct the Tribunal to file a statement of the case and refer the question reproduced above to the High Court. The appellants shall be entitled to the costs in this Court in these appeals also. One hearing fee.ORDER78. | 0[ds]There may be a variety of transactions if the sale of commodity is followed by export. Foreign purchasers may purchase through their agents within the territory of India. Such a transaction is not in the course of export because the seller does not export the goods and it is not his concern as to how the purchaser deals with the goods. There may be also a transaction under a contract of sale with a foreign buyer under which the goods may under the contract be delivered by the seller to a common carrier for transporting them to the purchaser. Such a sale may be dissociated from the export. 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.The appellant sold the goods directly to the Corporation. The circumstance that the appellant did so to facilitate the performance of the contract between the Corporation and the foreign buyer on terms which were similar did not make the contract between the appellant and the Corporation the immediate cause of the export. The Corporation in regard to its contract with the foreign buyer entered into a contract with the appellant to procure the goods. Such Contracts for procurement of goods for export are described in commercial parlance as back to back contracts. In export trade it is not unnatural to find a string of contracts for export of goods. It is only the contract which occasions the export of goods which will be entitled to exemption. The appellant was under no contractual obligation to the foreign buyer either directly or indirectly. The rights of the appellants were against the Corporation. Similarly the obligations of the appellant were to the Corporation. The foreign buyer could not claim any right against the appellant nor did the appellant have any obligation to the foreign buyer. All acts done by the appellant were in performance of the appellants obligation under the contract with the Corporation and not in performance of the obligations of the Corporation to the foreign buyer.27. The expression "sale" in Section 5 of the Act has the same meaning as in Sale of Goods Act . String contracts or chain contracts are separate transactions even when there is similarity relating to quantity, quality of goods, shipment, sampling and analysis, weighment and force majeure etc. or other similar terms. A contract of sale is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for the money consideration called the price. There were two separate contracts. The price was different in the two contracts. This difference also dissociates the two contracts from each other. The High Court was right in holding that the sales of the appellant to the Corporation were exigible to tax because the appellants sales to the Corporation were not sales in the course ofthe present case, there is no principal and agent relationship between the appellant and the Corporation and in the absence of such relationship the agency of necessity does not arise. Other instances of agency of necessity are where the master of a ship is entitled in the case of accident to enter into a contract which binds the owner of the cargo, notwithstanding that it transcends his express authority if it is bona fide made in the best interests of the owners concerned. The same power is possessed by a land carrier in respect of perishable goods. In the present case, the relationship between the appellant and the Corporation is between two principals and there is no aspect whatever of principal and agency. Further, this question of agency was never raised before the Sales Tax authorities.In the present case, the mention of F,O.B, price in the contracts between the appellant and the Corporation does not render the contracts F.O.B. contracts with the foreign buyer. The Corporation entered into independent contracts with the foreign buyers on F.O.B basis, The appellants were required under the contracts between the appellant and the Corporation to bring the goods to the ship named by the Corporation. The shipment of the goods by the Corporation to the foreign buyer is the F-O-B, contract to which the appellants are not the parties. The course of export in the export stream is possible in direct contracts between the Indian seller and the foreign buyer. The Corporation purchased goods from the appellants in order to fulfil the contract with the foreign buyer. The only scope of the deeming provision in the Act is to find out the contract of sale which is the direct cause or which occasions the export.35. The expression "in the course" implies not only a period of time during which the movement is in progress but postulates a connected relation, Sale in the course of export out of the territory of India means sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities. In Burmah Shell Oil Storage and Distributing Co. v. Commercial Tax Officer (1961) SCR 902 = (AIR 1961 SC 315 ) it was said that the word "export" did not mean a mere taking out of the country but that the goods may be sent to a destination at which they could be said to be imported. The directions given by the Corporation to the appellant to place the goods on board the ship are pursuant to the contract of sale between the appellant and the corporation. These directions are not in the course of export, because the export sale is an independent one between the Corporation and the foreign buyer. The taking of the goods from the appellants place to the ship is completely separate from the transit pursuant to the export sale.36. The fact that the exports can be made only through the State Trading Corporation does not have the effect of making the appellants the exporters where there is direct contract between the Corporation and the foreign buyer. Restriction on export that export can be made only through the State Trading Corporation is reasonable restriction and has been upheld by this Court in several decisions to which reference has been made earlier.37. For these reasons we are of opinion that the High Court was correct in its conclusion that the contracts between the appellant and the Corporation were not entitled to claim exemption within the meaning of Section 5 (1) of the Act. Civil Appeals Nos. 697-706 of 1973 are dismissed. Parties will pay and bear their own costs.38. In Civil Appeals Nos. 2063 2082 of 1974 the appellants entered into similar contracts with the Corporation. The Corporation entered into similar contracts with the foreign buyers. The appellants were assessed to tax under the Act. The appellants made an application to the Tribunal to refer the question to the High Court as to whether the sales by the appellants to the Corporation were in the course of export. The Tribunal dismissed the application of the appellants. The appellants applied to the High Court for orders that the Tribunal be called upon to file statement of case. The High Court dismissed the applications. The High Court relied on the decision which is the subject matter of Civil Appeals Nos. 697-706 of 1973. In view of our conclusion in Civil Appeals Nos. 697 706 of 1973 that the appellants are not entitled to claim exemption. Civil Appeals Nos. 2063-2082 of 1974 are dismissed.39. In view of the fact that the High Court directed the parties to pay and bear their own costs. similar order is made in all these appeals. | 0 | 16,926 | 1,553 | ### Instruction:
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) (supra) Shah J, speaking for the majority in the case of Ben Gorm Nilgiri Plantations Co. (AIR 1964 SC 1752 ) (supra) observed:"This was undoubtedly a case of two sales resulting in export, and the first sale was held immune from State taxation: but that was so because the property in the goods had passed to the Indian purchaser when the goods were in the export stream. The first sale itself was so inextricably connected with the export that it was regarded as a sale in the course of export."The above observations clearly lend support to the view that even in the case of two sales the first sale would be immune against taxation if the property in the goods passed to the Indian purchaser when the goods were in the export stream. The reason for that was that the first sale was so inextricably connected with the export that it was regarded as a sale in the course of export.74. Another test which was laid down in the case of Ben Gorm Nilgiri Plantations Co. (AIR 1964 SC 1752 ) was as under:"Where the export is the result of sale, the export being inextricably linked up with the sale so that the bond cannot be dissociated without a breach of the obligation arising by statute, contract or mutual understanding between the parties arising from the nature of the transaction, the sale isin the course ofexport."Applying the above test also, the sale by the appellant to STC would qualify for exemption from taxation. It is plain that a breach of the appellants obligation arising under the above contract of sale would result in a situation that STC would not be able to export the chrome concentrates to the foreign buyer.75. I would, therefore, accept the appeals with costs, set aside the judgment of the High Court and answer the question referred to it in favour of the assessee and against the revenue. One hearing fee.76. In civil appeals Nos. 2063 to 2082 of 1974 which have been filed by Nandaram Huntaram, the appellants were lessees of mines. They entered into a contract with STC for the sale of iron ore. STC in its turn entered into export contracts with foreign buyers. The appellants were assessed to tax under the Central Sales Tax Act and as their declaration was not produced within the requisite time, the full rate was applied. The Sales Tax Tribunal negatived the appellants contention that the sales were exempt from payment of tax for being in the course of export. The declaration filed by the appellants was accepted and it was directed that the assessments be made at the concessional rate. The Tribunal in holding the appellants to be liable to pay central sales tax found that the appellants had no direct connection with the export and that the sale by the appellants to STC was independent of the export. It was further observed that the contracts with STC had occasioned inter-State movement of the goods and as such the turnover was liable to be assessed under the Central Sales Tax Act. An application was thereafter made by the appellants to refer the following questions for decision to the High Court:"1. Whether in the facts and circumstances of the case the Tribunal was right in holding that sale of iron ore was not in course of export?2. Whether in the facts and circumstances of the case the contract between the petitioner and State Trading Corporation of India and State Trading Corporation of India and foreign buyers are all inter-connected?3. Whether in the facts and circumstances of the case the sale of iron ore is liable to be taxed under Central Sales Tax Act at all?4. Whether in the facts and circumstances of the case there was material available on record for assessing the petitioner under the provisions of Central Tax Act?5. Whether the sale by the petitioner had occasioned movement of goods in course of export and is protected by Article 286 of the Constitution of India?"The Tribunal dismissed the above application. The appellants then filed applications before the High Court that the Tribunal be called upon to file a statement of the case in respect of the above mentioned questions The High Court dismissed those applications and in doing so relied upon the judgment in the case of Md. Serajuddin v. State of Orissa which is the subject-matter of the other 10 appeals, namely, civil appeals Nos.697 to 706 of 197.3. The above mentioned 20 appeals have been filed against the order of the High Court dismissing those applications.77. Mr. Bhandare on behalf of the State has urged in these 20 appeals that the facts of these cases are materially different from those in the cases of Md. Serajuddin and as such even if we accept the appeals in the cases of Md. Serajuddin, we should not interfere with the order of the High Court in these 20 appeals. So far as the above submission is concerned, I may observe that I do not express any opinion on the point as to whether the facts of these cases are similar to those in cases of Md. Serajuddin. This is a matter which would have to be gone into after a reference and statement of case is submitted to the High Court. For our purpose it is sufficient to note that the High Court in dismissing the applications filed by the appellants placed reliance upon its decision in the cases of Md. Serajuddin. As the judgment in the cases of Md. Serajuddin is being set aside, the ground for refusing to call for a reference no longer holds good. I, therefore, accept the 20 appeals filed by Nandaram Huntaram set aside the judgment of the High Court and direct the Tribunal to file a statement of the case and refer the question reproduced above to the High Court. The appellants shall be entitled to the costs in this Court in these appeals also. One hearing fee.ORDER78.
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of the appellant were to the Corporation. The foreign buyer could not claim any right against the appellant nor did the appellant have any obligation to the foreign buyer. All acts done by the appellant were in performance of the appellants obligation under the contract with the Corporation and not in performance of the obligations of the Corporation to the foreign buyer.27. The expression "sale" in Section 5 of the Act has the same meaning as in Sale of Goods Act . String contracts or chain contracts are separate transactions even when there is similarity relating to quantity, quality of goods, shipment, sampling and analysis, weighment and force majeure etc. or other similar terms. A contract of sale is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for the money consideration called the price. There were two separate contracts. The price was different in the two contracts. This difference also dissociates the two contracts from each other. The High Court was right in holding that the sales of the appellant to the Corporation were exigible to tax because the appellants sales to the Corporation were not sales in the course ofthe present case, there is no principal and agent relationship between the appellant and the Corporation and in the absence of such relationship the agency of necessity does not arise. Other instances of agency of necessity are where the master of a ship is entitled in the case of accident to enter into a contract which binds the owner of the cargo, notwithstanding that it transcends his express authority if it is bona fide made in the best interests of the owners concerned. The same power is possessed by a land carrier in respect of perishable goods. In the present case, the relationship between the appellant and the Corporation is between two principals and there is no aspect whatever of principal and agency. Further, this question of agency was never raised before the Sales Tax authorities.In the present case, the mention of F,O.B, price in the contracts between the appellant and the Corporation does not render the contracts F.O.B. contracts with the foreign buyer. The Corporation entered into independent contracts with the foreign buyers on F.O.B basis, The appellants were required under the contracts between the appellant and the Corporation to bring the goods to the ship named by the Corporation. The shipment of the goods by the Corporation to the foreign buyer is the F-O-B, contract to which the appellants are not the parties. The course of export in the export stream is possible in direct contracts between the Indian seller and the foreign buyer. The Corporation purchased goods from the appellants in order to fulfil the contract with the foreign buyer. The only scope of the deeming provision in the Act is to find out the contract of sale which is the direct cause or which occasions the export.35. The expression "in the course" implies not only a period of time during which the movement is in progress but postulates a connected relation, Sale in the course of export out of the territory of India means sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities. In Burmah Shell Oil Storage and Distributing Co. v. Commercial Tax Officer (1961) SCR 902 = (AIR 1961 SC 315 ) it was said that the word "export" did not mean a mere taking out of the country but that the goods may be sent to a destination at which they could be said to be imported. The directions given by the Corporation to the appellant to place the goods on board the ship are pursuant to the contract of sale between the appellant and the corporation. These directions are not in the course of export, because the export sale is an independent one between the Corporation and the foreign buyer. The taking of the goods from the appellants place to the ship is completely separate from the transit pursuant to the export sale.36. The fact that the exports can be made only through the State Trading Corporation does not have the effect of making the appellants the exporters where there is direct contract between the Corporation and the foreign buyer. Restriction on export that export can be made only through the State Trading Corporation is reasonable restriction and has been upheld by this Court in several decisions to which reference has been made earlier.37. For these reasons we are of opinion that the High Court was correct in its conclusion that the contracts between the appellant and the Corporation were not entitled to claim exemption within the meaning of Section 5 (1) of the Act. Civil Appeals Nos. 697-706 of 1973 are dismissed. Parties will pay and bear their own costs.38. In Civil Appeals Nos. 2063 2082 of 1974 the appellants entered into similar contracts with the Corporation. The Corporation entered into similar contracts with the foreign buyers. The appellants were assessed to tax under the Act. The appellants made an application to the Tribunal to refer the question to the High Court as to whether the sales by the appellants to the Corporation were in the course of export. The Tribunal dismissed the application of the appellants. The appellants applied to the High Court for orders that the Tribunal be called upon to file statement of case. The High Court dismissed the applications. The High Court relied on the decision which is the subject matter of Civil Appeals Nos. 697-706 of 1973. In view of our conclusion in Civil Appeals Nos. 697 706 of 1973 that the appellants are not entitled to claim exemption. Civil Appeals Nos. 2063-2082 of 1974 are dismissed.39. In view of the fact that the High Court directed the parties to pay and bear their own costs. similar order is made in all these appeals.
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MMTC LTD Vs. M/S.VEDANTA LTD | any independent understanding between the Appellant and the Respondent which was not governed by the agreement dated 14.12.1993.16. The Appellant has highlighted before us several correspondences addressed to it from the Respondent that refer to the fact that sales to HTPL had been made under the Respondent’s contract with HTPL. Indeed, it is evident from the agreement dated 28.07.1994 between HTPL and the Respondent that a direct agreement existed between them. However, as is undisputed, the Appellant received its commission in its entirety for the HTPL transaction, and thus clearly was a beneficiary of the agreement between the Respondent and HTPL. Moreover, in this regard, it was rightly observed in the Majority Award that the Appellant could not show under what separate agreement it was entitled to commission from such sales other than the agreement dated 14.12.1993, and for what services, if its only role in the transaction was to allow HTPL to lift goods from its godowns.17. Indeed, it is not the case of the Appellant that it only provided storage services to the Respondent by allowing the Respondent to store its goods in the warehouse of the Appellant (i.e. that it only acted as a warehouse for the Respondent). In fact, a series of correspondences amongst the Appellant, the Respondent and HTPL clearly reveals that the Appellant was also actively involved in the transaction in question entered into between the Respondent and HTPL, and as such was a beneficiary under their agreement, as observed supra. The Appellant released the Respondent’s goods to HTPL as per the directions of the Respondent without raising any objection, and thereafter engaged in correspondence in respect of the transaction.18. It would be appropriate to refer to some such communications amongst the Appellant, the Respondent and HTPL for illustrative purposes. For instance, as mentioned by the Respondent in a communication dated 19.09.1994 addressed to HTPL, the Appellant was to honour the terms and conditions of the agreement between the Respondent and HTPL. The said communication also referred to negotiations about issuance of a letters of credit in favour of the Appellant. Additionally, as can be seen from the correspondence from the Appellant to the Respondent dated 26.08.1994, the Appellant wrote to it to confirm that credit had to be supplied to HTPL at the discounted interest rate of 16.25% p.a., which was affirmed by the Respondent on the same day. At the same time, the correspondence dated 28.03.1995 from the Respondent to the Appellant discloses that a letter of credit issued by HTPL initially sent to the Respondent was forwarded to the Appellant with directions to despatch goods after verification of the letter of credit and other related papers.19. The issuance of letters of credit in the name of the Appellant with respect to the HTPL transaction was similar to the practice adopted in case of letters of credit or demand drafts issued in all other transactions, whether directly negotiated by the Respondent, or procured through the Appellant, which suggests that it was the duty of the Appellant in this case as well to ensure that usance letter of credits issued were bona fide, and in case of stand-by letters of credit, that they were negotiated in time in case of failure of payment on the due date, in terms of the agreement dated 14.12.1993.20. The Courts also rightly relied upon the communication dated 06.12.1995 from the Respondent to the Appellant adverting to the terms and conditions of the contract between the parties and referring to the fact that in respect of the sales made to HTPL in the period of April, May and July 1995, an amount of Rs. 9.2 crores together with interest was still to be received. The response to the above communication, from the Appellant to the Respondent, dated 08.12.1995, stated that the Appellant had taken steps to set the matter right, and that the Appellant had had certain internal difficulties which had since been resolved and the Respondent would have no grounds to complain thereafter. This communication clearly demonstrates the duty of the Appellant to recover the dues from HTPL and forward the same to the Respondent.21. Another important communication rightly relied upon by the Courts is the Appellant’s letter dated 24.01.1996 to the Respondent, informing it about the institution of a suit for damages by HTPL with respect to the quality of the goods supplied. This correspondence refers to HTPL as a customer introduced to the Appellant by the Respondent. Crucially, it was addressed in terms of the agreement dated 14.12.1993, which amounts to a clear admission that the sales made to HTPL were in terms of the said agreement.22. In this view of the matter, it is not open to the Appellant to argue that the agreement between the Respondent and HTPL was independent of the agreement dated 14.12.1993 between the Appellant and the Respondent and that the latter did not apply to such transaction.23. Moreover, as noticed in the Majority Award and also by the Courts, the oral evidence of the officers of the Appellant indicates that the Appellant did not make any effort to ensure that the letters of credits pertaining to the supplies made to HTPL were honoured, pointing towards gross negligence on the part of the Appellant.24. Based upon the above discussion, in our opinion, the view taken in the Majority Award, as confirmed by the High Court in the exercise of its powers under Sections 34 and 37 of the 1996 Act, is a possible view based upon a reasonable construction of the terms of the agreement dated 14.12.1993 between the Appellant and the Respondent and consideration of the material on record. We are also of the opinion that the dispute was covered under the agreement between the Appellant and the Respondent dated 14.12.1993, and as such the dispute is governed by the arbitration clause under the said agreement. Thus, we find no reason to disturb the Majority Award on the ground that the subject matter of the dispute was not arbitrable. | 0[ds]12. As far as interference with an order made under Section 34, as per Section 37, is concerned, it cannot be disputed that such interference under Section 37 cannot travel beyond the restrictions laid down under Section 34. In other words, the Court cannot undertake an independent assessment of the merits of the award, and must only ascertain that the exercise of power by the Court under Section 34 has not exceeded the scope of the provision. Thus, it is evident that in case an arbitral award has been confirmed by the Court under Section 34 and by the Court in an appeal under Section 37, this Court must be extremely cautious and slow to disturb such concurrent findings.13. Having noted the above grounds for interference with an arbitral award, it must now be noted that the instant question pertains to determining whether the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, this question has been addressed by the Courts in terms of the construction of the contract between the parties, and as such it can be safely said that a review of such a construction cannot be made in terms of re-assessment of the material on record, but only in terms of the principles governing interference with an award as discussed above.14. It is equally important to observe at this juncture that while interpreting the terms of a contract, the conduct of parties and correspondences exchanged would also be relevant factors and it is within thejurisdiction to consider the same.We have gone through the material on record as well as the Majority Award, and the decisions of the learned Single Judge and the Division Bench. The majority of the arbitral tribunal as well as the Courts found upon a consideration of the material on record, including the agreement dated 14.12.1993, the correspondence between the parties and the oral evidence adduced, that the agreement does not make any distinction within the type of customers, and furthermore that the supplies to HTPL were not made in furtherance of any independent understanding between the Appellant and the Respondent which was not governed by the agreement dated 14.12.1993.16. The Appellant has highlighted before us several correspondences addressed to it from the Respondent that refer to the fact that sales to HTPL had been made under thecontract with HTPL. Indeed, it is evident from the agreement dated 28.07.1994 between HTPL and the Respondent that a direct agreement existed between them. However, as is undisputed, the Appellant received its commission in its entirety for the HTPL transaction, and thus clearly was a beneficiary of the agreement between the Respondent and HTPL. Moreover, in this regard, it was rightly observed in the Majority Award that the Appellant could not show under what separate agreement it was entitled to commission from such sales other than the agreement dated 14.12.1993, and for what services, if its only role in the transaction was to allow HTPL to lift goods from its godowns.17. Indeed, it is not the case of the Appellant that it only provided storage services to the Respondent by allowing the Respondent to store its goods in the warehouse of the Appellant (i.e. that it only acted as a warehouse for the Respondent). In fact, a series of correspondences amongst the Appellant, the Respondent and HTPL clearly reveals that the Appellant was also actively involved in the transaction in question entered into between the Respondent and HTPL, and as such was a beneficiary under their agreement, as observed supra. The Appellant released thegoods to HTPL as per the directions of the Respondent without raising any objection, and thereafter engaged in correspondence in respect of the transaction.18. It would be appropriate to refer to some such communications amongst the Appellant, the Respondent and HTPL for illustrative purposes. For instance, as mentioned by the Respondent in a communication dated 19.09.1994 addressed to HTPL, the Appellant was to honour the terms and conditions of the agreement between the Respondent and HTPL. The said communication also referred to negotiations about issuance of a letters of credit in favour of the Appellant. Additionally, as can be seen from the correspondence from the Appellant to the Respondent dated 26.08.1994, the Appellant wrote to it to confirm that credit had to be supplied to HTPL at the discounted interest rate of 16.25% p.a., which was affirmed by the Respondent on the same day. At the same time, the correspondence dated 28.03.1995 from the Respondent to the Appellant discloses that a letter of credit issued by HTPL initially sent to the Respondent was forwarded to the Appellant with directions to despatch goods after verification of the letter of credit and other related papers.19. The issuance of letters of credit in the name of the Appellant with respect to the HTPL transaction was similar to the practice adopted in case of letters of credit or demand drafts issued in all other transactions, whether directly negotiated by the Respondent, or procured through the Appellant, which suggests that it was the duty of the Appellant in this case as well to ensure that usance letter of credits issued were bona fide, and in case of stand-by letters of credit, that they were negotiated in time in case of failure of payment on the due date, in terms of the agreement dated 14.12.1993.20. The Courts also rightly relied upon the communication dated 06.12.1995 from the Respondent to the Appellant adverting to the terms and conditions of the contract between the parties and referring to the fact that in respect of the sales made to HTPL in the period of April, May and July 1995, an amount of Rs. 9.2 crores together with interest was still to be received. The response to the above communication, from the Appellant to the Respondent, dated 08.12.1995, stated that the Appellant had taken steps to set the matter right, and that the Appellant had had certain internal difficulties which had since been resolved and the Respondent would have no grounds to complain thereafter. This communication clearly demonstrates the duty of the Appellant to recover the dues from HTPL and forward the same to the Respondent.21. Another important communication rightly relied upon by the Courts is theletter dated 24.01.1996 to the Respondent, informing it about the institution of a suit for damages by HTPL with respect to the quality of the goods supplied. This correspondence refers to HTPL as a customer introduced to the Appellant by the Respondent. Crucially, it was addressed in terms of the agreement dated 14.12.1993, which amounts to a clear admission that the sales made to HTPL were in terms of the said agreement.22. In this view of the matter, it is not open to the Appellant to argue that the agreement between the Respondent and HTPL was independent of the agreement dated 14.12.1993 between the Appellant and the Respondent and that the latter did not apply to such transaction.23. Moreover, as noticed in the Majority Award and also by the Courts, the oral evidence of the officers of the Appellant indicates that the Appellant did not make any effort to ensure that the letters of credits pertaining to the supplies made to HTPL were honoured, pointing towards gross negligence on the part of the Appellant.24. Based upon the above discussion, in our opinion, the view taken in the Majority Award, as confirmed by the High Court in the exercise of its powers under Sections 34 and 37 of the 1996 Act, is a possible view based upon a reasonable construction of the terms of the agreement dated 14.12.1993 between the Appellant and the Respondent and consideration of the material on record. We are also of the opinion that the dispute was covered under the agreement between the Appellant and the Respondent dated 14.12.1993, and as such the dispute is governed by the arbitration clause under the said agreement. Thus, we find no reason to disturb the Majority Award on the ground that the subject matter of the dispute was not arbitrable. | 0 | 3,321 | 1,466 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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any independent understanding between the Appellant and the Respondent which was not governed by the agreement dated 14.12.1993.16. The Appellant has highlighted before us several correspondences addressed to it from the Respondent that refer to the fact that sales to HTPL had been made under the Respondent’s contract with HTPL. Indeed, it is evident from the agreement dated 28.07.1994 between HTPL and the Respondent that a direct agreement existed between them. However, as is undisputed, the Appellant received its commission in its entirety for the HTPL transaction, and thus clearly was a beneficiary of the agreement between the Respondent and HTPL. Moreover, in this regard, it was rightly observed in the Majority Award that the Appellant could not show under what separate agreement it was entitled to commission from such sales other than the agreement dated 14.12.1993, and for what services, if its only role in the transaction was to allow HTPL to lift goods from its godowns.17. Indeed, it is not the case of the Appellant that it only provided storage services to the Respondent by allowing the Respondent to store its goods in the warehouse of the Appellant (i.e. that it only acted as a warehouse for the Respondent). In fact, a series of correspondences amongst the Appellant, the Respondent and HTPL clearly reveals that the Appellant was also actively involved in the transaction in question entered into between the Respondent and HTPL, and as such was a beneficiary under their agreement, as observed supra. The Appellant released the Respondent’s goods to HTPL as per the directions of the Respondent without raising any objection, and thereafter engaged in correspondence in respect of the transaction.18. It would be appropriate to refer to some such communications amongst the Appellant, the Respondent and HTPL for illustrative purposes. For instance, as mentioned by the Respondent in a communication dated 19.09.1994 addressed to HTPL, the Appellant was to honour the terms and conditions of the agreement between the Respondent and HTPL. The said communication also referred to negotiations about issuance of a letters of credit in favour of the Appellant. Additionally, as can be seen from the correspondence from the Appellant to the Respondent dated 26.08.1994, the Appellant wrote to it to confirm that credit had to be supplied to HTPL at the discounted interest rate of 16.25% p.a., which was affirmed by the Respondent on the same day. At the same time, the correspondence dated 28.03.1995 from the Respondent to the Appellant discloses that a letter of credit issued by HTPL initially sent to the Respondent was forwarded to the Appellant with directions to despatch goods after verification of the letter of credit and other related papers.19. The issuance of letters of credit in the name of the Appellant with respect to the HTPL transaction was similar to the practice adopted in case of letters of credit or demand drafts issued in all other transactions, whether directly negotiated by the Respondent, or procured through the Appellant, which suggests that it was the duty of the Appellant in this case as well to ensure that usance letter of credits issued were bona fide, and in case of stand-by letters of credit, that they were negotiated in time in case of failure of payment on the due date, in terms of the agreement dated 14.12.1993.20. The Courts also rightly relied upon the communication dated 06.12.1995 from the Respondent to the Appellant adverting to the terms and conditions of the contract between the parties and referring to the fact that in respect of the sales made to HTPL in the period of April, May and July 1995, an amount of Rs. 9.2 crores together with interest was still to be received. The response to the above communication, from the Appellant to the Respondent, dated 08.12.1995, stated that the Appellant had taken steps to set the matter right, and that the Appellant had had certain internal difficulties which had since been resolved and the Respondent would have no grounds to complain thereafter. This communication clearly demonstrates the duty of the Appellant to recover the dues from HTPL and forward the same to the Respondent.21. Another important communication rightly relied upon by the Courts is the Appellant’s letter dated 24.01.1996 to the Respondent, informing it about the institution of a suit for damages by HTPL with respect to the quality of the goods supplied. This correspondence refers to HTPL as a customer introduced to the Appellant by the Respondent. Crucially, it was addressed in terms of the agreement dated 14.12.1993, which amounts to a clear admission that the sales made to HTPL were in terms of the said agreement.22. In this view of the matter, it is not open to the Appellant to argue that the agreement between the Respondent and HTPL was independent of the agreement dated 14.12.1993 between the Appellant and the Respondent and that the latter did not apply to such transaction.23. Moreover, as noticed in the Majority Award and also by the Courts, the oral evidence of the officers of the Appellant indicates that the Appellant did not make any effort to ensure that the letters of credits pertaining to the supplies made to HTPL were honoured, pointing towards gross negligence on the part of the Appellant.24. Based upon the above discussion, in our opinion, the view taken in the Majority Award, as confirmed by the High Court in the exercise of its powers under Sections 34 and 37 of the 1996 Act, is a possible view based upon a reasonable construction of the terms of the agreement dated 14.12.1993 between the Appellant and the Respondent and consideration of the material on record. We are also of the opinion that the dispute was covered under the agreement between the Appellant and the Respondent dated 14.12.1993, and as such the dispute is governed by the arbitration clause under the said agreement. Thus, we find no reason to disturb the Majority Award on the ground that the subject matter of the dispute was not arbitrable.
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were not made in furtherance of any independent understanding between the Appellant and the Respondent which was not governed by the agreement dated 14.12.1993.16. The Appellant has highlighted before us several correspondences addressed to it from the Respondent that refer to the fact that sales to HTPL had been made under thecontract with HTPL. Indeed, it is evident from the agreement dated 28.07.1994 between HTPL and the Respondent that a direct agreement existed between them. However, as is undisputed, the Appellant received its commission in its entirety for the HTPL transaction, and thus clearly was a beneficiary of the agreement between the Respondent and HTPL. Moreover, in this regard, it was rightly observed in the Majority Award that the Appellant could not show under what separate agreement it was entitled to commission from such sales other than the agreement dated 14.12.1993, and for what services, if its only role in the transaction was to allow HTPL to lift goods from its godowns.17. Indeed, it is not the case of the Appellant that it only provided storage services to the Respondent by allowing the Respondent to store its goods in the warehouse of the Appellant (i.e. that it only acted as a warehouse for the Respondent). In fact, a series of correspondences amongst the Appellant, the Respondent and HTPL clearly reveals that the Appellant was also actively involved in the transaction in question entered into between the Respondent and HTPL, and as such was a beneficiary under their agreement, as observed supra. The Appellant released thegoods to HTPL as per the directions of the Respondent without raising any objection, and thereafter engaged in correspondence in respect of the transaction.18. It would be appropriate to refer to some such communications amongst the Appellant, the Respondent and HTPL for illustrative purposes. For instance, as mentioned by the Respondent in a communication dated 19.09.1994 addressed to HTPL, the Appellant was to honour the terms and conditions of the agreement between the Respondent and HTPL. The said communication also referred to negotiations about issuance of a letters of credit in favour of the Appellant. Additionally, as can be seen from the correspondence from the Appellant to the Respondent dated 26.08.1994, the Appellant wrote to it to confirm that credit had to be supplied to HTPL at the discounted interest rate of 16.25% p.a., which was affirmed by the Respondent on the same day. At the same time, the correspondence dated 28.03.1995 from the Respondent to the Appellant discloses that a letter of credit issued by HTPL initially sent to the Respondent was forwarded to the Appellant with directions to despatch goods after verification of the letter of credit and other related papers.19. The issuance of letters of credit in the name of the Appellant with respect to the HTPL transaction was similar to the practice adopted in case of letters of credit or demand drafts issued in all other transactions, whether directly negotiated by the Respondent, or procured through the Appellant, which suggests that it was the duty of the Appellant in this case as well to ensure that usance letter of credits issued were bona fide, and in case of stand-by letters of credit, that they were negotiated in time in case of failure of payment on the due date, in terms of the agreement dated 14.12.1993.20. The Courts also rightly relied upon the communication dated 06.12.1995 from the Respondent to the Appellant adverting to the terms and conditions of the contract between the parties and referring to the fact that in respect of the sales made to HTPL in the period of April, May and July 1995, an amount of Rs. 9.2 crores together with interest was still to be received. The response to the above communication, from the Appellant to the Respondent, dated 08.12.1995, stated that the Appellant had taken steps to set the matter right, and that the Appellant had had certain internal difficulties which had since been resolved and the Respondent would have no grounds to complain thereafter. This communication clearly demonstrates the duty of the Appellant to recover the dues from HTPL and forward the same to the Respondent.21. Another important communication rightly relied upon by the Courts is theletter dated 24.01.1996 to the Respondent, informing it about the institution of a suit for damages by HTPL with respect to the quality of the goods supplied. This correspondence refers to HTPL as a customer introduced to the Appellant by the Respondent. Crucially, it was addressed in terms of the agreement dated 14.12.1993, which amounts to a clear admission that the sales made to HTPL were in terms of the said agreement.22. In this view of the matter, it is not open to the Appellant to argue that the agreement between the Respondent and HTPL was independent of the agreement dated 14.12.1993 between the Appellant and the Respondent and that the latter did not apply to such transaction.23. Moreover, as noticed in the Majority Award and also by the Courts, the oral evidence of the officers of the Appellant indicates that the Appellant did not make any effort to ensure that the letters of credits pertaining to the supplies made to HTPL were honoured, pointing towards gross negligence on the part of the Appellant.24. Based upon the above discussion, in our opinion, the view taken in the Majority Award, as confirmed by the High Court in the exercise of its powers under Sections 34 and 37 of the 1996 Act, is a possible view based upon a reasonable construction of the terms of the agreement dated 14.12.1993 between the Appellant and the Respondent and consideration of the material on record. We are also of the opinion that the dispute was covered under the agreement between the Appellant and the Respondent dated 14.12.1993, and as such the dispute is governed by the arbitration clause under the said agreement. Thus, we find no reason to disturb the Majority Award on the ground that the subject matter of the dispute was not arbitrable.
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Janki Sugar Mills & Co Vs. Commissioner Of Meerut Division, Meerut | Supply and Purchase) Act, 1953 and set out Cl. 3 of the U.P. Sugarcane Supply and Purchase Order, 1954. Under s.15(1) of the Act power has been conferred upon t he Cane Commissioner after consulting the factory and the cane-grower/Canegrowers Co-operative Society to (a) reserve any area (hereinafter called the reserved area) or, (b) assign any area (hereinafter called an assigned area) for the purpose of the supply of sugarcane to a factory in accordance with the provisions of s.16 during one or more crushing seasons as may be specified. It was under this provision that the Cane Commissioner has passed order dated November 1, 1954 reserving certain sugarcane centres (reserved area) for the appellant firm for the 1954-55 season. 4 Clause 3 of the U.P. Sugarcane Supply and Purchase Order 1954 runs thus:"3. Purchase of cane in reserved areas.- (1) The occupier of a factory shall estimate or cause to be estimated by the 31st day of October or such later date in a crushing season as, on an application being made to the Cane Commissioner by the occupier of a factory, may be fixed by the Cane Commissioner, the quantity of cane with each grower enrolled in the Growers Register and shall on demand submit the estimate to the Cane Commissioner and the Collector. (2) A cane-grower or a Cane-growers Co-operative Society may within 14 days of the issue of an order reserving an area for a factory, offer in Form A of the Appendix, to supply cane grown in the reserved area, to the occupier of the factory. (3) The occupier of the factory for which an area has been reserved, shall, within fourteen days of the receipt of the offer enter into an agreement in Form B or Form C of the Appendix, with the Cane-grower or the Canegrowers Cooperative Society, as the case may be, in respect of the cane offered: Provided that any purchase of cane made before the execution of the prescribed agreement shall be deemed to have been made in accordance with such agreement. (4) The Cane Commissioner may, for reasons to be recorded in writing, extend the date for making offers in respect of any reserved area." 5. On a fair reading of the sub-cls.(2) &(3) of cl. 3 of the Order two or three things become at once clear. In the first place sub-cl.(2) uses the expression may and provides that a cane-grower or Canegrowers Co-operative Society may within 14 days of the issue of an order reserving an area for a factory make an offer to supply the cane grown in the reserved area to the factory. That the period of 14 days mentioned in this sub-clause is not imperative or mandatory is also clear from sub-cl.(4) which confers power upon the Cane Commissioner to extend the date for making offer in respect of any reserved area. Secondly, sub-cl.(3) uses the expression shall indicating that an imperative obligation is cast upon the factory to accept the offer within 14 days from the receipt of the offer. Reading the two sub-clauses together, it becomes clear that if a cane- grower or Canegrowers Cooperative Society makes an offer within 14 days mentioned in sub-cl.(2) it is obligatory upon the occupier of the factory to accept that offer within 14 days of the receipt of the offer, this only means that if the offer is made by the cane-grower or Cane-growers Cooperative Society beyond the period specified in sub-cl.(2) or the extended time under sub-cl.(4) it would not be obligatory but optional for the occupier of the factory to accept the said offer but if such offer made beyond the prescribed or extended period is accepted by the occupier of the factory a binding agreement comes into existence between the parties and sugarcane supplied thereunder would be bonded sugarcane, more so when the agreement is entered into in the prescribed form. Merely because the offer from the cane-grower or Cane-growers Co-operative Society emanates after the expiry of the period mentioned in sub-cl.(2) it does not mean that the parties are prevented from entering into an agreement in the prescribed form and if they do enter into an agreement in the prescribed form, as was the case here, the sugarcane supplied thereunder would be bonded sugarcane. It is not possible to accept the contention of learned counsel for the appellant that sugarcane supplied by the cane-growers or Canegrowers Cooperative Society could be regarded as bonded Sugar Cane only if offer of the Cane-grower or t he Cane-Growers Co operative Society emanates within the period prescribed by sub-cl.(2) and the same is accepted by the occupier within the period prescribed by sub-cl. (3). As stated earlier, the true effect of sub-cls. (2) and (3) read together is that the compulsion or obligation to accept the offer on the part of the occupier of the factory arises only when the offer is made by the cane-grower or Cane-growers Co-operative Society within the time prescribed by sub-cl.(2) or the ext ended time under sub-cl.(4) but if the offer is made after the expiry of that period it is optional for the factory occupier to accept it or not but in cases where he accepts such offer a binding agreement comes into existence, and the sugarcane supplied thereunder becomes "bonded sugarcane". In the instant case the offer of additional quantity of two lac maunds of sugarcane was undoubtedly made long after the expiry of the period of sub-cl.(2) but the same was accepted by the appellant-firm and a binding agreement came into existence and what is more that a binding agreement was executed by the parties in the prescribed Form C. Further the conduct on the part of the appellant-firm in referring the dispute to arbitration and filing an appeal against the arbitrators award under the relevant Rules clearly shows that the parties, particularly the appellant-firm, treated the agreement dated May 4, 1955 as one under the Act and the U.P. Sugarcane and purchase Order, 1954. 6. | 0[ds]On a fair reading of the sub-cls.(2) &(3) of cl. 3 of the Order two or three things become at once clear. In the first place sub-cl.(2) uses the expression may and provides that a cane-grower or Canegrowers Co-operative Society may within 14 days of the issue of an order reserving an area for a factory make an offer to supply the cane grown in the reserved area to the factory. That the period of 14 days mentioned in this sub-clause is not imperative or mandatory is also clear from sub-cl.(4) which confers power upon the Cane Commissioner to extend the date for making offer in respect of any reserved area. Secondly, sub-cl.(3) uses the expression shall indicating that an imperative obligation is cast upon the factory to accept the offer within 14 days from the receipt of the offer. Reading the two sub-clauses together, it becomes clear that if a cane- grower or Canegrowers Cooperative Society makes an offer within 14 days mentioned in sub-cl.(2) it is obligatory upon the occupier of the factory to accept that offer within 14 days of the receipt of the offer, this only means that if the offer is made by the cane-grower or Cane-growers Cooperative Society beyond the period specified in sub-cl.(2) or the extended time under sub-cl.(4) it would not be obligatory but optional for the occupier of the factory to accept the said offer but if such offer made beyond the prescribed or extended period is accepted by the occupier of the factory a binding agreement comes into existence between the parties and sugarcane supplied thereunder would be bonded sugarcane, more so when the agreement is entered into in the prescribed form. Merely because the offer from the cane-grower or Cane-growers Co-operative Society emanates after the expiry of the period mentioned in sub-cl.(2) it does not mean that the parties are prevented from entering into an agreement in the prescribed form and if they do enter into an agreement in the prescribed form, as was the case here, the sugarcane supplied thereunder would be bonded sugarcane. It is not possible to accept the contention of learned counsel for the appellant that sugarcane supplied by the cane-growers or Canegrowers Cooperative Society could be regarded as bonded Sugar Cane only if offer of the Cane-grower or t he Cane-Growers Co operative Society emanates within the period prescribed by sub-cl.(2) and the same is accepted by the occupier within the period prescribed by sub-cl. (3). As stated earlier, the true effect of sub-cls. (2) and (3) read together is that the compulsion or obligation to accept the offer on the part of the occupier of the factory arises only when the offer is made by the cane-grower or Cane-growers Co-operative Society within the time prescribed by sub-cl.(2) or the ext ended time under sub-cl.(4) but if the offer is made after the expiry of that period it is optional for the factory occupier to accept it or not but in cases where he accepts such offer a binding agreement comes into existence, and the sugarcane supplied thereunder becomes "bonded sugarcane". In the instant case the offer of additional quantity of two lac maunds of sugarcane was undoubtedly made long after the expiry of the period of sub-cl.(2) but the same was accepted by the appellant-firm and a binding agreement came into existence and what is more that a binding agreement was executed by the parties in the prescribed Form C. Further the conduct on the part of the appellant-firm in referring the dispute to arbitration and filing an appeal against the arbitrators award under the relevant Rules clearly shows that the parties, particularly the appellant-firm, treated the agreement dated May 4, 1955 as one under the Act and the U.P. Sugarcane and purchase Order, 1954. | 0 | 3,283 | 720 | ### 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:
Supply and Purchase) Act, 1953 and set out Cl. 3 of the U.P. Sugarcane Supply and Purchase Order, 1954. Under s.15(1) of the Act power has been conferred upon t he Cane Commissioner after consulting the factory and the cane-grower/Canegrowers Co-operative Society to (a) reserve any area (hereinafter called the reserved area) or, (b) assign any area (hereinafter called an assigned area) for the purpose of the supply of sugarcane to a factory in accordance with the provisions of s.16 during one or more crushing seasons as may be specified. It was under this provision that the Cane Commissioner has passed order dated November 1, 1954 reserving certain sugarcane centres (reserved area) for the appellant firm for the 1954-55 season. 4 Clause 3 of the U.P. Sugarcane Supply and Purchase Order 1954 runs thus:"3. Purchase of cane in reserved areas.- (1) The occupier of a factory shall estimate or cause to be estimated by the 31st day of October or such later date in a crushing season as, on an application being made to the Cane Commissioner by the occupier of a factory, may be fixed by the Cane Commissioner, the quantity of cane with each grower enrolled in the Growers Register and shall on demand submit the estimate to the Cane Commissioner and the Collector. (2) A cane-grower or a Cane-growers Co-operative Society may within 14 days of the issue of an order reserving an area for a factory, offer in Form A of the Appendix, to supply cane grown in the reserved area, to the occupier of the factory. (3) The occupier of the factory for which an area has been reserved, shall, within fourteen days of the receipt of the offer enter into an agreement in Form B or Form C of the Appendix, with the Cane-grower or the Canegrowers Cooperative Society, as the case may be, in respect of the cane offered: Provided that any purchase of cane made before the execution of the prescribed agreement shall be deemed to have been made in accordance with such agreement. (4) The Cane Commissioner may, for reasons to be recorded in writing, extend the date for making offers in respect of any reserved area." 5. On a fair reading of the sub-cls.(2) &(3) of cl. 3 of the Order two or three things become at once clear. In the first place sub-cl.(2) uses the expression may and provides that a cane-grower or Canegrowers Co-operative Society may within 14 days of the issue of an order reserving an area for a factory make an offer to supply the cane grown in the reserved area to the factory. That the period of 14 days mentioned in this sub-clause is not imperative or mandatory is also clear from sub-cl.(4) which confers power upon the Cane Commissioner to extend the date for making offer in respect of any reserved area. Secondly, sub-cl.(3) uses the expression shall indicating that an imperative obligation is cast upon the factory to accept the offer within 14 days from the receipt of the offer. Reading the two sub-clauses together, it becomes clear that if a cane- grower or Canegrowers Cooperative Society makes an offer within 14 days mentioned in sub-cl.(2) it is obligatory upon the occupier of the factory to accept that offer within 14 days of the receipt of the offer, this only means that if the offer is made by the cane-grower or Cane-growers Cooperative Society beyond the period specified in sub-cl.(2) or the extended time under sub-cl.(4) it would not be obligatory but optional for the occupier of the factory to accept the said offer but if such offer made beyond the prescribed or extended period is accepted by the occupier of the factory a binding agreement comes into existence between the parties and sugarcane supplied thereunder would be bonded sugarcane, more so when the agreement is entered into in the prescribed form. Merely because the offer from the cane-grower or Cane-growers Co-operative Society emanates after the expiry of the period mentioned in sub-cl.(2) it does not mean that the parties are prevented from entering into an agreement in the prescribed form and if they do enter into an agreement in the prescribed form, as was the case here, the sugarcane supplied thereunder would be bonded sugarcane. It is not possible to accept the contention of learned counsel for the appellant that sugarcane supplied by the cane-growers or Canegrowers Cooperative Society could be regarded as bonded Sugar Cane only if offer of the Cane-grower or t he Cane-Growers Co operative Society emanates within the period prescribed by sub-cl.(2) and the same is accepted by the occupier within the period prescribed by sub-cl. (3). As stated earlier, the true effect of sub-cls. (2) and (3) read together is that the compulsion or obligation to accept the offer on the part of the occupier of the factory arises only when the offer is made by the cane-grower or Cane-growers Co-operative Society within the time prescribed by sub-cl.(2) or the ext ended time under sub-cl.(4) but if the offer is made after the expiry of that period it is optional for the factory occupier to accept it or not but in cases where he accepts such offer a binding agreement comes into existence, and the sugarcane supplied thereunder becomes "bonded sugarcane". In the instant case the offer of additional quantity of two lac maunds of sugarcane was undoubtedly made long after the expiry of the period of sub-cl.(2) but the same was accepted by the appellant-firm and a binding agreement came into existence and what is more that a binding agreement was executed by the parties in the prescribed Form C. Further the conduct on the part of the appellant-firm in referring the dispute to arbitration and filing an appeal against the arbitrators award under the relevant Rules clearly shows that the parties, particularly the appellant-firm, treated the agreement dated May 4, 1955 as one under the Act and the U.P. Sugarcane and purchase Order, 1954. 6.
### Response:
0
### Explanation:
On a fair reading of the sub-cls.(2) &(3) of cl. 3 of the Order two or three things become at once clear. In the first place sub-cl.(2) uses the expression may and provides that a cane-grower or Canegrowers Co-operative Society may within 14 days of the issue of an order reserving an area for a factory make an offer to supply the cane grown in the reserved area to the factory. That the period of 14 days mentioned in this sub-clause is not imperative or mandatory is also clear from sub-cl.(4) which confers power upon the Cane Commissioner to extend the date for making offer in respect of any reserved area. Secondly, sub-cl.(3) uses the expression shall indicating that an imperative obligation is cast upon the factory to accept the offer within 14 days from the receipt of the offer. Reading the two sub-clauses together, it becomes clear that if a cane- grower or Canegrowers Cooperative Society makes an offer within 14 days mentioned in sub-cl.(2) it is obligatory upon the occupier of the factory to accept that offer within 14 days of the receipt of the offer, this only means that if the offer is made by the cane-grower or Cane-growers Cooperative Society beyond the period specified in sub-cl.(2) or the extended time under sub-cl.(4) it would not be obligatory but optional for the occupier of the factory to accept the said offer but if such offer made beyond the prescribed or extended period is accepted by the occupier of the factory a binding agreement comes into existence between the parties and sugarcane supplied thereunder would be bonded sugarcane, more so when the agreement is entered into in the prescribed form. Merely because the offer from the cane-grower or Cane-growers Co-operative Society emanates after the expiry of the period mentioned in sub-cl.(2) it does not mean that the parties are prevented from entering into an agreement in the prescribed form and if they do enter into an agreement in the prescribed form, as was the case here, the sugarcane supplied thereunder would be bonded sugarcane. It is not possible to accept the contention of learned counsel for the appellant that sugarcane supplied by the cane-growers or Canegrowers Cooperative Society could be regarded as bonded Sugar Cane only if offer of the Cane-grower or t he Cane-Growers Co operative Society emanates within the period prescribed by sub-cl.(2) and the same is accepted by the occupier within the period prescribed by sub-cl. (3). As stated earlier, the true effect of sub-cls. (2) and (3) read together is that the compulsion or obligation to accept the offer on the part of the occupier of the factory arises only when the offer is made by the cane-grower or Cane-growers Co-operative Society within the time prescribed by sub-cl.(2) or the ext ended time under sub-cl.(4) but if the offer is made after the expiry of that period it is optional for the factory occupier to accept it or not but in cases where he accepts such offer a binding agreement comes into existence, and the sugarcane supplied thereunder becomes "bonded sugarcane". In the instant case the offer of additional quantity of two lac maunds of sugarcane was undoubtedly made long after the expiry of the period of sub-cl.(2) but the same was accepted by the appellant-firm and a binding agreement came into existence and what is more that a binding agreement was executed by the parties in the prescribed Form C. Further the conduct on the part of the appellant-firm in referring the dispute to arbitration and filing an appeal against the arbitrators award under the relevant Rules clearly shows that the parties, particularly the appellant-firm, treated the agreement dated May 4, 1955 as one under the Act and the U.P. Sugarcane and purchase Order, 1954.
|
P.L. Lakhanpal Vs. Union Of India & Ors | would be the same as if one of the two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. These decisions cannot help the petitioner. In the first place the scheme of the Preventive Detention Act is entirely different from the Act and the Rules before us. Section 3 of that Act confers the power of detention. Section 7 requires the detaining authority to furnish grounds of detention to the detenu to make a representation. Section 8 requires the setting up of Advisory Boards. Section 9 requires reference of the order passed by the authority to such Advisory Board together with the representation, if any, made by the detenu. Under section 10, the Board has to make a report to the Government and the report would be whether there is sufficient cause for detention or not. Under s. 11, the Government may confirm the detention order and continue the detention where the report is that there is sufficient cause. But where the Board reports that there is no such sufficient cause, the Government has to revoke the detention order. It is clear from s. 9 and the sections following it that the Government has to make the reference to the Board within 30 days from the order and the Board has to find whether there is sufficient cause for detention or not. The review by the Board is thus almost contemporaneous. If therefore the Board finds that certain grounds furnished to the detenu did not in fact exist, it means that they did not exist at the time when the authority made up its mind to pass the order. It is for that reason that the courts have held that since the order is based on subjective satisfaction, it is not possible to say whether or not the grounds found not to have existed affected the process of satisfaction of the authority or not and to say that those only which existed had made up the satisfaction would be to substitute the courts objective test in place of the subjective satisfaction of the detaining authority. The scheme of rules 30(1) and 30A is totally different from that of the Preventive Detention Act. Where an order is made under r. 30(1)(b), its review is at intervals of periods of not more than six months. The object of the review is to decide whether there is a necessity to continue the detention order or not in the light of the facts and circumstances including any development that has taken place in the meantime. If the reviewing authority finds that such a development has taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do not subsist, that is not to say that those reasons did not exist at the time of passing the original order and therefore the satisfaction was on grounds which did not then exist. It is easy to visualise a case where the authority is satisfied that an order of detention is necessary to prevent a detenu from acting in a manner prejudicial to all the objects set out in r. 30(1). At the end of six months the reviewing authority on the materials before it may come to a decision that the detention is still necessary as the detenu is likely to act in a manner prejudicial to some but not all the matters. Provided such decision is arrived at within the scope of r. 30A the decision to continue the detention order would be sustainable. There is thus no analogy between the provisions of review in the two Acts and therefore decisions on the Preventive Detention Act cannot be availed of by the petitioner. 17. As regards to contention as to mala fides it will be observed that the original order was passed by the Union Home Minister while the order under r. 30A was passed by the Minister of State of Home Affairs. The first part of the contention has already been rejected by this Court in the petitioners earlier Writ Petition and therefore cannot be reagitated. The contention in regard to the second part was that since the State Minister himself has not filed an affidavit swearing to his decision and the affidavit on record is that of the Deputy Secretary there is nothing to show that the Minister had arrived at a decision that there were facts and circumstances necessitating the continuation of the petitioners detention. The reasons given by the petitioner for this contention are in substance the same as those urged in the earlier petition and which were rejected by this Court then. Since no allegation of malice or dishonesty have been made in the petition personally against the Minister it is not possible to say that his omission to file an affidavit in reply by itself would be any ground to sustain the allegation of mala fides or non-application of mind. The affidavit by the Deputy Secretary discloses that the decision under r. 30A was arrived at by the Minister after an examination of all the materials before him. The affidavit also discloses the activities of the petitioner and the conclusion arrived at by the Minister that the petitioner had acted and was likely to act in a manner prejudicial to the defence of India and civil defence. So long as that decision was arrived at on materials, since this Court does not sit in appeal against such a decision it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the Court had examined them it would have come to a different conclusion. It is therefore not possible to agree with the contention that this is a case of a mala fide exercise of power or a case of non-application of mind by the authority concerned. 18. | 0[ds]If the decision is to be founded on a mere subjective satisfaction or opinion it would be in the former category but if it is to be founded on a fact it has to fall in the latter category and in that event it would have to be regarded as one based on an objective test. It follows that where the exercise of power is not conditioned on a mere opinion or satisfaction but on the existence of a set of facts or circumstances that power can be exercised where they exist. The authority in such a case is required to exercise the power in the manner and within the limits authorised by the legislature. The existence of such facts which is the determinant for the exercise of the power is(b) the power to continue the detention after review is not dependent on the satisfaction of the Government. Rulepostulates that ordinarily detention should not be for more than six months unless found necessary. It is for that reason that under the Rules when the period of six months expires the Government is enjoined upon to decide whether it should be continued or cancelled. Though the legislature has made the Government the exclusive forum for such a decision, its decision has to be founded on facts and circumstances which makethe continuation necessary in order to prevent the detenu acting in a manner prejudicial to the matters set out therein. The substitution of decision instead of satisfaction is a clear indication that the criterion for continuing the detention is the existence of those facts and circumstances which necessitate it. It is not unreasonable to think that the legislature decided to confer power the exercise of which was made dependent upon the subjective satisfaction at the initial stage but where continuation of detention was concerned, it thought that there should be different considerations. At that stage there would be ample time and opportunity for the Government to scrutinise the case fully and ascertain whether facts and circumstances exist demanding continuation and therefore deliberately used the word "decide" instead of the words "is satisfied". Therefore where such circumstances do not exist there would be no necessity for continuation and yet if the Government decides to continue the detention, such a decision would be beyond the scope of Ruleand would not be a decision within the meaning of or under thatCases may arise where circumstances exist leading to the authoritys satisfaction that a particular person should be detained but those circumstances may not exist at the time when the review is made. In the latter case it is impossible to say that the Government can still decide to continue the detention nor is it possible to say that it is the Governments opinion or satisfaction that such facts and circumstances exist which is the criterion. The decision on a review has to be arrived at from the facts and circumstances which actually subsisted at the time when the original order was made in the light of subsequent developments and not merely those existing at the time when the order was made. In such a case the decision can be challenged as one not within the scope of or under theand therefore unauthorised or as one based on considerations irrelevant to the power.The question then is, is the decision to continue the order of detention one within the scope of? Relying on the omission in the order of June 11, 1966 of the words "public safety and the maintenance of public order" the petitioner contended that it must be held that those two grounds never existed and that since the exercise of power to detain depended on the satisfaction of the Government it cannot be predicated that the omitted grounds did not affect the Government during the process of its satisfaction. He relied on two decisions of this Court, (1)aj v. State of Delhi) and(2) Shibban Lal v. State of U.Both the cases were under the Preventive Detention Act, IV of 1950. In, thequestion was not of a ground not existing but of a ground being found to be vague and it was held that even though the rest of the grounds were notthe detention wasnot in accordance with the procedure established by law and was therefore illegal. Theed on the question whether under Art. 22(5) of the Constitution the detenu had an opportunity of effectively making a representation. In Shibbanlals, theCourt held that where the Government itself while confirming the detention in exercise of its power under11 admits that one of the two grounds mentioned in the original order was unsubstantial or non-existent, to say that the other ground which still remained was quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which was against the legislative policy underlying the statute. In suchon would be the same as if one of the two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. These decisions cannot help the petitioner. In the first place the scheme of the Preventive Detention Act is entirely different from the Act and the Rules before us. Section 3 of that Act confers the power of detention. Section 7 requires the detaining authority to furnish grounds of detention to the detenu to make a representation. Section 8 requires the setting up of Advisory Boards. Section 9 requires reference of the order passed by the authority to such Advisory Board together with the representation, if any, made by the detenu. Underhe Board has tomake a report to the Government and the report would be whether there is sufficient cause for detention or not. Undernt may confirm the detention order and continue the detention where the report is that there issufficient cause. But where the Board reports that there is no such sufficient causethe Government has torevoke the detention order. It is clear from9 and the sections following it thatthe Government has tomake the reference to the Board within 30 days from the order andBoard has tofind whether there is sufficient cause for detention or not. The review by the Board is thus almost contemporaneous.the Board finds that certain grounds furnished to the detenu did not in fact exist, it means that they did not exist at the time when the authority made up its mind to pass the order. It is for that reason that thehave held that since the order is based on subjective satisfaction, it is not possible to say whether or not the grounds found not to have existed affected the process of satisfaction of the authority or not and to say that those only which existed had made up the satisfaction would be to substitute theobjective test in place of the subjective satisfaction of the detaining authority. The scheme of0A is totally different from that of the Preventive Detention Act. Where an order is made under, its review is at intervals of periods of not more than six months. The object of the review is to decide whether there is a necessity to continue the detention order or not in the light of the facts and circumstances including any development that has taken place in the meantime. If the reviewing authority finds that such a development has taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do not subsist, that is not to say that those reasons did not exist at the time of passing the original orderthe satisfaction was on grounds which did not then exist. It is easy to visualise a case where the authority is satisfied that an order of detention is necessary to prevent a detenu from acting in a manner prejudicial to all the objects set out in). At the end of six months the reviewing authority on the materials before it may comedecision that the detention is still necessary as the detenu is likely to act in a manner prejudicial to some but not all the matters. Provided such decision is arrived at within the scope of30A the decision to continue the detention order would be sustainable. There is thus no analogy between the provisions of review in the two Actsns on the Preventive Detention Act cannotavailed of by the petitioner.the contentionas to mala fides it will be observed that the original order was passed by the Union Home Minister while the order under30A was passed by the Minister of State of Home Affairs. The first part ofhas already been rejected by this Court in the petitioners earlier Writ Petitioncannot be reagitated. The contention in regard to the second part was that since the State Minister himself has not filed an affidavit swearing to his decision and the affidavit on record is that of the Deputy Secretary there is nothing to show that the Minister had arrived at a decision that there were facts and circumstances necessitating the continuation of the petitioners detention. The reasons given by the petitioner for this contention are in substance the same as those urged in the earlier petition and which were rejected by this Court then. Since no allegation of malice or dishonesty have been made in the petition personally against the Minister it is not possible to say that his omission to file an affidavit in reply by itself would be any ground to sustain the allegation of mala fides or non-application of mind. The affidavit by the Deputy Secretary discloses that the decision under30A was arrived at by the Minister after an examination of all the materials before him. The affidavit also discloses the activities of the petitioner and the conclusion arrived at by the Minister that the petitioner had acted and was likely to act in a manner prejudicial to the defence of India and civil defence. So long as that decision was arrived at on materials, since this Court does not sit in appeal against such a decision it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the Court had examined them it would have come to a different conclusion. Itnot possible to agree withthat this is a case of a mala fide exercise of power or a case of non-application of mind by the authority concerned. | 0 | 6,552 | 1,835 | ### 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:
would be the same as if one of the two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. These decisions cannot help the petitioner. In the first place the scheme of the Preventive Detention Act is entirely different from the Act and the Rules before us. Section 3 of that Act confers the power of detention. Section 7 requires the detaining authority to furnish grounds of detention to the detenu to make a representation. Section 8 requires the setting up of Advisory Boards. Section 9 requires reference of the order passed by the authority to such Advisory Board together with the representation, if any, made by the detenu. Under section 10, the Board has to make a report to the Government and the report would be whether there is sufficient cause for detention or not. Under s. 11, the Government may confirm the detention order and continue the detention where the report is that there is sufficient cause. But where the Board reports that there is no such sufficient cause, the Government has to revoke the detention order. It is clear from s. 9 and the sections following it that the Government has to make the reference to the Board within 30 days from the order and the Board has to find whether there is sufficient cause for detention or not. The review by the Board is thus almost contemporaneous. If therefore the Board finds that certain grounds furnished to the detenu did not in fact exist, it means that they did not exist at the time when the authority made up its mind to pass the order. It is for that reason that the courts have held that since the order is based on subjective satisfaction, it is not possible to say whether or not the grounds found not to have existed affected the process of satisfaction of the authority or not and to say that those only which existed had made up the satisfaction would be to substitute the courts objective test in place of the subjective satisfaction of the detaining authority. The scheme of rules 30(1) and 30A is totally different from that of the Preventive Detention Act. Where an order is made under r. 30(1)(b), its review is at intervals of periods of not more than six months. The object of the review is to decide whether there is a necessity to continue the detention order or not in the light of the facts and circumstances including any development that has taken place in the meantime. If the reviewing authority finds that such a development has taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do not subsist, that is not to say that those reasons did not exist at the time of passing the original order and therefore the satisfaction was on grounds which did not then exist. It is easy to visualise a case where the authority is satisfied that an order of detention is necessary to prevent a detenu from acting in a manner prejudicial to all the objects set out in r. 30(1). At the end of six months the reviewing authority on the materials before it may come to a decision that the detention is still necessary as the detenu is likely to act in a manner prejudicial to some but not all the matters. Provided such decision is arrived at within the scope of r. 30A the decision to continue the detention order would be sustainable. There is thus no analogy between the provisions of review in the two Acts and therefore decisions on the Preventive Detention Act cannot be availed of by the petitioner. 17. As regards to contention as to mala fides it will be observed that the original order was passed by the Union Home Minister while the order under r. 30A was passed by the Minister of State of Home Affairs. The first part of the contention has already been rejected by this Court in the petitioners earlier Writ Petition and therefore cannot be reagitated. The contention in regard to the second part was that since the State Minister himself has not filed an affidavit swearing to his decision and the affidavit on record is that of the Deputy Secretary there is nothing to show that the Minister had arrived at a decision that there were facts and circumstances necessitating the continuation of the petitioners detention. The reasons given by the petitioner for this contention are in substance the same as those urged in the earlier petition and which were rejected by this Court then. Since no allegation of malice or dishonesty have been made in the petition personally against the Minister it is not possible to say that his omission to file an affidavit in reply by itself would be any ground to sustain the allegation of mala fides or non-application of mind. The affidavit by the Deputy Secretary discloses that the decision under r. 30A was arrived at by the Minister after an examination of all the materials before him. The affidavit also discloses the activities of the petitioner and the conclusion arrived at by the Minister that the petitioner had acted and was likely to act in a manner prejudicial to the defence of India and civil defence. So long as that decision was arrived at on materials, since this Court does not sit in appeal against such a decision it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the Court had examined them it would have come to a different conclusion. It is therefore not possible to agree with the contention that this is a case of a mala fide exercise of power or a case of non-application of mind by the authority concerned. 18.
### Response:
0
### Explanation:
confirming the detention in exercise of its power under11 admits that one of the two grounds mentioned in the original order was unsubstantial or non-existent, to say that the other ground which still remained was quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which was against the legislative policy underlying the statute. In suchon would be the same as if one of the two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. These decisions cannot help the petitioner. In the first place the scheme of the Preventive Detention Act is entirely different from the Act and the Rules before us. Section 3 of that Act confers the power of detention. Section 7 requires the detaining authority to furnish grounds of detention to the detenu to make a representation. Section 8 requires the setting up of Advisory Boards. Section 9 requires reference of the order passed by the authority to such Advisory Board together with the representation, if any, made by the detenu. Underhe Board has tomake a report to the Government and the report would be whether there is sufficient cause for detention or not. Undernt may confirm the detention order and continue the detention where the report is that there issufficient cause. But where the Board reports that there is no such sufficient causethe Government has torevoke the detention order. It is clear from9 and the sections following it thatthe Government has tomake the reference to the Board within 30 days from the order andBoard has tofind whether there is sufficient cause for detention or not. The review by the Board is thus almost contemporaneous.the Board finds that certain grounds furnished to the detenu did not in fact exist, it means that they did not exist at the time when the authority made up its mind to pass the order. It is for that reason that thehave held that since the order is based on subjective satisfaction, it is not possible to say whether or not the grounds found not to have existed affected the process of satisfaction of the authority or not and to say that those only which existed had made up the satisfaction would be to substitute theobjective test in place of the subjective satisfaction of the detaining authority. The scheme of0A is totally different from that of the Preventive Detention Act. Where an order is made under, its review is at intervals of periods of not more than six months. The object of the review is to decide whether there is a necessity to continue the detention order or not in the light of the facts and circumstances including any development that has taken place in the meantime. If the reviewing authority finds that such a development has taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do not subsist, that is not to say that those reasons did not exist at the time of passing the original orderthe satisfaction was on grounds which did not then exist. It is easy to visualise a case where the authority is satisfied that an order of detention is necessary to prevent a detenu from acting in a manner prejudicial to all the objects set out in). At the end of six months the reviewing authority on the materials before it may comedecision that the detention is still necessary as the detenu is likely to act in a manner prejudicial to some but not all the matters. Provided such decision is arrived at within the scope of30A the decision to continue the detention order would be sustainable. There is thus no analogy between the provisions of review in the two Actsns on the Preventive Detention Act cannotavailed of by the petitioner.the contentionas to mala fides it will be observed that the original order was passed by the Union Home Minister while the order under30A was passed by the Minister of State of Home Affairs. The first part ofhas already been rejected by this Court in the petitioners earlier Writ Petitioncannot be reagitated. The contention in regard to the second part was that since the State Minister himself has not filed an affidavit swearing to his decision and the affidavit on record is that of the Deputy Secretary there is nothing to show that the Minister had arrived at a decision that there were facts and circumstances necessitating the continuation of the petitioners detention. The reasons given by the petitioner for this contention are in substance the same as those urged in the earlier petition and which were rejected by this Court then. Since no allegation of malice or dishonesty have been made in the petition personally against the Minister it is not possible to say that his omission to file an affidavit in reply by itself would be any ground to sustain the allegation of mala fides or non-application of mind. The affidavit by the Deputy Secretary discloses that the decision under30A was arrived at by the Minister after an examination of all the materials before him. The affidavit also discloses the activities of the petitioner and the conclusion arrived at by the Minister that the petitioner had acted and was likely to act in a manner prejudicial to the defence of India and civil defence. So long as that decision was arrived at on materials, since this Court does not sit in appeal against such a decision it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the Court had examined them it would have come to a different conclusion. Itnot possible to agree withthat this is a case of a mala fide exercise of power or a case of non-application of mind by the authority concerned.
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The Commissioner Of Income-Tax, Madhya Pradesh & Bhopa Vs. Bhopal Textiles Ltd., Bhopal | sum of Rs. 4, 40,373 was held by the Department to have been received in British India. Of that sum, an amount of Rs. 29,588 which represented the receipts for supplies direct to Government is no longer in dispute. The balance represents the sum, which was the subject-matter of the reference.3. The usual appeal followed, and the contention of the Company that the money was not received in British India was not accepted by the Tribunal. The Tribunal did not decide about the place of accrual. A reference was then made by the Tribunal of the question quoted above. The High Court in deciding the reference went into the question of passing of property under the Indian Sale of Goods Act, 1930, and came to the conclusion that since the property in the goods had passed to the buyers, the Imperial Bank of India, Bhopal, must be deemed to have received the railway receipts as agents of the buyers. Continuing the reason, the learned Judges observed:"So also the branches of the Bank at Agra, Allahabad and Delhi acted as the agents of the buyers when they collected the money from them and transmitted it to the Bhopal branch. In this view, the profits cannot be said to be received by the assessee Company in British India. It received the money only when it reached the Bhopal branch as a credit to its own account and that was not in British India at the material time."4. The case was not decided by the Tribunal on the basis of accrual of the income, profits or gains to the Company. It was decided on the fact of actual receipt, whether it was in British India or in Bhopal, which was then outside the taxable territories. We need not, therefore, concern ourselves with the problem whether property in the goods could be said to have passed absolutely to the buyers without any right of disposal being reserved by the Company. It is a matter of some doubt whether the goods were absolutely at the disposal of the buyers after the railway receipts were handed over to the Bank. It is in evidence - and has been adverted to by the Income-tax Officer - that the Company, when it handed over the railway receipt to the Imperial Bank at Bhopal, did so along with a covering letter in which it asked the Bank to deliver the railway receipt and the bill to the buyers against payment of the bill amount plus collection charges. In this view of the matter, though we do not express any final opinion, we doubt whether the right of disposal was parted with by the Company.5. A railway receipt is a document of title to goods, and, for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court. Since we are not deciding the question of accrual, we do not elaborate the point.6. Coming now to the question as to where the amount was received, we have no doubt that the view of the Tribunal was correct. This income was received at Agra, Allahabad, or Delhi from the buyers by the Imperial Bank acting as the agent of the Company. The Company had handed over the railway receipts to the Bank, and asked the Bank not to hand over the railway receipts to the buyers, unless payment was received. This was sufficient to make the Bank an agent of the Company. The buyers could not have countermanded the instructions given by the Company to the Bank, which they would, indubitably, have been able to do, if the Bank was their agent. This was laid down by this Court in Commissioner of Income-tax v. P. M. Rathod and Co., 1960-1 SCR 401 : (AIR 1959 SC 1394 ). Mr. Veda Vyasa contends that the case is distinguishable on the ground that the railway receipts there were to self, whereas here the railway receipts were made out in the name of the consignee. Nothing turns upon this distinction. The document of title to goods was still the property of the Company till payment for it was received and it was handed over. In this view of the matter, we are of opinion that the ruling in question applies.7. Mr. Veda Vyasa finally contended that the agreement between the parties was that the goods were to be sent f. o. r., Bhopal, and that the price was also to be paid there. He contended that the handing over of the railway receipts to the Bank at Bhopal was in furtherance of the agreement, that the money was ultimately obtained by the Bank and handed over at Bhopal also, and that, thus, the money must be deemed to have been received there. This, in our opinion, does not truly represent the character of the transaction. No doubt, under the agreement, payment was to be made at Bhopal; but the circumstances show that that was departed from, and the ordinary mercantile practice of handing over the railway receipts to ones own bankers with a request to hand over the receipts against payment to the buyers was followed. The Bank, as we have shown above, was thus the agent of the sellers, as was laid down in the ruling of this Court, and the fact of payment to the agent determines the place where the money can be said to be received by the Company. That place was at Agra, Allahabad or Delhi. In this view, the income, profits or gains must be deemed to have been received in the taxable territories, and the answer to the question ought to have been in the affirmative. | 1[ds]It is a matter of some doubt whether the goods were absolutely at the disposal of the buyers after the railway receipts were handed over to the Bank. It is in evidence - and has been adverted to by the Income-tax Officer - that the Company, when it handed over the railway receipt to the Imperial Bank at Bhopal, did so along with a covering letter in which it asked the Bank to deliver the railway receipt and the bill to the buyers against payment of the bill amount plus collection charges. In this view of the matter, though we do not express any final opinion, we doubt whether the right of disposal was parted with by the Company.5. A railway receipt is a document of title to goods, and, for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court. Since we are not deciding the question of accrual, we do not elaborate theincome was received at Agra, Allahabad, or Delhi from the buyers by the Imperial Bank acting as the agent of the Company. The Company had handed over the railway receipts to the Bank, and asked the Bank not to hand over the railway receipts to the buyers, unless payment was received. This was sufficient to make the Bank an agent of the Company. The buyers could not have countermanded the instructions given by the Company to the Bank, which they would, indubitably, have been able to do, if the Bank was their agent.Mr. Veda Vyasa finally contended that the agreement between the parties was that the goods were to be sent f. o. r., Bhopal, and that the price was also to be paid there. He contended that the handing over of the railway receipts to the Bank at Bhopal was in furtherance of the agreement, that the money was ultimately obtained by the Bank and handed over at Bhopal also, and that, thus, the money must be deemed to have been received there. This, in our opinion, does not truly represent the character of the transaction. No doubt, under the agreement, payment was to be made at Bhopal; but the circumstances show that that was departed from, and the ordinary mercantile practice of handing over the railway receipts to ones own bankers with a request to hand over the receipts against payment to the buyers was followed. The Bank, as we have shown above, was thus the agent of the sellers, as was laid down in the ruling of this Court, and the fact of payment to the agent determines the place where the money can be said to be received by the Company. That place was at Agra, Allahabad or Delhi. In this view, the income, profits or gains must be deemed to have been received in the taxable territories, and the answer to the question ought to have been in the affirmative. | 1 | 1,428 | 601 | ### 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:
sum of Rs. 4, 40,373 was held by the Department to have been received in British India. Of that sum, an amount of Rs. 29,588 which represented the receipts for supplies direct to Government is no longer in dispute. The balance represents the sum, which was the subject-matter of the reference.3. The usual appeal followed, and the contention of the Company that the money was not received in British India was not accepted by the Tribunal. The Tribunal did not decide about the place of accrual. A reference was then made by the Tribunal of the question quoted above. The High Court in deciding the reference went into the question of passing of property under the Indian Sale of Goods Act, 1930, and came to the conclusion that since the property in the goods had passed to the buyers, the Imperial Bank of India, Bhopal, must be deemed to have received the railway receipts as agents of the buyers. Continuing the reason, the learned Judges observed:"So also the branches of the Bank at Agra, Allahabad and Delhi acted as the agents of the buyers when they collected the money from them and transmitted it to the Bhopal branch. In this view, the profits cannot be said to be received by the assessee Company in British India. It received the money only when it reached the Bhopal branch as a credit to its own account and that was not in British India at the material time."4. The case was not decided by the Tribunal on the basis of accrual of the income, profits or gains to the Company. It was decided on the fact of actual receipt, whether it was in British India or in Bhopal, which was then outside the taxable territories. We need not, therefore, concern ourselves with the problem whether property in the goods could be said to have passed absolutely to the buyers without any right of disposal being reserved by the Company. It is a matter of some doubt whether the goods were absolutely at the disposal of the buyers after the railway receipts were handed over to the Bank. It is in evidence - and has been adverted to by the Income-tax Officer - that the Company, when it handed over the railway receipt to the Imperial Bank at Bhopal, did so along with a covering letter in which it asked the Bank to deliver the railway receipt and the bill to the buyers against payment of the bill amount plus collection charges. In this view of the matter, though we do not express any final opinion, we doubt whether the right of disposal was parted with by the Company.5. A railway receipt is a document of title to goods, and, for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court. Since we are not deciding the question of accrual, we do not elaborate the point.6. Coming now to the question as to where the amount was received, we have no doubt that the view of the Tribunal was correct. This income was received at Agra, Allahabad, or Delhi from the buyers by the Imperial Bank acting as the agent of the Company. The Company had handed over the railway receipts to the Bank, and asked the Bank not to hand over the railway receipts to the buyers, unless payment was received. This was sufficient to make the Bank an agent of the Company. The buyers could not have countermanded the instructions given by the Company to the Bank, which they would, indubitably, have been able to do, if the Bank was their agent. This was laid down by this Court in Commissioner of Income-tax v. P. M. Rathod and Co., 1960-1 SCR 401 : (AIR 1959 SC 1394 ). Mr. Veda Vyasa contends that the case is distinguishable on the ground that the railway receipts there were to self, whereas here the railway receipts were made out in the name of the consignee. Nothing turns upon this distinction. The document of title to goods was still the property of the Company till payment for it was received and it was handed over. In this view of the matter, we are of opinion that the ruling in question applies.7. Mr. Veda Vyasa finally contended that the agreement between the parties was that the goods were to be sent f. o. r., Bhopal, and that the price was also to be paid there. He contended that the handing over of the railway receipts to the Bank at Bhopal was in furtherance of the agreement, that the money was ultimately obtained by the Bank and handed over at Bhopal also, and that, thus, the money must be deemed to have been received there. This, in our opinion, does not truly represent the character of the transaction. No doubt, under the agreement, payment was to be made at Bhopal; but the circumstances show that that was departed from, and the ordinary mercantile practice of handing over the railway receipts to ones own bankers with a request to hand over the receipts against payment to the buyers was followed. The Bank, as we have shown above, was thus the agent of the sellers, as was laid down in the ruling of this Court, and the fact of payment to the agent determines the place where the money can be said to be received by the Company. That place was at Agra, Allahabad or Delhi. In this view, the income, profits or gains must be deemed to have been received in the taxable territories, and the answer to the question ought to have been in the affirmative.
### Response:
1
### Explanation:
It is a matter of some doubt whether the goods were absolutely at the disposal of the buyers after the railway receipts were handed over to the Bank. It is in evidence - and has been adverted to by the Income-tax Officer - that the Company, when it handed over the railway receipt to the Imperial Bank at Bhopal, did so along with a covering letter in which it asked the Bank to deliver the railway receipt and the bill to the buyers against payment of the bill amount plus collection charges. In this view of the matter, though we do not express any final opinion, we doubt whether the right of disposal was parted with by the Company.5. A railway receipt is a document of title to goods, and, for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court. Since we are not deciding the question of accrual, we do not elaborate theincome was received at Agra, Allahabad, or Delhi from the buyers by the Imperial Bank acting as the agent of the Company. The Company had handed over the railway receipts to the Bank, and asked the Bank not to hand over the railway receipts to the buyers, unless payment was received. This was sufficient to make the Bank an agent of the Company. The buyers could not have countermanded the instructions given by the Company to the Bank, which they would, indubitably, have been able to do, if the Bank was their agent.Mr. Veda Vyasa finally contended that the agreement between the parties was that the goods were to be sent f. o. r., Bhopal, and that the price was also to be paid there. He contended that the handing over of the railway receipts to the Bank at Bhopal was in furtherance of the agreement, that the money was ultimately obtained by the Bank and handed over at Bhopal also, and that, thus, the money must be deemed to have been received there. This, in our opinion, does not truly represent the character of the transaction. No doubt, under the agreement, payment was to be made at Bhopal; but the circumstances show that that was departed from, and the ordinary mercantile practice of handing over the railway receipts to ones own bankers with a request to hand over the receipts against payment to the buyers was followed. The Bank, as we have shown above, was thus the agent of the sellers, as was laid down in the ruling of this Court, and the fact of payment to the agent determines the place where the money can be said to be received by the Company. That place was at Agra, Allahabad or Delhi. In this view, the income, profits or gains must be deemed to have been received in the taxable territories, and the answer to the question ought to have been in the affirmative.
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Thalappalam Ser.Coop.Bank Ltd Vs. State Of Kerala | shall be no obligation to give any citizen – (a) to (i) xxx xxx xxx (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.? 49. Section 8 begins with a non obstante clause, which gives that Section an overriding effect, in case of conflict, over the other provisions of the Act. Even if, there is any indication to the contrary, still there is no obligation on the public authority to give information to any citizen of what has been mentioned in clauses (a) to (j). Public authority, as already indicated, cannot access all the information from a private individual, but only those information which he is legally obliged to pass on to a public authority by law, and also only those information to which the public authority can have access in accordance with law. Even those information, if personal in nature, can be made available only subject to the limitations provided in Section 8(j) of the RTI Act. Right to be left alone, as propounded in Olmstead v. The United States reported in 1927 (277) US 438 is the most comprehensive of the rights and most valued by civilized man. 50. Recognizing the fact that the right to privacy is a sacrosanct facet of Article 21 of the Constitution, the legislation has put a lot of safeguards to protect the rights under Section 8(j), as already indicated. If the information sought for is personal and has no relationship with any public activity or interest or it will not sub-serve larger public interest, the public authority or the officer concerned is not legally obliged to provide those information. Reference may be made to a recent judgment of this Court in Girish Ramchandra Deshpande v. Central Information Commissioner and others (2013) 1 SCC 212 , wherein this Court held that since there is no bona fide public interest in seeking information, the disclosure of said information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the Act. Further, if the authority finds that information sought for can be made available in the larger public interest, then the officer should record his reasons in writing before providing the information, because the person from whom information is sought for, has also a right to privacy guaranteed under Article 21 of the Constitution. 51. We have found, on facts, that the Societies, in these appeals, are not public authorities and, hence, not legally obliged to furnish any information sought for by a citizen under the RTI Act. All the same, if there is any dispute on facts as to whether a particular Society is a public authority or not, the State Information Officer can examine the same and find out whether the Society in question satisfies the test laid in this judgment. Now, the next question is whether a citizen can have access to any information of these Societies through the Registrar of Cooperative Societies, who is a public authority within the meaning of Section 2(h) of the Act. Registrar of Cooperative Societies 52. Registrar of Cooperative Societies functioning under the Cooperative Societies Act is a public authority within the meaning of Section 2(h) of the Act. As a public authority, Registrar of Co-operative Societies has been conferred with lot of statutory powers under the respective Act under which he is functioning. He is also duty bound to comply with the obligations under the RTI Act and furnish information to a citizen under the RTI Act. Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act subject to the limitations provided under Section 8 of the Act. Registrar can also, to the extent law permits, gather information from a Society, on which he has supervisory or administrative control under the Cooperative Societies Act. Consequently, apart from the information as is available to him, under Section 2(f), he can also gather those information from the Society, to the extent permitted by law. Registrar is also not obliged to disclose those information if those information fall under Section 8(1)(j) of the Act. No provision has been brought to our knowledge indicating that, under the Cooperative Societies Act, a Registrar can call for the details of the bank accounts maintained by the citizens or members in a cooperative bank. Only those information which a Registrar of Cooperative Societies can have access under the Cooperative Societies Act from a Society could be said to be the information which is ?held? or ?under the control of public authority?. Even those information, Registrar, as already indicated, is not legally obliged to provide if those information falls under the exempted category mentioned in Section 8(j) of the Act. Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information from a Co-operative Bank of a private account maintained by a member of Society under law, in the event of which, in a given situation, the society will have to part with that information. But the demand should have statutory backing. 53. Consequently, an information which has been sought for relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual, the Registrar of Cooperative Societies, even if he has got that information, is not bound to furnish the same to an applicant, unless he is satisfied that the larger public interest justifies the disclosure of such information, that too, for reasons to be recorded in writing. 54. | 1[ds]We are of the opinion that when we test the meaning of expression ?controlled? which figures in between the words ?body owned? and ?substantially financed?, the control by the appropriate government must be a control of a substantial nature. The mere ‘supervision? or ‘regulation? as such by a statute or otherwise of a body would not make that body a ?public authority? within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory. Powers exercised by the Registrar of Cooperative Societies and others under the Cooperative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. Management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies Act and not on the authorities under the Co-operative Societies Act35. We are, therefore, of the view that the word ?controlled? used in Section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-a-vis a body owned or substantially financed by the appropriate government, that is the control of the body is of such a degree which amounts to substantial control over the management and affairs of the bodyWe are of the view that the High Court has given a complete go-bye to the above-mentioned statutory principles and gone at a tangent by mis-interpreting the meaning and content of Section 2(h) of the RTI Act. Court has given a liberal construction to expression ?public authority? under Section 2(h) of the Act, bearing in mind the ?transformation of law? and its ?ultimate object? i.e. to achieve ?transparency and accountability?, which according to the court could alone advance the objective of the Act. Further, the High Court has also opined that RTI Act will certainly help as a protection against the mismanagement of the society by the managing committee and the society?s liabilities and that vigilant members of the public body by obtaining information through the RTI Act, will be able to detect and prevent mismanagement in time. In our view, the categories mentioned in Section 2(h) of the Act exhaust themselves, hence, there is no question of adopting a liberal construction to the expression ?public authority? to bring in other categories into its fold, which do not satisfy the tests we have laid down. Court cannot, when language is clear and unambiguous, adopt such a construction which, according to the Court, would only advance the objective of the Act. We are also aware of the opening part of the definition clause which states ?unless the context otherwise requires?. No materials have been made available to show that the cooperative societies, with which we are concerned, in the context of the Act, would fall within the definition of Section 2(h) of the ActWe have found, on facts, that the Societies, in these appeals, are not public authorities and, hence, not legally obliged to furnish any information sought for by a citizen under the RTI Act. All the same, if there is any dispute on facts as to whether a particular Society is a public authority or not, the State Information Officer can examine the same and find out whether the Society in question satisfies the test laid in this judgment. Now, the next question is whether a citizen can have access to any information of these Societies through the Registrar of Cooperative Societies, who is a public authority within the meaning of Section 2(h) of the ActConsequently, an information which has been sought for relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual, the Registrar of Cooperative Societies, even if he has got that information, is not bound to furnish the same to an applicant, unless he is satisfied that the larger public interest justifies the disclosure of such information, that too, for reasons to be recorded in writing. | 1 | 11,305 | 828 | ### 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:
shall be no obligation to give any citizen – (a) to (i) xxx xxx xxx (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.? 49. Section 8 begins with a non obstante clause, which gives that Section an overriding effect, in case of conflict, over the other provisions of the Act. Even if, there is any indication to the contrary, still there is no obligation on the public authority to give information to any citizen of what has been mentioned in clauses (a) to (j). Public authority, as already indicated, cannot access all the information from a private individual, but only those information which he is legally obliged to pass on to a public authority by law, and also only those information to which the public authority can have access in accordance with law. Even those information, if personal in nature, can be made available only subject to the limitations provided in Section 8(j) of the RTI Act. Right to be left alone, as propounded in Olmstead v. The United States reported in 1927 (277) US 438 is the most comprehensive of the rights and most valued by civilized man. 50. Recognizing the fact that the right to privacy is a sacrosanct facet of Article 21 of the Constitution, the legislation has put a lot of safeguards to protect the rights under Section 8(j), as already indicated. If the information sought for is personal and has no relationship with any public activity or interest or it will not sub-serve larger public interest, the public authority or the officer concerned is not legally obliged to provide those information. Reference may be made to a recent judgment of this Court in Girish Ramchandra Deshpande v. Central Information Commissioner and others (2013) 1 SCC 212 , wherein this Court held that since there is no bona fide public interest in seeking information, the disclosure of said information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the Act. Further, if the authority finds that information sought for can be made available in the larger public interest, then the officer should record his reasons in writing before providing the information, because the person from whom information is sought for, has also a right to privacy guaranteed under Article 21 of the Constitution. 51. We have found, on facts, that the Societies, in these appeals, are not public authorities and, hence, not legally obliged to furnish any information sought for by a citizen under the RTI Act. All the same, if there is any dispute on facts as to whether a particular Society is a public authority or not, the State Information Officer can examine the same and find out whether the Society in question satisfies the test laid in this judgment. Now, the next question is whether a citizen can have access to any information of these Societies through the Registrar of Cooperative Societies, who is a public authority within the meaning of Section 2(h) of the Act. Registrar of Cooperative Societies 52. Registrar of Cooperative Societies functioning under the Cooperative Societies Act is a public authority within the meaning of Section 2(h) of the Act. As a public authority, Registrar of Co-operative Societies has been conferred with lot of statutory powers under the respective Act under which he is functioning. He is also duty bound to comply with the obligations under the RTI Act and furnish information to a citizen under the RTI Act. Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act subject to the limitations provided under Section 8 of the Act. Registrar can also, to the extent law permits, gather information from a Society, on which he has supervisory or administrative control under the Cooperative Societies Act. Consequently, apart from the information as is available to him, under Section 2(f), he can also gather those information from the Society, to the extent permitted by law. Registrar is also not obliged to disclose those information if those information fall under Section 8(1)(j) of the Act. No provision has been brought to our knowledge indicating that, under the Cooperative Societies Act, a Registrar can call for the details of the bank accounts maintained by the citizens or members in a cooperative bank. Only those information which a Registrar of Cooperative Societies can have access under the Cooperative Societies Act from a Society could be said to be the information which is ?held? or ?under the control of public authority?. Even those information, Registrar, as already indicated, is not legally obliged to provide if those information falls under the exempted category mentioned in Section 8(j) of the Act. Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information from a Co-operative Bank of a private account maintained by a member of Society under law, in the event of which, in a given situation, the society will have to part with that information. But the demand should have statutory backing. 53. Consequently, an information which has been sought for relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual, the Registrar of Cooperative Societies, even if he has got that information, is not bound to furnish the same to an applicant, unless he is satisfied that the larger public interest justifies the disclosure of such information, that too, for reasons to be recorded in writing. 54.
### Response:
1
### Explanation:
We are of the opinion that when we test the meaning of expression ?controlled? which figures in between the words ?body owned? and ?substantially financed?, the control by the appropriate government must be a control of a substantial nature. The mere ‘supervision? or ‘regulation? as such by a statute or otherwise of a body would not make that body a ?public authority? within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory. Powers exercised by the Registrar of Cooperative Societies and others under the Cooperative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. Management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies Act and not on the authorities under the Co-operative Societies Act35. We are, therefore, of the view that the word ?controlled? used in Section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-a-vis a body owned or substantially financed by the appropriate government, that is the control of the body is of such a degree which amounts to substantial control over the management and affairs of the bodyWe are of the view that the High Court has given a complete go-bye to the above-mentioned statutory principles and gone at a tangent by mis-interpreting the meaning and content of Section 2(h) of the RTI Act. Court has given a liberal construction to expression ?public authority? under Section 2(h) of the Act, bearing in mind the ?transformation of law? and its ?ultimate object? i.e. to achieve ?transparency and accountability?, which according to the court could alone advance the objective of the Act. Further, the High Court has also opined that RTI Act will certainly help as a protection against the mismanagement of the society by the managing committee and the society?s liabilities and that vigilant members of the public body by obtaining information through the RTI Act, will be able to detect and prevent mismanagement in time. In our view, the categories mentioned in Section 2(h) of the Act exhaust themselves, hence, there is no question of adopting a liberal construction to the expression ?public authority? to bring in other categories into its fold, which do not satisfy the tests we have laid down. Court cannot, when language is clear and unambiguous, adopt such a construction which, according to the Court, would only advance the objective of the Act. We are also aware of the opening part of the definition clause which states ?unless the context otherwise requires?. No materials have been made available to show that the cooperative societies, with which we are concerned, in the context of the Act, would fall within the definition of Section 2(h) of the ActWe have found, on facts, that the Societies, in these appeals, are not public authorities and, hence, not legally obliged to furnish any information sought for by a citizen under the RTI Act. All the same, if there is any dispute on facts as to whether a particular Society is a public authority or not, the State Information Officer can examine the same and find out whether the Society in question satisfies the test laid in this judgment. Now, the next question is whether a citizen can have access to any information of these Societies through the Registrar of Cooperative Societies, who is a public authority within the meaning of Section 2(h) of the ActConsequently, an information which has been sought for relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual, the Registrar of Cooperative Societies, even if he has got that information, is not bound to furnish the same to an applicant, unless he is satisfied that the larger public interest justifies the disclosure of such information, that too, for reasons to be recorded in writing.
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M/s. Reliance Asset Reconstruction Company Ltd Vs. M/s Hotel Poonja International Pvt. Ltd | substantial difference between the parties as to the true legal position in this matter. 32. In the present case, reliance ought not to be placed on the balance sheet dated 16th August 2017 and letter dated 23 rd April 2019 primarily for two reasons. First, there is no evidence or material to show that the documents were signed before the expiry of the prescribed period of limitation. There is no pleading to the said effect in the application under Section 7 of the IBC filed by the appellant in the statutory form. In fact, the two documents were never relied upon. 33. Secondly, the two documents cannot be construed as admissions that amount to acknowledgment of the jural relationship and existence of liability. The balance sheet dated 16th August 2017 does not acknowledge or admit any debt. Rather, the Corporate Debtor has disputed and denied its liability. Point (d) of the Report of the independent auditor at page 86 of the paper book reads: d) Note No. 28 Claims against the Company under adjudication not acknowledged as debts for reasons stated in point (b) and (c) above. Our opinion is not modified in respect of these matters. Point (d) quoted above read with the immediately preceding sub-paragraph (point c) makes it clear that the Balance Sheet cannot be treated as an acknowledgment of liability. This is also clear from the last sub-heading of Note 27 and Note 28 of the Balance Sheet at page 147 of the paper book, set out hereinbelow: As on the date of this report the matter is pending before the Honble High Court of Karnataka, Bangalore. The Board of Directors have decided that no interest be provided in the books of account for the year ended 31st March 2017. The Board is also of the opinion based on legal advice obtained by it in the matter that no interest be provided in the books till the matter acquires clarity and the entire amount demanded by Reliance except for a sum of Rs.40.00 lakhs be treated as contingent liability not provided for. The Board is also of the opinion that developments subsequent to the decree of the DRT Bangalore have not been considered by Reliance while demanding the amount of Rs.97.12 crores. These developments have a substantial bearing on the case. Note No. 28 Claims against the Company under adjudication not acknowledged as debt: Commercial and other claims Rs. 113.85 crores Previous Year Rs. 72.92 crores 34. The letter dated 23rd April 2019 again is not an acknowledgment and admission of liability. The language and tone of the letter makes it absolutely clear that the liability was denied. The Corporate Debtor contended that it had paid more than the double the amount it had borrowed. Nevertheless, the Corporate Debtor offered a one-time settlement seeking opinion/concurrence of the Appellant with regard to such offer to settle the dispute, which offer was not accepted by the Appellant. The relevant part of the letter dated 23 rd April 2019 is extracted hereinbelow: Since we have agreed to clear the loan account under one time settlement scheme for a sum of Rs. 1.00 crore out of which we have already paid Rs. 40 lakhs, what has remained unpaid is Rs. 60 Lakhs. If you calculate the total amount paid by us till now, it is more than double the amount borrowed by us. Anyhow, we have now decided to offer Rs. 65 Lakhs in full and final settlement of our claim. We therefore, kindly request you to accept our offer for a sum of Rs. 65 Lakhs in full settlement of the claim and close the case. In the event of willingness on your part to accept our said offer for Rs. 65 Lakhs, we undertake to pay it off on or before 30.06.2019. Therefore, please let us have your opinion in the matter at the earliest. 35. The Balance Sheet of the Corporate Debtor dated 16 th August, 2017 and the letter dated 23rd April, 2019, as observed above, do not constitute any acknowledgment of liability and were not even referred to by the Appellant in its application under IBC. It is, therefore, not necessary for this Court to delve into the question of whether Section 18 of the Limitation Act is attracted in the case of a petition under Section 7 of the IBC. 36. At the cost of repetition, it is reiterated that in its application under Section 7 of the IBC, the Appellant declared the date of default as 1st April, 1993. At the highest, limitation started running from 27 th March, 2003, when the Recovery Certificate was issued by the DRT in favour of the Assignor. The NCLAT has rightly held that the application of the Appellant under Section 7 of the IBC barred by limitation. 37. In any case, there are pending proceedings in the DRT, in respect of the dues of the Corporate Debtor. The Appellant has been substituted in place of the Assignor Bank in the execution proceedings in the DRT. There is an amended Certificate issued by the DRT. Orders have, from time to time, been passed in the Execution Proceedings. The Appellant is not without remedy against the Corporate Debtor. 38. As held by this Court in Mobilox Innovations Private Limited v. Kirusa Software Private Limited reported in (2018) 1 SCC 353 , the IBC is not intended to be a substitute to a recovery forum. In Transmission Corporation of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited reported in (2019) 12 SCC 697, this Court followed its earlier judgment in Mobilox Innovations Private Ltd. (supra) and observed as hereunder:- In a recent judgment of this Court in Mobilox Innovations Private Limted v. Kirusa Software Private Limited (2018) 1 SCC 353 , this Court has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked…. | 0[ds]18. Admittedly, as stated in Part IV of the application filed by the Appellant in the NCLT under Section 7 of the IBC, the account of the Corporate Debtor was declared as Non Performing Asset on 1 st April, 1993, that is, over 15 years before the application under Section 5 was filed in the NCLT.19. It is well settled by a catena of decisions of this Court, that Article 137 of the Limitation Act gets attracted to applications filed under Sections 7 and 9 of the IBC. The right to sue accrues when a default occurs, and if that default has occurred over three years prior to the date of filing of an application under Section 7 of the IBC, the application would be barred under Article 137 of the Limitation Act. At the highest, limitation started ticking on 27th March 2003, when a Recovery Certificate was issued by the DRT. The appellant has not disclosed any material in its application under Section 7 of the IBC to demonstrate that the application is not barred by limitation.20. In B.K. Educational Services Private Limited v. Parag Gupta and Associates reported in (2019) 11 SCC 633 , this Court held:42. It is thus clear that since the Limitation Act is applicable to ap- plications filed under Sections 7 and 9 of the Code from the incep- tion of the Code, Article 137 of the Limitation Act gets attracted. The right to sue, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act,..22. In Radha Export (India) Private Limited v. K.P. Jayaram reported in (2020) 10 SCC 538 , authored by one of us (Justice Indira Banerjee), this Court referred to B.K. Educational Services (P) Ltd. v. Parag Gupta & Associates (supra), and held:35. It was for the applicant invoking the corporate insolvency resolution process, to prima facie show the existence in his favour, of a legally recoverable debt. In other words, the respondent had to show that the debt is not barred by limitation, which they failed to do.23. In its application under Section 7 of the IBC, the Appellant has not shown that the debt due to the Appellant from the Corporate Debtor is not barred by limitation. The right to sue accrued on 1 st April 1993 when the amount of the Corporate Debtor with the Assignor Bank was declared NPA. In Part IV of its application under Section 7 of the IBC, the Appellant declared the date of default as 1 st April, 1993. The claim is apparently barred by limitation. Even the judgment of the DRT in OA No.547/98 was dated 09.04.2001 and the Recovery Certificate was dated 27th March 2003. The Appellants own statement of accounts as on 18th July 2018 is not material to the question of limitation for making an application under Section 7 of the IBC, which is three years from the date of accrual of the right to sue.25. In this case, the Corporate Debtor has not signed any acknowledgement in writing after the settlement of 30 th June 2001, on the basis of which, a Recovery Certificate was issued by the DRT on 27 th March 2003. An arrangement between the Assignor Bank and the Appellant and the consequential substitution of the Appellant as party to the Execution/Recovery proceedings in the DRT does not save limitation to initiate proceedings under Section 7 of IBC. In any case, even the amended Recovery Certificate, relied upon by the Appellant, is dated 13th December, 2012. The application under Section 7 of the IBC was filed almost 6 years after issuance of the amended Recovery Certificate.26. In Vashdeo R. Bhojwani v. Abhyudaya Cooperative Bank Ltd. & Anr., reported in (2019) 9 SCC 158 , this Court had set aside the orders of the NCLT and the NCLAT, holding that the application under Section 7 of the IBC was time barred, as the loan account had been declared Non Performing Asset on 23rd December 1999 and thereafter the Debt Recovery Tribunal had issued a Recovery Certificate dated 24 th December 2001. Insolvency proceedings before the NCLT were admitted on 5th March 2018.27. In Vashdeo R. Bhojwani (supra), this Court rejected the contention that the default was a continuing wrong and Section 23 of the Limitation Act 1963 would apply, relying upon Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan reported in 1959 Supp (2) SCR 476.28. To quote P.B. Gajendragadkar, J in Balakrishna Savalram Pujari Wagmare (supra):-......Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked. .....31. In Khan Bahadur Shapoor Freedom Mazda v. Durga Prasad Chamaria and Others, reported in AIR 1961 SC 1236 , this Court held :-6. It is thus clear that acknowledgment as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19, and there is really no substantial difference between the parties as to the true legal position in this matter.. In the present case, reliance ought not to be placed on the balance sheet dated 16th August 2017 and letter dated 23 rd April 2019 primarily for two reasons. First, there is no evidence or material to show that the documents were signed before the expiry of the prescribed period of limitation. There is no pleading to the said effect in the application under Section 7 of the IBC filed by the appellant in the statutory form. In fact, the two documents were never relied upon.33. Secondly, the two documents cannot be construed as admissions that amount to acknowledgment of the jural relationship and existence of liability. The balance sheet dated 16th August 2017 does not acknowledge or admit any debt. Rather, the Corporate Debtor has disputed and denied its liability.Point (d) quoted above read with the immediately preceding sub-paragraph (point c) makes it clear that the Balance Sheet cannot be treated as an acknowledgment of liability. This is also clear from the last sub-heading of Note 27 and Note 28 of the Balance Sheet at page 147 of the paper book, set out hereinbelow:As on the date of this report the matter is pending before the Honble High Court of Karnataka, Bangalore. The Board of Directors have decided that no interest be provided in the books of account for the year ended 31st March 2017. The Board is also of the opinion based on legal advice obtained by it in the matter that no interest be provided in the books till the matter acquires clarity and the entire amount demanded by Reliance except for a sum of Rs.40.00 lakhs be treated as contingent liability not provided for.The Board is also of the opinion that developments subsequent to the decree of the DRT Bangalore have not been considered by Reliance while demanding the amount of Rs.97.12 crores. These developments have a substantial bearing on the case.Note No. 28 Claims against the Company under adjudication not acknowledged as debt:Commercial and other claims Rs. 113.85 croresPrevious Year Rs. 72.92 crores34. The letter dated 23rd April 2019 again is not an acknowledgment and admission of liability. The language and tone of the letter makes it absolutely clear that the liability was denied. The Corporate Debtor contended that it had paid more than the double the amount it had borrowed. Nevertheless, the Corporate Debtor offered a one-time settlement seeking opinion/concurrence of the Appellant with regard to such offer to settle the dispute, which offer was not accepted by the Appellant.35. The Balance Sheet of the Corporate Debtor dated 16 th August, 2017 and the letter dated 23rd April, 2019, as observed above, do not constitute any acknowledgment of liability and were not even referred to by the Appellant in its application under IBC. It is, therefore, not necessary for this Court to delve into the question of whether Section 18 of the Limitation Act is attracted in the case of a petition under Section 7 of the IBC.36. At the cost of repetition, it is reiterated that in its application under Section 7 of the IBC, the Appellant declared the date of default as 1st April, 1993. At the highest, limitation started running from 27 th March, 2003, when the Recovery Certificate was issued by the DRT in favour of the Assignor. The NCLAT has rightly held that the application of the Appellant under Section 7 of the IBC barred by limitation.37. In any case, there are pending proceedings in the DRT, in respect of the dues of the Corporate Debtor. The Appellant has been substituted in place of the Assignor Bank in the execution proceedings in the DRT. There is an amended Certificate issued by the DRT. Orders have, from time to time, been passed in the Execution Proceedings. The Appellant is not without remedy against the Corporate Debtor.38. As held by this Court in Mobilox Innovations Private Limited v. Kirusa Software Private Limited reported in (2018) 1 SCC 353 , the IBC is not intended to be a substitute to a recovery forum. In Transmission Corporation of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited reported in (2019) 12 SCC 697, this Court followed its earlier judgment in Mobilox Innovations Private Ltd. (supra) and observed as hereunder:-In a recent judgment of this Court in Mobilox Innovations Private Limted v. Kirusa Software Private Limited (2018) 1 SCC 353 , this Court has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked…. | 0 | 4,483 | 2,253 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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substantial difference between the parties as to the true legal position in this matter. 32. In the present case, reliance ought not to be placed on the balance sheet dated 16th August 2017 and letter dated 23 rd April 2019 primarily for two reasons. First, there is no evidence or material to show that the documents were signed before the expiry of the prescribed period of limitation. There is no pleading to the said effect in the application under Section 7 of the IBC filed by the appellant in the statutory form. In fact, the two documents were never relied upon. 33. Secondly, the two documents cannot be construed as admissions that amount to acknowledgment of the jural relationship and existence of liability. The balance sheet dated 16th August 2017 does not acknowledge or admit any debt. Rather, the Corporate Debtor has disputed and denied its liability. Point (d) of the Report of the independent auditor at page 86 of the paper book reads: d) Note No. 28 Claims against the Company under adjudication not acknowledged as debts for reasons stated in point (b) and (c) above. Our opinion is not modified in respect of these matters. Point (d) quoted above read with the immediately preceding sub-paragraph (point c) makes it clear that the Balance Sheet cannot be treated as an acknowledgment of liability. This is also clear from the last sub-heading of Note 27 and Note 28 of the Balance Sheet at page 147 of the paper book, set out hereinbelow: As on the date of this report the matter is pending before the Honble High Court of Karnataka, Bangalore. The Board of Directors have decided that no interest be provided in the books of account for the year ended 31st March 2017. The Board is also of the opinion based on legal advice obtained by it in the matter that no interest be provided in the books till the matter acquires clarity and the entire amount demanded by Reliance except for a sum of Rs.40.00 lakhs be treated as contingent liability not provided for. The Board is also of the opinion that developments subsequent to the decree of the DRT Bangalore have not been considered by Reliance while demanding the amount of Rs.97.12 crores. These developments have a substantial bearing on the case. Note No. 28 Claims against the Company under adjudication not acknowledged as debt: Commercial and other claims Rs. 113.85 crores Previous Year Rs. 72.92 crores 34. The letter dated 23rd April 2019 again is not an acknowledgment and admission of liability. The language and tone of the letter makes it absolutely clear that the liability was denied. The Corporate Debtor contended that it had paid more than the double the amount it had borrowed. Nevertheless, the Corporate Debtor offered a one-time settlement seeking opinion/concurrence of the Appellant with regard to such offer to settle the dispute, which offer was not accepted by the Appellant. The relevant part of the letter dated 23 rd April 2019 is extracted hereinbelow: Since we have agreed to clear the loan account under one time settlement scheme for a sum of Rs. 1.00 crore out of which we have already paid Rs. 40 lakhs, what has remained unpaid is Rs. 60 Lakhs. If you calculate the total amount paid by us till now, it is more than double the amount borrowed by us. Anyhow, we have now decided to offer Rs. 65 Lakhs in full and final settlement of our claim. We therefore, kindly request you to accept our offer for a sum of Rs. 65 Lakhs in full settlement of the claim and close the case. In the event of willingness on your part to accept our said offer for Rs. 65 Lakhs, we undertake to pay it off on or before 30.06.2019. Therefore, please let us have your opinion in the matter at the earliest. 35. The Balance Sheet of the Corporate Debtor dated 16 th August, 2017 and the letter dated 23rd April, 2019, as observed above, do not constitute any acknowledgment of liability and were not even referred to by the Appellant in its application under IBC. It is, therefore, not necessary for this Court to delve into the question of whether Section 18 of the Limitation Act is attracted in the case of a petition under Section 7 of the IBC. 36. At the cost of repetition, it is reiterated that in its application under Section 7 of the IBC, the Appellant declared the date of default as 1st April, 1993. At the highest, limitation started running from 27 th March, 2003, when the Recovery Certificate was issued by the DRT in favour of the Assignor. The NCLAT has rightly held that the application of the Appellant under Section 7 of the IBC barred by limitation. 37. In any case, there are pending proceedings in the DRT, in respect of the dues of the Corporate Debtor. The Appellant has been substituted in place of the Assignor Bank in the execution proceedings in the DRT. There is an amended Certificate issued by the DRT. Orders have, from time to time, been passed in the Execution Proceedings. The Appellant is not without remedy against the Corporate Debtor. 38. As held by this Court in Mobilox Innovations Private Limited v. Kirusa Software Private Limited reported in (2018) 1 SCC 353 , the IBC is not intended to be a substitute to a recovery forum. In Transmission Corporation of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited reported in (2019) 12 SCC 697, this Court followed its earlier judgment in Mobilox Innovations Private Ltd. (supra) and observed as hereunder:- In a recent judgment of this Court in Mobilox Innovations Private Limted v. Kirusa Software Private Limited (2018) 1 SCC 353 , this Court has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked….
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relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19, and there is really no substantial difference between the parties as to the true legal position in this matter.. In the present case, reliance ought not to be placed on the balance sheet dated 16th August 2017 and letter dated 23 rd April 2019 primarily for two reasons. First, there is no evidence or material to show that the documents were signed before the expiry of the prescribed period of limitation. There is no pleading to the said effect in the application under Section 7 of the IBC filed by the appellant in the statutory form. In fact, the two documents were never relied upon.33. Secondly, the two documents cannot be construed as admissions that amount to acknowledgment of the jural relationship and existence of liability. The balance sheet dated 16th August 2017 does not acknowledge or admit any debt. Rather, the Corporate Debtor has disputed and denied its liability.Point (d) quoted above read with the immediately preceding sub-paragraph (point c) makes it clear that the Balance Sheet cannot be treated as an acknowledgment of liability. This is also clear from the last sub-heading of Note 27 and Note 28 of the Balance Sheet at page 147 of the paper book, set out hereinbelow:As on the date of this report the matter is pending before the Honble High Court of Karnataka, Bangalore. The Board of Directors have decided that no interest be provided in the books of account for the year ended 31st March 2017. The Board is also of the opinion based on legal advice obtained by it in the matter that no interest be provided in the books till the matter acquires clarity and the entire amount demanded by Reliance except for a sum of Rs.40.00 lakhs be treated as contingent liability not provided for.The Board is also of the opinion that developments subsequent to the decree of the DRT Bangalore have not been considered by Reliance while demanding the amount of Rs.97.12 crores. These developments have a substantial bearing on the case.Note No. 28 Claims against the Company under adjudication not acknowledged as debt:Commercial and other claims Rs. 113.85 croresPrevious Year Rs. 72.92 crores34. The letter dated 23rd April 2019 again is not an acknowledgment and admission of liability. The language and tone of the letter makes it absolutely clear that the liability was denied. The Corporate Debtor contended that it had paid more than the double the amount it had borrowed. Nevertheless, the Corporate Debtor offered a one-time settlement seeking opinion/concurrence of the Appellant with regard to such offer to settle the dispute, which offer was not accepted by the Appellant.35. The Balance Sheet of the Corporate Debtor dated 16 th August, 2017 and the letter dated 23rd April, 2019, as observed above, do not constitute any acknowledgment of liability and were not even referred to by the Appellant in its application under IBC. It is, therefore, not necessary for this Court to delve into the question of whether Section 18 of the Limitation Act is attracted in the case of a petition under Section 7 of the IBC.36. At the cost of repetition, it is reiterated that in its application under Section 7 of the IBC, the Appellant declared the date of default as 1st April, 1993. At the highest, limitation started running from 27 th March, 2003, when the Recovery Certificate was issued by the DRT in favour of the Assignor. The NCLAT has rightly held that the application of the Appellant under Section 7 of the IBC barred by limitation.37. In any case, there are pending proceedings in the DRT, in respect of the dues of the Corporate Debtor. The Appellant has been substituted in place of the Assignor Bank in the execution proceedings in the DRT. There is an amended Certificate issued by the DRT. Orders have, from time to time, been passed in the Execution Proceedings. The Appellant is not without remedy against the Corporate Debtor.38. As held by this Court in Mobilox Innovations Private Limited v. Kirusa Software Private Limited reported in (2018) 1 SCC 353 , the IBC is not intended to be a substitute to a recovery forum. In Transmission Corporation of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited reported in (2019) 12 SCC 697, this Court followed its earlier judgment in Mobilox Innovations Private Ltd. (supra) and observed as hereunder:-In a recent judgment of this Court in Mobilox Innovations Private Limted v. Kirusa Software Private Limited (2018) 1 SCC 353 , this Court has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked….
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Madhya Pradesh State Road Transport Corporation Vs. Manoj Kumar | extended up to July 31, 2007, the employees could withdraw their offers before July 31, 2007. Further, as in all these cases where the offer was withdrawn before July 31, 2007, the High Court has dismissed the appeals of the Corporation herein. 22) At this juncture, therefore, other issue that gains importance and needs to be decided is: whether validity of the Scheme was extended up to July 31, 2007 and the employees could withdraw their offer before this date or the date on which the initial scheme expired, i.e. August 01, 2005 and the withdrawal thereafter was not permissible? 23) To decide this question, let us recapitulate some salient facts. Scheme in the first instance was floated on July 01, 2005. It clearly mentioned that those interested to opt for the Scheme would give their options by August 01, 2005 and not thereafter. It was categorically provided that application for option presented after August 01, 2005 shall not be considered. Para 4(iii) also provided that the option once given by the employee shall not be permitted to be changed or taken back. Sub para (viii) of para 4 provided for settlement of dues of the employee on acceptance of such an Scheme. This Scheme came to an end on August 01, 2005. There was no extension of the Scheme during its currency or even immediately thereafter. More than one year thereafter, i.e. on October 12, 2006, the appellant Corporation gave another opportunity to those who had not submitted the applications earlier, to submit the options by October 28, 2006. We have already reproduced, in toto, the order dated October 12, 2006. In the first blush, it may give an impression that the initial date of August 01, 2005 stands extended till October 28, 2006. However, a little closer scrutiny and analysis of the factual background narrated above amply demonstrates that it is not a case of extension of the original Scheme. Reason is simple and can be found in the fact that there was a big gap/hiatus between August 01, 2005 and October 12, 2006. Earlier Scheme had come to an end on August 01, 2005, naturally no employees submitted or could submit applications after August 01, 2005 under the Scheme. There was no VRS Scheme in operation from August 02, 2005 to October 11, 2006. It is only on October 12, 2006, another opportunity was given to the rest of the employees to submit their applications and the period during which such an application for voluntary retirement could be submitted was from October 12, 2006 to October 28, 2006. This small window was opened for a period of 17 days for those employees who had not submitted their applications and they were afforded another chance. At the same time, the main reason was to attract more such employees to opt for VRS as the Corporation had decided to close down its operations and wanted its employees to take an honorable exit with golden handshake. Therefore, there is an acquity and sharpness in the submissions of the Corporation that it cannot be treated as extension of the earlier Scheme. In fact, instead of promulgating the VRS Scheme all over again, easy way was found by making amendment in a particular clause stating that application presented after October 28, 2006 shall not be considered. Another significant feature which has to be kept in mind is that between August 01, 2005 and October 12, 2006, applications of many employees had been accepted and many out of them had even been offered their terminal dues. Thus, we find that there are two distinct groups of employees who had submitted their applications for VRS. First group was the one which exercised its option between July 01, 2005 to August 01, 2005. Second set of employees are those who submitted their options when another chance was given to them, i.e. from October 12, 2006 to October 28, 2006. In view thereof, insofar as first set of employees are concerned, they could withdraw their option, before it was accepted, by August 01, 2005 and not thereafter. Likewise, those who submitted their options in the second phase could withdraw the same before October 28, 2006. A chart was submitted before us giving the status of the applications that were submitted by various employees/respondents in these appeals. This chart indicates that some of the employees belonging to the first group had withdrawn their offer before August 01, 2005. They had right to do so. Acceptance of their offer after the withdrawal would be of no consequence. However, those employees who withdrew their offers after August 01, 2005 could not do so and, therefore, the Corporation was within its right to accept their offers. Likewise, those employees belonging to the second category who had withdrawn their offers before October 28, 2006 were entitled to withdraw their offers as those were not accepted by that date. However, the withdrawal after October 28, 2006 when Scheme was closed would be of no consequence. 24) When we apply the aforesaid test to the facts of this case, we find that insofar as those employees who fall in the first category are concerned, they had withdrawn their offer after August 01, 2005, except one Mr. Dinesh Chand Yadav, who is respondent No.1 in the Civil Appeal arising out of Special Leave Petition (Civil) No. 14874 of 2010. Therefore, from this batch, only he is entitled for reinstatement with back wages, as he has also filed an undertaking, in terms of this Courts order dated May 12, 2016, to the effect that he is not gainfully employed during the relevant period. Likewise, employees falling in the second category had withdrawn their offer after October 28, 2006, except Mr. Sukhram and Mr. Ram Sharan Rathore, both respondents in the Civil Appeal arising out Special Leave Petition (Civil) No. 14594 of 2010. However, these respondents failed to comply with this Courts order dated May 12, 2016. They are, therefore, entitled for reinstatement without back wages. | 0[ds]find that there are two distinct groups of employees who had submitted their applications for VRS. First group was the one which exercised its option between July 01, 2005 to August 01, 2005. Second set of employees are those who submitted their options when another chance was given to them, i.e. from October 12, 2006 to October 28, 2006. In view thereof, insofar as first set of employees are concerned, they could withdraw their option, before it was accepted, by August 01, 2005 and not thereafter. Likewise, those who submitted their options in the second phase could withdraw the same before October 28, 2006. A chart was submitted before us giving the status of the applications that were submitted by various employees/respondents in these appeals. This chart indicates that some of the employees belonging to the first group had withdrawn their offer before August 01, 2005. They had right to do so. Acceptance of their offer after the withdrawal would be of no consequence. However, those employees who withdrew their offers after August 01, 2005 could not do so and, therefore, the Corporation was within its right to accept their offers. Likewise, those employees belonging to the second category who had withdrawn their offers before October 28, 2006 were entitled to withdraw their offers as those were not accepted by that date. However, the withdrawal after October 28, 2006 when Scheme was closed would be of no consequence20) Reading of the aforesaid judgments would clearly demonstrate that in those cases where the Scheme is contractual in nature (and not statutory in character as was seen in State Bank of Indias case), provisions of the Indian Contract Act would apply. The VRS Scheme floated by the employer would be treated as invitation to offer and the application submitted by the employees pursuant thereto is an offer which does not amount to resignation in praesenti and the offer can be withdrawn during the validity period. This would be the position even when there is a clause in the Scheme that offer once given cannot be withdrawn at all. However, exception to this principle is that in such cases offer is to be withdrawn during the validity period of the Scheme and not thereafter even when if it is not accepted during the period of the Scheme. That is the clear mandate of Romesh Chander Kanoji. The rational which is given for carving out this exception is contained in para 9 of the said judgment, which has already been reproduced above. To put it pithily, what is highlighted is that such schemes are funded schemes and time is given to every employee to opt for voluntary retirement. Because these are funded schemes, the Management is required to create a fund. The creation of this fund depends upon a number of applications; the cost of the Scheme; liability which this Scheme would impose on the employer and such other variable factors. In this situation, if the employees are allowed to withdraw from the Scheme at any time even after its closure, it would not be possible to work out the Scheme as all calculations of the employer would fail21) In the present case, the Corporation had floated the Scheme because of the reason that it has virtually stopped transport business and the purpose of the Scheme was to benefit itself by shrinking the strength of the employees as with no transport business need for such employees is not there. Here also, the Scheme provided that once the option is given, the same cannot be withdrawn. Following the dicta in the aforesaid judgments, as noted above, it is clear that notwithstanding this clause, the employees had a right to withdraw the offer during the validity period but not thereafter. This legal principle is even taken note of by the High Court as well in the impugned judgment. The High Court has, however, held that though the Scheme was valid up to August 01, 2005, but validity was extended up to July 31, 2007, the employees could withdraw their offers before July 31, 2007. Further, as in all these cases where the offer was withdrawn before July 31, 2007, the High Court has dismissed the appeals of the Corporation herein.Scheme in the first instance was floated on July 01, 2005. It clearly mentioned that those interested to opt for the Scheme would give their options by August 01, 2005 and not thereafter. It was categorically provided that application for option presented after August 01, 2005 shall not be considered. Para 4(iii) also provided that the option once given by the employee shall not be permitted to be changed or taken back. Sub para (viii) of para 4 provided for settlement of dues of the employee on acceptance of such an Scheme. This Scheme came to an end on August 01, 2005. There was no extension of the Scheme during its currency or even immediately thereafter. More than one year thereafter, i.e. on October 12, 2006, the appellant Corporation gave another opportunity to those who had not submitted the applications earlier, to submit the options by October 28, 2006. We have already reproduced, in toto, the order dated October 12, 2006. In the first blush, it may give an impression that the initial date of August 01, 2005 stands extended till October 28, 2006. However, a little closer scrutiny and analysis of the factual background narrated above amply demonstrates that it is not a case of extension of the original Scheme. Reason is simple and can be found in the fact that there was a big gap/hiatus between August 01, 2005 and October 12, 2006. Earlier Scheme had come to an end on August 01, 2005, naturally no employees submitted or could submit applications after August 01, 2005 under the Scheme. There was no VRS Scheme in operation from August 02, 2005 to October 11, 2006. It is only on October 12, 2006, another opportunity was given to the rest of the employees to submit their applications and the period during which such an application for voluntary retirement could be submitted was from October 12, 2006 to October 28, 2006. This small window was opened for a period of 17 days for those employees who had not submitted their applications and they were afforded another chance. At the same time, the main reason was to attract more such employees to opt for VRS as the Corporation had decided to close down its operations and wanted its employees to take an honorable exit with golden handshake. Therefore, there is an acquity and sharpness in the submissions of the Corporation that it cannot be treated as extension of the earlier Scheme. In fact, instead of promulgating the VRS Scheme all over again, easy way was found by making amendment in a particular clause stating that application presented after October 28, 2006 shall not be considered. Another significant feature which has to be kept in mind is that between August 01, 2005 and October 12, 2006, applications of many employees had been accepted and many out of them had even been offered their terminal dues. Thus, wefind that there are two distinct groups of employees who had submitted their applications for VRS. First group was the one which exercised its option between July 01, 2005 to August 01, 2005. Second set of employees are those who submitted their options when another chance was given to them, i.e. from October 12, 2006 to October 28, 2006. In view thereof, insofar as first set of employees are concerned, they could withdraw their option, before it was accepted, by August 01, 2005 and not thereafter. Likewise, those who submitted their options in the second phase could withdraw the same before October 28, 2006. A chart was submitted before us giving the status of the applications that were submitted by various employees/respondents in these appeals. This chart indicates that some of the employees belonging to the first group had withdrawn their offer before August 01, 2005. They had right to do so. Acceptance of their offer after the withdrawal would be of no consequence. However, those employees who withdrew their offers after August 01, 2005 could not do so and, therefore, the Corporation was within its right to accept their offers. Likewise, those employees belonging to the second category who had withdrawn their offers before October 28, 2006 were entitled to withdraw their offers as those were not accepted by that date. However, the withdrawal after October 28, 2006 when Scheme was closed would be of no24) When we apply the aforesaid test to the facts of this case, we find that insofar as those employees who fall in the first category are concerned, they had withdrawn their offer after August 01, 2005, except one Mr. Dinesh Chand Yadav, who is respondent No.1 in the Civil Appeal arising out of Special Leave Petition (Civil) No. 14874 of 2010. Therefore, from this batch, only he is entitled for reinstatement with back wages, as he has also filed an undertaking, in terms of this Courts order dated May 12, 2016, to the effect that he is not gainfully employed during the relevant period. Likewise, employees falling in the second category had withdrawn their offer after October 28, 2006, except Mr. Sukhram and Mr. Ram Sharan Rathore, both respondents in the Civil Appeal arising out Special Leave Petition (Civil) No. 14594 of 2010. However, these respondents failed to comply with this Courts order dated May 12, 2016. They are, therefore, entitled for reinstatement without back wages.9) It becomes manifest from the reading of the three Judge Bench judgment of this Court in O.P. Swarnakar that such a VRS Scheme is held to be contractual in nature. The Court, thus, held that provisions of the Indian Contract Act, 1872 would apply, which provisions categorically lay down that an offer made by a person can be withdrawn by him before its acceptance.14) In O.P. Swarnakar, which was a judgment rendered by a three Judge Bench of this Court, various nationalised banks were the appellants and batch of matters pertaining to these banks were decided. The State Bank of India, constituted under the State Bank of India Act, 1955 and other banks taken over under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 adopted in the year 2000 separately but similar schemes known as the Employees Voluntary Retirement Scheme. The question involved in those appeals was whether an employee opting for voluntary retirement under the said Schemes was precluded from withdrawing that offer. The Scheme adopted by the State Bank of India differed from the Scheme of the other nationalised banks inasmuch as that scheme permitted withdrawal of the applications for voluntary retirement by February 15, 2001. The said Scheme was applicable in relation to employees who on the date of application had completed 15 years of service or 40 years of age. The period during which the said Scheme was to remain operative varied from bank to bank. However, in case of the Punjab National Bank, the said Scheme was to remain in operation from November 1, 2000 to November 30, 2000. Para 10.5 of the said Scheme barred an employee from withdrawing the request made for voluntary retirement after once exercising the option. Other sub-paras of para 10 provided that a request for voluntary retirement would not take effect unless accepted by the competent authority who would have absolute discretion to accept or reject that request. The said Scheme prescribed a particular procedure for making an application for seeking voluntary retirement. A large number of employees submitted their applications, out of whom a small number of employees withdrew their offer. Despite withdrawal of their offer, the same was accepted. In some cases, offers, despite withdrawal thereof, were accepted after the expiry of the operation period of the Scheme. Writ petitions were filed in various High Courts to challenge the acceptance of the employees applications by the banks despite their withdrawal. Before the Punjab & Haryana High Court, the validity of the said Scheme also was challenged. Some writ petitioners sought issuance of a writ of mandamus to the respective banks to pay unto them their lawful dues strictly in terms of the Scheme. The High Court held that: (i) the said Scheme was not a valid piece of subordinate legislation as Sections 19(1) and 19(4) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 had not been complied with, (ii) even assuming the said Scheme to be valid, it was open to an employee to withdraw his option before the same had been accepted and effectively enforced, and (iii) since the Scheme was invalid, no relief could be granted in the writ petitions seeking any benefits under the Scheme. The Bombay High Court and other High Courts held that clause 10.5 of the said Scheme was not operative as the employees had an indefeasible right to withdraw their offer before the same was accepted. The Uttarakhand High Court dismissed a writ petition as not maintainable on the ground that the petitioner had bound himself by the terms not to withdraw the application for voluntary retirement15) Eschewing the discussion on other aspects which are not relevant for these cases, insofar as issue at hand is concerned, the Court held that the Scheme was floated with a purpose of downsizing all employees. Such a Scheme, although may incidentally be beneficial also to the employees, but was primarily beneficial to the banks. The ultimate aim and object of floating such a Scheme was for the purpose of effective functioning of the banks so as to enable them to compete with private banks. On the other hand, the Court also remarked that though bank employees do not enjoy the status as in the case of Government employees, nevertheless, they do enjoy security of their employment inasmuch as these nationalised banks were States within the meaning of Article 12 of the Constitution. The banks, therefore, cannot take recourse to hire and fire for terminating the services of the employees. They are required to act fairly and strictly in terms of the norms laid down therefor. Their actions in this behalf must satisfy the test of Articles 14 and 21. Proceeding therefrom, the Court took the view that a contract of employment is also a subject matter of contract and insofar as the question whether the VRS Scheme was an offer/proposal or merely an invitation to offer is essentially a question of fact. The Court further discussed the law relating to offer and acceptance with the observations that it could not be stated in simplistic form. In the context of the VRS, however, the Court applied this law of contract by deducing the following conclusions:(i) The banks treated the application from the employees as an offer which could be accepted or rejected(ii) Acceptance of such an offer was required to be communicated in writing(iii) The decision making process involved application of mind on the part of several authorities(iv) The decision making process was to be formed at various levels(v) The process of acceptance of an offer made by an employee was in the discretion of the competent authority(vi) The request of voluntary retirement would not take effect in praesenti but in future(vii) The bank reserved its right to alter/rescind the conditions of the Scheme., the nationalised banks in terms of the Scheme had secured for themselves an unfettered and unguided right to deal with the jural relationship between themselves and their employees. It was held that the Scheme constituted invitation to an offer and not an offer. As a fortiorari, the application submitted by an employee was to be treated as offer/proposal of the employee, and when accepted by the bank it would constitute a promise within the meaning of Section 2(b) of the Indian Contract Act, 1872 and only then the promise becomes an enforceable contractOn this analogy, the Court held that since employees had withdrawn their offer before it was accepted, they had a right to do soHowever, the Court found that the case of State Bank of India stood slightly on a different footing as it had not amended the VRS Scheme and even permitted withdrawal of applications by February 15, 2001. Also, the Scheme floated by the State Bank of India contained clause (7) which laid down the mode and manner in which application for voluntary retirement was to be considered and this clause created an enforceable right. The Court noted that in the event the State Bank of India failed to adhere to its preferred policy, the same could have been subsequently enforced by the Court of law and, therefore, it would amount to some consideration. On this basis, insofar as appeals of State Bank of India are concerned, the same were allowed but appeals of nationalised banks were dismissed. Following passages from this judgment capture the essence of the legal principle laid down:113. The submission of the learned Attorney-General that as soon as an offer is made by an employee, the same would amount to resignation in praesenti cannot be accepted. The Scheme was in force for a fixed period. A decision by the authority was required to be taken and till a decision was taken, the jural relationship of employer and employee continued and the employees concerned would have been entitled to payment of all salaries and allowances etc. Thus it cannot be said to be a case where the offer was given in praesenti but the same would be prospective in nature keeping in view of (sic) the fact that it was come into force at a later date and that too subject to acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to hereinbefore, shall apply to the facts of the present case also114. However, it is accepted that a group of employees accepted the ex gratia payment. Those who accepted the ex gratia payment or any other benefit under the Scheme, in our considered opinion, could not have resiled therefrom115. The Scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand.16) Next decision, in the chronology, which we want to refer to is the case of Romesh Chander Kanoji. This is also a judgment rendered by a three Judge Bench, in which case of O.P. Swarnakar was specifically referred to and discussed. The principle laid down in O.P. Swarnakar was explained and in the process the Court noticed different outcomes insofar as State Bank of India is concerned vis-a-vis nationalised banks. This distinction was brought out and explained by this Court in the following manner:6. It is evident from above that in the case of SBIVRS, where there is a specific provision for withdrawal, the employee must exercise his option within the time specified; and in case of nationalized banks where there was no provision to withdraw (and in fact the Scheme forbade withdrawal), the withdrawal must be effected prior to acceptance by the Bank. Therefore, in terms of the ratio laid down by this Court, the employee is ensured under SBIVRS the right of withdrawal within the specified period.) The Court thereafter referred to its earlier judgment of this Court in State Bank of Patiala v. Jagga Singh (2004) 2 SCC 201) wherein the Court held that since State Bank of Patiala was a subsidiary of State Bank of India and the Schemes were similar, the decision in O.P. Swarnakar, so far as it related to the State Bank of India, would be applicable to State Bank of Patiala as well. The counsel appearing for the employees in this case sought to distinguish Jagga Singh. However, this contention was repelled and in the process observation which was made by the Court need a glanceIt is, thus, reproduced below:9. We do not find any merit in the above argument. It is important to bear in mind that the Schemes in question are basically funded schemes. Under such Schemes, time is given to every employee to opt for voluntary retirement and similarly time is given to the management to work out the Scheme. Clause (5) of SBPVRS gave fifteen days time to the employees to opt for the Scheme and under clause (8) a period of two months is given to the management to work out the Scheme. Since the said Schemes are funded schemes, the management is required to create a fund. The creation of the fund would depend upon the number of applications; the cost of the Scheme; liability which the Scheme would impose on the Bank and such other variable factors. If the employees are allowed to withdraw from the Scheme at any time after its closure, it would not be possible to work out the Scheme as all calculations of the management would fail. In the case of Bank of India v. O.P. Swarnakar [(2003) 2 SCC 721 : 2003 SCC (L&S) 200] SBIVRS is held to be an invitation to offer. Following the said judgment, we hold that SBPVRS is an invitation to offer and not an offer. Clause (5) of the said SBPVRS inter alia states that the Scheme will remain open during the period 15-2-2001 to 1-3-2001 whereas Rule 8 thereof provides for mode of acceptance by the management. It is in the light of Rules 5 and 8 that one has to read clause (9)(i) which provides for general conditions and under which it is provided that application once made cannot be withdrawn. In Chitty on Contracts (28th Edn., p. 125), the learned author states thatan offer may be withdrawn at any time before it is accepted. That this rule applies even though the offeror has promised to keep the offer open for a specified time, for such a promise is unsupported by considerationTherefore, clause (5) of SBPVRS gives locus poenitentiae to the employee to withdraw by 1-3-2001 after which the mode of acceptance contemplated by clause (8) of SBPVRS would apply and the Bank will proceed to vet the applications. As stated above, the Bank needs time to ascertain its liability; it is required to find out the cost of creation of a separate fund which in turn depends on the number of applications and if the employees are permitted to withdraw after the date of closure it would be impossible for the Bank to implement the Scheme. Therefore, clause (5) gives time to the employee to withdraw by 1-3-2001 and the Bank is given time of two months thereafter to complete the designated mode of acceptance (see Halsburys Laws of England, 4th Edn., p. 133). Reading clauses (5), (8) and (9)(i), it is clear that employees are precluded from withdrawing from SBPVRS after the closure of the Scheme on 1-3-2001.As would be noticed hereinafter, one of the arguments is as to whether a new Scheme was promulgated or it was an extension of the earlier Scheme.This aspect becomes significant because of the reason that as per the original Scheme last date for making application was August 01, 2005 and the Scheme came to an end on that date. The extension given is much thereafter, i.e. on October 12, 2006. Thus, there was no Scheme in operation from August 02, 2005 to October 11, 2006. | 0 | 8,581 | 4,394 | ### Instruction:
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extended up to July 31, 2007, the employees could withdraw their offers before July 31, 2007. Further, as in all these cases where the offer was withdrawn before July 31, 2007, the High Court has dismissed the appeals of the Corporation herein. 22) At this juncture, therefore, other issue that gains importance and needs to be decided is: whether validity of the Scheme was extended up to July 31, 2007 and the employees could withdraw their offer before this date or the date on which the initial scheme expired, i.e. August 01, 2005 and the withdrawal thereafter was not permissible? 23) To decide this question, let us recapitulate some salient facts. Scheme in the first instance was floated on July 01, 2005. It clearly mentioned that those interested to opt for the Scheme would give their options by August 01, 2005 and not thereafter. It was categorically provided that application for option presented after August 01, 2005 shall not be considered. Para 4(iii) also provided that the option once given by the employee shall not be permitted to be changed or taken back. Sub para (viii) of para 4 provided for settlement of dues of the employee on acceptance of such an Scheme. This Scheme came to an end on August 01, 2005. There was no extension of the Scheme during its currency or even immediately thereafter. More than one year thereafter, i.e. on October 12, 2006, the appellant Corporation gave another opportunity to those who had not submitted the applications earlier, to submit the options by October 28, 2006. We have already reproduced, in toto, the order dated October 12, 2006. In the first blush, it may give an impression that the initial date of August 01, 2005 stands extended till October 28, 2006. However, a little closer scrutiny and analysis of the factual background narrated above amply demonstrates that it is not a case of extension of the original Scheme. Reason is simple and can be found in the fact that there was a big gap/hiatus between August 01, 2005 and October 12, 2006. Earlier Scheme had come to an end on August 01, 2005, naturally no employees submitted or could submit applications after August 01, 2005 under the Scheme. There was no VRS Scheme in operation from August 02, 2005 to October 11, 2006. It is only on October 12, 2006, another opportunity was given to the rest of the employees to submit their applications and the period during which such an application for voluntary retirement could be submitted was from October 12, 2006 to October 28, 2006. This small window was opened for a period of 17 days for those employees who had not submitted their applications and they were afforded another chance. At the same time, the main reason was to attract more such employees to opt for VRS as the Corporation had decided to close down its operations and wanted its employees to take an honorable exit with golden handshake. Therefore, there is an acquity and sharpness in the submissions of the Corporation that it cannot be treated as extension of the earlier Scheme. In fact, instead of promulgating the VRS Scheme all over again, easy way was found by making amendment in a particular clause stating that application presented after October 28, 2006 shall not be considered. Another significant feature which has to be kept in mind is that between August 01, 2005 and October 12, 2006, applications of many employees had been accepted and many out of them had even been offered their terminal dues. Thus, we find that there are two distinct groups of employees who had submitted their applications for VRS. First group was the one which exercised its option between July 01, 2005 to August 01, 2005. Second set of employees are those who submitted their options when another chance was given to them, i.e. from October 12, 2006 to October 28, 2006. In view thereof, insofar as first set of employees are concerned, they could withdraw their option, before it was accepted, by August 01, 2005 and not thereafter. Likewise, those who submitted their options in the second phase could withdraw the same before October 28, 2006. A chart was submitted before us giving the status of the applications that were submitted by various employees/respondents in these appeals. This chart indicates that some of the employees belonging to the first group had withdrawn their offer before August 01, 2005. They had right to do so. Acceptance of their offer after the withdrawal would be of no consequence. However, those employees who withdrew their offers after August 01, 2005 could not do so and, therefore, the Corporation was within its right to accept their offers. Likewise, those employees belonging to the second category who had withdrawn their offers before October 28, 2006 were entitled to withdraw their offers as those were not accepted by that date. However, the withdrawal after October 28, 2006 when Scheme was closed would be of no consequence. 24) When we apply the aforesaid test to the facts of this case, we find that insofar as those employees who fall in the first category are concerned, they had withdrawn their offer after August 01, 2005, except one Mr. Dinesh Chand Yadav, who is respondent No.1 in the Civil Appeal arising out of Special Leave Petition (Civil) No. 14874 of 2010. Therefore, from this batch, only he is entitled for reinstatement with back wages, as he has also filed an undertaking, in terms of this Courts order dated May 12, 2016, to the effect that he is not gainfully employed during the relevant period. Likewise, employees falling in the second category had withdrawn their offer after October 28, 2006, except Mr. Sukhram and Mr. Ram Sharan Rathore, both respondents in the Civil Appeal arising out Special Leave Petition (Civil) No. 14594 of 2010. However, these respondents failed to comply with this Courts order dated May 12, 2016. They are, therefore, entitled for reinstatement without back wages.
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given in praesenti but the same would be prospective in nature keeping in view of (sic) the fact that it was come into force at a later date and that too subject to acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to hereinbefore, shall apply to the facts of the present case also114. However, it is accepted that a group of employees accepted the ex gratia payment. Those who accepted the ex gratia payment or any other benefit under the Scheme, in our considered opinion, could not have resiled therefrom115. The Scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand.16) Next decision, in the chronology, which we want to refer to is the case of Romesh Chander Kanoji. This is also a judgment rendered by a three Judge Bench, in which case of O.P. Swarnakar was specifically referred to and discussed. The principle laid down in O.P. Swarnakar was explained and in the process the Court noticed different outcomes insofar as State Bank of India is concerned vis-a-vis nationalised banks. This distinction was brought out and explained by this Court in the following manner:6. It is evident from above that in the case of SBIVRS, where there is a specific provision for withdrawal, the employee must exercise his option within the time specified; and in case of nationalized banks where there was no provision to withdraw (and in fact the Scheme forbade withdrawal), the withdrawal must be effected prior to acceptance by the Bank. Therefore, in terms of the ratio laid down by this Court, the employee is ensured under SBIVRS the right of withdrawal within the specified period.) The Court thereafter referred to its earlier judgment of this Court in State Bank of Patiala v. Jagga Singh (2004) 2 SCC 201) wherein the Court held that since State Bank of Patiala was a subsidiary of State Bank of India and the Schemes were similar, the decision in O.P. Swarnakar, so far as it related to the State Bank of India, would be applicable to State Bank of Patiala as well. The counsel appearing for the employees in this case sought to distinguish Jagga Singh. However, this contention was repelled and in the process observation which was made by the Court need a glanceIt is, thus, reproduced below:9. We do not find any merit in the above argument. It is important to bear in mind that the Schemes in question are basically funded schemes. Under such Schemes, time is given to every employee to opt for voluntary retirement and similarly time is given to the management to work out the Scheme. Clause (5) of SBPVRS gave fifteen days time to the employees to opt for the Scheme and under clause (8) a period of two months is given to the management to work out the Scheme. Since the said Schemes are funded schemes, the management is required to create a fund. The creation of the fund would depend upon the number of applications; the cost of the Scheme; liability which the Scheme would impose on the Bank and such other variable factors. If the employees are allowed to withdraw from the Scheme at any time after its closure, it would not be possible to work out the Scheme as all calculations of the management would fail. In the case of Bank of India v. O.P. Swarnakar [(2003) 2 SCC 721 : 2003 SCC (L&S) 200] SBIVRS is held to be an invitation to offer. Following the said judgment, we hold that SBPVRS is an invitation to offer and not an offer. Clause (5) of the said SBPVRS inter alia states that the Scheme will remain open during the period 15-2-2001 to 1-3-2001 whereas Rule 8 thereof provides for mode of acceptance by the management. It is in the light of Rules 5 and 8 that one has to read clause (9)(i) which provides for general conditions and under which it is provided that application once made cannot be withdrawn. In Chitty on Contracts (28th Edn., p. 125), the learned author states thatan offer may be withdrawn at any time before it is accepted. That this rule applies even though the offeror has promised to keep the offer open for a specified time, for such a promise is unsupported by considerationTherefore, clause (5) of SBPVRS gives locus poenitentiae to the employee to withdraw by 1-3-2001 after which the mode of acceptance contemplated by clause (8) of SBPVRS would apply and the Bank will proceed to vet the applications. As stated above, the Bank needs time to ascertain its liability; it is required to find out the cost of creation of a separate fund which in turn depends on the number of applications and if the employees are permitted to withdraw after the date of closure it would be impossible for the Bank to implement the Scheme. Therefore, clause (5) gives time to the employee to withdraw by 1-3-2001 and the Bank is given time of two months thereafter to complete the designated mode of acceptance (see Halsburys Laws of England, 4th Edn., p. 133). Reading clauses (5), (8) and (9)(i), it is clear that employees are precluded from withdrawing from SBPVRS after the closure of the Scheme on 1-3-2001.As would be noticed hereinafter, one of the arguments is as to whether a new Scheme was promulgated or it was an extension of the earlier Scheme.This aspect becomes significant because of the reason that as per the original Scheme last date for making application was August 01, 2005 and the Scheme came to an end on that date. The extension given is much thereafter, i.e. on October 12, 2006. Thus, there was no Scheme in operation from August 02, 2005 to October 11, 2006.
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KISHANRAO BHUJANGRAO BHALERAO Vs. STATE OF MAHARASHTRA AND OTHERS | analysis was conducted. As per Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 (for short, the PFA Rules), the Public Analyst was required to submit his report within 40 days of receipt of sample. The Chief Judicial Magistrate held that compliance with this requirement had not been proved beyond reasonable doubt. Further, the report of the Public Analyst did not reveal that the toddy was injurious to health. For the aforementioned reasons, by judgment and order, the Chief Judicial Magistrate acquitted the accused persons. 9. Being aggrieved by the said judgment and order passed by the Chief Judicial Magistrate, the Respondent-State preferred an appeal before the High Court. Upon careful consideration of the material on record including the judgment of the Chief Judicial Magistrate, the High Court was of the considered view that the Chief Judicial Magistrate had erred in passing an order of acquittal as the guilt of the accused persons was established beyond reasonable doubt. 10. The High Court was of the considered view that the stirring of toddy was not mandated by Rules 17 and 18 of the PFA Rules. Further, the Food Inspector had taken three bottles of toddy that were meant for sale, and therefore were representative of the stock of toddy. Further, the Food Inspector poured the contents of the three bottles into an empty, clean and dry pot, then measured 1,500 milliliters of toddy and poured the same into three bottles. At the time of pouring the contents together, it was reasonable to hold that appropriate mixing of toddy had taken place. 11. On the point of consent, the High Court has held that non examination of the consenting authority did not vitiate the Trial. If the consent order itself was indicative of the application of mind by the consenting authority, there was no need to examine the consenting authority. Further, the Food Inspector had deposed that he had received consent order, and no questions were posed to him during his cross-examination regarding validity of the consent order. Accordingly, the High Court has held that the view taken by the Chief Judicial Magistrate on this point was patently wrong. 12. The High Court was also of the considered view that the requirements of Rule 7(3) of the PFA Rules were duly complied with by the Public Analyst. The report of the Public Analyst revealed that the forwarding letter and sealed sample bottle were received by him on 01.02.1992. The report was dated 06.03.1992, and therefore it was reasonable to conclude that the analysis was conducted between 01.02.1992 and 06.03.1992, which was within the time period prescribed Under Rule 7(3) of the PFA Rules. 13. Lastly, the High Court has held that although the report of the Public Analyst did not reveal that the toddy was injurious to health, it clearly established that the toddy did not conform to the standards prescribed under the PFA Rules, a therefore proved beyond reasonable doubt that the toddy was adulterated. 14. Accordingly, by judgment and order dated 23.01.2009, the High Court has convicted the accused persons for the offences punishable Under Section 7(1), 2(ia), (a) read with Section 16(1)(a) and (ii) and Section 7(i), 2(ia)(m) read with Section 16(1)(ai) of the PFA Act. The High Court has sentenced the Accused No. 1 to pay a fine of Rs. 5,000/-, Accused No. 2 to suffer rigorous imprisonment for one year, and also to pay a fine of Rs. 5,000/-, and in default to suffer rigorous imprisonment for six months, and Accused No. 3 to suffer rigorous imprisonment for six months, and also to pay a fine of Rs. 1,000/-, and in default to suffer rigorous imprisonment for three months. 15. Being aggrieved by the said judgment and order passed by the High Court, the Accused No. 2 is before us in this appeal. 16. We have heard Shri Shivaji M. Jadhav, learned Counsel for the Accused No. 2 and Shri Mahaling Pandarge, learned Counsel for the Respondent-State. 17. Shri Shivaji M. Jadhav, learned Counsel for the Accused No. 2 would assail the judgment and order passed by the High Court and would submit that the High Court has erred in reversing a well reasoned judgment and order passed by the Chief Judicial Magistrate. Apart from arguing on merits of the case, learned Counsel for the Accused No. 2 would pray for reduction in the sentence. According to the learned Counsel the incident had taken place in the year 1992, and over 23 years have passed since then. Further the Accused No. 2 has shut his shop and has stopped selling toddy, and hence does not pose danger to consumers. Further, the Accused No. 2 is over 60 years of age and is suffering from cancer, and keeping these aspects of the matter in view, the sentence ought to be reduced. 18. Per contra, Shri Mahaling Pandarge, the learned Counsel appearing for the Respondent-State would support the order of conviction and sentence passed by the High Court. 19. After carefully perusing the entire material on record including the judgments and orders passed by the High Court and the Chief Judicial Magistrate, we are of the considered view that the well reasoned and elaborate judgment and order passed by the High Court needs no interference by this Court. 20. Upon considering the serious nature of the offences for which the Accused No. 2 has been convicted, we are not inclined to reduce the sentence ordered by the High Court. We are in complete agreement with the observations of the High Court that: ..One cannot be oblivious of the fact that toddy is generally consumed by members of the lower strata of the society. The adulteration in the toddy affects the poor persons including labourers and other economically weaker sections. The toddy vendors are tempted to earn easy money by diluting the extracted toddy with water. It causes reduction in the percentage of alcohol. In other words, by adding water or like fluid, the vendor deceives the gullible customers... | 0[ds]19. After carefully perusing the entire material on record including the judgments and orders passed by the High Court and the Chief Judicial Magistrate, we are of the considered view that the well reasoned and elaborate judgment and order passed by the High Court needs no interference by this Court.20. Upon considering the serious nature of the offences for which the Accused No. 2 has been convicted, we are not inclined to reduce the sentence ordered by the High Court. We are in complete agreement with the observations of the High Court that:..One cannot be oblivious of the fact that toddy is generally consumed by members of the lower strata of the society. The adulteration in the toddy affects the poor persons including labourers and other economically weaker sections. The toddy vendors are tempted to earn easy money by diluting the extracted toddy with water. It causes reduction in the percentage of alcohol. In other words, by adding water or like fluid, the vendor deceives the gullible customers...27. We have carefully perused the judgment and order passed by the High Court. In our considered view, when an accused person is unrepresented before a Court, it is the duty of the Court to appoint an amicus curiae to assist the accused. Since that has not been done by the High Court in the instant case, we take exception to the judgment and order passed by the High Court. | 0 | 1,851 | 266 | ### Instruction:
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analysis was conducted. As per Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 (for short, the PFA Rules), the Public Analyst was required to submit his report within 40 days of receipt of sample. The Chief Judicial Magistrate held that compliance with this requirement had not been proved beyond reasonable doubt. Further, the report of the Public Analyst did not reveal that the toddy was injurious to health. For the aforementioned reasons, by judgment and order, the Chief Judicial Magistrate acquitted the accused persons. 9. Being aggrieved by the said judgment and order passed by the Chief Judicial Magistrate, the Respondent-State preferred an appeal before the High Court. Upon careful consideration of the material on record including the judgment of the Chief Judicial Magistrate, the High Court was of the considered view that the Chief Judicial Magistrate had erred in passing an order of acquittal as the guilt of the accused persons was established beyond reasonable doubt. 10. The High Court was of the considered view that the stirring of toddy was not mandated by Rules 17 and 18 of the PFA Rules. Further, the Food Inspector had taken three bottles of toddy that were meant for sale, and therefore were representative of the stock of toddy. Further, the Food Inspector poured the contents of the three bottles into an empty, clean and dry pot, then measured 1,500 milliliters of toddy and poured the same into three bottles. At the time of pouring the contents together, it was reasonable to hold that appropriate mixing of toddy had taken place. 11. On the point of consent, the High Court has held that non examination of the consenting authority did not vitiate the Trial. If the consent order itself was indicative of the application of mind by the consenting authority, there was no need to examine the consenting authority. Further, the Food Inspector had deposed that he had received consent order, and no questions were posed to him during his cross-examination regarding validity of the consent order. Accordingly, the High Court has held that the view taken by the Chief Judicial Magistrate on this point was patently wrong. 12. The High Court was also of the considered view that the requirements of Rule 7(3) of the PFA Rules were duly complied with by the Public Analyst. The report of the Public Analyst revealed that the forwarding letter and sealed sample bottle were received by him on 01.02.1992. The report was dated 06.03.1992, and therefore it was reasonable to conclude that the analysis was conducted between 01.02.1992 and 06.03.1992, which was within the time period prescribed Under Rule 7(3) of the PFA Rules. 13. Lastly, the High Court has held that although the report of the Public Analyst did not reveal that the toddy was injurious to health, it clearly established that the toddy did not conform to the standards prescribed under the PFA Rules, a therefore proved beyond reasonable doubt that the toddy was adulterated. 14. Accordingly, by judgment and order dated 23.01.2009, the High Court has convicted the accused persons for the offences punishable Under Section 7(1), 2(ia), (a) read with Section 16(1)(a) and (ii) and Section 7(i), 2(ia)(m) read with Section 16(1)(ai) of the PFA Act. The High Court has sentenced the Accused No. 1 to pay a fine of Rs. 5,000/-, Accused No. 2 to suffer rigorous imprisonment for one year, and also to pay a fine of Rs. 5,000/-, and in default to suffer rigorous imprisonment for six months, and Accused No. 3 to suffer rigorous imprisonment for six months, and also to pay a fine of Rs. 1,000/-, and in default to suffer rigorous imprisonment for three months. 15. Being aggrieved by the said judgment and order passed by the High Court, the Accused No. 2 is before us in this appeal. 16. We have heard Shri Shivaji M. Jadhav, learned Counsel for the Accused No. 2 and Shri Mahaling Pandarge, learned Counsel for the Respondent-State. 17. Shri Shivaji M. Jadhav, learned Counsel for the Accused No. 2 would assail the judgment and order passed by the High Court and would submit that the High Court has erred in reversing a well reasoned judgment and order passed by the Chief Judicial Magistrate. Apart from arguing on merits of the case, learned Counsel for the Accused No. 2 would pray for reduction in the sentence. According to the learned Counsel the incident had taken place in the year 1992, and over 23 years have passed since then. Further the Accused No. 2 has shut his shop and has stopped selling toddy, and hence does not pose danger to consumers. Further, the Accused No. 2 is over 60 years of age and is suffering from cancer, and keeping these aspects of the matter in view, the sentence ought to be reduced. 18. Per contra, Shri Mahaling Pandarge, the learned Counsel appearing for the Respondent-State would support the order of conviction and sentence passed by the High Court. 19. After carefully perusing the entire material on record including the judgments and orders passed by the High Court and the Chief Judicial Magistrate, we are of the considered view that the well reasoned and elaborate judgment and order passed by the High Court needs no interference by this Court. 20. Upon considering the serious nature of the offences for which the Accused No. 2 has been convicted, we are not inclined to reduce the sentence ordered by the High Court. We are in complete agreement with the observations of the High Court that: ..One cannot be oblivious of the fact that toddy is generally consumed by members of the lower strata of the society. The adulteration in the toddy affects the poor persons including labourers and other economically weaker sections. The toddy vendors are tempted to earn easy money by diluting the extracted toddy with water. It causes reduction in the percentage of alcohol. In other words, by adding water or like fluid, the vendor deceives the gullible customers...
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19. After carefully perusing the entire material on record including the judgments and orders passed by the High Court and the Chief Judicial Magistrate, we are of the considered view that the well reasoned and elaborate judgment and order passed by the High Court needs no interference by this Court.20. Upon considering the serious nature of the offences for which the Accused No. 2 has been convicted, we are not inclined to reduce the sentence ordered by the High Court. We are in complete agreement with the observations of the High Court that:..One cannot be oblivious of the fact that toddy is generally consumed by members of the lower strata of the society. The adulteration in the toddy affects the poor persons including labourers and other economically weaker sections. The toddy vendors are tempted to earn easy money by diluting the extracted toddy with water. It causes reduction in the percentage of alcohol. In other words, by adding water or like fluid, the vendor deceives the gullible customers...27. We have carefully perused the judgment and order passed by the High Court. In our considered view, when an accused person is unrepresented before a Court, it is the duty of the Court to appoint an amicus curiae to assist the accused. Since that has not been done by the High Court in the instant case, we take exception to the judgment and order passed by the High Court.
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Tej Bahadur Vs. Shri Narendra Modi | electors as proposers and seconders cannot claim that he was duly nominated. Such a claim can only be made by a person who can show that his nomination paper conformed to the provisions of Section 5-B and yet it was rejected, that is, wrongly rejected by the Returning Officer. To illustrate, if the Returning Officer rejects a nomination paper on the ground that one of the ten subscribers who had proposed the nomination is not an elector, the petitioner can claim to have been duly nominated if he proves that the said proposer was in fact an elector. 12. Thus, the occasion for a person to make a claim that he was duly nominated can arise only if his nomination paper complies with the statutory requirements which govern the filing of nomination papers and not otherwise. The claim that he was duly nominated necessarily implies and involves the claim that his nomination paper conformed to the requirements of the statute. Therefore, a contestant whose nomination paper is not subscribed by at least ten electors as proposers and ten electors as seconders, as required by Section 5-B (1)(a) of the Act, cannot claim to have been duly nominated, any more than a contestant who had not subscribed his assent to his own nomination can. The claim of a contestant that he was duly nominated must arise out of his compliance with the provisions of the Act. It cannot arise out of the violation of the Act. Otherwise, a person who had not filed any nomination paper at all but who had only informed the Returning Officer orally that he desired to contest the election could also content that he claims to have been duly nominated as a candidate. Applying the above decision to the present case it was necessary for the appellant to show that his nomination paper conformed to the provisions of Section 33(3) of the Act. 22. Admittedly appellants nomination paper was not accompanied by a certificate to the effect that he had not been dismissed for corruption or disloyalty to the State. Any other construction of the scheme of the law in this regard would be startling as it would enable a person who was not an elector and not even entitled to be nominated as a candidate for an election to question the election of a returned candidate. 23. At this stage we would like to record that the material facts are not in dispute. It is not in dispute that the appellants nomination paper was not accompanied by a certificate from the Election Commission, further, he was served a notice to cure the defect. He did not do so. It is settled that for a person to make claim that he was duly nominated, his nomination paper must comply with statutory requirements which govern the filing of nomination papers and not otherwise. [Vide Charan Lal Sahu v. Neelam Sanjeeva Reddy, (1978) 2 SCC 500 ; Charan Lal Sahu v. Giani Zail Singh (Supra); Mithilesh Kumar Sinha v. Returning Officer for Presidential Election & Ors. (1993) SUPP 4 SCC 386; Charan Lal Sahu & Anr. v. K.R. Narayanan & Anr. (1998) 1 SCC 56 ; Charan Lal Sahu v. Dr. A.P.J. Abdul Kalam & Ors., (2003) 1 SCC 609 ]. 24. We, therefore, see no merit in the appeal and do not consider it necessary to issue notice to the respondent. The appeal does not raise any arguable question of fact or law and admitting the appeal would amount to an exercise in futility for the court to do so. In Bolin Chetia v. Jogadish Bhuyan & Ors., (2005) 6 SCC 81 , R.C. Lahoti C.J., speaking for the court observed as follows: - It is thus clear that the appellate courts including the High Court do have power to dismiss an appeal summarily. Such power is inherent in appellate jurisdiction. The power to dismiss summarily is available to be exercised in regard to first appeals subject to the caution that such power will be exercised by way of exception and if only the first appellate court is convinced that the appeal is so worthless, raising no arguable question of fact or of law, as it would be a sheer wastage of time and money for the respondent being called upon to appear, and would also be an exercise in futility for the court. The first appellate court exercising power to dismiss the appeals summarily ought to pass a speaking order making it precise that it did go into the pleas – of fact and/or law – sought to be urged before it and upon deliberating upon them found them to be devoid of any merit or substance and giving brief reasons. This is necessary to satisfy any superior jurisdiction whom the aggrieved appellant may approach, that the power to summarily dismiss the appeal was exercised judicially and consciously by way of an exception. 25. We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 , V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful-not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing. 26. Section 83 of the Act allows only an elector or candidate to maintain an Election Petition. Impliedly, it bars any other person from filing an Election Petition. In this sense the Election Petition can also be set to be barred by Section 81 read with Section 86(1) of the Act. | 0[ds]14. Having noted the above contention, we feel that it would be futile to advert to further details relating to the right claimed by the appellant with reference to the proviso while contending that such right available has been denied to him. This is for the reason that as on the date of filing the nomination the appellant did not possess the required certificate which was not produced along with the nomination paper. In the oath letter dated 30.04.2019 relied upon by the learned counsel for the appellant, he merely justifies the absence of requisite certificate on the ground that he was not notified earlier and that he has never been dismissed on the basis of corruption or disloyalty to the State. Even the decision of the Returning Officer dated 01.05.2019 records that in appellants reply he has stated that Section 9 and 33 (3) are not applicable to his case and he has submitted a representation to the Election Commission.15. The averment contained in the Appeal Memo refers to the sequence wherein the appellant is stated to have made an attempt through his authorised representative to secure the certificate from the Office of the Election Commission of India but there is no averment to the effect that such certificate had been secured. If that be the position, it is clear that the appellant neither possessed the required certificate on the date of the filing the nomination, at the time of scrutiny, on the next day but one following the date fixed for scrutiny or even at the time of the filing the Election Petition.16. Section 81 of the Act provides that an Election Petition may be presented by (a) any elector or (b) any candidate at such election. The Explanation to Section 81 provides that an elector means a person who was entitled to vote at the election to which the election petition relates. In this case the election is to the Varanasi Parliamentary seat. Obviously, the appellant is not an elector registered in the Varanasi constituency since he is admittedly enrolled as an elector of Bhiwani, Mahendragarh Parliamentary Constituency, Haryana. His locus thus depends entirely on the question whether he is a candidate or can claim to be a duly nominated candidate.The answer must be in the negative. It is a condition for a valid nomination of a person who has been dismissed from service, that the nomination paper must be accompanied by a certificate to the effect that the person seeking nomination has not been dismissed for corruption or disloyalty to the State. Section 33(3) of the Act itself provides the consequence of the absence of such certificate and that is that such a person shall not be deemed to be duly nominated as a candidate. The law itself deems that such a person cannot be duly nominated.20. The requirement of Section 33(3) that a nomination of a dismissed officer must be accompanied by a certificate that he was not dismissed on the ground of corruption or disloyalty to the State must be read as obligatory. It is couched in a language which is imperative and provides for a certain consequence viz. that such a person shall not be deemed to be a duly nominated candidate. The word deemed in this provision does not create a legal fiction. It clarifies any doubt anyone might entertain as to the legal character of a person who has not and states with definiteness that such a person shall not be deemed to be duly nominated. It would, therefore, be absurd to construe the legislative scheme as permitting a person who has not filed his nomination in accordance with Section 33 (3), as enabling him to claim that he is a duly nominated candidate even though the provision mandates that such a person shall not be deemed to be a duly nominated candidate.21. We are of the view that the mandate of the law that such a person shall not be deemed to be duly nominated must be given full effect and no person must be considered as entitled to claim that he has been duly nominated even though he does not comply with the requirement of law. Though these observations were made in the context of different requirements as to nominations, the law laid down by this Court in several decisions including Charan Lal Sahu vs. Giani Zail Singh & Anr., (1984) 1 SCC 390 must clearly govern the present case. This Court in that case considered the question: when a person can claim to have been duly nominated as a candidate under Section 13(a) of the Presidential and Vice-Presidential Elections Act, 1952. The Court observed: -11. ……But, the claim to have been duly nominated cannot be made by a person whose nomination paper does not comply with the mandatory requirements of Section 5-B (1) (a) of the Act. That is to say, a person whose nomination paper, admittedly, was not subscribed by the requisite number of electors as proposers and seconders cannot claim that he was duly nominated. Such a claim can only be made by a person who can show that his nomination paper conformed to the provisions of Section 5-B and yet it was rejected, that is, wrongly rejected by the Returning Officer. To illustrate, if the Returning Officer rejects a nomination paper on the ground that one of the ten subscribers who had proposed the nomination is not an elector, the petitioner can claim to have been duly nominated if he proves that the said proposer was in fact an elector.12. Thus, the occasion for a person to make a claim that he was duly nominated can arise only if his nomination paper complies with the statutory requirements which govern the filing of nomination papers and not otherwise. The claim that he was duly nominated necessarily implies and involves the claim that his nomination paper conformed to the requirements of the statute. Therefore, a contestant whose nomination paper is not subscribed by at least ten electors as proposers and ten electors as seconders, as required by Section 5-B (1)(a) of the Act, cannot claim to have been duly nominated, any more than a contestant who had not subscribed his assent to his own nomination can. The claim of a contestant that he was duly nominated must arise out of his compliance with the provisions of the Act. It cannot arise out of the violation of the Act. Otherwise, a person who had not filed any nomination paper at all but who had only informed the Returning Officer orally that he desired to contest the election could also content that he claims to have been duly nominated as a candidate.Applying the above decision to the present case it was necessary for the appellant to show that his nomination paper conformed to the provisions of Section 33(3) of the Act.22. Admittedly appellants nomination paper was not accompanied by a certificate to the effect that he had not been dismissed for corruption or disloyalty to the State. Any other construction of the scheme of the law in this regard would be startling as it would enable a person who was not an elector and not even entitled to be nominated as a candidate for an election to question the election of a returned candidate.23. At this stage we would like to record that the material facts are not in dispute. It is not in dispute that the appellants nomination paper was not accompanied by a certificate from the Election Commission, further, he was served a notice to cure the defect. He did not do so. It is settled that for a person to make claim that he was duly nominated, his nomination paper must comply with statutory requirements which govern the filing of nomination papers and not otherwise. [Vide Charan Lal Sahu v. Neelam Sanjeeva Reddy, (1978) 2 SCC 500 ; Charan Lal Sahu v. Giani Zail Singh (Supra); Mithilesh Kumar Sinha v. Returning Officer for Presidential Election & Ors. (1993) SUPP 4 SCC 386; Charan Lal Sahu & Anr. v. K.R. Narayanan & Anr. (1998) 1 SCC 56 ; Charan Lal Sahu v. Dr. A.P.J. Abdul Kalam & Ors., (2003) 1 SCC 609 ].24. We, therefore, see no merit in the appeal and do not consider it necessary to issue notice to the respondent. The appeal does not raise any arguable question of fact or law and admitting the appeal would amount to an exercise in futility for the court to do so.25. We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 , V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful-not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing.26. Section 83 of the Act allows only an elector or candidate to maintain an Election Petition. Impliedly, it bars any other person from filing an Election Petition. In this sense the Election Petition can also be set to be barred by Section 81 read with Section 86(1) of the Act. | 0 | 3,453 | 1,757 | ### Instruction:
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electors as proposers and seconders cannot claim that he was duly nominated. Such a claim can only be made by a person who can show that his nomination paper conformed to the provisions of Section 5-B and yet it was rejected, that is, wrongly rejected by the Returning Officer. To illustrate, if the Returning Officer rejects a nomination paper on the ground that one of the ten subscribers who had proposed the nomination is not an elector, the petitioner can claim to have been duly nominated if he proves that the said proposer was in fact an elector. 12. Thus, the occasion for a person to make a claim that he was duly nominated can arise only if his nomination paper complies with the statutory requirements which govern the filing of nomination papers and not otherwise. The claim that he was duly nominated necessarily implies and involves the claim that his nomination paper conformed to the requirements of the statute. Therefore, a contestant whose nomination paper is not subscribed by at least ten electors as proposers and ten electors as seconders, as required by Section 5-B (1)(a) of the Act, cannot claim to have been duly nominated, any more than a contestant who had not subscribed his assent to his own nomination can. The claim of a contestant that he was duly nominated must arise out of his compliance with the provisions of the Act. It cannot arise out of the violation of the Act. Otherwise, a person who had not filed any nomination paper at all but who had only informed the Returning Officer orally that he desired to contest the election could also content that he claims to have been duly nominated as a candidate. Applying the above decision to the present case it was necessary for the appellant to show that his nomination paper conformed to the provisions of Section 33(3) of the Act. 22. Admittedly appellants nomination paper was not accompanied by a certificate to the effect that he had not been dismissed for corruption or disloyalty to the State. Any other construction of the scheme of the law in this regard would be startling as it would enable a person who was not an elector and not even entitled to be nominated as a candidate for an election to question the election of a returned candidate. 23. At this stage we would like to record that the material facts are not in dispute. It is not in dispute that the appellants nomination paper was not accompanied by a certificate from the Election Commission, further, he was served a notice to cure the defect. He did not do so. It is settled that for a person to make claim that he was duly nominated, his nomination paper must comply with statutory requirements which govern the filing of nomination papers and not otherwise. [Vide Charan Lal Sahu v. Neelam Sanjeeva Reddy, (1978) 2 SCC 500 ; Charan Lal Sahu v. Giani Zail Singh (Supra); Mithilesh Kumar Sinha v. Returning Officer for Presidential Election & Ors. (1993) SUPP 4 SCC 386; Charan Lal Sahu & Anr. v. K.R. Narayanan & Anr. (1998) 1 SCC 56 ; Charan Lal Sahu v. Dr. A.P.J. Abdul Kalam & Ors., (2003) 1 SCC 609 ]. 24. We, therefore, see no merit in the appeal and do not consider it necessary to issue notice to the respondent. The appeal does not raise any arguable question of fact or law and admitting the appeal would amount to an exercise in futility for the court to do so. In Bolin Chetia v. Jogadish Bhuyan & Ors., (2005) 6 SCC 81 , R.C. Lahoti C.J., speaking for the court observed as follows: - It is thus clear that the appellate courts including the High Court do have power to dismiss an appeal summarily. Such power is inherent in appellate jurisdiction. The power to dismiss summarily is available to be exercised in regard to first appeals subject to the caution that such power will be exercised by way of exception and if only the first appellate court is convinced that the appeal is so worthless, raising no arguable question of fact or of law, as it would be a sheer wastage of time and money for the respondent being called upon to appear, and would also be an exercise in futility for the court. The first appellate court exercising power to dismiss the appeals summarily ought to pass a speaking order making it precise that it did go into the pleas – of fact and/or law – sought to be urged before it and upon deliberating upon them found them to be devoid of any merit or substance and giving brief reasons. This is necessary to satisfy any superior jurisdiction whom the aggrieved appellant may approach, that the power to summarily dismiss the appeal was exercised judicially and consciously by way of an exception. 25. We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 , V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful-not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing. 26. Section 83 of the Act allows only an elector or candidate to maintain an Election Petition. Impliedly, it bars any other person from filing an Election Petition. In this sense the Election Petition can also be set to be barred by Section 81 read with Section 86(1) of the Act.
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### Explanation:
has not filed his nomination in accordance with Section 33 (3), as enabling him to claim that he is a duly nominated candidate even though the provision mandates that such a person shall not be deemed to be a duly nominated candidate.21. We are of the view that the mandate of the law that such a person shall not be deemed to be duly nominated must be given full effect and no person must be considered as entitled to claim that he has been duly nominated even though he does not comply with the requirement of law. Though these observations were made in the context of different requirements as to nominations, the law laid down by this Court in several decisions including Charan Lal Sahu vs. Giani Zail Singh & Anr., (1984) 1 SCC 390 must clearly govern the present case. This Court in that case considered the question: when a person can claim to have been duly nominated as a candidate under Section 13(a) of the Presidential and Vice-Presidential Elections Act, 1952. The Court observed: -11. ……But, the claim to have been duly nominated cannot be made by a person whose nomination paper does not comply with the mandatory requirements of Section 5-B (1) (a) of the Act. That is to say, a person whose nomination paper, admittedly, was not subscribed by the requisite number of electors as proposers and seconders cannot claim that he was duly nominated. Such a claim can only be made by a person who can show that his nomination paper conformed to the provisions of Section 5-B and yet it was rejected, that is, wrongly rejected by the Returning Officer. To illustrate, if the Returning Officer rejects a nomination paper on the ground that one of the ten subscribers who had proposed the nomination is not an elector, the petitioner can claim to have been duly nominated if he proves that the said proposer was in fact an elector.12. Thus, the occasion for a person to make a claim that he was duly nominated can arise only if his nomination paper complies with the statutory requirements which govern the filing of nomination papers and not otherwise. The claim that he was duly nominated necessarily implies and involves the claim that his nomination paper conformed to the requirements of the statute. Therefore, a contestant whose nomination paper is not subscribed by at least ten electors as proposers and ten electors as seconders, as required by Section 5-B (1)(a) of the Act, cannot claim to have been duly nominated, any more than a contestant who had not subscribed his assent to his own nomination can. The claim of a contestant that he was duly nominated must arise out of his compliance with the provisions of the Act. It cannot arise out of the violation of the Act. Otherwise, a person who had not filed any nomination paper at all but who had only informed the Returning Officer orally that he desired to contest the election could also content that he claims to have been duly nominated as a candidate.Applying the above decision to the present case it was necessary for the appellant to show that his nomination paper conformed to the provisions of Section 33(3) of the Act.22. Admittedly appellants nomination paper was not accompanied by a certificate to the effect that he had not been dismissed for corruption or disloyalty to the State. Any other construction of the scheme of the law in this regard would be startling as it would enable a person who was not an elector and not even entitled to be nominated as a candidate for an election to question the election of a returned candidate.23. At this stage we would like to record that the material facts are not in dispute. It is not in dispute that the appellants nomination paper was not accompanied by a certificate from the Election Commission, further, he was served a notice to cure the defect. He did not do so. It is settled that for a person to make claim that he was duly nominated, his nomination paper must comply with statutory requirements which govern the filing of nomination papers and not otherwise. [Vide Charan Lal Sahu v. Neelam Sanjeeva Reddy, (1978) 2 SCC 500 ; Charan Lal Sahu v. Giani Zail Singh (Supra); Mithilesh Kumar Sinha v. Returning Officer for Presidential Election & Ors. (1993) SUPP 4 SCC 386; Charan Lal Sahu & Anr. v. K.R. Narayanan & Anr. (1998) 1 SCC 56 ; Charan Lal Sahu v. Dr. A.P.J. Abdul Kalam & Ors., (2003) 1 SCC 609 ].24. We, therefore, see no merit in the appeal and do not consider it necessary to issue notice to the respondent. The appeal does not raise any arguable question of fact or law and admitting the appeal would amount to an exercise in futility for the court to do so.25. We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 , V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful-not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing.26. Section 83 of the Act allows only an elector or candidate to maintain an Election Petition. Impliedly, it bars any other person from filing an Election Petition. In this sense the Election Petition can also be set to be barred by Section 81 read with Section 86(1) of the Act.
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Bhagat Punja Bagul Vs. Ceat Limited & Another | learned Single Judge, the employee seeking backwages, and the employer seeking to challenge the order directing the reinstatement of the Workman on some suitable post, considering the ailment of the workman.2.We have perused the Award dated 31st March,1997 passed by the Labour Court as well as the judgment dated 13th August, 1999, passed by the learned Single Judge.3.The brief facts are, that the Appellant workman was working in one of the departments of the employer known as Band Building Department. Earlier, he used to work for Passenger Tyre Building Department. It appears that in both the departments, the Appellant workman was required to use his feet to rotate drums with his legs. Similarly, in Band Building Department, the workman was required to use his feet to squeeze the fabric on the drums using the foot pedal. The present workman was charge-sheeted for mis-conduct on the ground of giving less production and the Appellant-workman could only achieve 39% of the norms fixed by the Company. The labour Court had perused the entire evidence and record and also found that three Doctors had certified that the Appellant workman was suffering from varicose-veins on his both legs and the said ailment appeared to be an occupational hazard. It also indicated that the workman may need surgery to achieve less suffering from varicose-veins. The labour Court had categorically given a finding that though the mis-conduct was not willful, it was a mis-conduct since if an employee is unable to give production as per the norms, even it may be due to disease, still it amounts to mis-conduct under the Standing Order 24(c) of the Model Standing Orders. Under these circumstances, the Labour Court had adopted a humanitarian approach and had directed that the Appellant workman be absorbed in some suitable post taking into consideration all his ailment, however declined to grant any backwages, since the mis-conduct was clearly proved as per the Standing Order 24(c) of the Model Standing Orders.4.The learned Single Judge by the aforesaid judgment came to a conclusion that there is no apparent error or error in law in the order of the Labour Court since the Labour Court had clearly given a finding that the charge against the workman had been proved, as he could not fulfil the requisite norms due to his ailment. It may not be willful mis-conduct, however it amounts to a mis-conduct. Under these circumstances, the learned Single Judge found that there is nothing erroneous in the Award passed by the Labour Court in not awarding back wages, as admittedly, the Appellant was not able to work right from 1988 and as such it was not possible even for the learned Single Judge to award backwages. The learned Single Judge had also recorded that pursuant to this Courts interim order dated 1st September,1997, the Appellant workman had already been reinstated by the Company on the post of Cleaner in the Administrative Security Department at their Bhandup Factory and ever since he has been working as a Cleaner in the said department. The learned Single Judge had also directed the Company to give benefit of continuity of service on a notional basis for the purpose of calculating retirement benefits as and when workman stands superannuated. The learned Single Judge however, held that the workman was not entitled to the backwages.5.As stated earlier, the Company had accepted the judgment of the learned Single Judge and Mr.Rele, the learned Senior Counsel appearing on behalf of the employer stated that even if the Appellant employee wants to get operated for his ailment of varicose-veins, the Company will get him admitted in an appropriate hospital and bear the expenses in that regard. Mr.Topkar, the learned Counsel appearing on behalf of the Appellant mainly sought to contend that both the Labour Court as well as the learned Single Judge were wrong in not awarding full back wages to the Appellant workman and tried to contend that when the reinstatement is granted, the Appellant ought to be granted full back wages.6.After having heard both the learned Counsel for the parties and perusal of the Award of the Labour Court and the judgment passed by the learned Single Judge, we do not find any error apparent or anything contrary to law. In fact, it is pertinent to note in this case, that it is not a case of reinstatement being granted to the Appellant since the Appellant could not at all work in the capacity as a workman either in Passenger Tyre Building Department or Band Building Department to the full capacity, in the sense, the workman could only achieve 39% of the capacity of the norms prescribed and as such adopting humanitarian approach, the Labour Court had directed the Company to appoint the Appellant workman and absorb him in a suitable post and this Court, by an ad-interim order dated 1st September,1997 had directed the Respondent No.1 Company to provide a job as a Cleaner in the Administrative Security Department at their Bhandup Factory, which has been done by the Respondent Company. In fact, when we queried Mr.Topkar, that in the event we grant reinstatement to the Appellant in Band Building Department, will he be able to give full production efficiency, as per the norms Mr.Topkar fairly conceded that the employee will not be able to achieve the same. Therefore, in the instant case, there cannot be any order of reinstatement, and only alternative way to do justice was to provide suitable appointment, which has been duly done by the employer. If that be so, there is no question of granting any back wages, as admittedly the employee has not been working and was not able to work right from 1988, in view of his physical ailment.7.Having regard to the facts and circumstances of the case, we do not find any error apparent or any illegality in the order passed by the learned Single Judge or in the Award passed by the Labour Court, refusing to grant full back wages to the Appellant. | 0[ds]6.After having heard both the learned Counsel for the parties and perusal of the Award of the Labour Court and the judgment passed by the learned Single Judge, we do not find any error apparent or anything contrary to law. In fact, it is pertinent to note in this case, that it is not a case of reinstatement being granted to the Appellant since the Appellant could not at all work in the capacity as a workman either in Passenger Tyre Building Department or Band Building Department to the full capacity, in the sense, the workman could only achieve 39% of the capacity of the norms prescribed and as such adopting humanitarian approach, the Labour Court had directed the Company to appoint the Appellant workman and absorb him in a suitable post and this Court, by anorder dated 1st September,1997 had directed the Respondent No.1 Company to provide a job as a Cleaner in the Administrative Security Department at their Bhandup Factory, which has been done by the Respondent Company. In fact, when we queried Mr.Topkar, that in the event we grant reinstatement to the Appellant in Band Building Department, will he be able to give full production efficiency, as per the norms Mr.Topkar fairly conceded that the employee will not be able to achieve the same. Therefore, in the instant case, there cannot be any order of reinstatement, and only alternative way to do justice was to provide suitable appointment, which has been duly done by the employer. If that be so, there is no question of granting any back wages, as admittedly the employee has not been working and was not able to work right from 1988, in view of his physical ailment.7.Having regard to the facts and circumstances of the case, we do not find any error apparent or any illegality in the order passed by the learned Single Judge or in the Award passed by the Labour Court, refusing to grant full back wages to the Appellant. | 0 | 1,232 | 363 | ### 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:
learned Single Judge, the employee seeking backwages, and the employer seeking to challenge the order directing the reinstatement of the Workman on some suitable post, considering the ailment of the workman.2.We have perused the Award dated 31st March,1997 passed by the Labour Court as well as the judgment dated 13th August, 1999, passed by the learned Single Judge.3.The brief facts are, that the Appellant workman was working in one of the departments of the employer known as Band Building Department. Earlier, he used to work for Passenger Tyre Building Department. It appears that in both the departments, the Appellant workman was required to use his feet to rotate drums with his legs. Similarly, in Band Building Department, the workman was required to use his feet to squeeze the fabric on the drums using the foot pedal. The present workman was charge-sheeted for mis-conduct on the ground of giving less production and the Appellant-workman could only achieve 39% of the norms fixed by the Company. The labour Court had perused the entire evidence and record and also found that three Doctors had certified that the Appellant workman was suffering from varicose-veins on his both legs and the said ailment appeared to be an occupational hazard. It also indicated that the workman may need surgery to achieve less suffering from varicose-veins. The labour Court had categorically given a finding that though the mis-conduct was not willful, it was a mis-conduct since if an employee is unable to give production as per the norms, even it may be due to disease, still it amounts to mis-conduct under the Standing Order 24(c) of the Model Standing Orders. Under these circumstances, the Labour Court had adopted a humanitarian approach and had directed that the Appellant workman be absorbed in some suitable post taking into consideration all his ailment, however declined to grant any backwages, since the mis-conduct was clearly proved as per the Standing Order 24(c) of the Model Standing Orders.4.The learned Single Judge by the aforesaid judgment came to a conclusion that there is no apparent error or error in law in the order of the Labour Court since the Labour Court had clearly given a finding that the charge against the workman had been proved, as he could not fulfil the requisite norms due to his ailment. It may not be willful mis-conduct, however it amounts to a mis-conduct. Under these circumstances, the learned Single Judge found that there is nothing erroneous in the Award passed by the Labour Court in not awarding back wages, as admittedly, the Appellant was not able to work right from 1988 and as such it was not possible even for the learned Single Judge to award backwages. The learned Single Judge had also recorded that pursuant to this Courts interim order dated 1st September,1997, the Appellant workman had already been reinstated by the Company on the post of Cleaner in the Administrative Security Department at their Bhandup Factory and ever since he has been working as a Cleaner in the said department. The learned Single Judge had also directed the Company to give benefit of continuity of service on a notional basis for the purpose of calculating retirement benefits as and when workman stands superannuated. The learned Single Judge however, held that the workman was not entitled to the backwages.5.As stated earlier, the Company had accepted the judgment of the learned Single Judge and Mr.Rele, the learned Senior Counsel appearing on behalf of the employer stated that even if the Appellant employee wants to get operated for his ailment of varicose-veins, the Company will get him admitted in an appropriate hospital and bear the expenses in that regard. Mr.Topkar, the learned Counsel appearing on behalf of the Appellant mainly sought to contend that both the Labour Court as well as the learned Single Judge were wrong in not awarding full back wages to the Appellant workman and tried to contend that when the reinstatement is granted, the Appellant ought to be granted full back wages.6.After having heard both the learned Counsel for the parties and perusal of the Award of the Labour Court and the judgment passed by the learned Single Judge, we do not find any error apparent or anything contrary to law. In fact, it is pertinent to note in this case, that it is not a case of reinstatement being granted to the Appellant since the Appellant could not at all work in the capacity as a workman either in Passenger Tyre Building Department or Band Building Department to the full capacity, in the sense, the workman could only achieve 39% of the capacity of the norms prescribed and as such adopting humanitarian approach, the Labour Court had directed the Company to appoint the Appellant workman and absorb him in a suitable post and this Court, by an ad-interim order dated 1st September,1997 had directed the Respondent No.1 Company to provide a job as a Cleaner in the Administrative Security Department at their Bhandup Factory, which has been done by the Respondent Company. In fact, when we queried Mr.Topkar, that in the event we grant reinstatement to the Appellant in Band Building Department, will he be able to give full production efficiency, as per the norms Mr.Topkar fairly conceded that the employee will not be able to achieve the same. Therefore, in the instant case, there cannot be any order of reinstatement, and only alternative way to do justice was to provide suitable appointment, which has been duly done by the employer. If that be so, there is no question of granting any back wages, as admittedly the employee has not been working and was not able to work right from 1988, in view of his physical ailment.7.Having regard to the facts and circumstances of the case, we do not find any error apparent or any illegality in the order passed by the learned Single Judge or in the Award passed by the Labour Court, refusing to grant full back wages to the Appellant.
### Response:
0
### Explanation:
6.After having heard both the learned Counsel for the parties and perusal of the Award of the Labour Court and the judgment passed by the learned Single Judge, we do not find any error apparent or anything contrary to law. In fact, it is pertinent to note in this case, that it is not a case of reinstatement being granted to the Appellant since the Appellant could not at all work in the capacity as a workman either in Passenger Tyre Building Department or Band Building Department to the full capacity, in the sense, the workman could only achieve 39% of the capacity of the norms prescribed and as such adopting humanitarian approach, the Labour Court had directed the Company to appoint the Appellant workman and absorb him in a suitable post and this Court, by anorder dated 1st September,1997 had directed the Respondent No.1 Company to provide a job as a Cleaner in the Administrative Security Department at their Bhandup Factory, which has been done by the Respondent Company. In fact, when we queried Mr.Topkar, that in the event we grant reinstatement to the Appellant in Band Building Department, will he be able to give full production efficiency, as per the norms Mr.Topkar fairly conceded that the employee will not be able to achieve the same. Therefore, in the instant case, there cannot be any order of reinstatement, and only alternative way to do justice was to provide suitable appointment, which has been duly done by the employer. If that be so, there is no question of granting any back wages, as admittedly the employee has not been working and was not able to work right from 1988, in view of his physical ailment.7.Having regard to the facts and circumstances of the case, we do not find any error apparent or any illegality in the order passed by the learned Single Judge or in the Award passed by the Labour Court, refusing to grant full back wages to the Appellant.
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M/S B.Fine Art Auctioneers P.Ltd. Vs. C.B.I. | is to quash the FIR and not the order passed by the trial Court refusing to discharge the appellants from the criminal case filed by the CBI. The Writ Petition is mainly based on the ground that the basis of the FIR i.e. the earlier report of Archaeological Survey of India has been rendered redundant in view of the decision rendered by the Division Bench of the High Court vide order dated 24.3.2005. The High Court dismissed the Writ Petition. Hence this appeal. 8. Ms. Tasneem Ahamdi, learned counsel for the appellants strenuously contended that the FIR registered by the CBI based on the earlier report of Archaeological Survey of India has been rendered redundant. The basis of the FIR does not survive in view of the order of the High Court dated 24.3.2005 and therefore, there cannot be any prosecution on the basis of the earlier report of the ASI. 9. Shri A. Mariarputham, learned senior counsel appearing on behalf of the CBI submitted that the conduct of the appellants disentitles them for grant of any relief in these appeals. It was submitted that on the date when the FIR was lodged, there was sufficient basis and information based on which the FIR has been registered and ultimately, resulting in filing of the charge sheet by the CBI which cannot be quashed at this stage.10. A short question that arises for our consideration is as to whether the appellants are entitled for the relief to quash the very first FIR registered by the CBI. There is no explanation whatsoever forthcoming from the appellants as to why they did not implead the CBI in Writ Petition (C) No. 16598 of 2004 and challenge the FIR though they were aware of the same as is evident from their own affidavit filed in the High Court in support of Writ Petition (C) No. 16598 of 2004. It is not the case of the appellants that the FIR has been registered by the CBI without any proper intimation from the Archaeological Survey of India. The contention that the basis of the FIR does not survive in view of the judgment of Delhi High Court in Writ Petition (C)No. 16598 of 2004 appears to be untenable and unsustainable. A bare reading of the judgment of the High Court does not support the submission made by the learned counsel for the appellants. The High Court mainly observed that in view of the consensus arrived at between the parties thereto, it will not be necessary for the parties to give effect to the earlier report and "if a new report is passed, the earlier report will not be given effect to". The earlier report has not been set aside by the High Court and obviously to continue its operation, a new order is to be made by the Director General, ASI which according to the learned counsel for the appellants is not so far passed. At any rate, all these pleas may be advanced, if at all, available to the appellants, in the pending criminal case. It is not necessary to restate that the observation made by the High Court that it will not be necessary for the parties to give effect to the earlier report binds only the parties to the proceedings and admittedly, the CBI has not been impleaded as party respondent in that Writ Petition. 11. On the facts and circumstances, we are not inclined to exercise our discretion under Article 136 of the Constitution of India to grant any relief to the appellants. We are of the opinion that the High Court rightly refused to exercise its discretion under Article 226 of the Constitution of India in favour of the appellants. The jurisdiction of the High Court under Article 226 of the Constitution to issue appropriate writs is extra-ordinary, equitable and discretionary. Prerogative writs mentioned therein may be issued only for doing substantial justice. No person is entitled to claim relief under Article 226 of the Constitution as a matter of course. 12. It is evident from the record that after registration of the first information report the CBI made detailed investigation in the matter and filed charge sheet for the offence punishable under Section 25 (1) read with Section 3 of the Act. The trial court having taken cognizance of offences framed charges against all the concerned. The appellants have even filed discharge application before the trial court on 21.8.2006. It is not clear from the averments made in the Writ Petition as to the result of the said application. 13. On the facts and in the circumstances, it is not possible at this stage to quash the very first information report, since much water has flown after registration of the FIR by the CBI. 14. Before parting with the judgment it is necessary to state that the learned senior counsel - Shri A. Mariarputham based on the Minutes of the Expert Committee dated 12.04.2010 and the order of Director General, ASI suggested that the prosecution of the appellants may be confined only with regard to the painting "Reconciled" which alone held to be antiquity. It was a fair suggestion but the learned counsel for the appellants expressed her reservation as regards the very validity of said minutes and order of Director General and wanted the question to be left open. We accordingly express no opinion as regards the validity of the minutes and order dated 12.4.2010 of Director General, Archaeology. In the circumstances, we wish to express no opinion on the same except to observe that the defence of the appellants based on the present report during the course of the hearing of these appeals is left open. 15. We, however, make it clear that it is for the trial court to consider as to whether the paintings in question are antiquities as alleged by the prosecution. The said question may have to be decided by the trial court upon appreciation of the evidence that may be brought on record. | 0[ds]12. It is evident from the record that after registration of the first information report the CBI made detailed investigation in the matter and filed charge sheet for the offence punishable under Section 25 (1) read with Section 3 of the Act. The trial court having taken cognizance of offences framed charges against all the concerned. The appellants have even filed discharge application before the trial court on 21.8.2006. It is not clear from the averments made in the Writ Petition as to the result of the said application.Before parting with the judgment it is necessary to state that the learned senior counsel - Shri A. Mariarputham based on the Minutes of the Expert Committee dated 12.04.2010 and the order of Director General, ASI suggested that the prosecution of the appellants may be confined only with regard to the painting "Reconciled" which alone held to be antiquity. It was a fair suggestion but the learned counsel for the appellants expressed her reservation as regards the very validity of said minutes and order of Director General and wanted the question to be left open. We accordingly express no opinion as regards the validity of the minutes and order dated 12.4.2010 of Director General, Archaeology. In the circumstances, we wish to express no opinion on the same except to observe that the defence of the appellants based on the present report during the course of the hearing of these appeals is left open. | 0 | 1,915 | 260 | ### 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:
is to quash the FIR and not the order passed by the trial Court refusing to discharge the appellants from the criminal case filed by the CBI. The Writ Petition is mainly based on the ground that the basis of the FIR i.e. the earlier report of Archaeological Survey of India has been rendered redundant in view of the decision rendered by the Division Bench of the High Court vide order dated 24.3.2005. The High Court dismissed the Writ Petition. Hence this appeal. 8. Ms. Tasneem Ahamdi, learned counsel for the appellants strenuously contended that the FIR registered by the CBI based on the earlier report of Archaeological Survey of India has been rendered redundant. The basis of the FIR does not survive in view of the order of the High Court dated 24.3.2005 and therefore, there cannot be any prosecution on the basis of the earlier report of the ASI. 9. Shri A. Mariarputham, learned senior counsel appearing on behalf of the CBI submitted that the conduct of the appellants disentitles them for grant of any relief in these appeals. It was submitted that on the date when the FIR was lodged, there was sufficient basis and information based on which the FIR has been registered and ultimately, resulting in filing of the charge sheet by the CBI which cannot be quashed at this stage.10. A short question that arises for our consideration is as to whether the appellants are entitled for the relief to quash the very first FIR registered by the CBI. There is no explanation whatsoever forthcoming from the appellants as to why they did not implead the CBI in Writ Petition (C) No. 16598 of 2004 and challenge the FIR though they were aware of the same as is evident from their own affidavit filed in the High Court in support of Writ Petition (C) No. 16598 of 2004. It is not the case of the appellants that the FIR has been registered by the CBI without any proper intimation from the Archaeological Survey of India. The contention that the basis of the FIR does not survive in view of the judgment of Delhi High Court in Writ Petition (C)No. 16598 of 2004 appears to be untenable and unsustainable. A bare reading of the judgment of the High Court does not support the submission made by the learned counsel for the appellants. The High Court mainly observed that in view of the consensus arrived at between the parties thereto, it will not be necessary for the parties to give effect to the earlier report and "if a new report is passed, the earlier report will not be given effect to". The earlier report has not been set aside by the High Court and obviously to continue its operation, a new order is to be made by the Director General, ASI which according to the learned counsel for the appellants is not so far passed. At any rate, all these pleas may be advanced, if at all, available to the appellants, in the pending criminal case. It is not necessary to restate that the observation made by the High Court that it will not be necessary for the parties to give effect to the earlier report binds only the parties to the proceedings and admittedly, the CBI has not been impleaded as party respondent in that Writ Petition. 11. On the facts and circumstances, we are not inclined to exercise our discretion under Article 136 of the Constitution of India to grant any relief to the appellants. We are of the opinion that the High Court rightly refused to exercise its discretion under Article 226 of the Constitution of India in favour of the appellants. The jurisdiction of the High Court under Article 226 of the Constitution to issue appropriate writs is extra-ordinary, equitable and discretionary. Prerogative writs mentioned therein may be issued only for doing substantial justice. No person is entitled to claim relief under Article 226 of the Constitution as a matter of course. 12. It is evident from the record that after registration of the first information report the CBI made detailed investigation in the matter and filed charge sheet for the offence punishable under Section 25 (1) read with Section 3 of the Act. The trial court having taken cognizance of offences framed charges against all the concerned. The appellants have even filed discharge application before the trial court on 21.8.2006. It is not clear from the averments made in the Writ Petition as to the result of the said application. 13. On the facts and in the circumstances, it is not possible at this stage to quash the very first information report, since much water has flown after registration of the FIR by the CBI. 14. Before parting with the judgment it is necessary to state that the learned senior counsel - Shri A. Mariarputham based on the Minutes of the Expert Committee dated 12.04.2010 and the order of Director General, ASI suggested that the prosecution of the appellants may be confined only with regard to the painting "Reconciled" which alone held to be antiquity. It was a fair suggestion but the learned counsel for the appellants expressed her reservation as regards the very validity of said minutes and order of Director General and wanted the question to be left open. We accordingly express no opinion as regards the validity of the minutes and order dated 12.4.2010 of Director General, Archaeology. In the circumstances, we wish to express no opinion on the same except to observe that the defence of the appellants based on the present report during the course of the hearing of these appeals is left open. 15. We, however, make it clear that it is for the trial court to consider as to whether the paintings in question are antiquities as alleged by the prosecution. The said question may have to be decided by the trial court upon appreciation of the evidence that may be brought on record.
### Response:
0
### Explanation:
12. It is evident from the record that after registration of the first information report the CBI made detailed investigation in the matter and filed charge sheet for the offence punishable under Section 25 (1) read with Section 3 of the Act. The trial court having taken cognizance of offences framed charges against all the concerned. The appellants have even filed discharge application before the trial court on 21.8.2006. It is not clear from the averments made in the Writ Petition as to the result of the said application.Before parting with the judgment it is necessary to state that the learned senior counsel - Shri A. Mariarputham based on the Minutes of the Expert Committee dated 12.04.2010 and the order of Director General, ASI suggested that the prosecution of the appellants may be confined only with regard to the painting "Reconciled" which alone held to be antiquity. It was a fair suggestion but the learned counsel for the appellants expressed her reservation as regards the very validity of said minutes and order of Director General and wanted the question to be left open. We accordingly express no opinion as regards the validity of the minutes and order dated 12.4.2010 of Director General, Archaeology. In the circumstances, we wish to express no opinion on the same except to observe that the defence of the appellants based on the present report during the course of the hearing of these appeals is left open.
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Kehar Singh & Ors Vs. Dewan Singh & Ors | acquire a right to succeed to the collateral of the adoptive father, and in Indar Singh v. Mt. Gurdevi, AIR 1930 Lah 897 (Amritsar Jats), it was held that he was not a lineal descendant of the adoptive father within the meaning of S. 59 of the Punjab Tenancy Act. XVI of 1887. Conversely, the appointed heir retains the right of collateral succession in his natural family. See Jagat Singh v. Ishar Singh, ILR 11 Lah 615: (AIR 1930 Lah 700 (2) (Amritsar Jats). On the other hand, according to the custom of Jats in the Amritsar District, in a case of a formal adoption effecting a complete transplantation of the adopted son in the adoptive fathers family, the adopted son is entitled to inherit collaterally in the adoptive fathers family. See Teju v. Kesar Singh, AIR 1954 Punj 30, affirming the decision of Kapur, J. in Teja Singh v. Kesar Singh, AIR 1951 Punj 117.9. We thus find that under the customary law of Jats in Amritsar District, where the customary adoption is formal and the adopted son is completely transplanted in the family of his adoptive father, he is entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with the Riwaj-i-am of the Amritsar District, is supported by judicial decisions, and is not in conflict with Art. 49 of Rattigans Digest. On the other hand, if the customary adoption amounts to a mere appointment of an heir, the appointment heir is not entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with Art. 49 of Rattigans Digest and the judicial decisions, and is consistent with the Riwaj-i-ams properly interpreted in the light of the decided cases.10. In AIR 1951 Punj 117, it was said that the ordinary rule in Amritsar District is that the adoption is complete. In other cases, it was said that ordinarily such an adoption is by way of a customary appointment of an heir.The true rule appears to be that it is a question of fact in each case whether the adoption by a Jat in the Amritsar District is formal or informal. The adoption is formal if the parties manifest a clear intention that there should be a complete change of the family of the adopted son, so that he ceases to be a member of his natural family and loses his right of collateral succession in that family and at the same time becomes a member of the adoptive fathers family and acquires a right of collateral succession in the family. The loss of the right of collateral succession in the natural family is strong evidence to show that the adoption is formal and effects a complete change in the family. On the other hand, retention of the right of collateral succession in his natural family indicates that the adoption was informal by way of customary appointment of an heir.11. The onus is upon the plaintiffs-respondents to prove that the adoption of Kala Singh was formal and effected a complete change in his family. ON the death of the adoptive father Megh Singh, Kala Singh inherited the properties of Megh Singh, and on the death of Kala Singh, his sons, Gian Singh and Dewan Singh, inherited those properties. But these successions are consistent with the informal appointment of Kala Singh as an heir to Megh Singh. According to custom, the appointed heir succeeds to the properties left by the adoptive father, and on the death of the appointed heir, his male issue succeed, see Rattigans Digest of Customary Law,13th Edn., Arts. 52 and 54, pp. 572-573. The succession of Kala Singh as the reversionary heir of one Mst. Bhagan is cited as an illustration of collateral succession of the adopted son in his adoptive fathers family in the list of mutations given in Sch. I of the Riwaj-i-am of 1940 (Exhibit P.C./1). But the oral testimony on the record of this case discloses that Mst. Bhagan, who was the widow of a predeceased son of Megh Singh, was given some land by Megh Singh for her maintenance, and on her death, Kala Singh succeeded to this land. It will appear, therefore, that Mst. Bhagan got a lift estate in this land, and on her death, the land reverted to Kala Singh as the adopted son of Megh Singh. The succession of Kala Singh of this land is, therefore, not an instance of collateral succession of Kala Singh in his adoptive fathers family, and this was fairly conceded by learned counsel for the respondents. Considering all the circumstances of the case, the trial Court and the first Appellate Court concurrently found that the adoption of Kala Singh was by way of customary appointment of an heir to Megh Singh. On second appeal, the High Court did not interfere with this finding. The finding is amply supported by the materials on the record. It appears that after his adoption Kala Singh succeeded to the lands left by on Makhan, his natural brother and by one Hira Singh, his collateral in his natural family. These collateral successions in the natural family strongly indicate that the adoption of Kala Singh did not effect a change in his family. The adoption of Kala Singh was no more than a mere appointment of an heir and by the custom of the Jats in the District of Amritsar he was not entitled to succeed collaterally in his adoptive fathers family. For this reason, the suit out of which this appeal arises, must be dismissed.12. The District Judge, relying on 61 Pun Re 1894, held that as Kala Singh was not an agnate of his adoptive father, he was not entitled to succeed collaterally in his adoptive fathers, even assuming that his adoption was valid. This aspect of the matter was not considered by the High Court at all. In view of our conclusions on other points, we do not express any opinion on this point. | 1[ds]3. In agreement with the High Court we hold that it is not open to the defendants to contend that the adoption of Kala Singh by Megh Singh was invalid. In the written statement, the defendants did not allege that Megh Singh had no power to adopt Kala Singh, as Kala Singh was the daughters son of Megh Singh. As the validity of the adoption was not in issue, the parties had no opportunity to lead any evidence on the question whether by the special custom of the parties Megh Singh could lawfully adopt his daughters son.We thus find that under the customary law of Jats in Amritsar District, where the customary adoption is formal and the adopted son is completely transplanted in the family of his adoptive father, he is entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with the Riwaj-i-am of the Amritsar District, is supported by judicial decisions, and is not in conflict with Art. 49 of Rattigans Digest. On the other hand, if the customary adoption amounts to a mere appointment of an heir, the appointment heir is not entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with Art. 49 of Rattigans Digest and the judicial decisions, and is consistent with the Riwaj-i-ams properly interpreted in the light of the decided cases.10. In AIR 1951 Punj 117, it was said that the ordinary rule in Amritsar District is that the adoption is complete. In other cases, it was said that ordinarily such an adoption is by way of a customary appointment of an heir.The true rule appears to be that it is a question of fact in each case whether the adoption by a Jat in the Amritsar District is formal or informal. The adoption is formal if the parties manifest a clear intention that there should be a complete change of the family of the adopted son, so that he ceases to be a member of his natural family and loses his right of collateral succession in that family and at the same time becomes a member of the adoptive fathers family and acquires a right of collateral succession in the family. The loss of the right of collateral succession in the natural family is strong evidence to show that the adoption is formal and effects a complete change in the family. On the other hand, retention of the right of collateral succession in his natural family indicates that the adoption was informal by way of customary appointment of an heir.11. The onus is upon the plaintiffs-respondents to prove that the adoption of Kala Singh was formal and effected a complete change in his family. ON the death of the adoptive father Megh Singh, Kala Singh inherited the properties of Megh Singh, and on the death of Kala Singh, his sons, Gian Singh and Dewan Singh, inherited those properties. But these successions are consistent with the informal appointment of Kala Singh as an heir to Megh Singh. According to custom, the appointed heir succeeds to the properties left by the adoptive father, and on the death of the appointed heir, his male issue succeed, see Rattigans Digest of Customary Law,13th Edn., Arts. 52 and 54, pp. 572-573. The succession of Kala Singh as the reversionary heir of one Mst. Bhagan is cited as an illustration of collateral succession of the adopted son in his adoptive fathers family in the list of mutations given in Sch. I of the Riwaj-i-am of 1940 (Exhibit P.C./1). But the oral testimony on the record of this case discloses that Mst. Bhagan, who was the widow of a predeceased son of Megh Singh, was given some land by Megh Singh for her maintenance, and on her death, Kala Singh succeeded to this land. It will appear, therefore, that Mst. Bhagan got a lift estate in this land, and on her death, the land reverted to Kala Singh as the adopted son of Megh Singh. The succession of Kala Singh of this land is, therefore, not an instance of collateral succession of Kala Singh in his adoptive fathers family, and this was fairly conceded by learned counsel for the respondents. Considering all the circumstances of the case, the trial Court and the first Appellate Court concurrently found that the adoption of Kala Singh was by way of customary appointment of an heir to Megh Singh. On second appeal, the High Court did not interfere with this finding. The finding is amply supported by the materials on the record. It appears that after his adoption Kala Singh succeeded to the lands left by on Makhan, his natural brother and by one Hira Singh, his collateral in his natural family. These collateral successions in the natural family strongly indicate that the adoption of Kala Singh did not effect a change in his family. The adoption of Kala Singh was no more than a mere appointment of an heir and by the custom of the Jats in the District of Amritsar he was not entitled to succeed collaterally in his adoptive fathers family. For this reason, the suit out of which this appeal arises, must be dismissed.12. The District Judge, relying on 61 Pun Re 1894, held that as Kala Singh was not an agnate of his adoptive father, he was not entitled to succeed collaterally in his adoptive fathers, even assuming that his adoption was valid. This aspect of the matter was not considered by the High Court at all. In view of our conclusions on other points, we do not express any opinion on this point.The relevant judicial decisions may be briefly noticed. In Jowala Singh v. Mt. Lachmi, 14 Pun Re 1884 (Gil Jats of Tahsil Ajnala, Amritsar), Mangal Singh v. Tilok Singh, 61 Pun Re 1894 (Sohel Jats of Tahsil Anjala, Amritsar), (Chitu v. Jawand Singh, 107 Pun Re 1913 (Sikh Jats of Tahsil Tarn Taran, Amritsar), it was held that an heir appointed under the customary law of Jats in the District of Amritsar does not acquire a right to succeed to the collateral of the adoptive father, and in Indar Singh v. Mt. Gurdevi, AIR 1930 Lah 897 (Amritsar Jats), it was held that he was not a lineal descendant of the adoptive father within the meaning of S. 59 of the Punjab Tenancy Act. XVI of 1887. Conversely, the appointed heir retains the right of collateral succession in his natural family. See Jagat Singh v. Ishar Singh, ILR 11 Lah 615: (AIR 1930 Lah 700 (2) (Amritsar Jats). On the other hand, according to the custom of Jats in the Amritsar District, in a case of a formal adoption effecting a complete transplantation of the adopted son in the adoptive fathers family, the adopted son is entitled to inherit collaterally in the adoptive fathers family. See Teju v. Kesar Singh, AIR 1954 Punj 30, affirming the decision of Kapur, J. in Teja Singh v. Kesar Singh, AIR 1951 Punj 117. | 1 | 2,805 | 1,304 | ### Instruction:
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acquire a right to succeed to the collateral of the adoptive father, and in Indar Singh v. Mt. Gurdevi, AIR 1930 Lah 897 (Amritsar Jats), it was held that he was not a lineal descendant of the adoptive father within the meaning of S. 59 of the Punjab Tenancy Act. XVI of 1887. Conversely, the appointed heir retains the right of collateral succession in his natural family. See Jagat Singh v. Ishar Singh, ILR 11 Lah 615: (AIR 1930 Lah 700 (2) (Amritsar Jats). On the other hand, according to the custom of Jats in the Amritsar District, in a case of a formal adoption effecting a complete transplantation of the adopted son in the adoptive fathers family, the adopted son is entitled to inherit collaterally in the adoptive fathers family. See Teju v. Kesar Singh, AIR 1954 Punj 30, affirming the decision of Kapur, J. in Teja Singh v. Kesar Singh, AIR 1951 Punj 117.9. We thus find that under the customary law of Jats in Amritsar District, where the customary adoption is formal and the adopted son is completely transplanted in the family of his adoptive father, he is entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with the Riwaj-i-am of the Amritsar District, is supported by judicial decisions, and is not in conflict with Art. 49 of Rattigans Digest. On the other hand, if the customary adoption amounts to a mere appointment of an heir, the appointment heir is not entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with Art. 49 of Rattigans Digest and the judicial decisions, and is consistent with the Riwaj-i-ams properly interpreted in the light of the decided cases.10. In AIR 1951 Punj 117, it was said that the ordinary rule in Amritsar District is that the adoption is complete. In other cases, it was said that ordinarily such an adoption is by way of a customary appointment of an heir.The true rule appears to be that it is a question of fact in each case whether the adoption by a Jat in the Amritsar District is formal or informal. The adoption is formal if the parties manifest a clear intention that there should be a complete change of the family of the adopted son, so that he ceases to be a member of his natural family and loses his right of collateral succession in that family and at the same time becomes a member of the adoptive fathers family and acquires a right of collateral succession in the family. The loss of the right of collateral succession in the natural family is strong evidence to show that the adoption is formal and effects a complete change in the family. On the other hand, retention of the right of collateral succession in his natural family indicates that the adoption was informal by way of customary appointment of an heir.11. The onus is upon the plaintiffs-respondents to prove that the adoption of Kala Singh was formal and effected a complete change in his family. ON the death of the adoptive father Megh Singh, Kala Singh inherited the properties of Megh Singh, and on the death of Kala Singh, his sons, Gian Singh and Dewan Singh, inherited those properties. But these successions are consistent with the informal appointment of Kala Singh as an heir to Megh Singh. According to custom, the appointed heir succeeds to the properties left by the adoptive father, and on the death of the appointed heir, his male issue succeed, see Rattigans Digest of Customary Law,13th Edn., Arts. 52 and 54, pp. 572-573. The succession of Kala Singh as the reversionary heir of one Mst. Bhagan is cited as an illustration of collateral succession of the adopted son in his adoptive fathers family in the list of mutations given in Sch. I of the Riwaj-i-am of 1940 (Exhibit P.C./1). But the oral testimony on the record of this case discloses that Mst. Bhagan, who was the widow of a predeceased son of Megh Singh, was given some land by Megh Singh for her maintenance, and on her death, Kala Singh succeeded to this land. It will appear, therefore, that Mst. Bhagan got a lift estate in this land, and on her death, the land reverted to Kala Singh as the adopted son of Megh Singh. The succession of Kala Singh of this land is, therefore, not an instance of collateral succession of Kala Singh in his adoptive fathers family, and this was fairly conceded by learned counsel for the respondents. Considering all the circumstances of the case, the trial Court and the first Appellate Court concurrently found that the adoption of Kala Singh was by way of customary appointment of an heir to Megh Singh. On second appeal, the High Court did not interfere with this finding. The finding is amply supported by the materials on the record. It appears that after his adoption Kala Singh succeeded to the lands left by on Makhan, his natural brother and by one Hira Singh, his collateral in his natural family. These collateral successions in the natural family strongly indicate that the adoption of Kala Singh did not effect a change in his family. The adoption of Kala Singh was no more than a mere appointment of an heir and by the custom of the Jats in the District of Amritsar he was not entitled to succeed collaterally in his adoptive fathers family. For this reason, the suit out of which this appeal arises, must be dismissed.12. The District Judge, relying on 61 Pun Re 1894, held that as Kala Singh was not an agnate of his adoptive father, he was not entitled to succeed collaterally in his adoptive fathers, even assuming that his adoption was valid. This aspect of the matter was not considered by the High Court at all. In view of our conclusions on other points, we do not express any opinion on this point.
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Digest. On the other hand, if the customary adoption amounts to a mere appointment of an heir, the appointment heir is not entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with Art. 49 of Rattigans Digest and the judicial decisions, and is consistent with the Riwaj-i-ams properly interpreted in the light of the decided cases.10. In AIR 1951 Punj 117, it was said that the ordinary rule in Amritsar District is that the adoption is complete. In other cases, it was said that ordinarily such an adoption is by way of a customary appointment of an heir.The true rule appears to be that it is a question of fact in each case whether the adoption by a Jat in the Amritsar District is formal or informal. The adoption is formal if the parties manifest a clear intention that there should be a complete change of the family of the adopted son, so that he ceases to be a member of his natural family and loses his right of collateral succession in that family and at the same time becomes a member of the adoptive fathers family and acquires a right of collateral succession in the family. The loss of the right of collateral succession in the natural family is strong evidence to show that the adoption is formal and effects a complete change in the family. On the other hand, retention of the right of collateral succession in his natural family indicates that the adoption was informal by way of customary appointment of an heir.11. The onus is upon the plaintiffs-respondents to prove that the adoption of Kala Singh was formal and effected a complete change in his family. ON the death of the adoptive father Megh Singh, Kala Singh inherited the properties of Megh Singh, and on the death of Kala Singh, his sons, Gian Singh and Dewan Singh, inherited those properties. But these successions are consistent with the informal appointment of Kala Singh as an heir to Megh Singh. According to custom, the appointed heir succeeds to the properties left by the adoptive father, and on the death of the appointed heir, his male issue succeed, see Rattigans Digest of Customary Law,13th Edn., Arts. 52 and 54, pp. 572-573. The succession of Kala Singh as the reversionary heir of one Mst. Bhagan is cited as an illustration of collateral succession of the adopted son in his adoptive fathers family in the list of mutations given in Sch. I of the Riwaj-i-am of 1940 (Exhibit P.C./1). But the oral testimony on the record of this case discloses that Mst. Bhagan, who was the widow of a predeceased son of Megh Singh, was given some land by Megh Singh for her maintenance, and on her death, Kala Singh succeeded to this land. It will appear, therefore, that Mst. Bhagan got a lift estate in this land, and on her death, the land reverted to Kala Singh as the adopted son of Megh Singh. The succession of Kala Singh of this land is, therefore, not an instance of collateral succession of Kala Singh in his adoptive fathers family, and this was fairly conceded by learned counsel for the respondents. Considering all the circumstances of the case, the trial Court and the first Appellate Court concurrently found that the adoption of Kala Singh was by way of customary appointment of an heir to Megh Singh. On second appeal, the High Court did not interfere with this finding. The finding is amply supported by the materials on the record. It appears that after his adoption Kala Singh succeeded to the lands left by on Makhan, his natural brother and by one Hira Singh, his collateral in his natural family. These collateral successions in the natural family strongly indicate that the adoption of Kala Singh did not effect a change in his family. The adoption of Kala Singh was no more than a mere appointment of an heir and by the custom of the Jats in the District of Amritsar he was not entitled to succeed collaterally in his adoptive fathers family. For this reason, the suit out of which this appeal arises, must be dismissed.12. The District Judge, relying on 61 Pun Re 1894, held that as Kala Singh was not an agnate of his adoptive father, he was not entitled to succeed collaterally in his adoptive fathers, even assuming that his adoption was valid. This aspect of the matter was not considered by the High Court at all. In view of our conclusions on other points, we do not express any opinion on this point.The relevant judicial decisions may be briefly noticed. In Jowala Singh v. Mt. Lachmi, 14 Pun Re 1884 (Gil Jats of Tahsil Ajnala, Amritsar), Mangal Singh v. Tilok Singh, 61 Pun Re 1894 (Sohel Jats of Tahsil Anjala, Amritsar), (Chitu v. Jawand Singh, 107 Pun Re 1913 (Sikh Jats of Tahsil Tarn Taran, Amritsar), it was held that an heir appointed under the customary law of Jats in the District of Amritsar does not acquire a right to succeed to the collateral of the adoptive father, and in Indar Singh v. Mt. Gurdevi, AIR 1930 Lah 897 (Amritsar Jats), it was held that he was not a lineal descendant of the adoptive father within the meaning of S. 59 of the Punjab Tenancy Act. XVI of 1887. Conversely, the appointed heir retains the right of collateral succession in his natural family. See Jagat Singh v. Ishar Singh, ILR 11 Lah 615: (AIR 1930 Lah 700 (2) (Amritsar Jats). On the other hand, according to the custom of Jats in the Amritsar District, in a case of a formal adoption effecting a complete transplantation of the adopted son in the adoptive fathers family, the adopted son is entitled to inherit collaterally in the adoptive fathers family. See Teju v. Kesar Singh, AIR 1954 Punj 30, affirming the decision of Kapur, J. in Teja Singh v. Kesar Singh, AIR 1951 Punj 117.
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Ganga Ramchand Bharvani Vs. Under Secretary To The Government Of Maharashtra & Ors | or reproduction of a ground of satisfaction of the authority in the language of Section 3; nor is its connotation restricted to a bare statement of conclusion of fact. "Nothing less than a ll the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu". This is the ratio of the decision in Khudiram Das v. The State of West Bengal &Ors., to which one of us (Sarkaria, J.) was a party. This principle was enunciated after an exhaustive survey of the authorities by Bhagwati, J. who delivered the opinion of the Court. It is, therefore, not necessary to burden this judgment by noticing all the other decisions which were examined in that case. The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. In the instant case, the grounds contain only the substance of the statements, while the detenu had asked for copies of the full text of those statements. It is submitted by the learned counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds of detention, the detenus could not make an effective representation and there is disobedience of the second constitutional imperative pointed out in Khudirams case. There is merit in this submission. 18. The second reason for non-supply of the copies given by Shri Salvi, it may be recalled, is that the Collector had said that the supply of t he copies at that stage would be detrimental to the investigation and public interest. This "so-called" reason also was unsustainable in law. Shri Salvi does not appear to have applied his mind to the question whether or not the supply of these copies would be injurious to public interest. He appears to have mechanically endorsed what had been written to him by the Collector in his letter, dated February 27, 1980. The detenu had asked for copies of three kinds of documents: (a) His own statements which according to the grounds of detention, were in consistent and contradictory to each other, (b) Copies of the statements of his father, who is the detenu in Writ Petition No. 435/80. These statements. also, according to the grounds of detention, were mutually inconsistent. (c) The full texts of the statements made by the four persons, whose names, particulars and substance of their statements were mentioned in the grounds of detention. 19. As regards the first two categories of statements the substance of which was already in the knowledge of the deponents, no question of their disclosure being harmful to the public interest could arise. Nor could the supply of the full text of those statements, by any stretch of imagination, be said to be such that it might endanger the lives of the deponents. Regarding category (c), the substance of the statements of the four persons mentioned in the grounds of detention had already been disclosed to the detenus. It was therefore, not reasonably possible to say that the disclosure of the full texts of their statements would endanger their safety or harm public interest. In the copies of the statements of those persons which was ultimately supplied to the detenus after undue delay on the direction of the Central Government, there is a reference to the earlier statements of these four persons in which they had, on the basis of some account books and documents, supported the contention of the detenus that the latter had acquired the gems in question from those persons. The statements supplied to the detenus are their subsequent statements in which they have completely resiled from their earlier statements. It is obvious that the supply of the earlier statements which were entirely in favour of the detenus and the full texts of which have been with held, could not, by any reckoning, expose those persons to any alarm or danger at the hands of the agents or partisans of the detenus. 20. Be that as it may, if any part of the statements of those witnesses had to be withheld in public interest, the appropriate authority could, after due application of its own mind, make an order under clause (6) of Article 22 of the Constitution withholding the supply of those portions of statements after satisfying itself that their disclosure would be against the public interest. In the instant case, the detaining authority, without applying its mind to the nature of the documents, the copies of which were asked for by the detenus, mechanically refused as desired by the Collector, to supply the copies of all the documents. Indeed, it was on receiving a direction from the Central Government that the copies w ere supplied. On account of this chill indifference and arbitrary refusal, the detenu, who had applied for copies on February 18, 1980, could get the same only on March 27, 1980, i.e., after more than one month. Thus, there was unreasonable delay of more than a month in supplying the copies to the detenus, of the material that had been relied upon or referred to in the "grounds" of detention. There was thus an infraction of the constitutional imperative that in addition to the supply of the ground s of detention, all the basic material relied upon or referred to in those "grounds" must be supplied to the detenu with reasonable expedition to enable him to make a full and effective representation at the earliest. Of course, what is "reasonable expedition" is a question of fact depending upon the circumstances of the particular case. In the peculiar facts of the instant case, we are of opinion that the delay of more than a month, in supplying the copies of the basic material s and documents to the detenus has vitiated the detention. 21. | 1[ds]Similarly, it is clear from the police records that the representation, dated March 24, 1980, of the detenus was considered by the Adviser to t he Governor of Maharashtra, the State then being under Presidents rule. The Adviser was competent under the Rules of Business framed under Article 166 to deal with and reject such representation. We therefore, do not find any force in Contention (5), eitherThe request for copies was made by the detenus on February 18, 1980. After a delay of more than three weeks , this request was rejected by the State Government and that rejection was communicated to the detenu, by letter dated March 14, 1980. This letter was received by the detenu only on March 25, 1980. This delay in transit, also, was unusual and inordinate. On March 27, 1980, the Central Government advised the State Government to supply the copies. Thereupon, it seems, that within three days the copies were put in a course of communication to the detenus by the State Government under their covering letter, dated March 31, 1980, and were actually received by the detenus on April 3, 1980. The very fact that soon after the directions of the Central Government copies were ready and despatched to the detenus within three days thereof, shows that there was no physical difficulty in preparing and supplying the copies to the detenus, with due promptitudeIt is well settled that "the constitutional imperatives enacted in Article 22(5) of the Constitution are two-fold:(i) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order has been made; and(ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order.In the context, grounds does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3; nor is its connotation restricted to a bare statement of conclusion of fact. "Nothing less than a ll the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu". This is the ratio of the decision in Khudiram Das v. The State of West Bengal &Ors., to which one of us (Sarkaria, J.) was a party. This principle was enunciated after an exhaustive survey of the authorities by Bhagwati, J. who delivered the opinion of the Court. It is, therefore, not necessary to burden this judgment by noticing all the other decisions which were examined in that case. The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. In the instant case, the grounds contain only the substance of the statements, while the detenu had asked for copies of the full text of those statements. It is submitted by the learned counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds of detention, the detenus could not make an effective representation and there is disobedience of the second constitutional imperative pointed out in Khudirams case. There is merit in thise second reason for non-supply of the copies given by Shri Salvi, it may be recalled, is that the Collector had said that the supply of t he copies at that stage would be detrimental to the investigation and public interest. This "so-called" reason also was unsustainable in law. Shri Salvi does not appear to have applied his mind to the question whether or not the supply of these copies would be injurious to public interest. He appears to have mechanically endorsed what had been written to him by the Collector in his letter, dated February 27, 1980. The detenu had asked for copies of three kinds of documents: (a) His own statements which according to the grounds of detention, were in consistent and contradictory to each other, (b) Copies of the statements of his father, who is the detenu in Writ Petition No. 435/80. These statements. also, according to the grounds of detention, were mutually inconsistent. (c) The full texts of the statements made by the four persons, whose names, particulars and substance of their statements were mentioned in the grounds of detentionAs regards the first two categories of statements the substance of which was already in the knowledge of the deponents, no question of their disclosure being harmful to the public interest could arise. Nor could the supply of the full text of those statements, by any stretch of imagination, be said to be such that it might endanger the lives of the deponents. Regarding category (c), the substance of the statements of the four persons mentioned in the grounds of detention had already been disclosed to the detenus. It was therefore, not reasonably possible to say that the disclosure of the full texts of their statements would endanger their safety or harm public interest. In the copies of the statements of those persons which was ultimately supplied to the detenus after undue delay on the direction of the Central Government, there is a reference to the earlier statements of these four persons in which they had, on the basis of some account books and documents, supported the contention of the detenus that the latter had acquired the gems in question from those persons. The statements supplied to the detenus are their subsequent statements in which they have completely resiled from their earlier statements. It is obvious that the supply of the earlier statements which were entirely in favour of the detenus and the full texts of which have been with held, could not, by any reckoning, expose those persons to any alarm or danger at the hands of the agents or partisans of thee that as it may, if any part of the statements of those witnesses had to be withheld in public interest, the appropriate authority could, after due application of its own mind, make an order under clause (6) of Article 22 of the Constitution withholding the supply of those portions of statements after satisfying itself that their disclosure would be against the public interest. In the instant case, the detaining authority, without applying its mind to the nature of the documents, the copies of which were asked for by the detenus, mechanically refused as desired by the Collector, to supply the copies of all the documents. Indeed, it was on receiving a direction from the Central Government that the copies w ere supplied. On account of this chill indifference and arbitrary refusal, the detenu, who had applied for copies on February 18, 1980, could get the same only on March 27, 1980, i.e., after more than one month. Thus, there was unreasonable delay of more than a month in supplying the copies to the detenus, of the material that had been relied upon or referred to in the "grounds" of detention. There was thus an infraction of the constitutional imperative that in addition to the supply of the ground s of detention, all the basic material relied upon or referred to in those "grounds" must be supplied to the detenu with reasonable expedition to enable him to make a full and effective representation at the earliest. Of course, what is "reasonable expedition" is a question of fact depending upon the circumstances of the particular case. In the peculiar facts of the instant case, we are of opinion that the delay of more than a month, in supplying the copies of the basic material s and documents to the detenus has vitiated the detention. | 1 | 3,560 | 1,461 | ### 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:
or reproduction of a ground of satisfaction of the authority in the language of Section 3; nor is its connotation restricted to a bare statement of conclusion of fact. "Nothing less than a ll the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu". This is the ratio of the decision in Khudiram Das v. The State of West Bengal &Ors., to which one of us (Sarkaria, J.) was a party. This principle was enunciated after an exhaustive survey of the authorities by Bhagwati, J. who delivered the opinion of the Court. It is, therefore, not necessary to burden this judgment by noticing all the other decisions which were examined in that case. The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. In the instant case, the grounds contain only the substance of the statements, while the detenu had asked for copies of the full text of those statements. It is submitted by the learned counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds of detention, the detenus could not make an effective representation and there is disobedience of the second constitutional imperative pointed out in Khudirams case. There is merit in this submission. 18. The second reason for non-supply of the copies given by Shri Salvi, it may be recalled, is that the Collector had said that the supply of t he copies at that stage would be detrimental to the investigation and public interest. This "so-called" reason also was unsustainable in law. Shri Salvi does not appear to have applied his mind to the question whether or not the supply of these copies would be injurious to public interest. He appears to have mechanically endorsed what had been written to him by the Collector in his letter, dated February 27, 1980. The detenu had asked for copies of three kinds of documents: (a) His own statements which according to the grounds of detention, were in consistent and contradictory to each other, (b) Copies of the statements of his father, who is the detenu in Writ Petition No. 435/80. These statements. also, according to the grounds of detention, were mutually inconsistent. (c) The full texts of the statements made by the four persons, whose names, particulars and substance of their statements were mentioned in the grounds of detention. 19. As regards the first two categories of statements the substance of which was already in the knowledge of the deponents, no question of their disclosure being harmful to the public interest could arise. Nor could the supply of the full text of those statements, by any stretch of imagination, be said to be such that it might endanger the lives of the deponents. Regarding category (c), the substance of the statements of the four persons mentioned in the grounds of detention had already been disclosed to the detenus. It was therefore, not reasonably possible to say that the disclosure of the full texts of their statements would endanger their safety or harm public interest. In the copies of the statements of those persons which was ultimately supplied to the detenus after undue delay on the direction of the Central Government, there is a reference to the earlier statements of these four persons in which they had, on the basis of some account books and documents, supported the contention of the detenus that the latter had acquired the gems in question from those persons. The statements supplied to the detenus are their subsequent statements in which they have completely resiled from their earlier statements. It is obvious that the supply of the earlier statements which were entirely in favour of the detenus and the full texts of which have been with held, could not, by any reckoning, expose those persons to any alarm or danger at the hands of the agents or partisans of the detenus. 20. Be that as it may, if any part of the statements of those witnesses had to be withheld in public interest, the appropriate authority could, after due application of its own mind, make an order under clause (6) of Article 22 of the Constitution withholding the supply of those portions of statements after satisfying itself that their disclosure would be against the public interest. In the instant case, the detaining authority, without applying its mind to the nature of the documents, the copies of which were asked for by the detenus, mechanically refused as desired by the Collector, to supply the copies of all the documents. Indeed, it was on receiving a direction from the Central Government that the copies w ere supplied. On account of this chill indifference and arbitrary refusal, the detenu, who had applied for copies on February 18, 1980, could get the same only on March 27, 1980, i.e., after more than one month. Thus, there was unreasonable delay of more than a month in supplying the copies to the detenus, of the material that had been relied upon or referred to in the "grounds" of detention. There was thus an infraction of the constitutional imperative that in addition to the supply of the ground s of detention, all the basic material relied upon or referred to in those "grounds" must be supplied to the detenu with reasonable expedition to enable him to make a full and effective representation at the earliest. Of course, what is "reasonable expedition" is a question of fact depending upon the circumstances of the particular case. In the peculiar facts of the instant case, we are of opinion that the delay of more than a month, in supplying the copies of the basic material s and documents to the detenus has vitiated the detention. 21.
### Response:
1
### Explanation:
the context, grounds does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3; nor is its connotation restricted to a bare statement of conclusion of fact. "Nothing less than a ll the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu". This is the ratio of the decision in Khudiram Das v. The State of West Bengal &Ors., to which one of us (Sarkaria, J.) was a party. This principle was enunciated after an exhaustive survey of the authorities by Bhagwati, J. who delivered the opinion of the Court. It is, therefore, not necessary to burden this judgment by noticing all the other decisions which were examined in that case. The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. In the instant case, the grounds contain only the substance of the statements, while the detenu had asked for copies of the full text of those statements. It is submitted by the learned counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds of detention, the detenus could not make an effective representation and there is disobedience of the second constitutional imperative pointed out in Khudirams case. There is merit in thise second reason for non-supply of the copies given by Shri Salvi, it may be recalled, is that the Collector had said that the supply of t he copies at that stage would be detrimental to the investigation and public interest. This "so-called" reason also was unsustainable in law. Shri Salvi does not appear to have applied his mind to the question whether or not the supply of these copies would be injurious to public interest. He appears to have mechanically endorsed what had been written to him by the Collector in his letter, dated February 27, 1980. The detenu had asked for copies of three kinds of documents: (a) His own statements which according to the grounds of detention, were in consistent and contradictory to each other, (b) Copies of the statements of his father, who is the detenu in Writ Petition No. 435/80. These statements. also, according to the grounds of detention, were mutually inconsistent. (c) The full texts of the statements made by the four persons, whose names, particulars and substance of their statements were mentioned in the grounds of detentionAs regards the first two categories of statements the substance of which was already in the knowledge of the deponents, no question of their disclosure being harmful to the public interest could arise. Nor could the supply of the full text of those statements, by any stretch of imagination, be said to be such that it might endanger the lives of the deponents. Regarding category (c), the substance of the statements of the four persons mentioned in the grounds of detention had already been disclosed to the detenus. It was therefore, not reasonably possible to say that the disclosure of the full texts of their statements would endanger their safety or harm public interest. In the copies of the statements of those persons which was ultimately supplied to the detenus after undue delay on the direction of the Central Government, there is a reference to the earlier statements of these four persons in which they had, on the basis of some account books and documents, supported the contention of the detenus that the latter had acquired the gems in question from those persons. The statements supplied to the detenus are their subsequent statements in which they have completely resiled from their earlier statements. It is obvious that the supply of the earlier statements which were entirely in favour of the detenus and the full texts of which have been with held, could not, by any reckoning, expose those persons to any alarm or danger at the hands of the agents or partisans of thee that as it may, if any part of the statements of those witnesses had to be withheld in public interest, the appropriate authority could, after due application of its own mind, make an order under clause (6) of Article 22 of the Constitution withholding the supply of those portions of statements after satisfying itself that their disclosure would be against the public interest. In the instant case, the detaining authority, without applying its mind to the nature of the documents, the copies of which were asked for by the detenus, mechanically refused as desired by the Collector, to supply the copies of all the documents. Indeed, it was on receiving a direction from the Central Government that the copies w ere supplied. On account of this chill indifference and arbitrary refusal, the detenu, who had applied for copies on February 18, 1980, could get the same only on March 27, 1980, i.e., after more than one month. Thus, there was unreasonable delay of more than a month in supplying the copies to the detenus, of the material that had been relied upon or referred to in the "grounds" of detention. There was thus an infraction of the constitutional imperative that in addition to the supply of the ground s of detention, all the basic material relied upon or referred to in those "grounds" must be supplied to the detenu with reasonable expedition to enable him to make a full and effective representation at the earliest. Of course, what is "reasonable expedition" is a question of fact depending upon the circumstances of the particular case. In the peculiar facts of the instant case, we are of opinion that the delay of more than a month, in supplying the copies of the basic material s and documents to the detenus has vitiated the detention.
|
U.P. State Sugar Corporation and Anr Vs. Mahalchand M. Kothari and Ors | representative of the property placed in his hands as such. In determining his liability the court will only determine the liability of the property. It is not material whether the liability existed before or has accrued since his appointment. A contractual liability arising against the receiver during the course of management of the property for acts or omissions committed by him for the benefit of the property, is not merely enforceable against the receiver but is a liability attached to the property in his receivership, which can be recovered from the property and through the person in whom the property vests. [See Statement of law in Words and Phrases, Permanent Edition Vol.36 at page 742 from the Heading - Representative of property]33. As is the admitted position, on the coming into force of the Ordinance, the Sugar Mill stood transferred to and vested in the Corporation on the appointed date 3.7.1971. On that date, the Receiver appointed by the Collector under the provisions of 1950 Act was already holding custody of the Sugar Mill and was managing the same. During course of the Writ Petition filed by the owner of the Sugar Mill in which the constitutional validity of the ordinance/Act was challenged, a stay order, on the limited terms and conditions, was passed on 9.7.1971. the terms and conditions of the order reproduced above, restored the de jure possession of the Sugar Mill to the erstwhile owner but de facto possession and management of the Sugar Mill was allowed to remain undisturbed with the receiver although with limited powers to him. The Receiver was specifically allowed in accordance with term No.3 of the stay order to sell sugar, molasses and other waste products. By virtue of the order of stay passed by the High Court, during pendency of the writ petition, the Receiver appointed under the Act of 1950, continued to manage the Sugar Mill subject to the ultimate result of the writ petition. The Writ Petition ultimately came to be dismissed on 3.5.1979 and the stay order containing the terms and conditions (quoted above) passed on 9.7.1971 stood automatically vacated. The natural consequence was restoration of full operation of the provisions of the ordinance/Act as was originally passed. In accordance with Section 3 of the Act, the Sugar Mill stood transferred and vested in the Corporation from the appointed date 3.7.1971. On vacation of the stay order with effect from the appointed day-3.7.1971, the operation of the Ordinance/Act was revived. The liability arising from breach of contract committed by the Receiver was not of the Corporation. It was on obligation attached to the property of the Sugar Mill which was under the management of the Receiver, initially under the 1950 Act and continued under the order of stay passed by the High Court. Since the liability towards breach of contract was attached to the sugar mill under the management of the Receiver, the Corporation in whom title of the sugar mill stands vested under Section 3 of the Act cannot avoid the liability - it being a burden on the said property and recoverable from it.34. It is of no importance or consequence that actual or de facto possession of the property was received by the Corporation under a formal order of Collector, Deoria on 23.5.1979, only after dismissal of the Writ Petition on 3.5.1979 and consequent discharge of the Receiver.35. The Ordinance was stayed by the High Court to restore status quo ante existing on 2.7.1971 that is a day prior to appointed date 3.7.1971. But on the dismissal of writ petition and automatic vacation of the stay order of the High Court, the operation of the Ordinance/Act with all legal consequences flowing from the said law stood restored from the appointed date. The trial court and the High Court are perfectly right in holding in their judgments that the order of stay passed in writ petition could have no effect of postponing the appointed day; statutorily fixed under section3 of the Ordinance/Act.36. The argument advanced on behalf of the corporation cannot be accepted that the Sugar Mill came to be transferred to the Corporation only when its actual possession was formally obtained from the Collector, Deoria on 23.5.1979 after dismissal of the writ petition.37. The legal status and position of a receiver appointed by the Court and a Receiver appointed under in a Statute are different. In the instant case, the receiver appointed under the Act of 1950 and continued by the High Court on terms and conditions contained in the stay order during pendency of the writ petition, was a statutory receiver and his rights and liabilities were attached to the property for the management of which he was appointed. The receiver was not an agent of either of the parties. For his acts and omissions, a third party could raise a claim against the party in whom the property stood vested and to which the liability was attached.38. The suits were filed by the plaintiff claiming losses and damages for breach of contract committed by the receiver within the prescribed period of limitation. On the date of filing of the suits, the receiver was not in possession of the Sugar Mill as the actual possession of the Sugar Mill had been restored to the Corporation. It was, therefore, not necessary for the plaintiff to implead the receiver as a party to the suits. The Receiver could not be made personally liable for his acts and omissions in the course of management of the Sugar Mill and which are not alleged to be mala fide.39. Our conclusion, therefore, is that as none of the parties i.e. the erstwhile owner or the Corporation is personally liable for the breach of contract committed by the receiver in the course of management of the Sugar Mill, the contractual liability of the receiver towards the plaintiff is recoverable from the property of the Sugar Mill, and therefore, through the Corporation in whom the property stands vested under the Act. | 0[ds]16. From the resume of the above facts gathered out from the photocopies of the proceedings of the writ petition, the fact which conclusively emerges is that the conditional interim stay granted on 9.7.1971 in the writ petition challenging constitutional validity of the Ordinance/Act stood vacated only on the final dismissal of the writ petition on 03.5.1979. As is sought to be projected on behalf of the respondent, the stay was not vacated on 29.7.1974. On that date, some other application dated 17.3.1974 (details of which are not clear from the proceedings of the writ petition) happened to be allowed. The further proceedings in the writ petition clearly go to show that the application for vacating stay remained pending on 22.5.1976 and 08.7.1976. It was never decided during pendency of the writ petition. The stay order stood vacated only when judgment was delivered on 03.5.1979 and the writ petition questioning the validity of the Ordinance/Act was dismissed.17. On these facts culled cut from the proceedings of the writ petition, it is clear that Receiver entered into alleged contract for Supply of agreed quantities of sugar to the plaintiff respondent on 2.2.1979 and 9.2.1979 when stay order dated 9-7-1971 passed in the writ petition was in operation.From the terms and conditions of the above quoted order of stay passed on 9-7-1971, what seems to us is that the operation of the impugned Ordinance/Act was partially stayed on specified conditions to regulate the power of the Receiver which was already managing the Sugar Mill under section 279(1)(g) read with section 286A of the Act of 1950. The legal effect of the order of stay (quoted above) was that the Receiver which was appointed under the Act of 1950, was to continue in management of the Mill on the conditions imposed by the High Court. From term no.3 in the stay order, it is clear that the Receiver had only power to carry on day-to-day business of the Sugar Mill and for that purpose, to sell sugar, molasses and waste products. The Receiver, when entered into the alleged contract in February, 1979 to supply sugar to the plaintiff respondent was acting as a statutory Receiver who was allowed with added conditions to continue in management of the Sugar Mill by the High Court in accordance with section 279(1)(g) and Section 286-A of the Act of 1950. Under the terms of the stay order, the status-quo as existing on 2.7.1971 i.e. a day before the appointed day was restored and the erstwhile owner was directed to be put back in possession of the Sugar Mill. The de jure possession of the Sugar Mill was thus restored to the erstwhile owner but de facto possession on terms and conditions contained in the order of stay was allowed to be retained by the Receiver with right to manage the Sugar Mill.From the aforesaid provisions of the Act of 1950 and the Ordinance/Act, it is clear that the Receiver who was in the management of the Sugar Mill on the appointed day was not a Receiver appointed by any Court. He was a Receiver appointed by the Collector under the Act of 1950 and on the vesting of the Sugar Mill on the appointed date 3.7.1971, was in possession and management of the Sugar Mill not as an agent either of the erstwhile Sugar Mill owner or the corporation. He was a statutory Receiver appointed under section 279(1)(g) read with section 286-A of the Act of 1950 for the purpose of recovery of dues of the cane-growers in the manner as arrears of land revenue. He was allowed to continue in management of the Sugar Mill by the High Court on the terms and conditions imposed in the order of stay passed during pendency of the writ petition.29. The liabilities incurred by a statutory Receiver in the course of management of the Sugar Mill are liabilities attached to assets or properties of the Sugar Mill because neither the erstwhile owner nor the Corporation, which later acquired the Sugar Mill, was responsible for the alleged losses or damages caused to the plaintiff by the alleged breach of contract committed by the receiver in non-supply of the quantity of sugar.30. The general rule is that a receiver takes the rights, causes, and remedies which were in the individual or estate whose receiver he is, or which were available to those whose interests he was appointed to represent. Ordinarily none of the parties to the suit in which a receiver was appointed is personally responsible for losses and liabilities incurred in the administration of the receivership, but, except as the receiver may be personally liable therefor, such losses and liabilities fall on the estate. [See statement of law in Corpus Juris Secundum Vol.75 Articles 325 & 187 at pages 833 and 1000, respectively]31. In the present suit, the Receiver has not been impleaded as a party-defendant and there is no claim against him for any misconduct committed by him in management of the Sugar Mill. He is not alleged to be personally liable for the alleged breach of contract. The liability, therefore, towards the alleged loss or damage arising from breach of contract attaches to the Sugar Mill and can be allowed to be realized from the person in whom the title of Sugar Mill stands vested.32. A statutory Receiver is merely the legal representative of the property placed in his hands as such. In determining his liability the court will only determine the liability of the property. It is not material whether the liability existed before or has accrued since his appointment. A contractual liability arising against the receiver during the course of management of the property for acts or omissions committed by him for the benefit of the property, is not merely enforceable against the receiver but is a liability attached to the property in his receivership, which can be recovered from the property and through the person in whom the property vests. [See Statement of law in Words and Phrases, Permanent Edition Vol.36 at page 742 from the Heading - Representative of property]33. As is the admitted position, on the coming into force of the Ordinance, the Sugar Mill stood transferred to and vested in the Corporation on the appointed date 3.7.1971. On that date, the Receiver appointed by the Collector under the provisions of 1950 Act was already holding custody of the Sugar Mill and was managing the same. During course of the Writ Petition filed by the owner of the Sugar Mill in which the constitutional validity of the ordinance/Act was challenged, a stay order, on the limited terms and conditions, was passed on 9.7.1971. the terms and conditions of the order reproduced above, restored the de jure possession of the Sugar Mill to the erstwhile owner but de facto possession and management of the Sugar Mill was allowed to remain undisturbed with the receiver although with limited powers to him. The Receiver was specifically allowed in accordance with term No.3 of the stay order to sell sugar, molasses and other waste products. By virtue of the order of stay passed by the High Court, during pendency of the writ petition, the Receiver appointed under the Act of 1950, continued to manage the Sugar Mill subject to the ultimate result of the writ petition. The Writ Petition ultimately came to be dismissed on 3.5.1979 and the stay order containing the terms and conditions (quoted above) passed on 9.7.1971 stood automatically vacated. The natural consequence was restoration of full operation of the provisions of the ordinance/Act as was originally passed. In accordance with Section 3 of the Act, the Sugar Mill stood transferred and vested in the Corporation from the appointed date 3.7.1971. On vacation of the stay order with effect from the appointed day-3.7.1971, the operation of the Ordinance/Act was revived. The liability arising from breach of contract committed by the Receiver was not of the Corporation. It was on obligation attached to the property of the Sugar Mill which was under the management of the Receiver, initially under the 1950 Act and continued under the order of stay passed by the High Court. Since the liability towards breach of contract was attached to the sugar mill under the management of the Receiver, the Corporation in whom title of the sugar mill stands vested under Section 3 of the Act cannot avoid the liability - it being a burden on the said property and recoverable from it.34. It is of no importance or consequence that actual or de facto possession of the property was received by the Corporation under a formal order of Collector, Deoria on 23.5.1979, only after dismissal of the Writ Petition on 3.5.1979 and consequent discharge of the Receiver.35. The Ordinance was stayed by the High Court to restore status quo ante existing on 2.7.1971 that is a day prior to appointed date 3.7.1971. But on the dismissal of writ petition and automatic vacation of the stay order of the High Court, the operation of the Ordinance/Act with all legal consequences flowing from the said law stood restored from the appointed date. The trial court and the High Court are perfectly right in holding in their judgments that the order of stay passed in writ petition could have no effect of postponing the appointed day; statutorily fixed under section3 of the Ordinance/Act.36. The argument advanced on behalf of the corporation cannot be accepted that the Sugar Mill came to be transferred to the Corporation only when its actual possession was formally obtained from the Collector, Deoria on 23.5.1979 after dismissal of the writ petition.37. The legal status and position of a receiver appointed by the Court and a Receiver appointed under in a Statute are different. In the instant case, the receiver appointed under the Act of 1950 and continued by the High Court on terms and conditions contained in the stay order during pendency of the writ petition, was a statutory receiver and his rights and liabilities were attached to the property for the management of which he was appointed. The receiver was not an agent of either of the parties. For his acts and omissions, a third party could raise a claim against the party in whom the property stood vested and to which the liability was attached.38. The suits were filed by the plaintiff claiming losses and damages for breach of contract committed by the receiver within the prescribed period of limitation. On the date of filing of the suits, the receiver was not in possession of the Sugar Mill as the actual possession of the Sugar Mill had been restored to the Corporation. It was, therefore, not necessary for the plaintiff to implead the receiver as a party to the suits. The Receiver could not be made personally liable for his acts and omissions in the course of management of the Sugar Mill and which are not alleged to be mala fide.39. Our conclusion, therefore, is that as none of the parties i.e. the erstwhile owner or the Corporation is personally liable for the breach of contract committed by the receiver in the course of management of the Sugar Mill, the contractual liability of the receiver towards the plaintiff is recoverable from the property of the Sugar Mill, and therefore, through the Corporation in whom the property stands vested under the Act. | 0 | 5,614 | 2,046 | ### 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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representative of the property placed in his hands as such. In determining his liability the court will only determine the liability of the property. It is not material whether the liability existed before or has accrued since his appointment. A contractual liability arising against the receiver during the course of management of the property for acts or omissions committed by him for the benefit of the property, is not merely enforceable against the receiver but is a liability attached to the property in his receivership, which can be recovered from the property and through the person in whom the property vests. [See Statement of law in Words and Phrases, Permanent Edition Vol.36 at page 742 from the Heading - Representative of property]33. As is the admitted position, on the coming into force of the Ordinance, the Sugar Mill stood transferred to and vested in the Corporation on the appointed date 3.7.1971. On that date, the Receiver appointed by the Collector under the provisions of 1950 Act was already holding custody of the Sugar Mill and was managing the same. During course of the Writ Petition filed by the owner of the Sugar Mill in which the constitutional validity of the ordinance/Act was challenged, a stay order, on the limited terms and conditions, was passed on 9.7.1971. the terms and conditions of the order reproduced above, restored the de jure possession of the Sugar Mill to the erstwhile owner but de facto possession and management of the Sugar Mill was allowed to remain undisturbed with the receiver although with limited powers to him. The Receiver was specifically allowed in accordance with term No.3 of the stay order to sell sugar, molasses and other waste products. By virtue of the order of stay passed by the High Court, during pendency of the writ petition, the Receiver appointed under the Act of 1950, continued to manage the Sugar Mill subject to the ultimate result of the writ petition. The Writ Petition ultimately came to be dismissed on 3.5.1979 and the stay order containing the terms and conditions (quoted above) passed on 9.7.1971 stood automatically vacated. The natural consequence was restoration of full operation of the provisions of the ordinance/Act as was originally passed. In accordance with Section 3 of the Act, the Sugar Mill stood transferred and vested in the Corporation from the appointed date 3.7.1971. On vacation of the stay order with effect from the appointed day-3.7.1971, the operation of the Ordinance/Act was revived. The liability arising from breach of contract committed by the Receiver was not of the Corporation. It was on obligation attached to the property of the Sugar Mill which was under the management of the Receiver, initially under the 1950 Act and continued under the order of stay passed by the High Court. Since the liability towards breach of contract was attached to the sugar mill under the management of the Receiver, the Corporation in whom title of the sugar mill stands vested under Section 3 of the Act cannot avoid the liability - it being a burden on the said property and recoverable from it.34. It is of no importance or consequence that actual or de facto possession of the property was received by the Corporation under a formal order of Collector, Deoria on 23.5.1979, only after dismissal of the Writ Petition on 3.5.1979 and consequent discharge of the Receiver.35. The Ordinance was stayed by the High Court to restore status quo ante existing on 2.7.1971 that is a day prior to appointed date 3.7.1971. But on the dismissal of writ petition and automatic vacation of the stay order of the High Court, the operation of the Ordinance/Act with all legal consequences flowing from the said law stood restored from the appointed date. The trial court and the High Court are perfectly right in holding in their judgments that the order of stay passed in writ petition could have no effect of postponing the appointed day; statutorily fixed under section3 of the Ordinance/Act.36. The argument advanced on behalf of the corporation cannot be accepted that the Sugar Mill came to be transferred to the Corporation only when its actual possession was formally obtained from the Collector, Deoria on 23.5.1979 after dismissal of the writ petition.37. The legal status and position of a receiver appointed by the Court and a Receiver appointed under in a Statute are different. In the instant case, the receiver appointed under the Act of 1950 and continued by the High Court on terms and conditions contained in the stay order during pendency of the writ petition, was a statutory receiver and his rights and liabilities were attached to the property for the management of which he was appointed. The receiver was not an agent of either of the parties. For his acts and omissions, a third party could raise a claim against the party in whom the property stood vested and to which the liability was attached.38. The suits were filed by the plaintiff claiming losses and damages for breach of contract committed by the receiver within the prescribed period of limitation. On the date of filing of the suits, the receiver was not in possession of the Sugar Mill as the actual possession of the Sugar Mill had been restored to the Corporation. It was, therefore, not necessary for the plaintiff to implead the receiver as a party to the suits. The Receiver could not be made personally liable for his acts and omissions in the course of management of the Sugar Mill and which are not alleged to be mala fide.39. Our conclusion, therefore, is that as none of the parties i.e. the erstwhile owner or the Corporation is personally liable for the breach of contract committed by the receiver in the course of management of the Sugar Mill, the contractual liability of the receiver towards the plaintiff is recoverable from the property of the Sugar Mill, and therefore, through the Corporation in whom the property stands vested under the Act.
### Response:
0
### Explanation:
representative of the property placed in his hands as such. In determining his liability the court will only determine the liability of the property. It is not material whether the liability existed before or has accrued since his appointment. A contractual liability arising against the receiver during the course of management of the property for acts or omissions committed by him for the benefit of the property, is not merely enforceable against the receiver but is a liability attached to the property in his receivership, which can be recovered from the property and through the person in whom the property vests. [See Statement of law in Words and Phrases, Permanent Edition Vol.36 at page 742 from the Heading - Representative of property]33. As is the admitted position, on the coming into force of the Ordinance, the Sugar Mill stood transferred to and vested in the Corporation on the appointed date 3.7.1971. On that date, the Receiver appointed by the Collector under the provisions of 1950 Act was already holding custody of the Sugar Mill and was managing the same. During course of the Writ Petition filed by the owner of the Sugar Mill in which the constitutional validity of the ordinance/Act was challenged, a stay order, on the limited terms and conditions, was passed on 9.7.1971. the terms and conditions of the order reproduced above, restored the de jure possession of the Sugar Mill to the erstwhile owner but de facto possession and management of the Sugar Mill was allowed to remain undisturbed with the receiver although with limited powers to him. The Receiver was specifically allowed in accordance with term No.3 of the stay order to sell sugar, molasses and other waste products. By virtue of the order of stay passed by the High Court, during pendency of the writ petition, the Receiver appointed under the Act of 1950, continued to manage the Sugar Mill subject to the ultimate result of the writ petition. The Writ Petition ultimately came to be dismissed on 3.5.1979 and the stay order containing the terms and conditions (quoted above) passed on 9.7.1971 stood automatically vacated. The natural consequence was restoration of full operation of the provisions of the ordinance/Act as was originally passed. In accordance with Section 3 of the Act, the Sugar Mill stood transferred and vested in the Corporation from the appointed date 3.7.1971. On vacation of the stay order with effect from the appointed day-3.7.1971, the operation of the Ordinance/Act was revived. The liability arising from breach of contract committed by the Receiver was not of the Corporation. It was on obligation attached to the property of the Sugar Mill which was under the management of the Receiver, initially under the 1950 Act and continued under the order of stay passed by the High Court. Since the liability towards breach of contract was attached to the sugar mill under the management of the Receiver, the Corporation in whom title of the sugar mill stands vested under Section 3 of the Act cannot avoid the liability - it being a burden on the said property and recoverable from it.34. It is of no importance or consequence that actual or de facto possession of the property was received by the Corporation under a formal order of Collector, Deoria on 23.5.1979, only after dismissal of the Writ Petition on 3.5.1979 and consequent discharge of the Receiver.35. The Ordinance was stayed by the High Court to restore status quo ante existing on 2.7.1971 that is a day prior to appointed date 3.7.1971. But on the dismissal of writ petition and automatic vacation of the stay order of the High Court, the operation of the Ordinance/Act with all legal consequences flowing from the said law stood restored from the appointed date. The trial court and the High Court are perfectly right in holding in their judgments that the order of stay passed in writ petition could have no effect of postponing the appointed day; statutorily fixed under section3 of the Ordinance/Act.36. The argument advanced on behalf of the corporation cannot be accepted that the Sugar Mill came to be transferred to the Corporation only when its actual possession was formally obtained from the Collector, Deoria on 23.5.1979 after dismissal of the writ petition.37. The legal status and position of a receiver appointed by the Court and a Receiver appointed under in a Statute are different. In the instant case, the receiver appointed under the Act of 1950 and continued by the High Court on terms and conditions contained in the stay order during pendency of the writ petition, was a statutory receiver and his rights and liabilities were attached to the property for the management of which he was appointed. The receiver was not an agent of either of the parties. For his acts and omissions, a third party could raise a claim against the party in whom the property stood vested and to which the liability was attached.38. The suits were filed by the plaintiff claiming losses and damages for breach of contract committed by the receiver within the prescribed period of limitation. On the date of filing of the suits, the receiver was not in possession of the Sugar Mill as the actual possession of the Sugar Mill had been restored to the Corporation. It was, therefore, not necessary for the plaintiff to implead the receiver as a party to the suits. The Receiver could not be made personally liable for his acts and omissions in the course of management of the Sugar Mill and which are not alleged to be mala fide.39. Our conclusion, therefore, is that as none of the parties i.e. the erstwhile owner or the Corporation is personally liable for the breach of contract committed by the receiver in the course of management of the Sugar Mill, the contractual liability of the receiver towards the plaintiff is recoverable from the property of the Sugar Mill, and therefore, through the Corporation in whom the property stands vested under the Act.
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State of Haryana & Others Vs. Devander Sagar & Others | be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narsimhaiah case. In Nanjudaiah case the period was further stretched to have the time period run from date of service of the High Court’s order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.16. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K. Chinnathambi Gounder v. Government of Tamil Nadu AIR 1980 Mad 251 : (1980) 2 MLJ 269 (FB)was rendered on 22-6-1979 i.e. much prior to the amendment by the 1984 Act. If the legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that the legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim actus curiae neminem gravabit highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case. 11. The Division Bench has predicated its decision to set aside the Notification as well as the Declaration on Padma Sundara Rao, which ironically the previous Division Bench had failed to follow. The decision of the Constitutional Bench in Padma Sundara Rao held that the language in Section 6(1) is clear and unambiguous, and the time period cannot be stretched as this would not be in keeping with the legislative intent. The contention of the Appellant State that the Declaration dated 30.12.2004 is a continuation of the initial Declaration is thus clearly erroneous, as such a finding would be in the face of the strict interpretation of time prescribed by Padma Sundara Rao and the unambiguous language of Section 6. Had the Legislature intended to allow for such a continuation, it would have done so by specifically providing for it, as it has done for periods covered by orders of stay and injunction. Furthermore, the Appellant State cannot place reliance on an erroneous Order which caused grave prejudice to the rights of the Respondents. It would be apt to mention the legal principle that no party should suffer for the mistake of the Court. Since compensation is calculated based on the value of the land on the date of the Section 4 Notification, the Order of the Division Bench dated 12.1.2004 resulted in the landowners getting compensation at 2001 rates even though the Award was finally passed in 2006 and the compensation is yet to be paid to the Respondents. Had the Division Bench Order struck down only the Declaration, which in turn would have resulted in the entire acquisition lapsing, the Appellant State would have had to reinitiate acquisition proceedings, resulting in the Respondents receiving compensation at the market rates current at the time of the fresh Notification. We therefore find that the Declaration dated 30.12.2004 cannot be upheld merely by virtue of the previous Division Bench’s erroneous and prejudicial Order. We are in agreement with the decision of the High Court in the impugned Judgment and consequently dismiss the Appeal.C.A. Nos. 459-460 of 201112. We are of the opinion that the substance of the issues in question in this batch of petitions are analogous to those in Civil Writ Petition No. 1123 of 2006 which has been assailed in Civil Appeal No. 318 of 2011, save for the difference that it is the Haryana Urban Development Authority which has filed the Appeal. In that light, the findings made in the preceding Appeal apply squarely to this batch of Appeals as well, and are decided in the same terms.C.A. Nos. 461-462 of 201113. The factual scenario in these Appeals is different from Civil Appeal No. 318 of 2011, in that compensation has been paid to the Contesting Respondents, whose land is now in the possession of Haryana Urban Development Authority. Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 makes it clear that the three requirements for an acquisition to attain finality are the passing of an award, payment of compensation and taking of possession, all of which are met here. Furthermore, the Contesting Respondents in these Appeals had not been parties before the Division Bench in its Judgment dated 12.3.2008. As that Judgment did not explicitly state that it would apply to all the landowners affected by the impugned acquisition process, it was limited in scope to the parties before it, for reasons that we have already discussed herein. It would also be pertinent to note that the Contesting Respondents in these Appeals only filed writ petitions challenging the acquisition after the Judgment dated 12.3.2008 was passed. We find that till the date of the 12.3.2008 Judgment, these Respondents had acquiesced to the acquisition and had allowed it to become final, and therefore they could not seek to challenge it by placing reliance on a Judgment that did not enure to their benefit.14. A number of Proforma Respondents were impleaded in Civil Appeal No. 462 vide order dated 12.4.2013, and we are not aware of whether the acquisitions with regard to their land has become final. However, these Proforma Respondents first challenged the acquisition by filing a writ petition in 2010, well after the Judgment dated 12.3.2008. It is thus clear that these Respondents, too, initially consented to the acquisition process and only challenged it belatedly by seeking to rely upon a favourable Judgment that did not relate or pertain to them. The | 1[ds]16. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K. Chinnathambi Gounder v. Government of Tamil Nadu AIR 1980 Mad 251 : (1980) 2 MLJ 269 (FB)was rendered on 22-6-1979 i.e. much prior to the amendment by the 1984 Act. If the legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that the legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim actus curiae neminem gravabit highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case.The Division Bench has predicated its decision to set aside the Notification as well as the Declaration on Padma Sundara Rao, which ironically the previous Division Bench had failed to follow. The decision of the Constitutional Bench in Padma Sundara Rao held that the language in Section 6(1) is clear and unambiguous, and the time period cannot be stretched as this would not be in keeping with the legislative intent. The contention of the Appellant State that the Declaration dated 30.12.2004 is a continuation of the initial Declaration is thus clearly erroneous, as such a finding would be in the face of the strict interpretation of time prescribed by Padma Sundara Rao and the unambiguous language of Section 6. Had the Legislature intended to allow for such a continuation, it would have done so by specifically providing for it, as it has done for periods covered by orders of stay and injunction. Furthermore, the Appellant State cannot place reliance on an erroneous Order which caused grave prejudice to the rights of the Respondents. It would be apt to mention the legal principle that no party should suffer for the mistake of the Court. Since compensation is calculated based on the value of the land on the date of the Section 4 Notification, the Order of the Division Bench dated 12.1.2004 resulted in the landowners getting compensation at 2001 rates even though the Award was finally passed in 2006 and the compensation is yet to be paid to the Respondents. Had the Division Bench Order struck down only the Declaration, which in turn would have resulted in the entire acquisition lapsing, the Appellant State would have had to reinitiate acquisition proceedings, resulting in the Respondents receiving compensation at the market rates current at the time of the fresh Notification. We therefore find that the Declaration dated 30.12.2004 cannot be upheld merely by virtue of the previous Divisionerroneous and prejudicial Order. We are in agreement with the decision of the High Court in the impugned Judgment and consequently dismiss the Appeal.C.A. Nos. 459-460 of 201112. We are of the opinion that the substance of the issues in question in this batch of petitions are analogous to those in Civil Writ Petition No. 1123 of 2006 which has been assailed in Civil Appeal No. 318 of 2011, save for the difference that it is the Haryana Urban Development Authority which has filed the Appeal. In that light, the findings made in the preceding Appeal apply squarely to this batch of Appeals as well, and are decided in the same terms.C.A. Nos. 461-462 of 201113. The factual scenario in these Appeals is different from Civil Appeal No. 318 of 2011, in that compensation has been paid to the Contesting Respondents, whose land is now in the possession of Haryana Urban Development Authority. Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 makes it clear that the three requirements for an acquisition to attain finality are the passing of an award, payment of compensation and taking of possession, all of which are met here. Furthermore, the Contesting Respondents in these Appeals had not been parties before the Division Bench in its Judgment dated 12.3.2008. As that Judgment did not explicitly state that it would apply to all the landowners affected by the impugned acquisition process, it was limited in scope to the parties before it, for reasons that we have already discussed herein. It would also be pertinent to note that the Contesting Respondents in these Appeals only filed writ petitions challenging the acquisition after the Judgment dated 12.3.2008 was passed. We find that till the date of the 12.3.2008 Judgment, these Respondents had acquiesced to the acquisition and had allowed it to become final, and therefore they could not seek to challenge it by placing reliance on a Judgment that did not enure to their benefit.14. A number of Proforma Respondents were impleaded in Civil Appeal No. 462 vide order dated 12.4.2013, and we are not aware of whether the acquisitions with regard to their land has become final. However, these Proforma Respondents first challenged the acquisition by filing a writ petition in 2010, well after the Judgment dated 12.3.2008. It is thus clear that these Respondents, too, initially consented to the acquisition process and only challenged it belatedly by seeking to rely upon a favourable Judgment that did not relate or pertain to them. | 1 | 4,782 | 971 | ### 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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be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narsimhaiah case. In Nanjudaiah case the period was further stretched to have the time period run from date of service of the High Court’s order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.16. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K. Chinnathambi Gounder v. Government of Tamil Nadu AIR 1980 Mad 251 : (1980) 2 MLJ 269 (FB)was rendered on 22-6-1979 i.e. much prior to the amendment by the 1984 Act. If the legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that the legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim actus curiae neminem gravabit highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case. 11. The Division Bench has predicated its decision to set aside the Notification as well as the Declaration on Padma Sundara Rao, which ironically the previous Division Bench had failed to follow. The decision of the Constitutional Bench in Padma Sundara Rao held that the language in Section 6(1) is clear and unambiguous, and the time period cannot be stretched as this would not be in keeping with the legislative intent. The contention of the Appellant State that the Declaration dated 30.12.2004 is a continuation of the initial Declaration is thus clearly erroneous, as such a finding would be in the face of the strict interpretation of time prescribed by Padma Sundara Rao and the unambiguous language of Section 6. Had the Legislature intended to allow for such a continuation, it would have done so by specifically providing for it, as it has done for periods covered by orders of stay and injunction. Furthermore, the Appellant State cannot place reliance on an erroneous Order which caused grave prejudice to the rights of the Respondents. It would be apt to mention the legal principle that no party should suffer for the mistake of the Court. Since compensation is calculated based on the value of the land on the date of the Section 4 Notification, the Order of the Division Bench dated 12.1.2004 resulted in the landowners getting compensation at 2001 rates even though the Award was finally passed in 2006 and the compensation is yet to be paid to the Respondents. Had the Division Bench Order struck down only the Declaration, which in turn would have resulted in the entire acquisition lapsing, the Appellant State would have had to reinitiate acquisition proceedings, resulting in the Respondents receiving compensation at the market rates current at the time of the fresh Notification. We therefore find that the Declaration dated 30.12.2004 cannot be upheld merely by virtue of the previous Division Bench’s erroneous and prejudicial Order. We are in agreement with the decision of the High Court in the impugned Judgment and consequently dismiss the Appeal.C.A. Nos. 459-460 of 201112. We are of the opinion that the substance of the issues in question in this batch of petitions are analogous to those in Civil Writ Petition No. 1123 of 2006 which has been assailed in Civil Appeal No. 318 of 2011, save for the difference that it is the Haryana Urban Development Authority which has filed the Appeal. In that light, the findings made in the preceding Appeal apply squarely to this batch of Appeals as well, and are decided in the same terms.C.A. Nos. 461-462 of 201113. The factual scenario in these Appeals is different from Civil Appeal No. 318 of 2011, in that compensation has been paid to the Contesting Respondents, whose land is now in the possession of Haryana Urban Development Authority. Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 makes it clear that the three requirements for an acquisition to attain finality are the passing of an award, payment of compensation and taking of possession, all of which are met here. Furthermore, the Contesting Respondents in these Appeals had not been parties before the Division Bench in its Judgment dated 12.3.2008. As that Judgment did not explicitly state that it would apply to all the landowners affected by the impugned acquisition process, it was limited in scope to the parties before it, for reasons that we have already discussed herein. It would also be pertinent to note that the Contesting Respondents in these Appeals only filed writ petitions challenging the acquisition after the Judgment dated 12.3.2008 was passed. We find that till the date of the 12.3.2008 Judgment, these Respondents had acquiesced to the acquisition and had allowed it to become final, and therefore they could not seek to challenge it by placing reliance on a Judgment that did not enure to their benefit.14. A number of Proforma Respondents were impleaded in Civil Appeal No. 462 vide order dated 12.4.2013, and we are not aware of whether the acquisitions with regard to their land has become final. However, these Proforma Respondents first challenged the acquisition by filing a writ petition in 2010, well after the Judgment dated 12.3.2008. It is thus clear that these Respondents, too, initially consented to the acquisition process and only challenged it belatedly by seeking to rely upon a favourable Judgment that did not relate or pertain to them. The
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16. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K. Chinnathambi Gounder v. Government of Tamil Nadu AIR 1980 Mad 251 : (1980) 2 MLJ 269 (FB)was rendered on 22-6-1979 i.e. much prior to the amendment by the 1984 Act. If the legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that the legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim actus curiae neminem gravabit highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case.The Division Bench has predicated its decision to set aside the Notification as well as the Declaration on Padma Sundara Rao, which ironically the previous Division Bench had failed to follow. The decision of the Constitutional Bench in Padma Sundara Rao held that the language in Section 6(1) is clear and unambiguous, and the time period cannot be stretched as this would not be in keeping with the legislative intent. The contention of the Appellant State that the Declaration dated 30.12.2004 is a continuation of the initial Declaration is thus clearly erroneous, as such a finding would be in the face of the strict interpretation of time prescribed by Padma Sundara Rao and the unambiguous language of Section 6. Had the Legislature intended to allow for such a continuation, it would have done so by specifically providing for it, as it has done for periods covered by orders of stay and injunction. Furthermore, the Appellant State cannot place reliance on an erroneous Order which caused grave prejudice to the rights of the Respondents. It would be apt to mention the legal principle that no party should suffer for the mistake of the Court. Since compensation is calculated based on the value of the land on the date of the Section 4 Notification, the Order of the Division Bench dated 12.1.2004 resulted in the landowners getting compensation at 2001 rates even though the Award was finally passed in 2006 and the compensation is yet to be paid to the Respondents. Had the Division Bench Order struck down only the Declaration, which in turn would have resulted in the entire acquisition lapsing, the Appellant State would have had to reinitiate acquisition proceedings, resulting in the Respondents receiving compensation at the market rates current at the time of the fresh Notification. We therefore find that the Declaration dated 30.12.2004 cannot be upheld merely by virtue of the previous Divisionerroneous and prejudicial Order. We are in agreement with the decision of the High Court in the impugned Judgment and consequently dismiss the Appeal.C.A. Nos. 459-460 of 201112. We are of the opinion that the substance of the issues in question in this batch of petitions are analogous to those in Civil Writ Petition No. 1123 of 2006 which has been assailed in Civil Appeal No. 318 of 2011, save for the difference that it is the Haryana Urban Development Authority which has filed the Appeal. In that light, the findings made in the preceding Appeal apply squarely to this batch of Appeals as well, and are decided in the same terms.C.A. Nos. 461-462 of 201113. The factual scenario in these Appeals is different from Civil Appeal No. 318 of 2011, in that compensation has been paid to the Contesting Respondents, whose land is now in the possession of Haryana Urban Development Authority. Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 makes it clear that the three requirements for an acquisition to attain finality are the passing of an award, payment of compensation and taking of possession, all of which are met here. Furthermore, the Contesting Respondents in these Appeals had not been parties before the Division Bench in its Judgment dated 12.3.2008. As that Judgment did not explicitly state that it would apply to all the landowners affected by the impugned acquisition process, it was limited in scope to the parties before it, for reasons that we have already discussed herein. It would also be pertinent to note that the Contesting Respondents in these Appeals only filed writ petitions challenging the acquisition after the Judgment dated 12.3.2008 was passed. We find that till the date of the 12.3.2008 Judgment, these Respondents had acquiesced to the acquisition and had allowed it to become final, and therefore they could not seek to challenge it by placing reliance on a Judgment that did not enure to their benefit.14. A number of Proforma Respondents were impleaded in Civil Appeal No. 462 vide order dated 12.4.2013, and we are not aware of whether the acquisitions with regard to their land has become final. However, these Proforma Respondents first challenged the acquisition by filing a writ petition in 2010, well after the Judgment dated 12.3.2008. It is thus clear that these Respondents, too, initially consented to the acquisition process and only challenged it belatedly by seeking to rely upon a favourable Judgment that did not relate or pertain to them.
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M/S. Ansal Properties & Industries Ltd Vs. State Of Haryana | to the last submission of the counsel appearing for respondent No. 2 which relates to issue of waiver and acquiescence in view of the fact that payment was made by the appellant which was demanded from him under the aforesaid letters. 30. The correspondences between the parties in respect of payment of the aforesaid demand would clearly establish that respondent No. 2 made a demand for the payment of the aforesaid amount of Rs. 61,000/- per gross acre failing which a threat was issued that the licence which was issued to it would stand cancelled. It is also pointed out on behalf of the respondent No. 2 that subsequently the respondent No. 2 has made it a policy of including expressly the value of the community buildings in the internal development works and ensuring that one fourth of the total cost of the internal development work could be secured by a bank guarantee. It is needless to say that if the provision would have been the same at the relevant time, in that event the situation would have been different but no such provision either in the Act or in the Rules or in any policy framed by the Government could be brought to our attention. Therefore, what we were required to consider was only the explicit provision of Section 3(3)(a)(iv) of the Act and the rules framed thereunder, which are extracted herein before in terms of which we find no obligation on the part of the appellant to pay for the construction of internal community buildings which was being demanded by the appellant as external development charges. Charges for construction of internal community buildings can never be equated with the external development charges, so the demand itself was illegal. The view taken by us also derive support from the judgment of this Court in DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, [(2003) 5 SCC 622] wherein it was held that construction of schools, hospitals and community centres and other community buildings does not come within the purview of the term "development works" as the same come within the purview of the term "amenities". The Court in Para 33 held as under: "Construction of schools, hospitals and community centres and other community buildings do not come within the purview of the term "development works". They come within the purview of the term "amenities". Only in relation to the development works the colonizer is bound to pay the development charges, carry out and complete development works. He has also the responsibility to maintain the same for a period of five years from the date of issue of the completion certification whereafter, the same is required to be handed over to the Government or the local authority as the case may be, free of cost." 31. Since the respondent No. 2 sought to justify the demand made on the ground that such demand is justified as internal community building, we have no other option but to hold that such demand could not have been made even as internal community buildings for no such power and jurisdiction was vested in the Government to make such a demand for the simple reason that there was neither any statutory support nor any policy decision in support of the same. Even in the Licence Agreement, nothing was contemplated to the effect that in addition to the liability to transfer the land set apart for the said buildings to the Government free of cost, on the contingency mentioned in the statue and relied in the Licence Agreement, the licensee is also required to pay for the construction of said buildings.32. So far the issue with regard to the waiver and acquiescence is concerned, we find that such contention that the principles of waiver and acquiescence is attracted to the facts of the case is also not tenable. In the letter dated 08.02.1988 which was written by the appellant in response to the letter of respondent No. 2 dated 11.01.1988 on the subject of payment of external development charges, it was clearly stated that the revised rates which is since determined by the Director in their communication dated 18.9.1987 and its further revision are not covered by the clause of the agreements being referred in the recent communications. In paragraph 2 of the said letter it was specifically stated that the respondent No. 2 had included an amount of Rs. 61,000/- per gross acre on account of community buildings in the external development charges, which is not payable, as according to the requirements of the Act and licence the appellant was required to pay external development charges only and there was no mention of charges towards construction of internal community buildings in case the land set apart for the said purpose is transferred to the Government free of cost. Therefore there was a protest and demur on the part of the petitioner against the aforesaid demand.33. In the case of Municipal Corpn. of Greater Bombay v. Hakimwadi Tenants Assn., [1988 Supp SCC 55], it was held by this Court that in order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case.34. It is thus established that the appellant on receipt of the demand issued by respondent No. 2 raised this objection regarding the charge and the demand made and the payment which was made by the appellant was due to the threat issued by respondent No. 2 that on failure of the appellant to pay the same its licence would stand cancelled. Such demand was made by the appellant under protest as aforesaid. Therefore, the principle of waiver and acquiescence will have no application in the present case and therefore we reject the said contention of the learned counsel appearing for respondent No. 2. | 1[ds]9. In the present case, the respondent No. 2 by letter dated 11.01.1988 informed the appellant Company that it was required to pay due amount of Rs. 3.72 lacs per gross acre on account of external development charges. It was also mentioned in the said letter that an amount of Rs. 3.72 lacs per gross acre, in fact includes Rs. 61,000/per gross acre on account of internal community buildings for which no recovery should be made from the plot holders. It was also mentioned in the said letter that credit would be given by Haryana Urban Development Authority for the internal community buildings already constructed by the colonizer namely the appellant. Again under letter dated 07.10.1993, the appellant Company was informed that before its licence could be considered for renewal, the appellant Company was required to pay the aforementioned charges. Subsequently on 04.05.1994, respondent No. 2 issued letter to the appellant informing that the licence of the appellant would be renewed only after the deposit of the aforesaid amount. Aggrieved by the aforesaid letter, the appellant Company made several representations to respondent Nos. 1 and 2 contending inter alia that as per the licence agreement and also as per the provisions of the Act and the Rules the appellant Company was not liable to pay the amount of Rs. 61,000/per gross acre towards the construction of internal community buildings. It was also submitted in the said representations by the appellant that the Director had wrongly included the above said amount and the said demand was not only unjust and arbitrary but also contrary to licence agreement and also against the provisions of the Act and the Rules framed thereunder.So far the contentions with regard to the maintainability of the writ petition is concerned, we are not impressed and persuaded with the aforesaid contentions as according to the respondent themselves, the aforesaid demand is being made within the parameter and ambit of the provision of section 3(3)(a)(iv). That being the position, the demand made according to the respondent is a statutory demand and therefore challenge to such a demand could always be raised by the appellant by filing a writ petition as such a demand is sought to be protected and supported by way of statutory provision.16. Even if the appellant has taken up the plea that such a demand is not supported by the statutory provisions and is in fact in conflict with them, even then the issue pertains as to whether or not such a demand could be made and supported by the said provisions, in which case, a writ petition is competent and maintainable and the plea raised by the respondent therefore with regard to the maintainability of the petition is only to be rejected which we hereby do.17. Section 3(3)(a)(iv) of the Act is the relevant provision and the merit of the claim and repudiation thereof is based on the interpretation of the said provision. It was pointed out on behalf of the appellant that 49 plots have been given by the appellant developer to the Government as community sites. Section 5 of the Act enumerates that colonizer would deposit 50% of the amount realised from time to time by him from the plot holders within the period of 10 days of its realization in a separate account to be maintained in a scheduled bank. It is also provided therein that the aforesaid 50% amount which is so deposited would only be utilized towards meeting the cost of the internal development works in the colony. Further stipulation in the said provision is that after the internal development works of the colony have been completed to the satisfaction of the Director, the colonizer would be at liberty to withdraw the balance amount. The remaining 50% of the amount would be deemed to have been retained by the colonizer to meet the cost of the land and external development works. Section 8 of the Act which is extracted herein above also provides that the Director could cancel the licence given to the developer colonizer if he contravenes any of the conditions of the licence or the provision of Act or the Rules made thereunder and after the cancellation of the licence, the Director may himself carry out or cause to be carried out the development works in a colony and recover such other charges as the Director may have to incur on the said development work from the colonizer and the plot holders.18. Rules 4, 5 and 11 which are made part of the statutory rules give effect to the aforesaid provision of Section 3(3). The comparative reading of the provisions of Section 3(3)(a)(iv) and(b) of clause (1) of the Licence Agreement would clearly show that theis required to construct at his own cost schools, hospitals, community centres and other community buildings or may get the same constructed by any other institution or individual. The developer also has the option to transfer to the Government at any time, if so desired by the Government, free of cost the land set apart for schools, hospitals, community centres and community buildings in which case the Government would be at liberty to transfer such land to any person or institution including a local authority on such terms and conditions as it may deem fit.19. The said provision, therefore, gives three options for construction of such community centres and facilities like schools, hospitals, community centres and other community buildings. Such centres and buildings could be constructed by the developer himself or he may get the same constructed by any other institution or individual whereby such individual would be able to utilize the said building. In case the developer fails to exercise either of the aforesaid two options, a third option is also open to the developer under which he would transfer the said land, where the community facilities are to be established, free of cost to the Government in which case such schools, hospitals, community centres and community buildings could be constructed either by the Government itself or the said land could be transferred by the Government to any person or institution including a local authority on such terms and conditions as the Government may deem fit. The aforesaid provision is clear and explicit and there is no ambiguity in it. The only question therefore, which arises herein is, in a case where the land is transferred to the Government free of cost and when such schools, hospitals, community centres and community buildings are to be constructed either by the Government or any agency appointed by the Government whetherthe charges for internal community buildings isalso required todeveloper.20. It was submitted by the counsel appearing for respondent No. 2 that the demand is made by the State Government as external development charges although the same is actually for making internal community buildings which was in the interest of proper development of the said colony. The High Court upheld the said contention on the ground that a colonizer is duty bound to complete the development works in the colony within a specified period and that the idea behind providing such a time limit was only to safeguard the interest of various plot holders/residents of the colony so that they might not be left at the lurch by the colonizer after selling plots to them. It was further held that since a complete control over the activities of the colonizer is envisaged under the provisions of the Act and the Rules, the action of the Director in calling upon the appellant Company to pay charges for some of the internal community buildings could not be termed as arbitrary.21. The said findings arrived at by the learned Division Bench of the High Court appears to be in direct conflict and also in contradiction with the provisions of Sections 3(3)(a)(iv) of the Act and also all the terms and conditions provided in(b) of clause (1) of the Licence Agreement. There is no mention at all of any requirement for the licensee to provide for or to make payment for the cost of construction of internal community buildings when the land is transferred to the Government free of cost. No such statutory basis could be shown either in the statute or in the licence agreement. When a specific question was put as to whether the amount was demanded towards internal community buildings or external development charges, the learned counsel, was constraint to admit that although the said amount was being demanded towards external development works but in fact the same was being demanded from the appellant towards internal community buildings which were required to be constructed by the appellant. There is no dispute with regard to the fact that the developer of the colony, namely the present appellant has carried out all the internal development works as required to be done which is statutorily provided for. A part of the community centre has also been constructed by the developer themselves but the entire community centre could not be developed by it or through its agencies and therefore the land allocated for the remaining community buildings/development have been transferred to the Government free of cost.22. Since the land has been given free of cost, it is now open for the State Government to get the remaining community buildings constructed either by themselves or through any agency or institution or individual at its cost in terms of the provisions of the Act, in which case the terms and conditions could be laid down by the Government for such community buildings, to be constructed on the land which is transferred to it by the appellant free of cost. The Government cannot in law demand that the buildings on the said lands which is to be transferred to them free of cost should also be constructed by the appellant and then transfer the land to them free of cost along with the construction thereon and on failure to construct to pay for the cost of construction. That would in fact be a case of an illegal and unauthorised demand as it has no statutory mandate. The respondent cannot demand transfer of the land free of cost and also the construction cost of the facilities to be provided in the said land.23. When the provisions of Section 3(3)(a)(iv) are analysed, it would be apparent that the word used in the said provision is "land" and it has been specifically mentioned therein that if the colonizer does not construct the community buildings and facilities on its own or through its agency or organization or individual, then the said licensee would be required to transfer the said land set apart for the aforesaid purpose free of cost to the Government.24. The Governments claim is therefore restricted to lands which the developer has failed to develop as community centres. In other words only that land which the developer has not been able to develop as community services facilities would stand transferred to the Government free of cost and the said land could be utilized by the Government for the aforesaid purpose either by itself or through its agency. If the legislature had intended that the licensee is required to transfer the land and also to construct the buildings on it or to make payment for such construction, the legislature would have made specific provisions laying down such conditions explicitly and in clear words in which event the provisions would have been worded in altogether different words and terms. It is well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is determinative factor of legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statue.The aforesaid contention apparently arises out of the complete misreading of the aforesaid provision. The responsibility regarding construction of community centres and other community buildings could be discharged by adopting any of the three options as mentioned hereinbefore and each one of such options is an independent option and one cannot be connected and related with the other. We cannot read the provision relating to construction at the own cost of the developer the schools, hospitals, community centres and other community buildings on the land set apart for this purpose, into an independent alternative provision relating to transfer of such land to the Government free of cost. The aforesaid option given to the developer to construct the community centres and other community buildings at its own cost is when he can utilize himself manage it. Therefore, we cannot read the aforesaid provision in the manner sought to be read by Mr. Chaudhary, for reading by adding certain words in the aforesaid manner does not appear to be the intention of the legislature while enacting the aforesaid legislation, for otherwise the legislature would have explicitly said so in the body of the main part of the section itself.28. Therefore, we not only reject the preliminary objections raised by the respondent No. 2 in this matter, but we also reject his contention that the aforesaid demand of Rs. 61,000/per gross acre is permitted under the provision of Section 3(3)(a)(iv) of the Act.The correspondences between the parties in respect of payment of the aforesaid demand would clearly establish that respondent No. 2 made a demand for the payment of the aforesaid amount of Rs. 61,000/per gross acre failing which a threat was issued that the licence which was issued to it would stand cancelled. It is also pointed out on behalf of the respondent No. 2 that subsequently the respondent No. 2 has made it a policy of including expressly the value of the community buildings in the internal development works and ensuring that one fourth of the total cost of the internal development work could be secured by a bank guarantee. It is needless to say that if the provision would have been the same at the relevant time, in that event the situation would have been different but no such provision either in the Act or in the Rules or in any policy framed by the Government could be brought to our attention. Therefore, what we were required to consider was only the explicit provision of Section 3(3)(a)(iv) of the Act and the rules framed thereunder, which are extracted herein before in terms of which we find no obligation on the part of the appellant to pay for the construction of internal community buildings which was being demanded by the appellant as external development charges. Charges for construction of internal community buildings can never be equated with the external development charges, so the demand itself was illegal. The view taken by us also derive support from the judgment of this Court in DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, [(2003) 5 SCC 622] wherein it was held that construction of schools, hospitals and community centres and other community buildings does not come within the purview of the term "development works" as the same come within the purview of the term "amenities".Since the respondent No. 2 sought to justify the demand made on the ground that such demand is justified as internal community building, we have no other option but to hold that such demand could not have been made even as internal community buildings for no such power and jurisdiction was vested in the Government to make such a demand for the simple reason that there was neither any statutory support nor any policy decision in support of the same. Even in the Licence Agreement, nothing was contemplated to the effect that in addition to the liability to transfer the land set apart for the said buildings to the Government free of cost, on the contingency mentioned in the statue and relied in the Licence Agreement, the licensee isalso required topay for the construction of said buildings.32. So far the issue with regard to the waiver and acquiescence is concerned, we find that such contention that the principles of waiver and acquiescence is attracted to the facts of the case is also not tenable. In the letter dated 08.02.1988 which was written by the appellant in response to the letter of respondent No. 2 dated 11.01.1988 on the subject of payment of external development charges, it was clearly stated that the revised rates which is since determined by the Director in their communication dated 18.9.1987 and its further revision are not covered by the clause of the agreements being referred in the recent communications. In paragraph 2 of the said letter it was specifically stated that the respondent No. 2 had included an amount of Rs. 61,000/per gross acre on account of community buildings in the external development charges, which is not payable, as according to the requirements of the Act and licence the appellant was required to pay external development charges only and there was no mention of charges towards construction of internal community buildings in case the land set apart for the said purpose is transferred to the Government free of cost. Therefore there was a protest and demur on the part of the petitioner against the aforesaid demand.33. In the case of Municipal Corpn. of Greater Bombay v. Hakimwadi Tenants Assn., [1988 Supp SCC 55], it was held by this Court that in order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case.34. It is thus established that the appellant on receipt of the demand issued by respondent No. 2 raised this objection regarding the charge and the demand made and the payment which was made by the appellant was due to the threat issued by respondent No. 2 that on failure of the appellant to pay the same its licence would stand cancelled. Such demand was made by the appellant under protest as aforesaid. Therefore, the principle of waiver and acquiescence will have no application in the present case and therefore we reject the said contention of the learned counsel appearing for respondent No. 2. | 1 | 7,948 | 3,322 | ### Instruction:
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to the last submission of the counsel appearing for respondent No. 2 which relates to issue of waiver and acquiescence in view of the fact that payment was made by the appellant which was demanded from him under the aforesaid letters. 30. The correspondences between the parties in respect of payment of the aforesaid demand would clearly establish that respondent No. 2 made a demand for the payment of the aforesaid amount of Rs. 61,000/- per gross acre failing which a threat was issued that the licence which was issued to it would stand cancelled. It is also pointed out on behalf of the respondent No. 2 that subsequently the respondent No. 2 has made it a policy of including expressly the value of the community buildings in the internal development works and ensuring that one fourth of the total cost of the internal development work could be secured by a bank guarantee. It is needless to say that if the provision would have been the same at the relevant time, in that event the situation would have been different but no such provision either in the Act or in the Rules or in any policy framed by the Government could be brought to our attention. Therefore, what we were required to consider was only the explicit provision of Section 3(3)(a)(iv) of the Act and the rules framed thereunder, which are extracted herein before in terms of which we find no obligation on the part of the appellant to pay for the construction of internal community buildings which was being demanded by the appellant as external development charges. Charges for construction of internal community buildings can never be equated with the external development charges, so the demand itself was illegal. The view taken by us also derive support from the judgment of this Court in DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, [(2003) 5 SCC 622] wherein it was held that construction of schools, hospitals and community centres and other community buildings does not come within the purview of the term "development works" as the same come within the purview of the term "amenities". The Court in Para 33 held as under: "Construction of schools, hospitals and community centres and other community buildings do not come within the purview of the term "development works". They come within the purview of the term "amenities". Only in relation to the development works the colonizer is bound to pay the development charges, carry out and complete development works. He has also the responsibility to maintain the same for a period of five years from the date of issue of the completion certification whereafter, the same is required to be handed over to the Government or the local authority as the case may be, free of cost." 31. Since the respondent No. 2 sought to justify the demand made on the ground that such demand is justified as internal community building, we have no other option but to hold that such demand could not have been made even as internal community buildings for no such power and jurisdiction was vested in the Government to make such a demand for the simple reason that there was neither any statutory support nor any policy decision in support of the same. Even in the Licence Agreement, nothing was contemplated to the effect that in addition to the liability to transfer the land set apart for the said buildings to the Government free of cost, on the contingency mentioned in the statue and relied in the Licence Agreement, the licensee is also required to pay for the construction of said buildings.32. So far the issue with regard to the waiver and acquiescence is concerned, we find that such contention that the principles of waiver and acquiescence is attracted to the facts of the case is also not tenable. In the letter dated 08.02.1988 which was written by the appellant in response to the letter of respondent No. 2 dated 11.01.1988 on the subject of payment of external development charges, it was clearly stated that the revised rates which is since determined by the Director in their communication dated 18.9.1987 and its further revision are not covered by the clause of the agreements being referred in the recent communications. In paragraph 2 of the said letter it was specifically stated that the respondent No. 2 had included an amount of Rs. 61,000/- per gross acre on account of community buildings in the external development charges, which is not payable, as according to the requirements of the Act and licence the appellant was required to pay external development charges only and there was no mention of charges towards construction of internal community buildings in case the land set apart for the said purpose is transferred to the Government free of cost. Therefore there was a protest and demur on the part of the petitioner against the aforesaid demand.33. In the case of Municipal Corpn. of Greater Bombay v. Hakimwadi Tenants Assn., [1988 Supp SCC 55], it was held by this Court that in order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case.34. It is thus established that the appellant on receipt of the demand issued by respondent No. 2 raised this objection regarding the charge and the demand made and the payment which was made by the appellant was due to the threat issued by respondent No. 2 that on failure of the appellant to pay the same its licence would stand cancelled. Such demand was made by the appellant under protest as aforesaid. Therefore, the principle of waiver and acquiescence will have no application in the present case and therefore we reject the said contention of the learned counsel appearing for respondent No. 2.
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on the land set apart for this purpose, into an independent alternative provision relating to transfer of such land to the Government free of cost. The aforesaid option given to the developer to construct the community centres and other community buildings at its own cost is when he can utilize himself manage it. Therefore, we cannot read the aforesaid provision in the manner sought to be read by Mr. Chaudhary, for reading by adding certain words in the aforesaid manner does not appear to be the intention of the legislature while enacting the aforesaid legislation, for otherwise the legislature would have explicitly said so in the body of the main part of the section itself.28. Therefore, we not only reject the preliminary objections raised by the respondent No. 2 in this matter, but we also reject his contention that the aforesaid demand of Rs. 61,000/per gross acre is permitted under the provision of Section 3(3)(a)(iv) of the Act.The correspondences between the parties in respect of payment of the aforesaid demand would clearly establish that respondent No. 2 made a demand for the payment of the aforesaid amount of Rs. 61,000/per gross acre failing which a threat was issued that the licence which was issued to it would stand cancelled. It is also pointed out on behalf of the respondent No. 2 that subsequently the respondent No. 2 has made it a policy of including expressly the value of the community buildings in the internal development works and ensuring that one fourth of the total cost of the internal development work could be secured by a bank guarantee. It is needless to say that if the provision would have been the same at the relevant time, in that event the situation would have been different but no such provision either in the Act or in the Rules or in any policy framed by the Government could be brought to our attention. Therefore, what we were required to consider was only the explicit provision of Section 3(3)(a)(iv) of the Act and the rules framed thereunder, which are extracted herein before in terms of which we find no obligation on the part of the appellant to pay for the construction of internal community buildings which was being demanded by the appellant as external development charges. Charges for construction of internal community buildings can never be equated with the external development charges, so the demand itself was illegal. The view taken by us also derive support from the judgment of this Court in DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, [(2003) 5 SCC 622] wherein it was held that construction of schools, hospitals and community centres and other community buildings does not come within the purview of the term "development works" as the same come within the purview of the term "amenities".Since the respondent No. 2 sought to justify the demand made on the ground that such demand is justified as internal community building, we have no other option but to hold that such demand could not have been made even as internal community buildings for no such power and jurisdiction was vested in the Government to make such a demand for the simple reason that there was neither any statutory support nor any policy decision in support of the same. Even in the Licence Agreement, nothing was contemplated to the effect that in addition to the liability to transfer the land set apart for the said buildings to the Government free of cost, on the contingency mentioned in the statue and relied in the Licence Agreement, the licensee isalso required topay for the construction of said buildings.32. So far the issue with regard to the waiver and acquiescence is concerned, we find that such contention that the principles of waiver and acquiescence is attracted to the facts of the case is also not tenable. In the letter dated 08.02.1988 which was written by the appellant in response to the letter of respondent No. 2 dated 11.01.1988 on the subject of payment of external development charges, it was clearly stated that the revised rates which is since determined by the Director in their communication dated 18.9.1987 and its further revision are not covered by the clause of the agreements being referred in the recent communications. In paragraph 2 of the said letter it was specifically stated that the respondent No. 2 had included an amount of Rs. 61,000/per gross acre on account of community buildings in the external development charges, which is not payable, as according to the requirements of the Act and licence the appellant was required to pay external development charges only and there was no mention of charges towards construction of internal community buildings in case the land set apart for the said purpose is transferred to the Government free of cost. Therefore there was a protest and demur on the part of the petitioner against the aforesaid demand.33. In the case of Municipal Corpn. of Greater Bombay v. Hakimwadi Tenants Assn., [1988 Supp SCC 55], it was held by this Court that in order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case.34. It is thus established that the appellant on receipt of the demand issued by respondent No. 2 raised this objection regarding the charge and the demand made and the payment which was made by the appellant was due to the threat issued by respondent No. 2 that on failure of the appellant to pay the same its licence would stand cancelled. Such demand was made by the appellant under protest as aforesaid. Therefore, the principle of waiver and acquiescence will have no application in the present case and therefore we reject the said contention of the learned counsel appearing for respondent No. 2.
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Hardwari Lal Vs. Kanwal Singh | is to further the prospects of the election are alleged as statements of facts.20. The importance of material facts and the distinction between the material facts and particulars was also brought out in another recent decision of this Court in Manubhai Nandlal amersey v. Ponatlal Manilal Joshi (1969) 3 SCR 217 = (AIR 1969 SC 734 ) In that case a charge in the petition was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the Congress party candidate they would become the objects of divine displeasure and spiritual censure At a late stage of the trial the High Court gave leave to the election petitioner to amend the petition by adding fresh particulars of the corrupt practice Bachwat, J. speaking for the Court said that Section 83 of the Act was mandatory and particulars of corrupt practice were to be set out in ull. It was said in that case that no amendment in the shape of particulars if corrupt practice was permissible if he corrupt practice was not previously alleged in the petition. The obvious need not be stressed. It is that in election petition has the effect of lecturing an election void. It is a serious remedy. It is therefore, vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that assistance obtained or procured was other than the giving of vote. It was said by counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words any assistance were full statement of material fact. The submission is fallacious for the simple reason that the matter of assistance, the mode of assistance, the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer.Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared could the Court have given a verdict in favour of the election petitioner. The answer is in the negative because the allegations in the petition did not disclose any cause of action.21. The necessity of clear and precise allegations to support a plea of corrupt practice was emphasised by this Court in Harish Chandra Bajpai v. Triloki Singh 12 Election Law Reports 461 = (AIR 1957 SC 444 ) Venkatarama Ayyar, J. speaking for the Court in dealing with the powers of the Court to allow amendment in respect of illegal or corrupt practice said that where the allegation in the election petition in regard to the corrupt practice was that the respondents could in furtherance of their election enlist the support of Government servants, the words could enlist did not amount to an averment that in fact they enlisted their support. In other words, it was observed that the words could enlist did not allege a fact which happened. Therefore, the happening of fact as well as the fact itself is material Judged by that test in the present case there is no allegation which will amount to any averment of any assistance as a fact in the absence of the kind of assistance being set out as a fact.22. The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the elections.The gravament of the charge of corrupt practice within the meaning of section 123 (7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.23. Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of section 81, or section 82 or section 117 of the Act. It was emphasized that section 33 did not find place in section 86. Under section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. A suit which does not furnish cause of action can be dismissed.24. In the present case, it is not necessary to go to the question as to whether the High Court was justified in disallowing the particulars and in refusing to recall the witnesses for the reasons given in the order, because paragraph 16 of the election petition on which the High Court relied to declare the election of the appellant void does not amount to an election petition on the grounds mentioned in section 123 (7) of the Act. | 1[ds]17. The provisions of the aforesaid section indicate these heads of corrupt practice. First, the obtaining by a candidate or his agent or by any other giving of vote) for the furtherance of the prospects of that candidates election from any person in the service of the Government as mentioned in the section. Second, the procuring by a candidate or his agent or by any other person with the consent of the election petitioner any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election. Third the abetting by a candidate or his agent or by an other person with the consent of the candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election as mentioned. Fourth, the attempting to obtain or procure by a candidate or his agent, or by any other person with the consent of a candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election Fifth, the assistance that is forbidden or prohibited by the statute is any assistance other than the giving of vote. It is clear that the four different heads of corrupt practices are (a) obtaining, (b) procuring, (c) abetting and (d) attempting to obtain or procure assistance.18. Therefore material facts are to be alleged as to whether the candidate obtained or procured or abetted or attempted to obtain or procure any assistance other than the giving of vote. In Paragraph 16 of the election petition it is alleged that the appellant committed the corrupt practice of obtaining and procuring or attempting to obtain and procure assistance for the furtherance of the prospects of his election from the persons mentioned there. Reading Paragraph 16 of the election petition one will search in vain to find out as to whether the allegations against the appellant are in regard to the assistance under both heads or either head from each of the six persons mentioned there. One will speculate as to whether the appellant obtained and procured or attempted to obtain and procure assistance from each or some of the persons mentioned there Obtaining or procuring or attempting to obtain or procure assistance are separate and independent forms of corrupt practice. One will guess as to whether the allegations are that the appellant committed all or one or more of the corrupt practices of obtaining, procuring, attempting to obtain or procure assistance from each of the persons mentioned there. One will also conjecture and hazard as to what assistance was to obtained or procured or attempted to obtain or procure from each of the persons mentioned there, for the furtherance of the prospects of that candidate election. The giving of vote is not within the mischief of corrupt practice. It cannot be understood from the petitioner whether the giving of vote is the assistance alleged. It is, therefore, apparent that the appellant who was charged by the election petitioner with corrupt practice should be told in the election petition as to what assistance he sought. The type of assistance, the manner of assistance, the time of assistance, the person from whom assistance is sought are all to be set out in the petition. There is no allegation in the petition about the actual and the specific assistance with which the appellant can be charged in violation of the provisions of the Act. Nor is there any statement in the election petition describing the manner in which the prospects of the election were furthered and the way in which the assistance was rendered. The allegations against the appellant were in relation to six persons. Therefore, it was essential and imperative for the election petitioner to set out with exactitude and precision the type of assistance as also the manner in which assistance was obtained or procured from each person. The time, the date and the place of the assistance were also required to be set out in the particulars Thus it had to be alleged as the material facts as to what assistance the appellant obtained or procured or abetted or attempted to obtain or procure from which person and how the assistance furthered the prospects of the appellants election. If all the four variants and ingredients were to be charged against the appellant these had to be set out as statements of material facts in relation to each person.The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the elections.The gravament of the charge of corrupt practice within the meaning of section 123 (7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.In the present case, it is not necessary to go to the question as to whether the High Court was justified in disallowing the particulars and in refusing to recall the witnesses for the reasons given in the order, because paragraph 16 of the election petition on which the High Court relied to declare the election of the appellant void does not amount to an election petition on the grounds mentioned in section 123 (7) of the Act. | 1 | 4,026 | 1,044 | ### Instruction:
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is to further the prospects of the election are alleged as statements of facts.20. The importance of material facts and the distinction between the material facts and particulars was also brought out in another recent decision of this Court in Manubhai Nandlal amersey v. Ponatlal Manilal Joshi (1969) 3 SCR 217 = (AIR 1969 SC 734 ) In that case a charge in the petition was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the Congress party candidate they would become the objects of divine displeasure and spiritual censure At a late stage of the trial the High Court gave leave to the election petitioner to amend the petition by adding fresh particulars of the corrupt practice Bachwat, J. speaking for the Court said that Section 83 of the Act was mandatory and particulars of corrupt practice were to be set out in ull. It was said in that case that no amendment in the shape of particulars if corrupt practice was permissible if he corrupt practice was not previously alleged in the petition. The obvious need not be stressed. It is that in election petition has the effect of lecturing an election void. It is a serious remedy. It is therefore, vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that assistance obtained or procured was other than the giving of vote. It was said by counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words any assistance were full statement of material fact. The submission is fallacious for the simple reason that the matter of assistance, the mode of assistance, the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer.Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared could the Court have given a verdict in favour of the election petitioner. The answer is in the negative because the allegations in the petition did not disclose any cause of action.21. The necessity of clear and precise allegations to support a plea of corrupt practice was emphasised by this Court in Harish Chandra Bajpai v. Triloki Singh 12 Election Law Reports 461 = (AIR 1957 SC 444 ) Venkatarama Ayyar, J. speaking for the Court in dealing with the powers of the Court to allow amendment in respect of illegal or corrupt practice said that where the allegation in the election petition in regard to the corrupt practice was that the respondents could in furtherance of their election enlist the support of Government servants, the words could enlist did not amount to an averment that in fact they enlisted their support. In other words, it was observed that the words could enlist did not allege a fact which happened. Therefore, the happening of fact as well as the fact itself is material Judged by that test in the present case there is no allegation which will amount to any averment of any assistance as a fact in the absence of the kind of assistance being set out as a fact.22. The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the elections.The gravament of the charge of corrupt practice within the meaning of section 123 (7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.23. Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of section 81, or section 82 or section 117 of the Act. It was emphasized that section 33 did not find place in section 86. Under section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. A suit which does not furnish cause of action can be dismissed.24. In the present case, it is not necessary to go to the question as to whether the High Court was justified in disallowing the particulars and in refusing to recall the witnesses for the reasons given in the order, because paragraph 16 of the election petition on which the High Court relied to declare the election of the appellant void does not amount to an election petition on the grounds mentioned in section 123 (7) of the Act.
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17. The provisions of the aforesaid section indicate these heads of corrupt practice. First, the obtaining by a candidate or his agent or by any other giving of vote) for the furtherance of the prospects of that candidates election from any person in the service of the Government as mentioned in the section. Second, the procuring by a candidate or his agent or by any other person with the consent of the election petitioner any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election. Third the abetting by a candidate or his agent or by an other person with the consent of the candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election as mentioned. Fourth, the attempting to obtain or procure by a candidate or his agent, or by any other person with the consent of a candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election Fifth, the assistance that is forbidden or prohibited by the statute is any assistance other than the giving of vote. It is clear that the four different heads of corrupt practices are (a) obtaining, (b) procuring, (c) abetting and (d) attempting to obtain or procure assistance.18. Therefore material facts are to be alleged as to whether the candidate obtained or procured or abetted or attempted to obtain or procure any assistance other than the giving of vote. In Paragraph 16 of the election petition it is alleged that the appellant committed the corrupt practice of obtaining and procuring or attempting to obtain and procure assistance for the furtherance of the prospects of his election from the persons mentioned there. Reading Paragraph 16 of the election petition one will search in vain to find out as to whether the allegations against the appellant are in regard to the assistance under both heads or either head from each of the six persons mentioned there. One will speculate as to whether the appellant obtained and procured or attempted to obtain and procure assistance from each or some of the persons mentioned there Obtaining or procuring or attempting to obtain or procure assistance are separate and independent forms of corrupt practice. One will guess as to whether the allegations are that the appellant committed all or one or more of the corrupt practices of obtaining, procuring, attempting to obtain or procure assistance from each of the persons mentioned there. One will also conjecture and hazard as to what assistance was to obtained or procured or attempted to obtain or procure from each of the persons mentioned there, for the furtherance of the prospects of that candidate election. The giving of vote is not within the mischief of corrupt practice. It cannot be understood from the petitioner whether the giving of vote is the assistance alleged. It is, therefore, apparent that the appellant who was charged by the election petitioner with corrupt practice should be told in the election petition as to what assistance he sought. The type of assistance, the manner of assistance, the time of assistance, the person from whom assistance is sought are all to be set out in the petition. There is no allegation in the petition about the actual and the specific assistance with which the appellant can be charged in violation of the provisions of the Act. Nor is there any statement in the election petition describing the manner in which the prospects of the election were furthered and the way in which the assistance was rendered. The allegations against the appellant were in relation to six persons. Therefore, it was essential and imperative for the election petitioner to set out with exactitude and precision the type of assistance as also the manner in which assistance was obtained or procured from each person. The time, the date and the place of the assistance were also required to be set out in the particulars Thus it had to be alleged as the material facts as to what assistance the appellant obtained or procured or abetted or attempted to obtain or procure from which person and how the assistance furthered the prospects of the appellants election. If all the four variants and ingredients were to be charged against the appellant these had to be set out as statements of material facts in relation to each person.The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the elections.The gravament of the charge of corrupt practice within the meaning of section 123 (7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.In the present case, it is not necessary to go to the question as to whether the High Court was justified in disallowing the particulars and in refusing to recall the witnesses for the reasons given in the order, because paragraph 16 of the election petition on which the High Court relied to declare the election of the appellant void does not amount to an election petition on the grounds mentioned in section 123 (7) of the Act.
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Bajaj Auto Limited Vs. Rajendrakumar Jagannth Kathar & Others | To many employees appointments were given in similar way in seven years, eight years or nine years also. This is again a relevant circumstance for the decision of the present matters. This circumstance needs to be considered with other circumstance that company has admitted that rotation system was used during this period.18. The evidence of one Laxman More, Operational Manager of the company was recorded in Complaint (ULP) No.192 of 1997. His Department was looking after recruitment and termination of employees and this was done on the basis of requirements of Marketing and Production Department. His evidence shows that some such temporary employees were made permanent but that was done only upto the year 1993. Thus, after 1993 even when there were aforesaid circumstances, no such temporary employee was made permanent.19. The evidence of More further shows that the company tried to defend the case by contending that due to fluctuation of the demand in the market such temporary appointments were given. The evidence of More shows that he avoided to give the exact data yearwise about increase or decrease of productivity. His evidence shows that though in settlement of 1992 of the company with recognized union, the productivity was increased to 120% in relation to the work which each employee could do, temporary employees came to be appointed at least till the year 1999. The evidence of this witness shows that in or about year 1996, under settlement, the scheme of multi skill workers and multi operation machines was introduced by the company. In spite of this scheme, there were temporary employees till the year 1999.20. A report about total production in two units of the company, viz. Akurdi and Waluj was confronted with More in the cross-examination. More admitted that total production of 857023 units was done during 1989-90. He avoided to admit the separate increase given in respect of Waluj unit when suggestions were made to him. Following suggestions were made to him about the production of units in Waluj factory :-1990-91 - 289374;1991-92 - 309943;1992-93 - 377212;1993-94 - 501095;1994-95 - 589551;1995-96 - 673106;1996-97 - 652479;1997-98 - 646462At paragraph no.22 of the evidence of More, a letter dated 4.2.1998 of Vice President Shri Tripathi was confronted to More. In this letter Tripathi had informed that around 7640 workmen were required for 100% production. At paragraph no.24, More has admitted that temporary and permanent employees used to do the same job. At paragraph no.26, More has admitted that there was increase in production in the three years, but he has avoided to admit that the number of temporary employees appointed during this period increased due to increase in work. Paragraph no.26 of the evidence of More shows that he avoided to give evidence on the facts which were within his knowledge. The company has avoided to give aforesaid information by producing relevant record. The company has failed to explain the aforesaid admissions given by More and the conduct of More of avoiding to admit the aforesaid facts suggested to him.21. The evidence of Tripathi, Vice President of the company at paragraph 4 shows that he also avoided to admit the evidence of increase in production from the year 1990-91 onwards. His evidence was recorded in September, 2000, and his evidence shows that at the relevant time there were at least 5393 employees, which included 4161 permanent employees. Thus, more than 1000 temporary employees were continued till that year also.22. The General Manager of the company Shri Malshe has admitted at paragraph no.17 of the evidence that as per annual report of 1998-99 the sale and profit had increased every year from the year 1994-95 to 1998-99. At paragraph no.19, he has admitted the figures of production shown in annual report that the production increased from the year 1989-90 to 1996-97. This evidence and the figures are sufficient to infer that company was in need of more workmen, but the company preferred to appoint only temporary workmen during this period.23. The aforesaid evidence and circumstances are sufficient to infer that there was sufficient work with the company, the production was increasing, there was the demand to the vehicles of the company in the market and due to these circumstances, the temporary employees were appointed during all those years. On the basis of this evidence final decision was given by the Court in the previous proceedings that unfair labour practice under item no.6 is proved against the company. The present complainants, respondents were working during the same period and they were also appointed in similar manner. In view of these circumstances, no other inference is possible. The evidence and circumstances also show that the documentary evidence of concerned Departments was not produced by the company by giving excuse that such record (of manpower recruitment analysis, etc.) of pre - 1997 was destroyed. It is surprising that when in the year 1997 itself thousands of the complaints were filed in the Industrial Court, the company destroyed this record. In the pleadings no such defence was taken by the company. In view of these circumstances also, adverse inference needs to be drawn against the company.24. The evidence of Shri Suryawanshi, who was examined as additional witness for the present matters, shows that it is mainly in respect of the system of multi skill workers and multi operation machines used by the company from the year 1996. In view of the discussion already made, this Court holds that this evidence cannot make any difference.25. The aforesaid discussion shows that the decision of the Industrial Court and the learned Single Judge is based on the evidence and no interference is possible in the decision. It is true that the Industrial Court could have quoted the aforesaid evidence and circumstances for drawing the inference, but the Industrial Court has preferred only to observe that the evidence of previously decided matters and the present matters is similar in nature. Only because the aforesaid evidence is not specifically discussed, decision of Industrial Court cannot be set aside. | 0[ds]14. One case reported as 2007 II C.L.R. 514 S.C. (U.P. Power Corporation vs. Bijlee Majdoor Sangh) was cited. This case is on totally different point. The employee was not holding requisite qualification and the question of regularization of such temporarily employed workman was involved in the case. Similarly, in the other case, cited for company and reported as 2006 II C.L.R. 105 Bombay High Court (Pune Municipal Corporationors. vs. Dhananjay) the effect of the settlement between employer and employee was involved. In the present case, there is decision of the Apex Court in Bhojanes case cited supra, which on merits is in favour of similarly appointed temporary employees, and so, this reported case need not be discussedparagraph no.22 of the evidence of More, a letter dated 4.2.1998 of Vice President Shri Tripathi was confronted to More. In this letter Tripathi had informed that around 7640 workmen were required for 100% production. At paragraph no.24, More has admitted that temporary and permanent employees used to do the same job. At paragraph no.26, More has admitted that there was increase in production in the three years, but he has avoided to admit that the number of temporary employees appointed during this period increased due to increase in work. Paragraph no.26 of the evidence of More shows that he avoided to give evidence on the facts which were within his knowledge. The company has avoided to give aforesaid information by producing relevant record. The company has failed to explain the aforesaid admissions given by More and the conduct of More of avoiding to admit the aforesaid facts suggested to him.21. The evidence of Tripathi, Vice President of the company at paragraph 4 shows that he also avoided to admit the evidence of increase in production from the yearonwards. His evidence was recorded in September, 2000, and his evidence shows that at the relevant time there were at least 5393 employees, which included 4161 permanent employees. Thus, more than 1000 temporary employees were continued till that year also.22. The General Manager of the company Shri Malshe has admitted at paragraph no.17 of the evidence that as per annual report ofthe sale and profit had increased every year from the year9. At paragraph no.19, he has admitted the figures of production shown in annual report that the production increased from the year7. This evidence and the figures are sufficient to infer that company was in need of more workmen, but the company preferred to appoint only temporary workmen during this period.23. The aforesaid evidence and circumstances are sufficient to infer that there was sufficient work with the company, the production was increasing, there was the demand to the vehicles of the company in the market and due to these circumstances, the temporary employees were appointed during all those years. On the basis of this evidence final decision was given by the Court in the previous proceedings that unfair labour practice under item no.6 is proved against the company. The present complainants, respondents were working during the same period and they were also appointed in similar manner. In view of these circumstances, no other inference is possible. The evidence and circumstances also show that the documentary evidence of concerned Departments was not produced by the company by giving excuse that such record (of manpower recruitment analysis, etc.) of pre1997 was destroyed. It is surprising that when in the year 1997 itself thousands of the complaints were filed in the Industrial Court, the company destroyed this record. In the pleadings no such defence was taken by the company. In view of these circumstances also, adverse inference needs to be drawn against the company.24. The evidence of Shri Suryawanshi, who was examined as additional witness for the present matters, shows that it is mainly in respect of the system of multi skill workers and multi operation machines used by the company from the year 1996. In view of the discussion already made, this Court holds that this evidence cannot make any difference.25. The aforesaid discussion shows that the decision of the Industrial Court and the learned Single Judge is based on the evidence and no interference is possible in the decision. It is true that the Industrial Court could have quoted the aforesaid evidence and circumstances for drawing the inference, but the Industrial Court has preferred only to observe that the evidence of previously decided matters and the present matters is similar in nature. Only because the aforesaid evidence is not specifically discussed, decision of Industrial Court cannot be set aside. | 0 | 3,903 | 833 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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To many employees appointments were given in similar way in seven years, eight years or nine years also. This is again a relevant circumstance for the decision of the present matters. This circumstance needs to be considered with other circumstance that company has admitted that rotation system was used during this period.18. The evidence of one Laxman More, Operational Manager of the company was recorded in Complaint (ULP) No.192 of 1997. His Department was looking after recruitment and termination of employees and this was done on the basis of requirements of Marketing and Production Department. His evidence shows that some such temporary employees were made permanent but that was done only upto the year 1993. Thus, after 1993 even when there were aforesaid circumstances, no such temporary employee was made permanent.19. The evidence of More further shows that the company tried to defend the case by contending that due to fluctuation of the demand in the market such temporary appointments were given. The evidence of More shows that he avoided to give the exact data yearwise about increase or decrease of productivity. His evidence shows that though in settlement of 1992 of the company with recognized union, the productivity was increased to 120% in relation to the work which each employee could do, temporary employees came to be appointed at least till the year 1999. The evidence of this witness shows that in or about year 1996, under settlement, the scheme of multi skill workers and multi operation machines was introduced by the company. In spite of this scheme, there were temporary employees till the year 1999.20. A report about total production in two units of the company, viz. Akurdi and Waluj was confronted with More in the cross-examination. More admitted that total production of 857023 units was done during 1989-90. He avoided to admit the separate increase given in respect of Waluj unit when suggestions were made to him. Following suggestions were made to him about the production of units in Waluj factory :-1990-91 - 289374;1991-92 - 309943;1992-93 - 377212;1993-94 - 501095;1994-95 - 589551;1995-96 - 673106;1996-97 - 652479;1997-98 - 646462At paragraph no.22 of the evidence of More, a letter dated 4.2.1998 of Vice President Shri Tripathi was confronted to More. In this letter Tripathi had informed that around 7640 workmen were required for 100% production. At paragraph no.24, More has admitted that temporary and permanent employees used to do the same job. At paragraph no.26, More has admitted that there was increase in production in the three years, but he has avoided to admit that the number of temporary employees appointed during this period increased due to increase in work. Paragraph no.26 of the evidence of More shows that he avoided to give evidence on the facts which were within his knowledge. The company has avoided to give aforesaid information by producing relevant record. The company has failed to explain the aforesaid admissions given by More and the conduct of More of avoiding to admit the aforesaid facts suggested to him.21. The evidence of Tripathi, Vice President of the company at paragraph 4 shows that he also avoided to admit the evidence of increase in production from the year 1990-91 onwards. His evidence was recorded in September, 2000, and his evidence shows that at the relevant time there were at least 5393 employees, which included 4161 permanent employees. Thus, more than 1000 temporary employees were continued till that year also.22. The General Manager of the company Shri Malshe has admitted at paragraph no.17 of the evidence that as per annual report of 1998-99 the sale and profit had increased every year from the year 1994-95 to 1998-99. At paragraph no.19, he has admitted the figures of production shown in annual report that the production increased from the year 1989-90 to 1996-97. This evidence and the figures are sufficient to infer that company was in need of more workmen, but the company preferred to appoint only temporary workmen during this period.23. The aforesaid evidence and circumstances are sufficient to infer that there was sufficient work with the company, the production was increasing, there was the demand to the vehicles of the company in the market and due to these circumstances, the temporary employees were appointed during all those years. On the basis of this evidence final decision was given by the Court in the previous proceedings that unfair labour practice under item no.6 is proved against the company. The present complainants, respondents were working during the same period and they were also appointed in similar manner. In view of these circumstances, no other inference is possible. The evidence and circumstances also show that the documentary evidence of concerned Departments was not produced by the company by giving excuse that such record (of manpower recruitment analysis, etc.) of pre - 1997 was destroyed. It is surprising that when in the year 1997 itself thousands of the complaints were filed in the Industrial Court, the company destroyed this record. In the pleadings no such defence was taken by the company. In view of these circumstances also, adverse inference needs to be drawn against the company.24. The evidence of Shri Suryawanshi, who was examined as additional witness for the present matters, shows that it is mainly in respect of the system of multi skill workers and multi operation machines used by the company from the year 1996. In view of the discussion already made, this Court holds that this evidence cannot make any difference.25. The aforesaid discussion shows that the decision of the Industrial Court and the learned Single Judge is based on the evidence and no interference is possible in the decision. It is true that the Industrial Court could have quoted the aforesaid evidence and circumstances for drawing the inference, but the Industrial Court has preferred only to observe that the evidence of previously decided matters and the present matters is similar in nature. Only because the aforesaid evidence is not specifically discussed, decision of Industrial Court cannot be set aside.
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14. One case reported as 2007 II C.L.R. 514 S.C. (U.P. Power Corporation vs. Bijlee Majdoor Sangh) was cited. This case is on totally different point. The employee was not holding requisite qualification and the question of regularization of such temporarily employed workman was involved in the case. Similarly, in the other case, cited for company and reported as 2006 II C.L.R. 105 Bombay High Court (Pune Municipal Corporationors. vs. Dhananjay) the effect of the settlement between employer and employee was involved. In the present case, there is decision of the Apex Court in Bhojanes case cited supra, which on merits is in favour of similarly appointed temporary employees, and so, this reported case need not be discussedparagraph no.22 of the evidence of More, a letter dated 4.2.1998 of Vice President Shri Tripathi was confronted to More. In this letter Tripathi had informed that around 7640 workmen were required for 100% production. At paragraph no.24, More has admitted that temporary and permanent employees used to do the same job. At paragraph no.26, More has admitted that there was increase in production in the three years, but he has avoided to admit that the number of temporary employees appointed during this period increased due to increase in work. Paragraph no.26 of the evidence of More shows that he avoided to give evidence on the facts which were within his knowledge. The company has avoided to give aforesaid information by producing relevant record. The company has failed to explain the aforesaid admissions given by More and the conduct of More of avoiding to admit the aforesaid facts suggested to him.21. The evidence of Tripathi, Vice President of the company at paragraph 4 shows that he also avoided to admit the evidence of increase in production from the yearonwards. His evidence was recorded in September, 2000, and his evidence shows that at the relevant time there were at least 5393 employees, which included 4161 permanent employees. Thus, more than 1000 temporary employees were continued till that year also.22. The General Manager of the company Shri Malshe has admitted at paragraph no.17 of the evidence that as per annual report ofthe sale and profit had increased every year from the year9. At paragraph no.19, he has admitted the figures of production shown in annual report that the production increased from the year7. This evidence and the figures are sufficient to infer that company was in need of more workmen, but the company preferred to appoint only temporary workmen during this period.23. The aforesaid evidence and circumstances are sufficient to infer that there was sufficient work with the company, the production was increasing, there was the demand to the vehicles of the company in the market and due to these circumstances, the temporary employees were appointed during all those years. On the basis of this evidence final decision was given by the Court in the previous proceedings that unfair labour practice under item no.6 is proved against the company. The present complainants, respondents were working during the same period and they were also appointed in similar manner. In view of these circumstances, no other inference is possible. The evidence and circumstances also show that the documentary evidence of concerned Departments was not produced by the company by giving excuse that such record (of manpower recruitment analysis, etc.) of pre1997 was destroyed. It is surprising that when in the year 1997 itself thousands of the complaints were filed in the Industrial Court, the company destroyed this record. In the pleadings no such defence was taken by the company. In view of these circumstances also, adverse inference needs to be drawn against the company.24. The evidence of Shri Suryawanshi, who was examined as additional witness for the present matters, shows that it is mainly in respect of the system of multi skill workers and multi operation machines used by the company from the year 1996. In view of the discussion already made, this Court holds that this evidence cannot make any difference.25. The aforesaid discussion shows that the decision of the Industrial Court and the learned Single Judge is based on the evidence and no interference is possible in the decision. It is true that the Industrial Court could have quoted the aforesaid evidence and circumstances for drawing the inference, but the Industrial Court has preferred only to observe that the evidence of previously decided matters and the present matters is similar in nature. Only because the aforesaid evidence is not specifically discussed, decision of Industrial Court cannot be set aside.
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Shell Oil Storage and Distributing Company of India, Limited Vs. Burmah-Their Workmen and Another | This is the only decision of this Court brought to our notice dealing with the age of superannuation of workmen in the Delhi area. But from the award of the the tribunal, it is seen that in as many as 22 concerns in Delhi area, the age of superannuation of workmen has been fixed either by settlements or by awards at 60 years. In Workmen of Jessop & Co., Ltd. v. Jessop & Co. [1964-I L.L.J. 451], a company situate in West Bengal, this Court fixed the age of superannuation at 58 years. Again in Workmen of Balmer Lawrie & Co., Ltd. v. Balmer Lawrie & Co., Ltd. and another [1964-I L.L.J. 380], a company situated in West Bengal, this Court fixed the age of superannuation at 58 years. That judgment was delivered on 7 November 1963.10. From the various decisions rendered by this Court and by the tribunals, it is obvious that the trend is to raise the age of superannuation. It is also from those decisions that so far as Bombay, Calcutta and Delhi areas are concerned, the trend appears to raise the age of superannuation to 60 years.11. In fixing the age of superannuation, several circumstances have to be taken into consideration, as observed by this Court in Guest, Keen, Williams (Private), Ltd. v. Sterling (P. J.) and others [1959-II L.L.J. 405.]. Speaking for the Court, Gajendragadkar, J. (as he then was), observed therein (at p. 415) :"..... In fixing the age of superannuation industrial tribunals have to take into account several relevant factors. What is the nature of the work assigned to the employees in the course of their employment ? What is the nature of the wage-structure paid to them ? What are the retirement benefits and other amenities available to them ? What is the character of the climate where the employees work and what is the age of superannuation fixed in comparable industries in the same region ? What is generally the practice prevailing in the industry in the past in the matter of retiring its employees ? These and other relevant facts have to be weighed by the tribunal in every case when it is called upon to fix an age of superannuation in an industrial dispute ...."In the instant case, the tribunal did not find that, as compared with other concerns, the wage structure in the appellant-company is unsatisfactory. Taking into consideration the wage structure in other comparable concerns, the wages paid by the appellant-company must be considered as reasonable. As mentioned earlier, so far as clerical staff is concerned, a pension scheme is in operation in the appellant-concern. The tribunal did not find that that scheme is not a fair one. We have ourselves examined the scheme; compared with the pension scheme prevailing either in the Union Government, or in the State Governments, that scheme must be considered as a fair one. So far as the other workmen are concerned, there is no pension scheme. Those workmen are no doubt paid some gratuity at the time of their retirement; but that payment is wholly inadequate to meet their obligations during their retired life. We are told that they are paid fifteen months salary as gratuity. This cannot be considered as an adequate substitute for pension.12. In Imperial Chemical Industries (India) (Private), Ltd., Bombay v. Its workmen [1960-II L.L.J. 716], this Court observed (at p. 719) :"... It is generally recognized in industrial adjudication that where an employer adopts a fair and reasonable pension scheme, that would play an important part in fixing the age of retirement at a comparatively earlier stage. If a retired employee can legitimately look forward to the prospect of earning a pension, then the hardship resulting from early compulsory retirement is considerably mitigated; that is why cases where there is a fair and reasonable scheme of pension in vogue would not be comparable or even relevant in dealing with the age of retirement in a concern where there is no such pension scheme ...."It is true that the pension payable is not adequate to meet the obligations of the superannuated workman. The same is the case with the retired Government servants; probably their position is worse. That is one of the hardships of an undeveloped or a developing country.13. Out of the 22 concerns, which the tribunal considered as comparable concerns in the matter of fixing the retirement age, 20 had no pension schemes. The remaining 2 are the banks and the Imperial Chemicals (India) (Private), Ltd, Company. In those concerns the age of superannuation is 60 years. In addition, they have pension schemes. But, it must be noted that a pension scheme was introduced in the Imperial Chemicals (Private), Ltd., by a settlement after the age of superannuation was raised to 60 years by this Court. In the case of banks also the age of superannuation as well as the pension schemes were settled by settlements between the employers and the workmen. From these two stray instances it is not possible to draw the inference that in the Delhi area there is a trend to fix the age of retirement at 60 years even in the case of companies where there fair pension schemes. Social security for the weaker sections of our nation is of utmost importance. But then we cannot forget the limitations under which we are living. While we should not forget our social goals, our purpose may be defeated if we do not approach our problems in a pragmatic way. It is one thing to settle dispute by agreement, which affects only the interests of the parties to the agreement; it is a quite different thing for this Court to lay down a rule which will have a wider application.14. We are of the opinion that the tribunal failed to attach sufficient significance to the fact that in the appellant company there is a fair pension scheme for the clerical staff and that circumstance distinguished their case from of the other workmen. | 0[ds]We have ourselves examined the scheme; compared with the pension scheme prevailing either in the Union Government, or in the State Governments, that scheme must be considered as a fair one. So far as the other workmen are concerned, there is no pension scheme. Those workmen are no doubt paid some gratuity at the time of their retirement; but that payment is wholly inadequate to meet their obligations during their retired life. We are told that they are paid fifteen months salary as gratuity. This cannot be considered as an adequate substitute for pension.Out of the 22 concerns, which the tribunal considered as comparable concerns in the matter of fixing the retirement age, 20 had no pension schemes. The remaining 2 are the banks and the Imperial Chemicals (India) (Private), Ltd, Company. In those concerns the age of superannuation is 60 years. In addition, they have pension schemes. But, it must be noted that a pension scheme was introduced in the Imperial Chemicals (Private), Ltd., by a settlement after the age of superannuation was raised to 60 years by this Court. In the case of banks also the age of superannuation as well as the pension schemes were settled by settlements between the employers and the workmen. From these two stray instances it is not possible to draw the inference that in the Delhi area there is a trend to fix the age of retirement at 60 years even in the case of companies where there fair pension schemes. Social security for the weaker sections of our nation is of utmost importance. But then we cannot forget the limitations under which we are living. While we should not forget our social goals, our purpose may be defeated if we do not approach our problems in a pragmatic way. It is one thing to settle dispute by agreement, which affects only the interests of the parties to the agreement; it is a quite different thing for this Court to lay down a rule which will have a wideris not the case of the appellant that there is any uniform age of superannuation for its workmen throughout India. The agreements referred to earlier relate only to Bombay and Calcutta areas. it does not appear that there are similar agreements between the management and the workmen in other areas. Therefore, the fact that thedia concern has no significance for our present purpose.We are of the opinion that the tribunal failed to attach sufficient significance to the fact that in the appellant company there is a fair pension scheme for the clerical staff and that circumstance distinguished their case from of the other workmen. | 0 | 2,328 | 487 | ### 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:
This is the only decision of this Court brought to our notice dealing with the age of superannuation of workmen in the Delhi area. But from the award of the the tribunal, it is seen that in as many as 22 concerns in Delhi area, the age of superannuation of workmen has been fixed either by settlements or by awards at 60 years. In Workmen of Jessop & Co., Ltd. v. Jessop & Co. [1964-I L.L.J. 451], a company situate in West Bengal, this Court fixed the age of superannuation at 58 years. Again in Workmen of Balmer Lawrie & Co., Ltd. v. Balmer Lawrie & Co., Ltd. and another [1964-I L.L.J. 380], a company situated in West Bengal, this Court fixed the age of superannuation at 58 years. That judgment was delivered on 7 November 1963.10. From the various decisions rendered by this Court and by the tribunals, it is obvious that the trend is to raise the age of superannuation. It is also from those decisions that so far as Bombay, Calcutta and Delhi areas are concerned, the trend appears to raise the age of superannuation to 60 years.11. In fixing the age of superannuation, several circumstances have to be taken into consideration, as observed by this Court in Guest, Keen, Williams (Private), Ltd. v. Sterling (P. J.) and others [1959-II L.L.J. 405.]. Speaking for the Court, Gajendragadkar, J. (as he then was), observed therein (at p. 415) :"..... In fixing the age of superannuation industrial tribunals have to take into account several relevant factors. What is the nature of the work assigned to the employees in the course of their employment ? What is the nature of the wage-structure paid to them ? What are the retirement benefits and other amenities available to them ? What is the character of the climate where the employees work and what is the age of superannuation fixed in comparable industries in the same region ? What is generally the practice prevailing in the industry in the past in the matter of retiring its employees ? These and other relevant facts have to be weighed by the tribunal in every case when it is called upon to fix an age of superannuation in an industrial dispute ...."In the instant case, the tribunal did not find that, as compared with other concerns, the wage structure in the appellant-company is unsatisfactory. Taking into consideration the wage structure in other comparable concerns, the wages paid by the appellant-company must be considered as reasonable. As mentioned earlier, so far as clerical staff is concerned, a pension scheme is in operation in the appellant-concern. The tribunal did not find that that scheme is not a fair one. We have ourselves examined the scheme; compared with the pension scheme prevailing either in the Union Government, or in the State Governments, that scheme must be considered as a fair one. So far as the other workmen are concerned, there is no pension scheme. Those workmen are no doubt paid some gratuity at the time of their retirement; but that payment is wholly inadequate to meet their obligations during their retired life. We are told that they are paid fifteen months salary as gratuity. This cannot be considered as an adequate substitute for pension.12. In Imperial Chemical Industries (India) (Private), Ltd., Bombay v. Its workmen [1960-II L.L.J. 716], this Court observed (at p. 719) :"... It is generally recognized in industrial adjudication that where an employer adopts a fair and reasonable pension scheme, that would play an important part in fixing the age of retirement at a comparatively earlier stage. If a retired employee can legitimately look forward to the prospect of earning a pension, then the hardship resulting from early compulsory retirement is considerably mitigated; that is why cases where there is a fair and reasonable scheme of pension in vogue would not be comparable or even relevant in dealing with the age of retirement in a concern where there is no such pension scheme ...."It is true that the pension payable is not adequate to meet the obligations of the superannuated workman. The same is the case with the retired Government servants; probably their position is worse. That is one of the hardships of an undeveloped or a developing country.13. Out of the 22 concerns, which the tribunal considered as comparable concerns in the matter of fixing the retirement age, 20 had no pension schemes. The remaining 2 are the banks and the Imperial Chemicals (India) (Private), Ltd, Company. In those concerns the age of superannuation is 60 years. In addition, they have pension schemes. But, it must be noted that a pension scheme was introduced in the Imperial Chemicals (Private), Ltd., by a settlement after the age of superannuation was raised to 60 years by this Court. In the case of banks also the age of superannuation as well as the pension schemes were settled by settlements between the employers and the workmen. From these two stray instances it is not possible to draw the inference that in the Delhi area there is a trend to fix the age of retirement at 60 years even in the case of companies where there fair pension schemes. Social security for the weaker sections of our nation is of utmost importance. But then we cannot forget the limitations under which we are living. While we should not forget our social goals, our purpose may be defeated if we do not approach our problems in a pragmatic way. It is one thing to settle dispute by agreement, which affects only the interests of the parties to the agreement; it is a quite different thing for this Court to lay down a rule which will have a wider application.14. We are of the opinion that the tribunal failed to attach sufficient significance to the fact that in the appellant company there is a fair pension scheme for the clerical staff and that circumstance distinguished their case from of the other workmen.
### Response:
0
### Explanation:
We have ourselves examined the scheme; compared with the pension scheme prevailing either in the Union Government, or in the State Governments, that scheme must be considered as a fair one. So far as the other workmen are concerned, there is no pension scheme. Those workmen are no doubt paid some gratuity at the time of their retirement; but that payment is wholly inadequate to meet their obligations during their retired life. We are told that they are paid fifteen months salary as gratuity. This cannot be considered as an adequate substitute for pension.Out of the 22 concerns, which the tribunal considered as comparable concerns in the matter of fixing the retirement age, 20 had no pension schemes. The remaining 2 are the banks and the Imperial Chemicals (India) (Private), Ltd, Company. In those concerns the age of superannuation is 60 years. In addition, they have pension schemes. But, it must be noted that a pension scheme was introduced in the Imperial Chemicals (Private), Ltd., by a settlement after the age of superannuation was raised to 60 years by this Court. In the case of banks also the age of superannuation as well as the pension schemes were settled by settlements between the employers and the workmen. From these two stray instances it is not possible to draw the inference that in the Delhi area there is a trend to fix the age of retirement at 60 years even in the case of companies where there fair pension schemes. Social security for the weaker sections of our nation is of utmost importance. But then we cannot forget the limitations under which we are living. While we should not forget our social goals, our purpose may be defeated if we do not approach our problems in a pragmatic way. It is one thing to settle dispute by agreement, which affects only the interests of the parties to the agreement; it is a quite different thing for this Court to lay down a rule which will have a wideris not the case of the appellant that there is any uniform age of superannuation for its workmen throughout India. The agreements referred to earlier relate only to Bombay and Calcutta areas. it does not appear that there are similar agreements between the management and the workmen in other areas. Therefore, the fact that thedia concern has no significance for our present purpose.We are of the opinion that the tribunal failed to attach sufficient significance to the fact that in the appellant company there is a fair pension scheme for the clerical staff and that circumstance distinguished their case from of the other workmen.
|
Kamaraju Venkata Krishna Rao Vs. The Sub-Collector, Ongole And Anr | is but a caput mortuum, and some human agency is always required to take delivery of property and to apply it to the intended purposes. Their Lordships, with all respect to the High Court of Lahore, must not be taken as deciding that a "juristic personality" may be extended for any purpose to Muslim institutions generally or to mosques in particular. On this general question they reserve their opinion."We may at this stage state that the Act has not defined either the expression "charitable institution" or even "institution." Therefore we have to find out the meaning of that term with reference to the context in which it is found. We must remember that the expression "charitable institution" is used in a statute which abolishes Inams. The Inam in question must undoubtedly have been granted by a Hindu. Most of the Inams abolished by the Act were those granted by Hindu Kings in the past. According to Hindu conceptions a tank has always been considered as an object of charity. In the Tagore Law Lectures delivered in 1892 by late Pandit Prannath Saraswati on "The Hindu Law of Endowments", he stated:"From very ancient times the sacred writing of the Hindus divided works productive of religious merit into two divisions named ishta and purta a classification which has come down to our times. So much so that the entire objects of Hindu endowments will be found included within the enumeration of ishta and purta works. In the Rig Veda ishtapurttam (sacrifices and charities) are described as means of the going to heaven. In commenting on the same passage Sayana explained ishtapurtta to denote "the gifts bestowed in srauta and amarka rites." In the Taittiriya Aranyaka, ishtapurtta occur in much the same sense and Sayana in commenting on the same explains ishta to denote "Vedic rites like Darsa, Purnamasa etc." and purta "to denote Smarkta works like tanks, wells etc."At page 26 he again quotes Vyasa in these words:"Tanks, wells with flights of steps, temples, the bestowing of foods, and groves-these are called purttam."At page 27, the learned lecturer enumerates the purtta works. Amongst them is included the construction of works for the storage of water, as wells, baolis, tanks, etc. the learned lecturer devotes his tenth lecture to "purtta". In the course of that lecture he again states that the construction of reservoirs of water is classed by Hindu sages amongst the "purtta" and charitable works. In this connection he quotes from various treatises such as:(i) Ashwalayana Grihya Parishishta;(ii) Vishnu Dharmottara;(iii) Skanda purana;(iv)Nandi Purana;(v) Aditya Purana;(vi)Yama;(vii)Mahabharata, etc. etc.7. In Jamnabai. v.Khimji Vullubdass, (1890) ILR 14 Bom 1 at p. 9, Sir Charles Sargent Kt., C. J., while interpreting a will observed thus:"We come to the latter part of cl .6 which directs the building of a well and "avada", (cistern for animals to drink water from), out of the surplus of his fund after providing for the outlay of the two sadavartas and repairing his property. Mr. Justice Jardine considered he could not presume a charitable object in a well and "avada". Such an object is so frequently the result of charitable intention in Oriental countries, and is so entirely in accordance with the notions of the people of this country that we think that, in the absence of anything to show that the testator intended the well and "avada" to be built for the benefit of the property - and there is nothing in the present will to show such intention - they should be presumed to have intended by the testator for the use of the public."8. In V. Marivappa v. B. K. Puttaramayya, ILR (1957) Mys 291= (AIR 1958 Mys 93), a Division Bench of the Mysore High Court observed thus:"The maintenance of Sadavartas, tanks, seats of learning and homes for the disabled or the destitute and similar institutions is recognised by and well known to Hindu Law, and when maintained as public institutions they must be taken to have a legal personality as a Matha or the deity in a temple has, and the persons in charge of the Management would occupy a position of trust."That decision proceeds on the basis that a tank can be a charitable institution under Hindu Law. That decision was quoted with approval by late Bijan Kumar Mukherjea who later became the Chief justice of this Court in his Tagore Law Lectures delivered in August, 1951.Therein he observed: ."It has been held that though Mutts and temples are the most common forms of Hindu religious institutions, dedication for religious or charitable purposes need not necessarily take one of these forms and that the maintenance of Sadavartas, tanks, seats of learning and homes for the disabled or the destitutes and similar institutions are recognised by and well known to Hindu Law and when maintained as public institutions, they must be taken to have a legal personality as a Matha or the deity in a temple has, and the persons in charge of the management would occupy a position of trust.9. From the above discussion it is seen that under Hindu Law a tank can be an object of charity and when a dedication is made in favour of a tank, the same is considered as a charitable institution. It is not necessary for our present purpose to decide whether that institution can also be considered as a juristic person. Once we come to the conclusion at the Inam with which we are concerned in this case was an lnam in favour of the "uracheruvu" (tank) that tank must be considered as a charitable institution under the Act institution Consequently after the abolition of the Inam, the Inam property gets itself converted into Royatwari property, of the uracheruvu", to be managed by its Manager. Admittedly the appellant is its present Manager. Hence the property in question has to be registered in the name of the tank but it will continue to be managed by the appellant so long as he continues to be its Manager. | 0[ds]4. From these entries it is clear that the Inam was granted in favour of the tank known as "uracheruvu." It has been so considered at least ever since 1819. Therefore we are unable to uphold the contention of the appellant that it was a grant in favour of his family subject to the liability to repair the tank. It appears that the ancestors of the appellant and at present the appellant is looking after the management of the tank.From the above discussion it is seen that under Hindu Law a tank can be an object of charity and when a dedication is made in favour of a tank, the same is considered as a charitable institution. It is not necessary for our present purpose to decide whether that institution can also be considered as a juristic person. Once we come to the conclusion at the Inam with which we are concerned in this case was an lnam in favour of the "uracheruvu" (tank) that tank must be considered as a charitable institution under the Act institution Consequently after the abolition of the Inam, the Inam property gets itself converted into Royatwari property, of the uracheruvu", to be managed by its Manager. Admittedly the appellant is its present Manager. Hence the property in question has to be registered in the name of the tank but it will continue to be managed by the appellant so long as he continues to be its Manager. | 0 | 2,068 | 267 | ### 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:
is but a caput mortuum, and some human agency is always required to take delivery of property and to apply it to the intended purposes. Their Lordships, with all respect to the High Court of Lahore, must not be taken as deciding that a "juristic personality" may be extended for any purpose to Muslim institutions generally or to mosques in particular. On this general question they reserve their opinion."We may at this stage state that the Act has not defined either the expression "charitable institution" or even "institution." Therefore we have to find out the meaning of that term with reference to the context in which it is found. We must remember that the expression "charitable institution" is used in a statute which abolishes Inams. The Inam in question must undoubtedly have been granted by a Hindu. Most of the Inams abolished by the Act were those granted by Hindu Kings in the past. According to Hindu conceptions a tank has always been considered as an object of charity. In the Tagore Law Lectures delivered in 1892 by late Pandit Prannath Saraswati on "The Hindu Law of Endowments", he stated:"From very ancient times the sacred writing of the Hindus divided works productive of religious merit into two divisions named ishta and purta a classification which has come down to our times. So much so that the entire objects of Hindu endowments will be found included within the enumeration of ishta and purta works. In the Rig Veda ishtapurttam (sacrifices and charities) are described as means of the going to heaven. In commenting on the same passage Sayana explained ishtapurtta to denote "the gifts bestowed in srauta and amarka rites." In the Taittiriya Aranyaka, ishtapurtta occur in much the same sense and Sayana in commenting on the same explains ishta to denote "Vedic rites like Darsa, Purnamasa etc." and purta "to denote Smarkta works like tanks, wells etc."At page 26 he again quotes Vyasa in these words:"Tanks, wells with flights of steps, temples, the bestowing of foods, and groves-these are called purttam."At page 27, the learned lecturer enumerates the purtta works. Amongst them is included the construction of works for the storage of water, as wells, baolis, tanks, etc. the learned lecturer devotes his tenth lecture to "purtta". In the course of that lecture he again states that the construction of reservoirs of water is classed by Hindu sages amongst the "purtta" and charitable works. In this connection he quotes from various treatises such as:(i) Ashwalayana Grihya Parishishta;(ii) Vishnu Dharmottara;(iii) Skanda purana;(iv)Nandi Purana;(v) Aditya Purana;(vi)Yama;(vii)Mahabharata, etc. etc.7. In Jamnabai. v.Khimji Vullubdass, (1890) ILR 14 Bom 1 at p. 9, Sir Charles Sargent Kt., C. J., while interpreting a will observed thus:"We come to the latter part of cl .6 which directs the building of a well and "avada", (cistern for animals to drink water from), out of the surplus of his fund after providing for the outlay of the two sadavartas and repairing his property. Mr. Justice Jardine considered he could not presume a charitable object in a well and "avada". Such an object is so frequently the result of charitable intention in Oriental countries, and is so entirely in accordance with the notions of the people of this country that we think that, in the absence of anything to show that the testator intended the well and "avada" to be built for the benefit of the property - and there is nothing in the present will to show such intention - they should be presumed to have intended by the testator for the use of the public."8. In V. Marivappa v. B. K. Puttaramayya, ILR (1957) Mys 291= (AIR 1958 Mys 93), a Division Bench of the Mysore High Court observed thus:"The maintenance of Sadavartas, tanks, seats of learning and homes for the disabled or the destitute and similar institutions is recognised by and well known to Hindu Law, and when maintained as public institutions they must be taken to have a legal personality as a Matha or the deity in a temple has, and the persons in charge of the Management would occupy a position of trust."That decision proceeds on the basis that a tank can be a charitable institution under Hindu Law. That decision was quoted with approval by late Bijan Kumar Mukherjea who later became the Chief justice of this Court in his Tagore Law Lectures delivered in August, 1951.Therein he observed: ."It has been held that though Mutts and temples are the most common forms of Hindu religious institutions, dedication for religious or charitable purposes need not necessarily take one of these forms and that the maintenance of Sadavartas, tanks, seats of learning and homes for the disabled or the destitutes and similar institutions are recognised by and well known to Hindu Law and when maintained as public institutions, they must be taken to have a legal personality as a Matha or the deity in a temple has, and the persons in charge of the management would occupy a position of trust.9. From the above discussion it is seen that under Hindu Law a tank can be an object of charity and when a dedication is made in favour of a tank, the same is considered as a charitable institution. It is not necessary for our present purpose to decide whether that institution can also be considered as a juristic person. Once we come to the conclusion at the Inam with which we are concerned in this case was an lnam in favour of the "uracheruvu" (tank) that tank must be considered as a charitable institution under the Act institution Consequently after the abolition of the Inam, the Inam property gets itself converted into Royatwari property, of the uracheruvu", to be managed by its Manager. Admittedly the appellant is its present Manager. Hence the property in question has to be registered in the name of the tank but it will continue to be managed by the appellant so long as he continues to be its Manager.
### Response:
0
### Explanation:
4. From these entries it is clear that the Inam was granted in favour of the tank known as "uracheruvu." It has been so considered at least ever since 1819. Therefore we are unable to uphold the contention of the appellant that it was a grant in favour of his family subject to the liability to repair the tank. It appears that the ancestors of the appellant and at present the appellant is looking after the management of the tank.From the above discussion it is seen that under Hindu Law a tank can be an object of charity and when a dedication is made in favour of a tank, the same is considered as a charitable institution. It is not necessary for our present purpose to decide whether that institution can also be considered as a juristic person. Once we come to the conclusion at the Inam with which we are concerned in this case was an lnam in favour of the "uracheruvu" (tank) that tank must be considered as a charitable institution under the Act institution Consequently after the abolition of the Inam, the Inam property gets itself converted into Royatwari property, of the uracheruvu", to be managed by its Manager. Admittedly the appellant is its present Manager. Hence the property in question has to be registered in the name of the tank but it will continue to be managed by the appellant so long as he continues to be its Manager.
|
Commissioner of Income Tax, M. P., Nagpur and Bhandara Vs. Kalooram Govindram | SHAH J. 1.The respondent is a Hindu undivided family which carried on business among others in oil mills, sugar mills and ginning factories. The respondent formed an association with another Hindu undivided family Ganga Prasad Bachhulal---to carry on a business styled "Govindram Sugar Mills". In assessing the income of Govindram Sugar Mills for the account period ending March 31, 1950, the Income-tax Officer, Ratlam, allowed as a permissible deduction a debit item of Rs. 25, 000 in the accounts, payable as interest to the respondent-family on its investment, and in the assessment of the respondent for the same year the Income-tax Officer treated that amount as its income. In the relevant year of account Govindram Sugar Mills had incurred loss, and the loss being of an association of persons, the Income-tax Officer declined to allow the respondents share of loss in its assessment, and rejected the contention of the respondent that no income had in fact been earned by the respondent. The Appellate Assistant Commissioner confirmed the order of the Income-tax Officer. But the Income-tax Appellate Tribunal allowed the appeal and deleted the interest on investment in the computation of the income of the respondent. The Tribunal observed that "The assessees total profit from the mills. . .. arises on account of the carrying on of the mills. Allowance of interest is only an appropriation of the same profits in order to adjust the rights of the various members inter se. Therefore ... it is not correct for the department to include as an item of income and disallow the loss on the ground that it is a loss of an association of persons. If the assessee is a member of that association, the interest plus his profits or minus the loss is the total income which be earns from that association." In considering the following question referred by the Tribunal : "Whether, on the facts and in the circumstances of the case, interest calculated on the advance made to Govindram Sugar Mills is assessable in the hands of the assessee?" the High Court of Madhya Pradesh held that the entries posted in the books of account of Govindram Sugar Mills were merely book entries and were not conclusive of the question whether the respondent had become entitled to the sum. In the view of the High Court the credit entry on account of interest in favour of the respondent for an amount less than the respondents share of loss in the business must be regarded as a mere book entry and "having regard to the substance of the matter, there was no real income in the shape of interest on the capital invested in the business." Against this order passed by the High Court, with certificate of fitness granted by the High Court, this appeal has been preferred 2. In our view, the High Court was right in holding that there was no real income received by the respondent. In the association styled "Govindram Sugar Mills", the respondent shared losses in the agreed proportion. Govindram Sugar Mills incurred heavy losses in its business transactions in the relevant year of account. Debit entries in the books of account of the association relating to interest deemed payable on investments were posted, but it could not as a matter of law be inferred therefrom that any part of the income of the association was distributed. The share of the respondent in the loss suffered by Govindram Sugar Mills was considerably in excess of the amount of interest debited as payable in the respondents account with the association. Entries relating to interest payable to the two members of the association were posted merely for apportionment of part of the loss suffered by the sugar mills : they represented no real income to the two members. The Tribunal and the High Court were, therefore, right in regarding the entry as a mere book entry not representing true incomeCounsel for the Commissioner urged that as the amount of interest was allowed as a permissible outgoing in the assessment of the association, a corresponding amount should be regarded as received by the respondent as income. But an error in the assessment of the association cannot be permitted to be perpetuated by repeating it in the assessment of the respondent. It is true that the interest debited to the profit and loss account of the association to the two members is not in proportion to their respective shares in the profit and loss according to the terms of the agreement. But apportionment of loss suffered by the association, in proportion to the investments of the two members and not in proportion to their stipulated shares in profit and loss, does not convert the debit items into real income accruing to the two members. 3. | 0[ds]In our view, the High Court was right in holding that there was no real income received by the respondent. In the association styledm Sugar, the respondent shared losses in the agreed proportion.m SugarMills incurred heavy losses in its business transactions in the relevant year of account. Debit entries in the books of account of the association relating to interest deemed payable on investments were posted, but it could not as a matter of law be inferred therefrom that any part of the income of the association was distributed. The share of the respondent in the loss suffered bym SugarMills was considerably in excess of the amount of interest debited as payable in the respondents account with the association. Entries relating to interest payable to the two members of the association were posted merely for apportionment of part of the loss suffered by the sugar mills : they represented no real income to the two members. The Tribunal and the High Court were, therefore, right in regarding the entry as a mere book entry not representing true incomeCounsel for the Commissioner urged that as the amount of interest was allowed as a permissible outgoing in the assessment of the association, acorresponding amount should be regarded as received by the respondent as income. But an error in the assessment of the association cannot be permitted to be perpetuated by repeating it in the assessment of the respondent. It is true that the interest debited to the profit and loss account of the association to the two members is not in proportion to their respective shares in the profit and loss according to the terms of the agreement. But apportionment of loss suffered by the association, in proportion to the investments of the two members and not in proportion to their stipulated shares in profit and loss, does not convert the debit items into real income accruing to the two members. | 0 | 863 | 341 | ### 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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SHAH J. 1.The respondent is a Hindu undivided family which carried on business among others in oil mills, sugar mills and ginning factories. The respondent formed an association with another Hindu undivided family Ganga Prasad Bachhulal---to carry on a business styled "Govindram Sugar Mills". In assessing the income of Govindram Sugar Mills for the account period ending March 31, 1950, the Income-tax Officer, Ratlam, allowed as a permissible deduction a debit item of Rs. 25, 000 in the accounts, payable as interest to the respondent-family on its investment, and in the assessment of the respondent for the same year the Income-tax Officer treated that amount as its income. In the relevant year of account Govindram Sugar Mills had incurred loss, and the loss being of an association of persons, the Income-tax Officer declined to allow the respondents share of loss in its assessment, and rejected the contention of the respondent that no income had in fact been earned by the respondent. The Appellate Assistant Commissioner confirmed the order of the Income-tax Officer. But the Income-tax Appellate Tribunal allowed the appeal and deleted the interest on investment in the computation of the income of the respondent. The Tribunal observed that "The assessees total profit from the mills. . .. arises on account of the carrying on of the mills. Allowance of interest is only an appropriation of the same profits in order to adjust the rights of the various members inter se. Therefore ... it is not correct for the department to include as an item of income and disallow the loss on the ground that it is a loss of an association of persons. If the assessee is a member of that association, the interest plus his profits or minus the loss is the total income which be earns from that association." In considering the following question referred by the Tribunal : "Whether, on the facts and in the circumstances of the case, interest calculated on the advance made to Govindram Sugar Mills is assessable in the hands of the assessee?" the High Court of Madhya Pradesh held that the entries posted in the books of account of Govindram Sugar Mills were merely book entries and were not conclusive of the question whether the respondent had become entitled to the sum. In the view of the High Court the credit entry on account of interest in favour of the respondent for an amount less than the respondents share of loss in the business must be regarded as a mere book entry and "having regard to the substance of the matter, there was no real income in the shape of interest on the capital invested in the business." Against this order passed by the High Court, with certificate of fitness granted by the High Court, this appeal has been preferred 2. In our view, the High Court was right in holding that there was no real income received by the respondent. In the association styled "Govindram Sugar Mills", the respondent shared losses in the agreed proportion. Govindram Sugar Mills incurred heavy losses in its business transactions in the relevant year of account. Debit entries in the books of account of the association relating to interest deemed payable on investments were posted, but it could not as a matter of law be inferred therefrom that any part of the income of the association was distributed. The share of the respondent in the loss suffered by Govindram Sugar Mills was considerably in excess of the amount of interest debited as payable in the respondents account with the association. Entries relating to interest payable to the two members of the association were posted merely for apportionment of part of the loss suffered by the sugar mills : they represented no real income to the two members. The Tribunal and the High Court were, therefore, right in regarding the entry as a mere book entry not representing true incomeCounsel for the Commissioner urged that as the amount of interest was allowed as a permissible outgoing in the assessment of the association, a corresponding amount should be regarded as received by the respondent as income. But an error in the assessment of the association cannot be permitted to be perpetuated by repeating it in the assessment of the respondent. It is true that the interest debited to the profit and loss account of the association to the two members is not in proportion to their respective shares in the profit and loss according to the terms of the agreement. But apportionment of loss suffered by the association, in proportion to the investments of the two members and not in proportion to their stipulated shares in profit and loss, does not convert the debit items into real income accruing to the two members. 3.
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In our view, the High Court was right in holding that there was no real income received by the respondent. In the association styledm Sugar, the respondent shared losses in the agreed proportion.m SugarMills incurred heavy losses in its business transactions in the relevant year of account. Debit entries in the books of account of the association relating to interest deemed payable on investments were posted, but it could not as a matter of law be inferred therefrom that any part of the income of the association was distributed. The share of the respondent in the loss suffered bym SugarMills was considerably in excess of the amount of interest debited as payable in the respondents account with the association. Entries relating to interest payable to the two members of the association were posted merely for apportionment of part of the loss suffered by the sugar mills : they represented no real income to the two members. The Tribunal and the High Court were, therefore, right in regarding the entry as a mere book entry not representing true incomeCounsel for the Commissioner urged that as the amount of interest was allowed as a permissible outgoing in the assessment of the association, acorresponding amount should be regarded as received by the respondent as income. But an error in the assessment of the association cannot be permitted to be perpetuated by repeating it in the assessment of the respondent. It is true that the interest debited to the profit and loss account of the association to the two members is not in proportion to their respective shares in the profit and loss according to the terms of the agreement. But apportionment of loss suffered by the association, in proportion to the investments of the two members and not in proportion to their stipulated shares in profit and loss, does not convert the debit items into real income accruing to the two members.
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State of Mysore Vs. Padmanabhacharya & Others | Note 4. The presence of that word does not mean that the normal age of retirement is still 55 years. The reason why the word "generally" is used in the earlier part of Note 4 is to be found in the latter part of the same note where power has been given to the Director of Public Instruction to retire trained teachers at the age of 55 years if they have not a good record of service and are not upto the mark. Because of that power it was necessary to use the word "generally" in the earlier part of the note, as otherwise there would be an indefeasible right in trained teachers to continue in service upto the age of 58 years, even if they did not have a good record of service and were not upto the mark.9. In the circumstances, the respondents would be entitled to continue in service upto the age of 58 years and could not be retired at the age of 55 years in view of the exception carved out by Note 4 in the general provision contained in R. 294 (a). The contention of the appellant in this connection must, therefore, be rejected.10. We now come to the notification, dated March 25, 1959. That notification reads thus:-"In exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India and with the approval of the Central Government under the proviso to sub s. (7) of the States Reorganisation Act, 1956 (Central Act 37 of 1956), the Governor of Mysore is pleased to make the following rule, namely :-"Notwithstanding anything contained in Note 4 to Art. 294 of the Mysore Service Regulation (Eighth Edition), Government Servants who have been retired from service on the attainment of the age of fifty-five, during the period between 7th day of June 1957 and the 28th day of October 1958 shall be deemed to have been validly retired from service on superannuation."We are of opinion that such a rule cannot be made under the proviso to Art. 309 of the Constitution. We are expressing no opinion as to the power of the legislature to make a retrospective provision under Art. 309 of the Constitution wherein the appropriate legislature has been given the power to regulate the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State by passing Acts under Art. 309 of the Constitution read with Item 70 of List I of the Seventh Schedule or Item 41 of List II of the Seventh Schedule.The present rule has been made by the Governor under the proviso to Art. 309. That proviso lays down that it shall be competent for the Government or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act by the appropriate legislature. Under the proviso the Governor has the power to make rules regulating the recruitment and conditions of service of person appointed to such services and posts in connection with the affairs of the State.11. The question is whether the notification of March 25, 1959 can be said to be such a rule. We are of opinion that this notification cannot be said to be a rule regulating the recruitment and conditions of service of persons appointed to the services and posts in connection with the affairs of the State. All that the rule does is to say in so many words that certain persons who had been, in view of our decision on the first point, invalidly retired should be deemed to have been validly retired from service on superannuating. It would if given effect contravene Art. 311 of the Constitution. Such a rule in our opinion is not a rule contemplated under the proviso to Art. 309. Under the proviso the Governor can make rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. But all that this notification or rule does is to say that certain persons who had been wrongly retired must be treated to have been rightly retired. This power of validating an order which was invalid when it was made does not in our opinion flow from the power conferred on the Governor to make rules regulating recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. It is certainly not a rule regulating recruitment of such persons; nor can it be said to be a rule regulating conditions of services of such persons. The rules relating to recruitment and conditions of service contemplated by the proviso to Art. 309 are general in operation, though they may be applied to a particular class of Government servants. But what this notification or rule does is to select certain Government servants who had been illegally required to retire and to say that even if the retirement had been illegal, that retirement should be deemed to have been illegal, that retirement should be deemed to have been properly and lawfully made. We are of opinion that such a declaration made by the Governor - and that is all that the notification or the rule does - cannot in any sense be regarded as a rule made under the proviso to Art. 309 governing the conditions of service of persons appointed to services and posts in connection with the affairs of the State. In this view of the matter, it is not necessary to decide whether a rule of this kind which is purely retrospective could be made as a rule governing conditions of service of persons appointed in connection with the affairs of the State.12. | 0[ds]On the second point, the High Court held that the notification of March 25, 1959 could not be a rule within the meaning of Art. 309 of the Constitution and could not have the effect of validating what had been done earlier with respect to trained teachers in contravention of the rule as to retirement. Thethen applied for leave to appeal to this Court which was refused. It then came to this Court and was granted special leave; and that is how the matter has come up before us.5. We are of opinion that the High Court is right on both the points urged before it. Rule 294 (a) of the Regulations which was in force before the change was made on April 29, 1955, was in theseis no doubt that this rule, as it was before April 29, 1955 provided that normal age of retirement was 55 years but it gave discretion to Government to extend the service of efficient Government servants beyond the age of 55 years.6. In August 1954, however, the Government issued a notification which applied to trained teachers in the Education Department. In this notification it was directed that in the Education Department the age of retirement of trained teachers would generally be 58 years. With regard to teachers who were not trained and who were otherwise efficient, the age of retirement would also be 58 years. Teachers trained and untrained who had got a good record of service and who were not upto the mark would be retired at 55 years. The relaxation regarding the age of retirement would be in force only till such time a sufficient number of trained teachers became available for employment. The order also contained a direction that a suitable note would be added to R. 294 (a) of the Regulations. In consequence of this order, necessary additions were made to the Regulations by the then Rajpramukh of Mysore and Note 4 was added to R. 294 (a) in theseis the effect of this addition to R. 294 (a) which falls to be considered before us. We shall in the present appeals confine ourselves to the case of trained teachers for the respondents before us are admittedly all trained teachers. What we say here will not necessarily apply to teachers who are not trained. So far as trained teachers are concerned there is no doubt that Note 4 carved out an exception to R. 294 (a) which provides that the normal age of retirement is 55 years and it is for the Government to decided whether to grant extensions to persons after they completed 55 years and this grant of extension was on the basis of such persons remaining efficient in the opinion of Government after the age of 55 years. But Note 4 made a change in that position so far as trained teachers were concerned. That change was that in the case of trained teachers the normal age of retirement was to be 58 years. The latter part of the note, however, gave power to the Director of Public Instruction to retire even trained teachers in thecadre provided they had not a good record of service and were not upto the mark. In such a case the Director had the power to retire them at the age of 55 years if he was of the view that they had not a good record of service and were not upto the mark. Thus under R. 294 (a) as it was before April 29, 1955 the normal age of retirement was 55 years for all including trained teachers and it was for the Government to give extension on the ground of fitness. But after Note 4 was added to R. 294 (a), the position with respect to trained teachers was changed and trained teachers were normally entitled to continue in service till the age of 58 years unless the Director or the Government as the case may be, was of the opinion that they had not a good record of service and were not upto the mark. Therefore, after the change made on April 29, 1955, trained teachers could only be retired at the age of 55 years if the Director of Public Instruction or the Government, as the case may be, came to the conclusion that they had not a good record of service and were not upto the mark. Therefore, before the respondents in the present appeals could be retired at the age of 55 years, the Director of Public Instruction or the Government, as the case may be, had to come to the conclusion that they had not a good record of service and were not upto the mark. If such a conclusion was not arrived at, they would be entitled under Note 4 to continue in service upto the age of 58 years. It is not disputed on behalf of the appellant that no such decision, namely, that the respondents had not a good record of service and were not upto the mark, was taken.Stress is laid on the word "generally" appearing in the first part of Note 4. The presence of that word does not mean that the normal age of retirement is still 55 years. The reason why the word "generally" is used in the earlier part of Note 4 is to be found in the latter part of the same note where power has been given to the Director of Public Instruction to retire trained teachers at the age of 55 years if they have not a good record of service and are not upto the mark. Because of that power it was necessary to use the word "generally" in the earlier part of the note, as otherwise there would be an indefeasible right in trained teachers to continue in service upto the age of 58 years, even if they did not have a good record of service and were not upto the mark.In the circumstances, the respondents would be entitled to continue in service upto the age of 58 years and could not be retired at the age of 55 years in view of the exception carved out by Note 4 in the general provision contained in R. 294are of opinion that such a rule cannot be made under the proviso to Art. 309 of the Constitution. We are expressing no opinion as to the power of the legislature to make a retrospective provision under Art. 309 of the Constitution wherein the appropriate legislature has been given the power to regulate the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State by passing Acts under Art. 309 of the Constitution read with Item 70 of List I of the Seventh Schedule or Item 41 of List II of the Seventh Schedule.The present rule has been made by the Governor under the proviso to Art. 309. That proviso lays down that it shall be competent for the Government or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act by the appropriate legislature. Under the proviso the Governor has the power to make rules regulating the recruitment and conditions of service of person appointed to such services and posts in connection with the affairs of the State.The question is whether the notification of March 25, 1959 can be said to be such a rule. We are of opinion that this notification cannot be said to be a rule regulating the recruitment and conditions of service of persons appointed to the services and posts in connection with the affairs of the State. All that the rule does is to say in so many words that certain persons who had been, in view of our decision on the first point, invalidly retired should be deemed to have been validly retired from service on superannuating. It would if given effect contravene Art. 311 of the Constitution. Such a rule in our opinion is not a rule contemplated under the proviso to Art. 309. Under the proviso the Governor can make rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. But all that this notification or rule does is to say that certain persons who had been wrongly retired must be treated to have been rightly retired. This power of validating an order which was invalid when it was made does not in our opinion flow from the power conferred on the Governor to make rules regulating recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. It is certainly not a rule regulating recruitment of such persons; nor can it be said to be a rule regulating conditions of services of such persons. The rules relating to recruitment and conditions of service contemplated by the proviso to Art. 309 are general in operation, though they may be applied to a particular class of Government servants. But what this notification or rule does is to select certain Government servants who had been illegally required to retire and to say that even if the retirement had been illegal, that retirement should be deemed to have been illegal, that retirement should be deemed to have been properly and lawfully made. We are of opinion that such a declaration made by the Governorand that is all that the notification or the rule doescannot in any sense be regarded as a rule made under the proviso to Art. 309 governing the conditions of service of persons appointed to services and posts in connection with the affairs of the State. In this view of the matter, it is not necessary to decide whether a rule of this kind which is purely retrospective could be made as a rule governing conditions of service of persons appointed in connection with the affairs of the State. | 0 | 2,804 | 1,824 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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Note 4. The presence of that word does not mean that the normal age of retirement is still 55 years. The reason why the word "generally" is used in the earlier part of Note 4 is to be found in the latter part of the same note where power has been given to the Director of Public Instruction to retire trained teachers at the age of 55 years if they have not a good record of service and are not upto the mark. Because of that power it was necessary to use the word "generally" in the earlier part of the note, as otherwise there would be an indefeasible right in trained teachers to continue in service upto the age of 58 years, even if they did not have a good record of service and were not upto the mark.9. In the circumstances, the respondents would be entitled to continue in service upto the age of 58 years and could not be retired at the age of 55 years in view of the exception carved out by Note 4 in the general provision contained in R. 294 (a). The contention of the appellant in this connection must, therefore, be rejected.10. We now come to the notification, dated March 25, 1959. That notification reads thus:-"In exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India and with the approval of the Central Government under the proviso to sub s. (7) of the States Reorganisation Act, 1956 (Central Act 37 of 1956), the Governor of Mysore is pleased to make the following rule, namely :-"Notwithstanding anything contained in Note 4 to Art. 294 of the Mysore Service Regulation (Eighth Edition), Government Servants who have been retired from service on the attainment of the age of fifty-five, during the period between 7th day of June 1957 and the 28th day of October 1958 shall be deemed to have been validly retired from service on superannuation."We are of opinion that such a rule cannot be made under the proviso to Art. 309 of the Constitution. We are expressing no opinion as to the power of the legislature to make a retrospective provision under Art. 309 of the Constitution wherein the appropriate legislature has been given the power to regulate the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State by passing Acts under Art. 309 of the Constitution read with Item 70 of List I of the Seventh Schedule or Item 41 of List II of the Seventh Schedule.The present rule has been made by the Governor under the proviso to Art. 309. That proviso lays down that it shall be competent for the Government or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act by the appropriate legislature. Under the proviso the Governor has the power to make rules regulating the recruitment and conditions of service of person appointed to such services and posts in connection with the affairs of the State.11. The question is whether the notification of March 25, 1959 can be said to be such a rule. We are of opinion that this notification cannot be said to be a rule regulating the recruitment and conditions of service of persons appointed to the services and posts in connection with the affairs of the State. All that the rule does is to say in so many words that certain persons who had been, in view of our decision on the first point, invalidly retired should be deemed to have been validly retired from service on superannuating. It would if given effect contravene Art. 311 of the Constitution. Such a rule in our opinion is not a rule contemplated under the proviso to Art. 309. Under the proviso the Governor can make rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. But all that this notification or rule does is to say that certain persons who had been wrongly retired must be treated to have been rightly retired. This power of validating an order which was invalid when it was made does not in our opinion flow from the power conferred on the Governor to make rules regulating recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. It is certainly not a rule regulating recruitment of such persons; nor can it be said to be a rule regulating conditions of services of such persons. The rules relating to recruitment and conditions of service contemplated by the proviso to Art. 309 are general in operation, though they may be applied to a particular class of Government servants. But what this notification or rule does is to select certain Government servants who had been illegally required to retire and to say that even if the retirement had been illegal, that retirement should be deemed to have been illegal, that retirement should be deemed to have been properly and lawfully made. We are of opinion that such a declaration made by the Governor - and that is all that the notification or the rule does - cannot in any sense be regarded as a rule made under the proviso to Art. 309 governing the conditions of service of persons appointed to services and posts in connection with the affairs of the State. In this view of the matter, it is not necessary to decide whether a rule of this kind which is purely retrospective could be made as a rule governing conditions of service of persons appointed in connection with the affairs of the State.12.
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Instruction or the Government, as the case may be, came to the conclusion that they had not a good record of service and were not upto the mark. Therefore, before the respondents in the present appeals could be retired at the age of 55 years, the Director of Public Instruction or the Government, as the case may be, had to come to the conclusion that they had not a good record of service and were not upto the mark. If such a conclusion was not arrived at, they would be entitled under Note 4 to continue in service upto the age of 58 years. It is not disputed on behalf of the appellant that no such decision, namely, that the respondents had not a good record of service and were not upto the mark, was taken.Stress is laid on the word "generally" appearing in the first part of Note 4. The presence of that word does not mean that the normal age of retirement is still 55 years. The reason why the word "generally" is used in the earlier part of Note 4 is to be found in the latter part of the same note where power has been given to the Director of Public Instruction to retire trained teachers at the age of 55 years if they have not a good record of service and are not upto the mark. Because of that power it was necessary to use the word "generally" in the earlier part of the note, as otherwise there would be an indefeasible right in trained teachers to continue in service upto the age of 58 years, even if they did not have a good record of service and were not upto the mark.In the circumstances, the respondents would be entitled to continue in service upto the age of 58 years and could not be retired at the age of 55 years in view of the exception carved out by Note 4 in the general provision contained in R. 294are of opinion that such a rule cannot be made under the proviso to Art. 309 of the Constitution. We are expressing no opinion as to the power of the legislature to make a retrospective provision under Art. 309 of the Constitution wherein the appropriate legislature has been given the power to regulate the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State by passing Acts under Art. 309 of the Constitution read with Item 70 of List I of the Seventh Schedule or Item 41 of List II of the Seventh Schedule.The present rule has been made by the Governor under the proviso to Art. 309. That proviso lays down that it shall be competent for the Government or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act by the appropriate legislature. Under the proviso the Governor has the power to make rules regulating the recruitment and conditions of service of person appointed to such services and posts in connection with the affairs of the State.The question is whether the notification of March 25, 1959 can be said to be such a rule. We are of opinion that this notification cannot be said to be a rule regulating the recruitment and conditions of service of persons appointed to the services and posts in connection with the affairs of the State. All that the rule does is to say in so many words that certain persons who had been, in view of our decision on the first point, invalidly retired should be deemed to have been validly retired from service on superannuating. It would if given effect contravene Art. 311 of the Constitution. Such a rule in our opinion is not a rule contemplated under the proviso to Art. 309. Under the proviso the Governor can make rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. But all that this notification or rule does is to say that certain persons who had been wrongly retired must be treated to have been rightly retired. This power of validating an order which was invalid when it was made does not in our opinion flow from the power conferred on the Governor to make rules regulating recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. It is certainly not a rule regulating recruitment of such persons; nor can it be said to be a rule regulating conditions of services of such persons. The rules relating to recruitment and conditions of service contemplated by the proviso to Art. 309 are general in operation, though they may be applied to a particular class of Government servants. But what this notification or rule does is to select certain Government servants who had been illegally required to retire and to say that even if the retirement had been illegal, that retirement should be deemed to have been illegal, that retirement should be deemed to have been properly and lawfully made. We are of opinion that such a declaration made by the Governorand that is all that the notification or the rule doescannot in any sense be regarded as a rule made under the proviso to Art. 309 governing the conditions of service of persons appointed to services and posts in connection with the affairs of the State. In this view of the matter, it is not necessary to decide whether a rule of this kind which is purely retrospective could be made as a rule governing conditions of service of persons appointed in connection with the affairs of the State.
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Delhi Transport Undertaking Vs. Balbir Saran Goel | camouflage for inflicting punishment for breach of Standing Order 17 inasmuch as the respondent had approached the High Court under Art. 226 of the Constitution without exhausting the departmental remedies. The High Court relied on the observation in S. R. Tewari v. District Board Agra, (1964) 3 SCR 55 = (AIR 1964 SC 1680 ), that the form of the order under which the employment of a servant was determined was not conclusive of the true nature of the order. The form might be merely to camouflage an order of dismissal for misconduct and it was always open to the court before which the order was challenged to go behind the form and ascertain the true character of the order. In that case it was held that the employment was terminated by giving a notice in accordance with the rules and it was not a case of dismissal. 8. The learned Attorney-General for the appellant has sought to distinguish cases which fall under Art 311 and those which are governed by statutory provisions or rules containing provisions analogous to Art. 311. According to his submission the concept of punishment is not relevant when the employer chooses to terminate the employment of an employee in accordance with the conditions of service. All that has to be seen is whether the order made by him is in conformity with the statutory powers. He has further submitted that where the master chooses to follow the mode of terminating the services prescribed by Regulation 9 (b) no stigma attaches to such termination and no question of the employee having been punished can arise nor can it be examined in such a case whether the order made was a mere camouflage or cloak for dismissing an employee by way of punishment for misconduct. It has further been emphasised that what has to be seen is the situation obtaining on the date the order was made and no notice should or ought to be taken of any subsequent facts emerging out of correspondence or pleadings in a Court of law in reply to the allegations in the plaint of male fide and the like. 9. It does not appear necessary to refer to numerous decisions which have been given by this Court in arising under Article 311 of the Constitution on the points debated before us by counsel for both sides. In State of Punjab v. Shri Sukhraj Bahadur, (1968) 3 SCR 234 at p. 244 = (AIR 1968 SC 1089 at p. 1094) most of these cases have been discussed. By a conspectus of these cases, it was stated, the following propositions clearly emerge :"1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immortal. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an inquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Article 311, i e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article". In that case the departmental enquiry did not proceed beyond the stage of submission of charge-sheet followed by the respondents explanation thereto. The enquiry was not proceeded with, there were no sittings of any enquiry Officer, no evidence was recorded and no conclusions arrived at on the enquiry. It was, therefore held that the services had been terminated simpliciter under the rules of employment and Article 311 was not attracted. In the present case even if it is assumed that the law is the same as would be applicable to a case governed by Article 311 it is difficult to say on the principles laid down in the above case that the services of the respondent were not mercy terminated in accordance with Regulation 9 (b) which governed the conditions of his employment. It may be that the motive for termination of his services was the breach of Standing Order 17, i e., of filing a writ petition in the High Court against the demotion without exhausting departmental remedies but the question of motive is immaterial. No charge-sheet was preferred under Regulation 15 nor was enquiry held in accordance therewith before the order under Regulation 9 (b) was made. It may be that if the respondent had successfully pleaded and proved male fides on the part of the authority terminating his services the impugned order could be legitimately challenged but no foundation was laid in that behalf in the plaint nor was the question of male fides investigated by the Courts below. 10. As regards the punishment having been inflicted for misconduct the order being a mere camouflage we are unable to endorse the view that any such question could arise in the present case. Regulation 9 (b) clearly empowered the authorities to terminate the services after giving one months notice or pay in lieu of notice. The order was unequivocally made in terms of that Regulation. Even if the employers of the respondent thought that he was a cantankerous person and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9 (b) and it was not necessary to dismiss him by way of punishment for misconduct. | 1[ds]In that case the departmental enquiry did not proceed beyond the stage of submission of charge-sheet followed by the respondents explanation thereto. The enquiry was not proceeded with, there were no sittings of any enquiry Officer, no evidence was recorded and no conclusions arrived at on the enquiry. It was, therefore held that the services had been terminated simpliciter under the rules of employment and Article 311 was not attracted. In the present case even if it is assumed that the law is the same as would be applicable to a case governed by Article 311 it is difficult to say on the principles laid down in the above case that the services of the respondent were not mercy terminated in accordance with Regulation 9 (b) which governed the conditions of his employment. It may be that the motive for termination of his services was the breach of Standing Order 17, i e., of filing a writ petition in the High Court against the demotion without exhausting departmental remedies but the question of motive is immaterial. No charge-sheet was preferred under Regulation 15 nor was enquiry held in accordance therewith before the order under Regulation 9 (b) was made. It may be that if the respondent had successfully pleaded and proved male fides on the part of the authority terminating his services the impugned order could be legitimately challenged but no foundation was laid in that behalf in the plaint nor was the question of male fides investigated by the Courts below10. As regards the punishment having been inflicted for misconduct the order being a mere camouflage we are unable to endorse the view that any such question could arise in the present case. Regulation 9 (b) clearly empowered the authorities to terminate the services after giving one months notice or pay in lieu of notice. The order was unequivocally made in terms of that Regulation. Even if the employers of the respondent thought that he was a cantankerous person and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9 (b) and it was not necessary to dismiss him by way of punishment for misconduct. | 1 | 2,577 | 397 | ### 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:
camouflage for inflicting punishment for breach of Standing Order 17 inasmuch as the respondent had approached the High Court under Art. 226 of the Constitution without exhausting the departmental remedies. The High Court relied on the observation in S. R. Tewari v. District Board Agra, (1964) 3 SCR 55 = (AIR 1964 SC 1680 ), that the form of the order under which the employment of a servant was determined was not conclusive of the true nature of the order. The form might be merely to camouflage an order of dismissal for misconduct and it was always open to the court before which the order was challenged to go behind the form and ascertain the true character of the order. In that case it was held that the employment was terminated by giving a notice in accordance with the rules and it was not a case of dismissal. 8. The learned Attorney-General for the appellant has sought to distinguish cases which fall under Art 311 and those which are governed by statutory provisions or rules containing provisions analogous to Art. 311. According to his submission the concept of punishment is not relevant when the employer chooses to terminate the employment of an employee in accordance with the conditions of service. All that has to be seen is whether the order made by him is in conformity with the statutory powers. He has further submitted that where the master chooses to follow the mode of terminating the services prescribed by Regulation 9 (b) no stigma attaches to such termination and no question of the employee having been punished can arise nor can it be examined in such a case whether the order made was a mere camouflage or cloak for dismissing an employee by way of punishment for misconduct. It has further been emphasised that what has to be seen is the situation obtaining on the date the order was made and no notice should or ought to be taken of any subsequent facts emerging out of correspondence or pleadings in a Court of law in reply to the allegations in the plaint of male fide and the like. 9. It does not appear necessary to refer to numerous decisions which have been given by this Court in arising under Article 311 of the Constitution on the points debated before us by counsel for both sides. In State of Punjab v. Shri Sukhraj Bahadur, (1968) 3 SCR 234 at p. 244 = (AIR 1968 SC 1089 at p. 1094) most of these cases have been discussed. By a conspectus of these cases, it was stated, the following propositions clearly emerge :"1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immortal. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an inquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Article 311, i e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article". In that case the departmental enquiry did not proceed beyond the stage of submission of charge-sheet followed by the respondents explanation thereto. The enquiry was not proceeded with, there were no sittings of any enquiry Officer, no evidence was recorded and no conclusions arrived at on the enquiry. It was, therefore held that the services had been terminated simpliciter under the rules of employment and Article 311 was not attracted. In the present case even if it is assumed that the law is the same as would be applicable to a case governed by Article 311 it is difficult to say on the principles laid down in the above case that the services of the respondent were not mercy terminated in accordance with Regulation 9 (b) which governed the conditions of his employment. It may be that the motive for termination of his services was the breach of Standing Order 17, i e., of filing a writ petition in the High Court against the demotion without exhausting departmental remedies but the question of motive is immaterial. No charge-sheet was preferred under Regulation 15 nor was enquiry held in accordance therewith before the order under Regulation 9 (b) was made. It may be that if the respondent had successfully pleaded and proved male fides on the part of the authority terminating his services the impugned order could be legitimately challenged but no foundation was laid in that behalf in the plaint nor was the question of male fides investigated by the Courts below. 10. As regards the punishment having been inflicted for misconduct the order being a mere camouflage we are unable to endorse the view that any such question could arise in the present case. Regulation 9 (b) clearly empowered the authorities to terminate the services after giving one months notice or pay in lieu of notice. The order was unequivocally made in terms of that Regulation. Even if the employers of the respondent thought that he was a cantankerous person and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9 (b) and it was not necessary to dismiss him by way of punishment for misconduct.
### Response:
1
### Explanation:
In that case the departmental enquiry did not proceed beyond the stage of submission of charge-sheet followed by the respondents explanation thereto. The enquiry was not proceeded with, there were no sittings of any enquiry Officer, no evidence was recorded and no conclusions arrived at on the enquiry. It was, therefore held that the services had been terminated simpliciter under the rules of employment and Article 311 was not attracted. In the present case even if it is assumed that the law is the same as would be applicable to a case governed by Article 311 it is difficult to say on the principles laid down in the above case that the services of the respondent were not mercy terminated in accordance with Regulation 9 (b) which governed the conditions of his employment. It may be that the motive for termination of his services was the breach of Standing Order 17, i e., of filing a writ petition in the High Court against the demotion without exhausting departmental remedies but the question of motive is immaterial. No charge-sheet was preferred under Regulation 15 nor was enquiry held in accordance therewith before the order under Regulation 9 (b) was made. It may be that if the respondent had successfully pleaded and proved male fides on the part of the authority terminating his services the impugned order could be legitimately challenged but no foundation was laid in that behalf in the plaint nor was the question of male fides investigated by the Courts below10. As regards the punishment having been inflicted for misconduct the order being a mere camouflage we are unable to endorse the view that any such question could arise in the present case. Regulation 9 (b) clearly empowered the authorities to terminate the services after giving one months notice or pay in lieu of notice. The order was unequivocally made in terms of that Regulation. Even if the employers of the respondent thought that he was a cantankerous person and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9 (b) and it was not necessary to dismiss him by way of punishment for misconduct.
|
State Of Uttar Pradesh Vs. Pradip Tandon & Ors | of seats according to the Universities, the rule provided that seats in the general pool would be distributed University-wise. Seats in colleges affiliated to Karnataka University were to be allotted to persons passing from colleges affiliated to that University and seats in colleges affiliated to Bangalore and Mysore Universities were to be respectively allotted to persons passing from colleges affiliated to each such University. The rule also provided that not more than 2o per cent. of the seats in the colleges affiliated to any university might in the discretion of the Selection Committee, be allotted to students passing from colleges affiliated to any other university in the State or elsewhere. This classification was impeached to be neither based on any intelligible differentia nor to have a rational nexus with the object to the rules.36. This Court in Chanchalas case 1971 Supp SCH 608 = (AIR 1971 SC 1762 ) (supra) held that since the universities were set up for satisfying the educational needs of different areas where they were set up and medical colleges were established in those areas, it could safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. Such a basis for selection did not have a disadvantage of district-wise or unit-wise selection as any student from any part of the State could pass the qualifying examination in any of the three universities irrespective of place of birth or residence. The discretion of the selection committee to admit outsiders upto 20 per cent. of the total available seats in any of these colleges was held to advance the interest of education by drawing the best students not only in the State but also elsewhere in India.37. In the present case, the reservation for the rural area cannot be upheld because there is no classification based on residence between students coming from within the State and others coming from without. The object of providing medical education to students in Uttar Pradesh is to secure the best possible students for admission to these colleges, It is in this context that district-wise allocation was held by this Court in Rajendran v. State of Madras, (1968) 2 SCR 788 = (AIR 1968 SC 1012 ) to violate Article 14. The University-wise distribution of seats which was found to be valid in Chanchalas case (1971) Supp SCR 608 = (AIR 1971 SC 1762 ) (supra) does not have any application in the present case.38. The submission of the Attorney General that rural population would be a source for drawing students cannot be upheld. An illustration of different sources of categories of students is Chitra Ghosh v. Union of India, (1970) 1 SCR 413 = (AIR 1970 SC 35 ). There the categories of students were classified as residents of Delhi; sons/daughters of Central Government servants posted in Delhi; candidates whose father is dead and is wholly dependent on brother/sister who is a Central Government servant posted in Delhi; sons/daughters of residents of Union Territories including displaced persons registered therein; sons/daughters of Central Government servants posted in Indian Missions abroad; cultural scholars; Colombo Plan Scholars; Thailand Scholars and Jammu and Kashmir State Scholars. Rural area in Uttar Pradesh cannot be said to be a source for reservation of the type in Chitra Ghosh,s case (1970) 1 SCR 413 = (AIR 1970 SC 35 ) (supra).39. The Attorney General relied on Beryl F. Carroll v" Greenwich Insurance Co. of New York, (l905) 50 Law Ed 246; Weaver v. Palmer Brothers Co., (1925) 70 Law Ed 654 West Coast Hotel Co. v. Parrish, (1936) 81 Law Ed 703 in support of the proposition that if an evil is especially experienced in a particular branch of business, the Constitution embodies no prohibition of laws confined to the evil or doctrinaire requirement that they should be couched in all embracing terms. It was said that if the law was intended to remove the evil where it was most felt it was not to be overthrown because there were other instances to which it might have been applied. This rule really means that there is no doctrinaire requirement that the legislation should be couched in all embracing terms. A case of under classification would be an instance of this rule. The present case of classification of rural areas is not one of under classification. This is a case of discrimination in favour of the majority of rural population to the prejudice of students drawn from the general category. This classification is unconstitutional.40. In Civil Appeal No. 1385 of 1973 two other minor contentions were raised. One was that the reservation was beyond 50 percent. The total number of seats to be filled in through the combined test is 732.The number of general seats is 368. 26 seats are reserved for Government of India nominees under various heads. The reservation of 26 seats was contended to be considered while calculating the percentage of -reserved seats. If 26 seats are included it was said that the reserved seats would come to 52 per cent. 26 seats form a source from which selection is made. The Government bears the burden of expenses of education.A provision laying down a source is not a reservation (See Chanchalas case (1871) Supp SCR 608 = (AIR 1971 SC 1762 ) (supra).41. The other contention was that the State Government changed the percentage of reserved seats after the premedical test was held. The contention was that candidates belonging to reserved classes were able to secure some of the general seats on the basis of their better performance in competitive test and therefore more seats went to people from reserved classes The Government did not change the number of seats for reserved classes. Candidates belonging to the reserved classes were selected by reason of their excellence in education. The reservation has not been changed. We have already held that the success of candidates from rural areas do not represent educationally backward classes of citizens. | 1[ds]15. Broadly stated, neither caste nor race nor religion can be made the basis of classification for the purposes of determining social and educational backwardness within the meaning of Article 15 (4). When Article 15 (1) forbids discrimination on grounds only of religion, race, caste, caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recognised as a criterion of social and educational backwardness Article 15 (4) will stultify Article 15 (1). It is true that Article 15 (1) forbids discrimination only on the ground of religion, race, caste, but when a classification takes recourse to caste as one of the criteria in determining socially and educationally backward classes the expression "classes" in that case violates the rule of expressio unius est exclusio alterius. The socially and educationally backward classes of citizens are groups other than groups based on caste.16. The expression "socially and educationally backward classes" in Article 15 (4) was explained in Balajis case 1963 Supp 1 SCR 439 = (AIR 1963 SC 649 ) (supra) to be comparable to Scheduled Castes and Scheduled Tribes. The reason is that the Scheduled Castes and Scheduled Tribes illustrated social and educational backwardness. It is difficult to define the expression "socially and educationally backward classes of citizens." The traditional unchanging occupations of citizens may contribute to social and educational backwardness. The place of habitation and its environment is also a determining factor in judging the social and educational backwardness.17. The expression Classes of citizens" indicates a homogeneous section of the people who are grouped together because of certain likeliness and common traits and who are identifiable by some common attributes. The homogeneity of the class of citizens is social and educational backwardness. Neither caste nor religion nor place of birth will be the uniform element of common attributes to make them a class of citizens.18. The traits of social backwardness are these. There is no social structure. There is no social hierarchy. There are no means of controlling the environment through technology. There is no organization of the society to create inducements for uplift of the people and improvement of economy. Building of towns and industries, growth of cash economy which are responsible for greater social wealth are absent among such classes. Social growth and well being can be satisfied by massive charge in resource conditions. High lands and hills are to be developed in fiscal values andNature is a treasury. Forests, mountains, rivers can yield an advanced society with the aid of education and technology.In (1969) 1 SCR 103 = (AIR 1969 SC 1 ) (supra) this Court said that the members of an entire caste or community may, in the social, economic and educational scale of values at a given time, be backward and may, on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form aare unable to accept the test of poverty as the determining factor of social backwardness.24. The 1971 Census showed population in India to be 54.79 crores.. 43.89 crores or 80.1 per cent. live in rural areas 10.91 crores or 19.9 per cent live in cities and towns. In 1921 the rural population in India was 88.8 per cent. In 1971 the rural population was reduced to 80.1 per cent. The rural population of Uttar Pradesh in 1971 was roughly seven and half crores. The population in Uttrakhand was roughly seven and a half lakhs. The population of Hill areas in Uttar Pradesh was near about twenty five lakhs. It is incomprehensible as to how 80.1 per cent of the people in rural areas or 7 crores in rural parts of Uttar Pradesh can be suggested to be socially backward because of poverty. Further, it is also not possible to predicate poverty as the common trait of rural people. This Court in J. P. Parimoo v. State of Jammu and Kashmir (1973) 3 SCR 236 = (AIR 1973 SC 930 = 1973 Lab IC 565) said that if poverty is the exclusive test a large population in our country would be socially and educationally backward class of citizens. Poverty is evident everywhere and perhaps more so in educationally advanced and socially affluent classes. A division between the population of our country on the ground of property, that the people in the urban areas are not poor and, that the people in the rural areas are poor is neither supported by facts nor by a division between the urban people on the one hand and the rural people on the other that the rural people are socially and educationally backward class.25. Some people in the rural areas may be educationally backward, some may be socially backward, there may be a few who are both socially and educationally backward, but it cannot be said that all citizens residing in rural areas are socially and educationally backward.26. 80 per cent. of the population in the State of Uttar Pradesh in rural areas cannot be said to be a homogeneous class by itself. They are not of the same kind. Their occupation is different. Their standards are different. Their lives are different. Population cannot be a class by itself. Rural element does not make it a class. To suggest that the rural areas are socially and educationally backward is to have reservation for the majority of theis neither a valid nor a justifiable ground for determining social and educational backwardness. Educational institutions should attract the best talents. It has been held by this Court in Balajis case 1963 Supp 1 SCR 438 = (AIR 1963 SC 649 ) (supra) that 50 per cent. of the seats in educational institutions should be left open to general competition. In the present case, it appears that 85 candidates from rural areas were selected in the general seats. One candidate from Uttrakhand area, 7 candidates from hill areas and one Scheduled Caste candidate also competed for the general seats. The candidates from hill areas, Uttrakhand Division and Scheduled Castes are exceptions and their performance will not detract from the reservations for Scheduled Caste, hill and Uttrakhand areas. The performance of 85 candidates from rural areas speak. eloquently for the high standards of education in rural areas.29. The reservation for rural area cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens. This reservation appears to be made for the majority population of the State. 80 per cent of the population of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. Poverty is found in all parts of India. In the instructions for reservation of seats it is provided that in the application form a candidate for reserved seats from rural areas must submit a certificate of the District Magistrate of the District to which he belonged that he was born in rural area and had a permanent home there, and is residing there or that he was born in India and his parents and guardians are still living there and earn their livelihood there. The incident of birth in rural areas is made the basic qualification. No reservation can be made on the basis of place of birth, as this would offend Article 15.30. The onus of proof is on the State to establish that the reservations are for socially and educationally backward classes of citizens. The State has established that the people in hill and Uttrakhand areas are socially and educationally backward classes of citizens.In the present case, the reservation for the rural area cannot be upheld because there is no classification based on residence between students coming from within the State and others coming from without. The object of providing medical education to students in Uttar Pradesh is to secure the best possible students for admission to these colleges, It is in this context thatallocation was held by this Court in Rajendran v. State of Madras, (1968) 2 SCR 788 = (AIR 1968 SC 1012 ) to violate Article 14. Thedistribution of seats which was found to be valid in Chanchalas case (1971) Supp SCR 608 = (AIR 1971 SC 1762 ) (supra) does not have any application in the present case.38. The submission of the Attorney General that rural population would be a source for drawing students cannot be upheld. An illustration of different sources of categories of students is Chitra Ghosh v. Union of India, (1970) 1 SCR 413 = (AIR 1970 SC 35 ). There the categories of students were classified as residents of Delhi; sons/daughters of Central Government servants posted in Delhi; candidates whose father is dead and is wholly dependent on brother/sister who is a Central Government servant posted in Delhi; sons/daughters of residents of Union Territories including displaced persons registered therein; sons/daughters of Central Government servants posted in Indian Missions abroad; cultural scholars; Colombo Plan Scholars; Thailand Scholars and Jammu and Kashmir State Scholars. Rural area in Uttar Pradesh cannot be said to be a source for reservation of the type in Chitra Ghosh,s case (1970) 1 SCR 413 = (AIR 1970 SC 35 )rule really means that there is no doctrinaire requirement that the legislation should be couched in all embracing terms. A case of under classification would be an instance of this rule. The present case of classification of rural areas is not one of under classification. This is a case of discrimination in favour of the majority of rural population to the prejudice of students drawn from the general category. This classification ishave already held that the success of candidates from rural areas do not represent educationally backward classes of citizens. | 1 | 5,919 | 1,804 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
of seats according to the Universities, the rule provided that seats in the general pool would be distributed University-wise. Seats in colleges affiliated to Karnataka University were to be allotted to persons passing from colleges affiliated to that University and seats in colleges affiliated to Bangalore and Mysore Universities were to be respectively allotted to persons passing from colleges affiliated to each such University. The rule also provided that not more than 2o per cent. of the seats in the colleges affiliated to any university might in the discretion of the Selection Committee, be allotted to students passing from colleges affiliated to any other university in the State or elsewhere. This classification was impeached to be neither based on any intelligible differentia nor to have a rational nexus with the object to the rules.36. This Court in Chanchalas case 1971 Supp SCH 608 = (AIR 1971 SC 1762 ) (supra) held that since the universities were set up for satisfying the educational needs of different areas where they were set up and medical colleges were established in those areas, it could safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. Such a basis for selection did not have a disadvantage of district-wise or unit-wise selection as any student from any part of the State could pass the qualifying examination in any of the three universities irrespective of place of birth or residence. The discretion of the selection committee to admit outsiders upto 20 per cent. of the total available seats in any of these colleges was held to advance the interest of education by drawing the best students not only in the State but also elsewhere in India.37. In the present case, the reservation for the rural area cannot be upheld because there is no classification based on residence between students coming from within the State and others coming from without. The object of providing medical education to students in Uttar Pradesh is to secure the best possible students for admission to these colleges, It is in this context that district-wise allocation was held by this Court in Rajendran v. State of Madras, (1968) 2 SCR 788 = (AIR 1968 SC 1012 ) to violate Article 14. The University-wise distribution of seats which was found to be valid in Chanchalas case (1971) Supp SCR 608 = (AIR 1971 SC 1762 ) (supra) does not have any application in the present case.38. The submission of the Attorney General that rural population would be a source for drawing students cannot be upheld. An illustration of different sources of categories of students is Chitra Ghosh v. Union of India, (1970) 1 SCR 413 = (AIR 1970 SC 35 ). There the categories of students were classified as residents of Delhi; sons/daughters of Central Government servants posted in Delhi; candidates whose father is dead and is wholly dependent on brother/sister who is a Central Government servant posted in Delhi; sons/daughters of residents of Union Territories including displaced persons registered therein; sons/daughters of Central Government servants posted in Indian Missions abroad; cultural scholars; Colombo Plan Scholars; Thailand Scholars and Jammu and Kashmir State Scholars. Rural area in Uttar Pradesh cannot be said to be a source for reservation of the type in Chitra Ghosh,s case (1970) 1 SCR 413 = (AIR 1970 SC 35 ) (supra).39. The Attorney General relied on Beryl F. Carroll v" Greenwich Insurance Co. of New York, (l905) 50 Law Ed 246; Weaver v. Palmer Brothers Co., (1925) 70 Law Ed 654 West Coast Hotel Co. v. Parrish, (1936) 81 Law Ed 703 in support of the proposition that if an evil is especially experienced in a particular branch of business, the Constitution embodies no prohibition of laws confined to the evil or doctrinaire requirement that they should be couched in all embracing terms. It was said that if the law was intended to remove the evil where it was most felt it was not to be overthrown because there were other instances to which it might have been applied. This rule really means that there is no doctrinaire requirement that the legislation should be couched in all embracing terms. A case of under classification would be an instance of this rule. The present case of classification of rural areas is not one of under classification. This is a case of discrimination in favour of the majority of rural population to the prejudice of students drawn from the general category. This classification is unconstitutional.40. In Civil Appeal No. 1385 of 1973 two other minor contentions were raised. One was that the reservation was beyond 50 percent. The total number of seats to be filled in through the combined test is 732.The number of general seats is 368. 26 seats are reserved for Government of India nominees under various heads. The reservation of 26 seats was contended to be considered while calculating the percentage of -reserved seats. If 26 seats are included it was said that the reserved seats would come to 52 per cent. 26 seats form a source from which selection is made. The Government bears the burden of expenses of education.A provision laying down a source is not a reservation (See Chanchalas case (1871) Supp SCR 608 = (AIR 1971 SC 1762 ) (supra).41. The other contention was that the State Government changed the percentage of reserved seats after the premedical test was held. The contention was that candidates belonging to reserved classes were able to secure some of the general seats on the basis of their better performance in competitive test and therefore more seats went to people from reserved classes The Government did not change the number of seats for reserved classes. Candidates belonging to the reserved classes were selected by reason of their excellence in education. The reservation has not been changed. We have already held that the success of candidates from rural areas do not represent educationally backward classes of citizens.
### Response:
1
### Explanation:
to predicate poverty as the common trait of rural people. This Court in J. P. Parimoo v. State of Jammu and Kashmir (1973) 3 SCR 236 = (AIR 1973 SC 930 = 1973 Lab IC 565) said that if poverty is the exclusive test a large population in our country would be socially and educationally backward class of citizens. Poverty is evident everywhere and perhaps more so in educationally advanced and socially affluent classes. A division between the population of our country on the ground of property, that the people in the urban areas are not poor and, that the people in the rural areas are poor is neither supported by facts nor by a division between the urban people on the one hand and the rural people on the other that the rural people are socially and educationally backward class.25. Some people in the rural areas may be educationally backward, some may be socially backward, there may be a few who are both socially and educationally backward, but it cannot be said that all citizens residing in rural areas are socially and educationally backward.26. 80 per cent. of the population in the State of Uttar Pradesh in rural areas cannot be said to be a homogeneous class by itself. They are not of the same kind. Their occupation is different. Their standards are different. Their lives are different. Population cannot be a class by itself. Rural element does not make it a class. To suggest that the rural areas are socially and educationally backward is to have reservation for the majority of theis neither a valid nor a justifiable ground for determining social and educational backwardness. Educational institutions should attract the best talents. It has been held by this Court in Balajis case 1963 Supp 1 SCR 438 = (AIR 1963 SC 649 ) (supra) that 50 per cent. of the seats in educational institutions should be left open to general competition. In the present case, it appears that 85 candidates from rural areas were selected in the general seats. One candidate from Uttrakhand area, 7 candidates from hill areas and one Scheduled Caste candidate also competed for the general seats. The candidates from hill areas, Uttrakhand Division and Scheduled Castes are exceptions and their performance will not detract from the reservations for Scheduled Caste, hill and Uttrakhand areas. The performance of 85 candidates from rural areas speak. eloquently for the high standards of education in rural areas.29. The reservation for rural area cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens. This reservation appears to be made for the majority population of the State. 80 per cent of the population of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. Poverty is found in all parts of India. In the instructions for reservation of seats it is provided that in the application form a candidate for reserved seats from rural areas must submit a certificate of the District Magistrate of the District to which he belonged that he was born in rural area and had a permanent home there, and is residing there or that he was born in India and his parents and guardians are still living there and earn their livelihood there. The incident of birth in rural areas is made the basic qualification. No reservation can be made on the basis of place of birth, as this would offend Article 15.30. The onus of proof is on the State to establish that the reservations are for socially and educationally backward classes of citizens. The State has established that the people in hill and Uttrakhand areas are socially and educationally backward classes of citizens.In the present case, the reservation for the rural area cannot be upheld because there is no classification based on residence between students coming from within the State and others coming from without. The object of providing medical education to students in Uttar Pradesh is to secure the best possible students for admission to these colleges, It is in this context thatallocation was held by this Court in Rajendran v. State of Madras, (1968) 2 SCR 788 = (AIR 1968 SC 1012 ) to violate Article 14. Thedistribution of seats which was found to be valid in Chanchalas case (1971) Supp SCR 608 = (AIR 1971 SC 1762 ) (supra) does not have any application in the present case.38. The submission of the Attorney General that rural population would be a source for drawing students cannot be upheld. An illustration of different sources of categories of students is Chitra Ghosh v. Union of India, (1970) 1 SCR 413 = (AIR 1970 SC 35 ). There the categories of students were classified as residents of Delhi; sons/daughters of Central Government servants posted in Delhi; candidates whose father is dead and is wholly dependent on brother/sister who is a Central Government servant posted in Delhi; sons/daughters of residents of Union Territories including displaced persons registered therein; sons/daughters of Central Government servants posted in Indian Missions abroad; cultural scholars; Colombo Plan Scholars; Thailand Scholars and Jammu and Kashmir State Scholars. Rural area in Uttar Pradesh cannot be said to be a source for reservation of the type in Chitra Ghosh,s case (1970) 1 SCR 413 = (AIR 1970 SC 35 )rule really means that there is no doctrinaire requirement that the legislation should be couched in all embracing terms. A case of under classification would be an instance of this rule. The present case of classification of rural areas is not one of under classification. This is a case of discrimination in favour of the majority of rural population to the prejudice of students drawn from the general category. This classification ishave already held that the success of candidates from rural areas do not represent educationally backward classes of citizens.
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Mathura Prasad Bajoo Jaiswal & Ors Vs. Dossibai N. B. Jeejeebhoy | res judicata. In that case the owner of an impartible estate, after his estate was released from management, executed a maintenance grant in favour of his minor son B, but without the sanction of the Commissioner as required by Section 12-A of the Act. B on attaining majority sued his father and brother for a maintenance grant at the rate of Rs. 4, 000 per annum. The claim was decreed, and the plaintiff was awarded a decree for a grant of Rs. 4, 000 inclusive of the previous grant of 1909, and the Court held that the grant of 1909 was valid in law. The father implemented the decree and made an additional maintenance grant up to the value of the decreed sum. In an action by the sons of Bs brothers challenging the two grants on the plea that the grants were illegal and not binding upon them, the Judicial Committee held that the plea was barred as res judicata in respect of both the grants - in respect of the first because there was an express decision on the validity of the first grant in the earlier suit, and in respect of the second the decision in the first suit was res judicata as to the validity of the second grant which was made in fulfilment of the obligation under the Courts decision. The Judicial Committee held that in respect of the first grant, the decision that Section 12-A did not apply to the grant, was res judicata, and in respect of the second grant the construction between the same parties of Section 12-A was res judicata. Validity of the second grant was never adjudicated upon in any previous suit : the second grant was held valid because between the parties it was decided that to the grant of maintenance of an impartible zamindari Section 12-A of the Chota Nagpur Encumbered Estates Act had no application. This part of the judgment of the Judicial Committee is open to doubt. 7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties : Tarini Charan Bhattacharjees case (supra). It is obvious that the matter is issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different. 8. In a case relating to levy of tax a decision valuing property or determining liability to tax in a different taxable period or event is binding only in that period or event, and is not binding in the subsequent years, and therefore the rule of res judicata has no application : See Broken Hill Proprietary Company Ltd. v. Municipal Council of Broken Hill.((1926) AC 94) 9. A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Ranking, C.J., observed in Tarini Charan Bhattacharjees case (supra) : The object of the doctrine of res judicata is not to fasten upon parties special principles of law an applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided. 10. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. 11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e., the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in Section 11, Code of Civil Procedure means the right litigated between the parties, i.e., the fact on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land. 12. In the present case the decision of the Civil Judge, Junior Division, Borivli, that he had no jurisdiction to entertain the application for determination of standard rent, is, in view of the judgment of this Court, plainly erroneous : See Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal and Others (supra). If the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature. | 1[ds]10. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata.Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e., the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in Section 11, Code of Civil Procedure means the right litigated between the parties, i.e., the fact on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land12. In the present case the decision of the Civil Judge, Junior Division, Borivli, that he had no jurisdiction to entertain the application for determination of standard rent, is, in view of the judgment of this Court, plainly erroneous : See Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal and Others (supra). If the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature. | 1 | 2,735 | 483 | ### 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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res judicata. In that case the owner of an impartible estate, after his estate was released from management, executed a maintenance grant in favour of his minor son B, but without the sanction of the Commissioner as required by Section 12-A of the Act. B on attaining majority sued his father and brother for a maintenance grant at the rate of Rs. 4, 000 per annum. The claim was decreed, and the plaintiff was awarded a decree for a grant of Rs. 4, 000 inclusive of the previous grant of 1909, and the Court held that the grant of 1909 was valid in law. The father implemented the decree and made an additional maintenance grant up to the value of the decreed sum. In an action by the sons of Bs brothers challenging the two grants on the plea that the grants were illegal and not binding upon them, the Judicial Committee held that the plea was barred as res judicata in respect of both the grants - in respect of the first because there was an express decision on the validity of the first grant in the earlier suit, and in respect of the second the decision in the first suit was res judicata as to the validity of the second grant which was made in fulfilment of the obligation under the Courts decision. The Judicial Committee held that in respect of the first grant, the decision that Section 12-A did not apply to the grant, was res judicata, and in respect of the second grant the construction between the same parties of Section 12-A was res judicata. Validity of the second grant was never adjudicated upon in any previous suit : the second grant was held valid because between the parties it was decided that to the grant of maintenance of an impartible zamindari Section 12-A of the Chota Nagpur Encumbered Estates Act had no application. This part of the judgment of the Judicial Committee is open to doubt. 7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties : Tarini Charan Bhattacharjees case (supra). It is obvious that the matter is issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different. 8. In a case relating to levy of tax a decision valuing property or determining liability to tax in a different taxable period or event is binding only in that period or event, and is not binding in the subsequent years, and therefore the rule of res judicata has no application : See Broken Hill Proprietary Company Ltd. v. Municipal Council of Broken Hill.((1926) AC 94) 9. A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Ranking, C.J., observed in Tarini Charan Bhattacharjees case (supra) : The object of the doctrine of res judicata is not to fasten upon parties special principles of law an applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided. 10. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. 11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e., the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in Section 11, Code of Civil Procedure means the right litigated between the parties, i.e., the fact on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land. 12. In the present case the decision of the Civil Judge, Junior Division, Borivli, that he had no jurisdiction to entertain the application for determination of standard rent, is, in view of the judgment of this Court, plainly erroneous : See Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal and Others (supra). If the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature.
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1
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10. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata.Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e., the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in Section 11, Code of Civil Procedure means the right litigated between the parties, i.e., the fact on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land12. In the present case the decision of the Civil Judge, Junior Division, Borivli, that he had no jurisdiction to entertain the application for determination of standard rent, is, in view of the judgment of this Court, plainly erroneous : See Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal and Others (supra). If the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature.
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R. Sai Bharathi Vs. J. Jayalalitha & Others | is possessed by a community - a measure which is indispensable for the adaptation of the individual to society. The authors of the Indian Penal Code stated that :- ....We cannot admit that a Penal Code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that, because an act is not punished at all, it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross ingratitude and insolence deserves more severe reprehension than the man who aims a blow in passion, or breaks a window in a frolic; yet we have punishment for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow-creature from death may be a far worse man than the starving wretch who snatches and devours the rice; yet we punish the latter for theft, and we do not punish the former for hard-heartedness. Though we have come to the conclusion that A-1 is not guilty of the offences with which she was charged, it is clear that the property belonging to public sector undertakings was sold to firms of which A-1 is a partner at a time when she held the Office of the Chief Minister. Under the articles of association of the public sector undertaking, there is a requirement that before the sale of property is effected approval of the government is needed and sale cannot be completed without such approval because such an act will be ultra vires the powers of the Board of Directors of the company. Such approval was readily given by the Government machinery, though on paper she remained out of picture. Officers even holding small posts like a Railway Property Keeper or a Cattle Pound Keeper or a Process Nazir who is put in charge of the sale of properties in a court auction cannot purchase the properties over which they have control. In the present case, in view of the fact that Government headed by the 1st Respondent has to give permission in respect of the sale of property of these two companies, it certainly exercises powers over the same and thus there is conflict of interest. Where there is conflict of interest law has always avoided such sales being effected in favour of those who can jeopardise the fair outcome of the transaction. Whatever may be our findings on the question of valuation of the property whether it resulted in a pecuniary advantage to A-1 or not, we are clear in our mind that if the officers and others become aware of the fact that the Chief Minister of the State is interested in purchasing some properties, the bureaucracy will be over-enthusiastic to see that the sale goes through smoothly and at a price desired by such Chief Minister. Though we can visualise such situation, such facts have to be established by concrete evidence to be convicted in a criminal case and is hard or difficult to get. At any rate, it is plain that such conduct is opposed to the spirit of the Code of Conduct if not its letter. Morally speaking, Can there be one law for small officials of the Government and another law for the Chief Minister ? In matters of such nature, is the Code of Conduct meant only to be kept as an ornamental relic in a museum but not to be practised ? These aspects do worry our conscience. Respondent No.1 in her anxiety to save her skin went to any length even to deny her signature on documents which her auditor and other Government officials identified. Report leading to IPC makes it clear that criminal law merely prescribes the minimum standards of behaviour, while in public life, those who hold high offices should not take shelter under the umbrella of criminal law but stand by high probity. Further, criminal law is meant to deal with criminals ordinarily, while Code of Conduct is observed as gentlemens agreement. Persons in public life, who are gentlemen, follow such Code instead of taking escape routes by resorting to technical pleas as arise in criminal cases. Persons in public life are expected to maintain very high standards of probity and, particularly, when there is likely to be even least bit of conflict of interest between the office one holds and the acts to be done by such person, ought to desist himself from indulging in the same. Such standards of behaviour were scrupulously observed in the earlier days after independence, but those values how now dwindled and instances of persons holding high elective offices indulging in self- aggrandisement by utilising Government property or in distribution of the largesse of the Government to their own favourties or for certain quid pro quo are on the increase. We have to strongly condemn such actions. Good ethical behaviour on the part of those who are in power is the hallmark of a good administration and people in public life must perform their duties in a spirit of public service rather than by assuming power to indulge in callous cupidity regardless of self imposed discipline. Irrespective of the fact whether we reach the conclusion that A-1 is guilty of the offences with which she is charged or not, she must atone for the same by answering her conscience in the light of what we have stated not only by returning the property to TANSI unconditionally but also ponder over whether she had done the right thing in breaching the spirit of the Code of Conduct and giving rise to suspicion that rules and procedures were bent to acquire the public property for personal benefit, though trite to say that suspicion however strong cannot take place of legal proof in a criminal case and take steps to expiate herself. 44. | 0[ds]the price offered by the respondents and accepted by TANSI cannot be termed to be not a fair price in regard to the properties in question going by the state of evidence on record. If the value of the properties is determined, as stated above, the view taken by the High Court in respect of the value charges under Section 13(1)(c)(d), 13(2) of the Prevention of Corruption Act and under Sections 409 and 120-B IPC would stand to reason22. The guideline value has relevance only in the context of Section 47-A of the Indian Stamp Act (as amended by TN Act 24 of 1967) which provides for dealing with instruments of conveyance which are undervalued. The guideline value is a rate fixed by authorities under the Stamp Act for purposes of determining the true market value of the property disclosed in an instrument requiring payment of stamp duty. Thus the guideline value fixed is not final but only a prima facie rate prevailing in an area. It is open to the registering authority as well as the person seeking registration to prove the actual market value of property. The authorities cannot regard the guideline valuation as the last word on the subject of market value. This position is made clear in the explanation to Rule 3 of Prevention of Undervaluation of Instruments Rulessaid land forms part of the land out of which a portion is sold to the firms of respondents. The contention of the prosecution that this is not a comparable transaction has been rejected by the High Court for valid reasons. The approach of the High Court cannot be said to be relevant or perversedo not think that this aspect assumes any significance especially in view of the fact that one of the terms in the advertisement itself stipulates that the actual area to be sold will be according to measurement. Thus the view taken by the High Court in this regard in perfectly in order and calls for no interference31. On scrutiny of the entire evidence led by the prosecution the charge of conspiracy cannot stand as there is no link to show that the conspirators agreed to have the property sold or the property purchased at a lesser price so as to cause wrongful loss or wrongful gain or to enable A-1 ad A-2 to obtain the property at a price less than its valueproperty in question belonged to TANSI a Government Company nd it was neither trust property nor was it entrusted to or under the control of the Chief Minister or any Minister. Hence, Section 13(1)(c) of the Prevention of Corruption Act is not attracted to the facts of the caseHigh Court did not accept the evidence of PW-12. This evidence does not in any manner advance the case of the prosecution to establish that A-6 has committed any offence40. The trial Judge proceeded on the basis that A-5 committed an error in taking into consideration the sale to SIDCO for fixing the market value of the property in dispute though, in fact, document NO. 1442 of 1991 was not the sale to SIDCO. But these documents have not been put to A-5 and he had no opportunity to explaining the circumstances under which these documents had come into existence and, therefore, the trial Judge was not justified to test his veracity with reference to those documents. Therefore, A-5 cannot be attributed with any misconductTherefore, there was no entrustment of the said properties and it cannot be said that A-1 had dominion over the said properties either as the Chief Minister or as the Minister of Industries and in any case, the evidence does not establish the ingredient of dishonest disposal or conversion of property for personal use . Thus the charge under the aforesaid section is also not established as rightly held by the High Court | 0 | 17,166 | 701 | ### 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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is possessed by a community - a measure which is indispensable for the adaptation of the individual to society. The authors of the Indian Penal Code stated that :- ....We cannot admit that a Penal Code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that, because an act is not punished at all, it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross ingratitude and insolence deserves more severe reprehension than the man who aims a blow in passion, or breaks a window in a frolic; yet we have punishment for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow-creature from death may be a far worse man than the starving wretch who snatches and devours the rice; yet we punish the latter for theft, and we do not punish the former for hard-heartedness. Though we have come to the conclusion that A-1 is not guilty of the offences with which she was charged, it is clear that the property belonging to public sector undertakings was sold to firms of which A-1 is a partner at a time when she held the Office of the Chief Minister. Under the articles of association of the public sector undertaking, there is a requirement that before the sale of property is effected approval of the government is needed and sale cannot be completed without such approval because such an act will be ultra vires the powers of the Board of Directors of the company. Such approval was readily given by the Government machinery, though on paper she remained out of picture. Officers even holding small posts like a Railway Property Keeper or a Cattle Pound Keeper or a Process Nazir who is put in charge of the sale of properties in a court auction cannot purchase the properties over which they have control. In the present case, in view of the fact that Government headed by the 1st Respondent has to give permission in respect of the sale of property of these two companies, it certainly exercises powers over the same and thus there is conflict of interest. Where there is conflict of interest law has always avoided such sales being effected in favour of those who can jeopardise the fair outcome of the transaction. Whatever may be our findings on the question of valuation of the property whether it resulted in a pecuniary advantage to A-1 or not, we are clear in our mind that if the officers and others become aware of the fact that the Chief Minister of the State is interested in purchasing some properties, the bureaucracy will be over-enthusiastic to see that the sale goes through smoothly and at a price desired by such Chief Minister. Though we can visualise such situation, such facts have to be established by concrete evidence to be convicted in a criminal case and is hard or difficult to get. At any rate, it is plain that such conduct is opposed to the spirit of the Code of Conduct if not its letter. Morally speaking, Can there be one law for small officials of the Government and another law for the Chief Minister ? In matters of such nature, is the Code of Conduct meant only to be kept as an ornamental relic in a museum but not to be practised ? These aspects do worry our conscience. Respondent No.1 in her anxiety to save her skin went to any length even to deny her signature on documents which her auditor and other Government officials identified. Report leading to IPC makes it clear that criminal law merely prescribes the minimum standards of behaviour, while in public life, those who hold high offices should not take shelter under the umbrella of criminal law but stand by high probity. Further, criminal law is meant to deal with criminals ordinarily, while Code of Conduct is observed as gentlemens agreement. Persons in public life, who are gentlemen, follow such Code instead of taking escape routes by resorting to technical pleas as arise in criminal cases. Persons in public life are expected to maintain very high standards of probity and, particularly, when there is likely to be even least bit of conflict of interest between the office one holds and the acts to be done by such person, ought to desist himself from indulging in the same. Such standards of behaviour were scrupulously observed in the earlier days after independence, but those values how now dwindled and instances of persons holding high elective offices indulging in self- aggrandisement by utilising Government property or in distribution of the largesse of the Government to their own favourties or for certain quid pro quo are on the increase. We have to strongly condemn such actions. Good ethical behaviour on the part of those who are in power is the hallmark of a good administration and people in public life must perform their duties in a spirit of public service rather than by assuming power to indulge in callous cupidity regardless of self imposed discipline. Irrespective of the fact whether we reach the conclusion that A-1 is guilty of the offences with which she is charged or not, she must atone for the same by answering her conscience in the light of what we have stated not only by returning the property to TANSI unconditionally but also ponder over whether she had done the right thing in breaching the spirit of the Code of Conduct and giving rise to suspicion that rules and procedures were bent to acquire the public property for personal benefit, though trite to say that suspicion however strong cannot take place of legal proof in a criminal case and take steps to expiate herself. 44.
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0
### Explanation:
the price offered by the respondents and accepted by TANSI cannot be termed to be not a fair price in regard to the properties in question going by the state of evidence on record. If the value of the properties is determined, as stated above, the view taken by the High Court in respect of the value charges under Section 13(1)(c)(d), 13(2) of the Prevention of Corruption Act and under Sections 409 and 120-B IPC would stand to reason22. The guideline value has relevance only in the context of Section 47-A of the Indian Stamp Act (as amended by TN Act 24 of 1967) which provides for dealing with instruments of conveyance which are undervalued. The guideline value is a rate fixed by authorities under the Stamp Act for purposes of determining the true market value of the property disclosed in an instrument requiring payment of stamp duty. Thus the guideline value fixed is not final but only a prima facie rate prevailing in an area. It is open to the registering authority as well as the person seeking registration to prove the actual market value of property. The authorities cannot regard the guideline valuation as the last word on the subject of market value. This position is made clear in the explanation to Rule 3 of Prevention of Undervaluation of Instruments Rulessaid land forms part of the land out of which a portion is sold to the firms of respondents. The contention of the prosecution that this is not a comparable transaction has been rejected by the High Court for valid reasons. The approach of the High Court cannot be said to be relevant or perversedo not think that this aspect assumes any significance especially in view of the fact that one of the terms in the advertisement itself stipulates that the actual area to be sold will be according to measurement. Thus the view taken by the High Court in this regard in perfectly in order and calls for no interference31. On scrutiny of the entire evidence led by the prosecution the charge of conspiracy cannot stand as there is no link to show that the conspirators agreed to have the property sold or the property purchased at a lesser price so as to cause wrongful loss or wrongful gain or to enable A-1 ad A-2 to obtain the property at a price less than its valueproperty in question belonged to TANSI a Government Company nd it was neither trust property nor was it entrusted to or under the control of the Chief Minister or any Minister. Hence, Section 13(1)(c) of the Prevention of Corruption Act is not attracted to the facts of the caseHigh Court did not accept the evidence of PW-12. This evidence does not in any manner advance the case of the prosecution to establish that A-6 has committed any offence40. The trial Judge proceeded on the basis that A-5 committed an error in taking into consideration the sale to SIDCO for fixing the market value of the property in dispute though, in fact, document NO. 1442 of 1991 was not the sale to SIDCO. But these documents have not been put to A-5 and he had no opportunity to explaining the circumstances under which these documents had come into existence and, therefore, the trial Judge was not justified to test his veracity with reference to those documents. Therefore, A-5 cannot be attributed with any misconductTherefore, there was no entrustment of the said properties and it cannot be said that A-1 had dominion over the said properties either as the Chief Minister or as the Minister of Industries and in any case, the evidence does not establish the ingredient of dishonest disposal or conversion of property for personal use . Thus the charge under the aforesaid section is also not established as rightly held by the High Court
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Mun. Corp. Of Delhi Vs. Naresh Kumar | dwelling houses? are concerned, we are again of the view that the buildings or farm houses must be solely or substantially used for dwelling purposes, that is to say, with a degree of continuity and permanency, and not solely or substantially for agricultural purposes, then such buildings will fall inside the tax-net. We do not visualise any third category of buildings or farm houses which do not fall into one or other categories above stated. Assuming however that any such intermediate category arises, we are of the view that the person claiming the exemption will not be entitled to exemption from property tax unless he proves that the building is solely or substantially used for agricultural purposes. Whether a given building is used substantially for agricultural purposes, is a question depending upon the facts and circumstances of each case and on what, according to general principles of law could be said to be the meaning of the words agricultural purposes.? 3. With respect we are unable to agree with the High Court. Clause (c) exempts ?agricultural lands and buildings? from the levy imposed by Section 115(4). Clause (c), however, contains an exception within itself. The ?dwelling houses? are excluded from the purview of agricultural lands and buildings. In other words, once it is a ?dwelling house it is outside the purview of exempted category. The very context in which the expression ?dwelling houses? occurs shows that even the dwelling houses situated on, over or in the midst of agricultural lands were sought to be excluded from the exempted category of ?agricultural lands and buildings?. An agricultural building may be a godown where the agricultural produce is stored, it may be ware house or it may be a building housing the machinery used for purposes of agriculture. A dwelling house can also be occupied by persons carrying on the agricultural i.e., to carry on or supervise the agricultural operation. But according to Section 115(4)(c), the ?dwelling houses? as such are excluded from the category of agricultural buildings. In other words, even if it is possible to say that a dwelling house is an ?agricultural building?, yet it is excluded specifically by the statute from the fold of agricultural buildings. Applying the test evolved by the High Court would remove the distinction between ?agricultural buildings? and ?dwelling houses? which are mentioned together in Clause (c). An agricultural building is a building used mainly or pre-dominantly for the purpose of agricultural. If the same test is applied to dwelling houses then the very purpose and object being excluding dwelling houses from the purview of agricultural building would disappear. We, therefore, agree with the Corporation that once a building is a dwelling house no further enquiry need be made whether it is used mainly or predominantly for agricultural purposes or not. It is enough that it is a dwelling house. It become exigible to general tax. This would be so even the dwelling house is situated in the midst of a farm or is a part of the farm or it may be, what is called, a ?farm house?. 4. So far as the argument of occasional (as contrasted with regular) occupation is concerned, we may refer to the decision of this Court in The Tata Engineering And Locomotive Company Limited v. The Gram Panchayat, Pimpri Waghere, 1976 (4) S.C.C. 177. In Para 18, the following statement occurs: ?It may be stated generally that the word ?house? is a structure of a permanent character. It is structurally severed from other tenements. It is not necessary that a house if adapted for residential purposes should be actually dwelt in (see Daniel v. Coulsting, (1845) 14 LJCP 70 : 135 ER 53). A building in Covent Garden had formerly been a dwelling house but was converted into a fruit store warehouse and offices in which no one slept and was held to be a ?house? as regards assessment to the rectors rate within the provisions of the relevant statute.? 5. The next question is??if a ?dwelling house? is exigible to levy of general tax, how much of the adjacent land should be treated as an integral part of the dwelling house. In other words, the question is whether the entire land surrounding or abutting a farm house is subject to general tax alongwith the dwelling house. The answer to this question is : a dwelling house includes within its ambit such appurtenant land as is necessary for a proper and convenient enjoyment of the dwelling house. The extent of such appurtenant land is naturally a question of fact to be decided in each case. We have only stated the test. It is for the appropriate Assessing Authority to determine the extent of land which can be called appurtenant land to a given dwelling house. 6. The third question urged before us is as to the meaning of the expression ?agricultural land?. This question has not been really gone into by the High Court. When can a land be called an agricultural and has been the subject matter of good amount of debate under various enactments including the Income Tax Act and the Wealth Tax Act. Whether a land is an agricultural land or not is a mixed question of fact and law, which has to be decided in the facts and circumstances of the each case. We are not prepared to go into details, to determine whether the land involved in this appeal is ?agricultural land?, since that question has not been gone into by the High Court. The three issues set out by the High Court do not take in this issue. It is enough to say for the purposes of this appeal that a dwelling house situated on an agricultural land is not exempt from general tax and that a dwelling house includes within its ambit such appurtenant land as is necessary for a proper and convenient enjoyment of the dwelling house. No more can be said, nor need be said, in this appeal. | 1[ds]Whether a land is an agricultural land or not is a mixed question of fact and law, which has to be decided in the facts and circumstances of the each case. We are not prepared to go into details, to determine whether the land involved in this appeal is ?agricultural land?, since that question has not been gone into by the High Court. The three issues set out by the High Court do not take in this issue. It is enough to say for the purposes of this appeal that a dwelling house situated on an agricultural land is not exempt from general tax and that a dwelling house includes within its ambit such appurtenant land as is necessary for a proper and convenient enjoyment of the dwelling house. No more can be said, nor need be said, in this appeal. | 1 | 1,658 | 157 | ### 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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dwelling houses? are concerned, we are again of the view that the buildings or farm houses must be solely or substantially used for dwelling purposes, that is to say, with a degree of continuity and permanency, and not solely or substantially for agricultural purposes, then such buildings will fall inside the tax-net. We do not visualise any third category of buildings or farm houses which do not fall into one or other categories above stated. Assuming however that any such intermediate category arises, we are of the view that the person claiming the exemption will not be entitled to exemption from property tax unless he proves that the building is solely or substantially used for agricultural purposes. Whether a given building is used substantially for agricultural purposes, is a question depending upon the facts and circumstances of each case and on what, according to general principles of law could be said to be the meaning of the words agricultural purposes.? 3. With respect we are unable to agree with the High Court. Clause (c) exempts ?agricultural lands and buildings? from the levy imposed by Section 115(4). Clause (c), however, contains an exception within itself. The ?dwelling houses? are excluded from the purview of agricultural lands and buildings. In other words, once it is a ?dwelling house it is outside the purview of exempted category. The very context in which the expression ?dwelling houses? occurs shows that even the dwelling houses situated on, over or in the midst of agricultural lands were sought to be excluded from the exempted category of ?agricultural lands and buildings?. An agricultural building may be a godown where the agricultural produce is stored, it may be ware house or it may be a building housing the machinery used for purposes of agriculture. A dwelling house can also be occupied by persons carrying on the agricultural i.e., to carry on or supervise the agricultural operation. But according to Section 115(4)(c), the ?dwelling houses? as such are excluded from the category of agricultural buildings. In other words, even if it is possible to say that a dwelling house is an ?agricultural building?, yet it is excluded specifically by the statute from the fold of agricultural buildings. Applying the test evolved by the High Court would remove the distinction between ?agricultural buildings? and ?dwelling houses? which are mentioned together in Clause (c). An agricultural building is a building used mainly or pre-dominantly for the purpose of agricultural. If the same test is applied to dwelling houses then the very purpose and object being excluding dwelling houses from the purview of agricultural building would disappear. We, therefore, agree with the Corporation that once a building is a dwelling house no further enquiry need be made whether it is used mainly or predominantly for agricultural purposes or not. It is enough that it is a dwelling house. It become exigible to general tax. This would be so even the dwelling house is situated in the midst of a farm or is a part of the farm or it may be, what is called, a ?farm house?. 4. So far as the argument of occasional (as contrasted with regular) occupation is concerned, we may refer to the decision of this Court in The Tata Engineering And Locomotive Company Limited v. The Gram Panchayat, Pimpri Waghere, 1976 (4) S.C.C. 177. In Para 18, the following statement occurs: ?It may be stated generally that the word ?house? is a structure of a permanent character. It is structurally severed from other tenements. It is not necessary that a house if adapted for residential purposes should be actually dwelt in (see Daniel v. Coulsting, (1845) 14 LJCP 70 : 135 ER 53). A building in Covent Garden had formerly been a dwelling house but was converted into a fruit store warehouse and offices in which no one slept and was held to be a ?house? as regards assessment to the rectors rate within the provisions of the relevant statute.? 5. The next question is??if a ?dwelling house? is exigible to levy of general tax, how much of the adjacent land should be treated as an integral part of the dwelling house. In other words, the question is whether the entire land surrounding or abutting a farm house is subject to general tax alongwith the dwelling house. The answer to this question is : a dwelling house includes within its ambit such appurtenant land as is necessary for a proper and convenient enjoyment of the dwelling house. The extent of such appurtenant land is naturally a question of fact to be decided in each case. We have only stated the test. It is for the appropriate Assessing Authority to determine the extent of land which can be called appurtenant land to a given dwelling house. 6. The third question urged before us is as to the meaning of the expression ?agricultural land?. This question has not been really gone into by the High Court. When can a land be called an agricultural and has been the subject matter of good amount of debate under various enactments including the Income Tax Act and the Wealth Tax Act. Whether a land is an agricultural land or not is a mixed question of fact and law, which has to be decided in the facts and circumstances of the each case. We are not prepared to go into details, to determine whether the land involved in this appeal is ?agricultural land?, since that question has not been gone into by the High Court. The three issues set out by the High Court do not take in this issue. It is enough to say for the purposes of this appeal that a dwelling house situated on an agricultural land is not exempt from general tax and that a dwelling house includes within its ambit such appurtenant land as is necessary for a proper and convenient enjoyment of the dwelling house. No more can be said, nor need be said, in this appeal.
### Response:
1
### Explanation:
Whether a land is an agricultural land or not is a mixed question of fact and law, which has to be decided in the facts and circumstances of the each case. We are not prepared to go into details, to determine whether the land involved in this appeal is ?agricultural land?, since that question has not been gone into by the High Court. The three issues set out by the High Court do not take in this issue. It is enough to say for the purposes of this appeal that a dwelling house situated on an agricultural land is not exempt from general tax and that a dwelling house includes within its ambit such appurtenant land as is necessary for a proper and convenient enjoyment of the dwelling house. No more can be said, nor need be said, in this appeal.
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Basti Sugar Mills Ltd Vs. Ram Ujagar And Others | Art. 19(1) (g) is equally devoid of substance. Assuming that the result of this definition of employer in sub-cl. (iv) of S. 2(i) is the imposition of some restrictions on the appellants right to carry on trade or business, it cannot be doubted for a moment that the imposition of such restrictions is in the interest of the general public. For, the interests of the general public require that the device of the engagement of a contractor for doing work which is ordinarily part of the industry should not be allowed to be availed of by owners of industry for evading the provisions of the Industrial Disputes Act. That these provisions are in the interests of the general public cannot be and has not been disputed. That being the position, the impugned definition which gives the benefit of the provisions of the Act to the workmen engaged under a contract in doing work which is ordinarily part of the industry cannot but be held to be also in the interests of the general public.9. This brings us to Mr. Pathaks main contention that in any case the respondents are not workmen within the meaning of the Standing Orders and so cannot get the benefit of the minimum wage prescribed thereby. In the Standing Orders the word "workmen" is defined to mean "any person (including an apprentice) employed by a factory, to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied" but does not include any person mentioned in cls. (i) and (ii). We are not concerned in this case with these clauses. Mr. Pathak argues that on a reasonable construction, the words "employed by a factory" in this definition can only mean "employed by the management of the factory" and cannot include persons employed by a contractor of the factory. He points out that this definition of workmen in the Standing Orders used the words "employed by a factory" through the definition of workmen in the Act itself used the words "employed in any industry" and contends that the words "by a factory" were deliberately used instead of the words "in a factory" to exclude person other than those employed by the management of the factory from the benefit of the Standing Orders. Neither grammar not reason supports this argument.10. On the ordinary grammatical sense of the words "employed by a factory" they include, in our opinion, every person who is employed to do the work of the factory. The use of the word "by" has nothing to do with the question as to who makes the appointment. The reason why "by" was used instead of "in" appears to be to ensure that if a person has been employed to do the work of the industry, whether the work is done inside the factory or outside the factory, he will get the benefit of the Standing Orders.11. We can also see no reason why the Government in making the Standing Orders would think of denying to some of the persons who fall within the definition of workmen under the Act, the benefit of the Standing Orders. The Standing Orders were made under S. 3(b) of the Act under which the State Government may make provision "for requiring employers, workmen or both to observe for such periods as may be specified in the order such terms and conditions of employment as may be determined in accordance with the order." The purpose of the order was thus clearly to require employers to observe certain terms and conditions of employment of their workmen as defined in the Act. It is unthinkable that in doing so the Government would want to exclude from its benefits - particularly, that of the minimum wage - a class of workmen who would otherwise get the benefit under the definitions of workmen and employer in the Act itself. No reason has been suggested and we cannot think of any.12. We have therefore come to the conclusion that the words "employed by a factory" are wide enough to include workmen employed by the contractors of factory also.13. Mr. Pathak wanted to raise a new point based on the provisions of cl. (K) of the Standing Orders. That clause provides that a seasonal workmen who has worked or, but for illness or any other unavoidable cause, would have worked under a factory during the whole of the second half of the last preceding season will be employed by the factory in the current season. In view of this, Mr. Pathak wants to argue that it will be difficult for the appellant to give effect to the order of reinstatement of these 21 workmen as that would mean getting rid of at least some workmen who are entitled to be employed by the factory under the provisions of cl. (K). If the facts were known to be as suggested by the learned counsel we would have felt obliged to take note of these provisions of cl. (K) and would have thought fit to make an order as was made by this Court in similar circumstances in Mahalakshmi Sugar Mills Co., Ltd., v. Their Workmen, (1961) 2 lab LJ 623 (SC) making it clear that these 21 workmen should be re-employed in the crushing season of 1962-63 only in so far as it was possible to do so without breach of the provisions of cl. (K) of the Standing Orders. There are no materials on the record however to show how many of the workmen already employed by the Company in the crushing season of 1962-63 had actually worked in the latter half of 1961-62 season. In the written statement of the Company no such point about the difficulty of reinstatement of any of these 21 workmen because of the provisions of cl. (K) was raised. In these circumstances, we have not allowed Mr. Pathak to raise this new plea for the first time in this Court. | 0[ds]The obvious purpose of this extended definition of the word "employer" is to make the owner of the industry, in the circumstances mentioned in the sub-clause, the employer of the workmen engaged in the work which is done through contract. The words used in the sub-clause are clearly sufficient to achieve thiswords of the definition of workmen in S. 2(z) to mean "any person (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied" are by themselves sufficiently wide to bring in person doing work in an industry whether the employment was by the management or by the contractor of the management. Unless however the definition of the word "employer" included the management of the industry even when the employment was by the contractor the workmen employed by the contractor could not get the benefit of the Act since a dispute between them and the management would not be an industrial dispute between "employer" and workmen. It was with a view to remove this difficulty in the way of workmen employed by contractors that the definition of employer has been extended by sub-cl. (iv) of S. 2 (i). the position thus is : (a) that the respondents are workmen within the meaning of S. 2 (z), being persons employed in the industry to do manual work for reward, and (b) they were employed by a contractor with whom the appellant company had contracted in the course of conducting the industry for the execution by the said contractor of the work of removal of press-mud which is ordinarily a part of the industry. It follows therefore from S. 2(z) read with sub-cl. (iv) of S. 2(i) of the Act that they are workmen of the appellant company and the appellant company is their employer. There is no substance therefore in the first point raised by the learned counsel for thethese provisions are in the interests of the general public cannot be and has not been disputed. That being the position, the impugned definition which gives the benefit of the provisions of the Act to the workmen engaged under a contract in doing work which is ordinarily part of the industry cannot but be held to be also in the interests of the general public.9. This brings us to Mr. Pathaks main contention that in any case the respondents are not workmen within the meaning of the Standing Orders and so cannot get the benefit of the minimum wage prescribed thereby. In the Standing Orders the word "workmen" is defined to mean "any person (including an apprentice) employed by a factory, to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied" but does not include any person mentioned in cls. (i) and (ii). We are not concerned in this case with these clauses. Mr. Pathak argues that on a reasonable construction, the words "employed by a factory" in this definition can only mean "employed by the management of the factory" and cannot include persons employed by a contractor of the factory. He points out that this definition of workmen in the Standing Orders used the words "employed by a factory" through the definition of workmen in the Act itself used the words "employed in any industry" and contends that the words "by a factory" were deliberately used instead of the words "in a factory" to exclude person other than those employed by the management of the factory from the benefit of the Standing Orders. Neither grammar not reason supports thisreason why "by" was used instead of "in" appears to be to ensure that if a person has been employed to do the work of the industry, whether the work is done inside the factory or outside the factory, he will get the benefit of the Standingpurpose of the order was thus clearly to require employers to observe certain terms and conditions of employment of their workmen as defined in the Act. It is unthinkable that in doing so the Government would want to exclude from its benefits - particularly, that of the minimum wage - a class of workmen who would otherwise get the benefit under the definitions of workmen and employer in the Actare no materials on the record however to show how many of the workmen already employed by the Company in the crushing season of 1962-63 had actually worked in the latter half of 1961-62 season. In the written statement of the Company no such point about the difficulty of reinstatement of any of these 21 workmen because of the provisions of cl. (K) was raised. In these circumstances, we have not allowed Mr. Pathak to raise this new plea for the first time in this Court. | 0 | 2,514 | 921 | ### 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:
Art. 19(1) (g) is equally devoid of substance. Assuming that the result of this definition of employer in sub-cl. (iv) of S. 2(i) is the imposition of some restrictions on the appellants right to carry on trade or business, it cannot be doubted for a moment that the imposition of such restrictions is in the interest of the general public. For, the interests of the general public require that the device of the engagement of a contractor for doing work which is ordinarily part of the industry should not be allowed to be availed of by owners of industry for evading the provisions of the Industrial Disputes Act. That these provisions are in the interests of the general public cannot be and has not been disputed. That being the position, the impugned definition which gives the benefit of the provisions of the Act to the workmen engaged under a contract in doing work which is ordinarily part of the industry cannot but be held to be also in the interests of the general public.9. This brings us to Mr. Pathaks main contention that in any case the respondents are not workmen within the meaning of the Standing Orders and so cannot get the benefit of the minimum wage prescribed thereby. In the Standing Orders the word "workmen" is defined to mean "any person (including an apprentice) employed by a factory, to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied" but does not include any person mentioned in cls. (i) and (ii). We are not concerned in this case with these clauses. Mr. Pathak argues that on a reasonable construction, the words "employed by a factory" in this definition can only mean "employed by the management of the factory" and cannot include persons employed by a contractor of the factory. He points out that this definition of workmen in the Standing Orders used the words "employed by a factory" through the definition of workmen in the Act itself used the words "employed in any industry" and contends that the words "by a factory" were deliberately used instead of the words "in a factory" to exclude person other than those employed by the management of the factory from the benefit of the Standing Orders. Neither grammar not reason supports this argument.10. On the ordinary grammatical sense of the words "employed by a factory" they include, in our opinion, every person who is employed to do the work of the factory. The use of the word "by" has nothing to do with the question as to who makes the appointment. The reason why "by" was used instead of "in" appears to be to ensure that if a person has been employed to do the work of the industry, whether the work is done inside the factory or outside the factory, he will get the benefit of the Standing Orders.11. We can also see no reason why the Government in making the Standing Orders would think of denying to some of the persons who fall within the definition of workmen under the Act, the benefit of the Standing Orders. The Standing Orders were made under S. 3(b) of the Act under which the State Government may make provision "for requiring employers, workmen or both to observe for such periods as may be specified in the order such terms and conditions of employment as may be determined in accordance with the order." The purpose of the order was thus clearly to require employers to observe certain terms and conditions of employment of their workmen as defined in the Act. It is unthinkable that in doing so the Government would want to exclude from its benefits - particularly, that of the minimum wage - a class of workmen who would otherwise get the benefit under the definitions of workmen and employer in the Act itself. No reason has been suggested and we cannot think of any.12. We have therefore come to the conclusion that the words "employed by a factory" are wide enough to include workmen employed by the contractors of factory also.13. Mr. Pathak wanted to raise a new point based on the provisions of cl. (K) of the Standing Orders. That clause provides that a seasonal workmen who has worked or, but for illness or any other unavoidable cause, would have worked under a factory during the whole of the second half of the last preceding season will be employed by the factory in the current season. In view of this, Mr. Pathak wants to argue that it will be difficult for the appellant to give effect to the order of reinstatement of these 21 workmen as that would mean getting rid of at least some workmen who are entitled to be employed by the factory under the provisions of cl. (K). If the facts were known to be as suggested by the learned counsel we would have felt obliged to take note of these provisions of cl. (K) and would have thought fit to make an order as was made by this Court in similar circumstances in Mahalakshmi Sugar Mills Co., Ltd., v. Their Workmen, (1961) 2 lab LJ 623 (SC) making it clear that these 21 workmen should be re-employed in the crushing season of 1962-63 only in so far as it was possible to do so without breach of the provisions of cl. (K) of the Standing Orders. There are no materials on the record however to show how many of the workmen already employed by the Company in the crushing season of 1962-63 had actually worked in the latter half of 1961-62 season. In the written statement of the Company no such point about the difficulty of reinstatement of any of these 21 workmen because of the provisions of cl. (K) was raised. In these circumstances, we have not allowed Mr. Pathak to raise this new plea for the first time in this Court.
### Response:
0
### Explanation:
The obvious purpose of this extended definition of the word "employer" is to make the owner of the industry, in the circumstances mentioned in the sub-clause, the employer of the workmen engaged in the work which is done through contract. The words used in the sub-clause are clearly sufficient to achieve thiswords of the definition of workmen in S. 2(z) to mean "any person (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied" are by themselves sufficiently wide to bring in person doing work in an industry whether the employment was by the management or by the contractor of the management. Unless however the definition of the word "employer" included the management of the industry even when the employment was by the contractor the workmen employed by the contractor could not get the benefit of the Act since a dispute between them and the management would not be an industrial dispute between "employer" and workmen. It was with a view to remove this difficulty in the way of workmen employed by contractors that the definition of employer has been extended by sub-cl. (iv) of S. 2 (i). the position thus is : (a) that the respondents are workmen within the meaning of S. 2 (z), being persons employed in the industry to do manual work for reward, and (b) they were employed by a contractor with whom the appellant company had contracted in the course of conducting the industry for the execution by the said contractor of the work of removal of press-mud which is ordinarily a part of the industry. It follows therefore from S. 2(z) read with sub-cl. (iv) of S. 2(i) of the Act that they are workmen of the appellant company and the appellant company is their employer. There is no substance therefore in the first point raised by the learned counsel for thethese provisions are in the interests of the general public cannot be and has not been disputed. That being the position, the impugned definition which gives the benefit of the provisions of the Act to the workmen engaged under a contract in doing work which is ordinarily part of the industry cannot but be held to be also in the interests of the general public.9. This brings us to Mr. Pathaks main contention that in any case the respondents are not workmen within the meaning of the Standing Orders and so cannot get the benefit of the minimum wage prescribed thereby. In the Standing Orders the word "workmen" is defined to mean "any person (including an apprentice) employed by a factory, to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied" but does not include any person mentioned in cls. (i) and (ii). We are not concerned in this case with these clauses. Mr. Pathak argues that on a reasonable construction, the words "employed by a factory" in this definition can only mean "employed by the management of the factory" and cannot include persons employed by a contractor of the factory. He points out that this definition of workmen in the Standing Orders used the words "employed by a factory" through the definition of workmen in the Act itself used the words "employed in any industry" and contends that the words "by a factory" were deliberately used instead of the words "in a factory" to exclude person other than those employed by the management of the factory from the benefit of the Standing Orders. Neither grammar not reason supports thisreason why "by" was used instead of "in" appears to be to ensure that if a person has been employed to do the work of the industry, whether the work is done inside the factory or outside the factory, he will get the benefit of the Standingpurpose of the order was thus clearly to require employers to observe certain terms and conditions of employment of their workmen as defined in the Act. It is unthinkable that in doing so the Government would want to exclude from its benefits - particularly, that of the minimum wage - a class of workmen who would otherwise get the benefit under the definitions of workmen and employer in the Actare no materials on the record however to show how many of the workmen already employed by the Company in the crushing season of 1962-63 had actually worked in the latter half of 1961-62 season. In the written statement of the Company no such point about the difficulty of reinstatement of any of these 21 workmen because of the provisions of cl. (K) was raised. In these circumstances, we have not allowed Mr. Pathak to raise this new plea for the first time in this Court.
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The Management of the Tata Iron & Steel Co. Ltd Vs. Chief Inspecting Officer & Others | is incidental purpose then it will not be entitled to the benefit. In the present case, neither of the situation arises. It is established that this hospital caters as a social measure for the employees of the appellant Management and its associated industries and for the benefit of the Government servants as well as private patients, on payment of fee. Therefore, it does not qualify for any cause as charitable institution so as to be exempted under Section 4(2) of the Act read with item No. 2 of Schedule I. In this connection, our attention was also invited to a decision in the case of Le Cras v. Perpetual Trustee Co. Ltd. & Ors., reported in (1967) 3 All. E.R. 915. In this case, a testator bequeathed by his will two-thirds of the income of his residuary estate to the Sisters of Charity for the general purposes of St. Vincent?s Private Hospital for a period of two hundred years or for so long as they should conduct the Hospital. The private hospital was having 82 beds and close to a public hospital which had 500 beds. This was also conducted by the Sisters of Charity who were a voluntary association of women devoting themselves without reward. The reason for establishing the private hospital was to relieve the pressing demand of the public for admission to the general hospital. Charges were made at the private hospital for beds; it provided accommodation and medical treatment in greater privacy than would be possible in a general hospital. There were surpluses of income over expenditure but the private hospital was not conducted for profit. The surpluses had been used to contribute to the maintenance of the general hospital and for the general purposes of the Sisters of Charity. In that context Their Lordships held that the gift of income to the Sisters of Charity for the general purposes of the private hospital was a valid charitable gift. Therefore, what prevailed in the mind of Their Lordships is the dominant purpose for which the hospital was being run. That is not the case here. 13. Similarly in the case of Trustees of Tribune Press, Lahore v. Commissioner of Income-tax, Punjab, reported in AIR 1939 PC 208 , similar question arose under the Income Tax Act, 1922. In the said case while dealing with the Income Tax Act, 1922 held as follows: ?Though the personal or private opinion of the Judge is immaterial, nevertheless for a charitable gift to be valid it must be shown, (1) that the gift will or may be operative for the public benefit, and (2) that the trust is one the administration of which the Court itself could, if necessary, undertake and control. There is nothing in the Income-tax Act to discharge the Court of its responsibility in coming to a finding as to the character of the object of a trust a matter which bears directly upon its validity.? Here also the question was what is the dominant purpose for which the trust is created. If the trust is dominantly for the purpose of charity then of course it will qualify for the exemption. This is not the case here. Our attention was also invited to a decision of this Court in the case of Joseph Rowntree Memorial Trust Housing Association Ltd. & Ors. v. Attorney General, reported in (1983) 2 W.L.R. 214. Similarly, in this case also, the question came up for determination was whether the scheme was charitable in law or not. Their Lordships held as follows: ?That the words describing the beneficiaries of the first set of charitable purposes in the preamble to the Statute of Elizabeth had to be read disjunctively so that beneficiaries could be either aged, impotent or poor but that in order to be considered charitable the gift to such people had to have as its purpose the ?relief? of a need attributable to the condition of the beneficiaries; that, since the provision of special accommodation relieved a particular need of the elderly, whether poor or not, attributable to their aged condition, the schemes were within the scope of the charitable purpose of providing relief to the aged.? Therefore, the ratio is the dominant purpose in each case. If it is meant essentially for charitable purpose and not open for any other purpose, then of course such institution will qualify for exemption as charitable institution. 14. Similar, in the case of P.C. Raja Ratnam Institution v. M.C.D. & Ors., reported in 1990 (Suppl.) SCC 97, the question arose whether under Delhi Municipal Corporation Act, 1957, the school run by the society is covered under charitable purpose or not. Their Lordships held as follows: ?The test of `charitable purpose? is satisfied by the proof of any of the three conditions, namely, relief of the poor, education, or medical relief. The fact that some fee is charged from the students is also not decisive inasmuch as the proviso indicates that the expenditure incurred in running the society may be supported either wholly or in part by voluntary contributions. Besides, the explanation is, in terms inclusive and not exhaustive.? However, in this case, Their Lordships remitted the case for fresh decision as the High Court had not adverted to the aforesaid cause. But in the present case, the facts are well known and it is more than clear that the establishment of the Hospital was not for charitable purpose, it was meant as social measure for the benefit of the employees of the appellant Management and its associated industries as a statutory obligation and for the other patients charges were levied. Therefore, by no stretch of imagination it can be said that Hospital is being run for a charitable purpose. 15. In the result, in view of our discussions made above, we find that the view taken by the High Court is correct and there is no ground to interfere with the same. The appeal is accordingly dismissed. No costs. Civil Appeal No. 2309 of 1999: | 0[ds]So far as the definition of ‘business? is concerned, it is clear from the facts that right from the beginning when the Hospital was established, it was catering to the needs of the employees and their families at TISCO and its associated companies but at the same time it was open for the Government servants and private patients also. The Government servants and private patients were charged for their treatment in the Hospital. It is not primarily meant to cater to the employees of the appellant or their associated companies but also for the private individuals also. Therefore, it cannot be said that the Hospital was only meant to cater the need of the employees of the appellantIt may also be relevant to mention here that the establishment of the present Hospital is an obligation on the part of the appellant management because otherwise they had to contribute under the Employees State Insurance Act, 1948. Under the said Act the employees as well as the employer, both have an obligation to make contribution for the medical facilities provided by the E.S.I. Hospitals. All the establishments have to get themselves registered under Section 2A of the E.S.I. Act. They have also to make necessary contribution as per the provisions of the Act. At the same time, under Section 87 of the Act, exemption can also be granted by the Government by issuing notification exempting any factory or establishment or class of establishments in any specified area from operation of this Act for a period of one year and may from time-to-time by like notification renew any such exemption for periods not exceeding one year at a time.It is admitted by learned Counsel for the appellant that the present establishment had obtained exemption up to the year 1996 but after that exemption was not granted and a petition was filed in the Court and stay order has been granted.Therefore, even if the establishment of the Hospital may be for the purpose of taking care of their employees, it is under statutory obligation of the appellant management otherwise they would have to make registration under Section 2A of the E.S.I. Act, 1948. It is admitted that the appellant sought exemption from operation of the Act which was granted upo to the year 1996. Be that as it may, the fact remains that from the materials available on record it is apparent that the Hospital is not only catering for the employees but it caters to the Government and private patients as well for which it is charging fee for the services rendered, it is irrelevant. Whether it is running for profit or loss. Profit or loss is part of the business and it is incidental to every business. Therefore, it is not decisive of the matter whether the establishment is running for profit or gain. In the present case,from the facts as mentioned above, it is more than evident that the Hospital is not being run for the employees of the appellant management or their associated industries only but it caters to the need of the Government servants as well as private patients and fee is charged from them. Therefore, the Hospital is doing business and it is not doing charityAnother aspect that was emphasised was that since it is running in loss and it is not making any profit, therefore, it is not covered by the definition of establishment. It may be relevant to mention that the profit or loss is not decisive of the matter with regard to the, to say that the Hospital is not making any profit that is not the touchstone whereby we can judge whether they are doing the business or not. If the activity is frequent, continuous and relating to business, whether they earn profit or not that is not the crux of the matter. Profit or loss is incidental to the business. What is essential is the frequency, continuity and relating to transactions. These ingredients are present in the present activities of the Hospital that it is continuing and regularly taking care of the patients be it private patients or patients belonging to the appellant management or their associated industries. Therefore, the emphasis of the learned Counsel that it is not making profit is not relevant for the present, from the materials placed by the parties, it is more than apparent that the present Hospital is a part of the establishment of the appellant management and it caters not only for the employees of the appellant management and its associated companies but for Government servants and private patients as well from whom fee is charged. Therefore, they are doing business and they fall within the definition of establishment as defined in Section 2(6) of the Act12. The next question which has been argued by learned Senior Counsel for the appellant was that it was doing charity, therefore, it is entitled to exemption under Section 4(2) read with item No. 2 of Schedule I. We fail to understand how this activity of the present Hospital can be treated to be a charity. As pointed out above, it is under the obligation of the appellant Management to subscribe for the employees under the Employees State Insurance Act, 1948 by making contribution. Since they were not subscribing contribution because they obtained exemption under Section 87 of the E.S.I. Act, 1948 as they run the hospital for the benefit of the employees, the exemption was granted to them till 1996 but subsequently that exemption was refused. Therefore, it cannot be said that what they are doing isn the present case, thedominant purpose is to cater for the needs of the employees of the appellant Management and its associated Industries. In fact, it was established for that particular purpose only. But the services were also extended to Government servants and to the private patients not free of cost. Therefore, the dominant purpose for establishing the hospital is not charitable which is exempted under the Act and the law which has been laid down by this Court in the aforesaid case is that the principle of dominant purpose should be found out from the activities or the business. If the dominant purpose is appearing as charity then it will be admissible to the benefit of a charity and if it is incidental purpose then it will not be entitled to the benefit.In the present case,neither of the situation arises. It is established that this hospital caters as a social measure for the employees of the appellant Management and its associated industries and for the benefit of the Government servants as well as private patients, on payment of fee. Therefore, it does not qualify for any cause as charitable institution so as to be exempted under Section 4(2) of the Act read with item No. 2 of Schedule I.15. In the result, in view of our discussions made above, we find that the view taken by the High Court is correct and there is no ground to interfere with the same. The appeal is accordingly dismissed. No costsCivil Appeal No. 2309 of 1999: | 0 | 5,467 | 1,284 | ### 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:
is incidental purpose then it will not be entitled to the benefit. In the present case, neither of the situation arises. It is established that this hospital caters as a social measure for the employees of the appellant Management and its associated industries and for the benefit of the Government servants as well as private patients, on payment of fee. Therefore, it does not qualify for any cause as charitable institution so as to be exempted under Section 4(2) of the Act read with item No. 2 of Schedule I. In this connection, our attention was also invited to a decision in the case of Le Cras v. Perpetual Trustee Co. Ltd. & Ors., reported in (1967) 3 All. E.R. 915. In this case, a testator bequeathed by his will two-thirds of the income of his residuary estate to the Sisters of Charity for the general purposes of St. Vincent?s Private Hospital for a period of two hundred years or for so long as they should conduct the Hospital. The private hospital was having 82 beds and close to a public hospital which had 500 beds. This was also conducted by the Sisters of Charity who were a voluntary association of women devoting themselves without reward. The reason for establishing the private hospital was to relieve the pressing demand of the public for admission to the general hospital. Charges were made at the private hospital for beds; it provided accommodation and medical treatment in greater privacy than would be possible in a general hospital. There were surpluses of income over expenditure but the private hospital was not conducted for profit. The surpluses had been used to contribute to the maintenance of the general hospital and for the general purposes of the Sisters of Charity. In that context Their Lordships held that the gift of income to the Sisters of Charity for the general purposes of the private hospital was a valid charitable gift. Therefore, what prevailed in the mind of Their Lordships is the dominant purpose for which the hospital was being run. That is not the case here. 13. Similarly in the case of Trustees of Tribune Press, Lahore v. Commissioner of Income-tax, Punjab, reported in AIR 1939 PC 208 , similar question arose under the Income Tax Act, 1922. In the said case while dealing with the Income Tax Act, 1922 held as follows: ?Though the personal or private opinion of the Judge is immaterial, nevertheless for a charitable gift to be valid it must be shown, (1) that the gift will or may be operative for the public benefit, and (2) that the trust is one the administration of which the Court itself could, if necessary, undertake and control. There is nothing in the Income-tax Act to discharge the Court of its responsibility in coming to a finding as to the character of the object of a trust a matter which bears directly upon its validity.? Here also the question was what is the dominant purpose for which the trust is created. If the trust is dominantly for the purpose of charity then of course it will qualify for the exemption. This is not the case here. Our attention was also invited to a decision of this Court in the case of Joseph Rowntree Memorial Trust Housing Association Ltd. & Ors. v. Attorney General, reported in (1983) 2 W.L.R. 214. Similarly, in this case also, the question came up for determination was whether the scheme was charitable in law or not. Their Lordships held as follows: ?That the words describing the beneficiaries of the first set of charitable purposes in the preamble to the Statute of Elizabeth had to be read disjunctively so that beneficiaries could be either aged, impotent or poor but that in order to be considered charitable the gift to such people had to have as its purpose the ?relief? of a need attributable to the condition of the beneficiaries; that, since the provision of special accommodation relieved a particular need of the elderly, whether poor or not, attributable to their aged condition, the schemes were within the scope of the charitable purpose of providing relief to the aged.? Therefore, the ratio is the dominant purpose in each case. If it is meant essentially for charitable purpose and not open for any other purpose, then of course such institution will qualify for exemption as charitable institution. 14. Similar, in the case of P.C. Raja Ratnam Institution v. M.C.D. & Ors., reported in 1990 (Suppl.) SCC 97, the question arose whether under Delhi Municipal Corporation Act, 1957, the school run by the society is covered under charitable purpose or not. Their Lordships held as follows: ?The test of `charitable purpose? is satisfied by the proof of any of the three conditions, namely, relief of the poor, education, or medical relief. The fact that some fee is charged from the students is also not decisive inasmuch as the proviso indicates that the expenditure incurred in running the society may be supported either wholly or in part by voluntary contributions. Besides, the explanation is, in terms inclusive and not exhaustive.? However, in this case, Their Lordships remitted the case for fresh decision as the High Court had not adverted to the aforesaid cause. But in the present case, the facts are well known and it is more than clear that the establishment of the Hospital was not for charitable purpose, it was meant as social measure for the benefit of the employees of the appellant Management and its associated industries as a statutory obligation and for the other patients charges were levied. Therefore, by no stretch of imagination it can be said that Hospital is being run for a charitable purpose. 15. In the result, in view of our discussions made above, we find that the view taken by the High Court is correct and there is no ground to interfere with the same. The appeal is accordingly dismissed. No costs. Civil Appeal No. 2309 of 1999:
### Response:
0
### Explanation:
All the establishments have to get themselves registered under Section 2A of the E.S.I. Act. They have also to make necessary contribution as per the provisions of the Act. At the same time, under Section 87 of the Act, exemption can also be granted by the Government by issuing notification exempting any factory or establishment or class of establishments in any specified area from operation of this Act for a period of one year and may from time-to-time by like notification renew any such exemption for periods not exceeding one year at a time.It is admitted by learned Counsel for the appellant that the present establishment had obtained exemption up to the year 1996 but after that exemption was not granted and a petition was filed in the Court and stay order has been granted.Therefore, even if the establishment of the Hospital may be for the purpose of taking care of their employees, it is under statutory obligation of the appellant management otherwise they would have to make registration under Section 2A of the E.S.I. Act, 1948. It is admitted that the appellant sought exemption from operation of the Act which was granted upo to the year 1996. Be that as it may, the fact remains that from the materials available on record it is apparent that the Hospital is not only catering for the employees but it caters to the Government and private patients as well for which it is charging fee for the services rendered, it is irrelevant. Whether it is running for profit or loss. Profit or loss is part of the business and it is incidental to every business. Therefore, it is not decisive of the matter whether the establishment is running for profit or gain. In the present case,from the facts as mentioned above, it is more than evident that the Hospital is not being run for the employees of the appellant management or their associated industries only but it caters to the need of the Government servants as well as private patients and fee is charged from them. Therefore, the Hospital is doing business and it is not doing charityAnother aspect that was emphasised was that since it is running in loss and it is not making any profit, therefore, it is not covered by the definition of establishment. It may be relevant to mention that the profit or loss is not decisive of the matter with regard to the, to say that the Hospital is not making any profit that is not the touchstone whereby we can judge whether they are doing the business or not. If the activity is frequent, continuous and relating to business, whether they earn profit or not that is not the crux of the matter. Profit or loss is incidental to the business. What is essential is the frequency, continuity and relating to transactions. These ingredients are present in the present activities of the Hospital that it is continuing and regularly taking care of the patients be it private patients or patients belonging to the appellant management or their associated industries. Therefore, the emphasis of the learned Counsel that it is not making profit is not relevant for the present, from the materials placed by the parties, it is more than apparent that the present Hospital is a part of the establishment of the appellant management and it caters not only for the employees of the appellant management and its associated companies but for Government servants and private patients as well from whom fee is charged. Therefore, they are doing business and they fall within the definition of establishment as defined in Section 2(6) of the Act12. The next question which has been argued by learned Senior Counsel for the appellant was that it was doing charity, therefore, it is entitled to exemption under Section 4(2) read with item No. 2 of Schedule I. We fail to understand how this activity of the present Hospital can be treated to be a charity. As pointed out above, it is under the obligation of the appellant Management to subscribe for the employees under the Employees State Insurance Act, 1948 by making contribution. Since they were not subscribing contribution because they obtained exemption under Section 87 of the E.S.I. Act, 1948 as they run the hospital for the benefit of the employees, the exemption was granted to them till 1996 but subsequently that exemption was refused. Therefore, it cannot be said that what they are doing isn the present case, thedominant purpose is to cater for the needs of the employees of the appellant Management and its associated Industries. In fact, it was established for that particular purpose only. But the services were also extended to Government servants and to the private patients not free of cost. Therefore, the dominant purpose for establishing the hospital is not charitable which is exempted under the Act and the law which has been laid down by this Court in the aforesaid case is that the principle of dominant purpose should be found out from the activities or the business. If the dominant purpose is appearing as charity then it will be admissible to the benefit of a charity and if it is incidental purpose then it will not be entitled to the benefit.In the present case,neither of the situation arises. It is established that this hospital caters as a social measure for the employees of the appellant Management and its associated industries and for the benefit of the Government servants as well as private patients, on payment of fee. Therefore, it does not qualify for any cause as charitable institution so as to be exempted under Section 4(2) of the Act read with item No. 2 of Schedule I.15. In the result, in view of our discussions made above, we find that the view taken by the High Court is correct and there is no ground to interfere with the same. The appeal is accordingly dismissed. No costsCivil Appeal No. 2309 of 1999:
|
Maharaj Jagat Bahadur Singh Vs. Badri Prasad Seth | interfere and dismissed the application in revision. The present appeal is directed against this order of the learned single Judge.The learned Attorney General who appeared on behalf of the appellant has rightly pointed out that the, learned Judge of the High Court was in error in disposing of the case as though the application in revision made to the High Court was an application under a. 115, Code of Civil Procedure. The application was really an application under a. 15(5) of the Act which is in these terms "15. (5) The High Court may, at any time, on the application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit."4. It is manifest that the scope of sub-a. (5) of a. 15 of the Act is not the same as the scope of a. 115, Code of Civil Procedure. The learned Attorney General has submitted, rightly in our opinion, that the scope of sub-a. (5) of a. 15 of the Act is wider and is not confined to questions of jurisdiction only.5. But even if the learned Judge of the High Court was in error in treating the application as one under a. 115, Code of Civil Procedure, the fact -still remains that he affirmed the findings of the learned District Judge and one of these findings was that the landlord did not require the building to carry out the repair work which was suggested by the Municipal Committee. The Municipal Committee had suggested a very simple work of repair, namely, filling up of the doorway in the pillar so that the pillar might be one solid wall to support the screen. It has not been seriously disputed before us that such repairs could be easily carried out with. out the necessity of asking the respondent to vacate the building. As a matter of fact the learned Dis- trict Judge has pointed out that the Executive Engineer, Central P.W.D. had, subsequent to the application, examined the pillar and found that the repair work had already been done by the respondent.The learned Attorney General has contended that the learned District judge was in error in holding that the appellant had manipulated the notices under s. 113 and 114 of the Punjab Municipal Act. We think it unnecessary to go into that question because the relevant provision in s. 13(3)(a) of the Act makes it quite clear that the landlord is entit- led to an order from the Controller directing the tenant to put the landlord in possession of the building only when the landlord requires it to carry out any building work etc. The relevant provision reads as follows .lm15 "13. (1) A tenant in possession of a building or rented land shall not be evicted therefrom x. x x except in accordance with the provisions of this section, x x x. (2) x x x. (3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession- (1) x x x (ii) x x x (iii)in the case of any building or rented land if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation. x x X.6. We emphasise the word "requires" in the provision. Having regard to the scheme and purpose of the legislation it is abundantly clear that cl. (iii) of a.13(3)(a) of the Act is attracted only when the building work is such that the landlord requires that the building be vacated by the tenant in order to carry out the work ; in other words, the repairs needed are so extensive and fundamental in character that they cannot be carried out if the tenant remains in possession. Then only it can be said that the landlord requires the building to carry out the building work. We think that it is absurd to suggest that any such small work as whitewashing, or filling up the gap in the doorway as in the present cage, comes within el. (iii) of s. 13(3)(a) of the Act.The learned Attorney General has argued that the learned District Judge wrongly took into consideration facts which had come into existence after the filing of the application under s. 13 of the Act. Here again we think that having regard to the scheme and purpose of the.. legislation it was open to the learned District Judge to take into considera- tion such facts as existed at the time when the order for vacation was to come into effect. Section (13) says that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller. In the present case the Controller made the order in July, 1957, and directed the building to be vacated by September 25, 1957. But long before that date, namely, on June 8, 1957, the Executive Engineer, Central P.W.D., had inspected the building and found that the pillar had been repaired satisfactorily. The , Controller did not accept the testimony of the Executive Engineer and the learned District Judge pointed out that the testimony of the Executive Engineer had been rejected by the Controller on very insufficient grounds. It was, open to the learned District Judge to take into consideration the testimony of the Executive Engineer and having regard to that testimony, the learned District Judge rightly came to the conclusion that cl. (iii) of a. 13(3) (a) of the Act was not attracted to the case.7. | 0[ds]But even if the learned Judge of the High Court was in error in treating the application as one under a. 115, Code of Civil Procedure, the fact -still remains that he affirmed the findings of the learned District Judge and one of these findings was that the landlord did not require the building to carry out the repair work which was suggested by the Municipal Committee. The Municipal Committee had suggested a very simple work of repair, namely, filling up of the doorway in the pillar so that the pillar might be one solid wall to support the screen. It has not been seriously disputed before us that such repairs could be easily carried out with. out the necessity of asking the respondent to vacate the building. As a matter of fact the learned Dis- trict Judge has pointed out that the Executive Engineer, Central P.W.D. had, subsequent to the application, examined the pillar and found that the repair work had already been done by the respondent.The learned Attorney General has contended that the learned District judge was in error in holding that the appellant had manipulated the notices under s. 113 and 114 of the Punjab Municipal Act. We think it unnecessary to go into that question because the relevant provision in s. 13(3)(a) of the Act makes it quite clear that the landlord is entit- led to an order from the Controller directing the tenant to put the landlord in possession of the building only when the landlord requires it to carry out any building workemphasise the word "requires" in the provision. Having regard to the scheme and purpose of the legislation it is abundantly clear that cl. (iii) of a.13(3)(a) of the Act is attracted only when the building work is such that the landlord requires that the building be vacated by the tenant in order to carry out the work ; in other words, the repairs needed are so extensive and fundamental in character that they cannot be carried out if the tenant remains in possession. Then only it can be said that the landlord requires the building to carry out the building work. We think that it is absurd to suggest that any such small work as whitewashing, or filling up the gap in the doorway as in the present cage, comes within el. (iii) of s. 13(3)(a) of the Act.The learned Attorney General has argued that the learned District Judge wrongly took into consideration facts which had come into existence after the filing of the application under s. 13 of the Act. Here again we think that having regard to the scheme and purpose of the.. legislation it was open to the learned District Judge to take into considera- tion such facts as existed at the time when the order for vacation was to come into effect. Section (13) says that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller. In the present case the Controller made the order in July, 1957, and directed the building to be vacated by September 25, 1957. But long before that date, namely, on June 8, 1957, the Executive Engineer, Central P.W.D., had inspected the building and found that the pillar had been repaired satisfactorily. The , Controller did not accept the testimony of the Executive Engineer and the learned District Judge pointed out that the testimony of the Executive Engineer had been rejected by the Controller on very insufficient grounds. It was, open to the learned District Judge to take into consideration the testimony of the Executive Engineer and having regard to that testimony, the learned District Judge rightly came to the conclusion that cl. (iii) of a. 13(3) (a) of the Act was not attracted to the case. | 0 | 2,456 | 738 | ### 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:
interfere and dismissed the application in revision. The present appeal is directed against this order of the learned single Judge.The learned Attorney General who appeared on behalf of the appellant has rightly pointed out that the, learned Judge of the High Court was in error in disposing of the case as though the application in revision made to the High Court was an application under a. 115, Code of Civil Procedure. The application was really an application under a. 15(5) of the Act which is in these terms "15. (5) The High Court may, at any time, on the application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit."4. It is manifest that the scope of sub-a. (5) of a. 15 of the Act is not the same as the scope of a. 115, Code of Civil Procedure. The learned Attorney General has submitted, rightly in our opinion, that the scope of sub-a. (5) of a. 15 of the Act is wider and is not confined to questions of jurisdiction only.5. But even if the learned Judge of the High Court was in error in treating the application as one under a. 115, Code of Civil Procedure, the fact -still remains that he affirmed the findings of the learned District Judge and one of these findings was that the landlord did not require the building to carry out the repair work which was suggested by the Municipal Committee. The Municipal Committee had suggested a very simple work of repair, namely, filling up of the doorway in the pillar so that the pillar might be one solid wall to support the screen. It has not been seriously disputed before us that such repairs could be easily carried out with. out the necessity of asking the respondent to vacate the building. As a matter of fact the learned Dis- trict Judge has pointed out that the Executive Engineer, Central P.W.D. had, subsequent to the application, examined the pillar and found that the repair work had already been done by the respondent.The learned Attorney General has contended that the learned District judge was in error in holding that the appellant had manipulated the notices under s. 113 and 114 of the Punjab Municipal Act. We think it unnecessary to go into that question because the relevant provision in s. 13(3)(a) of the Act makes it quite clear that the landlord is entit- led to an order from the Controller directing the tenant to put the landlord in possession of the building only when the landlord requires it to carry out any building work etc. The relevant provision reads as follows .lm15 "13. (1) A tenant in possession of a building or rented land shall not be evicted therefrom x. x x except in accordance with the provisions of this section, x x x. (2) x x x. (3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession- (1) x x x (ii) x x x (iii)in the case of any building or rented land if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation. x x X.6. We emphasise the word "requires" in the provision. Having regard to the scheme and purpose of the legislation it is abundantly clear that cl. (iii) of a.13(3)(a) of the Act is attracted only when the building work is such that the landlord requires that the building be vacated by the tenant in order to carry out the work ; in other words, the repairs needed are so extensive and fundamental in character that they cannot be carried out if the tenant remains in possession. Then only it can be said that the landlord requires the building to carry out the building work. We think that it is absurd to suggest that any such small work as whitewashing, or filling up the gap in the doorway as in the present cage, comes within el. (iii) of s. 13(3)(a) of the Act.The learned Attorney General has argued that the learned District Judge wrongly took into consideration facts which had come into existence after the filing of the application under s. 13 of the Act. Here again we think that having regard to the scheme and purpose of the.. legislation it was open to the learned District Judge to take into considera- tion such facts as existed at the time when the order for vacation was to come into effect. Section (13) says that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller. In the present case the Controller made the order in July, 1957, and directed the building to be vacated by September 25, 1957. But long before that date, namely, on June 8, 1957, the Executive Engineer, Central P.W.D., had inspected the building and found that the pillar had been repaired satisfactorily. The , Controller did not accept the testimony of the Executive Engineer and the learned District Judge pointed out that the testimony of the Executive Engineer had been rejected by the Controller on very insufficient grounds. It was, open to the learned District Judge to take into consideration the testimony of the Executive Engineer and having regard to that testimony, the learned District Judge rightly came to the conclusion that cl. (iii) of a. 13(3) (a) of the Act was not attracted to the case.7.
### Response:
0
### Explanation:
But even if the learned Judge of the High Court was in error in treating the application as one under a. 115, Code of Civil Procedure, the fact -still remains that he affirmed the findings of the learned District Judge and one of these findings was that the landlord did not require the building to carry out the repair work which was suggested by the Municipal Committee. The Municipal Committee had suggested a very simple work of repair, namely, filling up of the doorway in the pillar so that the pillar might be one solid wall to support the screen. It has not been seriously disputed before us that such repairs could be easily carried out with. out the necessity of asking the respondent to vacate the building. As a matter of fact the learned Dis- trict Judge has pointed out that the Executive Engineer, Central P.W.D. had, subsequent to the application, examined the pillar and found that the repair work had already been done by the respondent.The learned Attorney General has contended that the learned District judge was in error in holding that the appellant had manipulated the notices under s. 113 and 114 of the Punjab Municipal Act. We think it unnecessary to go into that question because the relevant provision in s. 13(3)(a) of the Act makes it quite clear that the landlord is entit- led to an order from the Controller directing the tenant to put the landlord in possession of the building only when the landlord requires it to carry out any building workemphasise the word "requires" in the provision. Having regard to the scheme and purpose of the legislation it is abundantly clear that cl. (iii) of a.13(3)(a) of the Act is attracted only when the building work is such that the landlord requires that the building be vacated by the tenant in order to carry out the work ; in other words, the repairs needed are so extensive and fundamental in character that they cannot be carried out if the tenant remains in possession. Then only it can be said that the landlord requires the building to carry out the building work. We think that it is absurd to suggest that any such small work as whitewashing, or filling up the gap in the doorway as in the present cage, comes within el. (iii) of s. 13(3)(a) of the Act.The learned Attorney General has argued that the learned District Judge wrongly took into consideration facts which had come into existence after the filing of the application under s. 13 of the Act. Here again we think that having regard to the scheme and purpose of the.. legislation it was open to the learned District Judge to take into considera- tion such facts as existed at the time when the order for vacation was to come into effect. Section (13) says that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller. In the present case the Controller made the order in July, 1957, and directed the building to be vacated by September 25, 1957. But long before that date, namely, on June 8, 1957, the Executive Engineer, Central P.W.D., had inspected the building and found that the pillar had been repaired satisfactorily. The , Controller did not accept the testimony of the Executive Engineer and the learned District Judge pointed out that the testimony of the Executive Engineer had been rejected by the Controller on very insufficient grounds. It was, open to the learned District Judge to take into consideration the testimony of the Executive Engineer and having regard to that testimony, the learned District Judge rightly came to the conclusion that cl. (iii) of a. 13(3) (a) of the Act was not attracted to the case.
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Shankar Gopinath Apte Vs. Gangabai Hariharrao Patwardhan | the property was not consistent with the true facts, it is wrong for that reason to say that the power of attorney was a sham and colourable document. Admittedly;, immediately after the execution of the power of attorney, the appellant wrote a letter (Ex. 155) dated February 3, 1963 to the respondent accepting the power of attorney in terms, agreeing to pay to her a sum of Rs. 2000 per year from the net income of the lands and reserving the rest of the income as his own "honorarium". Unquestionably, the letter was written by the appellant in furtherance and in fulfillment of the terms of the power of attorney. Then again, in the absence of a concluded sale, the appellant continued in possession under the power of attorney and indeed he used to make the annual payment of Rs.2000 to the respondent, which by reason of the letter Ex. 155, , had become a part and parcel of the power of attorney itself. It is therefore impossible to accept the appellants contention1 that the power of attorney was not intended to be acted upon and was a sham.The appellant having failed to establish that he was a tenant of the respondent or that he was put in possession of the lands in part performance of an agreement of sale, we are unable to appreciate the drive of a persistent argument that the power of attorney is a sham and colourable document. Assuming that it is so, the appellant can claim no right apart from that document except the two rights which stand negatived. It then is inconsequential whether the power of attorney was or was not intended to be acted upon.9. Faced with this difficulty, learned counsel for the appellant was driven to raise points on which there is no pleading, no issue and naturally no satisfactory evidence. The first of such contentions raised by Mr. Bal is that the appellant must be deemed to be a licensee of the respondent and since he has executed work of a permanent character on the land involving heavy expenses, the licence would be irrevocable under section 60(b) of t he Easements Act, 1882. This argument was made expressly on the assumption that the power of attorney was a nominal document and therefore inoperative. In view of our finding that the document was intended to be acted upon and was in fact acted upon, the argument or irrevocable licence does not survive for consideration. But having spent some time in chasing the argument, , we are constrained to say that such evidence as there is on the record seems inadequate to prove the improvements made or the expenses incurred by the appellant. He has admitted in his evidence that the figures which he gave in his examination-in-chief as regards t he amount spent on improvements were stated from memory and that he had not produced his accounts to corroborate the oral word. Only one .more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so "acting upon the licence", as required by section 60(b) of the Easements Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sate will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity, as a licensee.Mr. Bal also challenged the decree for the payment of Rs.4390 which has been passed in favour of the respondent by the trial court. It is true that there was no accountability as such between the appellant and the respondent but in substance the contention of the respondent was that the appellant had failed to pay the agreed amount of Rs. 2000 to her for certain years and should therefore be held accountable to pay the same. There is, on merits, no infirmity in the finding of the trial court that a sum of Rs. 4390 is due to the respondent in pursuance of the letter of consent, Ex. 155.10. Finally, Mr. Bal urged that the trial court was in error in awarding possession of the suit lands to the respondent along with the valuable improvements made by the appellant. No issue was sought on this question and indeed no argument was made in the trial court that it could not award possession of the lands together with the improvements. Originally, the sole defence of the appellant to the suit was that he was a tenant. That contention having failed, he attempted to urge that he was in possession of the lands in part performance of a contract of safe. In neither of these two capacities could he claim the value of improvements alleged to have been made by him. That explains why he did not urge the contention which he is now urging as an argument of last resort11. Counsel for the appellant at tempted to draw some sustenance from the provisions of section 221 of the Contract Act in support of the claim for the value of improvements but that section has nothing to do with the case. It gives to the agent a lien over the principals property which is received by the agent, until the amount due to the agent as commission, disbursements and services in respect of the property has been paid or accounted for to him. The amounts said to have been spent by the appellant for improving the property, without any reference whatsoever to the respondent cannot be recovered under section 221 of the Contract Act, as it does not fall within its terms. In the result, the unspeaking order of dismissal passed by the Bombay High Court can seek its justification in the reasons given by us above. | 0[ds]In view of our finding that the document was intended to be acted upon and was in fact acted upon, the argument or irrevocable licence does not survive for consideration. But having spent some time in chasing the argument, , we are constrained to say that such evidence as there is on the record seems inadequate to prove the improvements made or the expenses incurred by the appellant. He has admitted in his evidence that the figures which he gave in his examination-in-chief as regards t he amount spent on improvements were stated from memory and that he had not produced his accounts to corroborate the oral word. Only one .more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so "acting upon the licence", as required by section 60(b) of the Easements Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sate will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity, as a licensee.Mr. Bal also challenged the decree for the payment of Rs.4390 which has been passed in favour of the respondent by the trial court. It is true that there was no accountability as such between the appellant and the respondent but in substance the contention of the respondent was that the appellant had failed to pay the agreed amount of Rs. 2000 to her for certain years and should therefore be held accountable to pay the same. There is, on merits, no infirmity in the finding of the trial court that a sum of Rs. 4390 is due to the respondent in pursuance of the letter of consent, Ex.contention having failed, he attempted to urge that he was in possession of the lands in part performance of a contract of safe. In neither of these two capacities could he claim the value of improvements alleged to have been made by him. That explains why he did not urge the contention which he is now urging as an argument of lastfor the appellant at tempted to draw some sustenance from the provisions of section 221 of the Contract Act in support of the claim for the value of improvements but that section has nothing to do with the case. It gives to the agent a lien over the principals property which is received by the agent, until the amount due to the agent as commission, disbursements and services in respect of the property has been paid or accounted for to him. The amounts said to have been spent by the appellant for improving the property, without any reference whatsoever to the respondent cannot be recovered under section 221 of the Contract Act, as it does not fall within its terms. In the result, the unspeaking order of dismissal passed by the Bombay High Court can seek its justification in the reasons given by us above. | 0 | 3,456 | 579 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the property was not consistent with the true facts, it is wrong for that reason to say that the power of attorney was a sham and colourable document. Admittedly;, immediately after the execution of the power of attorney, the appellant wrote a letter (Ex. 155) dated February 3, 1963 to the respondent accepting the power of attorney in terms, agreeing to pay to her a sum of Rs. 2000 per year from the net income of the lands and reserving the rest of the income as his own "honorarium". Unquestionably, the letter was written by the appellant in furtherance and in fulfillment of the terms of the power of attorney. Then again, in the absence of a concluded sale, the appellant continued in possession under the power of attorney and indeed he used to make the annual payment of Rs.2000 to the respondent, which by reason of the letter Ex. 155, , had become a part and parcel of the power of attorney itself. It is therefore impossible to accept the appellants contention1 that the power of attorney was not intended to be acted upon and was a sham.The appellant having failed to establish that he was a tenant of the respondent or that he was put in possession of the lands in part performance of an agreement of sale, we are unable to appreciate the drive of a persistent argument that the power of attorney is a sham and colourable document. Assuming that it is so, the appellant can claim no right apart from that document except the two rights which stand negatived. It then is inconsequential whether the power of attorney was or was not intended to be acted upon.9. Faced with this difficulty, learned counsel for the appellant was driven to raise points on which there is no pleading, no issue and naturally no satisfactory evidence. The first of such contentions raised by Mr. Bal is that the appellant must be deemed to be a licensee of the respondent and since he has executed work of a permanent character on the land involving heavy expenses, the licence would be irrevocable under section 60(b) of t he Easements Act, 1882. This argument was made expressly on the assumption that the power of attorney was a nominal document and therefore inoperative. In view of our finding that the document was intended to be acted upon and was in fact acted upon, the argument or irrevocable licence does not survive for consideration. But having spent some time in chasing the argument, , we are constrained to say that such evidence as there is on the record seems inadequate to prove the improvements made or the expenses incurred by the appellant. He has admitted in his evidence that the figures which he gave in his examination-in-chief as regards t he amount spent on improvements were stated from memory and that he had not produced his accounts to corroborate the oral word. Only one .more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so "acting upon the licence", as required by section 60(b) of the Easements Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sate will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity, as a licensee.Mr. Bal also challenged the decree for the payment of Rs.4390 which has been passed in favour of the respondent by the trial court. It is true that there was no accountability as such between the appellant and the respondent but in substance the contention of the respondent was that the appellant had failed to pay the agreed amount of Rs. 2000 to her for certain years and should therefore be held accountable to pay the same. There is, on merits, no infirmity in the finding of the trial court that a sum of Rs. 4390 is due to the respondent in pursuance of the letter of consent, Ex. 155.10. Finally, Mr. Bal urged that the trial court was in error in awarding possession of the suit lands to the respondent along with the valuable improvements made by the appellant. No issue was sought on this question and indeed no argument was made in the trial court that it could not award possession of the lands together with the improvements. Originally, the sole defence of the appellant to the suit was that he was a tenant. That contention having failed, he attempted to urge that he was in possession of the lands in part performance of a contract of safe. In neither of these two capacities could he claim the value of improvements alleged to have been made by him. That explains why he did not urge the contention which he is now urging as an argument of last resort11. Counsel for the appellant at tempted to draw some sustenance from the provisions of section 221 of the Contract Act in support of the claim for the value of improvements but that section has nothing to do with the case. It gives to the agent a lien over the principals property which is received by the agent, until the amount due to the agent as commission, disbursements and services in respect of the property has been paid or accounted for to him. The amounts said to have been spent by the appellant for improving the property, without any reference whatsoever to the respondent cannot be recovered under section 221 of the Contract Act, as it does not fall within its terms. In the result, the unspeaking order of dismissal passed by the Bombay High Court can seek its justification in the reasons given by us above.
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### Explanation:
In view of our finding that the document was intended to be acted upon and was in fact acted upon, the argument or irrevocable licence does not survive for consideration. But having spent some time in chasing the argument, , we are constrained to say that such evidence as there is on the record seems inadequate to prove the improvements made or the expenses incurred by the appellant. He has admitted in his evidence that the figures which he gave in his examination-in-chief as regards t he amount spent on improvements were stated from memory and that he had not produced his accounts to corroborate the oral word. Only one .more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so "acting upon the licence", as required by section 60(b) of the Easements Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sate will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity, as a licensee.Mr. Bal also challenged the decree for the payment of Rs.4390 which has been passed in favour of the respondent by the trial court. It is true that there was no accountability as such between the appellant and the respondent but in substance the contention of the respondent was that the appellant had failed to pay the agreed amount of Rs. 2000 to her for certain years and should therefore be held accountable to pay the same. There is, on merits, no infirmity in the finding of the trial court that a sum of Rs. 4390 is due to the respondent in pursuance of the letter of consent, Ex.contention having failed, he attempted to urge that he was in possession of the lands in part performance of a contract of safe. In neither of these two capacities could he claim the value of improvements alleged to have been made by him. That explains why he did not urge the contention which he is now urging as an argument of lastfor the appellant at tempted to draw some sustenance from the provisions of section 221 of the Contract Act in support of the claim for the value of improvements but that section has nothing to do with the case. It gives to the agent a lien over the principals property which is received by the agent, until the amount due to the agent as commission, disbursements and services in respect of the property has been paid or accounted for to him. The amounts said to have been spent by the appellant for improving the property, without any reference whatsoever to the respondent cannot be recovered under section 221 of the Contract Act, as it does not fall within its terms. In the result, the unspeaking order of dismissal passed by the Bombay High Court can seek its justification in the reasons given by us above.
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Union of India and Another Vs. Mustafa and Najibai Trading Company and Others | hearing if any judicial order is passed in respect of the cargo belonging to Respondent 3 and other persons. The replies that were filed on behalf of Respondent 1 before the Collector in response to the show-cause notice do not, however, support the said averment. Nor is there anything in the order passed by the Collector to show that any such contention was advanced before him. The judgment of the Tribunal also does not indicate that any such plea was raised. The said contention appears to have been raised for the first time before the High Court. Moreover, under the show-cause notices the seized goods were proposed to be confiscated under Sections 111(d) and 111(f) of the Act. The owners of the vessel, MANSCO-3, the Master of the said vessel and the local agents of the owners of the vessel at Bombay were the best persons who could offer an explanation and show that there was no contravention which could justify the confiscation of goods under Sections 111(d) and 111(f) of the Act. Since the owners of the goods were not present on the scene and had no personal knowledge, they could not offer an explanation other than that offered by the owners of the vessel, the Master of the vessel and the local agents of the owners of the vessel at Bombay. In the circumstances, it cannot be said that the failure to issue a notice under Section 124 to the owners of the goods has resulted in any prejudice to the owners of the goods that have been ordered to be confiscated and such failure cannot, therefore, be a ground for setting aside the order of confiscation of goods passed under Sections 111(d) and 111(f) of the Act. We are, therefore, unable to uphold the impugned judgment of the High Court setting aside the order for confiscation of the goods passed under Sections 111(d) and 111(f) of the Act 37. The order of confiscation of the vessel MANSCO-3 was passed under Section 115(2) of the Act. At the relevant time, Section 115 provided as under 115. Confiscation of conveyances. - (1) The following conveyances shall be liable to confiscation - (a) any vessel which is or has been within the Indian Customs waters, any aircraft which is or has been in India, or any vehicle which is or has been in a customs area, while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods; (b) any conveyance from which the whole or any part of the goods is thrown overboard, stayed or destroyed so as to prevent seizure by an officer of customs; (c) any conveyance which having been required to stop or land under Section 106 fails to do so, except for good and sufficient cause; (d) any conveyance from which any warehoused goods cleared for exportation, or any other goods cleared for exportation under a claim for drawback, are unloaded, without the permission of the proper officer; (e) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft is able to account for the loss of, or deficiency in, the goods (2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves a that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rulesProvided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be Explanation. - In this section, market price means market price at the date when the goods are seized. 38. The consideration which weighed with the High Court to set aside the order regarding the confiscation of the goods also weighed with it for setting aside the order for confiscation of the vessel under Section 115(2) of the Act inasmuch as the High Court has found that there was no fraudulent intention on the part of the owners of the vessel in directing the vessel to proceed to Bombay from Karachi to lift additional cargo and the purpose for which the vessel, MANSCO-3, was directed to proceed to Bombay was to lift the said additional cargo and also to have the radar and VHF equipment repaired. We have already considered the said aspect of the case while dealing with the matter of confiscation of the goods and have held that the said finding of the High Court cannot be upheld. The High Court has set aside the confiscation of the vessel also on the ground that no notice was issued to the owners of the vessel under Section 124 of the Act. In this regard, it may be stated that the show-cause notice dated 31-12-1983, indicates that the said notice was issued to Mustafa Najibai, Respondent 2, on behalf of Respondent 1, the owners of the vessel, as well as to Abdul Rahim Khatri, the Master of the vessel and the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the agents of the owners of the vessel at Bombay. Respondent 1, the owners of the vessel, had full knowledge of the said show-cause notice because a reply to the said notice was filed on their behalf as well as on behalf of Respondent 2 and they had contested the proceedings before the Collector. | 1[ds]10. The Collector held that the seized goods had been imported into India without an import licence and hence, in contravention of the prohibition imposed under Section 3 of the Imports and Exports (Control) Act, 1947 and clause 3 of the Imports (Control) Order, 1955 and were, therefore, liable to confiscation under Section 111(d) of the Act and that the goods were also liable to be confiscated under Section 111(f) of the Act because there was failure on the part of the Master of the vessel MANSCO-3 and the agents of the owners of the vessel at Bombay to file the Import General Manifest as required under Section 30 read with the Import Manifest Regulations within 24 hours of the arrival of the vessel in the Port of Bombay. The submission of the respondents that the goods were not meant for being unloaded in India and being same bottom cargo, they were covered by clause 11(e) of the Import (Control) Order and no import licence was required for bringing them in this country, was rejected by the Collector on the ground that under the Import Manifest Regulations, same bottom cargo or retention cargo carried on a vessel has to be listed on a separate sheet in the Import Manifest which has to be delivered in the manner laid down in Section 30 of the Act within 24 hours of the arrival of the vessel in any customs port in India and that no Import Manifest indicating the goods as same bottom cargo was delivered under Section 30 of the Act. In the absence of an Import Manifest listing the goods as same bottom cargo, the said goods, which had crossed the territorial waters of India, had to be treated as having been imported into India in view of the definition of import contained in Section 2(23) of the Act and, therefore, they were liable to be confiscated under Section 111(d) of the Act since there was no import licence authorising their import20. Shri Usgaocar has assailed the said view of the High Court and has urged that in interfering with the findings of fact recorded by the Collector as well as the Tribunal, the High Court has exceeded the jurisdiction vested in it under Articles 226 and 227 of the Constitution inasmuch as the findings recorded by the Collector and the Tribunal do not suffer from any infirmity which could justify interference by the High Court.The said contention, in our opinion, must be accepted21. While exercising its jurisdiction under Articles 226 and 227 of the Constitution, it is not open to the High Court to reappreciate the evidence produced before the subordinate tribunal and on the basis of such reappreciation of the evidence, to arrive at a finding different from that recorded by such tribunal. The finding of fact recorded by the subordinate tribunal can be interfered with by the High Court only if it is found to be based on no evidence or if such a finding can be regarded as perverse. The High Court cannot convert itself into a court of appeal.23. There is nothing to corroborate the statement of Mohammed Yousuf on which reliance has been placed by the High Court. On the other hand, the said statement about Mohammed Yousuf having promised to arrange for the cargo at Bombay does not find support from the telex received at the office of the agents at Bombay on 16-8-1983 from Dubai and it is belied by the fact that no cargo was available at the Bombay Port for loading on the vessel when it arrived at Bombay24. Similarly, as regards repair of radar and VHF equipment, the Collector and the Tribunal have found that the radar was not functioning when the vessel left Dubai and that it had been repaired at Karachi and that the VHF equipment was working till the vessel reached about 100 to 150 nautical miles from Bombay Port which shows that repair of radar and VHF equipment could not be the reason for the vessel MANSCO-3 proceeding to Bombay from Karachi. The High Court, while accepting the explanation that one of the reasons for the vessel to proceed to Bombay was to have the radar and VHF equipment repaired at Bombay, has laid stress on the fact that at the time when the vessel reached Bombay, VHF equipment was not working and that two mechanics were taken to the vessel for repairing of radar and VHF equipment. The fact that the radar and VHF equipment had to be repaired at Bombay does not, however, mean that they were not functioning when the vessel left Karachi and it cannot be said that the vessel had to proceed to Bombay for repair of radar and VHF equipment25. A perusal of the impugned judgment of the High Court shows that while dealing with the writ petition, the High Court embarked upon reappreciation of the evidence and has dealt with the matter as if it was hearing an appeal on facts. Such a course, as indicated earlier, was not permissible. The Collector and the Tribunal, after carefully considering the evidence produced during the course of the proceedings, had concurrently arrived at the finding that the vessel MANSCO-3 had not come to Bombay from Karachi for a bona fide purpose and that the explanation offered for the vessel proceeding to Bombay from Karachi could not be accepted. The said finding cannot be regarded as unreasonable or perverse. We are, therefore, unable to uphold the decision of the High Court in reversing the said finding of fact recorded by the Collector and the Tribunal26. Moreover, bona fides of the owners or the Master of the vessel have a bearing only on the applicability of sub-section (3) of Section 30 which enables the proper officer to permit the Import Manifest or Import Report to be amended or supplemented if he is satisfied that the said Import Manifest or Import Report is in any way incorrect or incomplete and there is no fraudulent intention. In the present case, the question of applicability of subsection (3) of Section 30 does not arise because no Import Manifest was delivered by the Master of the vessel at any time. The intention of the owners or Master of the vessel has no bearing on the exercise of the power of confiscation of goods under Section 111 of the Act because, as laid down by this Court, confiscation of goods is an action in rem directed against the goods in respect of which the contravention rendering them liable to be confiscated has taken place. (See : Sewpujanrai Indrasanarai Ltd. v. Collector of Customs SCR at p. 838 and Collector of Customs v. D. Bhoormall. In the matter of confiscation of goods under Section 111(d) of the Act intention has, therefore, no bearing. What is required to be seen is whether the goods had been imported or attempted to be imported or brought within the Indian Customs water for the purpose of being imported contrary to any prohibition imposed by or under the Act or any other law for the time being in force. If it is found that any goods have been imported or attempted to be imported or brought within the Indian Customs water for the purpose of being imported contrary to any prohibition imposed by or under the Act or any other law for the time being in force, the said goods would be liable to confiscation under Section 111(d) and the question whether the person importing or bringing the said goods intended to commit violation of the provisions of the Act or any other law for the time being in force would be of no consequence. Similarly, clause (f) of Section 111 provides for confiscation of any dutiable or prohibited goods which are required to be mentioned under the regulations in any Import Manifest or Import Report and which are not so mentioned therein. In the matter of confiscation of goods under Section 111(f), what is required to be seen is whether the goods are dutiable or prohibited goods and are required to be mentioned in the Import Manifest or Import Report under the regulations made under the Act and whether they are mentioned in the Import Manifest/Import Report. If it is found that the goods are dutiable or prohibited goods and are required to be mentioned under the regulations made under the Act in the Import Manifest/Import Report but have not been so mentioned, the goods would be liable to be confiscated and the intention of the defaulter would have no bearing on the exercise of power to confiscate the goods. Since mens rea is not essential for invoking the power of confiscation of the goods under Section 111 of the Act, the intention of the Master of the vessel or the owners of the vessel and the circumstances under which the vessel containing the goods came to Bombay has no bearing on the exercise of the power of confiscation of goods under Sections 111(d) and 111(f) and all that has to be seen is whether the conditions prescribed under the said provisions were fulfilled so as to justify the confiscation of the goods27. As regards the non-filing of the Import General Manifest either by the Captain of the vessel or the agents of the owners of the vessel at Bombay, the High Court has held that the manifest is required to be filed within twenty-four hours after the arrival of the vessel at a customs station and that time for filing the said manifest would have started running only after the Bombay Port Trust charges had been paid and the said cargo charges were paid on 23-8-1983. According to the High Court, the Customs Officials boarded the vessel on the morning of 24-8-1983 at about 9/10 a.m. and seized the goods immediately thereafter mainly on the ground that no Import General Manifest had been filed by that time. According to the High Court, the period of twenty-four hours had not expired and there was still time to file the Import General Manifest. We find it difficult to agree with the said view of the High Court. Under Section 30(1), an Import Manifest has to be delivered within twenty-four hours after the arrival of the conveyance at a customs station. The expression customs station is defined in Section 2(13) to mean any customs port, customs airport or land customs station. The expression customs port is defined in Section 2(12) to mean any port appointed under clause (a) of Section 7 to be a customs port; and includes a place appointed under clause (aa) of that section to be an inland container depot. In the present case, the vessel MANSCO-3 had arrived at the outer anchorage of the Bombay Port on 20-8-1983. The outer anchorage is a part of the Bombay Port. This would show that the vessel MANSCO-3 had arrived at the customs port of Bombay on 20-8-1983. In view of Section 30(1) of the Act, the Import General Manifest should have been delivered within twenty-four hours of the arrival of the vessel at the outer anchorage on 20-8-1983. The High Court was in error in holding that the vessel would be treated to have arrived at the customs port of Bombay on 23-8-1983 after the Bombay Port Trust charges had been paid and the signal had been given for the vessel to be brought into the inner anchorage on or after 23-8-1983. Proviso (b) to sub-section (1) of Section 30, which empowers the proper officer to accept the Import Manifest or Import Report at any time after the expiry of the period of twenty-four hours if he is satisfied that there was sufficient cause for not delivering the Import Manifest or Import Report or any part thereof within twenty-four hours after the arrival of the conveyance, has no application in the present case because the Collector as well as the Tribunal have found that no request for filing the Import General Manifest after the expiry of the period of twenty-four hours was made at any time either by the Captain of the vessel or by the local agents at Bombay28. The Tribunal has held that the goods that were seized from the vessel were prohibited goods and the said finding has not been upset by the High Court. In the circumstances, it must be held that there was contravention of the requirement regarding mentioning of the goods in the Import General Manifest by the Captain of the vessel and the local agents of the owners of the vessel at Bombay and the goods seized were liable to be confiscated under Section 111(f) of the Act29. The High Court has held that the goods were obviously in transit to Dubai which was the port of clearance and the visit to Bombay Port was not illegitimate or illegal. In holding that there was no contravention of the provisions of clauses (d) and (f) of Section 111, the High Court has proceeded on the basis that since the vessel had come to Bombay for a legitimate purpose and there was no lack of bona fides on the part of the Master and the owners of the vessel in the ship having come to Bombay, it cannot be said that there was violation of the provisions of Section 111(d) and (f) of the Act. As indicated earlier, the finding of the High Court that there was no lack of bona fides on the part of the Master of the vessel and the owners of the ship in the ship having come to Bombay, has been arrived at by the High Court after reversing the finding of fact recorded by the Collector and the Tribunal and it cannot be sustained. We have also indicated that mens rea is not essential for invoking the power of confiscation under Section 111 of the Act and, therefore, the intention of the owners of the vessel or the Master of the vessel has no bearing on the exercise of the power to confiscate the goods under clauses (d) and (f) of Section 111 of the Act34. This distinction between the nature of the two penalties, viz., penalty in rem and penalty in personam, has been maintained in the Act. The provision regarding confiscation of goods contained in Sections 111 and 113 of the Act is a penalty in rem which is enforced against the goods, while the personal penalties imposed under Section 112 and other provisions of the Act are in the nature of penalty in personam which are enforced against the person concerned35. Section 124 of the Act, which incorporates the rule of audi alteram partem, one of the two basic tenets of the principles of natural justice, does not have the effect of making any alteration in the nature of these penalties. There may be situations where the goods are found to be smuggled goods and are seized but the identity of the owner of the goods is not known.In our view, this question must be answered in the negative because confiscation of goods under Section 111 of the Act is a penalty in rem which attaches to the goods which are the subject-matter of the proceedings for confiscation and if it is found that the goods are liable to be confiscated under Section 111 of the Act, they can be confiscated without ascertaining their real owner. Moreover, insofar as the rule of audi alteram partem is concerned, the position is well settled that an order passed in disregard of the said principle would not be a invalidated if it can be shown that as a result of denial of the opportunity contemplated by the said rule, the person seeking to challenge the order has not suffered any prejudice. Since Section 124 of the Act incorporates the said principle of natural justice, failure to give the notice to the owner of goods would not, by itself, invalidate an order of confiscation. What has to be seen is whether the owner of the goods has suffered prejudice on account of the failure on the part of the officer passing the order for confiscation of goods to give a notice to the owner of the goods before passing the order for confiscation of goods. The owner of goods ordered to be confiscated cannot be said to have suffered any prejudice in a case where notice has been given to the person responsible for the alleged contravention on which the order for confiscation of goods is founded and who alone is in a position to offer an explanation for such contravention. The requirement regarding issuing of notice to the owner of the goods under Section 124 cannot, therefore, be construed as a mandatory requirement so as to have the effect of invalidating an order. An order of confiscation would not be rendered invalid if there is substantial compliance with the requirements of Section 124 in the sense that before passing an order of confiscation, a notice has been given either to the owner of the goods or a person who is responsible for the contravention on which the order for confiscation of goods is founded and who alone is in a position to offer an explanation for such contravention36. In the present case, show-cause notices dated 31-12-1983 were issued by the Assistant Collector of Customs, R&I, Bombay, to M/s. Mustafa & Najibai Trading Co., Dubai, Respondent 1, the owners of the vessel, MANSCO-3, Nuruddin Mustafa, Respondent 2, the Managing Director of Respondent 1, Abdul Rahim Khatri, the Captain of the vessel, MANSCO-3, the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the local agents of the owners of the vessel at Bombay, M/s. Aero Maritime Ltd., the agents of the owners of the vessel at Karachi and certain other persons. Replies to the said show-cause notices were filed on behalf of the owners of the vessel as well as by the Master of the vessel and the local agents of the owners at Bombay. The owners of the cargo did not appear before the Collector. None of the owners of the cargo challenged the order for confiscation of goods passed by the Collector before the Tribunal and the order of the Collector regarding confiscation of goods became final as against the owners of the goods. In the writ petition filed before the High Court, Respondent 3, claiming to be the owner of a part of the cargo which was seized and confiscated, for the first time sought to challenge the orders passed by the Collector as well as the Tribunal regarding the confiscation of the goods. In para 8 of the writ petition, it has been averred that before Collector it was pointed out that the cargo belonged to various parties and mainly to Respondent 3 and the names of the owners and other persons were furnished to the Collector and other Customs Officers and that they should be given an opportunity of hearing if any judicial order is passed in respect of the cargo belonging to Respondent 3 and other persons. The replies that were filed on behalf of Respondent 1 before the Collector in response to the show-cause notice do not, however, support the said averment. Nor is there anything in the order passed by the Collector to show that any such contention was advanced before him. The judgment of the Tribunal also does not indicate that any such plea was raised. The said contention appears to have been raised for the first time before the High Court. Moreover, under the show-cause notices the seized goods were proposed to be confiscated under Sections 111(d) and 111(f) of the Act. The owners of the vessel, MANSCO-3, the Master of the said vessel and the local agents of the owners of the vessel at Bombay were the best persons who could offer an explanation and show that there was no contravention which could justify the confiscation of goods under Sections 111(d) and 111(f) of the Act. Since the owners of the goods were not present on the scene and had no personal knowledge, they could not offer an explanation other than that offered by the owners of the vessel, the Master of the vessel and the local agents of the owners of the vessel at Bombay. In the circumstances, it cannot be said that the failure to issue a notice under Section 124 to the owners of the goods has resulted in any prejudice to the owners of the goods that have been ordered to be confiscated and such failure cannot, therefore, be a ground for setting aside the order of confiscation of goods passed under Sections 111(d) and 111(f) of the Act. We are, therefore, unable to uphold the impugned judgment of the High Court setting aside the order for confiscation of the goods passed under Sections 111(d) and 111(f) of the ActThe order of confiscation of the vessel MANSCO-3 was passed under Section 115(2) of the Act.38. The consideration which weighed with the High Court to set aside the order regarding the confiscation of the goods also weighed with it for setting aside the order for confiscation of the vessel under Section 115(2) of the Act inasmuch as the High Court has found that there was no fraudulent intention on the part of the owners of the vessel in directing the vessel to proceed to Bombay from Karachi to lift additional cargo and the purpose for which the vessel, MANSCO-3, was directed to proceed to Bombay was to lift the said additional cargo and also to have the radar and VHF equipment repaired. We have already considered the said aspect of the case while dealing with the matter of confiscation of the goods and have held that the said finding of the High Court cannot be upheld. The High Court has set aside the confiscation of the vessel also on the ground that no notice was issued to the owners of the vessel under Section 124 of the Act. In this regard, it may be stated that the show-cause notice dated 31-12-1983, indicates that the said notice was issued to Mustafa Najibai, Respondent 2, on behalf of Respondent 1, the owners of the vessel, as well as to Abdul Rahim Khatri, the Master of the vessel and the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the agents of the owners of the vessel at Bombay. Respondent 1, the owners of the vessel, had full knowledge of the said show-cause notice because a reply to the said notice was filed on their behalf as well as on behalf of Respondent 2 and they had contested the proceedings before the Collector.38. The consideration which weighed with the High Court to set aside the order regarding the confiscation of the goods also weighed with it for setting aside the order for confiscation of the vessel under Section 115(2) of the Act inasmuch as the High Court has found that there was no fraudulent intention on the part of the owners of the vessel in directing the vessel to proceed to Bombay from Karachi to lift additional cargo and the purpose for which the vessel, MANSCO-3, was directed to proceed to Bombay was to lift the said additional cargo and also to have the radar and VHF equipment repaired. We have already considered the said aspect of the case while dealing with the matter of confiscation of the goods and have held that the said finding of the High Court cannot be upheld. The High Court has set aside the confiscation of the vessel also on the ground that no notice was issued to the owners of the vessel under Section 124 of the Act. In this regard, it may be stated that the show-cause notice dated 31-12-1983, indicates that the said notice was issued to Mustafa Najibai, Respondent 2, on behalf of Respondent 1, the owners of the vessel, as well as to Abdul Rahim Khatri, the Master of the vessel and the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the agents of the owners of the vessel at Bombay. Respondent 1, the owners of the vessel, had full knowledge of the said show-cause notice because a reply to the said notice was filed on their behalf as well as on behalf of Respondent 2 and they had contested the proceedings before the Collector.In these circumstances, we are of the view that the order regarding confiscation of the vessel could not be set aside on the ground that no notice under Section 124 of the Act was issued to the owners of the vesselThe order passed by the Collector proceeds on the basis that respondent No. 2 is the owner of the vessel. It appears that no contention was raised before the Collector that respondent No. 2 was not the owner of the vessel and that he had no particular role in the vessel being directed to proceed to Bombay from Karachi. Before the Tribunal. however, a contention was raised that respondent NO. 2 was only the Managing Director of respondent No. 1 company and not the owner of the vessel and reliance was placed on the affidavit of respondent No. 2 dated March 25, 1985 which was filed before the Tribunal wherein it was stated that the deviation of voyage from Karachi to Bombay was without his pre knowledge as at that time he was away from Dubai and was in Europe in connection with his business.The Tribunal rejected the contention urged on behalf of respondent No. 2 and has observed that no independent evidence has been adduced to establish that respondent No. 1 company is owned by any other person other than respondent No. 2 and that it in the reply to the Show Cause Notice respondent No. 2 had been mentioned as the owner of the vessel. The Tribunal has also referred to the statement of Mohammed Yousef that he had received the telex dated August 16, 1983 from respondent No. 2 and has observed that the said statement clearly established that respondent NO. 2 knew about the voyage of the vessel from Karachi to Bombay. On that view the Tribunal upheld the penalty imposed on respondent No. 2 under Section 112 of the Act. We do not find any infirmity in the said view of the Tribunal. We are, therefore, unable to uphold the contention of Shri Rana that the Tribunal was in error in affirming the penalty of Rs. 3,00,000/- imposed on respondent No. 2 by the Collector. | 1 | 11,993 | 4,821 | ### Instruction:
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hearing if any judicial order is passed in respect of the cargo belonging to Respondent 3 and other persons. The replies that were filed on behalf of Respondent 1 before the Collector in response to the show-cause notice do not, however, support the said averment. Nor is there anything in the order passed by the Collector to show that any such contention was advanced before him. The judgment of the Tribunal also does not indicate that any such plea was raised. The said contention appears to have been raised for the first time before the High Court. Moreover, under the show-cause notices the seized goods were proposed to be confiscated under Sections 111(d) and 111(f) of the Act. The owners of the vessel, MANSCO-3, the Master of the said vessel and the local agents of the owners of the vessel at Bombay were the best persons who could offer an explanation and show that there was no contravention which could justify the confiscation of goods under Sections 111(d) and 111(f) of the Act. Since the owners of the goods were not present on the scene and had no personal knowledge, they could not offer an explanation other than that offered by the owners of the vessel, the Master of the vessel and the local agents of the owners of the vessel at Bombay. In the circumstances, it cannot be said that the failure to issue a notice under Section 124 to the owners of the goods has resulted in any prejudice to the owners of the goods that have been ordered to be confiscated and such failure cannot, therefore, be a ground for setting aside the order of confiscation of goods passed under Sections 111(d) and 111(f) of the Act. We are, therefore, unable to uphold the impugned judgment of the High Court setting aside the order for confiscation of the goods passed under Sections 111(d) and 111(f) of the Act 37. The order of confiscation of the vessel MANSCO-3 was passed under Section 115(2) of the Act. At the relevant time, Section 115 provided as under 115. Confiscation of conveyances. - (1) The following conveyances shall be liable to confiscation - (a) any vessel which is or has been within the Indian Customs waters, any aircraft which is or has been in India, or any vehicle which is or has been in a customs area, while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods; (b) any conveyance from which the whole or any part of the goods is thrown overboard, stayed or destroyed so as to prevent seizure by an officer of customs; (c) any conveyance which having been required to stop or land under Section 106 fails to do so, except for good and sufficient cause; (d) any conveyance from which any warehoused goods cleared for exportation, or any other goods cleared for exportation under a claim for drawback, are unloaded, without the permission of the proper officer; (e) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft is able to account for the loss of, or deficiency in, the goods (2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves a that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rulesProvided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be Explanation. - In this section, market price means market price at the date when the goods are seized. 38. The consideration which weighed with the High Court to set aside the order regarding the confiscation of the goods also weighed with it for setting aside the order for confiscation of the vessel under Section 115(2) of the Act inasmuch as the High Court has found that there was no fraudulent intention on the part of the owners of the vessel in directing the vessel to proceed to Bombay from Karachi to lift additional cargo and the purpose for which the vessel, MANSCO-3, was directed to proceed to Bombay was to lift the said additional cargo and also to have the radar and VHF equipment repaired. We have already considered the said aspect of the case while dealing with the matter of confiscation of the goods and have held that the said finding of the High Court cannot be upheld. The High Court has set aside the confiscation of the vessel also on the ground that no notice was issued to the owners of the vessel under Section 124 of the Act. In this regard, it may be stated that the show-cause notice dated 31-12-1983, indicates that the said notice was issued to Mustafa Najibai, Respondent 2, on behalf of Respondent 1, the owners of the vessel, as well as to Abdul Rahim Khatri, the Master of the vessel and the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the agents of the owners of the vessel at Bombay. Respondent 1, the owners of the vessel, had full knowledge of the said show-cause notice because a reply to the said notice was filed on their behalf as well as on behalf of Respondent 2 and they had contested the proceedings before the Collector.
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ground for setting aside the order of confiscation of goods passed under Sections 111(d) and 111(f) of the Act. We are, therefore, unable to uphold the impugned judgment of the High Court setting aside the order for confiscation of the goods passed under Sections 111(d) and 111(f) of the ActThe order of confiscation of the vessel MANSCO-3 was passed under Section 115(2) of the Act.38. The consideration which weighed with the High Court to set aside the order regarding the confiscation of the goods also weighed with it for setting aside the order for confiscation of the vessel under Section 115(2) of the Act inasmuch as the High Court has found that there was no fraudulent intention on the part of the owners of the vessel in directing the vessel to proceed to Bombay from Karachi to lift additional cargo and the purpose for which the vessel, MANSCO-3, was directed to proceed to Bombay was to lift the said additional cargo and also to have the radar and VHF equipment repaired. We have already considered the said aspect of the case while dealing with the matter of confiscation of the goods and have held that the said finding of the High Court cannot be upheld. The High Court has set aside the confiscation of the vessel also on the ground that no notice was issued to the owners of the vessel under Section 124 of the Act. In this regard, it may be stated that the show-cause notice dated 31-12-1983, indicates that the said notice was issued to Mustafa Najibai, Respondent 2, on behalf of Respondent 1, the owners of the vessel, as well as to Abdul Rahim Khatri, the Master of the vessel and the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the agents of the owners of the vessel at Bombay. Respondent 1, the owners of the vessel, had full knowledge of the said show-cause notice because a reply to the said notice was filed on their behalf as well as on behalf of Respondent 2 and they had contested the proceedings before the Collector.38. The consideration which weighed with the High Court to set aside the order regarding the confiscation of the goods also weighed with it for setting aside the order for confiscation of the vessel under Section 115(2) of the Act inasmuch as the High Court has found that there was no fraudulent intention on the part of the owners of the vessel in directing the vessel to proceed to Bombay from Karachi to lift additional cargo and the purpose for which the vessel, MANSCO-3, was directed to proceed to Bombay was to lift the said additional cargo and also to have the radar and VHF equipment repaired. We have already considered the said aspect of the case while dealing with the matter of confiscation of the goods and have held that the said finding of the High Court cannot be upheld. The High Court has set aside the confiscation of the vessel also on the ground that no notice was issued to the owners of the vessel under Section 124 of the Act. In this regard, it may be stated that the show-cause notice dated 31-12-1983, indicates that the said notice was issued to Mustafa Najibai, Respondent 2, on behalf of Respondent 1, the owners of the vessel, as well as to Abdul Rahim Khatri, the Master of the vessel and the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the agents of the owners of the vessel at Bombay. Respondent 1, the owners of the vessel, had full knowledge of the said show-cause notice because a reply to the said notice was filed on their behalf as well as on behalf of Respondent 2 and they had contested the proceedings before the Collector.In these circumstances, we are of the view that the order regarding confiscation of the vessel could not be set aside on the ground that no notice under Section 124 of the Act was issued to the owners of the vesselThe order passed by the Collector proceeds on the basis that respondent No. 2 is the owner of the vessel. It appears that no contention was raised before the Collector that respondent No. 2 was not the owner of the vessel and that he had no particular role in the vessel being directed to proceed to Bombay from Karachi. Before the Tribunal. however, a contention was raised that respondent NO. 2 was only the Managing Director of respondent No. 1 company and not the owner of the vessel and reliance was placed on the affidavit of respondent No. 2 dated March 25, 1985 which was filed before the Tribunal wherein it was stated that the deviation of voyage from Karachi to Bombay was without his pre knowledge as at that time he was away from Dubai and was in Europe in connection with his business.The Tribunal rejected the contention urged on behalf of respondent No. 2 and has observed that no independent evidence has been adduced to establish that respondent No. 1 company is owned by any other person other than respondent No. 2 and that it in the reply to the Show Cause Notice respondent No. 2 had been mentioned as the owner of the vessel. The Tribunal has also referred to the statement of Mohammed Yousef that he had received the telex dated August 16, 1983 from respondent No. 2 and has observed that the said statement clearly established that respondent NO. 2 knew about the voyage of the vessel from Karachi to Bombay. On that view the Tribunal upheld the penalty imposed on respondent No. 2 under Section 112 of the Act. We do not find any infirmity in the said view of the Tribunal. We are, therefore, unable to uphold the contention of Shri Rana that the Tribunal was in error in affirming the penalty of Rs. 3,00,000/- imposed on respondent No. 2 by the Collector.
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Commissioner of Income Tax, Bombay City I Vs. Ciba of India Limited | to or applied for by it in respect of "sulphathiazole products" against infringement, and agreed to share equally all costs incurred and all damages or other sums received in respect thereof. Under Clause 8 of the agreement each party had to take all steps within its power to secure the observance of the terms of the agreement by its subsidiary or associated companies licensees and agents. "Sulphathiazole" was sold in India by the Swiss Company and by May and Baker under the trade names of "Cibasol" and "Thiazamide" respectively. In a suit instituted by May and Baker in the Calcutta High Court against Messrs. Boots Drug Co., alleging that the latter had infringed the Indian patents of the plaintiff it was found necessary during the progress of the suit to amend the specifications of the patents. The High Court of Calcutta made it a condition in granting the application for amendment that May and Baker shall not institute any action for any act of infringement of the patent committed prior to the date of the amendment and that they shall pay to Boots Pure Drug Co., costs of and incidental to the application for amendment of the specifications. May and Baker complied with the order of payment of costs and the Swiss Company paid its share of costs to May and Baker under the terms of Clause 5 of the agreement. The assessee reimbursed that amount to the Swiss Company and claimed it as a permissible deduction in proceedings for assessment to tax. The Income-tax Officer disallowed the claim. In appeal, the Appellate Tribunal held that in the payment made by the assessee there was no capital element and the assessee incurred the expenditure in the course of its business and for the purpose of ensuring that the patents with which it was connected were not infringed. The High Court held that the assessee company was not responsible for the payment because the liability of the Swiss Company had not at any time developed upon Ciba (India) Ltd., prior to the transfer of the business in the pharmaceutical section to the assessee and since the assessee had undertaken the, liability to satisfy, discharge and pay all debts and liabilities of Ciba (India) Ltd., and of no other person, the assessee was not entitled to claim the amount paid to the Swiss Company as an allowable deduction. The High Court also observed that since the agreement between Ciba (India) Ltd., and the assessee contained no clause for sharing any expenditure between the assessee and the Swiss Company as was to be found in the agreement dated November 15, 1944 between May and Baker and the Swiss Company, the amount paid by the assessee was not a permissible allowance and even assuming that the agreement to assist implied a stipulation to share the cost, the agreement was only prospective. and did not attract liability in respect of any infringement before the date of the agreement. 15. Counsel for the assessee contended in the first instance that under the terms of the agreement between the Swiss Company and May and Baker, each Company became a licensee for the patents of the other, and under the agreement with Ciba (India) Ltd. the assessee was entitled to the rights to the patents of May and Baker and on that account the costs incurred for defending the rights of the Swiss Company as a licensee from May and Baker enured for the benefit of the assessee and the assessee in paying the amount to the Swiss Company was acting for protecting its trading interest. In the alternative, it was contended that the obligations of the Swiss Company arising in respect of the patents relating to sulphathiazole were debts which Ciba (India) Ltd., was liable to discharge, and from Ciba (India) Ltd., under the terms of the agreement dated June 18, 1948, that liability devolved upon the assessee. 16. In our view, the contentions cannot be accepted. From the terms of the agreement between the Swiss Company and the assessee it is clear that the assessee was entitled to certain Indian patents but that did not include any patent either in respect of "sulphathiazole" or "thiazamide" obtained by the Swiss Company from May and Baker. The two patents Nos. 27,825 and 29,117 obtained by the Swiss Company and the Indian Trade Mark No. 1621 in respect of "Cibazol" are specifically referred to in the Schedules to the agreement dated December 11, 1949. The right to the patents of May and Baker for the manufacture of "sulphathiazole" and the trade mark in respect of thiazamide did not however devolve upon the assessee. It cannot therefore be assumed that the rights to the patents standing in the name of May and Baker were available to the assessee under its agreement with the Swiss Company. No argument was apparently advanced either before the Tribunal or before the departmental authorities that the assessee was entitled to these patent rights, and no investigation was permissible on that question in the High Court. 17. Suit No. 890 of 1946 was filed before the assessee was registered. By paying to the Swiss Company the share of costs in that Suit No. 890 of 1946, the assessee was not seeking to protect its trading interest. 18. We also agree with the High Court that it is not proved that the obligation of the Swiss Company to pay a share of the costs in Suit No. 890 of 1946 incurred by May and Baker was transmitted from Ciba (India) Ltd., to the assessee. We are unable to agree with the contention of counsel for the assessee that the Tribunal had found that liability of the Swiss Company in regard to the payment of share of costs of May and Baker devolved upon the assessee.The Tribunal has not expressly so found and there is no evidence in support of that view In our view the High Court was right in answering the second question against the assessee. | 0[ds]7. Expenditure (not being in the nature of capital expenditure) laid out or expanded on scientific research related to the business of a person is an admissible allowance under Section 10 (2) (xii) of the Indian Income-tax Act in computation of the taxable profits and gains of the business of the assessee. One of the conditions of the admissibility of an allowance under Clause (xii) of Section 10 (2) is that the expenditure must be laid out or expanded on scientific research by the assessee.The amounts paid by the assessee were not laid out or expanded by the assessee on scientific research related to the business of the assessee. Payment made to recoup an other person for expenditure for scientific research incurred by that other person, even if it may ultimately benefit the assessee is, unless it is carried on for or on behalf of the assessee, not expenditure laid out or expanded on scientific research related to the business of the assessee. The High Court was, therefore, right in rejecting the claim for allowance under Section 10 (2) (xii) of the Income-tax ActThe expenditure incurred by the assessee is not an allowance of the nature described in Clauses (i) to (xiv). Again the expenditure is laid out or expanded wholly and exclusively for the purpose of the business of the assessee12. In the case in hand it cannot be said that the Swiss Company had wholly parted with its Indian business. There was also no attempt to part with the technical knowledge absolutely in favour of the assessee13. The following facts which emerge from the agreement clearly show that the secret processes were not sold by the Swiss Company to the assessee; (a) the license was for a period of five years, liable to be terminated in certain eventualities even before the expiry of the period; (b) the object of the agreement was to obtain the benefit of the technical assistance for running the business; (c) the license was granted to the assessee subject to rights actually granted or which may be granted after the date of the agreement to other persons; (d) the assessee was expressly prohibited from divulging confidential information to third parties without the consent of the Swiss Company; (e) there was no transfer of the fruits of research once for all: the Swiss Company which was continuously carrying on research and had agreed to make it available to the assessee; and (f) the stipulated payment was recurrent dependent upon the sales, and only for the period of the agreement. We agree with the High Court that the first question was rightly answered in favour of the assessee16. In our view, the contentions cannot be accepted. From the terms of the agreement between the Swiss Company and the assessee it is clear that the assessee was entitled to certain Indian patents but that did not include any patent either in respect of "sulphathiazole" or "thiazamide" obtained by the Swiss Company from May and Baker. The two patents Nos. 27,825 and 29,117 obtained by the Swiss Company and the Indian Trade Mark No. 1621 in respect of "Cibazol" are specifically referred to in the Schedules to the agreement dated December 11, 1949. The right to the patents of May and Baker for the manufacture of "sulphathiazole" and the trade mark in respect of thiazamide did not however devolve upon the assessee. It cannot therefore be assumed that the rights to the patents standing in the name of May and Baker were available to the assessee under its agreement with the Swiss Company. No argument was apparently advanced either before the Tribunal or before the departmental authorities that the assessee was entitled to these patent rights, and no investigation was permissible on that question in the High Court17. Suit No. 890 of 1946 was filed before the assessee was registered. By paying to the Swiss Company the share of costs in that Suit No. 890 of 1946, the assessee was not seeking to protect its trading interest18. We also agree with the High Court that it is not proved that the obligation of the Swiss Company to pay a share of the costs in Suit No. 890 of 1946 incurred by May and Baker was transmitted from Ciba (India) Ltd., to the assessee. We are unable to agree with the contention of counsel for the assessee that the Tribunal had found that liability of the Swiss Company in regard to the payment of share of costs of May and Baker devolved upon the assessee.The Tribunal has not expressly so found and there is no evidence in support of that view In our view the High Court was right in answering the second question against the assessee. | 0 | 5,123 | 879 | ### Instruction:
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to or applied for by it in respect of "sulphathiazole products" against infringement, and agreed to share equally all costs incurred and all damages or other sums received in respect thereof. Under Clause 8 of the agreement each party had to take all steps within its power to secure the observance of the terms of the agreement by its subsidiary or associated companies licensees and agents. "Sulphathiazole" was sold in India by the Swiss Company and by May and Baker under the trade names of "Cibasol" and "Thiazamide" respectively. In a suit instituted by May and Baker in the Calcutta High Court against Messrs. Boots Drug Co., alleging that the latter had infringed the Indian patents of the plaintiff it was found necessary during the progress of the suit to amend the specifications of the patents. The High Court of Calcutta made it a condition in granting the application for amendment that May and Baker shall not institute any action for any act of infringement of the patent committed prior to the date of the amendment and that they shall pay to Boots Pure Drug Co., costs of and incidental to the application for amendment of the specifications. May and Baker complied with the order of payment of costs and the Swiss Company paid its share of costs to May and Baker under the terms of Clause 5 of the agreement. The assessee reimbursed that amount to the Swiss Company and claimed it as a permissible deduction in proceedings for assessment to tax. The Income-tax Officer disallowed the claim. In appeal, the Appellate Tribunal held that in the payment made by the assessee there was no capital element and the assessee incurred the expenditure in the course of its business and for the purpose of ensuring that the patents with which it was connected were not infringed. The High Court held that the assessee company was not responsible for the payment because the liability of the Swiss Company had not at any time developed upon Ciba (India) Ltd., prior to the transfer of the business in the pharmaceutical section to the assessee and since the assessee had undertaken the, liability to satisfy, discharge and pay all debts and liabilities of Ciba (India) Ltd., and of no other person, the assessee was not entitled to claim the amount paid to the Swiss Company as an allowable deduction. The High Court also observed that since the agreement between Ciba (India) Ltd., and the assessee contained no clause for sharing any expenditure between the assessee and the Swiss Company as was to be found in the agreement dated November 15, 1944 between May and Baker and the Swiss Company, the amount paid by the assessee was not a permissible allowance and even assuming that the agreement to assist implied a stipulation to share the cost, the agreement was only prospective. and did not attract liability in respect of any infringement before the date of the agreement. 15. Counsel for the assessee contended in the first instance that under the terms of the agreement between the Swiss Company and May and Baker, each Company became a licensee for the patents of the other, and under the agreement with Ciba (India) Ltd. the assessee was entitled to the rights to the patents of May and Baker and on that account the costs incurred for defending the rights of the Swiss Company as a licensee from May and Baker enured for the benefit of the assessee and the assessee in paying the amount to the Swiss Company was acting for protecting its trading interest. In the alternative, it was contended that the obligations of the Swiss Company arising in respect of the patents relating to sulphathiazole were debts which Ciba (India) Ltd., was liable to discharge, and from Ciba (India) Ltd., under the terms of the agreement dated June 18, 1948, that liability devolved upon the assessee. 16. In our view, the contentions cannot be accepted. From the terms of the agreement between the Swiss Company and the assessee it is clear that the assessee was entitled to certain Indian patents but that did not include any patent either in respect of "sulphathiazole" or "thiazamide" obtained by the Swiss Company from May and Baker. The two patents Nos. 27,825 and 29,117 obtained by the Swiss Company and the Indian Trade Mark No. 1621 in respect of "Cibazol" are specifically referred to in the Schedules to the agreement dated December 11, 1949. The right to the patents of May and Baker for the manufacture of "sulphathiazole" and the trade mark in respect of thiazamide did not however devolve upon the assessee. It cannot therefore be assumed that the rights to the patents standing in the name of May and Baker were available to the assessee under its agreement with the Swiss Company. No argument was apparently advanced either before the Tribunal or before the departmental authorities that the assessee was entitled to these patent rights, and no investigation was permissible on that question in the High Court. 17. Suit No. 890 of 1946 was filed before the assessee was registered. By paying to the Swiss Company the share of costs in that Suit No. 890 of 1946, the assessee was not seeking to protect its trading interest. 18. We also agree with the High Court that it is not proved that the obligation of the Swiss Company to pay a share of the costs in Suit No. 890 of 1946 incurred by May and Baker was transmitted from Ciba (India) Ltd., to the assessee. We are unable to agree with the contention of counsel for the assessee that the Tribunal had found that liability of the Swiss Company in regard to the payment of share of costs of May and Baker devolved upon the assessee.The Tribunal has not expressly so found and there is no evidence in support of that view In our view the High Court was right in answering the second question against the assessee.
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7. Expenditure (not being in the nature of capital expenditure) laid out or expanded on scientific research related to the business of a person is an admissible allowance under Section 10 (2) (xii) of the Indian Income-tax Act in computation of the taxable profits and gains of the business of the assessee. One of the conditions of the admissibility of an allowance under Clause (xii) of Section 10 (2) is that the expenditure must be laid out or expanded on scientific research by the assessee.The amounts paid by the assessee were not laid out or expanded by the assessee on scientific research related to the business of the assessee. Payment made to recoup an other person for expenditure for scientific research incurred by that other person, even if it may ultimately benefit the assessee is, unless it is carried on for or on behalf of the assessee, not expenditure laid out or expanded on scientific research related to the business of the assessee. The High Court was, therefore, right in rejecting the claim for allowance under Section 10 (2) (xii) of the Income-tax ActThe expenditure incurred by the assessee is not an allowance of the nature described in Clauses (i) to (xiv). Again the expenditure is laid out or expanded wholly and exclusively for the purpose of the business of the assessee12. In the case in hand it cannot be said that the Swiss Company had wholly parted with its Indian business. There was also no attempt to part with the technical knowledge absolutely in favour of the assessee13. The following facts which emerge from the agreement clearly show that the secret processes were not sold by the Swiss Company to the assessee; (a) the license was for a period of five years, liable to be terminated in certain eventualities even before the expiry of the period; (b) the object of the agreement was to obtain the benefit of the technical assistance for running the business; (c) the license was granted to the assessee subject to rights actually granted or which may be granted after the date of the agreement to other persons; (d) the assessee was expressly prohibited from divulging confidential information to third parties without the consent of the Swiss Company; (e) there was no transfer of the fruits of research once for all: the Swiss Company which was continuously carrying on research and had agreed to make it available to the assessee; and (f) the stipulated payment was recurrent dependent upon the sales, and only for the period of the agreement. We agree with the High Court that the first question was rightly answered in favour of the assessee16. In our view, the contentions cannot be accepted. From the terms of the agreement between the Swiss Company and the assessee it is clear that the assessee was entitled to certain Indian patents but that did not include any patent either in respect of "sulphathiazole" or "thiazamide" obtained by the Swiss Company from May and Baker. The two patents Nos. 27,825 and 29,117 obtained by the Swiss Company and the Indian Trade Mark No. 1621 in respect of "Cibazol" are specifically referred to in the Schedules to the agreement dated December 11, 1949. The right to the patents of May and Baker for the manufacture of "sulphathiazole" and the trade mark in respect of thiazamide did not however devolve upon the assessee. It cannot therefore be assumed that the rights to the patents standing in the name of May and Baker were available to the assessee under its agreement with the Swiss Company. No argument was apparently advanced either before the Tribunal or before the departmental authorities that the assessee was entitled to these patent rights, and no investigation was permissible on that question in the High Court17. Suit No. 890 of 1946 was filed before the assessee was registered. By paying to the Swiss Company the share of costs in that Suit No. 890 of 1946, the assessee was not seeking to protect its trading interest18. We also agree with the High Court that it is not proved that the obligation of the Swiss Company to pay a share of the costs in Suit No. 890 of 1946 incurred by May and Baker was transmitted from Ciba (India) Ltd., to the assessee. We are unable to agree with the contention of counsel for the assessee that the Tribunal had found that liability of the Swiss Company in regard to the payment of share of costs of May and Baker devolved upon the assessee.The Tribunal has not expressly so found and there is no evidence in support of that view In our view the High Court was right in answering the second question against the assessee.
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Guru Datta Sharma Vs. State of Bihar & Another | ex facie regulatory may in substance be confiscatory...." Lord Radcliffe followed on the same lines and referred in this context to Slattery v. Naylor, (1888) 13 AC 446, where the validity of a municipal bye-law which prevented an owner from using the property which he had purchased-burial ground-for the only, purpose for which it could be used was upheld by the Judicial Committee as not amounting to depriving an owner of his property without compensation.30. We consider the principles laid down in the Belfast case (supra) apt as an aid to the construction of the content of the expression "acquired" in S. 299(2) of the Government of India Act, 1935.The contention urged by learned Counsel for the appellant that the deprivation of the landholder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts to acquisition of land within S. 299(2) of the Government of India Act, 1935 must be rejected. The extract we have made earlier from the judgment of Viscount Simonds affords a sufficient answer to a submission that the right of the landholder to possession was itself a right of property and as this had been taken over it constituted an acquisition within the constitutional provision. Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on. All test, of course, would be subject to the relevant law-procedural or substantive- bearing upon each of these incidents, but the strands that make up the total are not individually to be identified as those constituting "property." So understood, there is no scope for the contention that the imposition, so to speak, of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an "acquisition" of the property itself within S. 299(2) of the Government of India Act, 1935.31. A very minor point was urged by the learned Counsel based upon the language of sub-s. (5) of S. 299 which reads:"299 (5) In this section land includes immovable property of every kind and any rights in or over such property, and undertaking includes part of an undertaking."Learned Counsel suggested that the right to possession, management and control over the estate was "a right in or over such property " and that if it was so construed, the taking over of such a right would be tantamount to "acquisition of land" within S. 299(2).There is no substance in this argument, because the rights referred to in S. 299(5) are derivative rights, like interests carved by an owner -a lessee, mortgagee etc.-and not an incident of a property right regarding which we have already expressed ourselves. We therefore hold that the impugned enactments were validly enacted and are not obnoxious to the provisions of the Government of India Act, 1935.32. There remains for consideration the third point urged that even if the Bihar Private Forests Act 1946 and 1948 were valid when enacted, the relevant provisions cannot be enforced against the appellant on the ground that the enforcement would violate the fundamental rights granted to the appellant by Arts. 19 and 31 of the Constitution. The argument was this: The lease in favour of the appellant was for terms of 8 or 9 years and would have continued, if nothing else had happened, till certain dates in 1954and 1955. He has, however, been deprived of the benefit of the lease by the operation of the impugned legislation and the appellants rights which he could have otherwise enjoyed beyond January 26, 1950 have been denied to him, and this is tantamount to the impugned enactments operating beyond January 26, 1950. In support of this submission learned Counsel invited our attention to a passage in the judgment of this Court in Shanti Sarup v. Union of India, (S) AIR 1955 SC 624 at p. 628. That case was concerned primarily with the constitutionality of an order dated October 21, 1952 passed by the Central Government under S. 3(4) of the Essential Supplies (Temporary Powers) Act, 1946, by which the petitioner-firm was dispossessed of a textile-mill which they owned and managed. There had been an earlier order of the State Government dated July 21, 1949 also which was similarly impugned. B. K. Mukherjea, J., as he then was, who spoke for the Court, after pointing out that the order of the Central Government was not supportable under the terms of the enactment under which it was made and therefore had deprived the petitioner of his property under Art 31 of the Constitution proceeded to add:"But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under Art. 13(1) of the Constitution."We are unable to construe these observations as affording any assistance to the appellant. The lease or licence which the appellant had obtained by contract from the landholder was put an end to, once and for all by virtue of the provisions contained in S. 22 of the impugned enactment which made provision for compensation for the extinguishment of those rights. That took place long before the Constitution, in 1946. We have held that the legislation under which the appellants rights were extinguished, subject to his claim for compensation, was a valid law.It would therefore follow that the appellant could have no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof. In this point also we must hold against the appellant. | 0[ds]15. The succeeding provisions of the enactment far from supporting the case that the correct specification of the name of the landlord is a legal pre-requisite of a valid notification, points to the conclusion that so far as the notification is concerned the name of the landlord is not a legal requirement. For instance, reference may be made to S. 21 where provision is made for the issue of an order prohibiting, until the date of the publication of a notification under S. 29, the cutting, collecting or removal of any trees in any forest. Such an order might be issued simultaneously with a notification under S. 14 and the order is "to be published in the neighbourhood of the forest". Provisions of this sort indicate what we have already mentioned, that the emphasis in the notification is on specification of the land and not so much on who the owner or the person interested in it was. We are therefore clearly of the opinion that the learned Judges of the High Court were right in holding that the notification under S. 14 did not contravene thelearned Subordinate Judge, by a process of reasoning which we are unable to follow, held that the terms of this enactment were insufficient to validate the non-service of the notice on the landlord as required by S. 14 and the other provisions of Ch. III of the Bihar Private Forests Act. The learned Judges of the High Court, on the other hand held and, in our opinion, correctly, that the effect of the failure to serve notices or any informality in the service of the notices required by S. 14 and succeeding sections of the Act was rectified and validated by the Act. In agreement with the learned Judges of the High Court we hold that the proceedings taken under Ch. III of the Act, including the notification issued under S. 14 were valid and in accordance with the law and that if the Bihar Private Forests Act were valid the plaintiff could have no legal ground of complaint which he could agitate in the suit and that the suit was therefore properly directed to berents and profits accruing from the estate were to be payable to and to be collected by the Manager who alone was, under the statute competent to grant valid receipts therefor. There were special provisions empowering the Manager to order the removal of mortgagees or lessees-in-possession by virtue of agreements with the proprietor or tenure-holder. Special provisions were also made for dealing with the claims of creditors- both secured and unsecured. Section 20(5) of the Act made provision for the disposal of the income, rents and profits received by the manager. They were to be applied first for the payment of revenue to Government, then to municipal rents, next to costs of management and supervision, then for an allowance to the proprietor to be fixed by rules made by Government, and any surplus remaining thereafter was to be paid to the proprietor at the end of each financial year with power, however, to the manager to retain such portion of the surplus which he might consider necessary as a working balance for the ensuing year. The manager was to have power to contract loans on the security of the estate or tenure. The jurisdiction of the civil Courts was barred in respect of matters for which provision was made by the Act. Though there was a direction that the manager should have his accounts audited with a right to the proprietor or tenure-holder to inspect these accounts, in cases however where these accounts were not audited the right of the proprietor was merely to draw the attention of the Government to the lapse, with however a bar on enforcing such rights by resort to the courts even in the event of the Provincial Government not taking anyis not necessary for the purpose of this case to canvass the question as to whether the taking over, for better management, of an estate in the manner as was done by the Bihar Act of 1949 is or is not within item 21 of the Provincial Legislative List in Sch. VII tothe Government of India Act, 1935.The enactments now impugned are certainly in relation to "forests" and fall within item 22 of the Provincial Legislative List which reads "22. Forests". It is not necessary to decide whether entry 21 dealing with "Land etc." would cover legislation on forests, because of the special provision in Entry 22 in relation to "forests"-an entry which has come down from the Devolution Rules under the Government of India Act,1919. In our opinion, the item "Forests" would permit all and every legislation which in pith and substance, to use a phrase familiar in this branch of the law, was on the subject of "forests". It is not possible to argue that the two Acts here impugned do not satisfy thisconsider this submission wholly without substance. The considerations arising from the width or amplitude to be attached to the meaning of expressions dealing with the conferment of legislative power occurring in a constitutional document should suffice to reject this submission. In this connection we might refer to the decision of the Federal Court in Lahore Municipality v. Daulat Ram Kapur, 1942 FCR 31: (AIR 1942 FC 14) which dealt with the scope of the entry Salt in the Central Legislative List in Sch. VII.We consider the principles laid down in the Belfast case (supra) apt as an aid to the construction of the content of the expression "acquired" in S. 299(2) ofthe Government of India Act,contention urged by learned Counsel for the appellant that the deprivation of the landholder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts to acquisition of land within S. 299(2) ofthe Government of India Act,1935 must be rejected. The extract we have made earlier from the judgment of Viscount Simonds affords a sufficient answer to a submission that the right of the landholder to possession was itself a right of property and as this had been taken over it constituted an acquisition within the constitutional provision. Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on. All test, of course, would be subject to the relevant law-procedural or substantive- bearing upon each of these incidents, but the strands that make up the total are not individually to be identified as those constituting "property." So understood, there is no scope for the contention that the imposition, so to speak, of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an "acquisition" of the property itself within S. 299(2) ofthe Government of India Act,are unable to construe these observations as affording any assistance to the appellant. The lease or licence which the appellant had obtained by contract from the landholder was put an end to, once and for all by virtue of the provisions contained in S. 22 of the impugned enactment which made provision for compensation for the extinguishment of those rights. That took place long before the Constitution, in 1946. We have held that the legislation under which the appellants rights were extinguished, subject to his claim for compensation, was a valid law.It would therefore follow that the appellant could have no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof. In this point also we must hold against the appellant. | 0 | 11,697 | 1,430 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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ex facie regulatory may in substance be confiscatory...." Lord Radcliffe followed on the same lines and referred in this context to Slattery v. Naylor, (1888) 13 AC 446, where the validity of a municipal bye-law which prevented an owner from using the property which he had purchased-burial ground-for the only, purpose for which it could be used was upheld by the Judicial Committee as not amounting to depriving an owner of his property without compensation.30. We consider the principles laid down in the Belfast case (supra) apt as an aid to the construction of the content of the expression "acquired" in S. 299(2) of the Government of India Act, 1935.The contention urged by learned Counsel for the appellant that the deprivation of the landholder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts to acquisition of land within S. 299(2) of the Government of India Act, 1935 must be rejected. The extract we have made earlier from the judgment of Viscount Simonds affords a sufficient answer to a submission that the right of the landholder to possession was itself a right of property and as this had been taken over it constituted an acquisition within the constitutional provision. Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on. All test, of course, would be subject to the relevant law-procedural or substantive- bearing upon each of these incidents, but the strands that make up the total are not individually to be identified as those constituting "property." So understood, there is no scope for the contention that the imposition, so to speak, of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an "acquisition" of the property itself within S. 299(2) of the Government of India Act, 1935.31. A very minor point was urged by the learned Counsel based upon the language of sub-s. (5) of S. 299 which reads:"299 (5) In this section land includes immovable property of every kind and any rights in or over such property, and undertaking includes part of an undertaking."Learned Counsel suggested that the right to possession, management and control over the estate was "a right in or over such property " and that if it was so construed, the taking over of such a right would be tantamount to "acquisition of land" within S. 299(2).There is no substance in this argument, because the rights referred to in S. 299(5) are derivative rights, like interests carved by an owner -a lessee, mortgagee etc.-and not an incident of a property right regarding which we have already expressed ourselves. We therefore hold that the impugned enactments were validly enacted and are not obnoxious to the provisions of the Government of India Act, 1935.32. There remains for consideration the third point urged that even if the Bihar Private Forests Act 1946 and 1948 were valid when enacted, the relevant provisions cannot be enforced against the appellant on the ground that the enforcement would violate the fundamental rights granted to the appellant by Arts. 19 and 31 of the Constitution. The argument was this: The lease in favour of the appellant was for terms of 8 or 9 years and would have continued, if nothing else had happened, till certain dates in 1954and 1955. He has, however, been deprived of the benefit of the lease by the operation of the impugned legislation and the appellants rights which he could have otherwise enjoyed beyond January 26, 1950 have been denied to him, and this is tantamount to the impugned enactments operating beyond January 26, 1950. In support of this submission learned Counsel invited our attention to a passage in the judgment of this Court in Shanti Sarup v. Union of India, (S) AIR 1955 SC 624 at p. 628. That case was concerned primarily with the constitutionality of an order dated October 21, 1952 passed by the Central Government under S. 3(4) of the Essential Supplies (Temporary Powers) Act, 1946, by which the petitioner-firm was dispossessed of a textile-mill which they owned and managed. There had been an earlier order of the State Government dated July 21, 1949 also which was similarly impugned. B. K. Mukherjea, J., as he then was, who spoke for the Court, after pointing out that the order of the Central Government was not supportable under the terms of the enactment under which it was made and therefore had deprived the petitioner of his property under Art 31 of the Constitution proceeded to add:"But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under Art. 13(1) of the Constitution."We are unable to construe these observations as affording any assistance to the appellant. The lease or licence which the appellant had obtained by contract from the landholder was put an end to, once and for all by virtue of the provisions contained in S. 22 of the impugned enactment which made provision for compensation for the extinguishment of those rights. That took place long before the Constitution, in 1946. We have held that the legislation under which the appellants rights were extinguished, subject to his claim for compensation, was a valid law.It would therefore follow that the appellant could have no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof. In this point also we must hold against the appellant.
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proceedings taken under Ch. III of the Act, including the notification issued under S. 14 were valid and in accordance with the law and that if the Bihar Private Forests Act were valid the plaintiff could have no legal ground of complaint which he could agitate in the suit and that the suit was therefore properly directed to berents and profits accruing from the estate were to be payable to and to be collected by the Manager who alone was, under the statute competent to grant valid receipts therefor. There were special provisions empowering the Manager to order the removal of mortgagees or lessees-in-possession by virtue of agreements with the proprietor or tenure-holder. Special provisions were also made for dealing with the claims of creditors- both secured and unsecured. Section 20(5) of the Act made provision for the disposal of the income, rents and profits received by the manager. They were to be applied first for the payment of revenue to Government, then to municipal rents, next to costs of management and supervision, then for an allowance to the proprietor to be fixed by rules made by Government, and any surplus remaining thereafter was to be paid to the proprietor at the end of each financial year with power, however, to the manager to retain such portion of the surplus which he might consider necessary as a working balance for the ensuing year. The manager was to have power to contract loans on the security of the estate or tenure. The jurisdiction of the civil Courts was barred in respect of matters for which provision was made by the Act. Though there was a direction that the manager should have his accounts audited with a right to the proprietor or tenure-holder to inspect these accounts, in cases however where these accounts were not audited the right of the proprietor was merely to draw the attention of the Government to the lapse, with however a bar on enforcing such rights by resort to the courts even in the event of the Provincial Government not taking anyis not necessary for the purpose of this case to canvass the question as to whether the taking over, for better management, of an estate in the manner as was done by the Bihar Act of 1949 is or is not within item 21 of the Provincial Legislative List in Sch. VII tothe Government of India Act, 1935.The enactments now impugned are certainly in relation to "forests" and fall within item 22 of the Provincial Legislative List which reads "22. Forests". It is not necessary to decide whether entry 21 dealing with "Land etc." would cover legislation on forests, because of the special provision in Entry 22 in relation to "forests"-an entry which has come down from the Devolution Rules under the Government of India Act,1919. In our opinion, the item "Forests" would permit all and every legislation which in pith and substance, to use a phrase familiar in this branch of the law, was on the subject of "forests". It is not possible to argue that the two Acts here impugned do not satisfy thisconsider this submission wholly without substance. The considerations arising from the width or amplitude to be attached to the meaning of expressions dealing with the conferment of legislative power occurring in a constitutional document should suffice to reject this submission. In this connection we might refer to the decision of the Federal Court in Lahore Municipality v. Daulat Ram Kapur, 1942 FCR 31: (AIR 1942 FC 14) which dealt with the scope of the entry Salt in the Central Legislative List in Sch. VII.We consider the principles laid down in the Belfast case (supra) apt as an aid to the construction of the content of the expression "acquired" in S. 299(2) ofthe Government of India Act,contention urged by learned Counsel for the appellant that the deprivation of the landholder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts to acquisition of land within S. 299(2) ofthe Government of India Act,1935 must be rejected. The extract we have made earlier from the judgment of Viscount Simonds affords a sufficient answer to a submission that the right of the landholder to possession was itself a right of property and as this had been taken over it constituted an acquisition within the constitutional provision. Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on. All test, of course, would be subject to the relevant law-procedural or substantive- bearing upon each of these incidents, but the strands that make up the total are not individually to be identified as those constituting "property." So understood, there is no scope for the contention that the imposition, so to speak, of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an "acquisition" of the property itself within S. 299(2) ofthe Government of India Act,are unable to construe these observations as affording any assistance to the appellant. The lease or licence which the appellant had obtained by contract from the landholder was put an end to, once and for all by virtue of the provisions contained in S. 22 of the impugned enactment which made provision for compensation for the extinguishment of those rights. That took place long before the Constitution, in 1946. We have held that the legislation under which the appellants rights were extinguished, subject to his claim for compensation, was a valid law.It would therefore follow that the appellant could have no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof. In this point also we must hold against the appellant.
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The Municipal Council, Madurai Vs. R. Narayanan Etc | shall be used as a market. Such resolution clearly affects land within the jurisdiction of the board and on the passing of such a resolution the board gets the further power to issue licences for holding of markets on lands within its jurisdiction by a resolution and also the power to impose an annual tax thereon." (p.49) x x ".x x x x x"..s. 62(2) which used the words impose an annual tax thereon, clearly shows that the word thereon refers to any land for which a licence is issued for used as a market and not to the word market. Thus the tax in the present case being on land would clearly be within the competence of the state legislature." (p.5l)Generously following the line of thinking presented by Shri Chellaswamy, based on Ajoy Kumar (supra) we find difficulty in applying its ratio to s. 321 (2). There the tax was on land and the expression thereon underscores this idea. Once the tax is on land, the link between the tax and the land-user like running a market or hotel based on the let ting value is good, but in the p resent case there is nothing to indicate that it is a tax at all. Secondly, the phraseology does not suggest that it is a tax on the land or the building., on the other hand. it is on the licence-fee for plying a particular trade. It is not possible to blink at this vital distinction between Ajoy Kumar (supra) and the present case. Maybe that the Madurai Municipality is perfectly within its competence in imposing a property tax at any particular rate it chooses. The user of the land or building as a restaurant or hotel being the link as explained above, the fact that there is a tax on all property within the municipality does not mean that this local body cannot levy an additional tax or surcharge on the land or building if put to a particular specialist use. We see no impediment in the municipal authority taxing hotels at a certain rate exercising its power to impose property tax provided there are no other legal impediements in the way. We are not pursuing the existence or otherwise of other impediments because that does not fall for our consideration in this case.11. Shri A.. K. Sen is right is his submission that unlike in the Assam Act considered in Ajoy Kumar (supra) in the present case we do not even find the expression tax used.12. The Municipal resolution might have been saved had we been able to spell out a taxing power on property from s.321 (2) of the Act. For, there is no gainsaying the states right to tax land and buildings an d the nexus between the tax and the power may be land use. Since A running a restaurant or cinema house is clearly a use of building, a tax thereon, based on such user, is constitutionally impeccable. Such is not the case here.Thus the plea that s. 321 (2) lends itself to being regarded as a tax, indifferently described as fee, breaks down for two reasons. When the Legislature has carefully provided in s.78 (3) for previous invitation and consideration of objections to enhancement of tax levies, resort to the device of tax disguised as fee, under s.321 (2), may not require any such procedural fairness and discipline and thus will frustrate the processual protection written into the law in regard to fiscal measures. Secondly, Schedule V, with which s.321 is directly linked, sets out a host of petty and lucrative ventures all of which, theoretically, cannot be carried on except on land or buildings. Can it be that some flimsy or casual connection with terra firma will furnish the legal nexus between the tax imposed and the land on which the work is done ? For example, washing soiled clothes is an item in Schedule V. It is straining judicial credulity to snapping point to say that such trivial user justifies a tax on the land when washing is done. Running a hotel or market or permanent circus or theatre may stand on a different footing. The commonsense of the common man is the best legal consultant in many cases and eschewal of hyper-technical and over-sophisticated legal niceties helps the vision. We cannot list out what, in law, will serve as a nexus between land and tax thereon but, in a given case like in a hotel business, land-use may easily be discerned. The snag is that in the present appeals the levy is not on land but on the licence for business and bearing in mind the identity of the legal concept, we reject the contention that the impugned resolution was an innocent tax on proper ty. The case falls between two stools. It is not a fee ex concessionis it is not a tax ex facie. We further repel the request to read licence-fee in s. 321 (2) as land tax into every item of activity set out in Schedule V, from washing soiled clothes on a broad stone to using a central place as a posh restaurant.The cumulative result of the multiple submissions we have been addressed is that the impugned resolution is invalid. We do not bar the door for the Municipality or the State to pursue other ways to tax hotel-keepers, acting according to law and under the power to tax in Entry 49, List II, of the Seventh Schedule, while dismissing the Appeals13. The legal controversy in this case is stricken with more than marginal obscurity and indeed, has exercised our minds on the diverse aspects of law considerably. Moreover, the battle is between a local authority which is in need of financial resources to fulfill its functions and a host of hoteliers who flourish in private business. Bearing in mind the conspectus of circumstances, we regard this case as one where the proper order will be that parties do bear their own costs throughout. | 0[ds]7. It is this provision of the Calcutta Act (s. 548) which fell for construction before this Court in Liberty Cinema (supra). While one may discern a broad scheme in that Act, there is some wobbling in the sense that a power to tax is oddly placed in a Chapter primarily concerned with licences and permissions. The Madras Act, on the other hand, speaks with more precision and relegates licences and licence fees to a Part different from Taxation and Finance. The procedure for each is also delineated separately. For these reasons we refuse to aceede to the contention that fee in s. 321 (2) is awe do not rest our conclusion solely on the location of s. 321 in a different Part from Taxation, while we recognise it as an indicator, among a variety of considerations of course, when drafting precision is absent, judicial caution has to befollowing the line of thinking presented by Shri Chellaswamy, based on Ajoy Kumar (supra) we find difficulty in applying its ratio to s. 321 (2). There the tax was on land and the expression thereon underscores this idea. Once the tax is on land, the link between the tax and thelike running a market or hotel based on the let ting value is good, but in the p resent case there is nothing to indicate that it is a tax at all. Secondly, the phraseology does not suggest that it is a tax on the land or the building., on the other hand. it is on thefor plying a particular trade. It is not possible to blink at this vital distinction between Ajoy Kumar (supra) and the present case. Maybe that the Madurai Municipality is perfectly within its competence in imposing a property tax at any particular rate it chooses. The user of the land or building as a restaurant or hotel being the link as explained above, the fact that there is a tax on all property within the municipality does not mean that this local body cannot levy an additional tax or surcharge on the land or building if put to a particular specialist use. We see no impediment in the municipal authority taxing hotels at a certain rate exercising its power to impose property tax provided there are no other legal impediements in the way. We are not pursuing the existence or otherwise of other impediments because that does not fall for our consideration in this case.11. Shri A.. K. Sen is right is his submission that unlike in the Assam Act considered in Ajoy Kumar (supra) in the present case we do not even find the expression tax used.The Municipal resolution might have been saved had we been able to spell out a taxing power on property from s.321 (2) of the Act. For, there is no gainsaying the states right to tax land and buildings an d the nexus between the tax and the power may be land use. Since A running a restaurant or cinema house is clearly a use of building, a tax thereon, based on such user, is constitutionally impeccable. Such is not the case here.Thus the plea that s. 321 (2) lends itself to being regarded as a tax, indifferently described as fee, breaks down for two reasons. When the Legislature has carefully provided in s.78 (3) for previous invitation and consideration of objections to enhancement of tax levies, resort to the device of tax disguised as fee, under s.321 (2), may not require any such procedural fairness and discipline and thus will frustrate the processual protection written into the law in regard to fiscal measures. Secondly, Schedule V, with which s.321 is directly linked, sets out a host of petty and lucrative ventures all of which, theoretically, cannot be carried on except on land or buildings. Can it be that some flimsy or casual connection with terra firma will furnish the legal nexus between the tax imposed and the land on which the work is done ? For example, washing soiled clothes is an item in Schedule V. It is straining judicial credulity to snapping point to say that such trivial user justifies a tax on the land when washing is done. Running a hotel or market or permanent circus or theatre may stand on a different footing. The commonsense of the common man is the best legal consultant in many cases and eschewal ofed legal niceties helps the vision. We cannot list out what, in law, will serve as a nexus between land and tax thereon but, in a given case like in a hotel business,may easily be discerned. The snag is that in the present appeals the levy is not on land but on the licence for business and bearing in mind the identity of the legal concept, we reject the contention that the impugned resolution was an innocent tax on proper ty. The case falls between two stools. It is not a fee ex concessionis it is not a tax ex facie. We further repel the request to readin s. 321 (2) as land tax into every item of activity set out in Schedule V, from washing soiled clothes on a broad stone to using a central place as a posh restaurant.The cumulative result of the multiple submissions we have been addressed is that the impugned resolution is invalid. We do not bar the door for the Municipality or the State to pursue other ways to taxacting according to law and under the power to tax in Entry 49, List II, of the Seventh Schedule, while dismissing the Appeals13. The legal controversy in this case is stricken with more than marginal obscurity and indeed, has exercised our minds on the diverse aspects of law considerably. Moreover, the battle is between a local authority which is in need of financial resources to fulfill its functions and a host of hoteliers who flourish in private business. Bearing in mind the conspectus of circumstances, we regard this case as one where the proper order will be that parties do bear their own coststhis contention, this Court held that the use to which the land was put furnished sufficient nexus for the Legislature to impose a tax on land. In that connection, the following observations lay down theed that the entries in the three legislative lists have to be interpreted in their widest amplitude and there fore if a tax can reasonably be held to be a tax on land it will come within entry 49. Further it is equallythat tax on land may be based on the annual value of the land and would still be a tax on land and would not be beyond the com petence of the State legislature on the ground that it is a tax on income: (See Ralla Ram v. The province of East Punjab: (1948 FCR 207). It follows therefore that the use to which the land is put can be taken into account in imposing a tax on it within the meaning of entry 49 of List II, for the annual value of land which can certainly be taken into account in imposing a tax for the purpose of this entry would necessarily depend upon the use to which the land is put." (p. 49). | 0 | 4,286 | 1,332 | ### Instruction:
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shall be used as a market. Such resolution clearly affects land within the jurisdiction of the board and on the passing of such a resolution the board gets the further power to issue licences for holding of markets on lands within its jurisdiction by a resolution and also the power to impose an annual tax thereon." (p.49) x x ".x x x x x"..s. 62(2) which used the words impose an annual tax thereon, clearly shows that the word thereon refers to any land for which a licence is issued for used as a market and not to the word market. Thus the tax in the present case being on land would clearly be within the competence of the state legislature." (p.5l)Generously following the line of thinking presented by Shri Chellaswamy, based on Ajoy Kumar (supra) we find difficulty in applying its ratio to s. 321 (2). There the tax was on land and the expression thereon underscores this idea. Once the tax is on land, the link between the tax and the land-user like running a market or hotel based on the let ting value is good, but in the p resent case there is nothing to indicate that it is a tax at all. Secondly, the phraseology does not suggest that it is a tax on the land or the building., on the other hand. it is on the licence-fee for plying a particular trade. It is not possible to blink at this vital distinction between Ajoy Kumar (supra) and the present case. Maybe that the Madurai Municipality is perfectly within its competence in imposing a property tax at any particular rate it chooses. The user of the land or building as a restaurant or hotel being the link as explained above, the fact that there is a tax on all property within the municipality does not mean that this local body cannot levy an additional tax or surcharge on the land or building if put to a particular specialist use. We see no impediment in the municipal authority taxing hotels at a certain rate exercising its power to impose property tax provided there are no other legal impediements in the way. We are not pursuing the existence or otherwise of other impediments because that does not fall for our consideration in this case.11. Shri A.. K. Sen is right is his submission that unlike in the Assam Act considered in Ajoy Kumar (supra) in the present case we do not even find the expression tax used.12. The Municipal resolution might have been saved had we been able to spell out a taxing power on property from s.321 (2) of the Act. For, there is no gainsaying the states right to tax land and buildings an d the nexus between the tax and the power may be land use. Since A running a restaurant or cinema house is clearly a use of building, a tax thereon, based on such user, is constitutionally impeccable. Such is not the case here.Thus the plea that s. 321 (2) lends itself to being regarded as a tax, indifferently described as fee, breaks down for two reasons. When the Legislature has carefully provided in s.78 (3) for previous invitation and consideration of objections to enhancement of tax levies, resort to the device of tax disguised as fee, under s.321 (2), may not require any such procedural fairness and discipline and thus will frustrate the processual protection written into the law in regard to fiscal measures. Secondly, Schedule V, with which s.321 is directly linked, sets out a host of petty and lucrative ventures all of which, theoretically, cannot be carried on except on land or buildings. Can it be that some flimsy or casual connection with terra firma will furnish the legal nexus between the tax imposed and the land on which the work is done ? For example, washing soiled clothes is an item in Schedule V. It is straining judicial credulity to snapping point to say that such trivial user justifies a tax on the land when washing is done. Running a hotel or market or permanent circus or theatre may stand on a different footing. The commonsense of the common man is the best legal consultant in many cases and eschewal of hyper-technical and over-sophisticated legal niceties helps the vision. We cannot list out what, in law, will serve as a nexus between land and tax thereon but, in a given case like in a hotel business, land-use may easily be discerned. The snag is that in the present appeals the levy is not on land but on the licence for business and bearing in mind the identity of the legal concept, we reject the contention that the impugned resolution was an innocent tax on proper ty. The case falls between two stools. It is not a fee ex concessionis it is not a tax ex facie. We further repel the request to read licence-fee in s. 321 (2) as land tax into every item of activity set out in Schedule V, from washing soiled clothes on a broad stone to using a central place as a posh restaurant.The cumulative result of the multiple submissions we have been addressed is that the impugned resolution is invalid. We do not bar the door for the Municipality or the State to pursue other ways to tax hotel-keepers, acting according to law and under the power to tax in Entry 49, List II, of the Seventh Schedule, while dismissing the Appeals13. The legal controversy in this case is stricken with more than marginal obscurity and indeed, has exercised our minds on the diverse aspects of law considerably. Moreover, the battle is between a local authority which is in need of financial resources to fulfill its functions and a host of hoteliers who flourish in private business. Bearing in mind the conspectus of circumstances, we regard this case as one where the proper order will be that parties do bear their own costs throughout.
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good, but in the p resent case there is nothing to indicate that it is a tax at all. Secondly, the phraseology does not suggest that it is a tax on the land or the building., on the other hand. it is on thefor plying a particular trade. It is not possible to blink at this vital distinction between Ajoy Kumar (supra) and the present case. Maybe that the Madurai Municipality is perfectly within its competence in imposing a property tax at any particular rate it chooses. The user of the land or building as a restaurant or hotel being the link as explained above, the fact that there is a tax on all property within the municipality does not mean that this local body cannot levy an additional tax or surcharge on the land or building if put to a particular specialist use. We see no impediment in the municipal authority taxing hotels at a certain rate exercising its power to impose property tax provided there are no other legal impediements in the way. We are not pursuing the existence or otherwise of other impediments because that does not fall for our consideration in this case.11. Shri A.. K. Sen is right is his submission that unlike in the Assam Act considered in Ajoy Kumar (supra) in the present case we do not even find the expression tax used.The Municipal resolution might have been saved had we been able to spell out a taxing power on property from s.321 (2) of the Act. For, there is no gainsaying the states right to tax land and buildings an d the nexus between the tax and the power may be land use. Since A running a restaurant or cinema house is clearly a use of building, a tax thereon, based on such user, is constitutionally impeccable. Such is not the case here.Thus the plea that s. 321 (2) lends itself to being regarded as a tax, indifferently described as fee, breaks down for two reasons. When the Legislature has carefully provided in s.78 (3) for previous invitation and consideration of objections to enhancement of tax levies, resort to the device of tax disguised as fee, under s.321 (2), may not require any such procedural fairness and discipline and thus will frustrate the processual protection written into the law in regard to fiscal measures. Secondly, Schedule V, with which s.321 is directly linked, sets out a host of petty and lucrative ventures all of which, theoretically, cannot be carried on except on land or buildings. Can it be that some flimsy or casual connection with terra firma will furnish the legal nexus between the tax imposed and the land on which the work is done ? For example, washing soiled clothes is an item in Schedule V. It is straining judicial credulity to snapping point to say that such trivial user justifies a tax on the land when washing is done. Running a hotel or market or permanent circus or theatre may stand on a different footing. The commonsense of the common man is the best legal consultant in many cases and eschewal ofed legal niceties helps the vision. We cannot list out what, in law, will serve as a nexus between land and tax thereon but, in a given case like in a hotel business,may easily be discerned. The snag is that in the present appeals the levy is not on land but on the licence for business and bearing in mind the identity of the legal concept, we reject the contention that the impugned resolution was an innocent tax on proper ty. The case falls between two stools. It is not a fee ex concessionis it is not a tax ex facie. We further repel the request to readin s. 321 (2) as land tax into every item of activity set out in Schedule V, from washing soiled clothes on a broad stone to using a central place as a posh restaurant.The cumulative result of the multiple submissions we have been addressed is that the impugned resolution is invalid. We do not bar the door for the Municipality or the State to pursue other ways to taxacting according to law and under the power to tax in Entry 49, List II, of the Seventh Schedule, while dismissing the Appeals13. The legal controversy in this case is stricken with more than marginal obscurity and indeed, has exercised our minds on the diverse aspects of law considerably. Moreover, the battle is between a local authority which is in need of financial resources to fulfill its functions and a host of hoteliers who flourish in private business. Bearing in mind the conspectus of circumstances, we regard this case as one where the proper order will be that parties do bear their own coststhis contention, this Court held that the use to which the land was put furnished sufficient nexus for the Legislature to impose a tax on land. In that connection, the following observations lay down theed that the entries in the three legislative lists have to be interpreted in their widest amplitude and there fore if a tax can reasonably be held to be a tax on land it will come within entry 49. Further it is equallythat tax on land may be based on the annual value of the land and would still be a tax on land and would not be beyond the com petence of the State legislature on the ground that it is a tax on income: (See Ralla Ram v. The province of East Punjab: (1948 FCR 207). It follows therefore that the use to which the land is put can be taken into account in imposing a tax on it within the meaning of entry 49 of List II, for the annual value of land which can certainly be taken into account in imposing a tax for the purpose of this entry would necessarily depend upon the use to which the land is put." (p. 49).
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Shri Beli Ram Vs. Shri Nand Kumar and Others | do not think we can accept this evidence as true. In the first place, Amrita Sharma was the niece of the appellant and was, therefore, interested in supporting him. Secondly, the counterfoil of the ballot paper issued in the name of Amrita Sharma bore a thumb imprecision and not a signature and it is difficult to believe that Amrita Sharma who had passed her Middle Standard Examination and was undergoing training in Punch Training School should have affixed her thumb imprecision instead of her signature on the counterfoil of the ballot paper. Thirdly, according to Amrita Sharma, she was accompanied by her sister-in-law Ram Piari and both of them cast their votes, but the counterfoil of the ballot paper issued in the name of Ram Piari clearly showed that it was not Ram Piari who cast her vote but some one else in her name because the thumb impression on the counterfoil did not tally with the specimen thumb impression of Ram Piari. Moreover, Om Prakash PW 7 clearly stated that Amrita Sharma did not cast her vote as she was at Punch Training School. The vote cast in the name of Amrita Sharma was, therefore, clearly a spurious vote. The vote cast in the name of Bhagat Ram was also challenged on behalf of the first respondent as spurious but we do not think the evidence on record is sufficient to sustain this challenge. Bhagat Ram stated in his evidence as RW 18 that he cast his vote at Kalideh Polling Station and apart from the negative evidence of Om Prakash PW 7, there is nothing to doubt the veracity of his statement. There was a thumb impression on the counterfoil of the ballot paper issued in the name of Bhagat Ram and it would have been quite easy for the first respondent to take a spaceman thumb impression of Bhagat Ram RW 18 and compare it with the thumb impression on the counterfoil of the ballot paper, but this was not done by the first respondent and, therefore, without anything more, we cannot conclude that the vote cast in his name was a spurious vote. Bidhi Chand also deposed in the course of the evidence given by him as RW 16 that he cast his vote at Brevi Polling Station. The only ground on which this statement of Bidhi Chand was sought to be challenged on behalf of the first respondent was that the counterfoil of the ballot paper issued in his name bore a thumb impression and it was highly unlikely that an educated person like him who had passed his Intermediate Examination would place his thumb impression instead of his signature on the counterfoil of the ballot paper. But the foundation for this challenge was not laid in the cross-examination of Bidhi Chand and he was not asked as to why he placed his thumb impression instead of a signature on the counterfoil of the ballot paper nor was his specimen thumb impression taken for the purpose of comparing it with the thumb impression on the counterfoil of the ballot paper. It is, therefore, not possible to accept the contention of the first respondent that the vote cast in the name of Bidhi Chand was a spurious vote. The result of this discussion is that in addition to the four spurious votes cast in the names of Ram Piari, Padam Nath, Kishorilal and Vishwanath, one more spurious vote must be held to have been cast in the name of Amrita Sharma and hence five spurious votes must be excluded in counting the total votes polled in favour of the appellant.20. That takes us to be last ground of challenge urged on behalf of the first respondent and that ground of challenge was that the application for recount made by the first respondent to the Returning Officer on March 12, 1973, receipt of which was acknowledged by the Returning Officer under Ex. PW 43/3, was wrongly rejected by the Returning Officer and a recount ought to have been made by him. The contention of the first respondent was that if a recount had been made, it would have been clearly ascertained that he had secured higher number of votes than the appellant. Considerable argument was advanced before us in regard to this contention, but we do not think it necessary to deal with the same, since we find that the High Court had adequately dealt with this contention and rightly held that the Returning Officer was justified in rejecting the application made by the first respondent for recount of votes. We agree with the reasoning which prevailed with the High Court in reaching this conclusion. We are also of the view that the High Court was right in not acceding to the application of the first respondent for recount of votes in court. The first respondent did not make out any case for recount of votes and the High Court was justified in turning down his request in that behalf.21. These were the only arguments advanced on behalf of the parties. We find as a result of the aforesaid discussion that, at the highest, only the following votes counted in favour of the appellant : eleven votes in respect of Hidayatpur voters, nine votes cast in the names of Dhanraj, Shakuntala, Lekhraj, Leela Sharma and Vishwanath and five votes cast in the names of Ram Piari, Padam Nath, Kishorilal, Vishwanath and Amrita Sharma. This means that the total number of votes counted in favour of the appellant would be liable to be reduced by not more than 25 votes. But the difference between the votes polled by the appellant and the first respondent, as found by the Returning Officer, was 51 and therefore, even if the difference were reduced by 25 votes, the result of the election would not be affected since the appellant would still have secured the highest number of votes. The election of the appellant cannot, in the circumstances, be set aside as invalid. | 1[ds]The contention of the first respondent was that if a recount had been made, it would have been clearly ascertained that he had secured higher number of votes than the appellant. Considerable argument was advanced before us in regard to this contention, but we do not think it necessary to deal with the same, since we find that the High Court had adequately dealt with this contention and rightly held that the Returning Officer was justified in rejecting the application made by the first respondent for recount of votes. We agree with the reasoning which prevailed with the High Court in reaching this conclusion. We are also of the view that the High Court was right in not acceding to the application of the first respondent for recount of votes in court. The first respondent did not make out any case for recount of votes and the High Court was justified in turning down his request in that behalf.21. These were the only arguments advanced on behalf of the parties. We find as a result of the aforesaid discussion that, at the highest, only the following votes counted in favour of the appellant : eleven votes in respect of Hidayatpur voters, nine votes cast in the names of Dhanraj, Shakuntala, Lekhraj, Leela Sharma and Vishwanath and five votes cast in the names of Ram Piari, Padam Nath, Kishorilal, Vishwanath and Amrita Sharma. This means that the total number of votes counted in favour of the appellant would be liable to be reduced by not more than 25 votes. But the difference between the votes polled by the appellant and the first respondent, as found by the Returning Officer, was 51 and therefore, even if the difference were reduced by 25 votes, the result of the election would not be affected since the appellant would still have secured the highest number of votes. The election of the appellant cannot, in the circumstances, be set aside as invalid.We also agree with the High Court that the allegations made by the first respondent against Ishardas Gupta, the Returning Officer, in regard to the tying up of the used ballot papers into packets and sealing them and refusing permission to the first respondent and his election agent to affix his own seal are not substantiated. The discussion of these allegations by the High Court is adequate and satisfactory and the High Court has given clear and cogent reasons for rejecting the evidence led on behalf of the first respondent on this point. We see no reason to interfere with the conclusion reached by the High Court.These were the only arguments advanced on behalf of the parties. We find as a result of the aforesaid discussion that, at the highest, only the following votes counted in favour of the appellant : eleven votes in respect of Hidayatpur voters, nine votes cast in the names of Dhanraj, Shakuntala, Lekhraj, Leela Sharma and Vishwanath and five votes cast in the names of Ram Piari, Padam Nath, Kishorilal, Vishwanath and Amrita Sharma. This means that the total number of votes counted in favour of the appellant would be liable to be reduced by not more than 25 votes. But the difference between the votes polled by the appellant and the first respondent, as found by the Returning Officer, was 51 and therefore, even if the difference were reduced by 25 votes, the result of the election would not be affected since the appellant would still have secured the highest number of votes. The election of the appellant cannot, in the circumstances, be set aside as invalid.That takes us to be last ground of challenge urged on behalf of the first respondent and that ground of challenge was that the application for recount made by the first respondent to the Returning Officer on March 12, 1973, receipt of which was acknowledged by the Returning Officer under Ex. PW 43/3, was wrongly rejected by the Returning Officer and a recount ought to have been made by him.The contention of the first respondent was that if a recount had been made, it would have been clearly ascertained that he had secured higher number of votes than the appellant. Considerable argument was advanced before us in regard to this contention, but we do not think it necessary to deal with the same, since we find that the High Court had adequately dealt with this contention and rightly held that the Returning Officer was justified in rejecting the application made by the first respondent for recount of votes. We agree with the reasoning which prevailed with the High Court in reaching this conclusion. We are also of the view that the High Court was right in not acceding to the application of the first respondent for recount of votes in court. The first respondent did not make out any case for recount of votes and the High Court was justified in turning down his request in that behalf.The net result of this discussion in regard to the issue of double voting, therefore, is that an aggregate of nine votes were liable to be rejected as invalid and they must be left out of consideration in counting the total votes polled in favour of the appellant. | 1 | 8,877 | 942 | ### Instruction:
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do not think we can accept this evidence as true. In the first place, Amrita Sharma was the niece of the appellant and was, therefore, interested in supporting him. Secondly, the counterfoil of the ballot paper issued in the name of Amrita Sharma bore a thumb imprecision and not a signature and it is difficult to believe that Amrita Sharma who had passed her Middle Standard Examination and was undergoing training in Punch Training School should have affixed her thumb imprecision instead of her signature on the counterfoil of the ballot paper. Thirdly, according to Amrita Sharma, she was accompanied by her sister-in-law Ram Piari and both of them cast their votes, but the counterfoil of the ballot paper issued in the name of Ram Piari clearly showed that it was not Ram Piari who cast her vote but some one else in her name because the thumb impression on the counterfoil did not tally with the specimen thumb impression of Ram Piari. Moreover, Om Prakash PW 7 clearly stated that Amrita Sharma did not cast her vote as she was at Punch Training School. The vote cast in the name of Amrita Sharma was, therefore, clearly a spurious vote. The vote cast in the name of Bhagat Ram was also challenged on behalf of the first respondent as spurious but we do not think the evidence on record is sufficient to sustain this challenge. Bhagat Ram stated in his evidence as RW 18 that he cast his vote at Kalideh Polling Station and apart from the negative evidence of Om Prakash PW 7, there is nothing to doubt the veracity of his statement. There was a thumb impression on the counterfoil of the ballot paper issued in the name of Bhagat Ram and it would have been quite easy for the first respondent to take a spaceman thumb impression of Bhagat Ram RW 18 and compare it with the thumb impression on the counterfoil of the ballot paper, but this was not done by the first respondent and, therefore, without anything more, we cannot conclude that the vote cast in his name was a spurious vote. Bidhi Chand also deposed in the course of the evidence given by him as RW 16 that he cast his vote at Brevi Polling Station. The only ground on which this statement of Bidhi Chand was sought to be challenged on behalf of the first respondent was that the counterfoil of the ballot paper issued in his name bore a thumb impression and it was highly unlikely that an educated person like him who had passed his Intermediate Examination would place his thumb impression instead of his signature on the counterfoil of the ballot paper. But the foundation for this challenge was not laid in the cross-examination of Bidhi Chand and he was not asked as to why he placed his thumb impression instead of a signature on the counterfoil of the ballot paper nor was his specimen thumb impression taken for the purpose of comparing it with the thumb impression on the counterfoil of the ballot paper. It is, therefore, not possible to accept the contention of the first respondent that the vote cast in the name of Bidhi Chand was a spurious vote. The result of this discussion is that in addition to the four spurious votes cast in the names of Ram Piari, Padam Nath, Kishorilal and Vishwanath, one more spurious vote must be held to have been cast in the name of Amrita Sharma and hence five spurious votes must be excluded in counting the total votes polled in favour of the appellant.20. That takes us to be last ground of challenge urged on behalf of the first respondent and that ground of challenge was that the application for recount made by the first respondent to the Returning Officer on March 12, 1973, receipt of which was acknowledged by the Returning Officer under Ex. PW 43/3, was wrongly rejected by the Returning Officer and a recount ought to have been made by him. The contention of the first respondent was that if a recount had been made, it would have been clearly ascertained that he had secured higher number of votes than the appellant. Considerable argument was advanced before us in regard to this contention, but we do not think it necessary to deal with the same, since we find that the High Court had adequately dealt with this contention and rightly held that the Returning Officer was justified in rejecting the application made by the first respondent for recount of votes. We agree with the reasoning which prevailed with the High Court in reaching this conclusion. We are also of the view that the High Court was right in not acceding to the application of the first respondent for recount of votes in court. The first respondent did not make out any case for recount of votes and the High Court was justified in turning down his request in that behalf.21. These were the only arguments advanced on behalf of the parties. We find as a result of the aforesaid discussion that, at the highest, only the following votes counted in favour of the appellant : eleven votes in respect of Hidayatpur voters, nine votes cast in the names of Dhanraj, Shakuntala, Lekhraj, Leela Sharma and Vishwanath and five votes cast in the names of Ram Piari, Padam Nath, Kishorilal, Vishwanath and Amrita Sharma. This means that the total number of votes counted in favour of the appellant would be liable to be reduced by not more than 25 votes. But the difference between the votes polled by the appellant and the first respondent, as found by the Returning Officer, was 51 and therefore, even if the difference were reduced by 25 votes, the result of the election would not be affected since the appellant would still have secured the highest number of votes. The election of the appellant cannot, in the circumstances, be set aside as invalid.
### Response:
1
### Explanation:
The contention of the first respondent was that if a recount had been made, it would have been clearly ascertained that he had secured higher number of votes than the appellant. Considerable argument was advanced before us in regard to this contention, but we do not think it necessary to deal with the same, since we find that the High Court had adequately dealt with this contention and rightly held that the Returning Officer was justified in rejecting the application made by the first respondent for recount of votes. We agree with the reasoning which prevailed with the High Court in reaching this conclusion. We are also of the view that the High Court was right in not acceding to the application of the first respondent for recount of votes in court. The first respondent did not make out any case for recount of votes and the High Court was justified in turning down his request in that behalf.21. These were the only arguments advanced on behalf of the parties. We find as a result of the aforesaid discussion that, at the highest, only the following votes counted in favour of the appellant : eleven votes in respect of Hidayatpur voters, nine votes cast in the names of Dhanraj, Shakuntala, Lekhraj, Leela Sharma and Vishwanath and five votes cast in the names of Ram Piari, Padam Nath, Kishorilal, Vishwanath and Amrita Sharma. This means that the total number of votes counted in favour of the appellant would be liable to be reduced by not more than 25 votes. But the difference between the votes polled by the appellant and the first respondent, as found by the Returning Officer, was 51 and therefore, even if the difference were reduced by 25 votes, the result of the election would not be affected since the appellant would still have secured the highest number of votes. The election of the appellant cannot, in the circumstances, be set aside as invalid.We also agree with the High Court that the allegations made by the first respondent against Ishardas Gupta, the Returning Officer, in regard to the tying up of the used ballot papers into packets and sealing them and refusing permission to the first respondent and his election agent to affix his own seal are not substantiated. The discussion of these allegations by the High Court is adequate and satisfactory and the High Court has given clear and cogent reasons for rejecting the evidence led on behalf of the first respondent on this point. We see no reason to interfere with the conclusion reached by the High Court.These were the only arguments advanced on behalf of the parties. We find as a result of the aforesaid discussion that, at the highest, only the following votes counted in favour of the appellant : eleven votes in respect of Hidayatpur voters, nine votes cast in the names of Dhanraj, Shakuntala, Lekhraj, Leela Sharma and Vishwanath and five votes cast in the names of Ram Piari, Padam Nath, Kishorilal, Vishwanath and Amrita Sharma. This means that the total number of votes counted in favour of the appellant would be liable to be reduced by not more than 25 votes. But the difference between the votes polled by the appellant and the first respondent, as found by the Returning Officer, was 51 and therefore, even if the difference were reduced by 25 votes, the result of the election would not be affected since the appellant would still have secured the highest number of votes. The election of the appellant cannot, in the circumstances, be set aside as invalid.That takes us to be last ground of challenge urged on behalf of the first respondent and that ground of challenge was that the application for recount made by the first respondent to the Returning Officer on March 12, 1973, receipt of which was acknowledged by the Returning Officer under Ex. PW 43/3, was wrongly rejected by the Returning Officer and a recount ought to have been made by him.The contention of the first respondent was that if a recount had been made, it would have been clearly ascertained that he had secured higher number of votes than the appellant. Considerable argument was advanced before us in regard to this contention, but we do not think it necessary to deal with the same, since we find that the High Court had adequately dealt with this contention and rightly held that the Returning Officer was justified in rejecting the application made by the first respondent for recount of votes. We agree with the reasoning which prevailed with the High Court in reaching this conclusion. We are also of the view that the High Court was right in not acceding to the application of the first respondent for recount of votes in court. The first respondent did not make out any case for recount of votes and the High Court was justified in turning down his request in that behalf.The net result of this discussion in regard to the issue of double voting, therefore, is that an aggregate of nine votes were liable to be rejected as invalid and they must be left out of consideration in counting the total votes polled in favour of the appellant.
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Nawabganj Sugar Mills Company Limited & Others Vs. Commissioner of Income Tax, Delhi & Rajasthan | but to see whether there was evidence to support the findings recorded by the Tribunal and whether the finding could on that evidence be reasonably reached.19. We have already referred to the resolution dated July 26, 1944. The first criticism of MR. V. S. Desai is that the evidence of sub-agents appointed by the selling agent has not been considered by the Appellate Tribunal. The two witnesses in this regard are Ram Sahai Dhir and Shiv Nand Verma. The contention of Mr. V. S. Desai that the evidence of Ram Sahai Dhir that the evidence of Ram Sahai Dhir has not been considered, as such by the Appellate Tribunal, is only technically correct because it is seen from the order of the Appellate Tribunal that it has referred to the relationship between the appellants and a company known as M/s. Ramdev and Company. Ram Sahai Dhir in his evidence has clearly stated that he is the sole proprietor of M/s. Ramdev and Company. He has further stated that after he got the sub agency from M/s. Gokul Nagar Sugar Mills Co. Ltd. he along with his brother and son formed a partnership for this purpose in the name of M/s. Ramdev and Company. The Appellate Tribunal in paragraph 7 of its order has considered a telegram sent on September 1, 1948 to M/s. Ramdev and Company by the Chairman of Nawabganj Sugar Mills Co. Ltd. That telegram states that the agency of M/s. Gursarandas Kapur and sons has been terminated and M/s. Ramdev and Company is asked to sell and freely secure challans. Ram Sahai Dhir in his evidence has stated that M/s. Gursarandas Kapur and Sons were the selling agent of the appellants originally and that he started his own sugar business in or about 1947, Therefore, the telegram, as held by the Appellate Tribunal clearly shows that the appellants were having direct dealings with Ramdev and Company and that M/s. Gokul Nagar Sugar Mills Co. Ltd., is nowhere in the picture. This telegram also shows that the privity of contract between the appellants and Ramdev and Company will not be there if Ramdev and Company were the sub-agents appointed by M/s. Gokul Nagar Sugar Mills Company Ltd. Therefore, it is clear that the relationship between the appellants and M/s. Ramdev and Sons of which Sri Ram Sahai Dhir is the sole proprietor has been considered by the Appellate Tribunal.20. Regarding Shiv Nand Verma, his evidence has only to be read to be rejected. Even according to the appellants M/s. Gokul Nagar Sugar Mills Company Ltd. was appointed as Selling Agent only by the resolution dated July 26, 1944. Apart from the very contradictory answers given by this witness, he has categorically stated in answer to a specific question put by the appellants that he was appointed even in 1942 as sub-agent by M/s. Gokul Nagar Sugar Mills Company Ltd., on a commission of -0-4-0%. This evidence is absolutely false and of no use to support the case of the appellants because in 1942 M/s. Gokul Nagar Sugar Mills Company Ltd. was not in the picture. The evidence of this witness does not establish that M/s. Gokul Nagar Sugar Company Ltd. had appointed him as their sub-agents and were paying him commission, in their capacity as the selling agent of the appellants. The Appellate Tribunal has referred to the evidence of Shiv Nand Verma given before the income-tax Officer and it has also noted that reasons for not acting on that evidence. Therefore, it is not as if that the Appellate Tribunal was not conscious of this evidence on record which is absolutely valueless so far as the appellants are concerned.21. Regarding the receipts Nos. 948 dated 24-4-1946 and 298 dated February 13, 1947, it is no doubt true that they have not been specifically adverted to by the Appellate Tribunal, But it is rather surprising that the appellants should be able to produce only these two receipts when they claim that M/s. Gokul Nagar Sugar Mills Company Ltd. has been acting as their selling agent from 1944. Further the persons who are mentioned there as sub-agents have not at all given evidence before the Income-tax authorities. Those receipts lose all significance especially when the evidence of Ram Sahai Dhir and Shiv Nand Verma who claim to have been appointed as sub-agents by the selling agent has been rejected by the Appellate Tribunal, Obviously, in view of the other evidence against the appellants the Appellate Tribunal did not think it worthwhile to specifically refer to these tow receipts on record. But the non-reference to these two receipts cannot be said to have in any manner vitiated the conclusion arrived at by the Appellate Tribunal. As we have stated earlier, we have only referred to these items of evidence on record to show that the finding of the Appellate Tribunal are based on the material on record and that the finding is such which could on that evidence be reasonably reached.22. The statement in the order of the High Court that the Appellate Tribunal has not referred to the evidence of Ram Sahai Dhir as such is prima facie correct. But the High Court missed the crucial fact that his evidence is really as proprietor of M/s. Ramdev and Company and the relationship between this Company and the appellants has been considered by the Appellate Tribunal.23. As laid down by this Court in (1967) 66 ITR 462 (SC) the Income-tax Appellate Tribunal has to act judicially in the sense that it has to consider with due care all material facts and the evidence in favour of and against the assessee and record its finding on all the contentions raised by the assessee and the Commissioner in their light of the evidence and the relevant law. From the discussion contained above it is clear that it cannot be said that the Appellate Tribunal in the case before us has omitted to consider any material fact or any material piece of evidence. | 0[ds]17. We are of the opinion that there is no substance in these appeals. We have gone through the orders of the Income-tax Officer, the Appellate Assistant Commissioner, as well as the income-tax Appellate Tribunal. No doubt, there is a resolution produced by the appellants dated July 26, 1944 in and by which the sugar selling agency of Nawabganj Sugar Mills Co. Ltd. is given to M/s. Gokul Nagar Sugar Mills Co. Ltd. on 0-12-0%. There is no other evidence to show the nature of the arrangement or as to how exactly this resolution is to be carried out.18. A reading of questions Nos. 1 to 3 clearly shows that the points raised therein are purely questions of fact. But as the contention of Mr. V. S. Desai is that certain material facts have not been considered at all by the Tribunal and hence the findings arrived at by it cannot be conclusive, in view of this infirmity, we will refer to the evidence on record not with a view to decide whether the Tribunal has properly appreciated the evidence, but to see whether there was evidence to support the findings recorded by the Tribunal and whether the finding could on that evidence be reasonably reached.19. We have already referred to the resolution dated July 26, 1944. The first criticism of MR. V. S. Desai is that the evidence of sub-agents appointed by the selling agent has not been considered by the Appellate Tribunal. The two witnesses in this regard are Ram Sahai Dhir and Shiv Nand Verma. The contention of Mr. V. S. Desai that the evidence of Ram Sahai Dhir that the evidence of Ram Sahai Dhir has not been considered, as such by the Appellate Tribunal, is only technically correct because it is seen from the order of the Appellate Tribunal that it has referred to the relationship between the appellants and a company known as M/s. Ramdev and Company. Ram Sahai Dhir in his evidence has clearly stated that he is the sole proprietor of M/s. Ramdev and Company. He has further stated that after he got the sub agency from M/s. Gokul Nagar Sugar Mills Co. Ltd. he along with his brother and son formed a partnership for this purpose in the name of M/s. Ramdev and Company. The Appellate Tribunal in paragraph 7 of its order has considered a telegram sent on September 1, 1948 to M/s. Ramdev and Company by the Chairman of Nawabganj Sugar Mills Co. Ltd. That telegram states that the agency of M/s. Gursarandas Kapur and sons has been terminated and M/s. Ramdev and Company is asked to sell and freely secure challans. Ram Sahai Dhir in his evidence has stated that M/s. Gursarandas Kapur and Sons were the selling agent of the appellants originally and that he started his own sugar business in or about 1947, Therefore, the telegram, as held by the Appellate Tribunal clearly shows that the appellants were having direct dealings with Ramdev and Company and that M/s. Gokul Nagar Sugar Mills Co. Ltd., is nowhere in the picture. This telegram also shows that the privity of contract between the appellants and Ramdev and Company will not be there if Ramdev and Company were the sub-agents appointed by M/s. Gokul Nagar Sugar Mills Company Ltd. Therefore, it is clear that the relationship between the appellants and M/s. Ramdev and Sons of which Sri Ram Sahai Dhir is the sole proprietor has been considered by the Appellate Tribunal.20. Regarding Shiv Nand Verma, his evidence has only to be read to be rejected. Even according to the appellants M/s. Gokul Nagar Sugar Mills Company Ltd. was appointed as Selling Agent only by the resolution dated July 26, 1944. Apart from the very contradictory answers given by this witness, he has categorically stated in answer to a specific question put by the appellants that he was appointed even in 1942 as sub-agent by M/s. Gokul Nagar Sugar Mills Company Ltd., on a commission of -0-4-0%. This evidence is absolutely false and of no use to support the case of the appellants because in 1942 M/s. Gokul Nagar Sugar Mills Company Ltd. was not in the picture. The evidence of this witness does not establish that M/s. Gokul Nagar Sugar Company Ltd. had appointed him as their sub-agents and were paying him commission, in their capacity as the selling agent of the appellants. The Appellate Tribunal has referred to the evidence of Shiv Nand Verma given before the income-tax Officer and it has also noted that reasons for not acting on that evidence. Therefore, it is not as if that the Appellate Tribunal was not conscious of this evidence on record which is absolutely valueless so far as the appellants are concerned.21. Regarding the receipts Nos. 948 dated 24-4-1946 and 298 dated February 13, 1947, it is no doubt true that they have not been specifically adverted to by the Appellate Tribunal, But it is rather surprising that the appellants should be able to produce only these two receipts when they claim that M/s. Gokul Nagar Sugar Mills Company Ltd. has been acting as their selling agent from 1944. Further the persons who are mentioned there as sub-agents have not at all given evidence before the Income-tax authorities. Those receipts lose all significance especially when the evidence of Ram Sahai Dhir and Shiv Nand Verma who claim to have been appointed as sub-agents by the selling agent has been rejected by the Appellate Tribunal, Obviously, in view of the other evidence against the appellants the Appellate Tribunal did not think it worthwhile to specifically refer to these tow receipts on record. But the non-reference to these two receipts cannot be said to have in any manner vitiated the conclusion arrived at by the Appellate Tribunal. As we have stated earlier, we have only referred to these items of evidence on record to show that the finding of the Appellate Tribunal are based on the material on record and that the finding is such which could on that evidence be reasonably reached.22. The statement in the order of the High Court that the Appellate Tribunal has not referred to the evidence of Ram Sahai Dhir as such is prima facie correct. But the High Court missed the crucial fact that his evidence is really as proprietor of M/s. Ramdev and Company and the relationship between this Company and the appellants has been considered by the Appellate Tribunal.23. As laid down by this Court in (1967) 66 ITR 462 (SC) the Income-tax Appellate Tribunal has to act judicially in the sense that it has to consider with due care all material facts and the evidence in favour of and against the assessee and record its finding on all the contentions raised by the assessee and the Commissioner in their light of the evidence and the relevant law. From the discussion contained above it is clear that it cannot be said that the Appellate Tribunal in the case before us has omitted to consider any material fact or any material piece of evidence. | 0 | 3,634 | 1,274 | ### 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:
but to see whether there was evidence to support the findings recorded by the Tribunal and whether the finding could on that evidence be reasonably reached.19. We have already referred to the resolution dated July 26, 1944. The first criticism of MR. V. S. Desai is that the evidence of sub-agents appointed by the selling agent has not been considered by the Appellate Tribunal. The two witnesses in this regard are Ram Sahai Dhir and Shiv Nand Verma. The contention of Mr. V. S. Desai that the evidence of Ram Sahai Dhir that the evidence of Ram Sahai Dhir has not been considered, as such by the Appellate Tribunal, is only technically correct because it is seen from the order of the Appellate Tribunal that it has referred to the relationship between the appellants and a company known as M/s. Ramdev and Company. Ram Sahai Dhir in his evidence has clearly stated that he is the sole proprietor of M/s. Ramdev and Company. He has further stated that after he got the sub agency from M/s. Gokul Nagar Sugar Mills Co. Ltd. he along with his brother and son formed a partnership for this purpose in the name of M/s. Ramdev and Company. The Appellate Tribunal in paragraph 7 of its order has considered a telegram sent on September 1, 1948 to M/s. Ramdev and Company by the Chairman of Nawabganj Sugar Mills Co. Ltd. That telegram states that the agency of M/s. Gursarandas Kapur and sons has been terminated and M/s. Ramdev and Company is asked to sell and freely secure challans. Ram Sahai Dhir in his evidence has stated that M/s. Gursarandas Kapur and Sons were the selling agent of the appellants originally and that he started his own sugar business in or about 1947, Therefore, the telegram, as held by the Appellate Tribunal clearly shows that the appellants were having direct dealings with Ramdev and Company and that M/s. Gokul Nagar Sugar Mills Co. Ltd., is nowhere in the picture. This telegram also shows that the privity of contract between the appellants and Ramdev and Company will not be there if Ramdev and Company were the sub-agents appointed by M/s. Gokul Nagar Sugar Mills Company Ltd. Therefore, it is clear that the relationship between the appellants and M/s. Ramdev and Sons of which Sri Ram Sahai Dhir is the sole proprietor has been considered by the Appellate Tribunal.20. Regarding Shiv Nand Verma, his evidence has only to be read to be rejected. Even according to the appellants M/s. Gokul Nagar Sugar Mills Company Ltd. was appointed as Selling Agent only by the resolution dated July 26, 1944. Apart from the very contradictory answers given by this witness, he has categorically stated in answer to a specific question put by the appellants that he was appointed even in 1942 as sub-agent by M/s. Gokul Nagar Sugar Mills Company Ltd., on a commission of -0-4-0%. This evidence is absolutely false and of no use to support the case of the appellants because in 1942 M/s. Gokul Nagar Sugar Mills Company Ltd. was not in the picture. The evidence of this witness does not establish that M/s. Gokul Nagar Sugar Company Ltd. had appointed him as their sub-agents and were paying him commission, in their capacity as the selling agent of the appellants. The Appellate Tribunal has referred to the evidence of Shiv Nand Verma given before the income-tax Officer and it has also noted that reasons for not acting on that evidence. Therefore, it is not as if that the Appellate Tribunal was not conscious of this evidence on record which is absolutely valueless so far as the appellants are concerned.21. Regarding the receipts Nos. 948 dated 24-4-1946 and 298 dated February 13, 1947, it is no doubt true that they have not been specifically adverted to by the Appellate Tribunal, But it is rather surprising that the appellants should be able to produce only these two receipts when they claim that M/s. Gokul Nagar Sugar Mills Company Ltd. has been acting as their selling agent from 1944. Further the persons who are mentioned there as sub-agents have not at all given evidence before the Income-tax authorities. Those receipts lose all significance especially when the evidence of Ram Sahai Dhir and Shiv Nand Verma who claim to have been appointed as sub-agents by the selling agent has been rejected by the Appellate Tribunal, Obviously, in view of the other evidence against the appellants the Appellate Tribunal did not think it worthwhile to specifically refer to these tow receipts on record. But the non-reference to these two receipts cannot be said to have in any manner vitiated the conclusion arrived at by the Appellate Tribunal. As we have stated earlier, we have only referred to these items of evidence on record to show that the finding of the Appellate Tribunal are based on the material on record and that the finding is such which could on that evidence be reasonably reached.22. The statement in the order of the High Court that the Appellate Tribunal has not referred to the evidence of Ram Sahai Dhir as such is prima facie correct. But the High Court missed the crucial fact that his evidence is really as proprietor of M/s. Ramdev and Company and the relationship between this Company and the appellants has been considered by the Appellate Tribunal.23. As laid down by this Court in (1967) 66 ITR 462 (SC) the Income-tax Appellate Tribunal has to act judicially in the sense that it has to consider with due care all material facts and the evidence in favour of and against the assessee and record its finding on all the contentions raised by the assessee and the Commissioner in their light of the evidence and the relevant law. From the discussion contained above it is clear that it cannot be said that the Appellate Tribunal in the case before us has omitted to consider any material fact or any material piece of evidence.
### Response:
0
### Explanation:
but to see whether there was evidence to support the findings recorded by the Tribunal and whether the finding could on that evidence be reasonably reached.19. We have already referred to the resolution dated July 26, 1944. The first criticism of MR. V. S. Desai is that the evidence of sub-agents appointed by the selling agent has not been considered by the Appellate Tribunal. The two witnesses in this regard are Ram Sahai Dhir and Shiv Nand Verma. The contention of Mr. V. S. Desai that the evidence of Ram Sahai Dhir that the evidence of Ram Sahai Dhir has not been considered, as such by the Appellate Tribunal, is only technically correct because it is seen from the order of the Appellate Tribunal that it has referred to the relationship between the appellants and a company known as M/s. Ramdev and Company. Ram Sahai Dhir in his evidence has clearly stated that he is the sole proprietor of M/s. Ramdev and Company. He has further stated that after he got the sub agency from M/s. Gokul Nagar Sugar Mills Co. Ltd. he along with his brother and son formed a partnership for this purpose in the name of M/s. Ramdev and Company. The Appellate Tribunal in paragraph 7 of its order has considered a telegram sent on September 1, 1948 to M/s. Ramdev and Company by the Chairman of Nawabganj Sugar Mills Co. Ltd. That telegram states that the agency of M/s. Gursarandas Kapur and sons has been terminated and M/s. Ramdev and Company is asked to sell and freely secure challans. Ram Sahai Dhir in his evidence has stated that M/s. Gursarandas Kapur and Sons were the selling agent of the appellants originally and that he started his own sugar business in or about 1947, Therefore, the telegram, as held by the Appellate Tribunal clearly shows that the appellants were having direct dealings with Ramdev and Company and that M/s. Gokul Nagar Sugar Mills Co. Ltd., is nowhere in the picture. This telegram also shows that the privity of contract between the appellants and Ramdev and Company will not be there if Ramdev and Company were the sub-agents appointed by M/s. Gokul Nagar Sugar Mills Company Ltd. Therefore, it is clear that the relationship between the appellants and M/s. Ramdev and Sons of which Sri Ram Sahai Dhir is the sole proprietor has been considered by the Appellate Tribunal.20. Regarding Shiv Nand Verma, his evidence has only to be read to be rejected. Even according to the appellants M/s. Gokul Nagar Sugar Mills Company Ltd. was appointed as Selling Agent only by the resolution dated July 26, 1944. Apart from the very contradictory answers given by this witness, he has categorically stated in answer to a specific question put by the appellants that he was appointed even in 1942 as sub-agent by M/s. Gokul Nagar Sugar Mills Company Ltd., on a commission of -0-4-0%. This evidence is absolutely false and of no use to support the case of the appellants because in 1942 M/s. Gokul Nagar Sugar Mills Company Ltd. was not in the picture. The evidence of this witness does not establish that M/s. Gokul Nagar Sugar Company Ltd. had appointed him as their sub-agents and were paying him commission, in their capacity as the selling agent of the appellants. The Appellate Tribunal has referred to the evidence of Shiv Nand Verma given before the income-tax Officer and it has also noted that reasons for not acting on that evidence. Therefore, it is not as if that the Appellate Tribunal was not conscious of this evidence on record which is absolutely valueless so far as the appellants are concerned.21. Regarding the receipts Nos. 948 dated 24-4-1946 and 298 dated February 13, 1947, it is no doubt true that they have not been specifically adverted to by the Appellate Tribunal, But it is rather surprising that the appellants should be able to produce only these two receipts when they claim that M/s. Gokul Nagar Sugar Mills Company Ltd. has been acting as their selling agent from 1944. Further the persons who are mentioned there as sub-agents have not at all given evidence before the Income-tax authorities. Those receipts lose all significance especially when the evidence of Ram Sahai Dhir and Shiv Nand Verma who claim to have been appointed as sub-agents by the selling agent has been rejected by the Appellate Tribunal, Obviously, in view of the other evidence against the appellants the Appellate Tribunal did not think it worthwhile to specifically refer to these tow receipts on record. But the non-reference to these two receipts cannot be said to have in any manner vitiated the conclusion arrived at by the Appellate Tribunal. As we have stated earlier, we have only referred to these items of evidence on record to show that the finding of the Appellate Tribunal are based on the material on record and that the finding is such which could on that evidence be reasonably reached.22. The statement in the order of the High Court that the Appellate Tribunal has not referred to the evidence of Ram Sahai Dhir as such is prima facie correct. But the High Court missed the crucial fact that his evidence is really as proprietor of M/s. Ramdev and Company and the relationship between this Company and the appellants has been considered by the Appellate Tribunal.23. As laid down by this Court in (1967) 66 ITR 462 (SC) the Income-tax Appellate Tribunal has to act judicially in the sense that it has to consider with due care all material facts and the evidence in favour of and against the assessee and record its finding on all the contentions raised by the assessee and the Commissioner in their light of the evidence and the relevant law. From the discussion contained above it is clear that it cannot be said that the Appellate Tribunal in the case before us has omitted to consider any material fact or any material piece of evidence.
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MAHAVIR INSTITUTE OF MEDICAL SCIENCES Vs. UNION OF INDIA | the Petitioner. Thereafter, a compliance verification assessment was conducted on 13.03.2018. The Executive Committee of the Council considered the compliance verification assessment report dated 13.03.2018, the previous assessment report dated 8th & 9th November, 2017 along with photographs, videography as well as the representation dated 14.03.2018 of the Dean of the Petitioner College and noted the following deficiencies: 1. Deficiency of faculty is 22% as detailed in the report. 2. Shortage of Residents was 42.85% as detailed in the report. 3. Patients in PICU: - PICU has three patients. Two patients Swathi and Aravin have admitted with history of Chronic pain abdomen for more than 10 days. Patients with mi nor problems admitted without even as IV line in the ICCU. No coronary ailment patient is admitted in the ICCU. SICU has only routine post operative patients including tubectomy, with no complications. Nursing station not available in the SICU. 4. Wards:- In Surgery ward 2 male and 4 female post operative patients are admitted for more than 10 days with no fresh complaints. Four patients who are admitted as inpatient have no personal belongings nor any attendant with them. They were admitted for complaints like Gastritis, vague abdominal pain and are on oral drugs. Out of 60 patients, 10 patients do not merit as teaching bed patients. Hence, teaching beds are counted as 50. Obstetrics wards has 6 post natal patients. Hence out of 28 patients in Obstetrics & Gynecology ward, only 22 are counted as teaching beds. Last date of delivery is 9.3.2018. Ortho ward out of 21 patients 4 are purely admitted for physiotherapy and one patient is continuing to have native treatment slab for alleged fracture even after 10 days of ad mission. Hence, only 16 patients are taken as teaching beds are taken as teaching beds. Dermatology, psychiatry and TB Chest patients are put together in a single open ward and no separate wards available. 5. There was NIL Normal Delivery on day of assessment as well as on preceding 3 days. 6. Date of Histopathology does not correlate with number of Major & Minor Operations. 7. Request slips for issue of blood are not available prior to 09/03/2018. 8. Casualty: There were only 4 patients at the time of visit. Crash Cart is not maintained. Disaster Trolley is not available. Emergency O.T. attached to Casualty shows last procedure on 02/03/02018 - i.e. 11 days before assessment. 9. Other deficiencies as pointed out in the assessment report. 3. The Executive Committee of the Council decided to recommend to the Government of India to invoke Regulation 8(3)(1)(a) of the Establishment of Medical College Regulations, 1999 and disapprove the application of the Petitioner College for renewal of permission for the third batch of 150 students in MBBS course for the academic year 2018-2019. The decision of the Executive Committee of the Council was approved by the Oversight Committee on 28.03.2018. The Petitioner filed Writ Petition (Civil) No.487 of 2018 which was disposed of on 23.05.2018 directing the Union of India to consider the material to be submitted by the Petitioner before taking a final decision. After considering the contention of the Petitioner that the inspection was not conducted in accordance with the Assessors Guide 2018-2019, the Government of India found no reason to discard the report of the Assessors. By an order dated 31.05.2018, the Government of India accepted the recommendation of the Medical Council of India that the Petitioner was not entitled for renewal of permission for admission to third batch of 150 students in MBBS Course for the academic year 2018-2019. Aggrieved thereby, the above Writ Petition is filed by the Petitioner-College. 4. We have heard Mr. Mukul Rohatgi, learned Senior Counsel for the Petitioner, Ms. Pinky Anand, learned Additional Solicitor General for the Union of India and Mr. Vikas Singh learned Senior Counsel for the MCI. Mr. Rohatgi submitted that the inspection conducted on 13.03.2018 was in violation of the Assessors Guide 2018-2019. According to him, the attendance was taken by one Assessor at 10:20 am which concluded at 11:00 am. The clinical staff could report only at 11:15 am as they were on duty in the O.T., Labour Room, Procedure Room, ICUs, Casualty etc. in the hospital. He also submitted that it was impermissible for the Assessors to give their opinion regarding the genuineness of the inpatients. 5. This Court is not equipped to adjudicate a factual dispute regarding the existence of staff, patients, clinical material and other facilities in a medical college and hospital. Deference has to be shown to findings of an expert body, which has found that the facilities in the Petitioner-College are inadequate. Unless there is a jurisdictional error or ex facie perversity in an inspection report, this Court will not interfere with a decision taken on the basis of recommendation of an expert body. See Medical Council of India Vs. Kalinga Institute of Medical Sciences (KIMS) and Others, 2016 (11) SCC 530. 6. After considering the submissions of the Petitioner and the material on record, we are of the opinion that the decision of the Government of India not to grant approval does not warrant interference. The Assessors after a physical inspection, found that a number of patients were not genuine. The Assessors were of the opinion that patients with minor ailments were admitted in the hospital. There were others who were shown as patients with no serious health condition deserving an admission in the hospital. This was done by the Petitioner with a view to get renewal for admission of students by showing that it was complying with the minimum standards. The Petitioner is guilty of deception and fraud. 7. The Petitioner is not entitled to any relief, as he does not meet the required standards for renewal of permission for admission to third batch of MBBS students. We take serious note of the fraud played by the Petitioner in projecting healthy persons as patients in their hospital for the purpose of showing compliance of the minimum standards. | 0[ds]5. This Court is not equipped to adjudicate a factual dispute regarding the existence of staff, patients, clinical material and other facilities in a medical college and hospital. Deference has to be shown to findings of an expert body, which has found that the facilities in the Petitioner-College are inadequate. Unless there is a jurisdictional error or ex facie perversity in an inspection report, this Court will not interfere with a decision taken on the basis of recommendation of an expert body. See Medical Council of India Vs. Kalinga Institute of Medical Sciences (KIMS) and Others, 2016 (11) SCC 530. 6. After considering the submissions of the Petitioner and the material on record, we are of the opinion that the decision of the Government of India not to grant approval does not warrant interference. The Assessors after a physical inspection, found that a number of patients were not genuine. The Assessors were of the opinion that patients with minor ailments were admitted in the hospital. There were others who were shown as patients with no serious health condition deserving an admission in the hospital. This was done by the Petitioner with a view to get renewal for admission of students by showing that it was complying with the minimum standards. The Petitioner is guilty of deception and fraud.7. The Petitioner is not entitled to any relief, as he does not meet the required standards for renewal of permission for admission to third batch of MBBS students. We take serious note of the fraud played by the Petitioner in projecting healthy persons as patients in their hospital for the purpose of showing compliance of the minimum standards. | 0 | 1,290 | 306 | ### 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 Petitioner. Thereafter, a compliance verification assessment was conducted on 13.03.2018. The Executive Committee of the Council considered the compliance verification assessment report dated 13.03.2018, the previous assessment report dated 8th & 9th November, 2017 along with photographs, videography as well as the representation dated 14.03.2018 of the Dean of the Petitioner College and noted the following deficiencies: 1. Deficiency of faculty is 22% as detailed in the report. 2. Shortage of Residents was 42.85% as detailed in the report. 3. Patients in PICU: - PICU has three patients. Two patients Swathi and Aravin have admitted with history of Chronic pain abdomen for more than 10 days. Patients with mi nor problems admitted without even as IV line in the ICCU. No coronary ailment patient is admitted in the ICCU. SICU has only routine post operative patients including tubectomy, with no complications. Nursing station not available in the SICU. 4. Wards:- In Surgery ward 2 male and 4 female post operative patients are admitted for more than 10 days with no fresh complaints. Four patients who are admitted as inpatient have no personal belongings nor any attendant with them. They were admitted for complaints like Gastritis, vague abdominal pain and are on oral drugs. Out of 60 patients, 10 patients do not merit as teaching bed patients. Hence, teaching beds are counted as 50. Obstetrics wards has 6 post natal patients. Hence out of 28 patients in Obstetrics & Gynecology ward, only 22 are counted as teaching beds. Last date of delivery is 9.3.2018. Ortho ward out of 21 patients 4 are purely admitted for physiotherapy and one patient is continuing to have native treatment slab for alleged fracture even after 10 days of ad mission. Hence, only 16 patients are taken as teaching beds are taken as teaching beds. Dermatology, psychiatry and TB Chest patients are put together in a single open ward and no separate wards available. 5. There was NIL Normal Delivery on day of assessment as well as on preceding 3 days. 6. Date of Histopathology does not correlate with number of Major & Minor Operations. 7. Request slips for issue of blood are not available prior to 09/03/2018. 8. Casualty: There were only 4 patients at the time of visit. Crash Cart is not maintained. Disaster Trolley is not available. Emergency O.T. attached to Casualty shows last procedure on 02/03/02018 - i.e. 11 days before assessment. 9. Other deficiencies as pointed out in the assessment report. 3. The Executive Committee of the Council decided to recommend to the Government of India to invoke Regulation 8(3)(1)(a) of the Establishment of Medical College Regulations, 1999 and disapprove the application of the Petitioner College for renewal of permission for the third batch of 150 students in MBBS course for the academic year 2018-2019. The decision of the Executive Committee of the Council was approved by the Oversight Committee on 28.03.2018. The Petitioner filed Writ Petition (Civil) No.487 of 2018 which was disposed of on 23.05.2018 directing the Union of India to consider the material to be submitted by the Petitioner before taking a final decision. After considering the contention of the Petitioner that the inspection was not conducted in accordance with the Assessors Guide 2018-2019, the Government of India found no reason to discard the report of the Assessors. By an order dated 31.05.2018, the Government of India accepted the recommendation of the Medical Council of India that the Petitioner was not entitled for renewal of permission for admission to third batch of 150 students in MBBS Course for the academic year 2018-2019. Aggrieved thereby, the above Writ Petition is filed by the Petitioner-College. 4. We have heard Mr. Mukul Rohatgi, learned Senior Counsel for the Petitioner, Ms. Pinky Anand, learned Additional Solicitor General for the Union of India and Mr. Vikas Singh learned Senior Counsel for the MCI. Mr. Rohatgi submitted that the inspection conducted on 13.03.2018 was in violation of the Assessors Guide 2018-2019. According to him, the attendance was taken by one Assessor at 10:20 am which concluded at 11:00 am. The clinical staff could report only at 11:15 am as they were on duty in the O.T., Labour Room, Procedure Room, ICUs, Casualty etc. in the hospital. He also submitted that it was impermissible for the Assessors to give their opinion regarding the genuineness of the inpatients. 5. This Court is not equipped to adjudicate a factual dispute regarding the existence of staff, patients, clinical material and other facilities in a medical college and hospital. Deference has to be shown to findings of an expert body, which has found that the facilities in the Petitioner-College are inadequate. Unless there is a jurisdictional error or ex facie perversity in an inspection report, this Court will not interfere with a decision taken on the basis of recommendation of an expert body. See Medical Council of India Vs. Kalinga Institute of Medical Sciences (KIMS) and Others, 2016 (11) SCC 530. 6. After considering the submissions of the Petitioner and the material on record, we are of the opinion that the decision of the Government of India not to grant approval does not warrant interference. The Assessors after a physical inspection, found that a number of patients were not genuine. The Assessors were of the opinion that patients with minor ailments were admitted in the hospital. There were others who were shown as patients with no serious health condition deserving an admission in the hospital. This was done by the Petitioner with a view to get renewal for admission of students by showing that it was complying with the minimum standards. The Petitioner is guilty of deception and fraud. 7. The Petitioner is not entitled to any relief, as he does not meet the required standards for renewal of permission for admission to third batch of MBBS students. We take serious note of the fraud played by the Petitioner in projecting healthy persons as patients in their hospital for the purpose of showing compliance of the minimum standards.
### Response:
0
### Explanation:
5. This Court is not equipped to adjudicate a factual dispute regarding the existence of staff, patients, clinical material and other facilities in a medical college and hospital. Deference has to be shown to findings of an expert body, which has found that the facilities in the Petitioner-College are inadequate. Unless there is a jurisdictional error or ex facie perversity in an inspection report, this Court will not interfere with a decision taken on the basis of recommendation of an expert body. See Medical Council of India Vs. Kalinga Institute of Medical Sciences (KIMS) and Others, 2016 (11) SCC 530. 6. After considering the submissions of the Petitioner and the material on record, we are of the opinion that the decision of the Government of India not to grant approval does not warrant interference. The Assessors after a physical inspection, found that a number of patients were not genuine. The Assessors were of the opinion that patients with minor ailments were admitted in the hospital. There were others who were shown as patients with no serious health condition deserving an admission in the hospital. This was done by the Petitioner with a view to get renewal for admission of students by showing that it was complying with the minimum standards. The Petitioner is guilty of deception and fraud.7. The Petitioner is not entitled to any relief, as he does not meet the required standards for renewal of permission for admission to third batch of MBBS students. We take serious note of the fraud played by the Petitioner in projecting healthy persons as patients in their hospital for the purpose of showing compliance of the minimum standards.
|
M.ARUMUGAM Vs. AMMANIAMMAL AND ORS | It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis¬à¬vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis¬à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. Accordingly, it was directed that the credit balance would be inherited in terms of Section 8 of the Succession Act. 13. In Appropriate Authority (IT Deptt) And Others vs. M. Arifulla And Others (2002) 10 SCC 342 the issue which arose was whether the property inherited in terms of Sections 6 and 8 of the Succession Act was to be treated as the property of co¬owners or as joint family property. The Court held as follows:¬ 3. … This Court has held in CWT vs. Chander Sen that a property devolving under Section 8 of the Hindu Succession Act, is the individual property of the person who inherits the same and not that of the HUF. In fact, in the special leave petition, it is admitted that respondents 2 to 5 inherited the property in question from the said T.M. Doraiswami. Hence, they held it as tenants¬in¬common and not as joint tenants. 14. Applying the principles laid down in the aforesaid cases, it is apparent that after the death of Moola Goundar, his interest in the coparcenary property would devolve as per the provisions of Section 8 since he left behind a number of female Class¬I heirs. 15. There is another reason to take this view. Section 30 of the Succession Act clearly lays down that any Hindu can dispose of his share of the property by Will or by any other testamentary disposition which is capable of being so disposed of by him. The explanation to Section 30 clearly provides that the interest of a male Hindu in Mitakshara coparcenary shall be deemed to be property capable of being disposed of by him within the meaning of Section 30. This means that the law makers intended that for all intents and purposes the interest of a male Hindu in Mitakshara coparcenary was to be virtually like his self¬acquired property. Furthermore, when we conjointly read Section 30 with Section 19, which provides that when two or more heirs succeed together to the property of an intestate, they shall take the property per capita and as tenants in common and not as joint tenants. This also clearly indicates that the property was not to be treated as a joint family property though it may be held jointly by the legal heirs as tenants in common till the property is divided, apportioned or dealt with in a family settlement. 16. Even assuming that the property was a joint family property then also we cannot accept the submission that the Karta i.e., defendant no. 1 was the natural guardian of the minor plaintiff. The Karta is the manager of the Hindu Undivided Family and acts on behalf of the entire family. True it is that Section 6 of the Act is not applicable in respect of undivided interest of a minor in the joint family property but here we are dealing with a situation where all the family members decided to dissolve the Hindu Undivided Family assuming there was one in existence. 17. A Karta is the manager of the joint family property. He is not the guardian of the minor members of the joint family. What Section 6 of the Act provides is that the natural guardian of a minor Hindu shall be his guardian for all intents and purposes except so far as the undivided interest of the minor in the joint family property is concerned. This would mean that the natural guardian cannot dispose of the share of the minor in the joint family property. The reason is that the Karta of the joint family property is the manager of the property. However, this principle would not apply when a family settlement is taking place between the members of the joint family. When such dissolution takes place and some of the members relinquish their share in favour of the Karta, it is obvious that the Karta cannot act as the guardian of that minor whose share is being relinquished in favour of the Karta. There would be a conflict of interest. In such an eventuality it would be the mother alone who would be the natural guardian and, therefore, the document executed by her cannot be said to be a void document. At best, it was a voidable document in terms of Section 8 of the Act and should have been challenged within three years of the plaintiff attaining majority. 18. We may note that there are other reasons to hold that the case set up by the plaintiff was not correct even to her knowledge. Though the plaintiff was a minor when the release deed dated 10.03.1973 was executed, she was not of tender age but was aged about 17 years. On 24.04.1980, a partition took place between defendant nos. 1 and 2 (the two brothers) and this partition included all the properties comprising the property now claimed by the plaintiff. The partition deed dated 24.04.1980, which was duly registered, was signed by the husband of the plaintiff as an attesting witness. Few days later, on 30.04.1980 the two brothers executed a settlement deed in favour of their mother, defendant no. 5 which was also signed by the plaintiffs husband as witness. After this partition, the two brothers remained in possession of the property and executed various transfers from this property. Therefore, it is difficult to believe that the plaintiff was not aware of the various transfers. | 1[ds]10. When we read Section 6 of the Succession Act the opening portion indicates that on the death of a male Hindu, his interest in the coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. That would mean that only the brothers would get the property. However, the Proviso makes it clear that if the deceased leaves behind a female heir specified in Class¬I of the Schedule, the interest of the deceased in the coparcenary property shall devolve either by testamentary or by intestate succession under the Succession Act and not by survivorship. The opening portion of Section 6, as it stood at the relevant time, clearly indicates that if male descendants were the only survivors then they would automatically have the rights or interest in the coparcenary property. Females had no right in the coparcenary property at that time. It was to protect the rights of the women that the proviso clearly stated that if there is a Class¬I female heir, the interest of the deceased would devolve as per the provisions of the Act and not by survivorship. The first Explanation to Section 6 makes it absolutely clear that the interest of the Hindu coparcener shall be deemed to be his share in the property which would have been allotted to him if partition had taken place immediately before his death. In the present case, if partition had taken place immediately before the death of Moola Gounder then he and defendant nos. 1 and 2 would have been entitled to 1/3 share each in the property. Nothing would have gone to the female heirs as per the law as it stood at that time. However, since partition had not actually taken place, and there were Class-I female heirs, 1/3 share of Moola Gounder was to devolve on the Class-I legal heirs in accordance with Section 8 of the Succession Act14. Applying the principles laid down in the aforesaid cases, it is apparent that after the death of Moola Goundar, his interest in the coparcenary property would devolve as per the provisions of Section 8 since he left behind a number of female Class¬I heirs15. There is another reason to take this view. Section 30 of the Succession Act clearly lays down that any Hindu can dispose of his share of the property by Will or by any other testamentarydisposition which is capable of being so disposed of by him. The explanation to Section 30 clearly provides that the interest of a male Hindu in Mitakshara coparcenary shall be deemed to be property capable of being disposed of by him within the meaning of Section 30. This means that the law makers intended that for all intents and purposes the interest of a male Hindu in Mitakshara coparcenary was to be virtually like his self¬acquired property. Furthermore, when we conjointly read Section 30 with Section 19, which provides that when two or more heirs succeed together to the property of an intestate, they shall take the property per capita and as tenants in common and not as joint tenants. This also clearly indicates that the property was not to be treated as a joint family property though it may be held jointly by the legal heirs as tenants in common till the property is divided, apportioned or dealt with in a family settlement16. Even assuming that the property was a joint family property then also we cannot accept the submission that the Karta i.e., defendant no. 1 was the natural guardian of the minor plaintiff. The Karta is the manager of the Hindu Undivided Family and acts on behalf of the entire family. True it is that Section 6 of the Act is not applicable in respect of undivided interest of a minor in the joint family property but here we are dealing with a situation where all the family members decided to dissolve the Hindu Undivided Family assuming there was one in existence17. A Karta is the manager of the joint family property. He is not the guardian of the minor members of the joint family. What Section 6 of the Act provides is that the natural guardian of a minor Hindu shall be his guardian for all intents and purposes except so far as the undivided interest of the minor in the joint family property is concerned. This would mean that the natural guardian cannot dispose of the share of the minor in the joint family property. The reason is that the Karta of the joint family property is the manager of the property. However, this principle would not apply when a family settlement is taking place between the members of the joint family. When such dissolution takes place and some of the members relinquish their share in favour of the Karta, it is obvious that the Karta cannot act as the guardian of that minor whose share is being relinquished in favour of the Karta. There would be a conflict of interest. In such an eventuality it would be the mother alone who would be the natural guardian and, therefore, the document executed by her cannot be said to be a void document. At best, it was a voidable document in terms of Section 8 of the Act and should have been challenged within three years of the plaintiff attaining majority18. We may note that there are other reasons to hold that the case set up by the plaintiff was not correct even to her knowledge. Though the plaintiff was a minor when the release deed dated 10.03.1973 was executed, she was not of tender age but was aged about 17 years. On 24.04.1980, a partition took place between defendant nos. 1 and 2 (the two brothers) and this partition included all the properties comprising the property now claimed by the plaintiff. The partition deed dated 24.04.1980, which was duly registered, was signed by the husband of the plaintiff as an attesting witness. Few days later, on 30.04.1980 the two brothers executed a settlement deed in favour of their mother, defendant no. 5 which was also signed by the plaintiffs husband as witness. After this partition, the two brothers remained in possession of the property and executed various transfers from this property. Therefore, it is difficult to believe that the plaintiff was not aware of the various transfers. | 1 | 3,500 | 1,145 | ### 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:
It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis¬à¬vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis¬à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. Accordingly, it was directed that the credit balance would be inherited in terms of Section 8 of the Succession Act. 13. In Appropriate Authority (IT Deptt) And Others vs. M. Arifulla And Others (2002) 10 SCC 342 the issue which arose was whether the property inherited in terms of Sections 6 and 8 of the Succession Act was to be treated as the property of co¬owners or as joint family property. The Court held as follows:¬ 3. … This Court has held in CWT vs. Chander Sen that a property devolving under Section 8 of the Hindu Succession Act, is the individual property of the person who inherits the same and not that of the HUF. In fact, in the special leave petition, it is admitted that respondents 2 to 5 inherited the property in question from the said T.M. Doraiswami. Hence, they held it as tenants¬in¬common and not as joint tenants. 14. Applying the principles laid down in the aforesaid cases, it is apparent that after the death of Moola Goundar, his interest in the coparcenary property would devolve as per the provisions of Section 8 since he left behind a number of female Class¬I heirs. 15. There is another reason to take this view. Section 30 of the Succession Act clearly lays down that any Hindu can dispose of his share of the property by Will or by any other testamentary disposition which is capable of being so disposed of by him. The explanation to Section 30 clearly provides that the interest of a male Hindu in Mitakshara coparcenary shall be deemed to be property capable of being disposed of by him within the meaning of Section 30. This means that the law makers intended that for all intents and purposes the interest of a male Hindu in Mitakshara coparcenary was to be virtually like his self¬acquired property. Furthermore, when we conjointly read Section 30 with Section 19, which provides that when two or more heirs succeed together to the property of an intestate, they shall take the property per capita and as tenants in common and not as joint tenants. This also clearly indicates that the property was not to be treated as a joint family property though it may be held jointly by the legal heirs as tenants in common till the property is divided, apportioned or dealt with in a family settlement. 16. Even assuming that the property was a joint family property then also we cannot accept the submission that the Karta i.e., defendant no. 1 was the natural guardian of the minor plaintiff. The Karta is the manager of the Hindu Undivided Family and acts on behalf of the entire family. True it is that Section 6 of the Act is not applicable in respect of undivided interest of a minor in the joint family property but here we are dealing with a situation where all the family members decided to dissolve the Hindu Undivided Family assuming there was one in existence. 17. A Karta is the manager of the joint family property. He is not the guardian of the minor members of the joint family. What Section 6 of the Act provides is that the natural guardian of a minor Hindu shall be his guardian for all intents and purposes except so far as the undivided interest of the minor in the joint family property is concerned. This would mean that the natural guardian cannot dispose of the share of the minor in the joint family property. The reason is that the Karta of the joint family property is the manager of the property. However, this principle would not apply when a family settlement is taking place between the members of the joint family. When such dissolution takes place and some of the members relinquish their share in favour of the Karta, it is obvious that the Karta cannot act as the guardian of that minor whose share is being relinquished in favour of the Karta. There would be a conflict of interest. In such an eventuality it would be the mother alone who would be the natural guardian and, therefore, the document executed by her cannot be said to be a void document. At best, it was a voidable document in terms of Section 8 of the Act and should have been challenged within three years of the plaintiff attaining majority. 18. We may note that there are other reasons to hold that the case set up by the plaintiff was not correct even to her knowledge. Though the plaintiff was a minor when the release deed dated 10.03.1973 was executed, she was not of tender age but was aged about 17 years. On 24.04.1980, a partition took place between defendant nos. 1 and 2 (the two brothers) and this partition included all the properties comprising the property now claimed by the plaintiff. The partition deed dated 24.04.1980, which was duly registered, was signed by the husband of the plaintiff as an attesting witness. Few days later, on 30.04.1980 the two brothers executed a settlement deed in favour of their mother, defendant no. 5 which was also signed by the plaintiffs husband as witness. After this partition, the two brothers remained in possession of the property and executed various transfers from this property. Therefore, it is difficult to believe that the plaintiff was not aware of the various transfers.
### Response:
1
### Explanation:
that if the deceased leaves behind a female heir specified in Class¬I of the Schedule, the interest of the deceased in the coparcenary property shall devolve either by testamentary or by intestate succession under the Succession Act and not by survivorship. The opening portion of Section 6, as it stood at the relevant time, clearly indicates that if male descendants were the only survivors then they would automatically have the rights or interest in the coparcenary property. Females had no right in the coparcenary property at that time. It was to protect the rights of the women that the proviso clearly stated that if there is a Class¬I female heir, the interest of the deceased would devolve as per the provisions of the Act and not by survivorship. The first Explanation to Section 6 makes it absolutely clear that the interest of the Hindu coparcener shall be deemed to be his share in the property which would have been allotted to him if partition had taken place immediately before his death. In the present case, if partition had taken place immediately before the death of Moola Gounder then he and defendant nos. 1 and 2 would have been entitled to 1/3 share each in the property. Nothing would have gone to the female heirs as per the law as it stood at that time. However, since partition had not actually taken place, and there were Class-I female heirs, 1/3 share of Moola Gounder was to devolve on the Class-I legal heirs in accordance with Section 8 of the Succession Act14. Applying the principles laid down in the aforesaid cases, it is apparent that after the death of Moola Goundar, his interest in the coparcenary property would devolve as per the provisions of Section 8 since he left behind a number of female Class¬I heirs15. There is another reason to take this view. Section 30 of the Succession Act clearly lays down that any Hindu can dispose of his share of the property by Will or by any other testamentarydisposition which is capable of being so disposed of by him. The explanation to Section 30 clearly provides that the interest of a male Hindu in Mitakshara coparcenary shall be deemed to be property capable of being disposed of by him within the meaning of Section 30. This means that the law makers intended that for all intents and purposes the interest of a male Hindu in Mitakshara coparcenary was to be virtually like his self¬acquired property. Furthermore, when we conjointly read Section 30 with Section 19, which provides that when two or more heirs succeed together to the property of an intestate, they shall take the property per capita and as tenants in common and not as joint tenants. This also clearly indicates that the property was not to be treated as a joint family property though it may be held jointly by the legal heirs as tenants in common till the property is divided, apportioned or dealt with in a family settlement16. Even assuming that the property was a joint family property then also we cannot accept the submission that the Karta i.e., defendant no. 1 was the natural guardian of the minor plaintiff. The Karta is the manager of the Hindu Undivided Family and acts on behalf of the entire family. True it is that Section 6 of the Act is not applicable in respect of undivided interest of a minor in the joint family property but here we are dealing with a situation where all the family members decided to dissolve the Hindu Undivided Family assuming there was one in existence17. A Karta is the manager of the joint family property. He is not the guardian of the minor members of the joint family. What Section 6 of the Act provides is that the natural guardian of a minor Hindu shall be his guardian for all intents and purposes except so far as the undivided interest of the minor in the joint family property is concerned. This would mean that the natural guardian cannot dispose of the share of the minor in the joint family property. The reason is that the Karta of the joint family property is the manager of the property. However, this principle would not apply when a family settlement is taking place between the members of the joint family. When such dissolution takes place and some of the members relinquish their share in favour of the Karta, it is obvious that the Karta cannot act as the guardian of that minor whose share is being relinquished in favour of the Karta. There would be a conflict of interest. In such an eventuality it would be the mother alone who would be the natural guardian and, therefore, the document executed by her cannot be said to be a void document. At best, it was a voidable document in terms of Section 8 of the Act and should have been challenged within three years of the plaintiff attaining majority18. We may note that there are other reasons to hold that the case set up by the plaintiff was not correct even to her knowledge. Though the plaintiff was a minor when the release deed dated 10.03.1973 was executed, she was not of tender age but was aged about 17 years. On 24.04.1980, a partition took place between defendant nos. 1 and 2 (the two brothers) and this partition included all the properties comprising the property now claimed by the plaintiff. The partition deed dated 24.04.1980, which was duly registered, was signed by the husband of the plaintiff as an attesting witness. Few days later, on 30.04.1980 the two brothers executed a settlement deed in favour of their mother, defendant no. 5 which was also signed by the plaintiffs husband as witness. After this partition, the two brothers remained in possession of the property and executed various transfers from this property. Therefore, it is difficult to believe that the plaintiff was not aware of the various transfers.
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National Thermal Power Corpn.Ltd Vs. Mahesh Dutta | the public auctions so that the public also gets benefited by getting a higher value. 35. Furthermore the Collector under the Act was acting as a statutory authority. When possession has been shown to have been taken over not only in terms of sub-section (1) of Section 17 of the Act but also by grant of the certificate and other documents, illustration (e) of Section 114 of the Evidence Act 1872, must be held to be applicable. Once such a presumption is drawn the burden would be on the State to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidence. Not only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken. 36. Mr. Raju Ramachandran, however, made an alternative submission before us that this Court, in exercise of its jurisdiction under Article 142 of Constitution of India, may issue necessary directions so as to put a quietus to the entire matter. This Court cannot foresee all the eventualities. 37. However, before us Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the respondents, when questioned, categorically stated that in view of the statement made in the counter affidavit, the positive case of the respondents is that they had not been in possession. If the aforementioned statement made by the respondents is found to be incorrect, legal steps as is permissible in law may be taken. Furthermore, if the respondents and/or any other person are found to be in possession of the lands which were the subject matter of acquisition in terms of the notification under Section 4 of the Act, appropriate steps for eviction therefor can be initiated. It goes without saying that the authorities of the State of Uttar Pradesh shall render all cooperation to the appellant in this behalf. 38. It is furthermore neither in doubt nor in dispute that the initiation of the acquisition proceedings at the instance of the appellant was for setting up of a thermal power station. It had to be shifted to another site only because the Central Government asked it to do so keeping in view the ecological perspective in mind. It is, therefore, permissible for the appellant to put the land in question which has vested in it for another purpose which would come within the purview of any public purpose as has been noticed by this Court in Khatri (supra) and for any other purpose as has been noticed by this Court in Keerwani Ammal (Supra) Yet again in Kasturi & Ors. v. State of Haryana [(2003) 1 SCC 335] , this Court has held: 12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant Company. In Ravi Khullar & Anr. v. Union of India & Ors. [(2007) 5 SCC 231] , it was contended: 16. The learned Additional Solicitor General appearing on behalf of the respondents submitted that having regard to the authorities on the subject the question is no longer res integra. It is not as if lands acquired for a particular public purpose cannot be utilised for another public purpose. He contended that as long as the acquisition is not held to be mala fide, the acquisition cannot be invalidated merely because the lands which at one time were proposed to be utilised for a particular public purpose, were later either in whole or in part, utilised for some other purpose, though a public purpose. He, therefore, submitted that some change of user of the land, as long as it has a public purpose, would not invalidate the acquisition proceeding which is otherwise valid and legal. It was held: 23. Referring to the facts of the instant case, it cannot be disputed that the planned development of Delhi for which purpose the land was acquired under Section 4 of the Act is wide enough to include the development and expansion of an airport within the city of Delhi. Thus it cannot be said that the land is actually being utilised for any purpose other than that for which it was acquired. The only difference is that whereas initially the development work would have been undertaken by DDA or any other agency employed by it, after the constitution of IAAI, the said development work had to be undertaken by the newly constituted authority. Thus there has been no change of purpose of the acquisition. All that has happened is that the development work is undertaken by another agency since constituted, which is entrusted with the special task of maintenance of airports. Since the said authority was constituted several years after the issuance of the notification under Section 4, the acquisition cannot be invalidated only on the ground that the public purpose is sought to be achieved through another agency. This, as we have noticed earlier, was necessitated by change of circumstances in view of the creation of the authority i.e. IAAI. Moreover, since there is no change of public purpose for which the acquired land is being utilised, the acquisition cannot be invalidated on that ground. The purpose for which the lands are being utilized by a governmental agency is also a public purpose and as we have noticed earlier, would come within the ambit of the public purpose declared in Section 4 notification. Therefore, the acquisition cannot be challenged on the ground that the acquired lands are not being utilised for the declared public purpose. Having regard to the facts of the case it cannot be contended, nor has it been contended, that the notification under Section 4 of the Act was issued mala fide. | 0[ds]32. The High Court, therefore, in our opinion, was correct in its view35. Furthermore the Collector under the Act was acting as a statutory authority. When possession has been shown to have been taken over not only in terms ofn (1) of Section 17 of the Act but also by grant of the certificate and other documents, illustration (e) of Section 114 of the Evidence Act 1872, must be held to be applicable. Once such a presumption is drawn the burden would be on the State to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidenceNot only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken36. Mr. Raju Ramachandran, however, made an alternative submission before us that this Court, in exercise of its jurisdiction under Article 142 of Constitution of India, may issue necessary directions so as to put a quietus to the entire matter. This Court cannot foresee all the eventualities37. However, before us Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the respondents, when questioned, categorically stated that in view of the statement made in the counter affidavit, the positive case of the respondents is that they had not been in possessionIf the aforementioned statement made by the respondents is found to be incorrect, legal steps as is permissible in law may be taken. Furthermore, if the respondents and/or any other person are found to be in possession of the lands which were the subject matter of acquisition in terms of the notification under Section 4 of the Act, appropriate steps for eviction therefor can be initiated. It goes without saying that the authorities of the State of Uttar Pradesh shall render all cooperation to the appellant in this behalf38. It is furthermore neither in doubt nor in dispute that the initiation of the acquisition proceedings at the instance of the appellant was for setting up of a thermal power station. It had to be shifted to another site only because the Central Government asked it to do so keeping in view the ecological perspective in mind. It is, therefore, permissible for the appellant to put the land in question which has vested in it for another purpose which would come within the purview of any public purpose as has been noticed by this Court in Khatri (supra) and for any other purpose as has been noticed by this Court in Keerwani Ammal (Supra)Yet again in Kasturi & Ors. v. State of Haryana [(2003) 1 SCC 335] , this Court has held:12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant CompanyIn Ravi Khullar & Anr. v. Union of India & Ors. [(2007) 5 SCC 231] , it was contended:16. The learned Additional Solicitor General appearing on behalf of the respondents submitted that having regard to the authorities on the subject the question is no longer res integra. It is not as if lands acquired for a particular public purpose cannot be utilised for another public purpose. He contended that as long as the acquisition is not held to be mala fide, the acquisition cannot be invalidated merely because the lands which at one time were proposed to be utilised for a particular public purpose, were later either in whole or in part, utilised for some other purpose, though a public purpose. He, therefore, submitted that some change of user of the land, as long as it has a public purpose, would not invalidate the acquisition proceeding which is otherwise valid and legal23. Referring to the facts of the instant case, it cannot be disputed that the planned development of Delhi for which purpose the land was acquired under Section 4 of the Act is wide enough to include the development and expansion of an airport within the city of Delhi. Thus it cannot be said that the land is actually being utilised for any purpose other than that for which it was acquired. The only difference is that whereas initially the development work would have been undertaken by DDA or any other agency employed by it, after the constitution of IAAI, the said development work had to be undertaken by the newly constituted authority. Thus there has been no change of purpose of the acquisition. All that has happened is that the development work is undertaken by another agency since constituted, which is entrusted with the special task of maintenance of airports. Since the said authority was constituted several years after the issuance of the notification under Section 4, the acquisition cannot be invalidated only on the ground that the public purpose is sought to be achieved through another agency. This, as we have noticed earlier, was necessitated by change of circumstances in view of the creation of the authority i.e. IAAI. Moreover, since there is no change of public purpose for which the acquired land is being utilised, the acquisition cannot be invalidated on that ground. The purpose for which the lands are being utilized by a governmental agency is also a public purpose and as we have noticed earlier, would come within the ambit of the public purpose declared in Section 4 notification. Therefore, the acquisition cannot be challenged on the ground that the acquired lands are not being utilised for the declared public purpose. Having regard to the facts of the case it cannot be contended, nor has it been contended, that the notification under Section 4 of the Act was issued mala fide. | 0 | 8,496 | 1,092 | ### 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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the public auctions so that the public also gets benefited by getting a higher value. 35. Furthermore the Collector under the Act was acting as a statutory authority. When possession has been shown to have been taken over not only in terms of sub-section (1) of Section 17 of the Act but also by grant of the certificate and other documents, illustration (e) of Section 114 of the Evidence Act 1872, must be held to be applicable. Once such a presumption is drawn the burden would be on the State to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidence. Not only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken. 36. Mr. Raju Ramachandran, however, made an alternative submission before us that this Court, in exercise of its jurisdiction under Article 142 of Constitution of India, may issue necessary directions so as to put a quietus to the entire matter. This Court cannot foresee all the eventualities. 37. However, before us Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the respondents, when questioned, categorically stated that in view of the statement made in the counter affidavit, the positive case of the respondents is that they had not been in possession. If the aforementioned statement made by the respondents is found to be incorrect, legal steps as is permissible in law may be taken. Furthermore, if the respondents and/or any other person are found to be in possession of the lands which were the subject matter of acquisition in terms of the notification under Section 4 of the Act, appropriate steps for eviction therefor can be initiated. It goes without saying that the authorities of the State of Uttar Pradesh shall render all cooperation to the appellant in this behalf. 38. It is furthermore neither in doubt nor in dispute that the initiation of the acquisition proceedings at the instance of the appellant was for setting up of a thermal power station. It had to be shifted to another site only because the Central Government asked it to do so keeping in view the ecological perspective in mind. It is, therefore, permissible for the appellant to put the land in question which has vested in it for another purpose which would come within the purview of any public purpose as has been noticed by this Court in Khatri (supra) and for any other purpose as has been noticed by this Court in Keerwani Ammal (Supra) Yet again in Kasturi & Ors. v. State of Haryana [(2003) 1 SCC 335] , this Court has held: 12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant Company. In Ravi Khullar & Anr. v. Union of India & Ors. [(2007) 5 SCC 231] , it was contended: 16. The learned Additional Solicitor General appearing on behalf of the respondents submitted that having regard to the authorities on the subject the question is no longer res integra. It is not as if lands acquired for a particular public purpose cannot be utilised for another public purpose. He contended that as long as the acquisition is not held to be mala fide, the acquisition cannot be invalidated merely because the lands which at one time were proposed to be utilised for a particular public purpose, were later either in whole or in part, utilised for some other purpose, though a public purpose. He, therefore, submitted that some change of user of the land, as long as it has a public purpose, would not invalidate the acquisition proceeding which is otherwise valid and legal. It was held: 23. Referring to the facts of the instant case, it cannot be disputed that the planned development of Delhi for which purpose the land was acquired under Section 4 of the Act is wide enough to include the development and expansion of an airport within the city of Delhi. Thus it cannot be said that the land is actually being utilised for any purpose other than that for which it was acquired. The only difference is that whereas initially the development work would have been undertaken by DDA or any other agency employed by it, after the constitution of IAAI, the said development work had to be undertaken by the newly constituted authority. Thus there has been no change of purpose of the acquisition. All that has happened is that the development work is undertaken by another agency since constituted, which is entrusted with the special task of maintenance of airports. Since the said authority was constituted several years after the issuance of the notification under Section 4, the acquisition cannot be invalidated only on the ground that the public purpose is sought to be achieved through another agency. This, as we have noticed earlier, was necessitated by change of circumstances in view of the creation of the authority i.e. IAAI. Moreover, since there is no change of public purpose for which the acquired land is being utilised, the acquisition cannot be invalidated on that ground. The purpose for which the lands are being utilized by a governmental agency is also a public purpose and as we have noticed earlier, would come within the ambit of the public purpose declared in Section 4 notification. Therefore, the acquisition cannot be challenged on the ground that the acquired lands are not being utilised for the declared public purpose. Having regard to the facts of the case it cannot be contended, nor has it been contended, that the notification under Section 4 of the Act was issued mala fide.
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32. The High Court, therefore, in our opinion, was correct in its view35. Furthermore the Collector under the Act was acting as a statutory authority. When possession has been shown to have been taken over not only in terms ofn (1) of Section 17 of the Act but also by grant of the certificate and other documents, illustration (e) of Section 114 of the Evidence Act 1872, must be held to be applicable. Once such a presumption is drawn the burden would be on the State to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidenceNot only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken36. Mr. Raju Ramachandran, however, made an alternative submission before us that this Court, in exercise of its jurisdiction under Article 142 of Constitution of India, may issue necessary directions so as to put a quietus to the entire matter. This Court cannot foresee all the eventualities37. However, before us Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the respondents, when questioned, categorically stated that in view of the statement made in the counter affidavit, the positive case of the respondents is that they had not been in possessionIf the aforementioned statement made by the respondents is found to be incorrect, legal steps as is permissible in law may be taken. Furthermore, if the respondents and/or any other person are found to be in possession of the lands which were the subject matter of acquisition in terms of the notification under Section 4 of the Act, appropriate steps for eviction therefor can be initiated. It goes without saying that the authorities of the State of Uttar Pradesh shall render all cooperation to the appellant in this behalf38. It is furthermore neither in doubt nor in dispute that the initiation of the acquisition proceedings at the instance of the appellant was for setting up of a thermal power station. It had to be shifted to another site only because the Central Government asked it to do so keeping in view the ecological perspective in mind. It is, therefore, permissible for the appellant to put the land in question which has vested in it for another purpose which would come within the purview of any public purpose as has been noticed by this Court in Khatri (supra) and for any other purpose as has been noticed by this Court in Keerwani Ammal (Supra)Yet again in Kasturi & Ors. v. State of Haryana [(2003) 1 SCC 335] , this Court has held:12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant CompanyIn Ravi Khullar & Anr. v. Union of India & Ors. [(2007) 5 SCC 231] , it was contended:16. The learned Additional Solicitor General appearing on behalf of the respondents submitted that having regard to the authorities on the subject the question is no longer res integra. It is not as if lands acquired for a particular public purpose cannot be utilised for another public purpose. He contended that as long as the acquisition is not held to be mala fide, the acquisition cannot be invalidated merely because the lands which at one time were proposed to be utilised for a particular public purpose, were later either in whole or in part, utilised for some other purpose, though a public purpose. He, therefore, submitted that some change of user of the land, as long as it has a public purpose, would not invalidate the acquisition proceeding which is otherwise valid and legal23. Referring to the facts of the instant case, it cannot be disputed that the planned development of Delhi for which purpose the land was acquired under Section 4 of the Act is wide enough to include the development and expansion of an airport within the city of Delhi. Thus it cannot be said that the land is actually being utilised for any purpose other than that for which it was acquired. The only difference is that whereas initially the development work would have been undertaken by DDA or any other agency employed by it, after the constitution of IAAI, the said development work had to be undertaken by the newly constituted authority. Thus there has been no change of purpose of the acquisition. All that has happened is that the development work is undertaken by another agency since constituted, which is entrusted with the special task of maintenance of airports. Since the said authority was constituted several years after the issuance of the notification under Section 4, the acquisition cannot be invalidated only on the ground that the public purpose is sought to be achieved through another agency. This, as we have noticed earlier, was necessitated by change of circumstances in view of the creation of the authority i.e. IAAI. Moreover, since there is no change of public purpose for which the acquired land is being utilised, the acquisition cannot be invalidated on that ground. The purpose for which the lands are being utilized by a governmental agency is also a public purpose and as we have noticed earlier, would come within the ambit of the public purpose declared in Section 4 notification. Therefore, the acquisition cannot be challenged on the ground that the acquired lands are not being utilised for the declared public purpose. Having regard to the facts of the case it cannot be contended, nor has it been contended, that the notification under Section 4 of the Act was issued mala fide.
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