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Ravi and Ors Vs. State of Karnataka | 1. The challenge in this appeal by the two Appellants is to a judgment and order of the High Court of Karnataka dated 19th June, 2013 by which the Appellants conviction Under Section 302 of the Indian Penal Code, 1860 ("IPC" for short) has been maintained and the sentence of life imprisonment along with fine of Rs. 10,000/- each, etc. has also been upheld. 2. The prosecution case rests entirely on three circumstances which have been set out by the High Court as follows: (i) The deceased borrowed loan and he did not return and decamped from Ramanagaram. (ii) The deceased is in the company of A1 and A2 as spoken to by PW1 and PW2; and (iii) The report of the Doctor suggests that the death is homicidal. 3. The accused Appellants and the deceased along with Suma (PW1) and Rama Nayak (PW2) were together on 26th December, 2004, the precise time being around 1.30 p.m. The dead body was recovered after a gap of four (04) days i.e. on 30th December, 2004. The post-mortem report indicated that the death had occurred 30 hours prior to the time of post-mortem examination. The medical evidence, therefore, would be suggestive of the fact that the dead-body was recovered after about two (02) days from 1.30 p.m. of 26th December, 2004. The question that confronts the Court is whether on the basis of the aforesaid evidence the conviction of the accused Appellants is sustainable in law. 4. "Last seen together" is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time-lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time-lag is considerably large, as in the present case, it would be safer for the Court to look for corroboration. In the present case, no corroboration is forthcoming. In the absence of any other circumstances which could connect the accused Appellants with the crime alleged except as indicated above and in the absence of any corroboration of the circumstance of last seen together we are of the view that a reasonable doubt can be entertained with regard to the involvement of the accused Appellants in the crime alleged against them. The burden Under Section 106 of the Indian Evidence Act, 1872 would not shift in the aforesaid fact situation, a position which has been dealt with by this Court in Malleshappa v. State of Karnataka (2007) 13 SCC 399 : AIR 2008 SC 69 wherein the earlier view of this Court Mohibur Rahman v. State of Assam (2002) 6 SCC 715 : AIR 2002 SC 3064 has been extracted. The said view in Mohibur Rahman (supra) may be profitably extracted below: 10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW 6) does not bear such close proximity with the death of the victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24-1-1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence Under Section 201 Indian Penal Code is concerned there is no evidence worth the name available against him. He is entitled to an acquittal. | 1[ds]4. "Last seen together" is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time-lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time-lag is considerably large, as in the present case, it would be safer for the Court to look for corroboration. In the present case, no corroboration is forthcoming. In the absence of any other circumstances which could connect the accused Appellants with the crime alleged except as indicated above and in the absence of any corroboration of the circumstance of last seen together we are of the view that a reasonable doubt can be entertained with regard to the involvement of the accused Appellants in the crime alleged against them. | 1 | 910 | 171 | ### 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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1. The challenge in this appeal by the two Appellants is to a judgment and order of the High Court of Karnataka dated 19th June, 2013 by which the Appellants conviction Under Section 302 of the Indian Penal Code, 1860 ("IPC" for short) has been maintained and the sentence of life imprisonment along with fine of Rs. 10,000/- each, etc. has also been upheld. 2. The prosecution case rests entirely on three circumstances which have been set out by the High Court as follows: (i) The deceased borrowed loan and he did not return and decamped from Ramanagaram. (ii) The deceased is in the company of A1 and A2 as spoken to by PW1 and PW2; and (iii) The report of the Doctor suggests that the death is homicidal. 3. The accused Appellants and the deceased along with Suma (PW1) and Rama Nayak (PW2) were together on 26th December, 2004, the precise time being around 1.30 p.m. The dead body was recovered after a gap of four (04) days i.e. on 30th December, 2004. The post-mortem report indicated that the death had occurred 30 hours prior to the time of post-mortem examination. The medical evidence, therefore, would be suggestive of the fact that the dead-body was recovered after about two (02) days from 1.30 p.m. of 26th December, 2004. The question that confronts the Court is whether on the basis of the aforesaid evidence the conviction of the accused Appellants is sustainable in law. 4. "Last seen together" is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time-lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time-lag is considerably large, as in the present case, it would be safer for the Court to look for corroboration. In the present case, no corroboration is forthcoming. In the absence of any other circumstances which could connect the accused Appellants with the crime alleged except as indicated above and in the absence of any corroboration of the circumstance of last seen together we are of the view that a reasonable doubt can be entertained with regard to the involvement of the accused Appellants in the crime alleged against them. The burden Under Section 106 of the Indian Evidence Act, 1872 would not shift in the aforesaid fact situation, a position which has been dealt with by this Court in Malleshappa v. State of Karnataka (2007) 13 SCC 399 : AIR 2008 SC 69 wherein the earlier view of this Court Mohibur Rahman v. State of Assam (2002) 6 SCC 715 : AIR 2002 SC 3064 has been extracted. The said view in Mohibur Rahman (supra) may be profitably extracted below: 10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW 6) does not bear such close proximity with the death of the victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24-1-1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence Under Section 201 Indian Penal Code is concerned there is no evidence worth the name available against him. He is entitled to an acquittal.
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1
### Explanation:
4. "Last seen together" is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time-lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time-lag is considerably large, as in the present case, it would be safer for the Court to look for corroboration. In the present case, no corroboration is forthcoming. In the absence of any other circumstances which could connect the accused Appellants with the crime alleged except as indicated above and in the absence of any corroboration of the circumstance of last seen together we are of the view that a reasonable doubt can be entertained with regard to the involvement of the accused Appellants in the crime alleged against them.
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PARAKH VANIJYA PRIVATE LIMITED Vs. BAROMA AGRO PRODUCT | the High Court of Calcutta in AOPT No.349 of 2016 affirming the order of the Single Judge in and by which it was held that the respondent-defendant is entitled to use the word ‘MALABAR? in conjunction with the mark ‘BAROMA? for selling its product - Biryani Rice. By the impugned order, the Division Bench has also affirmed the findings of the Single Judge that subject to the outcome of the suit, the respondents can pursue their application for registration of their label. 3. Appellant-plaintiff claims to have been using the mark ‘MALABAR? for selling Biryani Rice from 2001. The appellant filed the suit CS No.27 of 2012 for infringement and passing off special Biryani Rice under the mark ?MALABAR GOLD? or other mark/trade name which is identical with and/or deceptively similar to the appellant?s trade mark ‘MALABAR?. On consideration of various features of the respondent?s then mark and other materials, the learned Single Judge vide order dated 02.07.2012 granted interim injunction observing that there was similarity between the two labels/marks and restrained the respondents/defendants from using the label mark ‘MALABAR?. The Division Bench declined to interfere with the said order by its order dated 14.09.2012.4. While the suit and application for temporary injunction was pending before the Single Judge, the respondents/defendants filed application for vacating the order dated 02.07.2012 inter alia on various grounds contending that the appellant is relying upon fabricated documents and that the appellant cannot claim exclusive right over the mark ‘MALABAR? and therefore, the interim order of injunction has to be vacated. The learned Single Judge by its order dated 05.07.2016 which was passed with the consent of the parties gave liberty to the respondents to file a supplementary affidavit to clearly indicate the device/mark that the respondents proposed to use. The respondents filed application indicating the proposed modification in their label by changing the get-up. After hearing the parties, the interim order of injunction initially passed, was modified vide order dated 08.08.2016 to the effect that the respondents shall be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? where all the words and letters must be in the same font but the word ‘MALABAR? may be increased with font size of not more than 25% than the rest of the words or letters. Being aggrieved, the appellant-plaintiff has preferred appeal before the Division Bench. The Division Bench dismissed the appeal by the impugned order holding that the Single Judge has passed the order balancing the interest of the parties who are having a substantial turn over in their respective business. 5. We have heard Mr. Shyam Diwan, learned senior counsel appearing on behalf of the appellant and Mr. Gourab K. Banerji, learned senior counsel appearing on behalf of the respondents and perused the impugned order and considered the materials placed on record. 6. The appellant is the registered owner of the label mark in Class-30 in respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices. The appellant sells Biryani Rice and the most prominent feature of its label mark is the word ‘MALABAR?. The appellant-plaintiff is granted registration in Class-30 for its products. Class-30 of the classification of goods and services under the statute covers diverse spices and other edible materials as wheat, rice, coffee, tea etc. In the registration under Class-30, there is a disclaimer for the word ‘MALABAR?. The disclaimer is worded thus:- ?Condition & Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF WORD ‘MALABAR? AND ALL OTHER DESCRIPTIVE MATTERS? 7. The appellant though claims exclusive right over the word ‘MALABAR? since there is a disclaimer to the exclusive use of the word ‘MALABAR?, the appellant has no right over the exclusive use of the word ‘MALABAR?. The respondents have also inter alia brought on record the materials to show the registration of other goods under Class-30 with the word ‘MALABAR MONSOON? granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included in Class-30. The registration of the mark ‘MALABAR MONSOON? under Class-30 also contains similar disclaimer of the word ‘MALABAR?. Likewise, the label ‘MALABAR COAST? has been registered in Class-30 for Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST?. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the word ‘MALABAR?. 8. Insofar as the label mark used by the parties, we have perused the label mark of the appellant selling Biryani Rice with word ‘MALABAR? and also the modified label mark of the respondents. The label of the respondents containing the words ?BAROMA?, ?MALABAR?, ?GOLD? are circled having a different get-up from that of the appellant. By comparison of the two label marks, in our view, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are said to be having substantial turn-over in their respective business, the High Court rightly held that the respondents would be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? with the different get-up as approved by the High Court. We do not find any serious infirmity warranting interference with the impugned order. 9. Having regard to the various contentions raised by the parties, the High Court rightly held that subject to the outcome of the suit, the respondent can pursue their application for registration of the device. Both parties have inter alia raised various contentions. Since the suit and the respondent?s application for registration of its label with the marks thereon under Class-30 is pending, we are not inclined to go into the merits of those contentions. Lest, it would prejudicially affect the rights of the parties in the pending suit and proceedings. | 0[ds]The appellant is the registered owner of the label mark inin respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices. The appellant sells Biryani Rice and the most prominent feature of its label mark is the word ‘MALABAR?. Theis granted registration infor its products.of the classification of goods and services under the statute covers diverse spices and other edible materials as wheat, rice, coffee, tea etc. In the registration underthere is a disclaimer for the word ‘MALABAR?. The disclaimer is worded& Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF WORD ‘MALABAR? AND ALL OTHER DESCRIPTIVEappellant though claims exclusive right over the word ‘MALABAR? since there is a disclaimer to the exclusive use of the word ‘MALABAR?, the appellant has no right over the exclusive use of the word ‘MALABAR?. The respondents have also inter alia brought on record the materials to show the registration of other goods underwith the word ‘MALABAR MONSOON? granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included inThe registration of the mark ‘MALABAR MONSOON? underalso contains similar disclaimer of the word ‘MALABAR?. Likewise, the label ‘MALABAR COAST? has been registered infor Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST?. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the wordas the label mark used by the parties, we have perused the label mark of the appellant selling Biryani Rice with word ‘MALABAR? and also the modified label mark of the respondents. The label of the respondents containing the words ?BAROMA?, ?MALABAR?, ?GOLD? are circled having a differentfrom that of the appellant. By comparison of the two label marks, in our view, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are said to be having substantialin their respective business, the High Court rightly held that the respondents would be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? with the differentas approved by the High Court. We do not find any serious infirmity warranting interference with the impugnedregard to the various contentions raised by the parties, the High Court rightly held that subject to the outcome of the suit, the respondent can pursue their application for registration of the device. Both parties have inter alia raised various contentions. Since the suit and the respondent?s application for registration of its label with the marks thereon underis pending, we are not inclined to go into the merits of those contentions. Lest, it would prejudicially affect the rights of the parties in the pending suit and proceedings. | 0 | 1,169 | 576 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the High Court of Calcutta in AOPT No.349 of 2016 affirming the order of the Single Judge in and by which it was held that the respondent-defendant is entitled to use the word ‘MALABAR? in conjunction with the mark ‘BAROMA? for selling its product - Biryani Rice. By the impugned order, the Division Bench has also affirmed the findings of the Single Judge that subject to the outcome of the suit, the respondents can pursue their application for registration of their label. 3. Appellant-plaintiff claims to have been using the mark ‘MALABAR? for selling Biryani Rice from 2001. The appellant filed the suit CS No.27 of 2012 for infringement and passing off special Biryani Rice under the mark ?MALABAR GOLD? or other mark/trade name which is identical with and/or deceptively similar to the appellant?s trade mark ‘MALABAR?. On consideration of various features of the respondent?s then mark and other materials, the learned Single Judge vide order dated 02.07.2012 granted interim injunction observing that there was similarity between the two labels/marks and restrained the respondents/defendants from using the label mark ‘MALABAR?. The Division Bench declined to interfere with the said order by its order dated 14.09.2012.4. While the suit and application for temporary injunction was pending before the Single Judge, the respondents/defendants filed application for vacating the order dated 02.07.2012 inter alia on various grounds contending that the appellant is relying upon fabricated documents and that the appellant cannot claim exclusive right over the mark ‘MALABAR? and therefore, the interim order of injunction has to be vacated. The learned Single Judge by its order dated 05.07.2016 which was passed with the consent of the parties gave liberty to the respondents to file a supplementary affidavit to clearly indicate the device/mark that the respondents proposed to use. The respondents filed application indicating the proposed modification in their label by changing the get-up. After hearing the parties, the interim order of injunction initially passed, was modified vide order dated 08.08.2016 to the effect that the respondents shall be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? where all the words and letters must be in the same font but the word ‘MALABAR? may be increased with font size of not more than 25% than the rest of the words or letters. Being aggrieved, the appellant-plaintiff has preferred appeal before the Division Bench. The Division Bench dismissed the appeal by the impugned order holding that the Single Judge has passed the order balancing the interest of the parties who are having a substantial turn over in their respective business. 5. We have heard Mr. Shyam Diwan, learned senior counsel appearing on behalf of the appellant and Mr. Gourab K. Banerji, learned senior counsel appearing on behalf of the respondents and perused the impugned order and considered the materials placed on record. 6. The appellant is the registered owner of the label mark in Class-30 in respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices. The appellant sells Biryani Rice and the most prominent feature of its label mark is the word ‘MALABAR?. The appellant-plaintiff is granted registration in Class-30 for its products. Class-30 of the classification of goods and services under the statute covers diverse spices and other edible materials as wheat, rice, coffee, tea etc. In the registration under Class-30, there is a disclaimer for the word ‘MALABAR?. The disclaimer is worded thus:- ?Condition & Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF WORD ‘MALABAR? AND ALL OTHER DESCRIPTIVE MATTERS? 7. The appellant though claims exclusive right over the word ‘MALABAR? since there is a disclaimer to the exclusive use of the word ‘MALABAR?, the appellant has no right over the exclusive use of the word ‘MALABAR?. The respondents have also inter alia brought on record the materials to show the registration of other goods under Class-30 with the word ‘MALABAR MONSOON? granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included in Class-30. The registration of the mark ‘MALABAR MONSOON? under Class-30 also contains similar disclaimer of the word ‘MALABAR?. Likewise, the label ‘MALABAR COAST? has been registered in Class-30 for Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST?. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the word ‘MALABAR?. 8. Insofar as the label mark used by the parties, we have perused the label mark of the appellant selling Biryani Rice with word ‘MALABAR? and also the modified label mark of the respondents. The label of the respondents containing the words ?BAROMA?, ?MALABAR?, ?GOLD? are circled having a different get-up from that of the appellant. By comparison of the two label marks, in our view, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are said to be having substantial turn-over in their respective business, the High Court rightly held that the respondents would be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? with the different get-up as approved by the High Court. We do not find any serious infirmity warranting interference with the impugned order. 9. Having regard to the various contentions raised by the parties, the High Court rightly held that subject to the outcome of the suit, the respondent can pursue their application for registration of the device. Both parties have inter alia raised various contentions. Since the suit and the respondent?s application for registration of its label with the marks thereon under Class-30 is pending, we are not inclined to go into the merits of those contentions. Lest, it would prejudicially affect the rights of the parties in the pending suit and proceedings.
### Response:
0
### Explanation:
The appellant is the registered owner of the label mark inin respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices. The appellant sells Biryani Rice and the most prominent feature of its label mark is the word ‘MALABAR?. Theis granted registration infor its products.of the classification of goods and services under the statute covers diverse spices and other edible materials as wheat, rice, coffee, tea etc. In the registration underthere is a disclaimer for the word ‘MALABAR?. The disclaimer is worded& Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF WORD ‘MALABAR? AND ALL OTHER DESCRIPTIVEappellant though claims exclusive right over the word ‘MALABAR? since there is a disclaimer to the exclusive use of the word ‘MALABAR?, the appellant has no right over the exclusive use of the word ‘MALABAR?. The respondents have also inter alia brought on record the materials to show the registration of other goods underwith the word ‘MALABAR MONSOON? granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included inThe registration of the mark ‘MALABAR MONSOON? underalso contains similar disclaimer of the word ‘MALABAR?. Likewise, the label ‘MALABAR COAST? has been registered infor Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST?. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the wordas the label mark used by the parties, we have perused the label mark of the appellant selling Biryani Rice with word ‘MALABAR? and also the modified label mark of the respondents. The label of the respondents containing the words ?BAROMA?, ?MALABAR?, ?GOLD? are circled having a differentfrom that of the appellant. By comparison of the two label marks, in our view, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are said to be having substantialin their respective business, the High Court rightly held that the respondents would be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? with the differentas approved by the High Court. We do not find any serious infirmity warranting interference with the impugnedregard to the various contentions raised by the parties, the High Court rightly held that subject to the outcome of the suit, the respondent can pursue their application for registration of the device. Both parties have inter alia raised various contentions. Since the suit and the respondent?s application for registration of its label with the marks thereon underis pending, we are not inclined to go into the merits of those contentions. Lest, it would prejudicially affect the rights of the parties in the pending suit and proceedings.
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Dayal Saran Sanan Vs. Union of India and Others | but not such thing was done. There was never any enquiry and there was no order, passed after notice to him, visiting him with the penalty of forfeiture of past service. He submitted that there was no provision in the Civil Services Regulations which enabled the government to withhold his pension and gratuity without taking disciplinary action against him. The learned counsel for the respondents relied on Articles 189 and 420 of the Civil Services Regulations in support of the action withholding pension and gratuity to the appellant. Articles 189, 420, 458, 352 and 353 are relevant and they are as follows : "189. An officer who does not join his new appointment within his joining time is entitled to no allowances after the end of his joining time, and after a week ceases to have a lien on any appointment. But if the authority making the appointment considers that his default was due to circumstances beyond his control, it may exempt him from the loss of his appointment. 420. An interruption in the service of an officer entails forfeiture of his past service, except in the following cases : (a) Authorised leave of absence. (b) Unauthorised absence in continuation of authorised leave of absence so long as as the office of the absence is not substantively filled, the past service of the absentee is forfeited. (c) Suspension where it is immediately followed by reinstatement, whether to the same or a different office, or where the officer dies or is permitted to retire or is retired while under suspension.(d) Abolition of office or loss of appointment owing to reduction of establishment. (e) Transfer to non-qualifying service in an establishment under government control. The transfer must be made by competent authority; an officer who voluntarily resigns qualifying service cannot claim the benefit of this exception. Transfer to a grant-in-aid school entails forfeiture (but see Example (c) of Article 386). (f) Transfer to service on the household establishment of the Viceroy. (g) Time occupied in transit from one appointment to another, provided that the officer is transferred under the orders of competent authority, or if he is a non-gazetted officer, with the consent of the head of his old office. 458. A superannuation pension is granted to an officer in superior service entitled or compelled, by rule, to retire at a particular age. 352. In the following cases no claim to pension is and admitted :- (a) When an officer is appointed for a limited time only, or for a specified duty, on the completion of which he is to be discharged. (b) When a person is employed temporarily on monthly wages without specified limit of time or duty; but a months notice of discharge should be given to such a person, and his wages must be paid for any period by which such notice falls short of a month. (c) When a persons whole time not retained for the public service, but he is merely paid for work done for the State. (d) When a public servant holds some other pensionable office he earns no pension in respect of an office of the kind mentioned. (e) When an officer serves under a covenant which contains no stipulation regarding pension, unless the Government of India specially authorises an officer to count such service towards pension.353. No pension may be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency; but to officers so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration provided that the allowances granted to any officer shall not exceed two thirds of the pension which would have been admissible to him if he had retired on medical certificate. Provided further that no allowances shall be granted to an officer under the rule-making control of the Secretary of State for India in Council without his sanction." 3. In our view neither the loss of lien contemplated by Article 189 nor the forfeiture of past service contemplated by Article 420 has anything to do with the withholding of pension and gratuity. We do not want to express any opinion on the question whether Article 189 of the Civil Services Regulations is inconsistent with the provision of Article 311(2) of the Constitution. For the purposes of the present case it is sufficient to say that it has not relevance on the question of grant or withholding of pension. Again we think that whatever relevance forfeiture of past service under Article 420 of the Civil Services Regulations may have in connection with matters relating to advancement in service etc. It was no bearing on the question of the grant or the withholding of pension. We do not also think that an order of forfeiture of past service can be made without observing the principles of natural justice. Admittedly, disciplinary action was not taken against the appellant in connection with his absence from duty without leave. Nor was any notice given to the appellant that his past service was proposed to be forfeited under Article 420 of the Civil Services Regulations, and the explanation sought. We may mention here that there was no reference the Article 420 either in the letters dated January 29, 1966, May 30, 1966, and November 22, 1966 or in written statement filed in the High Court. Reliance was placed in these documents entirely upon Article 189 and as we have said it has no bearing on the question of grant or withholding of pension. We consider that the respondents were not entitled to withhold the pension of the appellant unless the facts fell within the provisions of Article 352 and 353 of the Civil Services Regulations. It was not suggested by the learned counsel for the respondents that the case fell within either of these articles. The appellant was holding the post of Superintendent substantively and Article 352 had not application whatsoever nor was the appellant dismissed or removed for misconduct, insolvency or inefficiency so as to attract Article 353. | 1[ds]3. In our view neither the loss of lien contemplated by Article 189 nor the forfeiture of past service contemplated by Article 420 has anything to do with the withholding of pension and gratuity. We do not want to express any opinion on the question whether Article 189 of the Civil Services Regulations is inconsistent with the provision of Article 311(2) of the Constitution. For the purposes of the present case it is sufficient to say that it has not relevance on the question of grant or withholding of pension. Again we think that whatever relevance forfeiture of past service under Article 420 of the Civil Services Regulations may have in connection with matters relating to advancement in service etc. It was no bearing on the question of the grant or the withholding of pension. We do not also think that an order of forfeiture of past service can be made without observing the principles of natural justice. Admittedly, disciplinary action was not taken against the appellant in connection with his absence from duty without leave. Nor was any notice given to the appellant that his past service was proposed to be forfeited under Article 420 of the Civil Services Regulations, and the explanation sought. We may mention here that there was no reference the Article 420 either in the letters dated January 29, 1966, May 30, 1966, and November 22, 1966 or in written statement filed in the High Court. Reliance was placed in these documents entirely upon Article 189 and as we have said it has no bearing on the question of grant or withholding of pension. We consider that the respondents were not entitled to withhold the pension of the appellant unless the facts fell within the provisions of Article 352 and 353 of the Civil Services Regulations. It was not suggested by the learned counsel for the respondents that the case fell within either of these articles. The appellant was holding the post of Superintendent substantively and Article 352 had not application whatsoever nor was the appellant dismissed or removed for misconduct, insolvency or inefficiency so as to attract Article 353. | 1 | 2,083 | 384 | ### 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:
but not such thing was done. There was never any enquiry and there was no order, passed after notice to him, visiting him with the penalty of forfeiture of past service. He submitted that there was no provision in the Civil Services Regulations which enabled the government to withhold his pension and gratuity without taking disciplinary action against him. The learned counsel for the respondents relied on Articles 189 and 420 of the Civil Services Regulations in support of the action withholding pension and gratuity to the appellant. Articles 189, 420, 458, 352 and 353 are relevant and they are as follows : "189. An officer who does not join his new appointment within his joining time is entitled to no allowances after the end of his joining time, and after a week ceases to have a lien on any appointment. But if the authority making the appointment considers that his default was due to circumstances beyond his control, it may exempt him from the loss of his appointment. 420. An interruption in the service of an officer entails forfeiture of his past service, except in the following cases : (a) Authorised leave of absence. (b) Unauthorised absence in continuation of authorised leave of absence so long as as the office of the absence is not substantively filled, the past service of the absentee is forfeited. (c) Suspension where it is immediately followed by reinstatement, whether to the same or a different office, or where the officer dies or is permitted to retire or is retired while under suspension.(d) Abolition of office or loss of appointment owing to reduction of establishment. (e) Transfer to non-qualifying service in an establishment under government control. The transfer must be made by competent authority; an officer who voluntarily resigns qualifying service cannot claim the benefit of this exception. Transfer to a grant-in-aid school entails forfeiture (but see Example (c) of Article 386). (f) Transfer to service on the household establishment of the Viceroy. (g) Time occupied in transit from one appointment to another, provided that the officer is transferred under the orders of competent authority, or if he is a non-gazetted officer, with the consent of the head of his old office. 458. A superannuation pension is granted to an officer in superior service entitled or compelled, by rule, to retire at a particular age. 352. In the following cases no claim to pension is and admitted :- (a) When an officer is appointed for a limited time only, or for a specified duty, on the completion of which he is to be discharged. (b) When a person is employed temporarily on monthly wages without specified limit of time or duty; but a months notice of discharge should be given to such a person, and his wages must be paid for any period by which such notice falls short of a month. (c) When a persons whole time not retained for the public service, but he is merely paid for work done for the State. (d) When a public servant holds some other pensionable office he earns no pension in respect of an office of the kind mentioned. (e) When an officer serves under a covenant which contains no stipulation regarding pension, unless the Government of India specially authorises an officer to count such service towards pension.353. No pension may be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency; but to officers so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration provided that the allowances granted to any officer shall not exceed two thirds of the pension which would have been admissible to him if he had retired on medical certificate. Provided further that no allowances shall be granted to an officer under the rule-making control of the Secretary of State for India in Council without his sanction." 3. In our view neither the loss of lien contemplated by Article 189 nor the forfeiture of past service contemplated by Article 420 has anything to do with the withholding of pension and gratuity. We do not want to express any opinion on the question whether Article 189 of the Civil Services Regulations is inconsistent with the provision of Article 311(2) of the Constitution. For the purposes of the present case it is sufficient to say that it has not relevance on the question of grant or withholding of pension. Again we think that whatever relevance forfeiture of past service under Article 420 of the Civil Services Regulations may have in connection with matters relating to advancement in service etc. It was no bearing on the question of the grant or the withholding of pension. We do not also think that an order of forfeiture of past service can be made without observing the principles of natural justice. Admittedly, disciplinary action was not taken against the appellant in connection with his absence from duty without leave. Nor was any notice given to the appellant that his past service was proposed to be forfeited under Article 420 of the Civil Services Regulations, and the explanation sought. We may mention here that there was no reference the Article 420 either in the letters dated January 29, 1966, May 30, 1966, and November 22, 1966 or in written statement filed in the High Court. Reliance was placed in these documents entirely upon Article 189 and as we have said it has no bearing on the question of grant or withholding of pension. We consider that the respondents were not entitled to withhold the pension of the appellant unless the facts fell within the provisions of Article 352 and 353 of the Civil Services Regulations. It was not suggested by the learned counsel for the respondents that the case fell within either of these articles. The appellant was holding the post of Superintendent substantively and Article 352 had not application whatsoever nor was the appellant dismissed or removed for misconduct, insolvency or inefficiency so as to attract Article 353.
### Response:
1
### Explanation:
3. In our view neither the loss of lien contemplated by Article 189 nor the forfeiture of past service contemplated by Article 420 has anything to do with the withholding of pension and gratuity. We do not want to express any opinion on the question whether Article 189 of the Civil Services Regulations is inconsistent with the provision of Article 311(2) of the Constitution. For the purposes of the present case it is sufficient to say that it has not relevance on the question of grant or withholding of pension. Again we think that whatever relevance forfeiture of past service under Article 420 of the Civil Services Regulations may have in connection with matters relating to advancement in service etc. It was no bearing on the question of the grant or the withholding of pension. We do not also think that an order of forfeiture of past service can be made without observing the principles of natural justice. Admittedly, disciplinary action was not taken against the appellant in connection with his absence from duty without leave. Nor was any notice given to the appellant that his past service was proposed to be forfeited under Article 420 of the Civil Services Regulations, and the explanation sought. We may mention here that there was no reference the Article 420 either in the letters dated January 29, 1966, May 30, 1966, and November 22, 1966 or in written statement filed in the High Court. Reliance was placed in these documents entirely upon Article 189 and as we have said it has no bearing on the question of grant or withholding of pension. We consider that the respondents were not entitled to withhold the pension of the appellant unless the facts fell within the provisions of Article 352 and 353 of the Civil Services Regulations. It was not suggested by the learned counsel for the respondents that the case fell within either of these articles. The appellant was holding the post of Superintendent substantively and Article 352 had not application whatsoever nor was the appellant dismissed or removed for misconduct, insolvency or inefficiency so as to attract Article 353.
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GURUNANAK INDUSTRIES, FARIDABAD AND ANOTHER Vs. AMAR SINGH(DEAD) THROUGH LRS | had been settled. The subsequent letter dated 5th October 1988 relied by the appellants and written by Amar Singh states that there has been mutual understanding and agreement between him and Swaran Singh and as a result he had left the firm with effect from 24th August 1988 and, therefore, he would not be responsible in the event of any loan being granted after 24th August 1988. This letter also records that Amar Singh had to completely withdraw his share and accounts. 8. The receipt Exhibit P-9 dated 17th October 1988, which is a disputed document, reads as under: Received with thanks a sum of Rs.1,00,000/- (Rupees One Lac only) by cash from S. Swaran Singh, Mg/ Partner of M/s. Guru Nanak Industries (Regd.), Plot No. C.P.-6&7, N.H.5, Rly. Road, Faridabad (Haryana) on account of part payment of the settlement made between both the partners of firm. The above amount is being received by the undersigned with regard to dissolution of our partnership on 24.8.1988. With the receipt of this amount my total amounts are settled. Nothing is due to me from S. Swaran Singh & his firm. There is a contradiction in the earlier portion and the last sentence of the said receipt. The first portion refers to payment of Rs.1,00,000/- from Swaran Singh, partner of Guru Nanak Industries, on account of part payment of settlement between the two partners. The last sentence does not gel and, in fact, contradicts the first portion. The manipulation is apparent from the photocopy of the receipt that has been placed on record as Annexure-13/A with the documents. The words retiring partner have been typed later on. They also cannot be reconciled with the subsequent line, that is, For Guru Nanak Industries (Regd.). 9. Amar Singh accepts that he had received payment of Rs.1,00,000/- and Rs.50,000/- by way of demand drafts. We would accept that Amar Singh had also received payment of Rs.1,00,000/- in cash. Amar Singh, in his written statement, had referred to three immovable properties, viz. CP No. 6&7, Neighbourhood No.5, Railway Road, N.I.T, Faridabad; plot situated in Timber Market, Parvesh Marg, Railway Road, Faridabad – 121002; and Plot No.8, measuring 4098 sq.yards allotted by HUDA situated in Industrial Area, Sector-5, Faridabad . In addition, as per Amar Singh, the partnership firm had constructed factory sheds on two properties. Amar Singh, in his written statement, had given details of the machinery, finished goods and material, stock in trade, vehicles etc. In addition, he had furnished particulars of different FDRs having maturity value of Rs.7,71,920/-. It is claimed that the partnership firm has goodwill of more than Rs.10,00,000/-. 10. Sukhdev Singh (PW-2), s/o. Swaran Singh (who had died before he would enter the witness box), in his cross-examination, has accepted that the firm was the owner of plot Nos. CP 6&7, NH-5, Faridabad and Plot No.8, Sector-5 measuring 4098 sq.yards. He could not recollect the machinery as on date of dissolution, that is, 24th August 1988. He could not deny the suggestion that at the time of dissolution the value of the factory plots was Rs.25,00,000/- each or that the goodwill of the firm was at least Rs.10,00,000/-. He did not know whether his father had encashed FDRs of Rs.77,000/- (sic – Rs.7,77,000/-) in the name of the partnership firm. However, he accepted as correct that the value of the machinery owned by the firm on the date of dissolution could be Rs.17,00,000/-, though he was not sure. Similarly, he could not answer whether the value of the finished goods or furniture and fixtures, on the date of dissolution, was Rs.17,00,000/- and Rs.17,50,000/- respectively and that stock in hand was Rs.3,60,000/-. 11. The primary claim and submission of the appellants is that Amar Singh had resigned as a partner and, therefore, in terms of clause (10) of the partnership deed (Exhibit P-3) dated 6th May 1981, he would be entitled to only the capital standing in his credit in the books of accounts. However, the argument has to be rejected as in the present case there were only two partners and there is overwhelming evidence on record that Amar Singh had not resigned as a partner. On the other hand, there was mutual understanding and agreement that the partnership firm would be dissolved. This is apparent from even the version put forward by Swaran Singh and deposed to by his son, Sukhdev Singh (PW-2). Even the letter dated 5th October 1988 refers to the fact that Amar Singh is to completely withdraw the share and accounts which means that the things were yet to be settled. The receipt Exhibit P-9 dated 17th October 1988 refers to part payment of Rs.1,00,000/- towards settlement between the two partners. It also refers to the date of dissolution as 24th August 1988, which clearly indicates that payments were still to be made whereupon the two sides would have completely severed their relationship although there was a mutual agreement that the date of dissolution was 24th August 1988. 12. There is a clear distinction between retirement of a partner and dissolution of a partnership firm. On retirement of the partner, the reconstituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement [See – Pamuru Vishnu Vinodh Reddy v. Chillakuru Chandrasekhara Reddy and Others, (2003) 3 SCC 445 ]. In the present case, there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm [See – Erach F.D. Mehta v. Minoo F.D. Mehta, (1970) 2 SCC 724 ]. | 0[ds]7. Having heard counsel for the parties and having perused the relevant documents and oral evidence, we are not inclined to interfere with the findings recorded by the first appellate court, which have been affirmed by the High Court as they are born out from the records. Exhibit P-5, a letter dated 24th August 1988, was individually signed by both Amar Singh and Swaran Singh clearly stating that they were partners of Guru Nanak Industries. By this letter, Amar Singh had requested the bank to start operation of the account of the partnership firm stating that the disputes between the partners had been settled. The subsequent letter dated 5th October 1988 relied by the appellants and written by Amar Singh states that there has been mutual understanding and agreement between him and Swaran Singh and as a result he had left the firm with effect from 24th August 1988 and, therefore, he would not be responsible in the event of any loan being granted after 24th August 1988. This letter also records that Amar Singh had to completely withdraw his share and accountsThere is a contradiction in the earlier portion and the last sentence of the said receipt. The first portion refers to payment of Rs.1,00,000/- from Swaran Singh, partner of Guru Nanak Industries, on account of part payment of settlement between the two partners. The last sentence does not gel and, in fact, contradicts the first portion. The manipulation is apparent from the photocopy of the receipt that has been placed on record as Annexure-13/A with the documents. The words retiring partner have been typed later on. They also cannot be reconciled with the subsequent line, that is, For Guru Nanak Industries (Regd.)9. Amar Singh accepts that he had received payment of Rs.1,00,000/- and Rs.50,000/- by way of demand drafts. We would accept that Amar Singh had also received payment of Rs.1,00,000/- in cash. Amar Singh, in his written statement, had referred to three immovable properties, viz. CP No. 6&7, Neighbourhood No.5, Railway Road, N.I.T, Faridabad; plot situated in Timber Market, Parvesh Marg, Railway Road, Faridabad – 121002; and Plot No.8, measuring 4098 sq.yards allotted by HUDA situated in Industrial Area, Sector-5, Faridabad . In addition, as per Amar Singh, the partnership firm had constructed factory sheds on two properties. Amar Singh, in his written statement, had given details of the machinery, finished goods and material, stock in trade, vehicles etc. In addition, he had furnished particulars of different FDRs having maturity value of Rs.7,71,920/-. It is claimed that the partnership firm has goodwill of more than Rs.10,00,000/-10. Sukhdev Singh (PW-2), s/o. Swaran Singh (who had died before he would enter the witness box), in his cross-examination, has accepted that the firm was the owner of plot Nos. CP 6&7, NH-5, Faridabad and Plot No.8, Sector-5 measuring 4098 sq.yards. He could not recollect the machinery as on date of dissolution, that is, 24th August 1988. He could not deny the suggestion that at the time of dissolution the value of the factory plots was Rs.25,00,000/- each or that the goodwill of the firm was at least Rs.10,00,000/-. He did not know whether his father had encashed FDRs of Rs.77,000/- (sic – Rs.7,77,000/-) in the name of the partnership firm. However, he accepted as correct that the value of the machinery owned by the firm on the date of dissolution could be Rs.17,00,000/-, though he was not sure. Similarly, he could not answer whether the value of the finished goods or furniture and fixtures, on the date of dissolution, was Rs.17,00,000/- and Rs.17,50,000/- respectively and that stock in hand was Rs.3,60,000/-However, the argument has to be rejected as in the present case there were only two partners and there is overwhelming evidence on record that Amar Singh had not resigned as a partner. On the other hand, there was mutual understanding and agreement that the partnership firm would be dissolved. This is apparent from even the version put forward by Swaran Singh and deposed to by his son, Sukhdev Singh (PW-2). Even the letter dated 5th October 1988 refers to the fact that Amar Singh is to completely withdraw the share and accounts which means that the things were yet to be settled. The receipt Exhibit P-9 dated 17th October 1988 refers to part payment of Rs.1,00,000/- towards settlement between the two partners. It also refers to the date of dissolution as 24th August 1988, which clearly indicates that payments were still to be made whereupon the two sides would have completely severed their relationship although there was a mutual agreement that the date of dissolution was 24th August 198812. There is a clear distinction between retirement of a partner and dissolution of a partnership firm. On retirement of the partner, the reconstituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement [See – Pamuru Vishnu Vinodh Reddy v. Chillakuru Chandrasekhara Reddy and Others, (2003) 3 SCC 445 ]. In the present case, there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm [See – Erach F.D. Mehta v. Minoo F.D. Mehta, (1970) 2 SCC 724 ]. | 0 | 2,078 | 1,066 | ### 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:
had been settled. The subsequent letter dated 5th October 1988 relied by the appellants and written by Amar Singh states that there has been mutual understanding and agreement between him and Swaran Singh and as a result he had left the firm with effect from 24th August 1988 and, therefore, he would not be responsible in the event of any loan being granted after 24th August 1988. This letter also records that Amar Singh had to completely withdraw his share and accounts. 8. The receipt Exhibit P-9 dated 17th October 1988, which is a disputed document, reads as under: Received with thanks a sum of Rs.1,00,000/- (Rupees One Lac only) by cash from S. Swaran Singh, Mg/ Partner of M/s. Guru Nanak Industries (Regd.), Plot No. C.P.-6&7, N.H.5, Rly. Road, Faridabad (Haryana) on account of part payment of the settlement made between both the partners of firm. The above amount is being received by the undersigned with regard to dissolution of our partnership on 24.8.1988. With the receipt of this amount my total amounts are settled. Nothing is due to me from S. Swaran Singh & his firm. There is a contradiction in the earlier portion and the last sentence of the said receipt. The first portion refers to payment of Rs.1,00,000/- from Swaran Singh, partner of Guru Nanak Industries, on account of part payment of settlement between the two partners. The last sentence does not gel and, in fact, contradicts the first portion. The manipulation is apparent from the photocopy of the receipt that has been placed on record as Annexure-13/A with the documents. The words retiring partner have been typed later on. They also cannot be reconciled with the subsequent line, that is, For Guru Nanak Industries (Regd.). 9. Amar Singh accepts that he had received payment of Rs.1,00,000/- and Rs.50,000/- by way of demand drafts. We would accept that Amar Singh had also received payment of Rs.1,00,000/- in cash. Amar Singh, in his written statement, had referred to three immovable properties, viz. CP No. 6&7, Neighbourhood No.5, Railway Road, N.I.T, Faridabad; plot situated in Timber Market, Parvesh Marg, Railway Road, Faridabad – 121002; and Plot No.8, measuring 4098 sq.yards allotted by HUDA situated in Industrial Area, Sector-5, Faridabad . In addition, as per Amar Singh, the partnership firm had constructed factory sheds on two properties. Amar Singh, in his written statement, had given details of the machinery, finished goods and material, stock in trade, vehicles etc. In addition, he had furnished particulars of different FDRs having maturity value of Rs.7,71,920/-. It is claimed that the partnership firm has goodwill of more than Rs.10,00,000/-. 10. Sukhdev Singh (PW-2), s/o. Swaran Singh (who had died before he would enter the witness box), in his cross-examination, has accepted that the firm was the owner of plot Nos. CP 6&7, NH-5, Faridabad and Plot No.8, Sector-5 measuring 4098 sq.yards. He could not recollect the machinery as on date of dissolution, that is, 24th August 1988. He could not deny the suggestion that at the time of dissolution the value of the factory plots was Rs.25,00,000/- each or that the goodwill of the firm was at least Rs.10,00,000/-. He did not know whether his father had encashed FDRs of Rs.77,000/- (sic – Rs.7,77,000/-) in the name of the partnership firm. However, he accepted as correct that the value of the machinery owned by the firm on the date of dissolution could be Rs.17,00,000/-, though he was not sure. Similarly, he could not answer whether the value of the finished goods or furniture and fixtures, on the date of dissolution, was Rs.17,00,000/- and Rs.17,50,000/- respectively and that stock in hand was Rs.3,60,000/-. 11. The primary claim and submission of the appellants is that Amar Singh had resigned as a partner and, therefore, in terms of clause (10) of the partnership deed (Exhibit P-3) dated 6th May 1981, he would be entitled to only the capital standing in his credit in the books of accounts. However, the argument has to be rejected as in the present case there were only two partners and there is overwhelming evidence on record that Amar Singh had not resigned as a partner. On the other hand, there was mutual understanding and agreement that the partnership firm would be dissolved. This is apparent from even the version put forward by Swaran Singh and deposed to by his son, Sukhdev Singh (PW-2). Even the letter dated 5th October 1988 refers to the fact that Amar Singh is to completely withdraw the share and accounts which means that the things were yet to be settled. The receipt Exhibit P-9 dated 17th October 1988 refers to part payment of Rs.1,00,000/- towards settlement between the two partners. It also refers to the date of dissolution as 24th August 1988, which clearly indicates that payments were still to be made whereupon the two sides would have completely severed their relationship although there was a mutual agreement that the date of dissolution was 24th August 1988. 12. There is a clear distinction between retirement of a partner and dissolution of a partnership firm. On retirement of the partner, the reconstituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement [See – Pamuru Vishnu Vinodh Reddy v. Chillakuru Chandrasekhara Reddy and Others, (2003) 3 SCC 445 ]. In the present case, there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm [See – Erach F.D. Mehta v. Minoo F.D. Mehta, (1970) 2 SCC 724 ].
### Response:
0
### Explanation:
7. Having heard counsel for the parties and having perused the relevant documents and oral evidence, we are not inclined to interfere with the findings recorded by the first appellate court, which have been affirmed by the High Court as they are born out from the records. Exhibit P-5, a letter dated 24th August 1988, was individually signed by both Amar Singh and Swaran Singh clearly stating that they were partners of Guru Nanak Industries. By this letter, Amar Singh had requested the bank to start operation of the account of the partnership firm stating that the disputes between the partners had been settled. The subsequent letter dated 5th October 1988 relied by the appellants and written by Amar Singh states that there has been mutual understanding and agreement between him and Swaran Singh and as a result he had left the firm with effect from 24th August 1988 and, therefore, he would not be responsible in the event of any loan being granted after 24th August 1988. This letter also records that Amar Singh had to completely withdraw his share and accountsThere is a contradiction in the earlier portion and the last sentence of the said receipt. The first portion refers to payment of Rs.1,00,000/- from Swaran Singh, partner of Guru Nanak Industries, on account of part payment of settlement between the two partners. The last sentence does not gel and, in fact, contradicts the first portion. The manipulation is apparent from the photocopy of the receipt that has been placed on record as Annexure-13/A with the documents. The words retiring partner have been typed later on. They also cannot be reconciled with the subsequent line, that is, For Guru Nanak Industries (Regd.)9. Amar Singh accepts that he had received payment of Rs.1,00,000/- and Rs.50,000/- by way of demand drafts. We would accept that Amar Singh had also received payment of Rs.1,00,000/- in cash. Amar Singh, in his written statement, had referred to three immovable properties, viz. CP No. 6&7, Neighbourhood No.5, Railway Road, N.I.T, Faridabad; plot situated in Timber Market, Parvesh Marg, Railway Road, Faridabad – 121002; and Plot No.8, measuring 4098 sq.yards allotted by HUDA situated in Industrial Area, Sector-5, Faridabad . In addition, as per Amar Singh, the partnership firm had constructed factory sheds on two properties. Amar Singh, in his written statement, had given details of the machinery, finished goods and material, stock in trade, vehicles etc. In addition, he had furnished particulars of different FDRs having maturity value of Rs.7,71,920/-. It is claimed that the partnership firm has goodwill of more than Rs.10,00,000/-10. Sukhdev Singh (PW-2), s/o. Swaran Singh (who had died before he would enter the witness box), in his cross-examination, has accepted that the firm was the owner of plot Nos. CP 6&7, NH-5, Faridabad and Plot No.8, Sector-5 measuring 4098 sq.yards. He could not recollect the machinery as on date of dissolution, that is, 24th August 1988. He could not deny the suggestion that at the time of dissolution the value of the factory plots was Rs.25,00,000/- each or that the goodwill of the firm was at least Rs.10,00,000/-. He did not know whether his father had encashed FDRs of Rs.77,000/- (sic – Rs.7,77,000/-) in the name of the partnership firm. However, he accepted as correct that the value of the machinery owned by the firm on the date of dissolution could be Rs.17,00,000/-, though he was not sure. Similarly, he could not answer whether the value of the finished goods or furniture and fixtures, on the date of dissolution, was Rs.17,00,000/- and Rs.17,50,000/- respectively and that stock in hand was Rs.3,60,000/-However, the argument has to be rejected as in the present case there were only two partners and there is overwhelming evidence on record that Amar Singh had not resigned as a partner. On the other hand, there was mutual understanding and agreement that the partnership firm would be dissolved. This is apparent from even the version put forward by Swaran Singh and deposed to by his son, Sukhdev Singh (PW-2). Even the letter dated 5th October 1988 refers to the fact that Amar Singh is to completely withdraw the share and accounts which means that the things were yet to be settled. The receipt Exhibit P-9 dated 17th October 1988 refers to part payment of Rs.1,00,000/- towards settlement between the two partners. It also refers to the date of dissolution as 24th August 1988, which clearly indicates that payments were still to be made whereupon the two sides would have completely severed their relationship although there was a mutual agreement that the date of dissolution was 24th August 198812. There is a clear distinction between retirement of a partner and dissolution of a partnership firm. On retirement of the partner, the reconstituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement [See – Pamuru Vishnu Vinodh Reddy v. Chillakuru Chandrasekhara Reddy and Others, (2003) 3 SCC 445 ]. In the present case, there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm [See – Erach F.D. Mehta v. Minoo F.D. Mehta, (1970) 2 SCC 724 ].
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SHIVKUMAR Vs. UNION OF INDIA | does not create any interest in immovable property. 25. In Manav Dharam Trust (supra), even the provisions of the Act of 2013 have not been taken into consideration, which prohibits such transactions in particular provisions of section 11, including the proviso to section 24(2). Apart from that, it was not legally permissible to a Division Bench to ignore the decisions of the larger Bench comprising of three Judges and of Co-ordinate Bench. They were not per incuriam and were relevant for deciding the issue of taking possession under Act of 1894, at the instance of purchaser. In case it wanted to depart from the view taken earlier, it ought to have referred the matter to a larger bench. It has been ignored that when a purchase is void, then no declaration can be sought on the ground that the land acquisition under the Act of 2013 has lapsed due to illegality/irregularity of proceedings of taking possession under the Act of 1894. No declaration can be sought by a purchaser under Section 24 that acquisition has lapsed, effect of which would be to get back the land. They cannot seek declaration that acquisition made under the Act of 1894 has lapsed by the challenge to the proceedings of taking possession under the Act of 1894. Such right was not available after the purchase in 2000 and no such right has been provided to the purchasers under the Act of 2013 also. Granting a right to question acquisition would be against the public policy and the law which prohibits such transactions; it cannot be given effect to under the guise of subsequent legislation containing similar provisions. Subsequent legislation does not confer any new right to a person based on such void transaction; instead, it includes a provision prohibiting such transactions without permission of the Collector as provided in Section 11(4). 26. Thus, we have to follow the decisions including that of larger Bench mentioned above, laying down the law on the subject, which still holds the field and were wrongly distinguished. The binding value of the decision of larger and coordinate Benches have been ignored while deciding the Manav Dharam Trust case (supra), it was not open to it to take a different view. The decision in Manav Dharam Trust (supra) is per incuriam in light of this decision of this Court in Mamleshwar Prasad v. Kanahaiya Lal, (1975) 2 SCC 232 , A.R. Anutulay v. R.S. Nayak, (1988) 2 SCC 602 , State of Uttar Pradesh v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , State of B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480 , Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 , Narmada Bachao Andolan (III) v. State of Madhya Pradesh, AIR 2011 SC 1989 , Hyder Consulting (UK) Ltd. v. State of Odisha, (2015) 2 SCC 189 and Sant Lal Gupta v. Modern Coop. Societies Ltd. 2010 13 SCC 336. 27. We hold that Division Bench in Manav Dharam Trust (supra) does not lay down the law correctly. Given the several binding precedents which are available and the provisions of the Act of 2013, we cannot follow the decision in Manav Dharam Trust (supra) and overrule it. Shri S.N. Bhatt, learned counsel submitted that in case this Court does not agree with the Manav Dharam Trust (supra), the case may be referred to Hon?ble the Chief Justice of India under the provisions of Order VI Rule 2 of the Supreme Court Rules, 2013. He has relied upon the decision of this court in Vineeta Sharma v. Rakesh Sharma (2019) 6 SCC 162 in which, in view of the conflict of opinion of two Division Bench judgments of this Court as to the interpretation of section 6 of the Hindu Succession Act, 1956 the matter was referred to the Hon?ble the Chief Justice of India, for constituting an appropriate Bench. However, in the instant case, the issue is different, whether we have to follow the decision in Manav Dharam Trust (supra) or the earlier decisions of this Court mentioned above. It is apparent that the decisions of the Three Judges Bench are binding on us, and in view of other consistent decisions of this Court, we have to follow them. It is not appropriate to refer the case to larger Bench under Order VI Rule 2 of Supreme Court Rules. We find no fault in the Judgments laying down the law that the purchase after section 4 is void as against the State. We are not impressed with the submission raised on behalf of the purchasers to refer the matter for the constitution of a Larger Bench to the Hon?ble Chief Justice. When decisions of Larger Bench and other Division Bench are available, the case cannot be referred to a Larger Bench. 28. Concerning the illegal colony, averments have been made that the colony is an unauthorized and provisional order was passed to regularise it. The plea taken is contradictory and shows the falsity of the claim raised by the purchasers. That, apart predecessors of the purchaser obtained the land-based on Power of Attorney, Agreement to Sell, and Will on 9.12.1982. As per averments made in the writ application, Bijender Singh, who was owning ½ share, sold the share to Satya Narain by the documents like Agreement to Sell, Power of Attorney, or Will. It has also been averred that Om Prakash sold the remaining ½ share to Satya Narain on 11.3.1984 by way of Agreement to Sale, Power of Attorney, or Will. The purchase made through Agreement to Sale, Power of Attorney, or Will by Satya Narain did not confer a title upon him to transfer it to the purchasers apart from the fact that it was void in view of purchase after Section 4. Based on purchase made from such owners whose title was not perfect, purchasers had no derivative title in the eye of law. There was no legally recognized title deed in favor of Satya Narain. | 0[ds]5. It is crystal clear that for seeking the relief under section 24, the proceedings for taking possession under Act of 1894 have been put into question as illusory one, and possession continues withis not the case set up that compensation had not been paid to purchasers/owners. The only case set up is that physical possession has not been taken and proceedings of taking over possession have been questioned to take advantage of provisions under Section 24(2) of the Act of 2013. Whereas, averment in the writ petition itself indicates that possession had been taken over in the year 2000 and that unauthorized colonies have come up in the area. Thus, it is clear that possession, if any, is illegal, and in fact, the actual physical possession had been taken, and re-entering in possession in an unauthorized manner can confer no right. There is nothing to doubt that actual physical possession had been taken in 2000. Thus, Section 24(2) is not attracted in the case.Thus, under the provisions of Section 24 of the Act of 2013, challenge to acquisition proceeding of the taking over of possession under the Act of 1894 cannot be made, based on a void transaction nor declaration can be sought under section 24(2) by such incumbents to obtain the land. The declaration that acquisition has lapsed under the Act of 2013 is to get the property back whereas, the transaction once void, is always a void transaction, as no title can be a +cquired in the land as such no such declaration can be sought. It would not be legal, just and equitable to give the land back to purchaser as land was not capable of being sold which was in process of acquisition under the Act of 1894. The Act of 2013 does not confer any right on purchaser whose sale is ab initio void. Such void transactions are not validated under the Act of 2013. No rights are conferred by the provisions contained in the 2013 Act on such a purchaser as against the State.Thus, we have to follow the decisions including that of larger Bench mentioned above, laying down the law on the subject, which still holds the field and were wrongly distinguished. The binding value of the decision of larger and coordinate Benches have been ignored while deciding the Manav Dharam Trust case (supra), it was not open to it to take a different view. The decision in Manav Dharam Trust (supra) is per incuriam in light of this decision of this Court in Mamleshwar Prasad v. Kanahaiya Lal, (1975) 2 SCC 232 , A.R. Anutulay v. R.S. Nayak, (1988) 2 SCC 602 , State of Uttar Pradesh v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , State of B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480 , Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 , Narmada Bachao Andolan (III) v. State of Madhya Pradesh, AIR 2011 SC 1989 , Hyder Consulting (UK) Ltd. v. State of Odisha, (2015) 2 SCC 189 and Sant Lal Gupta v. Modern Coop. Societies Ltd. 2010 13 SCC 336. We hold that Division Bench in Manav Dharam Trust (supra) does not lay down the law correctly. Given the several binding precedents which are available and the provisions of the Act of 2013, we cannot follow the decision in Manav Dharam Trust (supra) and overrulein the instant case, the issue is different, whether we have to follow the decision in Manav Dharam Trust (supra) or the earlier decisions of this Court mentioned above. It is apparent that the decisions of the Three Judges Bench are binding on us, and in view of other consistent decisions of this Court, we have to follow them. It is not appropriate to refer the case to larger Bench under Order VI Rule 2 of Supreme Court Rules. We find no fault in the Judgments laying down the law that the purchase after section 4 is void as against the State. We are not impressed with the submission raised on behalf of the purchasers to refer the matter for the constitution of a Larger Bench to the Hon?ble Chief Justice. When decisions of Larger Bench and other Division Bench are available, the case cannot be referred to a Larger Bench.Concerning the illegal colony, averments have been made that the colony is an unauthorized and provisional order was passed to regularise it. The plea taken is contradictory and shows the falsity of the claim raised by the purchasers. That, apart predecessors of the purchaser obtained the land-based on Power of Attorney, Agreement to Sell, and Will on 9.12.1982. As per averments made in the writ application, Bijender Singh, who was owning ½ share, sold the share to Satya Narain by the documents like Agreement to Sell, Power of Attorney, or Will. It has also been averred that Om Prakash sold the remaining ½ share to Satya Narain on 11.3.1984 by way of Agreement to Sale, Power of Attorney, or Will. The purchase made through Agreement to Sale, Power of Attorney, or Will by Satya Narain did not confer a title upon him to transfer it to the purchasers apart from the fact that it was void in view of purchase after Section 4. Based on purchase made from such owners whose title was not perfect, purchasers had no derivative title in the eye of law. There was no legally recognized title deed in favor of Satya Narain. | 0 | 8,704 | 1,034 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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does not create any interest in immovable property. 25. In Manav Dharam Trust (supra), even the provisions of the Act of 2013 have not been taken into consideration, which prohibits such transactions in particular provisions of section 11, including the proviso to section 24(2). Apart from that, it was not legally permissible to a Division Bench to ignore the decisions of the larger Bench comprising of three Judges and of Co-ordinate Bench. They were not per incuriam and were relevant for deciding the issue of taking possession under Act of 1894, at the instance of purchaser. In case it wanted to depart from the view taken earlier, it ought to have referred the matter to a larger bench. It has been ignored that when a purchase is void, then no declaration can be sought on the ground that the land acquisition under the Act of 2013 has lapsed due to illegality/irregularity of proceedings of taking possession under the Act of 1894. No declaration can be sought by a purchaser under Section 24 that acquisition has lapsed, effect of which would be to get back the land. They cannot seek declaration that acquisition made under the Act of 1894 has lapsed by the challenge to the proceedings of taking possession under the Act of 1894. Such right was not available after the purchase in 2000 and no such right has been provided to the purchasers under the Act of 2013 also. Granting a right to question acquisition would be against the public policy and the law which prohibits such transactions; it cannot be given effect to under the guise of subsequent legislation containing similar provisions. Subsequent legislation does not confer any new right to a person based on such void transaction; instead, it includes a provision prohibiting such transactions without permission of the Collector as provided in Section 11(4). 26. Thus, we have to follow the decisions including that of larger Bench mentioned above, laying down the law on the subject, which still holds the field and were wrongly distinguished. The binding value of the decision of larger and coordinate Benches have been ignored while deciding the Manav Dharam Trust case (supra), it was not open to it to take a different view. The decision in Manav Dharam Trust (supra) is per incuriam in light of this decision of this Court in Mamleshwar Prasad v. Kanahaiya Lal, (1975) 2 SCC 232 , A.R. Anutulay v. R.S. Nayak, (1988) 2 SCC 602 , State of Uttar Pradesh v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , State of B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480 , Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 , Narmada Bachao Andolan (III) v. State of Madhya Pradesh, AIR 2011 SC 1989 , Hyder Consulting (UK) Ltd. v. State of Odisha, (2015) 2 SCC 189 and Sant Lal Gupta v. Modern Coop. Societies Ltd. 2010 13 SCC 336. 27. We hold that Division Bench in Manav Dharam Trust (supra) does not lay down the law correctly. Given the several binding precedents which are available and the provisions of the Act of 2013, we cannot follow the decision in Manav Dharam Trust (supra) and overrule it. Shri S.N. Bhatt, learned counsel submitted that in case this Court does not agree with the Manav Dharam Trust (supra), the case may be referred to Hon?ble the Chief Justice of India under the provisions of Order VI Rule 2 of the Supreme Court Rules, 2013. He has relied upon the decision of this court in Vineeta Sharma v. Rakesh Sharma (2019) 6 SCC 162 in which, in view of the conflict of opinion of two Division Bench judgments of this Court as to the interpretation of section 6 of the Hindu Succession Act, 1956 the matter was referred to the Hon?ble the Chief Justice of India, for constituting an appropriate Bench. However, in the instant case, the issue is different, whether we have to follow the decision in Manav Dharam Trust (supra) or the earlier decisions of this Court mentioned above. It is apparent that the decisions of the Three Judges Bench are binding on us, and in view of other consistent decisions of this Court, we have to follow them. It is not appropriate to refer the case to larger Bench under Order VI Rule 2 of Supreme Court Rules. We find no fault in the Judgments laying down the law that the purchase after section 4 is void as against the State. We are not impressed with the submission raised on behalf of the purchasers to refer the matter for the constitution of a Larger Bench to the Hon?ble Chief Justice. When decisions of Larger Bench and other Division Bench are available, the case cannot be referred to a Larger Bench. 28. Concerning the illegal colony, averments have been made that the colony is an unauthorized and provisional order was passed to regularise it. The plea taken is contradictory and shows the falsity of the claim raised by the purchasers. That, apart predecessors of the purchaser obtained the land-based on Power of Attorney, Agreement to Sell, and Will on 9.12.1982. As per averments made in the writ application, Bijender Singh, who was owning ½ share, sold the share to Satya Narain by the documents like Agreement to Sell, Power of Attorney, or Will. It has also been averred that Om Prakash sold the remaining ½ share to Satya Narain on 11.3.1984 by way of Agreement to Sale, Power of Attorney, or Will. The purchase made through Agreement to Sale, Power of Attorney, or Will by Satya Narain did not confer a title upon him to transfer it to the purchasers apart from the fact that it was void in view of purchase after Section 4. Based on purchase made from such owners whose title was not perfect, purchasers had no derivative title in the eye of law. There was no legally recognized title deed in favor of Satya Narain.
### Response:
0
### Explanation:
5. It is crystal clear that for seeking the relief under section 24, the proceedings for taking possession under Act of 1894 have been put into question as illusory one, and possession continues withis not the case set up that compensation had not been paid to purchasers/owners. The only case set up is that physical possession has not been taken and proceedings of taking over possession have been questioned to take advantage of provisions under Section 24(2) of the Act of 2013. Whereas, averment in the writ petition itself indicates that possession had been taken over in the year 2000 and that unauthorized colonies have come up in the area. Thus, it is clear that possession, if any, is illegal, and in fact, the actual physical possession had been taken, and re-entering in possession in an unauthorized manner can confer no right. There is nothing to doubt that actual physical possession had been taken in 2000. Thus, Section 24(2) is not attracted in the case.Thus, under the provisions of Section 24 of the Act of 2013, challenge to acquisition proceeding of the taking over of possession under the Act of 1894 cannot be made, based on a void transaction nor declaration can be sought under section 24(2) by such incumbents to obtain the land. The declaration that acquisition has lapsed under the Act of 2013 is to get the property back whereas, the transaction once void, is always a void transaction, as no title can be a +cquired in the land as such no such declaration can be sought. It would not be legal, just and equitable to give the land back to purchaser as land was not capable of being sold which was in process of acquisition under the Act of 1894. The Act of 2013 does not confer any right on purchaser whose sale is ab initio void. Such void transactions are not validated under the Act of 2013. No rights are conferred by the provisions contained in the 2013 Act on such a purchaser as against the State.Thus, we have to follow the decisions including that of larger Bench mentioned above, laying down the law on the subject, which still holds the field and were wrongly distinguished. The binding value of the decision of larger and coordinate Benches have been ignored while deciding the Manav Dharam Trust case (supra), it was not open to it to take a different view. The decision in Manav Dharam Trust (supra) is per incuriam in light of this decision of this Court in Mamleshwar Prasad v. Kanahaiya Lal, (1975) 2 SCC 232 , A.R. Anutulay v. R.S. Nayak, (1988) 2 SCC 602 , State of Uttar Pradesh v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , State of B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480 , Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 , Narmada Bachao Andolan (III) v. State of Madhya Pradesh, AIR 2011 SC 1989 , Hyder Consulting (UK) Ltd. v. State of Odisha, (2015) 2 SCC 189 and Sant Lal Gupta v. Modern Coop. Societies Ltd. 2010 13 SCC 336. We hold that Division Bench in Manav Dharam Trust (supra) does not lay down the law correctly. Given the several binding precedents which are available and the provisions of the Act of 2013, we cannot follow the decision in Manav Dharam Trust (supra) and overrulein the instant case, the issue is different, whether we have to follow the decision in Manav Dharam Trust (supra) or the earlier decisions of this Court mentioned above. It is apparent that the decisions of the Three Judges Bench are binding on us, and in view of other consistent decisions of this Court, we have to follow them. It is not appropriate to refer the case to larger Bench under Order VI Rule 2 of Supreme Court Rules. We find no fault in the Judgments laying down the law that the purchase after section 4 is void as against the State. We are not impressed with the submission raised on behalf of the purchasers to refer the matter for the constitution of a Larger Bench to the Hon?ble Chief Justice. When decisions of Larger Bench and other Division Bench are available, the case cannot be referred to a Larger Bench.Concerning the illegal colony, averments have been made that the colony is an unauthorized and provisional order was passed to regularise it. The plea taken is contradictory and shows the falsity of the claim raised by the purchasers. That, apart predecessors of the purchaser obtained the land-based on Power of Attorney, Agreement to Sell, and Will on 9.12.1982. As per averments made in the writ application, Bijender Singh, who was owning ½ share, sold the share to Satya Narain by the documents like Agreement to Sell, Power of Attorney, or Will. It has also been averred that Om Prakash sold the remaining ½ share to Satya Narain on 11.3.1984 by way of Agreement to Sale, Power of Attorney, or Will. The purchase made through Agreement to Sale, Power of Attorney, or Will by Satya Narain did not confer a title upon him to transfer it to the purchasers apart from the fact that it was void in view of purchase after Section 4. Based on purchase made from such owners whose title was not perfect, purchasers had no derivative title in the eye of law. There was no legally recognized title deed in favor of Satya Narain.
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Venkatamma & Others Vs. City Improvement of Trust Board, Mysore & Others | their objections, the appellants were aware of the fact that the scheme also provide for shopping sites. According to Paragraph 1 of Smt. Venkatammas objection, the scheme was illegal as it was meant "to beautify and straighten recently proposed road and to construct the shops which is nothing but a profiteering scheme". Paragraph 13 of the objection stated that the space set apart in the scheme for the construction of shops, should be given to the owner. So Smt. Venkatamma and others were aware of the fact that their land was being acquired also for shopping sites. They had made objections against that part of the scheme. They had said all that could be said against that part of the scheme. But their objection was not accepted. U. L. Vishwanatha Rao and others had applied to the Board for allotment of a shop site to them. Thus they were also aware of the fact that the scheme also provided for the acquisition of land for shopping sites. In the result we find no substance in the argument. 7. The next argument is that the land cannot be acquired for shopping sites. It seems to us that the Board is competent to acquire land for shopping sites. Such a power is comprehended to Section 15(1)(b) and Section 15(2)(d). According to Section 15(1)(b) the improvement scheme may provide for the construction of buildings. Shops are buildings. So land may be acquired for building shops. According to Section 15(2)(d) the scheme may provide for the establishment or construction of markets. It appears to us that the construction of shops is in effect the construction of a market. So the acquisition of land for shopping sites is permissible under the Act. 8. The last argument is that the land for shopping sites is not being acquired for a public purpose because the scheme is that the shopping sites would be let out to private individuals who will erect shops thereon. It is said that it amounts to the acquisition of the land of A for the purpose of giving it to B, and that is not permissible under our Constitution. Support is sought to be given to the argument by the assertion that compensation for the shopping sites was to be paid not by the Board, but by private individuals to whom they would be let out. On July 26, 1943, certain merchants of the city gave an application to the Board for allotment of shopping sites to them. They stated in their application that they were prepared to meet the cost of acquisition which was expected to amount to rupees four lakhs. On July 28, 1943, the Board passed a resolution regarding the scheme. The resolution stated that it was understood that the scheme could be self-supporting as several merchants had already proposed to deposit the costs of acquisition for shopping sites. But from these two documents no inference can be drawn that the compensation amount was not to come from the funds of the Board. The resolution of the Board, dated November 27, 1945, which rejected the objections of the owners of the land proposed to be acquired, does not make any mention of the payment of compensation by private individuals. Similarly, the Boards resolution, dated January 30, 1946, rejecting another set of objections to the scheme, does not make any mention of payment of compensation by private individuals. There is no evidence on record to show that compensation would not be paid from the funds of the Board. 9. Any purpose which directly benefits the public or a section of the public is a public purpose. This is not denied. It does not require much argument to show that the shops would cater for the needs of the persons living in the locality. But for the shops proposed to be built, the residents of the locality would have to go to distant parts of the city for shopping. So the building of shops in the locality would add to the comfort and convenience of the persons living there. Accordingly the land is being acquired for a public purpose. 10. In Arnold Rodricks and Another v. State of Maharashtra, ((1966) 3 SCR 885 : AIR 1966 SC 1788 : (1967) 1 SCA 384) land was acquired for "development and utilisation of industrial and residential areas". The majority as well as the minority judgments held that the land was acquired for a public purpose. The argument that the land was being acquired from A for the purpose of giving it to B was not accepted. Speaking for the majority Sikri, J. (now Chief Justice) said : "It is true that these residential and industrial sites will be ultimately allotted to members of the public and they would get individual benefit, but it is in the interest of the general community that these members of the public should be able to have sites to put up residential houses and sites to put up factories. The main idea in issuing the impugned notifications was not to think of the private comfort or advantage of the members of the public but the general public good". Wanchoo, J., in his separate judgment expressed himself more emphatically. He said that there was "no reason why the State or the local authority should not have the power to see that further development takes place even through private agencies by lease, assignment or sale of such land. So long as the object is development and the land is made fit for the purpose for which it is acquired, there is no reason why the State should not be permitted to see that further development of the land takes place in the direction for which the land is acquired and even though that may be through private agencies ............" Indeed, development partly with the aid of private agencies has generally been adopted by various statues dealing with the improvement of cities in this country. So this argument also cannot be accepted. | 0[ds]6. The notification under Section 16 specified the purpose of acquisition as "forming a straight Road Scheme from Elgin Fountain to District Office and from Kotwal Krishniahs street to Chamundeswari Road". The notification under Section 18 declared that the acquisition were being made "for the second stage of the Straight Road Scheme". There is no mention of the purpose of shopping sites in the notification. But the objection now taken before us was never before raised by the appellants. It was not raised even in the High Court. It is borne out from the record that the scheme did include a provision for the acquisition of land for shopping sites. The Government Order, dated April 24, 1961, refers to an earlier Government Order of January 3, 1957. The Government Order of January 3, 1957, states that the Governments sanction was accorded to the scheme "for the formation of straight road and shopping sites". It cannot accordingly be urged that the scheme did not contain any such provision. Although the notification under Sections 16 and 18 and the notice served upon the appellants under Section 16(2) did not disclose that the land was being acquired for shopping sites, we are satisfied that no prejudice has thereby been caused to the appellants in making representation against the scheme. At the time of filing their objections, the appellants were aware of the fact that the scheme also provide for shopping sites. According to Paragraph 1 of Smt. Venkatammas objection, the scheme was illegal as it was meant "to beautify and straighten recently proposed road and to construct the shops which is nothing but a profiteering scheme". Paragraph 13 of the objection stated that the space set apart in the scheme for the construction of shops, should be given to the owner. So Smt. Venkatamma and others were aware of the fact that their land was being acquired also for shopping sites. They had made objections against that part of the scheme. They had said all that could be said against that part of the scheme. But their objection was not accepted. U. L. Vishwanatha Rao and others had applied to the Board for allotment of a shop site to them. Thus they were also aware of the fact that the scheme also provided for the acquisition of land for shopping sites. In the result we find no substance in the argument7. The next argument is that the land cannot be acquired for shoppingsites.It seems to us that the Board is competent to acquire land for shoppingsites.Such a power is comprehended to Section 15(1)(b) and Section 15(2)(d). According to Section 15(1)(b) the improvement scheme may provide for the construction of buildings. Shops are buildings. So land may be acquired for building shops. According to Section 15(2)(d) the scheme may provide for the establishment or construction of markets. It appears to us that the construction of shops is in effect the construction of a market. So the acquisition of land for shopping sites is permissible under the Act8. The last argument is that the land for shopping sites is not being acquired for a public purpose because the scheme is that the shopping sites would be let out to private individuals who will erect shops thereon. It is said that it amounts to the acquisition of the land of A for the purpose of giving it to B, and that is not permissible under our Constitution. Support is sought to be given to the argument by the assertion that compensation for the shopping sites was to be paid not by the Board, but by private individuals to whom they would be let out.On July 26, 1943, certain merchants of the city gave an application to the Board for allotment of shopping sites to them. They stated in their application that they were prepared to meet the cost of acquisition which was expected to amount to rupees four lakhs. On July 28, 1943, the Board passed a resolution regarding the scheme. The resolution stated that it was understood that the scheme could beg as several merchants had already proposed to deposit the costs of acquisition for shoppingsites.But from these two documents no inference can be drawn that the compensation amount was not to come from the funds of the Board. The resolution of the Board, dated November 27, 1945, which rejected the objections of the owners of the land proposed to be acquired, does not make any mention of the payment of compensation by private individuals. Similarly, the Boards resolution, dated January 30, 1946, rejecting another set of objections to the scheme, does not make any mention of payment of compensation by private individuals. There is no evidence on record to show that compensation would not be paid from the funds of the Board9. Any purpose which directly benefits the public or a section of the public is a public purpose. This is not denied. It does not require much argument to show that the shops would cater for the needs of the persons living in the locality. But for the shops proposed to be built, the residents of the locality would have to go to distant parts of the city for shopping. So the building of shops in the locality would add to the comfort and convenience of the persons living there. Accordingly the land is being acquired for a public purpose10. In Arnold Rodricks and Another v. State of Maharashtra, ((1966) 3 SCR 885 : AIR 1966 SC 1788 : (1967) 1 SCA 384) land was acquired for "development and utilisation of industrial and residential areas". The majority as well as the minority judgments held that the land was acquired for a public purpose. The argument that the land was being acquired from A for the purpose of giving it to B was not accepted. Speaking for the majority Sikri, J. (now Chief Justice) said : "It is true that these residential and industrial sites will be ultimately allotted to members of the public and they would get individual benefit, but it is in the interest of the general community that these members of the public should be able to have sites to put up residential houses and sites to put up factories. The main idea in issuing the impugned notifications was not to think of the private comfort or advantage of the members of the public but the general public good". Wanchoo, J., in his separate judgment expressed himself more emphatically. He said that there was "no reason why the State or the local authority should not have the power to see that further development takes place even through private agencies by lease, assignment or sale of such land. So long as the object is development and the land is made fit for the purpose for which it is acquired, there is no reason why the State should not be permitted to see that further development of the land takes place in the direction for which the land is acquired and even though that may be through private agencies ............" Indeed, development partly with the aid of private agencies has generally been adopted by various statues dealing with the improvement of cities in this country. So this argument also cannot be accepted. | 0 | 2,001 | 1,354 | ### 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:
their objections, the appellants were aware of the fact that the scheme also provide for shopping sites. According to Paragraph 1 of Smt. Venkatammas objection, the scheme was illegal as it was meant "to beautify and straighten recently proposed road and to construct the shops which is nothing but a profiteering scheme". Paragraph 13 of the objection stated that the space set apart in the scheme for the construction of shops, should be given to the owner. So Smt. Venkatamma and others were aware of the fact that their land was being acquired also for shopping sites. They had made objections against that part of the scheme. They had said all that could be said against that part of the scheme. But their objection was not accepted. U. L. Vishwanatha Rao and others had applied to the Board for allotment of a shop site to them. Thus they were also aware of the fact that the scheme also provided for the acquisition of land for shopping sites. In the result we find no substance in the argument. 7. The next argument is that the land cannot be acquired for shopping sites. It seems to us that the Board is competent to acquire land for shopping sites. Such a power is comprehended to Section 15(1)(b) and Section 15(2)(d). According to Section 15(1)(b) the improvement scheme may provide for the construction of buildings. Shops are buildings. So land may be acquired for building shops. According to Section 15(2)(d) the scheme may provide for the establishment or construction of markets. It appears to us that the construction of shops is in effect the construction of a market. So the acquisition of land for shopping sites is permissible under the Act. 8. The last argument is that the land for shopping sites is not being acquired for a public purpose because the scheme is that the shopping sites would be let out to private individuals who will erect shops thereon. It is said that it amounts to the acquisition of the land of A for the purpose of giving it to B, and that is not permissible under our Constitution. Support is sought to be given to the argument by the assertion that compensation for the shopping sites was to be paid not by the Board, but by private individuals to whom they would be let out. On July 26, 1943, certain merchants of the city gave an application to the Board for allotment of shopping sites to them. They stated in their application that they were prepared to meet the cost of acquisition which was expected to amount to rupees four lakhs. On July 28, 1943, the Board passed a resolution regarding the scheme. The resolution stated that it was understood that the scheme could be self-supporting as several merchants had already proposed to deposit the costs of acquisition for shopping sites. But from these two documents no inference can be drawn that the compensation amount was not to come from the funds of the Board. The resolution of the Board, dated November 27, 1945, which rejected the objections of the owners of the land proposed to be acquired, does not make any mention of the payment of compensation by private individuals. Similarly, the Boards resolution, dated January 30, 1946, rejecting another set of objections to the scheme, does not make any mention of payment of compensation by private individuals. There is no evidence on record to show that compensation would not be paid from the funds of the Board. 9. Any purpose which directly benefits the public or a section of the public is a public purpose. This is not denied. It does not require much argument to show that the shops would cater for the needs of the persons living in the locality. But for the shops proposed to be built, the residents of the locality would have to go to distant parts of the city for shopping. So the building of shops in the locality would add to the comfort and convenience of the persons living there. Accordingly the land is being acquired for a public purpose. 10. In Arnold Rodricks and Another v. State of Maharashtra, ((1966) 3 SCR 885 : AIR 1966 SC 1788 : (1967) 1 SCA 384) land was acquired for "development and utilisation of industrial and residential areas". The majority as well as the minority judgments held that the land was acquired for a public purpose. The argument that the land was being acquired from A for the purpose of giving it to B was not accepted. Speaking for the majority Sikri, J. (now Chief Justice) said : "It is true that these residential and industrial sites will be ultimately allotted to members of the public and they would get individual benefit, but it is in the interest of the general community that these members of the public should be able to have sites to put up residential houses and sites to put up factories. The main idea in issuing the impugned notifications was not to think of the private comfort or advantage of the members of the public but the general public good". Wanchoo, J., in his separate judgment expressed himself more emphatically. He said that there was "no reason why the State or the local authority should not have the power to see that further development takes place even through private agencies by lease, assignment or sale of such land. So long as the object is development and the land is made fit for the purpose for which it is acquired, there is no reason why the State should not be permitted to see that further development of the land takes place in the direction for which the land is acquired and even though that may be through private agencies ............" Indeed, development partly with the aid of private agencies has generally been adopted by various statues dealing with the improvement of cities in this country. So this argument also cannot be accepted.
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against the scheme. At the time of filing their objections, the appellants were aware of the fact that the scheme also provide for shopping sites. According to Paragraph 1 of Smt. Venkatammas objection, the scheme was illegal as it was meant "to beautify and straighten recently proposed road and to construct the shops which is nothing but a profiteering scheme". Paragraph 13 of the objection stated that the space set apart in the scheme for the construction of shops, should be given to the owner. So Smt. Venkatamma and others were aware of the fact that their land was being acquired also for shopping sites. They had made objections against that part of the scheme. They had said all that could be said against that part of the scheme. But their objection was not accepted. U. L. Vishwanatha Rao and others had applied to the Board for allotment of a shop site to them. Thus they were also aware of the fact that the scheme also provided for the acquisition of land for shopping sites. In the result we find no substance in the argument7. The next argument is that the land cannot be acquired for shoppingsites.It seems to us that the Board is competent to acquire land for shoppingsites.Such a power is comprehended to Section 15(1)(b) and Section 15(2)(d). According to Section 15(1)(b) the improvement scheme may provide for the construction of buildings. Shops are buildings. So land may be acquired for building shops. According to Section 15(2)(d) the scheme may provide for the establishment or construction of markets. It appears to us that the construction of shops is in effect the construction of a market. So the acquisition of land for shopping sites is permissible under the Act8. The last argument is that the land for shopping sites is not being acquired for a public purpose because the scheme is that the shopping sites would be let out to private individuals who will erect shops thereon. It is said that it amounts to the acquisition of the land of A for the purpose of giving it to B, and that is not permissible under our Constitution. Support is sought to be given to the argument by the assertion that compensation for the shopping sites was to be paid not by the Board, but by private individuals to whom they would be let out.On July 26, 1943, certain merchants of the city gave an application to the Board for allotment of shopping sites to them. They stated in their application that they were prepared to meet the cost of acquisition which was expected to amount to rupees four lakhs. On July 28, 1943, the Board passed a resolution regarding the scheme. The resolution stated that it was understood that the scheme could beg as several merchants had already proposed to deposit the costs of acquisition for shoppingsites.But from these two documents no inference can be drawn that the compensation amount was not to come from the funds of the Board. The resolution of the Board, dated November 27, 1945, which rejected the objections of the owners of the land proposed to be acquired, does not make any mention of the payment of compensation by private individuals. Similarly, the Boards resolution, dated January 30, 1946, rejecting another set of objections to the scheme, does not make any mention of payment of compensation by private individuals. There is no evidence on record to show that compensation would not be paid from the funds of the Board9. Any purpose which directly benefits the public or a section of the public is a public purpose. This is not denied. It does not require much argument to show that the shops would cater for the needs of the persons living in the locality. But for the shops proposed to be built, the residents of the locality would have to go to distant parts of the city for shopping. So the building of shops in the locality would add to the comfort and convenience of the persons living there. Accordingly the land is being acquired for a public purpose10. In Arnold Rodricks and Another v. State of Maharashtra, ((1966) 3 SCR 885 : AIR 1966 SC 1788 : (1967) 1 SCA 384) land was acquired for "development and utilisation of industrial and residential areas". The majority as well as the minority judgments held that the land was acquired for a public purpose. The argument that the land was being acquired from A for the purpose of giving it to B was not accepted. Speaking for the majority Sikri, J. (now Chief Justice) said : "It is true that these residential and industrial sites will be ultimately allotted to members of the public and they would get individual benefit, but it is in the interest of the general community that these members of the public should be able to have sites to put up residential houses and sites to put up factories. The main idea in issuing the impugned notifications was not to think of the private comfort or advantage of the members of the public but the general public good". Wanchoo, J., in his separate judgment expressed himself more emphatically. He said that there was "no reason why the State or the local authority should not have the power to see that further development takes place even through private agencies by lease, assignment or sale of such land. So long as the object is development and the land is made fit for the purpose for which it is acquired, there is no reason why the State should not be permitted to see that further development of the land takes place in the direction for which the land is acquired and even though that may be through private agencies ............" Indeed, development partly with the aid of private agencies has generally been adopted by various statues dealing with the improvement of cities in this country. So this argument also cannot be accepted.
|
S. Thangaraj Vs. National Insurance Co. Ltd. Rep. by the Branch Manager | Dr. D.Y. Chandrachud, J.1. Delay condoned.2. The claim arises out of a disability sustained as a result of a motor accident. The Tribunal granted compensation to the claimant in the amount of Rs. 11,27,359 together with interest at 12 per cent per annum. The High Court has simply reduced the interest awarded by the Tribunal to 7.5 per cent per annum while maintaining the award of compensation. The claimant is in appeal.3. The accident took place on 1 August 2004. The appellant was 26 years old at the time of the accident. The accident took place when the appellant was a pillion rider on a motor cycle ridden by one Edwin. As the motor cycle was proceeding from Marthandam, a lorry bearing Registration No.TN 69 Z 2979 dashed against it. The lorry thereafter dashed against an electric pole and collided with a residential property resulting in the death of an occupant of the house. The appellant sustained serious injuries in the accident. The injuries have been described in the evidence of PW 4, the doctor at the hospital where the appellant was treated. The appellant sustained a fracture in his spinal cord, right leg and right hip bone. As a result of the accident the appellant has no sensation or movement in his legs. The Tribunal accepted the evidence of PW 4 and observed thus:"Moreover PW 4 the doctor has stated in his evidence that below the abdomen of the petitioner, there is no movement and sensation in two legs..."The Tribunal determined the disability at 70%, on the basis of medical opinion. The Tribunal computed the compensation payable to the appellant on account of the loss of income occasioned by the disability at Rs. 9,72,000. However, on the basis of the opinion of the doctor that the disability was to the extent of 70 per cent, the net amount was determined at Rs. 6,80,400. After taking into account the medical and other expenses, the Tribunal awarded a total compensation of Rs. 11,27,359 together with interest of 12 per cent per annum.4. Before the High Court, the insurer filed an appeal against the award of the Tribunal. The appellant filed cross objections. The High Court has reduced the interest component from 12 per cent per annum to 7.5 per cent per annum.5. Learned counsel appearing on behalf of the appellant submits that the High Court has not assessed the compensation in a correct manner. There was - it has been urged - no justification to compute the disability at 70 per cent. The appellant was at the relevant time a load man engaged by a building contractor. The nature of the disability involves a complete loss of sensation in both the legs. Hence, it would not be possible for him to work as a load man. Moreover it was urged that there was no justification to reduce the award of interest to 7.5 per cent per annum and the award of the Tribunal on interest should be maintained.6. On the other hand it has been urged on behalf of the insurer that the High Court was justified in maintaining the award of compensation since it was urged on behalf of the appellant-claimant at the hearing before the High Court that the Tribunal had granted just and reasonable compensation. Learned counsel supported the judgment of the High Court.7. Having perused the order passed by the High Court, we are not in agreement with the submission of the insurer that there was a concession on the part of the appellant before the High Court which must bind him. The statement made by counsel for the appellant before the High Court was on whether the Tribunal had granted just and reasonable compensation. Whether in fact the compensation which has been granted is just and reasonable cannot hence be construed as a matter of concession and it would not preclude the appellant from raising a contest in these proceedings.8. On perusing the record it is evident that the injuries sustained by the appellant are indeed of a serious nature. As a result of the multiple fractures sustained by him, the appellant has lost complete sensation below the abdomen. Evidently he cannot work any more as load man. In these circumstances, the assessment of disability at 70 per cent is incorrect. On a realistic view of the matter, the nature of the disability must be regarded as being complete. In the circumstances, we find no reason or justification for the deduction of an amount of Rs. 2,91,600 by the Tribunal (Rs. 9,72,000 minus Rs. 6,80,400). The amount so deducted must be restored and is rounded off to Rs. 3,00,000. Moreover we are of the view that the appellant is entitled to interest at the rate of 9 per cent per annum from the date of the claim petition. | 1[ds]7. Having perused the order passed by the High Court, we are not in agreement with the submission of the insurer that there was a concession on the part of the appellant before the High Court which must bind him. The statement made by counsel for the appellant before the High Court was on whether the Tribunal had granted just and reasonable compensation. Whether in fact the compensation which has been granted is just and reasonable cannot hence be construed as a matter of concession and it would not preclude the appellant from raising a contest in these proceedings.8. On perusing the record it is evident that the injuries sustained by the appellant are indeed of a serious nature. As a result of the multiple fractures sustained by him, the appellant has lost complete sensation below the abdomen. Evidently he cannot work any more as load man. In these circumstances, the assessment of disability at 70 per cent is incorrect. On a realistic view of the matter, the nature of the disability must be regarded as being complete. In the circumstances, we find no reason or justification for the deduction of an amount of Rs. 2,91,600 by the Tribunal (Rs. 9,72,000 minus Rs. 6,80,400). The amount so deducted must be restored and is rounded off to Rs. 3,00,000. Moreover we are of the view that the appellant is entitled to interest at the rate of 9 per cent per annum from the date of the claim petition. | 1 | 879 | 276 | ### 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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Dr. D.Y. Chandrachud, J.1. Delay condoned.2. The claim arises out of a disability sustained as a result of a motor accident. The Tribunal granted compensation to the claimant in the amount of Rs. 11,27,359 together with interest at 12 per cent per annum. The High Court has simply reduced the interest awarded by the Tribunal to 7.5 per cent per annum while maintaining the award of compensation. The claimant is in appeal.3. The accident took place on 1 August 2004. The appellant was 26 years old at the time of the accident. The accident took place when the appellant was a pillion rider on a motor cycle ridden by one Edwin. As the motor cycle was proceeding from Marthandam, a lorry bearing Registration No.TN 69 Z 2979 dashed against it. The lorry thereafter dashed against an electric pole and collided with a residential property resulting in the death of an occupant of the house. The appellant sustained serious injuries in the accident. The injuries have been described in the evidence of PW 4, the doctor at the hospital where the appellant was treated. The appellant sustained a fracture in his spinal cord, right leg and right hip bone. As a result of the accident the appellant has no sensation or movement in his legs. The Tribunal accepted the evidence of PW 4 and observed thus:"Moreover PW 4 the doctor has stated in his evidence that below the abdomen of the petitioner, there is no movement and sensation in two legs..."The Tribunal determined the disability at 70%, on the basis of medical opinion. The Tribunal computed the compensation payable to the appellant on account of the loss of income occasioned by the disability at Rs. 9,72,000. However, on the basis of the opinion of the doctor that the disability was to the extent of 70 per cent, the net amount was determined at Rs. 6,80,400. After taking into account the medical and other expenses, the Tribunal awarded a total compensation of Rs. 11,27,359 together with interest of 12 per cent per annum.4. Before the High Court, the insurer filed an appeal against the award of the Tribunal. The appellant filed cross objections. The High Court has reduced the interest component from 12 per cent per annum to 7.5 per cent per annum.5. Learned counsel appearing on behalf of the appellant submits that the High Court has not assessed the compensation in a correct manner. There was - it has been urged - no justification to compute the disability at 70 per cent. The appellant was at the relevant time a load man engaged by a building contractor. The nature of the disability involves a complete loss of sensation in both the legs. Hence, it would not be possible for him to work as a load man. Moreover it was urged that there was no justification to reduce the award of interest to 7.5 per cent per annum and the award of the Tribunal on interest should be maintained.6. On the other hand it has been urged on behalf of the insurer that the High Court was justified in maintaining the award of compensation since it was urged on behalf of the appellant-claimant at the hearing before the High Court that the Tribunal had granted just and reasonable compensation. Learned counsel supported the judgment of the High Court.7. Having perused the order passed by the High Court, we are not in agreement with the submission of the insurer that there was a concession on the part of the appellant before the High Court which must bind him. The statement made by counsel for the appellant before the High Court was on whether the Tribunal had granted just and reasonable compensation. Whether in fact the compensation which has been granted is just and reasonable cannot hence be construed as a matter of concession and it would not preclude the appellant from raising a contest in these proceedings.8. On perusing the record it is evident that the injuries sustained by the appellant are indeed of a serious nature. As a result of the multiple fractures sustained by him, the appellant has lost complete sensation below the abdomen. Evidently he cannot work any more as load man. In these circumstances, the assessment of disability at 70 per cent is incorrect. On a realistic view of the matter, the nature of the disability must be regarded as being complete. In the circumstances, we find no reason or justification for the deduction of an amount of Rs. 2,91,600 by the Tribunal (Rs. 9,72,000 minus Rs. 6,80,400). The amount so deducted must be restored and is rounded off to Rs. 3,00,000. Moreover we are of the view that the appellant is entitled to interest at the rate of 9 per cent per annum from the date of the claim petition.
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7. Having perused the order passed by the High Court, we are not in agreement with the submission of the insurer that there was a concession on the part of the appellant before the High Court which must bind him. The statement made by counsel for the appellant before the High Court was on whether the Tribunal had granted just and reasonable compensation. Whether in fact the compensation which has been granted is just and reasonable cannot hence be construed as a matter of concession and it would not preclude the appellant from raising a contest in these proceedings.8. On perusing the record it is evident that the injuries sustained by the appellant are indeed of a serious nature. As a result of the multiple fractures sustained by him, the appellant has lost complete sensation below the abdomen. Evidently he cannot work any more as load man. In these circumstances, the assessment of disability at 70 per cent is incorrect. On a realistic view of the matter, the nature of the disability must be regarded as being complete. In the circumstances, we find no reason or justification for the deduction of an amount of Rs. 2,91,600 by the Tribunal (Rs. 9,72,000 minus Rs. 6,80,400). The amount so deducted must be restored and is rounded off to Rs. 3,00,000. Moreover we are of the view that the appellant is entitled to interest at the rate of 9 per cent per annum from the date of the claim petition.
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Pearey Lal Vs. Rameshwar Das | knowledge of the meaning of the word "malik" the testator proceeded to describe the interest conferred on his wife in the same terms, namely, that she should become "malik" without partnership with anybody. If the will stopped there, there could not have been any controversy as regards the nature of the bequest. But the testator proceeded to state that after the death of his wife, his adopted son would become "malik" without partnership with anybody. The words must bear the same meaning i.e., the testator intended that after the death of his wife, his adopted son should become the absolute owner of the property. These two bequests prima facie appear to be inconsistent with each other, for there are two absolute bequests of the same property in favour of his wife and, after her death, in favour of his son. Two constructions are possible, one is to accept the first and negative the second on the ground that it is repugnant to the first; the other is to make an attempt to reconcile both in a way legally permissible. Both can be reconciled and full meaning given to all the words used by the testator, if it be held that there was an absolute bequest in favour of the wife with a gift over to operate by way of defeasance, that is to say, if the son survived the wife, the absolute interest of the wife would be cut down and the son would take an absolute interest in the same. If that was the construction, the statement in the will relied upon by learned counsel for the appellant could also be reconciled with such a bequest. That statement recorded a wish on the part of the testator that his wife should reside in the house, for he wanted his minor son and wife to continue to live in his house. The second part of the statement also recorded a wish on his part that his wife should keep the property intact and hand over the same to his son, who would also be a full owner like himself. Be it as it may, the said statement could not detract from the clear words used earlier. If the argument of learned counsel for the appellant be accepted, this Court would be rewriting the will for the testator and introducing words which are not there: it would be cutting down the meaning of the words which the testator designedly used to convey a larger interest to his wife. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. If the construction suggested by learned counsel be adopted, in the event of his son predeceasing the testator, there would be intestacy after the death of the wife. If the construction suggested by the respondent be adopted, in the event that happened it would not bring about intestacy, as the defeasance clause would not come into operation. That was the intention of the testator is also clear from the fact that he mentioned in the will that no other relation except his wife and son should take his property and also from the fact that though he lived for about a quarter of a century after the execution of the will, he never thought of changing the will though his son, had predeceased his wife.Learned counsel for the appellant relied upon the decision of Varadachariar., J., in Subbamma V. Ramanaidu (A.I.R. 1937 Mad. 476, 477 .): There the testator created a limited interest in favour of the widow followed by gift over to grandchildren. In describing the bequest in favour of the widow, the testator used the word "Hakdar" meaning "owner". Still the learned judge held that the widow took only a womans estate and the grandchildren took the remainder. The learned judge observed : "To avoid such a possibility, the proper rule of construction has been held to be to take the will as a whole; and the presence of a gift over, which is not a mere gift by way of defeasance, has generally been held to be an indication that the prior gift was only a limited interest." The learned judge also relied upon the other circumstances of the will in coming to that conclusion. This decision accepted the same proposition which this Court has laid down in Ra it Gopal v. Nand Lal ([1950] S.C.R. 766, 773.), namely, that the entire document should be considered in arriving at the intention of the testator. No decision on the construction of a will can be of use in construing another document, unless all the important recitals are similar. A document will have to be construed on its own terms. In the circumstances of the present document, we have come to the conclusion that under the will the gift over in favour of the son is only by way of defeasance. 5. We cannot allow the learned counsel to raise the second contention, for it was not raised before the District Court, before Khosla J., and before the division Bench of the High Court, It was raised before the Subordinate judge but the learned Subordinate judge held, on the evidence, that the will had not been proved and indeed he came to the conclusion that the testator was not of sound mind on the date when the will was alleged to have been executed. The point raises a mixed queston of fact and law and there are no exceptional grounds for deviating from the usual practice of this Court and allowing the appellant to raise this point here when he failed todo so in the two courts below. | 0[ds]It is not disputed, and it cannot be disputed, that the said description of his right is that of an absolute interest. The expression "malik" has a well-known connotation and it has found judicial recongnition in various decisions of High Courts and the Privy Council. It may not be a term of art but is a word of definite content that has become part of the vocabulary of the common man and particularly of document writers. When the testator used the said word he -must have intended to convey the accepted meaning of the said wordIt is not necessary to multiply decisions, as the expression "malik" has been consistently understood by courts as conveying the idea of absolute ownership. It must, therefore, be held that the testator used the word "malik" to describe his absolute interest in the property. Apart from the meaning generally given to this word, the testator himself furnished a dictionary for interpreting the said term in the will. With the knowledge of the meaning of the word "malik" the testator proceeded to describe the interest conferred on his wife in the same terms, namely, that she should become "malik" without partnership with anybody. If the will stopped there, there could not have been any controversy as regards the nature of the bequest. But the testator proceeded to state that after the death of his wife, his adopted son would become "malik" without partnership with anybody. The words must bear the same meaning i.e., the testator intended that after the death of his wife, his adopted son should become the absolute owner of the property. These two bequests prima facie appear to be inconsistent with each other, for there are two absolute bequests of the same property in favour of his wife and, after her death, in favour of his son. Two constructions are possible, one is to accept the first and negative the second on the ground that it is repugnant to the first; the other is to make an attempt to reconcile both in a way legally permissible. Both can be reconciled and full meaning given to all the words used by the testator, if it be held that there was an absolute bequest in favour of the wife with a gift over to operate by way of defeasance, that is to say, if the son survived the wife, the absolute interest of the wife would be cut down and the son would take an absolute interest in the same. If that was the construction, the statement in the will relied upon by learned counsel for the appellant could also be reconciled with such a bequest. That statement recorded a wish on the part of the testator that his wife should reside in the house, for he wanted his minor son and wife to continue to live in his house. The second part of the statement also recorded a wish on his part that his wife should keep the property intact and hand over the same to his son, who would also be a full owner like himself. Be it as it may, the said statement could not detract from the clear words used earlier. If the argument of learned counsel for the appellant be accepted, this Court would be rewriting the will for the testator and introducing words which are not there: it would be cutting down the meaning of the words which the testator designedly used to convey a larger interest to his wife. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. If the construction suggested by learned counsel be adopted, in the event of his son predeceasing the testator, there would be intestacy after the death of the wife. If the construction suggested by the respondent be adopted, in the event that happened it would not bring about intestacy, as the defeasance clause would not come into operation. That was the intention of the testator is also clear from the fact that he mentioned in the will that no other relation except his wife and son should take his property and also from the fact that though he lived for about a quarter of a century after the execution of the will, he never thought of changing the will though his son, had predeceased his wifeNo decision on the construction of a will can be of use in construing another document, unless all the important recitals are similar. A document will have to be construed on its own terms. In the circumstances of the present document, we have come to the conclusion that under the will the gift over in favour of the son is only by way of defeasanceWe cannot allow the learned counsel to raise the second contention, for it was not raised before the District Court, before Khosla J., and before the division Bench of the High Court, It was raised before the Subordinate judge but the learned Subordinate judge held, on the evidence, that the will had not been proved and indeed he came to the conclusion that the testator was not of sound mind on the date when the will was alleged to have been executed. The point raises a mixed queston of fact and law and there are no exceptional grounds for deviating from the usual practice of this Court and allowing the appellant to raise this point here when he failed todo so in the two courts below. | 0 | 3,291 | 1,057 | ### 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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knowledge of the meaning of the word "malik" the testator proceeded to describe the interest conferred on his wife in the same terms, namely, that she should become "malik" without partnership with anybody. If the will stopped there, there could not have been any controversy as regards the nature of the bequest. But the testator proceeded to state that after the death of his wife, his adopted son would become "malik" without partnership with anybody. The words must bear the same meaning i.e., the testator intended that after the death of his wife, his adopted son should become the absolute owner of the property. These two bequests prima facie appear to be inconsistent with each other, for there are two absolute bequests of the same property in favour of his wife and, after her death, in favour of his son. Two constructions are possible, one is to accept the first and negative the second on the ground that it is repugnant to the first; the other is to make an attempt to reconcile both in a way legally permissible. Both can be reconciled and full meaning given to all the words used by the testator, if it be held that there was an absolute bequest in favour of the wife with a gift over to operate by way of defeasance, that is to say, if the son survived the wife, the absolute interest of the wife would be cut down and the son would take an absolute interest in the same. If that was the construction, the statement in the will relied upon by learned counsel for the appellant could also be reconciled with such a bequest. That statement recorded a wish on the part of the testator that his wife should reside in the house, for he wanted his minor son and wife to continue to live in his house. The second part of the statement also recorded a wish on his part that his wife should keep the property intact and hand over the same to his son, who would also be a full owner like himself. Be it as it may, the said statement could not detract from the clear words used earlier. If the argument of learned counsel for the appellant be accepted, this Court would be rewriting the will for the testator and introducing words which are not there: it would be cutting down the meaning of the words which the testator designedly used to convey a larger interest to his wife. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. If the construction suggested by learned counsel be adopted, in the event of his son predeceasing the testator, there would be intestacy after the death of the wife. If the construction suggested by the respondent be adopted, in the event that happened it would not bring about intestacy, as the defeasance clause would not come into operation. That was the intention of the testator is also clear from the fact that he mentioned in the will that no other relation except his wife and son should take his property and also from the fact that though he lived for about a quarter of a century after the execution of the will, he never thought of changing the will though his son, had predeceased his wife.Learned counsel for the appellant relied upon the decision of Varadachariar., J., in Subbamma V. Ramanaidu (A.I.R. 1937 Mad. 476, 477 .): There the testator created a limited interest in favour of the widow followed by gift over to grandchildren. In describing the bequest in favour of the widow, the testator used the word "Hakdar" meaning "owner". Still the learned judge held that the widow took only a womans estate and the grandchildren took the remainder. The learned judge observed : "To avoid such a possibility, the proper rule of construction has been held to be to take the will as a whole; and the presence of a gift over, which is not a mere gift by way of defeasance, has generally been held to be an indication that the prior gift was only a limited interest." The learned judge also relied upon the other circumstances of the will in coming to that conclusion. This decision accepted the same proposition which this Court has laid down in Ra it Gopal v. Nand Lal ([1950] S.C.R. 766, 773.), namely, that the entire document should be considered in arriving at the intention of the testator. No decision on the construction of a will can be of use in construing another document, unless all the important recitals are similar. A document will have to be construed on its own terms. In the circumstances of the present document, we have come to the conclusion that under the will the gift over in favour of the son is only by way of defeasance. 5. We cannot allow the learned counsel to raise the second contention, for it was not raised before the District Court, before Khosla J., and before the division Bench of the High Court, It was raised before the Subordinate judge but the learned Subordinate judge held, on the evidence, that the will had not been proved and indeed he came to the conclusion that the testator was not of sound mind on the date when the will was alleged to have been executed. The point raises a mixed queston of fact and law and there are no exceptional grounds for deviating from the usual practice of this Court and allowing the appellant to raise this point here when he failed todo so in the two courts below.
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It is not disputed, and it cannot be disputed, that the said description of his right is that of an absolute interest. The expression "malik" has a well-known connotation and it has found judicial recongnition in various decisions of High Courts and the Privy Council. It may not be a term of art but is a word of definite content that has become part of the vocabulary of the common man and particularly of document writers. When the testator used the said word he -must have intended to convey the accepted meaning of the said wordIt is not necessary to multiply decisions, as the expression "malik" has been consistently understood by courts as conveying the idea of absolute ownership. It must, therefore, be held that the testator used the word "malik" to describe his absolute interest in the property. Apart from the meaning generally given to this word, the testator himself furnished a dictionary for interpreting the said term in the will. With the knowledge of the meaning of the word "malik" the testator proceeded to describe the interest conferred on his wife in the same terms, namely, that she should become "malik" without partnership with anybody. If the will stopped there, there could not have been any controversy as regards the nature of the bequest. But the testator proceeded to state that after the death of his wife, his adopted son would become "malik" without partnership with anybody. The words must bear the same meaning i.e., the testator intended that after the death of his wife, his adopted son should become the absolute owner of the property. These two bequests prima facie appear to be inconsistent with each other, for there are two absolute bequests of the same property in favour of his wife and, after her death, in favour of his son. Two constructions are possible, one is to accept the first and negative the second on the ground that it is repugnant to the first; the other is to make an attempt to reconcile both in a way legally permissible. Both can be reconciled and full meaning given to all the words used by the testator, if it be held that there was an absolute bequest in favour of the wife with a gift over to operate by way of defeasance, that is to say, if the son survived the wife, the absolute interest of the wife would be cut down and the son would take an absolute interest in the same. If that was the construction, the statement in the will relied upon by learned counsel for the appellant could also be reconciled with such a bequest. That statement recorded a wish on the part of the testator that his wife should reside in the house, for he wanted his minor son and wife to continue to live in his house. The second part of the statement also recorded a wish on his part that his wife should keep the property intact and hand over the same to his son, who would also be a full owner like himself. Be it as it may, the said statement could not detract from the clear words used earlier. If the argument of learned counsel for the appellant be accepted, this Court would be rewriting the will for the testator and introducing words which are not there: it would be cutting down the meaning of the words which the testator designedly used to convey a larger interest to his wife. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. If the construction suggested by learned counsel be adopted, in the event of his son predeceasing the testator, there would be intestacy after the death of the wife. If the construction suggested by the respondent be adopted, in the event that happened it would not bring about intestacy, as the defeasance clause would not come into operation. That was the intention of the testator is also clear from the fact that he mentioned in the will that no other relation except his wife and son should take his property and also from the fact that though he lived for about a quarter of a century after the execution of the will, he never thought of changing the will though his son, had predeceased his wifeNo decision on the construction of a will can be of use in construing another document, unless all the important recitals are similar. A document will have to be construed on its own terms. In the circumstances of the present document, we have come to the conclusion that under the will the gift over in favour of the son is only by way of defeasanceWe cannot allow the learned counsel to raise the second contention, for it was not raised before the District Court, before Khosla J., and before the division Bench of the High Court, It was raised before the Subordinate judge but the learned Subordinate judge held, on the evidence, that the will had not been proved and indeed he came to the conclusion that the testator was not of sound mind on the date when the will was alleged to have been executed. The point raises a mixed queston of fact and law and there are no exceptional grounds for deviating from the usual practice of this Court and allowing the appellant to raise this point here when he failed todo so in the two courts below.
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Regionl P.F.Commissioner Vs. Hooghly Mills Co.Ltd | if there is a default in payment of the contribution to such a scheme it amounts to contravention of Section 6 punishable under Section 14(1A)”. (See page 517 of the report) 48. Following the same parity of reasoning, we hold if there is a default in payment of contribution to such a scheme it amounts to contravention of Section 14B and damages can be levied. The High Court, with great respect, erred by coming to a contrary conclusion. 49. Apart from that the High Courts interpretation of the expression “so far as may be” as limiting the ambit and width of Section 17(1A)(a) of the Act, in our judgment, cannot be accepted for two reasons as well. 50. The High Court is guided in the interpretation of the word “so far as may be” on the basis of the principle that statutes does not waste words. The High Court has also relied on the interpretation given to “so far as may be”. In the case of Dr. Pratap Singh and another v. Director of Enforcement, Foreign Exchange Regulation Act and others reported in AIR 1985 SC 989 : "It goes without saying that Foreign Exchange Regulation Act is a fiscal statute dealing with penal provisions whereas the aforesaid expression is to be construed in this Act which is eminently a social welfare legislation. Therefore, the parameters of interpretation cannot be the same. Even then in Pratap Singh (supra) this Court while construing “so far as may be” held “if a deviation becomes necessary to carry out the purposes of the Act........................ it would be permissible”. Of course the Court held that if such deviation is challenged before a Court of law it has to be justified. 51. In the instant case, the High Court failed to discern the correct principle of interpretation of a social welfare legislation. In this connection we may profitably refer to what was said by Chief Justice Chagla about interpretation of a social welfare or labour legislation in Prakash Cotton Mills (P) Ltd. v. State of Bombay reported in (1957) 2 LLJ 490. Justice Chagla unerringly laid down: “no labour legislation, no social legislation, no economic legislation, can be considered by a court without applying the principles of social justice in interpreting the provisions of these laws. Social justice is an objective which is embodied and enshrined in our Constitution......it would indeed be startling for anyone to suggest that the court should shut its eyes to social justice and consider and interpret a law as if our country had not pledged itself to bringing about social justice.” 52. We endorse the same view. In fact this has been endorsed by this Court in N.K. Jain (supra). 53. Reference in this connection may be made to what was said by Justice Krishna Iyyer in the same vein in the decision of Surendra Kumar Berma and others v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Anr., reported in 1980 (4) SCC 443 . The learned judge held that semantic luxuries are misplaced in the interpretation of bread and butter statutes. 54. Unfortunately, the High Court missed this well settled principle of interpretation of social welfare legislation while construing the expression “so far as may be” in interpreting the provision of Section 17 (1A)(a) of the Act and unduly restricted its application to the employer of an exempted establishment. 55. The interpretation of the expression “so far as may be” by this Court in its Constitution Bench decision in M. Ismail Faruqui (supra) was given in a totally different context. The said judgment on a Presidential Reference was rendered in the context of the well known Ram Janam Bhumi Babri Masjid controversy where a special Act, namely, Acquisition of Certain Area at Ayodhya Act was enacted and sub- section (3) of Section 6 of the said Act provides that the provisions of Sections 4, 5 & 7 shall “so far as may be” apply in relation to such authority or body or trustees as they apply in relation to the Central Government. In that context this Court held that the expression “so far as may be” is indicative of the fact that all or any of these provisions may or may not be applicable to the transferee under sub-section (1). The objects behind the said enactment are totally unique and the same was a special law. Apart from this, this Court did not lay down any general principle of interpretation in the application of the expression “so far as may be”. Their being vast conceptual difference in the legal questions in that case, the interpretation of “so far as may be” in M. Ismail Faruqui (supra) cannot be applied to the interpretation of “so far as may be” in the present case. 56. The High Courts interpretation also was in error for not considering another well settled principle of interpretation. It is not uncommon to find legislature sometime using words by way of abundant caution. To find out whether the words are used by way of abundant caution the entire scheme of the Act is to be considered at the time of interpretation. In this connection we may remember the observation of Lord Reid in I.R. Commissioner v. Dowdall OMahoney & Co. reported in (1952) 1 All E.R. 531 at page 537, wherein the learned Law Lord said that it is not uncommon to find that legislature is inserting superfluous provisions under the influence of what may be abundant caution. The same principle has been accepted by this Court in many cases. The High Court by adopting, if we may say so, a rather strait jacket formula in the interpretation of the expression “so far as may be” has in our judgment, misinterpreted the intent and scope and the purpose of the Act. 57. For the reasons aforesaid, we are not inclined to accept the interpretation of the High Court and we are constrained to overrule the judgment of the Single Bench as also of the Division Bench. | 1[ds]hold if there is a default in payment of contribution to such a scheme it amounts to contravention of Section 14B and damages can be levied.with great respect, erred by coming to a contrary conclusion.In the instant case,led to discern the correct principle of interpretation of a social welfare legislation. In this connection we may profitably refer to what was said by Chief Justice Chagla about interpretation of a social welfare or labour legislation in Prakash Cotton Mills (P) Ltd. v. State of Bombay reported in (1957) 2 LLJ 490. Justice Chagla unerringly laid down:labour legislation, no social legislation, no economic legislation, can be considered by a court without applying the principles of social justice in interpreting the provisions of these laws. Social justice is an objective which is embodied and enshrined in our Constitution......it would indeed be startling for anyone to suggest that the court should shut its eyes to social justice and consider and interpret a law as if our country had not pledged itself to bringing about social justice.sed this well settled principle of interpretation of social welfare legislation while construing the expressionfar as mayin interpreting the provision of Section 17 (1A)(a) of the Act and unduly restricted its application to the employer of an exempted establishment.s interpretation also was in error for not considering another well settled principle of interpretation. It is not uncommon to find legislature sometime using words by way of abundant caution. To find out whether the words are used by way of abundant caution the entire scheme of the Act is to be considered at the time of interpretation. In this connection we may remember the observation of LordReid in I.R. Commissioner v. Dowdall OMahoney & Co. reported in (1952) 1 All E.R. 531 at page537, wherein the learned Law Lord said that it is not uncommon to find that legislature is inserting superfluous provisions under the influence of what may be abundant caution. The same principle has been accepted by this Court in many cases.by adopting, if we may say so, a rather strait jacket formula inthe interpretation of the expressionfar as mayhas in our judgment, misinterpreted the intent and scope and the purpose of the | 1 | 6,977 | 403 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
if there is a default in payment of the contribution to such a scheme it amounts to contravention of Section 6 punishable under Section 14(1A)”. (See page 517 of the report) 48. Following the same parity of reasoning, we hold if there is a default in payment of contribution to such a scheme it amounts to contravention of Section 14B and damages can be levied. The High Court, with great respect, erred by coming to a contrary conclusion. 49. Apart from that the High Courts interpretation of the expression “so far as may be” as limiting the ambit and width of Section 17(1A)(a) of the Act, in our judgment, cannot be accepted for two reasons as well. 50. The High Court is guided in the interpretation of the word “so far as may be” on the basis of the principle that statutes does not waste words. The High Court has also relied on the interpretation given to “so far as may be”. In the case of Dr. Pratap Singh and another v. Director of Enforcement, Foreign Exchange Regulation Act and others reported in AIR 1985 SC 989 : "It goes without saying that Foreign Exchange Regulation Act is a fiscal statute dealing with penal provisions whereas the aforesaid expression is to be construed in this Act which is eminently a social welfare legislation. Therefore, the parameters of interpretation cannot be the same. Even then in Pratap Singh (supra) this Court while construing “so far as may be” held “if a deviation becomes necessary to carry out the purposes of the Act........................ it would be permissible”. Of course the Court held that if such deviation is challenged before a Court of law it has to be justified. 51. In the instant case, the High Court failed to discern the correct principle of interpretation of a social welfare legislation. In this connection we may profitably refer to what was said by Chief Justice Chagla about interpretation of a social welfare or labour legislation in Prakash Cotton Mills (P) Ltd. v. State of Bombay reported in (1957) 2 LLJ 490. Justice Chagla unerringly laid down: “no labour legislation, no social legislation, no economic legislation, can be considered by a court without applying the principles of social justice in interpreting the provisions of these laws. Social justice is an objective which is embodied and enshrined in our Constitution......it would indeed be startling for anyone to suggest that the court should shut its eyes to social justice and consider and interpret a law as if our country had not pledged itself to bringing about social justice.” 52. We endorse the same view. In fact this has been endorsed by this Court in N.K. Jain (supra). 53. Reference in this connection may be made to what was said by Justice Krishna Iyyer in the same vein in the decision of Surendra Kumar Berma and others v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Anr., reported in 1980 (4) SCC 443 . The learned judge held that semantic luxuries are misplaced in the interpretation of bread and butter statutes. 54. Unfortunately, the High Court missed this well settled principle of interpretation of social welfare legislation while construing the expression “so far as may be” in interpreting the provision of Section 17 (1A)(a) of the Act and unduly restricted its application to the employer of an exempted establishment. 55. The interpretation of the expression “so far as may be” by this Court in its Constitution Bench decision in M. Ismail Faruqui (supra) was given in a totally different context. The said judgment on a Presidential Reference was rendered in the context of the well known Ram Janam Bhumi Babri Masjid controversy where a special Act, namely, Acquisition of Certain Area at Ayodhya Act was enacted and sub- section (3) of Section 6 of the said Act provides that the provisions of Sections 4, 5 & 7 shall “so far as may be” apply in relation to such authority or body or trustees as they apply in relation to the Central Government. In that context this Court held that the expression “so far as may be” is indicative of the fact that all or any of these provisions may or may not be applicable to the transferee under sub-section (1). The objects behind the said enactment are totally unique and the same was a special law. Apart from this, this Court did not lay down any general principle of interpretation in the application of the expression “so far as may be”. Their being vast conceptual difference in the legal questions in that case, the interpretation of “so far as may be” in M. Ismail Faruqui (supra) cannot be applied to the interpretation of “so far as may be” in the present case. 56. The High Courts interpretation also was in error for not considering another well settled principle of interpretation. It is not uncommon to find legislature sometime using words by way of abundant caution. To find out whether the words are used by way of abundant caution the entire scheme of the Act is to be considered at the time of interpretation. In this connection we may remember the observation of Lord Reid in I.R. Commissioner v. Dowdall OMahoney & Co. reported in (1952) 1 All E.R. 531 at page 537, wherein the learned Law Lord said that it is not uncommon to find that legislature is inserting superfluous provisions under the influence of what may be abundant caution. The same principle has been accepted by this Court in many cases. The High Court by adopting, if we may say so, a rather strait jacket formula in the interpretation of the expression “so far as may be” has in our judgment, misinterpreted the intent and scope and the purpose of the Act. 57. For the reasons aforesaid, we are not inclined to accept the interpretation of the High Court and we are constrained to overrule the judgment of the Single Bench as also of the Division Bench.
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hold if there is a default in payment of contribution to such a scheme it amounts to contravention of Section 14B and damages can be levied.with great respect, erred by coming to a contrary conclusion.In the instant case,led to discern the correct principle of interpretation of a social welfare legislation. In this connection we may profitably refer to what was said by Chief Justice Chagla about interpretation of a social welfare or labour legislation in Prakash Cotton Mills (P) Ltd. v. State of Bombay reported in (1957) 2 LLJ 490. Justice Chagla unerringly laid down:labour legislation, no social legislation, no economic legislation, can be considered by a court without applying the principles of social justice in interpreting the provisions of these laws. Social justice is an objective which is embodied and enshrined in our Constitution......it would indeed be startling for anyone to suggest that the court should shut its eyes to social justice and consider and interpret a law as if our country had not pledged itself to bringing about social justice.sed this well settled principle of interpretation of social welfare legislation while construing the expressionfar as mayin interpreting the provision of Section 17 (1A)(a) of the Act and unduly restricted its application to the employer of an exempted establishment.s interpretation also was in error for not considering another well settled principle of interpretation. It is not uncommon to find legislature sometime using words by way of abundant caution. To find out whether the words are used by way of abundant caution the entire scheme of the Act is to be considered at the time of interpretation. In this connection we may remember the observation of LordReid in I.R. Commissioner v. Dowdall OMahoney & Co. reported in (1952) 1 All E.R. 531 at page537, wherein the learned Law Lord said that it is not uncommon to find that legislature is inserting superfluous provisions under the influence of what may be abundant caution. The same principle has been accepted by this Court in many cases.by adopting, if we may say so, a rather strait jacket formula inthe interpretation of the expressionfar as mayhas in our judgment, misinterpreted the intent and scope and the purpose of the
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M/S V.K.M.Kattha Industries P.Ltd Vs. State Of Haryana | served. In view of the same, according to learned senior counsel, the appellant-Company was deprived of its valuable right to file objections under Section 5A of the Act. He further contended that, it is an opportunity given to the land owners or person in possession of lands to make a representation under Section 5A of the Act. To put it clear, the purpose of publication of the notification is two-fold, first, to ensure that adequate publicity is given so that land owners and persons interested will have an opportunity to file their objections under Section 5A of the Act, and second, to give the land owners/occupants a notice that it shall be lawful for any officer authorized by the government to carry out the activities enumerated in sub-section (2) of Section 4 of the Act. This position has been reiterated in several decisions of this Court vide Khub Chand & Ors. vs. State of Rajasthan & Ors., (1967) 1 SCR 120 , J&K Housing Board and Anr. vs. Kunwar Sanjay Krishan Kaul & Ors., (2011) 10 SCC 714 and Usha Stud & Agricultural Farms P. Ltd. & Ors. vs. State of Haryana and Ors., (2013) 4 SCC 210. 15) Learned Additional Advocate General appearing for respondent-State asserted that the authorities have complied with all the three modes of publication. To test the above statements, we verified the written statement of Shri L.B. Verma, District Revenue Officer-cum-Land Acquisition Collector, Sonipat filed on behalf of respondent No. 2 herein before the High Court. Though in para 6, it is stated that the notification was published in two daily newspapers, namely, National Herald dated 02.01.2006 in English and Amar Ujala in Hindi dated 31.12.2005 but there is no whisper about the publication of the substance of the notification in the locality as provided under Section 4(1) of the Act. Except the above said written statement dated 15.11.2007, no other material such as counter affidavit or reply had been projected before the High Court as well as before this Court in support of their stand. In fact, on 09.08.2010, when the matter was called for hearing, learned counsel appearing for the State submitted that “in view of the counter filed before the High Court, no separate counter is being filed here”. In view of the above, it is clear that in spite of knowing the specific ground raised by the appellant about the non-publication of the substance of the notification as prescribed under the Act in the locality concerned, neither the State nor the Land Acquisition Collector availed the opportunity of filing reply refuting the same. In such circumstances, we have no other option except to hold that there was no publication of the substance of the notification under Section 4(1) of the Act in the locality which is held to be mandatory. It is also relevant to point out that by effecting such publication in the locality, it would be possible for the person in possession, namely, either the owner or lessee to make their representation/objection in the enquiry under Section 5A. In addition to the same, such person “owner or occupier” is entitled to file their objections within 30 days from the date of publication in the locality and by non-publication of the same in the locality as provided under the Act, the owner or occupier loses his valuable right. For these reasons also, the acquisition proceedings are liable to be quashed. 16) Coming to the contention raised by learned senior counsel that the appellant-Company itself is running an industry on the date of the notification, we are of the view that there is no justification in acquiring a running industrial unit for industrialization of the area. By placing acceptable materials, the appellant-Company has demonstrated that the construction at the site in question is A-Class construction and the fact that Rector No. 75 itself, which is a substantial part of the area, has been left out from the acquisition, the impugned notifications qua the running industrial unit cannot be sustained in law. The appellant-Company, in support of the same, has also placed copy of the sanctioned building plan of the Company dated 18.03.1994, copy of the sale deed dated 10.05.1994, copy of the communication of the Director, Urban Estates Development Haryana, Chandigarh dated 23.03.1982, copy of the certificate by the Haryana Financial Corporation dated 14.05.2003, copy of no objection certificate from the Haryana State Pollution Control Board dated 17.10.1996 and copy of lease deed in favour of M/s Anand Agro Products dated 05.05.2003. On going through the materials placed, we are satisfied that the appellant-Company has established that it is a running industrial unit even prior to the notification under Section 4 of the Act and the appellant has established its case on this ground also. 17) Coming to the last contention, viz., exclusion of more than 76 acres of land, in the writ petition as well as in the grounds of appeal, the appellant has furnished details of the area released from acquisition in Rector-75 itself which is as under: S.No.Name of industrialConcernKhasra No.Area left fromAcquisition 1.Natraj StationeryProducts Pvt. Ltd.75/11/2/22/1312/2/1--1-61-1 2.Moja shoes (Pvt) Ltd.75/11/276/16?1-60-6 3.Haryana Coir (P) Ltd.75/12/2/175/13/111/2/112/1/175/12/2/12-144-01-41-62-14 As rightly pointed out, if the appellant-Company had the opportunity of participating in the enquiry under Section 5A, it would be open to the Company to make a representation for exclusion like others and there would be every possibility for the State Government to accede to the request since the appellant-Company is running an industry which is similar to the public purpose for which lands were being acquired. During the course of hearing, learned senior counsel for the appellant has also brought to our notice an approved sketch about the excluded lands and location of the appellant-Company which is on the extreme corner of the acquired lands. In other words, even if the Government or the authority concerned excludes the lands of the appellant-Company, there would not be any difficulty in executing the scheme. The said claim of the appellant is acceptable. 18) | 1[ds]In the case on hand, notification under Section 4(1) of the Act was published in the official gazette on 21.12.2005, declaration under Section 6 of the Act was issued on 29.12.2006 and the award was passed on 15.07.2007. Challenging the said award, a writ petition was filed by the appellant-Company on 20.08.2007, i.e. within 5 weeks of the passing of the award. It is the assertion of the appellant-Company that possession of the said land is still vested with them. Taking note of the above factual scenario and of the fact that in the decisions relied on by the High Court, there was a huge delay in filing the writ petitions, such as 13 years, 21 years, 32 years and 2 years after taking over possession, hence, in the light of the fact that the appellant-Company has filed the writ petition within a reasonable time, namely, within 5 weeks of the passing of the award, we are of the view that all the 4 decisions referred to and relied on by the High Court are inapplicable to the facts of the present case. On this ground itself, the impugned order dismissing the writ petition is liable to be set aside. Accordingly, we hold that the Writ Petition filed by the appellant herein before the High Court cannot be simply dismissed on the ground of delay or laches or filed after passing of the award. The said issue depends upon the facts and circumstances of each case and in view of the fact that the appellant has approached the High Court within a reasonable time, it is but proper for the High Court to go into the merits of the claim of the appellant. In normal circumstance, the matter has to go back to the High Court for consideration of various points raised, however, in order to shorten the litigation and of the fact that necessary/required materials are available before this Court, we consider the case of both the parties on merits and give our reasonsAdditional Advocate General appearing for respondent-State asserted that the authorities have complied with all the three modes of publication. To test the above statements, we verified the written statement of Shri L.B. Verma, District Revenue Officer-cum-Land Acquisition Collector, Sonipat filed on behalf of respondent No. 2 herein before the High Court. Though in para 6, it is stated that the notification was published in two daily newspapers, namely, National Herald dated 02.01.2006 in English and Amar Ujala in Hindi dated 31.12.2005 but there is no whisper about the publication of the substance of the notification in the locality as provided under Section 4(1) of the Act. Except the above said written statement dated 15.11.2007, no other material such as counter affidavit or reply had been projected before the High Court as well as before this Court in support of their stand. In fact, on 09.08.2010, when the matter was called for hearing, learned counsel appearing for the State submitted thatview of the counter filed before the High Court, no separate counter is being filedIn view of the above, it is clear that in spite of knowing the specific ground raised by the appellant about the non-publication of the substance of the notification as prescribed under the Act in the locality concerned, neither the State nor the Land Acquisition Collector availed the opportunity of filing reply refuting the same. In such circumstances, we have no other option except to hold that there was no publication of the substance of the notification under Section 4(1) of the Act in the locality which is held to be mandatory. It is also relevant to point out that by effecting such publication in the locality, it would be possible for the person in possession, namely, either the owner or lessee to make their representation/objection in the enquiry under Section 5A. In addition to the same, such personis entitled to file their objections within 30 days from the date of publication in the locality and by non-publication of the same in the locality as provided under the Act, the owner or occupier loses his valuable right. For these reasons also, the acquisition proceedings are liable to berightly pointed out, if the appellant-Company had the opportunity of participating in the enquiry under Section 5A, it would be open to the Company to make a representation for exclusion like others and there would be every possibility for the State Government to accede to the request since the appellant-Company is running an industry which is similar to the public purpose for which lands were being acquired. During the course of hearing, learned senior counsel for the appellant has also brought to our notice an approved sketch about the excluded lands and location of the appellant-Company which is on the extreme corner of the acquired lands. In other words, even if the Government or the authority concerned excludes the lands of the appellant-Company, there would not be any difficulty in executing the scheme. The said claim of the appellant is acceptable. | 1 | 4,515 | 916 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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served. In view of the same, according to learned senior counsel, the appellant-Company was deprived of its valuable right to file objections under Section 5A of the Act. He further contended that, it is an opportunity given to the land owners or person in possession of lands to make a representation under Section 5A of the Act. To put it clear, the purpose of publication of the notification is two-fold, first, to ensure that adequate publicity is given so that land owners and persons interested will have an opportunity to file their objections under Section 5A of the Act, and second, to give the land owners/occupants a notice that it shall be lawful for any officer authorized by the government to carry out the activities enumerated in sub-section (2) of Section 4 of the Act. This position has been reiterated in several decisions of this Court vide Khub Chand & Ors. vs. State of Rajasthan & Ors., (1967) 1 SCR 120 , J&K Housing Board and Anr. vs. Kunwar Sanjay Krishan Kaul & Ors., (2011) 10 SCC 714 and Usha Stud & Agricultural Farms P. Ltd. & Ors. vs. State of Haryana and Ors., (2013) 4 SCC 210. 15) Learned Additional Advocate General appearing for respondent-State asserted that the authorities have complied with all the three modes of publication. To test the above statements, we verified the written statement of Shri L.B. Verma, District Revenue Officer-cum-Land Acquisition Collector, Sonipat filed on behalf of respondent No. 2 herein before the High Court. Though in para 6, it is stated that the notification was published in two daily newspapers, namely, National Herald dated 02.01.2006 in English and Amar Ujala in Hindi dated 31.12.2005 but there is no whisper about the publication of the substance of the notification in the locality as provided under Section 4(1) of the Act. Except the above said written statement dated 15.11.2007, no other material such as counter affidavit or reply had been projected before the High Court as well as before this Court in support of their stand. In fact, on 09.08.2010, when the matter was called for hearing, learned counsel appearing for the State submitted that “in view of the counter filed before the High Court, no separate counter is being filed here”. In view of the above, it is clear that in spite of knowing the specific ground raised by the appellant about the non-publication of the substance of the notification as prescribed under the Act in the locality concerned, neither the State nor the Land Acquisition Collector availed the opportunity of filing reply refuting the same. In such circumstances, we have no other option except to hold that there was no publication of the substance of the notification under Section 4(1) of the Act in the locality which is held to be mandatory. It is also relevant to point out that by effecting such publication in the locality, it would be possible for the person in possession, namely, either the owner or lessee to make their representation/objection in the enquiry under Section 5A. In addition to the same, such person “owner or occupier” is entitled to file their objections within 30 days from the date of publication in the locality and by non-publication of the same in the locality as provided under the Act, the owner or occupier loses his valuable right. For these reasons also, the acquisition proceedings are liable to be quashed. 16) Coming to the contention raised by learned senior counsel that the appellant-Company itself is running an industry on the date of the notification, we are of the view that there is no justification in acquiring a running industrial unit for industrialization of the area. By placing acceptable materials, the appellant-Company has demonstrated that the construction at the site in question is A-Class construction and the fact that Rector No. 75 itself, which is a substantial part of the area, has been left out from the acquisition, the impugned notifications qua the running industrial unit cannot be sustained in law. The appellant-Company, in support of the same, has also placed copy of the sanctioned building plan of the Company dated 18.03.1994, copy of the sale deed dated 10.05.1994, copy of the communication of the Director, Urban Estates Development Haryana, Chandigarh dated 23.03.1982, copy of the certificate by the Haryana Financial Corporation dated 14.05.2003, copy of no objection certificate from the Haryana State Pollution Control Board dated 17.10.1996 and copy of lease deed in favour of M/s Anand Agro Products dated 05.05.2003. On going through the materials placed, we are satisfied that the appellant-Company has established that it is a running industrial unit even prior to the notification under Section 4 of the Act and the appellant has established its case on this ground also. 17) Coming to the last contention, viz., exclusion of more than 76 acres of land, in the writ petition as well as in the grounds of appeal, the appellant has furnished details of the area released from acquisition in Rector-75 itself which is as under: S.No.Name of industrialConcernKhasra No.Area left fromAcquisition 1.Natraj StationeryProducts Pvt. Ltd.75/11/2/22/1312/2/1--1-61-1 2.Moja shoes (Pvt) Ltd.75/11/276/16?1-60-6 3.Haryana Coir (P) Ltd.75/12/2/175/13/111/2/112/1/175/12/2/12-144-01-41-62-14 As rightly pointed out, if the appellant-Company had the opportunity of participating in the enquiry under Section 5A, it would be open to the Company to make a representation for exclusion like others and there would be every possibility for the State Government to accede to the request since the appellant-Company is running an industry which is similar to the public purpose for which lands were being acquired. During the course of hearing, learned senior counsel for the appellant has also brought to our notice an approved sketch about the excluded lands and location of the appellant-Company which is on the extreme corner of the acquired lands. In other words, even if the Government or the authority concerned excludes the lands of the appellant-Company, there would not be any difficulty in executing the scheme. The said claim of the appellant is acceptable. 18)
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In the case on hand, notification under Section 4(1) of the Act was published in the official gazette on 21.12.2005, declaration under Section 6 of the Act was issued on 29.12.2006 and the award was passed on 15.07.2007. Challenging the said award, a writ petition was filed by the appellant-Company on 20.08.2007, i.e. within 5 weeks of the passing of the award. It is the assertion of the appellant-Company that possession of the said land is still vested with them. Taking note of the above factual scenario and of the fact that in the decisions relied on by the High Court, there was a huge delay in filing the writ petitions, such as 13 years, 21 years, 32 years and 2 years after taking over possession, hence, in the light of the fact that the appellant-Company has filed the writ petition within a reasonable time, namely, within 5 weeks of the passing of the award, we are of the view that all the 4 decisions referred to and relied on by the High Court are inapplicable to the facts of the present case. On this ground itself, the impugned order dismissing the writ petition is liable to be set aside. Accordingly, we hold that the Writ Petition filed by the appellant herein before the High Court cannot be simply dismissed on the ground of delay or laches or filed after passing of the award. The said issue depends upon the facts and circumstances of each case and in view of the fact that the appellant has approached the High Court within a reasonable time, it is but proper for the High Court to go into the merits of the claim of the appellant. In normal circumstance, the matter has to go back to the High Court for consideration of various points raised, however, in order to shorten the litigation and of the fact that necessary/required materials are available before this Court, we consider the case of both the parties on merits and give our reasonsAdditional Advocate General appearing for respondent-State asserted that the authorities have complied with all the three modes of publication. To test the above statements, we verified the written statement of Shri L.B. Verma, District Revenue Officer-cum-Land Acquisition Collector, Sonipat filed on behalf of respondent No. 2 herein before the High Court. Though in para 6, it is stated that the notification was published in two daily newspapers, namely, National Herald dated 02.01.2006 in English and Amar Ujala in Hindi dated 31.12.2005 but there is no whisper about the publication of the substance of the notification in the locality as provided under Section 4(1) of the Act. Except the above said written statement dated 15.11.2007, no other material such as counter affidavit or reply had been projected before the High Court as well as before this Court in support of their stand. In fact, on 09.08.2010, when the matter was called for hearing, learned counsel appearing for the State submitted thatview of the counter filed before the High Court, no separate counter is being filedIn view of the above, it is clear that in spite of knowing the specific ground raised by the appellant about the non-publication of the substance of the notification as prescribed under the Act in the locality concerned, neither the State nor the Land Acquisition Collector availed the opportunity of filing reply refuting the same. In such circumstances, we have no other option except to hold that there was no publication of the substance of the notification under Section 4(1) of the Act in the locality which is held to be mandatory. It is also relevant to point out that by effecting such publication in the locality, it would be possible for the person in possession, namely, either the owner or lessee to make their representation/objection in the enquiry under Section 5A. In addition to the same, such personis entitled to file their objections within 30 days from the date of publication in the locality and by non-publication of the same in the locality as provided under the Act, the owner or occupier loses his valuable right. For these reasons also, the acquisition proceedings are liable to berightly pointed out, if the appellant-Company had the opportunity of participating in the enquiry under Section 5A, it would be open to the Company to make a representation for exclusion like others and there would be every possibility for the State Government to accede to the request since the appellant-Company is running an industry which is similar to the public purpose for which lands were being acquired. During the course of hearing, learned senior counsel for the appellant has also brought to our notice an approved sketch about the excluded lands and location of the appellant-Company which is on the extreme corner of the acquired lands. In other words, even if the Government or the authority concerned excludes the lands of the appellant-Company, there would not be any difficulty in executing the scheme. The said claim of the appellant is acceptable.
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Hindustan Polymers Company Limited and Others Vs. Collector of Central Excise, Guntur | S. P. BHARUCHA, J. In Civil Appeals Nos. 1127-28 of 1986 1. The appellants manufacture polystyrene. It is of a natural colour. Some of this natural coloured polystyrene is given different colours by the appellants 2. The appellants were issued show-cause notices by the Assistant Collector of Central Excise which stated that both natural colour polystyrene and the corresponding coloured grain had been classified under Tariff Item 15-A (1) (ii). The show-cause notice added that it is evident that coloured polystyrene compounds which were modified forms of polystyrene are outside the scope of the Tariff Item 15-A (1) (ii). It is now proposed to classify them under the residuary TI 68 after 17-6-1977 under Rule 173-B of the Central Excise Rules, 1944 and demand duty at the appropriate rate under the said Tariff Item 68 for the period from 11-8-1980 to 31 - 12-1980 under Rule 9 of the Central Excise Rules, 1944 read with Section li-A of the Central Excises and Salt Act, 1944. a 3. The demand was contested until the stage of the Tribunal. It was noted in the judgment and order of the Tribunal, which is under appeal, that the appellants had filed voluminous documents to substantiate their contention that uncoloured polystyrene and coloured polystyrene were the same product and, by colouring polystyrene, no new goods emerged. The allied contention in the Tribunals words was that polystyrene, even after being coloured, continued to fall under Tariff Item 15-A (l) (ii). On behalf of the Revenue, the learned Senior Departmental Representative stated to the Tribunal that he had no comments to make on the appellants contention that polystyrene, which was a polymer, would continue after colouring to fall under Tariff Item 15-A (1) (ii) and not under Tariff Item 68. He stated that the appellants were paying excise duty on the uncoloured polystyrene which was cleared from their factory. The dispute was only in regard to the uncoloured polystyrene which was captively consumed by the appellants in their colouring plant within the factory. The question now was whether excise duty should be chargeable at the coloured stage when it was cleared from the factory after colouring or at the uncoloured stage, as it was captively consumed in the factory in their colouring plant. The duty in such a case was chargeable on the value of the coloured polystyrene which was cleared from the factory and not at the uncoloured stage. The Tribunal was competent to mould the relief as the circumstances of the case demanded and the Revenue would have no objection if the Tribunal directed that the demand from the appellants should not exceed the demand which would have been leviable under Tariff Item 68. The Tribunal agreed and held that the demand that coloured polystyrene be classified under Tariff Item 68 could not be e sustained. It "moulded the relief" and ordered " (i) Duty demand for the period within limitation would be quantified under Tariff Item 68; (ii) Demands or duty for the goods would then be worked out under Tariff Item 1 5-A (1) (ii) Demand raised against the appellants for the periods within limitation, as set out above, would not, in any case, exceed the duty demand that the appellants would have been liable to pay for the period under limitation if the goods were classifiable under Tariff Item 68. To be more explicit, duty demands would be restricted to the period within limitation and the amount that would have been quantifiable under Tariff Item 68 though they have to be worked out on the basis of Tariff Item 15-A (l) (ii) of the Central Excise Tariff as it stood at the material time. Rest of the demand is set aside." * 4. Learned counsel for the appellants assailed the order of the Tribunal and submitted that once the Tribunal had come to the conclusion that the coloured polystyrene could not be classified under Tariff Item 68, the demand ought to have been quashed. He submitted that the order of the Tribunal proceeded upon the basis that there was process of manufacture of coloured polystyrene from uncoloured polystyrene, which was contrary to what the Tribunal had found 5. The order of the Tribunal was supported by learned counsel for the Revenue. It was submitted that it was the appellants own case that the coloured polystyrene was covered by Tariff Item] 5-A (1) (ii) and, therefore, the Tribunal was right in holding that the appellants should pay excise duty as at the coloured stage, but limiting the quantum thereof to that which would have been paid had the demand under Tariff Item 68 been sustained 6. While we appreciate the Tribunals desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. That is not "moulding" relief. The demand that was made upon the appellants was under Tariff Item 68 an4 it proceeded upon the basis that there was a process of manufacture of coloured polystyrene from C uncoloured polystyrene. Having come to a conclusion against the Revenue on these counts, the appropriate order for the Tribunal to have passed was to have set aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue | 1[ds]6. While we appreciate the Tribunals desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. That is not "moulding" relief. The demand that was made upon the appellants was under Tariff Item 68 an4 it proceeded upon the basis that there was a process of manufacture of coloured polystyrene from C uncoloured polystyrene. Having come to a conclusion against the Revenue on these counts, the appropriate order for the Tribunal to have passed was to have set aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue | 1 | 1,026 | 171 | ### 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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S. P. BHARUCHA, J. In Civil Appeals Nos. 1127-28 of 1986 1. The appellants manufacture polystyrene. It is of a natural colour. Some of this natural coloured polystyrene is given different colours by the appellants 2. The appellants were issued show-cause notices by the Assistant Collector of Central Excise which stated that both natural colour polystyrene and the corresponding coloured grain had been classified under Tariff Item 15-A (1) (ii). The show-cause notice added that it is evident that coloured polystyrene compounds which were modified forms of polystyrene are outside the scope of the Tariff Item 15-A (1) (ii). It is now proposed to classify them under the residuary TI 68 after 17-6-1977 under Rule 173-B of the Central Excise Rules, 1944 and demand duty at the appropriate rate under the said Tariff Item 68 for the period from 11-8-1980 to 31 - 12-1980 under Rule 9 of the Central Excise Rules, 1944 read with Section li-A of the Central Excises and Salt Act, 1944. a 3. The demand was contested until the stage of the Tribunal. It was noted in the judgment and order of the Tribunal, which is under appeal, that the appellants had filed voluminous documents to substantiate their contention that uncoloured polystyrene and coloured polystyrene were the same product and, by colouring polystyrene, no new goods emerged. The allied contention in the Tribunals words was that polystyrene, even after being coloured, continued to fall under Tariff Item 15-A (l) (ii). On behalf of the Revenue, the learned Senior Departmental Representative stated to the Tribunal that he had no comments to make on the appellants contention that polystyrene, which was a polymer, would continue after colouring to fall under Tariff Item 15-A (1) (ii) and not under Tariff Item 68. He stated that the appellants were paying excise duty on the uncoloured polystyrene which was cleared from their factory. The dispute was only in regard to the uncoloured polystyrene which was captively consumed by the appellants in their colouring plant within the factory. The question now was whether excise duty should be chargeable at the coloured stage when it was cleared from the factory after colouring or at the uncoloured stage, as it was captively consumed in the factory in their colouring plant. The duty in such a case was chargeable on the value of the coloured polystyrene which was cleared from the factory and not at the uncoloured stage. The Tribunal was competent to mould the relief as the circumstances of the case demanded and the Revenue would have no objection if the Tribunal directed that the demand from the appellants should not exceed the demand which would have been leviable under Tariff Item 68. The Tribunal agreed and held that the demand that coloured polystyrene be classified under Tariff Item 68 could not be e sustained. It "moulded the relief" and ordered " (i) Duty demand for the period within limitation would be quantified under Tariff Item 68; (ii) Demands or duty for the goods would then be worked out under Tariff Item 1 5-A (1) (ii) Demand raised against the appellants for the periods within limitation, as set out above, would not, in any case, exceed the duty demand that the appellants would have been liable to pay for the period under limitation if the goods were classifiable under Tariff Item 68. To be more explicit, duty demands would be restricted to the period within limitation and the amount that would have been quantifiable under Tariff Item 68 though they have to be worked out on the basis of Tariff Item 15-A (l) (ii) of the Central Excise Tariff as it stood at the material time. Rest of the demand is set aside." * 4. Learned counsel for the appellants assailed the order of the Tribunal and submitted that once the Tribunal had come to the conclusion that the coloured polystyrene could not be classified under Tariff Item 68, the demand ought to have been quashed. He submitted that the order of the Tribunal proceeded upon the basis that there was process of manufacture of coloured polystyrene from uncoloured polystyrene, which was contrary to what the Tribunal had found 5. The order of the Tribunal was supported by learned counsel for the Revenue. It was submitted that it was the appellants own case that the coloured polystyrene was covered by Tariff Item] 5-A (1) (ii) and, therefore, the Tribunal was right in holding that the appellants should pay excise duty as at the coloured stage, but limiting the quantum thereof to that which would have been paid had the demand under Tariff Item 68 been sustained 6. While we appreciate the Tribunals desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. That is not "moulding" relief. The demand that was made upon the appellants was under Tariff Item 68 an4 it proceeded upon the basis that there was a process of manufacture of coloured polystyrene from C uncoloured polystyrene. Having come to a conclusion against the Revenue on these counts, the appropriate order for the Tribunal to have passed was to have set aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue
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6. While we appreciate the Tribunals desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. That is not "moulding" relief. The demand that was made upon the appellants was under Tariff Item 68 an4 it proceeded upon the basis that there was a process of manufacture of coloured polystyrene from C uncoloured polystyrene. Having come to a conclusion against the Revenue on these counts, the appropriate order for the Tribunal to have passed was to have set aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue
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TATA MOTORS LTD Vs. ANTONIO PAULO VAZ AND ANR | support of such a claim (for punitive damages). This court observed as follows: 15. What survives for consideration is the submission of the learned Senior Counsel for the appellant that there was no claim before the National Commission for the punitive damages nor had the appellant an opportunity to meet such claim and that part of the order needs to be set aside. We find merit in this submission.… **************** *************** 20. We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor was the appellant aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrongdoing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being made before the National Commission and the appellant having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law. 26. The record establishes the absolute dearth of pleadings by the complainant with regard to the appellants role, or special knowledge about the two disputed issues, i.e. that the dealer had represented that the car was new, and in fact sold an old, used one, or that the undercarriage appeared to be worn out. This, in the opinion of this court, was fatal to the complaint. No doubt, the absence of the dealer or any explanation on its part, resulted in a finding of deficiency on its part, because the car was in its possession, was a 2009 model and sold in 2011. The findings against the dealer were, in that sense, justified on demurrer. However, the findings against the appellant, the manufacturer, which had not sold the car to Vaz, and was not shown to have made the representations in question, were not justified. The failure of the complainant to plead or prove the manufacturers liability could not have been improved upon, through inferential findings, as it were, which the district, state and National Commission rendered. The circumstance that a certain kind of argument was put forward or a defence taken by a party in a given case (like the appellant, in the case) cannot result in the inference that it was involved or culpable, in some manner. Special knowledge of the allegations made by the dealer, and involvement, in an overt or tacit manner, by the appellant, had to be proved to lay the charge of deficiency of service at its door. In these circumstances, having regard to the nature of the dealers relationship with the appellant, the latters omissions and acts could not have resulted in the appellants liability. 27. The consumer, Vaz had relied on Jose Philip Mampillil (supra). The deficiencies found are extracted below: 6. We have heard the parties at great length. We have seen the material on record. From the material on record, it is clear that the car was defective at the time of delivery. There is no doubt that there were defects in the paint and that the piston rings of the engine had gone. The submission that the piston rings got spoiled after the delivery was taken, cannot be accepted. The agent of the 1st respondent i.e. 2nd respondent, had acknowledged that the piston rings were defective. They would not have so acknowledged unless it was a defect at the time of the delivery. Had this defect occurred by virtue of the appellants misusing the car, the 2nd respondent would never have accepted the responsibility for repair of the piston rings. ************* ************ 8. In our view, it is shameful that a defective car was sought to be sold as a brand new car. It is further regrettable that, instead of acknowledging the defects, the 1st respondent chose to deny liability and has contested this matter. 28. Clearly, the dealer, in the facts of that case, acknowledged the defects in the car. In the present case, the dealer did not acknowledge any such deficiency; furthermore, the car had been made over to the dealer on 28.02.2009 (as is evident from an invoice issued to the dealer, a copy of which is on the record). Therefore, it is difficult to expect the appellant, a manufacturer, to be aware of the physical condition of the car, two years after its delivery to the dealer. During that period, a number of eventualities could have occurred; the dealer may have allowed people to use the car for the distance it is alleged to have covered. Also, the use of the car and prolonged idleness without proper upkeep could have resulted in the undercarriage being corrugated. All these are real possibilities. Unless the manufacturers knowledge is proved, a decision fastening liability upon the manufacturer would be untenable, given that its relationship with the dealer, in the facts of this case, were on principalto-principal basis. | 1[ds]23. It is useful to notice that before the District Forum, no role or wrong-doing was attributed to the appellant; in fact, no allegation was levelled against it. In para 2, the complaint narrates that Vaz was informed about securing delivery; para 3 states that after registering the car, he (Vaz) went to the showroom to take delivery and was shocked to see that the car was not a brand new one, and that it had several defects. Para 3 further describes the nature of the defects. In para 4, Vaz states that he immediately lodged a protest with the dealer and requested for replacement which was denied and that the dealer forced him to take delivery of the car. Vaz alleges that the delivery however, was not taken. Paras 5, 6, 7 and 8 are extracted which contain the subsequent narration of facts:5. The complainant states that he had already informed the respondent that he had obtained financial assistance from the Syndicate Bank, Agacaim Branch, Agacaim, Goa to purchase the said car and the entire amount of the said car has been fully paid to Vistar Motor, however, till date, the complainant had not received the delivery of the car due to the aforesaid defect also. The respondent has not made any efforts to replace the said car with a new car, on the contrary the respondent has tried carrying repair works of the said car with the said defect. Due to the negligence on the Respondent No.1 part, the complainant has to undergo mental tension, hardship and financial loss.6. The complainant states that he thereafter approached the conciliation forum; however, the same failed as the respondent refused to give him a new car. The complainant has thereafter by way of a legal notice, called upon the respondent no.1 to replace the said car with the new car or refund the entire amount of Rs.9,50,536/- which is the amount spent by him as on date including interest on the loan until final payment within 7 days. However no response has been received by the complainant and he is thus forced to institute a legal proceedings in the Consumer Court to seek compensation against you.7. The complainant states that this complaint is not barred by the limitation.8. The cause of action has arisen in the State of Goa and within the territorial jurisdiction of this Honble Court. As such this Honble Court has the jurisdiction to entertain, hear and decide the present petition.24. The liability of a manufacturer, such as the present appellant, was the subject matter of a decision of this court in Indian Oil Corporation v. Consumer Protection Council, Kerala (1994) 1 SCC 397. There, this court observed as follows:14. In order to decide this question it is necessary for us to look at clause 1 (a) of Ex. R-2. That is the memorandum of agreement between Indian Oil Corporation and M/s Karthika Gas Agency. That establishes the relationship between Indian Oil Corporation, the appellant and Karthika Gas Agency as distributor of the Corporation, on principal to principal basis. (emphasis supplied) Clause 17 of the agreement is as under:In all contracts or engagements entered into by the Distributor with the customers for sale of LPG and/or the sale and/or installation and/or repairs of appliances and/or connections thereof with LPG cylinders (filled or empty) and/or refills and/or pressure regulators and/or attached equipment the Distributor shall act and shall always be deemed to have acted as a principal and not as an agent or on account of the Corporation, and the Corporation shall not in any way be liable in any manner in respect of such contracts and/or engagements and/or in respect of any act or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale, distribution, connections, repairs or otherwise. The Distributor shall be bound to inform the customers in writing of this provision, through correspondence or at the time of enrolment, of the customer.15. Thus, it is clear that the relationship is one of principal-to-principal basis. The reliance by the authorities below that the circumstances, documents and conduct of parties proved the relationship as of principal and agent is difficult to understand. This is a case in which the second respondent Karthika Gas Agency has given an unauthorised connection. If it was a legal connection nothing would have been easier than to produce tile subscription voucher. Such a voucher as rightly pointed out by the learned counsel for the appellant, is important and will bind the appellant-Corporation. The authorities below have not given due importance to the subscription voucher. Section 3(2) of the LPG Control Order reads as under: No person shall possess or use liquefied petroleum gas filled in cylinder or in bulk form unless he has received supply thereof from a distributor or from an Oil Company.*********** *********** *******18. This puts the position beyond doubt. It should have made the consumer aware of his legal rights. Further, in this case for the unauthorised acts of second respondent, its distributorship came to be cancelled. The fact that it was revived is of no consequence if due regard is to be had to clause 17 of the agreement which has been extracted above. Section 2 (g) of the Consumer Protection Act states as follows:(g) deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;19. Insofar as there is no privity of contract between the appellant and the consumer no deficiency as defined under Section 2 (g) (quoted above) arises. Therefore, the action itself is not maintainable before the Consumer Forum. For all these reasons, we set aside the judgments of the authorities below. Civil Appeal will stand allowed. However, in the circumstances of the case there shall be no order as to costs.25. In General Motors (I) (P) Ltd. v. Ashok Ramnik Lal Tolat (2015) 1 SCC 429 the concurrent findings of the three forums under the Consumer Protection Act were that the appellant was guilty of unfair trade practice, leading to award of punitive damages. The court took into consideration the fact that there was no pleading in support of such a claim (for punitive damages). This court observed as follows:15. What survives for consideration is the submission of the learned Senior Counsel for the appellant that there was no claim before the National Commission for the punitive damages nor had the appellant an opportunity to meet such claim and that part of the order needs to be set aside. We find merit in this submission.…20. We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor was the appellant aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrongdoing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being made before the National Commission and the appellant having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law.26. The record establishes the absolute dearth of pleadings by the complainant with regard to the appellants role, or special knowledge about the two disputed issues, i.e. that the dealer had represented that the car was new, and in fact sold an old, used one, or that the undercarriage appeared to be worn out. This, in the opinion of this court, was fatal to the complaint. No doubt, the absence of the dealer or any explanation on its part, resulted in a finding of deficiency on its part, because the car was in its possession, was a 2009 model and sold in 2011. The findings against the dealer were, in that sense, justified on demurrer. However, the findings against the appellant, the manufacturer, which had not sold the car to Vaz, and was not shown to have made the representations in question, were not justified. The failure of the complainant to plead or prove the manufacturers liability could not have been improved upon, through inferential findings, as it were, which the district, state and National Commission rendered. The circumstance that a certain kind of argument was put forward or a defence taken by a party in a given case (like the appellant, in the case) cannot result in the inference that it was involved or culpable, in some manner. Special knowledge of the allegations made by the dealer, and involvement, in an overt or tacit manner, by the appellant, had to be proved to lay the charge of deficiency of service at its door. In these circumstances, having regard to the nature of the dealers relationship with the appellant, the latters omissions and acts could not have resulted in the appellants liability.In the present case, the dealer did not acknowledge any such deficiency; furthermore, the car had been made over to the dealer on 28.02.2009 (as is evident from an invoice issued to the dealer, a copy of which is on the record). Therefore, it is difficult to expect the appellant, a manufacturer, to be aware of the physical condition of the car, two years after its delivery to the dealer. During that period, a number of eventualities could have occurred; the dealer may have allowed people to use the car for the distance it is alleged to have covered. Also, the use of the car and prolonged idleness without proper upkeep could have resulted in the undercarriage being corrugated. All these are real possibilities. Unless the manufacturers knowledge is proved, a decision fastening liability upon the manufacturer would be untenable, given that its relationship with the dealer, in the facts of this case, were on principalto-principal basis. | 1 | 7,387 | 2,095 | ### 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:
support of such a claim (for punitive damages). This court observed as follows: 15. What survives for consideration is the submission of the learned Senior Counsel for the appellant that there was no claim before the National Commission for the punitive damages nor had the appellant an opportunity to meet such claim and that part of the order needs to be set aside. We find merit in this submission.… **************** *************** 20. We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor was the appellant aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrongdoing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being made before the National Commission and the appellant having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law. 26. The record establishes the absolute dearth of pleadings by the complainant with regard to the appellants role, or special knowledge about the two disputed issues, i.e. that the dealer had represented that the car was new, and in fact sold an old, used one, or that the undercarriage appeared to be worn out. This, in the opinion of this court, was fatal to the complaint. No doubt, the absence of the dealer or any explanation on its part, resulted in a finding of deficiency on its part, because the car was in its possession, was a 2009 model and sold in 2011. The findings against the dealer were, in that sense, justified on demurrer. However, the findings against the appellant, the manufacturer, which had not sold the car to Vaz, and was not shown to have made the representations in question, were not justified. The failure of the complainant to plead or prove the manufacturers liability could not have been improved upon, through inferential findings, as it were, which the district, state and National Commission rendered. The circumstance that a certain kind of argument was put forward or a defence taken by a party in a given case (like the appellant, in the case) cannot result in the inference that it was involved or culpable, in some manner. Special knowledge of the allegations made by the dealer, and involvement, in an overt or tacit manner, by the appellant, had to be proved to lay the charge of deficiency of service at its door. In these circumstances, having regard to the nature of the dealers relationship with the appellant, the latters omissions and acts could not have resulted in the appellants liability. 27. The consumer, Vaz had relied on Jose Philip Mampillil (supra). The deficiencies found are extracted below: 6. We have heard the parties at great length. We have seen the material on record. From the material on record, it is clear that the car was defective at the time of delivery. There is no doubt that there were defects in the paint and that the piston rings of the engine had gone. The submission that the piston rings got spoiled after the delivery was taken, cannot be accepted. The agent of the 1st respondent i.e. 2nd respondent, had acknowledged that the piston rings were defective. They would not have so acknowledged unless it was a defect at the time of the delivery. Had this defect occurred by virtue of the appellants misusing the car, the 2nd respondent would never have accepted the responsibility for repair of the piston rings. ************* ************ 8. In our view, it is shameful that a defective car was sought to be sold as a brand new car. It is further regrettable that, instead of acknowledging the defects, the 1st respondent chose to deny liability and has contested this matter. 28. Clearly, the dealer, in the facts of that case, acknowledged the defects in the car. In the present case, the dealer did not acknowledge any such deficiency; furthermore, the car had been made over to the dealer on 28.02.2009 (as is evident from an invoice issued to the dealer, a copy of which is on the record). Therefore, it is difficult to expect the appellant, a manufacturer, to be aware of the physical condition of the car, two years after its delivery to the dealer. During that period, a number of eventualities could have occurred; the dealer may have allowed people to use the car for the distance it is alleged to have covered. Also, the use of the car and prolonged idleness without proper upkeep could have resulted in the undercarriage being corrugated. All these are real possibilities. Unless the manufacturers knowledge is proved, a decision fastening liability upon the manufacturer would be untenable, given that its relationship with the dealer, in the facts of this case, were on principalto-principal basis.
### Response:
1
### Explanation:
was revived is of no consequence if due regard is to be had to clause 17 of the agreement which has been extracted above. Section 2 (g) of the Consumer Protection Act states as follows:(g) deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;19. Insofar as there is no privity of contract between the appellant and the consumer no deficiency as defined under Section 2 (g) (quoted above) arises. Therefore, the action itself is not maintainable before the Consumer Forum. For all these reasons, we set aside the judgments of the authorities below. Civil Appeal will stand allowed. However, in the circumstances of the case there shall be no order as to costs.25. In General Motors (I) (P) Ltd. v. Ashok Ramnik Lal Tolat (2015) 1 SCC 429 the concurrent findings of the three forums under the Consumer Protection Act were that the appellant was guilty of unfair trade practice, leading to award of punitive damages. The court took into consideration the fact that there was no pleading in support of such a claim (for punitive damages). This court observed as follows:15. What survives for consideration is the submission of the learned Senior Counsel for the appellant that there was no claim before the National Commission for the punitive damages nor had the appellant an opportunity to meet such claim and that part of the order needs to be set aside. We find merit in this submission.…20. We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor was the appellant aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrongdoing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being made before the National Commission and the appellant having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law.26. The record establishes the absolute dearth of pleadings by the complainant with regard to the appellants role, or special knowledge about the two disputed issues, i.e. that the dealer had represented that the car was new, and in fact sold an old, used one, or that the undercarriage appeared to be worn out. This, in the opinion of this court, was fatal to the complaint. No doubt, the absence of the dealer or any explanation on its part, resulted in a finding of deficiency on its part, because the car was in its possession, was a 2009 model and sold in 2011. The findings against the dealer were, in that sense, justified on demurrer. However, the findings against the appellant, the manufacturer, which had not sold the car to Vaz, and was not shown to have made the representations in question, were not justified. The failure of the complainant to plead or prove the manufacturers liability could not have been improved upon, through inferential findings, as it were, which the district, state and National Commission rendered. The circumstance that a certain kind of argument was put forward or a defence taken by a party in a given case (like the appellant, in the case) cannot result in the inference that it was involved or culpable, in some manner. Special knowledge of the allegations made by the dealer, and involvement, in an overt or tacit manner, by the appellant, had to be proved to lay the charge of deficiency of service at its door. In these circumstances, having regard to the nature of the dealers relationship with the appellant, the latters omissions and acts could not have resulted in the appellants liability.In the present case, the dealer did not acknowledge any such deficiency; furthermore, the car had been made over to the dealer on 28.02.2009 (as is evident from an invoice issued to the dealer, a copy of which is on the record). Therefore, it is difficult to expect the appellant, a manufacturer, to be aware of the physical condition of the car, two years after its delivery to the dealer. During that period, a number of eventualities could have occurred; the dealer may have allowed people to use the car for the distance it is alleged to have covered. Also, the use of the car and prolonged idleness without proper upkeep could have resulted in the undercarriage being corrugated. All these are real possibilities. Unless the manufacturers knowledge is proved, a decision fastening liability upon the manufacturer would be untenable, given that its relationship with the dealer, in the facts of this case, were on principalto-principal basis.
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Western India Theatres Ltd Vs. Cantonment Board, Poona, Cantonment | the impugned tax is not covered by this entry at all. This entry, according to him, contemplates a law imposing taxes on persons who receive or enjoy the luxuries or the entertainments or the amusements and, therefore, no law made with respect to matters covered by this entry can impose a tax on persons who provide the luxuries. entertainments or amusements, for the last mentioned persons themselves receive or enjoy no luxury or entertainment or amusement, but simply carry on their profession, trade or calling. Learned counsel urges that the impugned law is really one with respect to matters specified in entry 46, namely, taxes on professions, trades, callings and employments and, therefore, cannot exceed Rs 100 per annum under S. 142A of the Government of India Act, 1935 and Rs. 250 per annum under Art. 276(2) of the Constitution. We are unable to accept this argument as sound.7. As pointed out by this Court in Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City, 1955 SCR 829: ((S) AIR 1955 SC 58 ), following certain earlier decisions referred to therein, the entries in the legislative list should not be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. It has been accepted as well settled that in construing such an entry conferring legislative powers the widest possible construction according to their ordinary meaning trust be put upon the words used therein. In view of this well established rule of interpretation, there can be no reason to construe the words "taxes on luxuries or entertainments or amusements" in entry 50 as having a restricted meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements.The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to the tax.It is true that economists regard an entertainment tax as a tax on expenditure and, indeed, when the tax is imposed on the receiver of the entertainment, it does become a tax on expenditure, but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries, entertainments or amusements. The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment.Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. It is a tax imposed on every show, that is to say, on every instance of the exercise of the particular trade, calling or employment. If there is no show, there is no tax.A lawyer has to pay a tax or fee to take out a license irrespective of whether or not he actually, practises. That tax is a tax for the privilege of having the right to exercise the profession if and when the person taking out the license chooses to do so.The impugned tax is a tax on the act of entertainment resulting in a show. In our opinion therefore, S. 73 is a law with respect to matters enumerated in entry 50 and not entry 46 and the Bombay legislature had ample power to enact this law.8. The only other point urged before us is that the notification is violative of the equal protection clause of our Constitution in that it has ticked out the appellants cinema houses or discriminatory treatment by imposing on it a tax at the rate of Rs. 10 per show, while a tax of only Rs. 5 per show is imposed on other cinema houses. The meaning, scope, and effect of the provisions of Art. 14 of our Constitution have been fully dealt with, analysed and laid down by this Court in Budhan Choudhury v. State of Bihar, 1955 SCR 1045: ((S)AIR 1955 SC 191 ) and Rama Krishna Dalmia v. S. R. Tendolkar, Civil Appeals Nos. 455-457 of 1957: (AIR 1958 SC 538 ). It appears, however, from the record that no issue was raised and no evidence was adduced by the appellant before the trial court showing that them were other cinema Houses similarly situate as trial of the appellants cinema Houses.It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema house which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstances than the tax that may be imposed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less numerous or financially in less affluent circumstances, for the two cannot, in those circumstances, be said to be similarly situate.There was, however, no material on which the trial court could or we may now come to a decision as to whether there had been any real discrimination in the facts and circumstances of this case. It may be that the appellant may in some future proceeding adduce evidence to establish that there are other cinema houses similarly situate and that the imposition of a higher tax on the appellant is discriminatory as to which we say nothing; but all we need say is that in this suit the appellant has not discharged the onus that was on him and, on the material on record, it is impossible for us to hold in this case that there has been any discrimination in fact. | 0[ds]We are unable to accept this argument asappears, however, from the record that no issue was raised and no evidence was adduced by the appellant before the trial court showing that them were other cinema Houses similarly situate as trial of the appellants cinema Houses.It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema house which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstances than the tax that may be imposed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less numerous or financially in less affluent circumstances, for the two cannot, in those circumstances, be said to be similarly situate.There was, however, no material on which the trial court could or we may now come to a decision as to whether there had been any real discrimination in the facts and circumstances of this case. It may be that the appellant may in some future proceeding adduce evidence to establish that there are other cinema houses similarly situate and that the imposition of a higher tax on the appellant is discriminatory as to which we say nothing; but all we need say is that in this suit the appellant has not discharged the onus that was on him and, on the material on record, it is impossible for us to hold in this case that there has been any discrimination inhas been accepted as well settled that in construing such an entry conferring legislative powers the widest possible construction according to their ordinary meaning trust be put upon the words used therein. In view of this well established rule of interpretation, there can be no reason to construe the words "taxes on luxuries or entertainments or amusements" in entry 50 as having a restricted meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements.The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to beentry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment.Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. It is a tax imposed on every show, that is to say, on every instance of the exercise of the particular trade, calling or employment. If there is no show, there is no tax.A lawyer has to pay a tax or fee to take out a license irrespective of whether or not he actually, practises. That tax is a tax for the privilege of having the right to exercise the profession if and when the person taking out the license chooses to do so.The impugned tax is a tax on the act of entertainment resulting in a show. In our opinion therefore, S. 73 is a law with respect to matters enumerated in entry 50 and not entry 46 and the Bombay legislature had ample power to enact this law. | 0 | 2,314 | 589 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the impugned tax is not covered by this entry at all. This entry, according to him, contemplates a law imposing taxes on persons who receive or enjoy the luxuries or the entertainments or the amusements and, therefore, no law made with respect to matters covered by this entry can impose a tax on persons who provide the luxuries. entertainments or amusements, for the last mentioned persons themselves receive or enjoy no luxury or entertainment or amusement, but simply carry on their profession, trade or calling. Learned counsel urges that the impugned law is really one with respect to matters specified in entry 46, namely, taxes on professions, trades, callings and employments and, therefore, cannot exceed Rs 100 per annum under S. 142A of the Government of India Act, 1935 and Rs. 250 per annum under Art. 276(2) of the Constitution. We are unable to accept this argument as sound.7. As pointed out by this Court in Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City, 1955 SCR 829: ((S) AIR 1955 SC 58 ), following certain earlier decisions referred to therein, the entries in the legislative list should not be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. It has been accepted as well settled that in construing such an entry conferring legislative powers the widest possible construction according to their ordinary meaning trust be put upon the words used therein. In view of this well established rule of interpretation, there can be no reason to construe the words "taxes on luxuries or entertainments or amusements" in entry 50 as having a restricted meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements.The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to the tax.It is true that economists regard an entertainment tax as a tax on expenditure and, indeed, when the tax is imposed on the receiver of the entertainment, it does become a tax on expenditure, but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries, entertainments or amusements. The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment.Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. It is a tax imposed on every show, that is to say, on every instance of the exercise of the particular trade, calling or employment. If there is no show, there is no tax.A lawyer has to pay a tax or fee to take out a license irrespective of whether or not he actually, practises. That tax is a tax for the privilege of having the right to exercise the profession if and when the person taking out the license chooses to do so.The impugned tax is a tax on the act of entertainment resulting in a show. In our opinion therefore, S. 73 is a law with respect to matters enumerated in entry 50 and not entry 46 and the Bombay legislature had ample power to enact this law.8. The only other point urged before us is that the notification is violative of the equal protection clause of our Constitution in that it has ticked out the appellants cinema houses or discriminatory treatment by imposing on it a tax at the rate of Rs. 10 per show, while a tax of only Rs. 5 per show is imposed on other cinema houses. The meaning, scope, and effect of the provisions of Art. 14 of our Constitution have been fully dealt with, analysed and laid down by this Court in Budhan Choudhury v. State of Bihar, 1955 SCR 1045: ((S)AIR 1955 SC 191 ) and Rama Krishna Dalmia v. S. R. Tendolkar, Civil Appeals Nos. 455-457 of 1957: (AIR 1958 SC 538 ). It appears, however, from the record that no issue was raised and no evidence was adduced by the appellant before the trial court showing that them were other cinema Houses similarly situate as trial of the appellants cinema Houses.It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema house which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstances than the tax that may be imposed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less numerous or financially in less affluent circumstances, for the two cannot, in those circumstances, be said to be similarly situate.There was, however, no material on which the trial court could or we may now come to a decision as to whether there had been any real discrimination in the facts and circumstances of this case. It may be that the appellant may in some future proceeding adduce evidence to establish that there are other cinema houses similarly situate and that the imposition of a higher tax on the appellant is discriminatory as to which we say nothing; but all we need say is that in this suit the appellant has not discharged the onus that was on him and, on the material on record, it is impossible for us to hold in this case that there has been any discrimination in fact.
### Response:
0
### Explanation:
We are unable to accept this argument asappears, however, from the record that no issue was raised and no evidence was adduced by the appellant before the trial court showing that them were other cinema Houses similarly situate as trial of the appellants cinema Houses.It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema house which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstances than the tax that may be imposed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less numerous or financially in less affluent circumstances, for the two cannot, in those circumstances, be said to be similarly situate.There was, however, no material on which the trial court could or we may now come to a decision as to whether there had been any real discrimination in the facts and circumstances of this case. It may be that the appellant may in some future proceeding adduce evidence to establish that there are other cinema houses similarly situate and that the imposition of a higher tax on the appellant is discriminatory as to which we say nothing; but all we need say is that in this suit the appellant has not discharged the onus that was on him and, on the material on record, it is impossible for us to hold in this case that there has been any discrimination inhas been accepted as well settled that in construing such an entry conferring legislative powers the widest possible construction according to their ordinary meaning trust be put upon the words used therein. In view of this well established rule of interpretation, there can be no reason to construe the words "taxes on luxuries or entertainments or amusements" in entry 50 as having a restricted meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements.The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to beentry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment.Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. It is a tax imposed on every show, that is to say, on every instance of the exercise of the particular trade, calling or employment. If there is no show, there is no tax.A lawyer has to pay a tax or fee to take out a license irrespective of whether or not he actually, practises. That tax is a tax for the privilege of having the right to exercise the profession if and when the person taking out the license chooses to do so.The impugned tax is a tax on the act of entertainment resulting in a show. In our opinion therefore, S. 73 is a law with respect to matters enumerated in entry 50 and not entry 46 and the Bombay legislature had ample power to enact this law.
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Wire & Wireless India Limited & Others Vs. State of Maharashtra & Another | cable television network at a place indicated by him to the cable operator, without further transmitting it to any other person.8.It is the case of the petitioners that for delivering pay channels in encrypted mode to the subscribers, an encryption system along with the Subscribers Management System is required to be installed. At the control room of a Multi System Operator, for short "M.S.O.", the signals of various pay channels are downlinked. These pay channels carry different encryptions which are required to be decrypted through decoders provided by the broadcasters. After downlinking the signals of various pay channels, the M.S.O. uses different decoders supplied by the broadcasters to decode the signals. Once the signals are decoded, these signals are combined in one feed which is known as "clean feed". The clean feed does not contain any encryption. The combined clean feed is then assigned a common encryption and transmitted to cable operators and ultimately to the subscribers premises where it is decrypted by Set Top Box, for short "S.T.B", and the signals of pay channels can be viewed on television sets of the subscribers.9.It is the contention on behalf of the petitioners that what was seen by the complainant and his team in the control room of the petitioner company was the clean feed which is the intermediary stage between the removal of encryption of different pay channels by the petitioner company and the assignment of a common encryption for such feed through encryption system. It is their contention that such a clean feed is required to monitor and check the quality of signals after combining the signals of different pay channels in a single feed so that after assigning the encryption when the signals are decoded/ decrypted at the subscribers premises, the subscribers should get a good quality picture without any distortion. It is their further case that the pay channels retransmitted by the petitioner company are receivable by the subscribers only through Set Top Boxes and it is not possible for any subscriber to view the signals of pay channels without deployment of STB, and therefore there is no violation whatsoever of the provision of law comprised under Section 4A of the said Act.10.On the other hand, it is the case of the respondents that in Digital Term Around Set Up, unlike the earlier Analogue Set Up System, it is the choice of subscriber which the Multi System Operator has to cater. It is further their case that in Digital Term Around Set Up, signals from multiple channels are routed through Remultiplexes for a subscriber. After receipt of the signals in Remultiplexes, the same are routed through Bit Rate Shaper which conditions the audio visual quality of signals and thereafter forwarded to the scrambler which acts as C.A.S.. Further the signals travel from Digital Modulator where the signals are modulated and forwarded to Radio Frequency Combiner where all channels are combined and forwarded through signal wire of cable network.11.It is the contention of the respondents that when signals are routed through Radio Frequency Combiner, the viewer cannot view all the channels on the television set. While disputing the contention of the petitioners that the programmes viewed in their office was a clean feed, it is sought to be argued that though in terms of notification of TRAI, on removal of smart card from Set Top Box, all the channels should go off air, that was not the situation in the control room of the petitioners, and it was found that inspite of removal of smart card from the Set Top Box, all pay channels were visible on television set in the control room and that therefore it was clear that the signals of pay channels were not encrypted and the same were forwarded to the subscribers. And that, therefore, it is the contention of the respondents that the programmes were transmitted to the subscribers in unencrypted form.12.Bare perusal of the impugned FIR nowhere discloses any allegation or accusation of transmission of programmes in unencrypted form to the subscribers. In fact, the FIR nowhere discloses any verification of the programme on any T.V. set at the premises of the subscribers. Considering the same, without going into the various other contentions sought to be canvassed in the matter, suffice to observe that the FIR which seeks to accuse the petitioners of commission of offence under Section 4A read with Sections 16 and 17 of the said Act on the basis that all the pay channels were available on T.V. Set at the control room of the petitioners, without the use of smart card in the Set Top Boxes, falls short of disclosing any cognizable offence to have been committed by the petitioners either under Section 4A or under any other provision of the said Act. Merely because clean feed was available at the control room of the petitioner company, without ascertaining whether all the pay channels were made available at the subscribers premises without use of the smart card in the said Set Top Box or not, it obviously discloses no cognisable offence by the petitioner. It is settled law that an FIR in terms of Section 154 of the Code of Criminal Procedure can be registered only when a cognizable offence is disclosed. Merely because the programmes were in the course of transmission, in the absence of any such certificate from a subscriber or without ascertaining whether they were available in contravention of the provision of Section 4A at the subscribers T.V. Set, the respondents were not justified in recording FIR about alleged violation of the provisions of law comprised under Section 4A of the said Act by the petitioners. Viewed from this angle, therefore, the impugned FIR cannot be sustained and is liable to be quashed.13.It is however made clear that this shall not preclude the respondents from taking appropriate steps to ascertain whether the petitioners are complying with the provisions of the said Act or not, and to initiate proceedings if found violating the provisions of law. | 1[ds]In fact, the FIR nowhere discloses any verification of the programme on any T.V. set at the premises of the subscribers. Considering the same, without going into the various other contentions sought to be canvassed in the matter, suffice to observe that the FIR which seeks to accuse the petitioners of commission of offence under Section 4A read with Sections 16 and 17 of the said Act on the basis that all the pay channels were available on T.V. Set at the control room of the petitioners, without the use of smart card in the Set Top Boxes, falls short of disclosing any cognizable offence to have been committed by the petitioners either under Section 4A or under any other provision of the said Act. Merely because clean feed was available at the control room of the petitioner company, without ascertaining whether all the pay channels were made available at the subscribers premises without use of the smart card in the said Set Top Box or not, it obviously discloses no cognisable offence by the petitioner. It is settled law that an FIR in terms of Section 154 of the Code of Criminal Procedure can be registered only when a cognizable offence is disclosed. Merely because the programmes were in the course of transmission, in the absence of any such certificate from a subscriber or without ascertaining whether they were available in contravention of the provision of Section 4A at the subscribers T.V. Set, the respondents were not justified in recording FIR about alleged violation of the provisions of law comprised under Section 4A of the said Act by the petitioners. Viewed from this angle, therefore, the impugned FIR cannot be sustained and is liable to be quashed.13.It is however made clear that this shall not preclude the respondents from taking appropriate steps to ascertain whether the petitioners are complying with the provisions of the said Act or not, and to initiate proceedings if found violating the provisions of law. | 1 | 2,067 | 356 | ### Instruction:
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cable television network at a place indicated by him to the cable operator, without further transmitting it to any other person.8.It is the case of the petitioners that for delivering pay channels in encrypted mode to the subscribers, an encryption system along with the Subscribers Management System is required to be installed. At the control room of a Multi System Operator, for short "M.S.O.", the signals of various pay channels are downlinked. These pay channels carry different encryptions which are required to be decrypted through decoders provided by the broadcasters. After downlinking the signals of various pay channels, the M.S.O. uses different decoders supplied by the broadcasters to decode the signals. Once the signals are decoded, these signals are combined in one feed which is known as "clean feed". The clean feed does not contain any encryption. The combined clean feed is then assigned a common encryption and transmitted to cable operators and ultimately to the subscribers premises where it is decrypted by Set Top Box, for short "S.T.B", and the signals of pay channels can be viewed on television sets of the subscribers.9.It is the contention on behalf of the petitioners that what was seen by the complainant and his team in the control room of the petitioner company was the clean feed which is the intermediary stage between the removal of encryption of different pay channels by the petitioner company and the assignment of a common encryption for such feed through encryption system. It is their contention that such a clean feed is required to monitor and check the quality of signals after combining the signals of different pay channels in a single feed so that after assigning the encryption when the signals are decoded/ decrypted at the subscribers premises, the subscribers should get a good quality picture without any distortion. It is their further case that the pay channels retransmitted by the petitioner company are receivable by the subscribers only through Set Top Boxes and it is not possible for any subscriber to view the signals of pay channels without deployment of STB, and therefore there is no violation whatsoever of the provision of law comprised under Section 4A of the said Act.10.On the other hand, it is the case of the respondents that in Digital Term Around Set Up, unlike the earlier Analogue Set Up System, it is the choice of subscriber which the Multi System Operator has to cater. It is further their case that in Digital Term Around Set Up, signals from multiple channels are routed through Remultiplexes for a subscriber. After receipt of the signals in Remultiplexes, the same are routed through Bit Rate Shaper which conditions the audio visual quality of signals and thereafter forwarded to the scrambler which acts as C.A.S.. Further the signals travel from Digital Modulator where the signals are modulated and forwarded to Radio Frequency Combiner where all channels are combined and forwarded through signal wire of cable network.11.It is the contention of the respondents that when signals are routed through Radio Frequency Combiner, the viewer cannot view all the channels on the television set. While disputing the contention of the petitioners that the programmes viewed in their office was a clean feed, it is sought to be argued that though in terms of notification of TRAI, on removal of smart card from Set Top Box, all the channels should go off air, that was not the situation in the control room of the petitioners, and it was found that inspite of removal of smart card from the Set Top Box, all pay channels were visible on television set in the control room and that therefore it was clear that the signals of pay channels were not encrypted and the same were forwarded to the subscribers. And that, therefore, it is the contention of the respondents that the programmes were transmitted to the subscribers in unencrypted form.12.Bare perusal of the impugned FIR nowhere discloses any allegation or accusation of transmission of programmes in unencrypted form to the subscribers. In fact, the FIR nowhere discloses any verification of the programme on any T.V. set at the premises of the subscribers. Considering the same, without going into the various other contentions sought to be canvassed in the matter, suffice to observe that the FIR which seeks to accuse the petitioners of commission of offence under Section 4A read with Sections 16 and 17 of the said Act on the basis that all the pay channels were available on T.V. Set at the control room of the petitioners, without the use of smart card in the Set Top Boxes, falls short of disclosing any cognizable offence to have been committed by the petitioners either under Section 4A or under any other provision of the said Act. Merely because clean feed was available at the control room of the petitioner company, without ascertaining whether all the pay channels were made available at the subscribers premises without use of the smart card in the said Set Top Box or not, it obviously discloses no cognisable offence by the petitioner. It is settled law that an FIR in terms of Section 154 of the Code of Criminal Procedure can be registered only when a cognizable offence is disclosed. Merely because the programmes were in the course of transmission, in the absence of any such certificate from a subscriber or without ascertaining whether they were available in contravention of the provision of Section 4A at the subscribers T.V. Set, the respondents were not justified in recording FIR about alleged violation of the provisions of law comprised under Section 4A of the said Act by the petitioners. Viewed from this angle, therefore, the impugned FIR cannot be sustained and is liable to be quashed.13.It is however made clear that this shall not preclude the respondents from taking appropriate steps to ascertain whether the petitioners are complying with the provisions of the said Act or not, and to initiate proceedings if found violating the provisions of law.
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1
### Explanation:
In fact, the FIR nowhere discloses any verification of the programme on any T.V. set at the premises of the subscribers. Considering the same, without going into the various other contentions sought to be canvassed in the matter, suffice to observe that the FIR which seeks to accuse the petitioners of commission of offence under Section 4A read with Sections 16 and 17 of the said Act on the basis that all the pay channels were available on T.V. Set at the control room of the petitioners, without the use of smart card in the Set Top Boxes, falls short of disclosing any cognizable offence to have been committed by the petitioners either under Section 4A or under any other provision of the said Act. Merely because clean feed was available at the control room of the petitioner company, without ascertaining whether all the pay channels were made available at the subscribers premises without use of the smart card in the said Set Top Box or not, it obviously discloses no cognisable offence by the petitioner. It is settled law that an FIR in terms of Section 154 of the Code of Criminal Procedure can be registered only when a cognizable offence is disclosed. Merely because the programmes were in the course of transmission, in the absence of any such certificate from a subscriber or without ascertaining whether they were available in contravention of the provision of Section 4A at the subscribers T.V. Set, the respondents were not justified in recording FIR about alleged violation of the provisions of law comprised under Section 4A of the said Act by the petitioners. Viewed from this angle, therefore, the impugned FIR cannot be sustained and is liable to be quashed.13.It is however made clear that this shall not preclude the respondents from taking appropriate steps to ascertain whether the petitioners are complying with the provisions of the said Act or not, and to initiate proceedings if found violating the provisions of law.
|
S. Rajagopal Vs. C. M. Armugam & Ors | reconversion to Hinduism, a person can become a member of the same caste in which he was born and to which he belonged before having been converted to another religion. The main basis of the decisions is that, if the members of the caste accept the reconversion of a person as a member, it should be held that he does become a member of that caste, even though he may have lost membership of that caste on conversion to another religion. In the present case, we do not consider it necessary to express any opinion on the general question whether, if a person is born in a particular caste and is converted to another religion as a result of which he loses the membership of that caste, he can again become a member of that caste on reconversion to Hinduism. That is a question which may have to be decided in any of the appeals that may be brought to this Court from the judgments of the Andhra Pradesh and the Madras High Courts referred to above. So far as the present case is concerned, we consider that, even if it be assumed that a reconvert can resume the membership of his previous caste the facts established in the present case do not show that the appellant succeeded in doing so. All these cases proceed on the basis that in order to resume membership of his previous caste, the person must be reconverted to the Hindu religion and must also be accepted by the caste in general as a member after reconversion. We do not think it necessary to refer to specific sentences where these principles have been relied upon in these various judgments. It is, in our opinion, enough to take notice of the decision in. Durga prasada Rao, ILR(1940) Mad 653=(AIR 1940 Mad 513 ) (supra), where these two aspects were emphasised by a Full Bench of the Madras High Court. In that case, the first question that arose was whether a person could become a convert to Hinduism without going through a formal ceremony of purification. It was held that no proof of any particular ceremonial having been observed was required. Varadachuriar, J., held that when on the facts it appears that a man did change his religion and was accepted by his co-religionists as having changed his religion, and lived, died and was cremated in that religion, the absence of some formality should not negative what is an actual fact. Considering the question of entry into the caste, Krishnaswami Ayyangar, J., held that, in matters affecting the well-being or composition of a caste, the caste itself is the supreme judge. It was on this principle that a reconvert to Hinduism could become a member of the caste, if the caste itself as the supreme judge accepted him as a full member of it. In the appeal before us, we find that the appellant has not given evidence to satisfy these requirements in order to establish that he did become a member of Adi Dravida Hindu Caste by the time of general elections in 1967. 22. As we have already held earlier, there was no specific ceremony held for reconversion of the appellant to Hinduism. We have found that he started professing the Hindu religion because of his conduct at various stages. The first step in that conduct was the marriage with an Adi Dravida Hindu woman. Then there were other steps taken by him, such as correction of his service records, declaration of the religion of his sons as Hindu and his standing as a candidate for elections in 1962 and 1967 as a member of a Scheduled Caste. These have been held by us to amount to a public declaration of his belief in Hinduism. The question is whether, by merely professing the belief in Hinduism, the appellant can also claim that the members of the Adi Dravida Hindu Caste re-admitted him as a member of that caste and started recognising him as such. In various cases, importance has been attached to the fact of marriage in a particular caste. But, in the present case, the marriage was the first step taken by the appellant and, though he was married to an Adi Dravida woman, the marriage was not performed according to the rites observed by members of that caste. The marriage not being according to the system prevalent in the caste itself, it cannot be held that that Marriage can be proof of admission of the appellant in the caste by the members of the caste in general. No other evidence was given to show that at any subsequent stage any step was taken by members of the caste indicating that the appellant was being accepted as a member of this caste. It is true that his close relatives, like his father and brother-in-law, treated him again as a member of their own caste, but the mere recognition by a few such relatives cannot be held to be equivalent to a recognition by the members of the caste in general. The candidature from the reserved seat in 1962 cannot also be held to imply any recognition by the members of the Adi Dravida Hindu caste in general of the appellant as a member of that caste. Consequently, it has to be held that the appellant has failed to establish that he became a member of the Adi Dravida Hindu caste after he started professing the Hindu religion; and this conclusion follows even on the assumption that a convert to Hinduism can acquire the membership of a caste.Ordinarily, the membership of a caste under the Hindu religion is acquired by birth. Whether the membership of a caste can be acquired by conversion to Hinduism or after reconversion to Hinduism is a question on which we have refrained from expressing our opinion, because, even on the assumption that it can be acquired, we have arrived at the conclusion that the appellant must fail in this appeal. | 0[ds]7. The main argument for challenging the evidence of this witness on behalf of the appellant was that the respondent, in adducing evidence before the High Court to prove the conversion of the appellant to Christianity, did not summon the Baptismal Register of the Church which would have been the best evidence available for this purpose. This argument was considered and rejected by the High Court and we agree with the view taken by that Court. There was no clear evidence that every Church was maintaining a baptismal register. It was only in his cross-examination that it was elicited from P. W. 9 that the baptismal certificate shown to him by the appellant had been issued by the Presbyter of Yehamur Church8. This evidence finds support from other documentary and oral evidence which has been relied upon by the High Court P. W. 10, S. A. Thomas, was also working as a Contractor, the appellant took service with his father. At that time also, the appellant was employed as a Christian an his service card was prepared showing him as a Christian. Then, there is evidence that, subsequently, the appellant entered Government service and even there in the service cards he was shown as a Christian. Some witnesses have come to prove that the appellant actually attended Church for prayers after his conversion in 1949. Evidence was also given to show that the appellant worked as the organiser of a body known as the Kavinjar Nataka Sabha where his name was shown as Victor Rajagopal indicating that he had adopted a personal name after conversion as a Christian which is not adopted by Hindus. We do not think that it is necessary for us to discuss that evidence in detail. We are inclined to agree with the High Court that all this oral and documentary evidence provides very strong corroboration of the statement of the principal witness P. W. 9 and establishes the fact that the appellant has been converted to Christianity in 1949 before he joined the Woorhees High SchoolWe are inclined to accept the evidence given on behalf of the appellant that, though he had been converted to Christianity in 1949, he did later on profess the Hindu religion. The circumstances which establish this fact are:(i) that he married a Hindu Adi Dravida woman in the year 1955;(ii) that against the entries of the children in birth registers of the Municipality, the caste of the mother was shown as Adi Dravida Hindu;(iii) that his children were brought up as Hindus;(iv) that, when his children were admitted in school, they were shown as Hindus in the school records;(v) that, in 1961, the appellant made an application for correction of his service cards and had the entry of his religion as Christianity altered , so that he was subsequently shown as Adi Dravida Hindu in those cards;(vi) that, in 1962, in the general elections, he stood as a candidate from a Reserved Scheduled Caste Constituency and(vii) that he again stood as a candidate in this general election of 1967 from the same Reserved Scheduled Caste Constituency14. In our opinion, if this test is applied to the present case, it must be held that at least by the year 1967, when the present election in question took place, the appellant had started professing the Hindu religion. He had openly married a Hindu wife. Even though the marriage was not celebrated according to the strict Hindu rites prevalent amongst Adi Dravidas, the marriage was not in Christian form and is alleged to have been in some reformed Hindu manner. Thereafter, the appellant in 1961 took the step of having his service cards corrected so as to show him as an Adi Dravida Hindu instead of a Christian. This was followed by his candidature as a member of the Adi Dravida Hindu Caste in the general elections in 1962; and, subsequently, he gave out the caste of his children as Adi Dravida Hindu. These various steps taken by the appellant clearly amount to a public declaration of his professing the Hindu faith. The first step of the marriage cannot of course, by itself be held to be a sufficient public declaration that the appellant believed in Hindu religion; but the subsequent correction of entries in service cards and his publicly standing as a candidate from the reserved Scheduled Caste Constituency representing himself as an Adi Dravida Hindu taken together with the later act of showing his children as Adi Dravida Hindus in the school records must be held to be a complete public declaration in the appellant that he was by this time professing Hindu religion. Finally in the general elections of 1967 also, the appellant, by contesting the seat reserved for a member of a Scheduled Caste on the basis that he was an Adi Dravida Hindu, again purported to make a public declaration of his faith in Hinduism. In these circumstances, we hold that, at the relevant time in 1967, the appellant was professing Hindu religion, so that paragraph 3 of the Constitution (Scheduled Castes) Order, 1950 did not apply to him16. We agree with the High Court that, when the appellant embraced Christianity in 1949, he lost the membership of the Adi Dravida Hindu caste. The Christian religion does not recognise any caste classifications. All Christians are treated as equals and there is no distinction between one Christian and another of the type that is recognised between members of different castes belonging to Hindu religion. In fact, caste system prevails only amongst Hindus or possibly in some religions closely allied to the Hindu religion like Sikhism. Christianity is prevalent not only in India, but almost all over the world and nowhere does Christianity recognise caste division. The tenets of Christianity militate against persons professing Christianity faith being divided or discriminated on the basis of any such classification as the caste system. It must, therefore, be held that, when the appellant got converted to Christianity in 1949, he ceased to belong to the Adi Dravida casteIn the present case, therefore, we agree with the finding of the High Court that the appellant on conversion to Christianity, ceased to belong to the Adi Dravida caste and, consequently, the burden lay on the appellant to establish that, on his reverting to the Hindu religion by professing it again, he also became once again a member of the Adi Dravida Hindu caste22. As we have already held earlier, there was no specific ceremony held for reconversion of the appellant to Hinduism. We have found that he started professing the Hindu religion because of his conduct at various stages. The first step in that conduct was the marriage with an Adi Dravida Hindu woman. Then there were other steps taken by him, such as correction of his service records, declaration of the religion of his sons as Hindu and his standing as a candidate for elections in 1962 and 1967 as a member of a Scheduled Caste. These have been held by us to amount to a public declaration of his belief in Hinduism. The question is whether, by merely professing the belief in Hinduism, the appellant can also claim that the members of the Adi Dravida Hindu Caste re-admitted him as a member of that caste and started recognising him as such. In various cases, importance has been attached to the fact of marriage in a particular caste. But, in the present case, the marriage was the first step taken by the appellant and, though he was married to an Adi Dravida woman, the marriage was not performed according to the rites observed by members of that caste. The marriage not being according to the system prevalent in the caste itself, it cannot be held that that Marriage can be proof of admission of the appellant in the caste by the members of the caste in general. No other evidence was given to show that at any subsequent stage any step was taken by members of the caste indicating that the appellant was being accepted as a member of this caste. It is true that his close relatives, like his father and brother-in-law, treated him again as a member of their own caste, but the mere recognition by a few such relatives cannot be held to be equivalent to a recognition by the members of the caste in general. The candidature from the reserved seat in 1962 cannot also be held to imply any recognition by the members of the Adi Dravida Hindu caste in general of the appellant as a member of that caste. Consequently, it has to be held that the appellant has failed to establish that he became a member of the Adi Dravida Hindu caste after he started professing the Hindu religion; and this conclusion follows even on the assumption that a convert to Hinduism can acquire the membership of a caste.Ordinarily, the membership of a caste under the Hindu religion is acquired by birth. Whether the membership of a caste can be acquired by conversion to Hinduism or after reconversion to Hinduism is a question on which we have refrained from expressing our opinion, because, even on the assumption that it can be acquired, we have arrived at the conclusion that the appellant must fail in this appeal. | 0 | 7,441 | 1,702 | ### Instruction:
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reconversion to Hinduism, a person can become a member of the same caste in which he was born and to which he belonged before having been converted to another religion. The main basis of the decisions is that, if the members of the caste accept the reconversion of a person as a member, it should be held that he does become a member of that caste, even though he may have lost membership of that caste on conversion to another religion. In the present case, we do not consider it necessary to express any opinion on the general question whether, if a person is born in a particular caste and is converted to another religion as a result of which he loses the membership of that caste, he can again become a member of that caste on reconversion to Hinduism. That is a question which may have to be decided in any of the appeals that may be brought to this Court from the judgments of the Andhra Pradesh and the Madras High Courts referred to above. So far as the present case is concerned, we consider that, even if it be assumed that a reconvert can resume the membership of his previous caste the facts established in the present case do not show that the appellant succeeded in doing so. All these cases proceed on the basis that in order to resume membership of his previous caste, the person must be reconverted to the Hindu religion and must also be accepted by the caste in general as a member after reconversion. We do not think it necessary to refer to specific sentences where these principles have been relied upon in these various judgments. It is, in our opinion, enough to take notice of the decision in. Durga prasada Rao, ILR(1940) Mad 653=(AIR 1940 Mad 513 ) (supra), where these two aspects were emphasised by a Full Bench of the Madras High Court. In that case, the first question that arose was whether a person could become a convert to Hinduism without going through a formal ceremony of purification. It was held that no proof of any particular ceremonial having been observed was required. Varadachuriar, J., held that when on the facts it appears that a man did change his religion and was accepted by his co-religionists as having changed his religion, and lived, died and was cremated in that religion, the absence of some formality should not negative what is an actual fact. Considering the question of entry into the caste, Krishnaswami Ayyangar, J., held that, in matters affecting the well-being or composition of a caste, the caste itself is the supreme judge. It was on this principle that a reconvert to Hinduism could become a member of the caste, if the caste itself as the supreme judge accepted him as a full member of it. In the appeal before us, we find that the appellant has not given evidence to satisfy these requirements in order to establish that he did become a member of Adi Dravida Hindu Caste by the time of general elections in 1967. 22. As we have already held earlier, there was no specific ceremony held for reconversion of the appellant to Hinduism. We have found that he started professing the Hindu religion because of his conduct at various stages. The first step in that conduct was the marriage with an Adi Dravida Hindu woman. Then there were other steps taken by him, such as correction of his service records, declaration of the religion of his sons as Hindu and his standing as a candidate for elections in 1962 and 1967 as a member of a Scheduled Caste. These have been held by us to amount to a public declaration of his belief in Hinduism. The question is whether, by merely professing the belief in Hinduism, the appellant can also claim that the members of the Adi Dravida Hindu Caste re-admitted him as a member of that caste and started recognising him as such. In various cases, importance has been attached to the fact of marriage in a particular caste. But, in the present case, the marriage was the first step taken by the appellant and, though he was married to an Adi Dravida woman, the marriage was not performed according to the rites observed by members of that caste. The marriage not being according to the system prevalent in the caste itself, it cannot be held that that Marriage can be proof of admission of the appellant in the caste by the members of the caste in general. No other evidence was given to show that at any subsequent stage any step was taken by members of the caste indicating that the appellant was being accepted as a member of this caste. It is true that his close relatives, like his father and brother-in-law, treated him again as a member of their own caste, but the mere recognition by a few such relatives cannot be held to be equivalent to a recognition by the members of the caste in general. The candidature from the reserved seat in 1962 cannot also be held to imply any recognition by the members of the Adi Dravida Hindu caste in general of the appellant as a member of that caste. Consequently, it has to be held that the appellant has failed to establish that he became a member of the Adi Dravida Hindu caste after he started professing the Hindu religion; and this conclusion follows even on the assumption that a convert to Hinduism can acquire the membership of a caste.Ordinarily, the membership of a caste under the Hindu religion is acquired by birth. Whether the membership of a caste can be acquired by conversion to Hinduism or after reconversion to Hinduism is a question on which we have refrained from expressing our opinion, because, even on the assumption that it can be acquired, we have arrived at the conclusion that the appellant must fail in this appeal.
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had started professing the Hindu religion. He had openly married a Hindu wife. Even though the marriage was not celebrated according to the strict Hindu rites prevalent amongst Adi Dravidas, the marriage was not in Christian form and is alleged to have been in some reformed Hindu manner. Thereafter, the appellant in 1961 took the step of having his service cards corrected so as to show him as an Adi Dravida Hindu instead of a Christian. This was followed by his candidature as a member of the Adi Dravida Hindu Caste in the general elections in 1962; and, subsequently, he gave out the caste of his children as Adi Dravida Hindu. These various steps taken by the appellant clearly amount to a public declaration of his professing the Hindu faith. The first step of the marriage cannot of course, by itself be held to be a sufficient public declaration that the appellant believed in Hindu religion; but the subsequent correction of entries in service cards and his publicly standing as a candidate from the reserved Scheduled Caste Constituency representing himself as an Adi Dravida Hindu taken together with the later act of showing his children as Adi Dravida Hindus in the school records must be held to be a complete public declaration in the appellant that he was by this time professing Hindu religion. Finally in the general elections of 1967 also, the appellant, by contesting the seat reserved for a member of a Scheduled Caste on the basis that he was an Adi Dravida Hindu, again purported to make a public declaration of his faith in Hinduism. In these circumstances, we hold that, at the relevant time in 1967, the appellant was professing Hindu religion, so that paragraph 3 of the Constitution (Scheduled Castes) Order, 1950 did not apply to him16. We agree with the High Court that, when the appellant embraced Christianity in 1949, he lost the membership of the Adi Dravida Hindu caste. The Christian religion does not recognise any caste classifications. All Christians are treated as equals and there is no distinction between one Christian and another of the type that is recognised between members of different castes belonging to Hindu religion. In fact, caste system prevails only amongst Hindus or possibly in some religions closely allied to the Hindu religion like Sikhism. Christianity is prevalent not only in India, but almost all over the world and nowhere does Christianity recognise caste division. The tenets of Christianity militate against persons professing Christianity faith being divided or discriminated on the basis of any such classification as the caste system. It must, therefore, be held that, when the appellant got converted to Christianity in 1949, he ceased to belong to the Adi Dravida casteIn the present case, therefore, we agree with the finding of the High Court that the appellant on conversion to Christianity, ceased to belong to the Adi Dravida caste and, consequently, the burden lay on the appellant to establish that, on his reverting to the Hindu religion by professing it again, he also became once again a member of the Adi Dravida Hindu caste22. As we have already held earlier, there was no specific ceremony held for reconversion of the appellant to Hinduism. We have found that he started professing the Hindu religion because of his conduct at various stages. The first step in that conduct was the marriage with an Adi Dravida Hindu woman. Then there were other steps taken by him, such as correction of his service records, declaration of the religion of his sons as Hindu and his standing as a candidate for elections in 1962 and 1967 as a member of a Scheduled Caste. These have been held by us to amount to a public declaration of his belief in Hinduism. The question is whether, by merely professing the belief in Hinduism, the appellant can also claim that the members of the Adi Dravida Hindu Caste re-admitted him as a member of that caste and started recognising him as such. In various cases, importance has been attached to the fact of marriage in a particular caste. But, in the present case, the marriage was the first step taken by the appellant and, though he was married to an Adi Dravida woman, the marriage was not performed according to the rites observed by members of that caste. The marriage not being according to the system prevalent in the caste itself, it cannot be held that that Marriage can be proof of admission of the appellant in the caste by the members of the caste in general. No other evidence was given to show that at any subsequent stage any step was taken by members of the caste indicating that the appellant was being accepted as a member of this caste. It is true that his close relatives, like his father and brother-in-law, treated him again as a member of their own caste, but the mere recognition by a few such relatives cannot be held to be equivalent to a recognition by the members of the caste in general. The candidature from the reserved seat in 1962 cannot also be held to imply any recognition by the members of the Adi Dravida Hindu caste in general of the appellant as a member of that caste. Consequently, it has to be held that the appellant has failed to establish that he became a member of the Adi Dravida Hindu caste after he started professing the Hindu religion; and this conclusion follows even on the assumption that a convert to Hinduism can acquire the membership of a caste.Ordinarily, the membership of a caste under the Hindu religion is acquired by birth. Whether the membership of a caste can be acquired by conversion to Hinduism or after reconversion to Hinduism is a question on which we have refrained from expressing our opinion, because, even on the assumption that it can be acquired, we have arrived at the conclusion that the appellant must fail in this appeal.
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Josodhar Misra Vs. State of Bihar and Others | these points which was point No. 3 before the High Court is that the Commissioners order of dismissal was influenced by the further comments which were made by the Addl. Collector and the Collector and since these comments were taken into consideration by the Commissioner behind the back of the appellant, opportunity was denied to the appellant to meet these comments which has resulted in violation of the principles of natural justice. It seems to us impossible to accept this contention. When the Commissioner issued the show cause notice to the appellant as regards the proposed punishment, he had by his order of even date informed the appellant that the representation should be submitted to the Addl. Collector, that the Addl. Collector would forwarded the representation with his own comments to the Collector and that the Collector in turn will forward the representation with his own comments to the Commissioner. The appellant thus knew when he made his representation to the Commissioner against the proposed punishment that the Addl. Collector and the Collector will, as directed by the Commissioner, offer their comments on his representation. In spite of this, the appellant did not ask the Commissioner to disclose to him as to what comments were made by the Addl. Collector and the Collector on his representation. Apart from the fact that the appellant did not ask for any opportunity to meet the comments made by the two officers, it is important to bear in mind that the comments made by the Addl. Collector and the Collector pertain solely to the representation made by the appellant as regards the proposed punishment and did not refer to any new or undisclosed facts which were not on the record. The facts on which the Commissioner proposed that the particular order of punishment be passed were taken on the record in the presence of the appellant and he was afforded full and effective opportunity to meet each piece of the evidence which was adduced in the case. The Commissioner had already recorded a finding that all the charges levelled against the appellant were established on the evidence led in the case, that he had formed the opinion that charges 1 & 2 were tentatively proved and that he proposed to impose the punishment of dismissal in respect of those charges. In view of this position we are unable to accept the contention of the appellant that there has been any violation of the principles of natural justice.9. We would also like to add that when the appellants appeal was heard by the Board of Revenue the entire record, including the comments made by the Addl. Collector and the Collector was available to the appellant and he could have made his contentions which he desired in regard thereto. He did not make any grievance that he was prejudiced because copies of the documents were not supplied to him.10. There is equally no substance in points 4 and 5 which were argued before the High Court. Point No. 5 is to the effect that the finding in respect of charge No. 2 was based on no evidence. We do not understand this contention since there is clear evidence in the case to show that persons in whose favour lands were settled were not in possession thereof at any time as tenants and, in fact, those persons did not even belong to the village. The contention of the appellant in the enquiry was that he acted mechanically on the report which was submitted to him by his subordinate officers and that it was no part of his duty to satisfy himself whether the report was justified. This contention of the appellant runs counter to Rule 145 of the Boards Miscellaneous Rules which says in so far as is relevant that "Kanungos are executive revenue officers who are expected to pass the greater part of their time in the muffassil on out-door work". As observed by the High Court, a Kanungo who forwards his report regarding the abatement of rent and settlement of lands with new tenants cannot, consistently with the rules, be permitted to take a plea that his responsibility is only of a ministerial kind and that he is merely a forwarding agency. We are satisfied that it was the appellants duty to pay visit to the locality in which the lands were situated and to satisfy himself whether the report in regard to the settlement of lands was made in accordance with the rules. It is undeniable that the settlements was made with persons who did not belong to the village and who were not tenants of the lands.11. The last contention of Mr. Ramamurthy is that certain valuable documents which would have enabled the appellant to establish his innocence were withheld from him during the enquiry. It is true that certain documents were found missing but the evidence on the basis of which charge No. 2 which is the principal charge, has been held to have been established is the report of the Sub-Divisional Magistrate, Shri Tudu, and the evidence of the Khas Mahal Tahsildar whose earlier report Ext. 2 was on the record of the case. The two reports were taken on the record in the presence of the appellant and he was accorded full opportunity to meet these reports. The appellant did not, at any stage take the plea that he had actually visited the site and had satisfied himself that the report made by the officers was correct. Were he to take any such plea it might have become relevant that certain important papers were withheld from him. The appellants limited contention was that the primary responsibility for making the recommendation was that of the Khas Mahal Tahsildar, that his own function was purely of administerial nature and that no order for the settlement of lands was made independently by him. As we have stated earlier it is impossible, in view of the rules governing the matter to accept this contention. | 0[ds]8. The first of these points which was point No. 3 before the High Court is that the Commissioners order of dismissal was influenced by the further comments which were made by the Addl. Collector and the Collector and since these comments were taken into consideration by the Commissioner behind the back of the appellant, opportunity was denied to the appellant to meet these comments which has resulted in violation of the principles of natural justice. It seems to us impossible to accept this contention. When the Commissioner issued the show cause notice to the appellant as regards the proposed punishment, he had by his order of even date informed the appellant that the representation should be submitted to the Addl. Collector, that the Addl. Collector would forwarded the representation with his own comments to the Collector and that the Collector in turn will forward the representation with his own comments to the Commissioner. The appellant thus knew when he made his representation to the Commissioner against the proposed punishment that the Addl. Collector and the Collector will, as directed by the Commissioner, offer their comments on his representation. In spite of this, the appellant did not ask the Commissioner to disclose to him as to what comments were made by the Addl. Collector and the Collector on his representation. Apart from the fact that the appellant did not ask for any opportunity to meet the comments made by the two officers, it is important to bear in mind that the comments made by the Addl. Collector and the Collector pertain solely to the representation made by the appellant as regards the proposed punishment and did not refer to any new or undisclosed facts which were not on the record. The facts on which the Commissioner proposed that the particular order of punishment be passed were taken on the record in the presence of the appellant and he was afforded full and effective opportunity to meet each piece of the evidence which was adduced in the case. The Commissioner had already recorded a finding that all the charges levelled against the appellant were established on the evidence led in the case, that he had formed the opinion that charges 1 & 2 were tentatively proved and that he proposed to impose the punishment of dismissal in respect of those charges. In view of this position we are unable to accept the contention of the appellant that there has been any violation of the principles of natural justice.9. We would also like to add that when the appellants appeal was heard by the Board of Revenue the entire record, including the comments made by the Addl. Collector and the Collector was available to the appellant and he could have made his contentions which he desired in regard thereto. He did not make any grievance that he was prejudiced because copies of the documents were not supplied to him.10. There is equally no substance in points 4 and 5 which were argued before the High Court. Point No. 5 is to the effect that the finding in respect of charge No. 2 was based on no evidence. We do not understand this contention since there is clear evidence in the case to show that persons in whose favour lands were settled were not in possession thereof at any time as tenants and, in fact, those persons did not even belong to the village. The contention of the appellant in the enquiry was that he acted mechanically on the report which was submitted to him by his subordinate officers and that it was no part of his duty to satisfy himself whether the report was justified. This contention of the appellant runs counter to Rule 145 of the Boards Miscellaneous Rules which says in so far as is relevant that "Kanungos are executive revenue officers who are expected to pass the greater part of their time in the muffassil onwork". As observed by the High Court, a Kanungo who forwards his report regarding the abatement of rent and settlement of lands with new tenants cannot, consistently with the rules, be permitted to take a plea that his responsibility is only of a ministerial kind and that he is merely a forwarding agency. We are satisfied that it was the appellants duty to pay visit to the locality in which the lands were situated and to satisfy himself whether the report in regard to the settlement of lands was made in accordance with the rules. It is undeniable that the settlements was made with persons who did not belong to the village and who were not tenants of the lands.11. The last contention of Mr. Ramamurthy is that certain valuable documents which would have enabled the appellant to establish his innocence were withheld from him during the enquiry. It is true that certain documents were found missing but the evidence on the basis of which charge No. 2 which is the principal charge, has been held to have been established is the report of theMagistrate, Shri Tudu, and the evidence of the Khas Mahal Tahsildar whose earlier report Ext. 2 was on the record of the case. The two reports were taken on the record in the presence of the appellant and he was accorded full opportunity to meet these reports. The appellant did not, at any stage take the plea that he had actually visited the site and had satisfied himself that the report made by the officers was correct. Were he to take any such plea it might have become relevant that certain important papers were withheld from him. The appellants limited contention was that the primary responsibility for making the recommendation was that of the Khas Mahal Tahsildar, that his own function was purely of administerial nature and that no order for the settlement of lands was made independently by him. As we have stated earlier it is impossible, in view of the rules governing the matter to accept this contention. | 0 | 1,951 | 1,066 | ### 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:
these points which was point No. 3 before the High Court is that the Commissioners order of dismissal was influenced by the further comments which were made by the Addl. Collector and the Collector and since these comments were taken into consideration by the Commissioner behind the back of the appellant, opportunity was denied to the appellant to meet these comments which has resulted in violation of the principles of natural justice. It seems to us impossible to accept this contention. When the Commissioner issued the show cause notice to the appellant as regards the proposed punishment, he had by his order of even date informed the appellant that the representation should be submitted to the Addl. Collector, that the Addl. Collector would forwarded the representation with his own comments to the Collector and that the Collector in turn will forward the representation with his own comments to the Commissioner. The appellant thus knew when he made his representation to the Commissioner against the proposed punishment that the Addl. Collector and the Collector will, as directed by the Commissioner, offer their comments on his representation. In spite of this, the appellant did not ask the Commissioner to disclose to him as to what comments were made by the Addl. Collector and the Collector on his representation. Apart from the fact that the appellant did not ask for any opportunity to meet the comments made by the two officers, it is important to bear in mind that the comments made by the Addl. Collector and the Collector pertain solely to the representation made by the appellant as regards the proposed punishment and did not refer to any new or undisclosed facts which were not on the record. The facts on which the Commissioner proposed that the particular order of punishment be passed were taken on the record in the presence of the appellant and he was afforded full and effective opportunity to meet each piece of the evidence which was adduced in the case. The Commissioner had already recorded a finding that all the charges levelled against the appellant were established on the evidence led in the case, that he had formed the opinion that charges 1 & 2 were tentatively proved and that he proposed to impose the punishment of dismissal in respect of those charges. In view of this position we are unable to accept the contention of the appellant that there has been any violation of the principles of natural justice.9. We would also like to add that when the appellants appeal was heard by the Board of Revenue the entire record, including the comments made by the Addl. Collector and the Collector was available to the appellant and he could have made his contentions which he desired in regard thereto. He did not make any grievance that he was prejudiced because copies of the documents were not supplied to him.10. There is equally no substance in points 4 and 5 which were argued before the High Court. Point No. 5 is to the effect that the finding in respect of charge No. 2 was based on no evidence. We do not understand this contention since there is clear evidence in the case to show that persons in whose favour lands were settled were not in possession thereof at any time as tenants and, in fact, those persons did not even belong to the village. The contention of the appellant in the enquiry was that he acted mechanically on the report which was submitted to him by his subordinate officers and that it was no part of his duty to satisfy himself whether the report was justified. This contention of the appellant runs counter to Rule 145 of the Boards Miscellaneous Rules which says in so far as is relevant that "Kanungos are executive revenue officers who are expected to pass the greater part of their time in the muffassil on out-door work". As observed by the High Court, a Kanungo who forwards his report regarding the abatement of rent and settlement of lands with new tenants cannot, consistently with the rules, be permitted to take a plea that his responsibility is only of a ministerial kind and that he is merely a forwarding agency. We are satisfied that it was the appellants duty to pay visit to the locality in which the lands were situated and to satisfy himself whether the report in regard to the settlement of lands was made in accordance with the rules. It is undeniable that the settlements was made with persons who did not belong to the village and who were not tenants of the lands.11. The last contention of Mr. Ramamurthy is that certain valuable documents which would have enabled the appellant to establish his innocence were withheld from him during the enquiry. It is true that certain documents were found missing but the evidence on the basis of which charge No. 2 which is the principal charge, has been held to have been established is the report of the Sub-Divisional Magistrate, Shri Tudu, and the evidence of the Khas Mahal Tahsildar whose earlier report Ext. 2 was on the record of the case. The two reports were taken on the record in the presence of the appellant and he was accorded full opportunity to meet these reports. The appellant did not, at any stage take the plea that he had actually visited the site and had satisfied himself that the report made by the officers was correct. Were he to take any such plea it might have become relevant that certain important papers were withheld from him. The appellants limited contention was that the primary responsibility for making the recommendation was that of the Khas Mahal Tahsildar, that his own function was purely of administerial nature and that no order for the settlement of lands was made independently by him. As we have stated earlier it is impossible, in view of the rules governing the matter to accept this contention.
### Response:
0
### Explanation:
8. The first of these points which was point No. 3 before the High Court is that the Commissioners order of dismissal was influenced by the further comments which were made by the Addl. Collector and the Collector and since these comments were taken into consideration by the Commissioner behind the back of the appellant, opportunity was denied to the appellant to meet these comments which has resulted in violation of the principles of natural justice. It seems to us impossible to accept this contention. When the Commissioner issued the show cause notice to the appellant as regards the proposed punishment, he had by his order of even date informed the appellant that the representation should be submitted to the Addl. Collector, that the Addl. Collector would forwarded the representation with his own comments to the Collector and that the Collector in turn will forward the representation with his own comments to the Commissioner. The appellant thus knew when he made his representation to the Commissioner against the proposed punishment that the Addl. Collector and the Collector will, as directed by the Commissioner, offer their comments on his representation. In spite of this, the appellant did not ask the Commissioner to disclose to him as to what comments were made by the Addl. Collector and the Collector on his representation. Apart from the fact that the appellant did not ask for any opportunity to meet the comments made by the two officers, it is important to bear in mind that the comments made by the Addl. Collector and the Collector pertain solely to the representation made by the appellant as regards the proposed punishment and did not refer to any new or undisclosed facts which were not on the record. The facts on which the Commissioner proposed that the particular order of punishment be passed were taken on the record in the presence of the appellant and he was afforded full and effective opportunity to meet each piece of the evidence which was adduced in the case. The Commissioner had already recorded a finding that all the charges levelled against the appellant were established on the evidence led in the case, that he had formed the opinion that charges 1 & 2 were tentatively proved and that he proposed to impose the punishment of dismissal in respect of those charges. In view of this position we are unable to accept the contention of the appellant that there has been any violation of the principles of natural justice.9. We would also like to add that when the appellants appeal was heard by the Board of Revenue the entire record, including the comments made by the Addl. Collector and the Collector was available to the appellant and he could have made his contentions which he desired in regard thereto. He did not make any grievance that he was prejudiced because copies of the documents were not supplied to him.10. There is equally no substance in points 4 and 5 which were argued before the High Court. Point No. 5 is to the effect that the finding in respect of charge No. 2 was based on no evidence. We do not understand this contention since there is clear evidence in the case to show that persons in whose favour lands were settled were not in possession thereof at any time as tenants and, in fact, those persons did not even belong to the village. The contention of the appellant in the enquiry was that he acted mechanically on the report which was submitted to him by his subordinate officers and that it was no part of his duty to satisfy himself whether the report was justified. This contention of the appellant runs counter to Rule 145 of the Boards Miscellaneous Rules which says in so far as is relevant that "Kanungos are executive revenue officers who are expected to pass the greater part of their time in the muffassil onwork". As observed by the High Court, a Kanungo who forwards his report regarding the abatement of rent and settlement of lands with new tenants cannot, consistently with the rules, be permitted to take a plea that his responsibility is only of a ministerial kind and that he is merely a forwarding agency. We are satisfied that it was the appellants duty to pay visit to the locality in which the lands were situated and to satisfy himself whether the report in regard to the settlement of lands was made in accordance with the rules. It is undeniable that the settlements was made with persons who did not belong to the village and who were not tenants of the lands.11. The last contention of Mr. Ramamurthy is that certain valuable documents which would have enabled the appellant to establish his innocence were withheld from him during the enquiry. It is true that certain documents were found missing but the evidence on the basis of which charge No. 2 which is the principal charge, has been held to have been established is the report of theMagistrate, Shri Tudu, and the evidence of the Khas Mahal Tahsildar whose earlier report Ext. 2 was on the record of the case. The two reports were taken on the record in the presence of the appellant and he was accorded full opportunity to meet these reports. The appellant did not, at any stage take the plea that he had actually visited the site and had satisfied himself that the report made by the officers was correct. Were he to take any such plea it might have become relevant that certain important papers were withheld from him. The appellants limited contention was that the primary responsibility for making the recommendation was that of the Khas Mahal Tahsildar, that his own function was purely of administerial nature and that no order for the settlement of lands was made independently by him. As we have stated earlier it is impossible, in view of the rules governing the matter to accept this contention.
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Palwinder Kaur & Others Vs. Oriental Insurance Co. Ltd. & Another | 1. We have heard learned counsel for the parties. 2. Leave granted. 3. The appellants, who are the claimants, are aggrieved by the judgment and order dated 15.4.2014 passed by the high Court of Delhi at New Delhi in F.A.O. No. 50 of 2012 reversing the judgment and award passed by the Commissioner, Workmen?s Compensation awarding a sum of Rs. 3,84, 280 (rupees three lakh eighty four thousand two hundred and eighty) as compensation for the death of the deceased while driving the motor vehicle.4. Admittedly, one Harvinder Singh was the owner of the truck bearing No. HR 55-9697 and the deceased was said to have been driving the vehicle. In the course of driving the said vehicle, he sustained grievous injuries committed by unknown persons, which caused his death.5. The Commissioner, Workmen?s Compensation, after considering the entire facts of the case, came to the conclusion that the deceased was, in fact, an employee of Harvinder Singh, who was the owner of the vehicle and in course of employment he was murdered by unknown persons. Consequently, the compensation of Rs. 3,84,280 was awarded.6. The respondent Oriental Insurance Co. Ltd. Challenged the aforesaid order mainly on the ground that the deceased was not the employee of Harvinder Singh, rather he himself was the owner of the vehicle and, therefore, under the conditions of insurance policy, the owner is not covered and no compensation is payable.7. From bare perusal of the impugned judgment passed by the High Court, it appears that without framing any substantial question of law, the High Court proceeded on the basis that deceased was the owner of the truck. Accepting the submission of the learned counsel appearing for the insurance company, the High Court came to the conclusion that the deceased being the owner of the truck is not entitled to get any compensation. From a perusal of the written statement filed by the insurance company, it reveals that no specific defence was taken by the insurance company that the deceased was the owner of the truck. Moreover, the only pleading which appears to be in the written statement is that no document was filed by the claimants showing the deceased as an employee of the original owner, respondent No. 1.8. We are, therefore, of the view that on the basis of mere submission made by the learned counsel for the parties, the High Court ought not to have come to that conclusion specifically when there was no such pleading by the insurance company. The Commissioner, Workmen?s Compensation, after considering the entire facts of the case pleaded by the parties, came to the conclusion that at the time of accident, the deceased was, in fact, driver and employee of the original owner Harvinder Singh. | 1[ds]8. We are, therefore, of the view that on the basis of mere submission made by the learned counsel for the parties, the High Court ought not to have come to that conclusion specifically when there was no such pleading by the insurance company. The Commissioner, Workmen?s Compensation, after considering the entire facts of the case pleaded by the parties, came to the conclusion that at the time of accident, the deceased was, in fact, driver and employee of the original owner Harvinder Singh. | 1 | 521 | 102 | ### 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:
1. We have heard learned counsel for the parties. 2. Leave granted. 3. The appellants, who are the claimants, are aggrieved by the judgment and order dated 15.4.2014 passed by the high Court of Delhi at New Delhi in F.A.O. No. 50 of 2012 reversing the judgment and award passed by the Commissioner, Workmen?s Compensation awarding a sum of Rs. 3,84, 280 (rupees three lakh eighty four thousand two hundred and eighty) as compensation for the death of the deceased while driving the motor vehicle.4. Admittedly, one Harvinder Singh was the owner of the truck bearing No. HR 55-9697 and the deceased was said to have been driving the vehicle. In the course of driving the said vehicle, he sustained grievous injuries committed by unknown persons, which caused his death.5. The Commissioner, Workmen?s Compensation, after considering the entire facts of the case, came to the conclusion that the deceased was, in fact, an employee of Harvinder Singh, who was the owner of the vehicle and in course of employment he was murdered by unknown persons. Consequently, the compensation of Rs. 3,84,280 was awarded.6. The respondent Oriental Insurance Co. Ltd. Challenged the aforesaid order mainly on the ground that the deceased was not the employee of Harvinder Singh, rather he himself was the owner of the vehicle and, therefore, under the conditions of insurance policy, the owner is not covered and no compensation is payable.7. From bare perusal of the impugned judgment passed by the High Court, it appears that without framing any substantial question of law, the High Court proceeded on the basis that deceased was the owner of the truck. Accepting the submission of the learned counsel appearing for the insurance company, the High Court came to the conclusion that the deceased being the owner of the truck is not entitled to get any compensation. From a perusal of the written statement filed by the insurance company, it reveals that no specific defence was taken by the insurance company that the deceased was the owner of the truck. Moreover, the only pleading which appears to be in the written statement is that no document was filed by the claimants showing the deceased as an employee of the original owner, respondent No. 1.8. We are, therefore, of the view that on the basis of mere submission made by the learned counsel for the parties, the High Court ought not to have come to that conclusion specifically when there was no such pleading by the insurance company. The Commissioner, Workmen?s Compensation, after considering the entire facts of the case pleaded by the parties, came to the conclusion that at the time of accident, the deceased was, in fact, driver and employee of the original owner Harvinder Singh.
### Response:
1
### Explanation:
8. We are, therefore, of the view that on the basis of mere submission made by the learned counsel for the parties, the High Court ought not to have come to that conclusion specifically when there was no such pleading by the insurance company. The Commissioner, Workmen?s Compensation, after considering the entire facts of the case pleaded by the parties, came to the conclusion that at the time of accident, the deceased was, in fact, driver and employee of the original owner Harvinder Singh.
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Caparo Engineering India Ltd. And Others Vs. Ummed Singh Lodhi And Anr | of any customary concession or privilege or change in usage; 9. Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders; 10. Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen; 11. Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, not occasioned by circumstances over which the employer has no control. 7.4 In view of the above and from the findings recorded by the learned Labour Court on the appreciation of evidence on record, it is rightly held that the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. away is in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act and is arbitrary, mala fide and victimization. As observed above, by such transfer, their status as workman would be changed to that of supervisor. By such a change after their transfer to Chopanki and after they work as supervisor they will be deprived of the beneficial provisions of the Industrial Disputes Act and, therefore, the nature of service conditions/service would be changed. 7.5 Even from the judgment and award passed by the learned Labour Court as well as the impugned judgment and order passed by the learned Single Judge, it can be seen that the appellant/employer has failed to justify the transfer of nine employees from Dewas to Chopanki, which is at a distance of 900 Kms. and that too at the fag end of their service career. Every aspect has been dealt with and considered in detail by the learned Labour Court as well as by the learned Single Judge of the High Court. 7.6 Now, so far as the submission on behalf of the appellant that the respective workmen – employees were not workmen and, therefore, the reference to the learned Labour Court was not maintainable, has no substance at all. There are concurrent findings recorded by the learned Labour Court as well as the learned Single Judge that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act. From the depositions of the witnesses, PW-1, PW-2, DW-1 and DW-2, it is established and proved that the concerned employees were workmen and that after their transfer to Chopanki, they will be given training and they will work as a supervisor. 7.7 At this stage, it is required to be noted that after the conciliation had failed, the dispute, which was referred to the learned Labour Court was whether the transfer is valid and proper? The dispute that the concerned employee is a workman or not was not even referred to the learned Labour Court. Even no such issue was framed by the learned Labour Court. Be that it may, as observed hereinabove, it has been established and proved that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act and, therefore, were entitled to the protection under the provisions of the Industrial Disputes Act. 7.8 Now, so far as the submission on behalf of the appellant that so far as the transfer is concerned, it is part of the service conditions and therefore Section 9A shall not be applicable is concerned, the same has no substance. The question is not about the transfer only, the question is about the consequences of transfer. In the present case, the nature of work/service conditions would be changed and the consequences of transfer would result in the change of service conditions and the reduction of employees at Dewas factory, for which the Fourth Schedule and Section 9A shall be attracted. 7.9 Now, so far as the submission on behalf of the appellant that the learned Single Judge of the High Court wrongly treated the petition(s) under Article 227 and as such the learned Single Judge ought to have treated the petition(s) under Article 226, therefore, the writ appeal before the learned Single Judge would have been maintainable, is concerned, at the outset, it is required to be noted that before the learned Single Judge in the cause title specifically Article 227 has been mentioned. Even in prayer clause, no writ of certiorari is sought. The prayer is simply to quash and set aside the judgment and award passed by the learned Labour Court and, therefore, in the fact situation, the Division Bench has rightly dismissed the writ appeal as not maintainable. Be that it may, even for the sake of submission, assuming that we accept the submission that the petition before the learned Single Judge ought to have been treated as under Article 226 and writ appeal would have been maintainable, in the facts and circumstances of the case and instead of remanding the matter to the Division Bench to decide the same afresh, we, ourselves, have decided the entire controversy/issues on merits considering the fact that the order of transfer is of 2015 and that most of the employees have by now retired or they are about to retire on attaining the age of superannuation and that it is stated that they are not paid the salaries since 2015. Therefore, we, ourselves, have decided the entire issues on merits. 8. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and award passed by the learned Labour Court confirmed by the learned Single Judge of the High Court. We are in complete agreement with the view taken by the learned Labour Court as well as the learned Single Judge holding the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. from the place they were working as illegal, mala fide and in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act. | 0[ds]7.1 The aforesaid findings by the learned Labour Court are on appreciation of evidence on record, which as such cannot be said to be perverse and/or contrary to the evidence on record. We have also minutely gone through the findings recorded by the learned Labour Court as well as the evidence on record. It emerge from the evidence on record that the respective respondents – employees were employed at Dewas and working at Dewas for more than 25 to 30 years; all of them came to be transferred suddenly from Dewas to Chopanki, which is at a distance of 900 Kms. from Dewas; they came to be transferred at the fag end of their service career; that the place where they were transferred had no educational and medical facilities and that the place where they were transferred had no residential area within 40-50 Kms. from the plant with no means of transport.7.2 It also emerges that the number of workers at Dewas factory has been reduced by nine by transferring the workmen to Chopanki. It also emerges that even as admitted by DW-1 and DW-2 the transferred workmen would work in the capacity of supervisor at Chopanki and after their transfer to Chopanki, they will be given training and assigned the work of supervisor.7.3 As observed hereinabove and even the findings recorded by the learned Labour Court and even it also emerge from the evidence on record that at Dewas all of them were workmen as defined in Section 2(s) of the Industrial Disputes Act and, therefore, would have a protection under the provisions of the Industrial Disputes Act and after their transfer to Chopanki, they will have to work in the capacity of supervisor and, therefore would be deprived of the beneficial provisions of the Industrial Disputes Act. Therefore, on such transfer from Dewas to Chopanki, the nature of service conditions and the nature of work would be changed, therefore, in such a case Section 9A read with Fourth Schedule would be attracted.7.4 In view of the above and from the findings recorded by the learned Labour Court on the appreciation of evidence on record, it is rightly held that the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. away is in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act and is arbitrary, mala fide and victimization. As observed above, by such transfer, their status as workman would be changed to that of supervisor. By such a change after their transfer to Chopanki and after they work as supervisor they will be deprived of the beneficial provisions of the Industrial Disputes Act and, therefore, the nature of service conditions/service would be changed.7.5 Even from the judgment and award passed by the learned Labour Court as well as the impugned judgment and order passed by the learned Single Judge, it can be seen that the appellant/employer has failed to justify the transfer of nine employees from Dewas to Chopanki, which is at a distance of 900 Kms. and that too at the fag end of their service career. Every aspect has been dealt with and considered in detail by the learned Labour Court as well as by the learned Single Judge of the High Court.7.6 Now, so far as the submission on behalf of the appellant that the respective workmen – employees were not workmen and, therefore, the reference to the learned Labour Court was not maintainable, has no substance at all. There are concurrent findings recorded by the learned Labour Court as well as the learned Single Judge that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act. From the depositions of the witnesses, PW-1, PW-2, DW-1 and DW-2, it is established and proved that the concerned employees were workmen and that after their transfer to Chopanki, they will be given training and they will work as a supervisor.7.7 At this stage, it is required to be noted that after the conciliation had failed, the dispute, which was referred to the learned Labour Court was whether the transfer is valid and proper? The dispute that the concerned employee is a workman or not was not even referred to the learned Labour Court. Even no such issue was framed by the learned Labour Court. Be that it may, as observed hereinabove, it has been established and proved that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act and, therefore, were entitled to the protection under the provisions of the Industrial Disputes Act.7.8 Now, so far as the submission on behalf of the appellant that so far as the transfer is concerned, it is part of the service conditions and therefore Section 9A shall not be applicable is concerned, the same has no substance. The question is not about the transfer only, the question is about the consequences of transfer. In the present case, the nature of work/service conditions would be changed and the consequences of transfer would result in the change of service conditions and the reduction of employees at Dewas factory, for which the Fourth Schedule and Section 9A shall be attracted.7.9 Now, so far as the submission on behalf of the appellant that the learned Single Judge of the High Court wrongly treated the petition(s) under Article 227 and as such the learned Single Judge ought to have treated the petition(s) under Article 226, therefore, the writ appeal before the learned Single Judge would have been maintainable, is concerned, at the outset, it is required to be noted that before the learned Single Judge in the cause title specifically Article 227 has been mentioned. Even in prayer clause, no writ of certiorari is sought. The prayer is simply to quash and set aside the judgment and award passed by the learned Labour Court and, therefore, in the fact situation, the Division Bench has rightly dismissed the writ appeal as not maintainable. Be that it may, even for the sake of submission, assuming that we accept the submission that the petition before the learned Single Judge ought to have been treated as under Article 226 and writ appeal would have been maintainable, in the facts and circumstances of the case and instead of remanding the matter to the Division Bench to decide the same afresh, we, ourselves, have decided the entire controversy/issues on merits considering the fact that the order of transfer is of 2015 and that most of the employees have by now retired or they are about to retire on attaining the age of superannuation and that it is stated that they are not paid the salaries since 2015. Therefore, we, ourselves, have decided the entire issues on merits.8. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and award passed by the learned Labour Court confirmed by the learned Single Judge of the High Court. We are in complete agreement with the view taken by the learned Labour Court as well as the learned Single Judge holding the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. from the place they were working as illegal, mala fide and in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act. | 0 | 5,471 | 1,351 | ### 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:
of any customary concession or privilege or change in usage; 9. Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders; 10. Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen; 11. Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, not occasioned by circumstances over which the employer has no control. 7.4 In view of the above and from the findings recorded by the learned Labour Court on the appreciation of evidence on record, it is rightly held that the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. away is in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act and is arbitrary, mala fide and victimization. As observed above, by such transfer, their status as workman would be changed to that of supervisor. By such a change after their transfer to Chopanki and after they work as supervisor they will be deprived of the beneficial provisions of the Industrial Disputes Act and, therefore, the nature of service conditions/service would be changed. 7.5 Even from the judgment and award passed by the learned Labour Court as well as the impugned judgment and order passed by the learned Single Judge, it can be seen that the appellant/employer has failed to justify the transfer of nine employees from Dewas to Chopanki, which is at a distance of 900 Kms. and that too at the fag end of their service career. Every aspect has been dealt with and considered in detail by the learned Labour Court as well as by the learned Single Judge of the High Court. 7.6 Now, so far as the submission on behalf of the appellant that the respective workmen – employees were not workmen and, therefore, the reference to the learned Labour Court was not maintainable, has no substance at all. There are concurrent findings recorded by the learned Labour Court as well as the learned Single Judge that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act. From the depositions of the witnesses, PW-1, PW-2, DW-1 and DW-2, it is established and proved that the concerned employees were workmen and that after their transfer to Chopanki, they will be given training and they will work as a supervisor. 7.7 At this stage, it is required to be noted that after the conciliation had failed, the dispute, which was referred to the learned Labour Court was whether the transfer is valid and proper? The dispute that the concerned employee is a workman or not was not even referred to the learned Labour Court. Even no such issue was framed by the learned Labour Court. Be that it may, as observed hereinabove, it has been established and proved that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act and, therefore, were entitled to the protection under the provisions of the Industrial Disputes Act. 7.8 Now, so far as the submission on behalf of the appellant that so far as the transfer is concerned, it is part of the service conditions and therefore Section 9A shall not be applicable is concerned, the same has no substance. The question is not about the transfer only, the question is about the consequences of transfer. In the present case, the nature of work/service conditions would be changed and the consequences of transfer would result in the change of service conditions and the reduction of employees at Dewas factory, for which the Fourth Schedule and Section 9A shall be attracted. 7.9 Now, so far as the submission on behalf of the appellant that the learned Single Judge of the High Court wrongly treated the petition(s) under Article 227 and as such the learned Single Judge ought to have treated the petition(s) under Article 226, therefore, the writ appeal before the learned Single Judge would have been maintainable, is concerned, at the outset, it is required to be noted that before the learned Single Judge in the cause title specifically Article 227 has been mentioned. Even in prayer clause, no writ of certiorari is sought. The prayer is simply to quash and set aside the judgment and award passed by the learned Labour Court and, therefore, in the fact situation, the Division Bench has rightly dismissed the writ appeal as not maintainable. Be that it may, even for the sake of submission, assuming that we accept the submission that the petition before the learned Single Judge ought to have been treated as under Article 226 and writ appeal would have been maintainable, in the facts and circumstances of the case and instead of remanding the matter to the Division Bench to decide the same afresh, we, ourselves, have decided the entire controversy/issues on merits considering the fact that the order of transfer is of 2015 and that most of the employees have by now retired or they are about to retire on attaining the age of superannuation and that it is stated that they are not paid the salaries since 2015. Therefore, we, ourselves, have decided the entire issues on merits. 8. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and award passed by the learned Labour Court confirmed by the learned Single Judge of the High Court. We are in complete agreement with the view taken by the learned Labour Court as well as the learned Single Judge holding the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. from the place they were working as illegal, mala fide and in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act.
### Response:
0
### Explanation:
at Dewas all of them were workmen as defined in Section 2(s) of the Industrial Disputes Act and, therefore, would have a protection under the provisions of the Industrial Disputes Act and after their transfer to Chopanki, they will have to work in the capacity of supervisor and, therefore would be deprived of the beneficial provisions of the Industrial Disputes Act. Therefore, on such transfer from Dewas to Chopanki, the nature of service conditions and the nature of work would be changed, therefore, in such a case Section 9A read with Fourth Schedule would be attracted.7.4 In view of the above and from the findings recorded by the learned Labour Court on the appreciation of evidence on record, it is rightly held that the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. away is in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act and is arbitrary, mala fide and victimization. As observed above, by such transfer, their status as workman would be changed to that of supervisor. By such a change after their transfer to Chopanki and after they work as supervisor they will be deprived of the beneficial provisions of the Industrial Disputes Act and, therefore, the nature of service conditions/service would be changed.7.5 Even from the judgment and award passed by the learned Labour Court as well as the impugned judgment and order passed by the learned Single Judge, it can be seen that the appellant/employer has failed to justify the transfer of nine employees from Dewas to Chopanki, which is at a distance of 900 Kms. and that too at the fag end of their service career. Every aspect has been dealt with and considered in detail by the learned Labour Court as well as by the learned Single Judge of the High Court.7.6 Now, so far as the submission on behalf of the appellant that the respective workmen – employees were not workmen and, therefore, the reference to the learned Labour Court was not maintainable, has no substance at all. There are concurrent findings recorded by the learned Labour Court as well as the learned Single Judge that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act. From the depositions of the witnesses, PW-1, PW-2, DW-1 and DW-2, it is established and proved that the concerned employees were workmen and that after their transfer to Chopanki, they will be given training and they will work as a supervisor.7.7 At this stage, it is required to be noted that after the conciliation had failed, the dispute, which was referred to the learned Labour Court was whether the transfer is valid and proper? The dispute that the concerned employee is a workman or not was not even referred to the learned Labour Court. Even no such issue was framed by the learned Labour Court. Be that it may, as observed hereinabove, it has been established and proved that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act and, therefore, were entitled to the protection under the provisions of the Industrial Disputes Act.7.8 Now, so far as the submission on behalf of the appellant that so far as the transfer is concerned, it is part of the service conditions and therefore Section 9A shall not be applicable is concerned, the same has no substance. The question is not about the transfer only, the question is about the consequences of transfer. In the present case, the nature of work/service conditions would be changed and the consequences of transfer would result in the change of service conditions and the reduction of employees at Dewas factory, for which the Fourth Schedule and Section 9A shall be attracted.7.9 Now, so far as the submission on behalf of the appellant that the learned Single Judge of the High Court wrongly treated the petition(s) under Article 227 and as such the learned Single Judge ought to have treated the petition(s) under Article 226, therefore, the writ appeal before the learned Single Judge would have been maintainable, is concerned, at the outset, it is required to be noted that before the learned Single Judge in the cause title specifically Article 227 has been mentioned. Even in prayer clause, no writ of certiorari is sought. The prayer is simply to quash and set aside the judgment and award passed by the learned Labour Court and, therefore, in the fact situation, the Division Bench has rightly dismissed the writ appeal as not maintainable. Be that it may, even for the sake of submission, assuming that we accept the submission that the petition before the learned Single Judge ought to have been treated as under Article 226 and writ appeal would have been maintainable, in the facts and circumstances of the case and instead of remanding the matter to the Division Bench to decide the same afresh, we, ourselves, have decided the entire controversy/issues on merits considering the fact that the order of transfer is of 2015 and that most of the employees have by now retired or they are about to retire on attaining the age of superannuation and that it is stated that they are not paid the salaries since 2015. Therefore, we, ourselves, have decided the entire issues on merits.8. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and award passed by the learned Labour Court confirmed by the learned Single Judge of the High Court. We are in complete agreement with the view taken by the learned Labour Court as well as the learned Single Judge holding the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. from the place they were working as illegal, mala fide and in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act.
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Standard Motor Union Pvt. Ltd Vs. State Of Kerala & Ors | is in contravention of Rule 3 read with Section 68-C and is therefore invalid. Let us examine this contention. The scheme is in respect of 9 specified routes. The scheme excludes all private operators holding stage carriage permits for those routes. Take the route Kottayam-Emakulam. All the private operators holding stage carriage permits for that route are excluded.It is therefore argued that the scheme is one of complete exclusion. But it appears that there are 33 existing routes partially overlapping the notified routes. The 33 existing routes and the notified routes have many common road sectors. The scheme does not interfere with the services on the 33 routes. In spite of the scheme the public can get services on the common road sectors from the operators running on the 33 routes. Take the notified Kottayam-Ernakulam route. There is an existing Kottayam- Muttupetty route. A portion of the Kottayam-Mutttupetty route overlaps the Kottayam-Ernakulam route. The impugned scheme does not exclude the services of the operators of the Kottayam-Muttupetty route on the road sector common to the Kottayam-Ernakulam and Kottayam-Muttupetty routes. On these facts, it is impossible to say that the impugned scheme is one of complete exclusion. 4. Section 68-C envisages schemes of road transport services in relation to any area or route or portion thereof whether to the exclusion, complete, or partial of other persons or otherwise- Rule 3 of the Kerala Motor Vehicles (State Transport Undertaking) Rules, 1960 speaks of schemes of road transport service in complete or partial exclusion of existing road transport services.From the language of Section 68-C and Rule 3 it appears that a complete exclusion scheme in relation to any area or route would be a scheme which completely excludes the existing road services of private operators on the area or route in question. The route includes the highway over which it runs. If other existing services are allowed to continue over a part of the highway relating to the notified route, the scheme is not one of complete exclusion. 5. A stage carriage permit is granted under Sections 46 to 48 for a specified area. The words roads included in the proposed route or area" in Section 47 (l) (f) imply that a route includes the road or the physical track Section 68F (2) (iii) implies that a portion of the route of an existing permit may relate to a notified route. This happens when the two routes have a common road sector. Section 68F (2) (iii) authorises the exclusion of the common portion of the road from the existing permit for giving effect to the scheme or the notified route. For the purposes of Chapters IV and IVA there is no practical distinction between the route or the notional line from the terminus to another for which the permit is granted and the road over which the transport services are run and operated.As pointed out in Nilkanth Prasad v. State of Bihar, 1962 Supp (1) SCR 728 at p. 737 = (AIR 1962 SC 1135 at p. 1139) "the distinction between route" as the notional line and "road" as the physical track disappears in the working of Chapter IVA." The route is also an area. (see Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 SC 82 at p. 03 and C. P. C. Motor Service v. State of Mysore, AIR 1966 SC l661),The impugned scheme does not exclude the road transport services of the 33 existing routes over many section of the highways relating to the notified routes. It follows that the scheme is not in complete exclusion of existing road transport services in respect of the notified routes and is not required to be in form I. There is no infirmity in the scheme because it was in form II. 6. The impugned scheme is in partial exclusion of operators from Kottayam-Ernakulam and Kottayam-Erattupettah routes and 7 other routes. It is common case that there were earlier schemes relating to the Kottayam-Ernakulam and Kottayam-Errattupettah routes. In so far as the impugned scheme excludes private operators from those routes, it has the effect of modifying the earlier schemes. The appellants contention is that the impugned scheme is invalid as the modifications of the earlier schemes were made without complying with the provisions of Section 68E. In our opinion, this contention is baseless. The new scheme has been proposed and approved after following the procedure laid down in Sections 68C and68D.In so far as the new scheme modifies the earlier schemes, the modifications could be made under Section 68E. As the procedure laid down in Sections 68C and 68D were followed the conditions of Sec. 68E were satisfied. S. 68E does not require that the new scheme should expressly say that it cancels or modifies the earlier schemes. On the promulgation of the new scheme the earlier schemes stand modified by implication pro tanto. 7. A scheme to modify an existing scheme simpliciter is required by Rule 3 of the Kerala Motor vehicles (State Transport Undertaking) Rules, 1960, to be in Form IV.The impugned scheme was in Form II as it was in partial exclusion of the existing road transport service. Such a scheme could not be in form IV.The partial exclusion scheme was rightly proposed in form II and when approved it had the effect of modifying the earlier schemes. 8. Counsel suggested that the approval of the scheme by the State Government on October 17, 1968 was defective as the Government was merely of the opinion that the proposed scheme was necessary to provide efficient, adequate and co-ordinated road transport services and it did not form the opinion that the scheme was necessary to provide economical road transport service. The point was not taken in the courts below and we therefore indicated to the course of the arguments that the appellant will not be permitted to raise point at this late stage. Several other objections were taken in the courts below but they are not pressed in this Court. | 0[ds]6. The impugned scheme is in partial exclusion of operators from Kottayam-Ernakulam and Kottayam-Erattupettah routes and 7 other routes. It is common case that there were earlier schemes relating to the Kottayam-Ernakulam and Kottayam-Errattupettah routes. In so far as the impugned scheme excludes private operators from those routes, it has the effect of modifying the earlier schemes. The appellants contention is that the impugned scheme is invalid as the modifications of the earlier schemes were made without complying with the provisions of Section 68E. In our opinion, this contention is baseless. The new scheme has been proposed and approved after following the procedure laid down in Sections 68C and68D.In so far as the new scheme modifies the earlier schemes, the modifications could be made under Section 68E. As the procedure laid down in Sections 68C and 68D were followed the conditions of Sec. 68E were satisfied. S. 68E does not require that the new scheme should expressly say that it cancels or modifies the earlier schemes. On the promulgation of the new scheme the earlier schemes stand modified by implication pro tanto7. A scheme to modify an existing scheme simpliciter is required by Rule 3 of the Kerala Motor vehicles (State Transport Undertaking) Rules, 1960, to be in Form IV.The impugned scheme was in Form II as it was in partial exclusion of the existing road transport service. Such a scheme could not be in form IV.The partial exclusion scheme was rightly proposed in form II and when approved it had the effect of modifying the earlier schemes8. Counsel suggested that the approval of the scheme by the State Government on October 17, 1968 was defective as the Government was merely of the opinion that the proposed scheme was necessary to provide efficient, adequate and co-ordinated road transport services and it did not form the opinion that the scheme was necessary to provide economical road transport service. The point was not taken in the courts below and we therefore indicated to the course of the arguments that the appellant will not be permitted to raise point at this late stage. Several other objections were taken in the courts below but they are not pressed in this Court. | 0 | 1,671 | 396 | ### 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:
is in contravention of Rule 3 read with Section 68-C and is therefore invalid. Let us examine this contention. The scheme is in respect of 9 specified routes. The scheme excludes all private operators holding stage carriage permits for those routes. Take the route Kottayam-Emakulam. All the private operators holding stage carriage permits for that route are excluded.It is therefore argued that the scheme is one of complete exclusion. But it appears that there are 33 existing routes partially overlapping the notified routes. The 33 existing routes and the notified routes have many common road sectors. The scheme does not interfere with the services on the 33 routes. In spite of the scheme the public can get services on the common road sectors from the operators running on the 33 routes. Take the notified Kottayam-Ernakulam route. There is an existing Kottayam- Muttupetty route. A portion of the Kottayam-Mutttupetty route overlaps the Kottayam-Ernakulam route. The impugned scheme does not exclude the services of the operators of the Kottayam-Muttupetty route on the road sector common to the Kottayam-Ernakulam and Kottayam-Muttupetty routes. On these facts, it is impossible to say that the impugned scheme is one of complete exclusion. 4. Section 68-C envisages schemes of road transport services in relation to any area or route or portion thereof whether to the exclusion, complete, or partial of other persons or otherwise- Rule 3 of the Kerala Motor Vehicles (State Transport Undertaking) Rules, 1960 speaks of schemes of road transport service in complete or partial exclusion of existing road transport services.From the language of Section 68-C and Rule 3 it appears that a complete exclusion scheme in relation to any area or route would be a scheme which completely excludes the existing road services of private operators on the area or route in question. The route includes the highway over which it runs. If other existing services are allowed to continue over a part of the highway relating to the notified route, the scheme is not one of complete exclusion. 5. A stage carriage permit is granted under Sections 46 to 48 for a specified area. The words roads included in the proposed route or area" in Section 47 (l) (f) imply that a route includes the road or the physical track Section 68F (2) (iii) implies that a portion of the route of an existing permit may relate to a notified route. This happens when the two routes have a common road sector. Section 68F (2) (iii) authorises the exclusion of the common portion of the road from the existing permit for giving effect to the scheme or the notified route. For the purposes of Chapters IV and IVA there is no practical distinction between the route or the notional line from the terminus to another for which the permit is granted and the road over which the transport services are run and operated.As pointed out in Nilkanth Prasad v. State of Bihar, 1962 Supp (1) SCR 728 at p. 737 = (AIR 1962 SC 1135 at p. 1139) "the distinction between route" as the notional line and "road" as the physical track disappears in the working of Chapter IVA." The route is also an area. (see Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 SC 82 at p. 03 and C. P. C. Motor Service v. State of Mysore, AIR 1966 SC l661),The impugned scheme does not exclude the road transport services of the 33 existing routes over many section of the highways relating to the notified routes. It follows that the scheme is not in complete exclusion of existing road transport services in respect of the notified routes and is not required to be in form I. There is no infirmity in the scheme because it was in form II. 6. The impugned scheme is in partial exclusion of operators from Kottayam-Ernakulam and Kottayam-Erattupettah routes and 7 other routes. It is common case that there were earlier schemes relating to the Kottayam-Ernakulam and Kottayam-Errattupettah routes. In so far as the impugned scheme excludes private operators from those routes, it has the effect of modifying the earlier schemes. The appellants contention is that the impugned scheme is invalid as the modifications of the earlier schemes were made without complying with the provisions of Section 68E. In our opinion, this contention is baseless. The new scheme has been proposed and approved after following the procedure laid down in Sections 68C and68D.In so far as the new scheme modifies the earlier schemes, the modifications could be made under Section 68E. As the procedure laid down in Sections 68C and 68D were followed the conditions of Sec. 68E were satisfied. S. 68E does not require that the new scheme should expressly say that it cancels or modifies the earlier schemes. On the promulgation of the new scheme the earlier schemes stand modified by implication pro tanto. 7. A scheme to modify an existing scheme simpliciter is required by Rule 3 of the Kerala Motor vehicles (State Transport Undertaking) Rules, 1960, to be in Form IV.The impugned scheme was in Form II as it was in partial exclusion of the existing road transport service. Such a scheme could not be in form IV.The partial exclusion scheme was rightly proposed in form II and when approved it had the effect of modifying the earlier schemes. 8. Counsel suggested that the approval of the scheme by the State Government on October 17, 1968 was defective as the Government was merely of the opinion that the proposed scheme was necessary to provide efficient, adequate and co-ordinated road transport services and it did not form the opinion that the scheme was necessary to provide economical road transport service. The point was not taken in the courts below and we therefore indicated to the course of the arguments that the appellant will not be permitted to raise point at this late stage. Several other objections were taken in the courts below but they are not pressed in this Court.
### Response:
0
### Explanation:
6. The impugned scheme is in partial exclusion of operators from Kottayam-Ernakulam and Kottayam-Erattupettah routes and 7 other routes. It is common case that there were earlier schemes relating to the Kottayam-Ernakulam and Kottayam-Errattupettah routes. In so far as the impugned scheme excludes private operators from those routes, it has the effect of modifying the earlier schemes. The appellants contention is that the impugned scheme is invalid as the modifications of the earlier schemes were made without complying with the provisions of Section 68E. In our opinion, this contention is baseless. The new scheme has been proposed and approved after following the procedure laid down in Sections 68C and68D.In so far as the new scheme modifies the earlier schemes, the modifications could be made under Section 68E. As the procedure laid down in Sections 68C and 68D were followed the conditions of Sec. 68E were satisfied. S. 68E does not require that the new scheme should expressly say that it cancels or modifies the earlier schemes. On the promulgation of the new scheme the earlier schemes stand modified by implication pro tanto7. A scheme to modify an existing scheme simpliciter is required by Rule 3 of the Kerala Motor vehicles (State Transport Undertaking) Rules, 1960, to be in Form IV.The impugned scheme was in Form II as it was in partial exclusion of the existing road transport service. Such a scheme could not be in form IV.The partial exclusion scheme was rightly proposed in form II and when approved it had the effect of modifying the earlier schemes8. Counsel suggested that the approval of the scheme by the State Government on October 17, 1968 was defective as the Government was merely of the opinion that the proposed scheme was necessary to provide efficient, adequate and co-ordinated road transport services and it did not form the opinion that the scheme was necessary to provide economical road transport service. The point was not taken in the courts below and we therefore indicated to the course of the arguments that the appellant will not be permitted to raise point at this late stage. Several other objections were taken in the courts below but they are not pressed in this Court.
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M/S Hasimara Industries Ltd Vs. Commissioner Of Income Tax West Bengal-Ix And Another | the period of the agreement . Thus, the assessee had the advantage of using a new and more modern profit-making apparatus. When the Company itself had not treated the advance of Rupees twenty lakhs to M/s Saksaria Cotton Mills Limited as by way of a loan transaction and the amount had been treated by the assessee as the capital advance as evidenced by the resolutions based by the Board of Directors at the time of granting of loan, the High Court held that the findings of the Tribunal should be affirmed and answered the question referred for its opinion against the assessee. It is against this order the present appeal is filed by special leave. Ms. Radha Rangaswami, learned counsel for the appellant submitted that though the assessee had mad e a lumpsum payment not in order to gain an anduring benefit, out only to augment income in the course of its ordinary business and sought exemption was not capital in nature being allowable as revenue expenditure and in terms of Section 37 of the Income Tax Act.The learned counsel for the Department contended that the view of the decision of this Court in Hasimara Industries Limited vs. Commissioner of west Bengal and Another in the very case of the assessee there was hardly any thing left for decision by us. He submitted that the agreement which is subject matter of consideration in these proceedings was also considered in that decision and in the context of another transaction had been interpreted. Undaunted by the submission of the learned counsel for the Department, Ms. Radha Rangaswami persisted in her argument. She relied on Alembic Chemical Works Co. Ltd. Vs. Commissioner of Income Tax, Gujarat. That was the case where the assessee who was engaged in manufacture of antibiotics including penicillin acquired knowhow to produce higher yield and sub-culture of strains of penicillin and there was no evidence to indicate that this was not in the line of existing manufacturing operations and, therefore this Court took the view that the payment was made in the course of carrying on an existing business and the butlay was incurred for the purpose of acquiring the technical knownow in relation to its business and considering the rapid strides in science and technology is to pigeonholing an outlay, such as in this case as capital. It was on that basis the Court held that though lumpsum payment had been made once for al l it was not capital in nature and attracted the deduction under Section 37 of the Income Tax Act. Again, the learned counsel for the assessee relied upon the decision in Commissioner of Income Tax, Kerala vs. Malayalam plantations Ltd. wherein estate duty was paid on the death of non-domiciled shareholders and was "for the purpose of the business" and "for the purpose of earning profits" and therefore, allowable as business expenditure. However that is not the position in the present case wherein the assessee has given an advance in a sum of Rupees twenty lakhs for a purpose not in the line of its business as found by the Tribunal which is the last fact finding authority. In Empire Jute Co. Ltd. Vs. Commissioner of Income Tax certain loom hours were purchased by one member of an assessee from another member and the members in the Association had bound themselves to work their mills for limited hours per week and in those circumstances the price paid was held to be in the nature of revenue expenditure in terms of Section 10(2) (xv) of the Indian Income Tax Act, 1952 and not deductible. The test adopted in that case is the nature of the advantage in a commercial sense and where it is only the advantage in the capital field, the expenditure cannot be allowed, but if the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried or more efficiently or more profitable while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The purchase of loom hours did not create any new asset and there was no addition to or expansion of the profit-making apparatus of the assessee nor the permanent structure of which the Income was the product remained the same. It was not enlarged nor did the assessee acquire a source of profit of income when it purchased the looms in question. The expenditure incurred was primary and essentially related to the operation or working of the looms which constituted the profit making apparatus of the assessee and was expenditure laid out as part o f the process of profit earning. It was on that basis the claim was allowed. Therefore that decision will not help the assessee in the present case.In Commissioner of Income Tax vs. Hashimara Industries Limited. the very agreement with which we are concerned itself was subject matter of consideration by the High Court. Pursuant to the agreement amount was deposited with the cotton mills for acquiring profit making apparatus. Then there was closing down of the cotton mill and loss of deposit constituted capital loss. It was held in that case that the assessees ordinary business was manufacture and sale or the tea and it started cotton manufacturing business acquiring the right to operate the mill belonging to another company for a specified period under a leave and licence agreement after depositing certain sum in terms of the agreements. After the expiry of the agreements M/s Saksaria Cotton Mills Limited itself managed the cotton mills out suffered loss and went into liquidation. consequently, the sum deposited by the assessee remained unpaid. In those circumstances, it was held that the loss of the deposit was in the capital account and not business expenditure of assessee. That matter was carried in appeal to this Court in Hasimara Industries Limited. vs. Commissioner this Court upheld the view taken by the High Court. | 1[ds]The expenditure incurred was primary and essentially related to the operation or working of the looms which constituted the profit making apparatus of the assessee and was expenditure laid out as part o f the process of profit earning. It was on that basis the claim was allowed. Therefore that decision will not help the assessee in the present case.In Commissioner of Income Tax vs. Hashimara Industries Limited. the very agreement with which we are concerned itself was subject matter of consideration by the High Court. Pursuant to the agreement amount was deposited with the cotton mills for acquiring profit making apparatus. Then there was closing down of the cotton mill and loss of deposit constituted capital loss. It was held in that case that the assessees ordinary business was manufacture and sale or the tea and it started cotton manufacturing business acquiring the right to operate the mill belonging to another company for a specified period under a leave and licence agreement after depositing certain sum in terms of the agreements. After the expiry of the agreements M/s Saksaria Cotton Mills Limited itself managed the cotton mills out suffered loss and went into liquidation. consequently, the sum deposited by the assessee remained unpaid. In those circumstances, it was held that the loss of the deposit was in the capital account and not business expenditure of assessee. That matter was carried in appeal to this Court in Hasimara Industries Limited. vs. Commissioner this Court upheld the view taken by the High Court. | 1 | 2,065 | 270 | ### 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 period of the agreement . Thus, the assessee had the advantage of using a new and more modern profit-making apparatus. When the Company itself had not treated the advance of Rupees twenty lakhs to M/s Saksaria Cotton Mills Limited as by way of a loan transaction and the amount had been treated by the assessee as the capital advance as evidenced by the resolutions based by the Board of Directors at the time of granting of loan, the High Court held that the findings of the Tribunal should be affirmed and answered the question referred for its opinion against the assessee. It is against this order the present appeal is filed by special leave. Ms. Radha Rangaswami, learned counsel for the appellant submitted that though the assessee had mad e a lumpsum payment not in order to gain an anduring benefit, out only to augment income in the course of its ordinary business and sought exemption was not capital in nature being allowable as revenue expenditure and in terms of Section 37 of the Income Tax Act.The learned counsel for the Department contended that the view of the decision of this Court in Hasimara Industries Limited vs. Commissioner of west Bengal and Another in the very case of the assessee there was hardly any thing left for decision by us. He submitted that the agreement which is subject matter of consideration in these proceedings was also considered in that decision and in the context of another transaction had been interpreted. Undaunted by the submission of the learned counsel for the Department, Ms. Radha Rangaswami persisted in her argument. She relied on Alembic Chemical Works Co. Ltd. Vs. Commissioner of Income Tax, Gujarat. That was the case where the assessee who was engaged in manufacture of antibiotics including penicillin acquired knowhow to produce higher yield and sub-culture of strains of penicillin and there was no evidence to indicate that this was not in the line of existing manufacturing operations and, therefore this Court took the view that the payment was made in the course of carrying on an existing business and the butlay was incurred for the purpose of acquiring the technical knownow in relation to its business and considering the rapid strides in science and technology is to pigeonholing an outlay, such as in this case as capital. It was on that basis the Court held that though lumpsum payment had been made once for al l it was not capital in nature and attracted the deduction under Section 37 of the Income Tax Act. Again, the learned counsel for the assessee relied upon the decision in Commissioner of Income Tax, Kerala vs. Malayalam plantations Ltd. wherein estate duty was paid on the death of non-domiciled shareholders and was "for the purpose of the business" and "for the purpose of earning profits" and therefore, allowable as business expenditure. However that is not the position in the present case wherein the assessee has given an advance in a sum of Rupees twenty lakhs for a purpose not in the line of its business as found by the Tribunal which is the last fact finding authority. In Empire Jute Co. Ltd. Vs. Commissioner of Income Tax certain loom hours were purchased by one member of an assessee from another member and the members in the Association had bound themselves to work their mills for limited hours per week and in those circumstances the price paid was held to be in the nature of revenue expenditure in terms of Section 10(2) (xv) of the Indian Income Tax Act, 1952 and not deductible. The test adopted in that case is the nature of the advantage in a commercial sense and where it is only the advantage in the capital field, the expenditure cannot be allowed, but if the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried or more efficiently or more profitable while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The purchase of loom hours did not create any new asset and there was no addition to or expansion of the profit-making apparatus of the assessee nor the permanent structure of which the Income was the product remained the same. It was not enlarged nor did the assessee acquire a source of profit of income when it purchased the looms in question. The expenditure incurred was primary and essentially related to the operation or working of the looms which constituted the profit making apparatus of the assessee and was expenditure laid out as part o f the process of profit earning. It was on that basis the claim was allowed. Therefore that decision will not help the assessee in the present case.In Commissioner of Income Tax vs. Hashimara Industries Limited. the very agreement with which we are concerned itself was subject matter of consideration by the High Court. Pursuant to the agreement amount was deposited with the cotton mills for acquiring profit making apparatus. Then there was closing down of the cotton mill and loss of deposit constituted capital loss. It was held in that case that the assessees ordinary business was manufacture and sale or the tea and it started cotton manufacturing business acquiring the right to operate the mill belonging to another company for a specified period under a leave and licence agreement after depositing certain sum in terms of the agreements. After the expiry of the agreements M/s Saksaria Cotton Mills Limited itself managed the cotton mills out suffered loss and went into liquidation. consequently, the sum deposited by the assessee remained unpaid. In those circumstances, it was held that the loss of the deposit was in the capital account and not business expenditure of assessee. That matter was carried in appeal to this Court in Hasimara Industries Limited. vs. Commissioner this Court upheld the view taken by the High Court.
### Response:
1
### Explanation:
The expenditure incurred was primary and essentially related to the operation or working of the looms which constituted the profit making apparatus of the assessee and was expenditure laid out as part o f the process of profit earning. It was on that basis the claim was allowed. Therefore that decision will not help the assessee in the present case.In Commissioner of Income Tax vs. Hashimara Industries Limited. the very agreement with which we are concerned itself was subject matter of consideration by the High Court. Pursuant to the agreement amount was deposited with the cotton mills for acquiring profit making apparatus. Then there was closing down of the cotton mill and loss of deposit constituted capital loss. It was held in that case that the assessees ordinary business was manufacture and sale or the tea and it started cotton manufacturing business acquiring the right to operate the mill belonging to another company for a specified period under a leave and licence agreement after depositing certain sum in terms of the agreements. After the expiry of the agreements M/s Saksaria Cotton Mills Limited itself managed the cotton mills out suffered loss and went into liquidation. consequently, the sum deposited by the assessee remained unpaid. In those circumstances, it was held that the loss of the deposit was in the capital account and not business expenditure of assessee. That matter was carried in appeal to this Court in Hasimara Industries Limited. vs. Commissioner this Court upheld the view taken by the High Court.
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Thakur M.D Vs. S Labour Appellate Tribunal of India, Bombay | some of the employees do not wish to go to Poona and they have as a matter of fact even accepted the gratuity, etc. , to which they were entitled upon the termination of their services. But that is an aspect of the matter which need not detain us in the consideration of the present application. (3) THE first point which Mr. Palkhivala who appears for respondent 2 has made that this application being under Arts. 226 and 227 and the application under Art. 226 and lying on the original side in this case the presentation of the application on the Appellate Side creates a difficulty is devoid of any substance. A Division Bench of this Court has now decided that the proper procedure in cases of such applications is to register the application on the Appellate Side and inasmuch as it is obvious that an application cannot be registered on both the sides that is the procedure that has been followed in this case.(4) COMING next to the merits, Mr. Palkhivala has somewhat strenuously urged before us that we have not got before us an appeal from the decision of the Labour Appellate Tribunal and howsoever wide our jurisdiction under Arts. 226 and 227 of the Constitution it does not permit us to sit in judgment over the Labour Appellate Tribunals decision in appeal. That is perfectly correct. We have got however in this case raised before us what may be termed a question of excess of jurisdiction. Mr. Palkhivala has taken us almost verbatim through the judgment of the Labour Appellate Tribunal and what they seem to have done is that while guarding themselves against saying anything that would affect prejudicially either party with regard to their rights, they came to the conclusion that the action of the company in closing their Bombay factory was correct and then they said that inasmuch as that action was correct the permission could not be refused. Now, the permission which had been applied for by the company was in respect of terminating the services of 142 employees. The question which arose for determination consequently was not whether the employers were right in closing the Bombay factory. It has got to be remembered that now that there is industrial legislation in this country, the rights of the parties do not stand where they would have been under the common law. The employers were entitled at common law to terminate the service of the employees by giving a proper notice if necessary at any time. After the industrial legislation there has been placed restraint upon this power. It is common ground that if the employers were to terminate the services of the employees because of what they considered were proper reasons, the matter might be taken up to an industrial court and the question which the industrial court would then have to ask in determining as to whether the termination of the services was proper or not would not be as to what rights of the parties at common law were. They would have to ask themselves the question as to whether a case has been made out for the termination of the services. Workmen may, for example, become surplus owing to the introduction perhaps of new machinery. The question which the industrial tribunal in such a case would have to inquire would be as to whether it had become necessary to terminate the services of the workmen. It appears consequently that when the company said that they were closing their Bombay factory and starting a much bigger factory in Poona, the question which arose before the Labour Appellate Tribunal for determination was not whether there was any need for the company to employ the workmen in Bombay but whether a prima facie case had been made out for termination of the services of the workmen, i. e. , whether there was any difficulty in regard to the company employing the workmen in similar jobs in the new Poona factory and that is the question which we find that the tribunal have never applied their mind to and they certainly have given no answer to it so far as we can see from their judgment. We have already mentioned that they have recorded a finding that the company was quite right in saying that they would close their Bombay factory for which they have now no use in view of the much larger factory which they have built at Chinchwad. But from this the tribunal straightway go to the question of granting the permission, the only ground which they give being that if the Bombay factory was closed the workmen could not be employed in Bombay and it was unreasonable of the workmen to expect the company to carry on the small Bombay factory in Bombay.(5) NOW, it is quite true that the factory in this case has been removed from Bombay to Poona. The employees insisted that they had got a right to be taken to the Poona factory under the present terms and they ought also to be provided with houses in Chinchwad. Upon the question raised by the employees, we express no particular opinion. If at all a contention is raised before the Labour Appellate Tribunal by the employees that they would go to Poona only on those conditions and not otherwise, the Tribunal may have to consider the insistence of the employees that they should be taken to Chinchwad for service on the present conditions. It may conceivably happen that other difficulties may arise in the may of taking the workmen to Poona, but that does not alter the fact that the question before the Tribunal was whether the services of the employees could not be continued and unless they consider and answer that question it cannot possibly be said that they have determined what they had to determine before granting the permission. The case obviously is one of jurisdiction in which case this Court is entitled to interfere. | 1[ds]A Division Bench of this Court has now decided that the proper procedure in cases of such applications is to register the application on the Appellate Side and inasmuch as it is obvious that an application cannot be registered on both the sides that is the procedure that has been followed in thisthe permission which had been applied for by the company was in respect of terminating the services of 142 employees. The question which arose for determination consequently was not whether the employers were right in closing the Bombay factory. It has got to be remembered that now that there is industrial legislation in this country, the rights of the parties do not stand where they would have been under the common law. The employers were entitled at common law to terminate the service of the employees by giving a proper notice if necessary at any time. After the industrial legislation there has been placed restraint upon this power. It is common ground that if the employers were to terminate the services of the employees because of what they considered were proper reasons, the matter might be taken up to an industrial court and the question which the industrial court would then have to ask in determining as to whether the termination of the services was proper or not would not be as to what rights of the parties at common law were. They would have to ask themselves the question as to whether a case has been made out for the termination of the services. Workmen may, for example, become surplus owing to the introduction perhaps of new machinery. The question which the industrial tribunal in such a case would have to inquire would be as to whether it had become necessary to terminate the services of the workmen. It appears consequently that when the company said that they were closing their Bombay factory and starting a much bigger factory in Poona, the question which arose before the Labour Appellate Tribunal for determination was not whether there was any need for the company to employ the workmen in Bombay but whether a prima facie case had been made out for termination of the services of the workmen, i. e. , whether there was any difficulty in regard to the company employing the workmen in similar jobs in the new Poona factory and that is the question which we find that the tribunal have never applied their mind to and they certainly have given no answer to it so far as we can see from their judgment. We have already mentioned that they have recorded a finding that the company was quite right in saying that they would close their Bombay factory for which they have now no use in view of the much larger factory which they have built at Chinchwad. But from this the tribunal straightway go to the question of granting the permission, the only ground which they give being that if the Bombay factory was closed the workmen could not be employed in Bombay and it was unreasonable of the workmen to expect the company to carry on the small Bombay factory in Bombay.(5) NOW, it is quite true that the factory in this case has been removed from Bombay to Poona. The employees insisted that they had got a right to be taken to the Poona factory under the present terms and they ought also to be provided with houses in Chinchwad. Upon the question raised by the employees, we express no particular opinion. If at all a contention is raised before the Labour Appellate Tribunal by the employees that they would go to Poona only on those conditions and not otherwise, the Tribunal may have to consider the insistence of the employees that they should be taken to Chinchwad for service on the present conditions. It may conceivably happen that other difficulties may arise in the may of taking the workmen to Poona, but that does not alter the fact that the question before the Tribunal was whether the services of the employees could not be continued and unless they consider and answer that question it cannot possibly be said that they have determined what they had to determine before granting the permission. The case obviously is one of jurisdiction in which case this Court is entitled to interfere. | 1 | 1,525 | 764 | ### 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:
some of the employees do not wish to go to Poona and they have as a matter of fact even accepted the gratuity, etc. , to which they were entitled upon the termination of their services. But that is an aspect of the matter which need not detain us in the consideration of the present application. (3) THE first point which Mr. Palkhivala who appears for respondent 2 has made that this application being under Arts. 226 and 227 and the application under Art. 226 and lying on the original side in this case the presentation of the application on the Appellate Side creates a difficulty is devoid of any substance. A Division Bench of this Court has now decided that the proper procedure in cases of such applications is to register the application on the Appellate Side and inasmuch as it is obvious that an application cannot be registered on both the sides that is the procedure that has been followed in this case.(4) COMING next to the merits, Mr. Palkhivala has somewhat strenuously urged before us that we have not got before us an appeal from the decision of the Labour Appellate Tribunal and howsoever wide our jurisdiction under Arts. 226 and 227 of the Constitution it does not permit us to sit in judgment over the Labour Appellate Tribunals decision in appeal. That is perfectly correct. We have got however in this case raised before us what may be termed a question of excess of jurisdiction. Mr. Palkhivala has taken us almost verbatim through the judgment of the Labour Appellate Tribunal and what they seem to have done is that while guarding themselves against saying anything that would affect prejudicially either party with regard to their rights, they came to the conclusion that the action of the company in closing their Bombay factory was correct and then they said that inasmuch as that action was correct the permission could not be refused. Now, the permission which had been applied for by the company was in respect of terminating the services of 142 employees. The question which arose for determination consequently was not whether the employers were right in closing the Bombay factory. It has got to be remembered that now that there is industrial legislation in this country, the rights of the parties do not stand where they would have been under the common law. The employers were entitled at common law to terminate the service of the employees by giving a proper notice if necessary at any time. After the industrial legislation there has been placed restraint upon this power. It is common ground that if the employers were to terminate the services of the employees because of what they considered were proper reasons, the matter might be taken up to an industrial court and the question which the industrial court would then have to ask in determining as to whether the termination of the services was proper or not would not be as to what rights of the parties at common law were. They would have to ask themselves the question as to whether a case has been made out for the termination of the services. Workmen may, for example, become surplus owing to the introduction perhaps of new machinery. The question which the industrial tribunal in such a case would have to inquire would be as to whether it had become necessary to terminate the services of the workmen. It appears consequently that when the company said that they were closing their Bombay factory and starting a much bigger factory in Poona, the question which arose before the Labour Appellate Tribunal for determination was not whether there was any need for the company to employ the workmen in Bombay but whether a prima facie case had been made out for termination of the services of the workmen, i. e. , whether there was any difficulty in regard to the company employing the workmen in similar jobs in the new Poona factory and that is the question which we find that the tribunal have never applied their mind to and they certainly have given no answer to it so far as we can see from their judgment. We have already mentioned that they have recorded a finding that the company was quite right in saying that they would close their Bombay factory for which they have now no use in view of the much larger factory which they have built at Chinchwad. But from this the tribunal straightway go to the question of granting the permission, the only ground which they give being that if the Bombay factory was closed the workmen could not be employed in Bombay and it was unreasonable of the workmen to expect the company to carry on the small Bombay factory in Bombay.(5) NOW, it is quite true that the factory in this case has been removed from Bombay to Poona. The employees insisted that they had got a right to be taken to the Poona factory under the present terms and they ought also to be provided with houses in Chinchwad. Upon the question raised by the employees, we express no particular opinion. If at all a contention is raised before the Labour Appellate Tribunal by the employees that they would go to Poona only on those conditions and not otherwise, the Tribunal may have to consider the insistence of the employees that they should be taken to Chinchwad for service on the present conditions. It may conceivably happen that other difficulties may arise in the may of taking the workmen to Poona, but that does not alter the fact that the question before the Tribunal was whether the services of the employees could not be continued and unless they consider and answer that question it cannot possibly be said that they have determined what they had to determine before granting the permission. The case obviously is one of jurisdiction in which case this Court is entitled to interfere.
### Response:
1
### Explanation:
A Division Bench of this Court has now decided that the proper procedure in cases of such applications is to register the application on the Appellate Side and inasmuch as it is obvious that an application cannot be registered on both the sides that is the procedure that has been followed in thisthe permission which had been applied for by the company was in respect of terminating the services of 142 employees. The question which arose for determination consequently was not whether the employers were right in closing the Bombay factory. It has got to be remembered that now that there is industrial legislation in this country, the rights of the parties do not stand where they would have been under the common law. The employers were entitled at common law to terminate the service of the employees by giving a proper notice if necessary at any time. After the industrial legislation there has been placed restraint upon this power. It is common ground that if the employers were to terminate the services of the employees because of what they considered were proper reasons, the matter might be taken up to an industrial court and the question which the industrial court would then have to ask in determining as to whether the termination of the services was proper or not would not be as to what rights of the parties at common law were. They would have to ask themselves the question as to whether a case has been made out for the termination of the services. Workmen may, for example, become surplus owing to the introduction perhaps of new machinery. The question which the industrial tribunal in such a case would have to inquire would be as to whether it had become necessary to terminate the services of the workmen. It appears consequently that when the company said that they were closing their Bombay factory and starting a much bigger factory in Poona, the question which arose before the Labour Appellate Tribunal for determination was not whether there was any need for the company to employ the workmen in Bombay but whether a prima facie case had been made out for termination of the services of the workmen, i. e. , whether there was any difficulty in regard to the company employing the workmen in similar jobs in the new Poona factory and that is the question which we find that the tribunal have never applied their mind to and they certainly have given no answer to it so far as we can see from their judgment. We have already mentioned that they have recorded a finding that the company was quite right in saying that they would close their Bombay factory for which they have now no use in view of the much larger factory which they have built at Chinchwad. But from this the tribunal straightway go to the question of granting the permission, the only ground which they give being that if the Bombay factory was closed the workmen could not be employed in Bombay and it was unreasonable of the workmen to expect the company to carry on the small Bombay factory in Bombay.(5) NOW, it is quite true that the factory in this case has been removed from Bombay to Poona. The employees insisted that they had got a right to be taken to the Poona factory under the present terms and they ought also to be provided with houses in Chinchwad. Upon the question raised by the employees, we express no particular opinion. If at all a contention is raised before the Labour Appellate Tribunal by the employees that they would go to Poona only on those conditions and not otherwise, the Tribunal may have to consider the insistence of the employees that they should be taken to Chinchwad for service on the present conditions. It may conceivably happen that other difficulties may arise in the may of taking the workmen to Poona, but that does not alter the fact that the question before the Tribunal was whether the services of the employees could not be continued and unless they consider and answer that question it cannot possibly be said that they have determined what they had to determine before granting the permission. The case obviously is one of jurisdiction in which case this Court is entitled to interfere.
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Balu @ Bakthavatchalu Vs. State Of Tamil Nadu | date of the occurrence." It was directed:- "20. In Criminal Appeal No. 710 of 1995 filed by appellant Mohinder Pal Singh, call for a report from the trial court as to whether on the date of occurrence this appellant was juvenile within the meaning of Section 2(h) of the Juvenile Justice Act, 1986? The trial court shall give opportunity to both the parties to adduce evidence on this point. Let the entire original records of the trial court be returned to it. Report as well as records must be sent to this Court within a period of three months from the receipt of this order. Upon receipt of report from the trial court, final order shall be passed in this appeal." 14. In Ravinder Singh Gorkhi vs. State of U.P. : (2006) 5 SCC 584 this Court held :- "21. Determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of the materials on records. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case.It was furthermore held:-"38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.39. We are, therefore, of the opinion that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstances of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. In this case, the appellant had never been serious in projecting his plea that he on the date of commission of the offence was a minor. He made such statement for the first time while he was examined under Section 313 of the Code of Criminal Procedure.40. The family background of the appellant is also a relevant fact. His father was a "Pradhan" of the village. He was found to be in possession of an unlicensed firearm. He was all along represented by a lawyer. The court estimated his age to be 18 years. He was tried jointly with the other accused. He had been treated alike with the other accused. On merit of the matter also the appellant stands on the same footing as the other accused. The prosecution has proved its case. In fact no such plea could be raised as the special leave petition of the persons similarly situated was dismissed when the Court issued notice having regard to the contention raised by him for the first time that he was a minor on the date of occurrence." 15. However, in Jitendra Ram vs. State of Jharkhand : (2006) 9 SCC 428 this Court noticed that in a similar situation it would be necessary to make an enquiry. It was stated:- "20. We are, however, not oblivious of the decision of this Court in Bhola Bhagat v. State of Bihar wherein an obligation has been cast on the court that where such a plea is raised having regard to the beneficial nature of the socially oriented legislation, the same should be examined with great care. We are, however, of the opinion that the same would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the materials brought on records." It was furthermore held:-22. We, therefore, are of the opinion that the determination of the age of the appellant as on the date of the commission of the offence should be done afresh by the learned Sessions Judge." 16. We are, therefore, of the view that in this case the trial judge should be directed to hold the enquiry in regard to the age of the appellant on the date of commission of the offence and in the event it is found that the appellant was a juvenile within the meaning of the provisions of the said Act, he should proceed with the matter in accordance with law. It is directed accordingly. 17. | 1[ds]the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstances of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. In this case, the appellant had never been serious in projecting his plea that he on the date of commission of the offence was a minor. He made such statement for the first time while he was examined under Section 313 of the Code of Criminalfamily background of the appellant is also a relevant fact. His father was a "Pradhan" of the village. He was found to be in possession of an unlicensed firearm. He was all along represented by a lawyer. The court estimated his age to be 18 years. He was tried jointly with the other accused. He had been treated alike with the other accused. On merit of the matter also the appellant stands on the same footing as the other accused. The prosecution has proved its case. In fact no such plea could be raised as the special leave petition of the persons similarly situated was dismissed when the Court issued notice having regard to the contention raised by him for the first time that he was a minor on the date oftherefore, are of the opinion that the determination of the age of the appellant as on the date of the commission of the offence should be done afresh by the learned Sessionsthis case the trial judge should be directed to hold the enquiry in regard to the age of the appellant on the date of commission of the offence and in the event it is found that the appellant was a juvenile within the meaning of the provisions of the said Act, he should proceed with the matter in accordance with law. It is directed accordingly | 1 | 3,033 | 401 | ### 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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date of the occurrence." It was directed:- "20. In Criminal Appeal No. 710 of 1995 filed by appellant Mohinder Pal Singh, call for a report from the trial court as to whether on the date of occurrence this appellant was juvenile within the meaning of Section 2(h) of the Juvenile Justice Act, 1986? The trial court shall give opportunity to both the parties to adduce evidence on this point. Let the entire original records of the trial court be returned to it. Report as well as records must be sent to this Court within a period of three months from the receipt of this order. Upon receipt of report from the trial court, final order shall be passed in this appeal." 14. In Ravinder Singh Gorkhi vs. State of U.P. : (2006) 5 SCC 584 this Court held :- "21. Determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of the materials on records. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case.It was furthermore held:-"38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.39. We are, therefore, of the opinion that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstances of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. In this case, the appellant had never been serious in projecting his plea that he on the date of commission of the offence was a minor. He made such statement for the first time while he was examined under Section 313 of the Code of Criminal Procedure.40. The family background of the appellant is also a relevant fact. His father was a "Pradhan" of the village. He was found to be in possession of an unlicensed firearm. He was all along represented by a lawyer. The court estimated his age to be 18 years. He was tried jointly with the other accused. He had been treated alike with the other accused. On merit of the matter also the appellant stands on the same footing as the other accused. The prosecution has proved its case. In fact no such plea could be raised as the special leave petition of the persons similarly situated was dismissed when the Court issued notice having regard to the contention raised by him for the first time that he was a minor on the date of occurrence." 15. However, in Jitendra Ram vs. State of Jharkhand : (2006) 9 SCC 428 this Court noticed that in a similar situation it would be necessary to make an enquiry. It was stated:- "20. We are, however, not oblivious of the decision of this Court in Bhola Bhagat v. State of Bihar wherein an obligation has been cast on the court that where such a plea is raised having regard to the beneficial nature of the socially oriented legislation, the same should be examined with great care. We are, however, of the opinion that the same would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the materials brought on records." It was furthermore held:-22. We, therefore, are of the opinion that the determination of the age of the appellant as on the date of the commission of the offence should be done afresh by the learned Sessions Judge." 16. We are, therefore, of the view that in this case the trial judge should be directed to hold the enquiry in regard to the age of the appellant on the date of commission of the offence and in the event it is found that the appellant was a juvenile within the meaning of the provisions of the said Act, he should proceed with the matter in accordance with law. It is directed accordingly. 17.
### Response:
1
### Explanation:
the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstances of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. In this case, the appellant had never been serious in projecting his plea that he on the date of commission of the offence was a minor. He made such statement for the first time while he was examined under Section 313 of the Code of Criminalfamily background of the appellant is also a relevant fact. His father was a "Pradhan" of the village. He was found to be in possession of an unlicensed firearm. He was all along represented by a lawyer. The court estimated his age to be 18 years. He was tried jointly with the other accused. He had been treated alike with the other accused. On merit of the matter also the appellant stands on the same footing as the other accused. The prosecution has proved its case. In fact no such plea could be raised as the special leave petition of the persons similarly situated was dismissed when the Court issued notice having regard to the contention raised by him for the first time that he was a minor on the date oftherefore, are of the opinion that the determination of the age of the appellant as on the date of the commission of the offence should be done afresh by the learned Sessionsthis case the trial judge should be directed to hold the enquiry in regard to the age of the appellant on the date of commission of the offence and in the event it is found that the appellant was a juvenile within the meaning of the provisions of the said Act, he should proceed with the matter in accordance with law. It is directed accordingly
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State of Karnataka Vs. Shankara Textiles Mills Limited | has preferred the present appeal. 5.Two questions arise in this appeal. The first is whether the land can be deemed to have been permitted to be converted for non-agricultural use merely because it was used for non-agricultural purposes although, admittedly, no permission under Section 95(2) of the Revenue Act was taken, to do so. The second question is whether under Section 79-B of the Act, the land vests in the State Government prospectively from the date of the notification or retrospectively from the date of the coming into operation of the Act. The first question has been answered by the High Court in the affirmative while on the second question, the High Court has taken the view that the land vests in the Government from the date of the notification. According to us, both the answers are wrong in law. 6. Section 95(2) of the Revenue Act at the relevant time read as follows: "95. Uses of agricultural land and the procedure for use of agricultural land for other purposes.-(1) (2)If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall apply for permission to the Deputy Commissioner who may, subject to the provisions of this section and the rules made under this Act, refuse permission or grant it on such conditions as he may think fit:" * 7. The obvious purpose of this section is to prevent indiscriminate conversion of agricultural land for non- agricultural use and to regulate and control the conversion of agricultural land into non-agricultural land. Section 83 of that Act provides for different rates of assessment for agricultural and non-agricultural land. That provision strengthens the presumption that agricultural land is not to be used, as per the holders sweet will, for nonagricultural purposes. This is also clear from the absence of any provision under that Act requiring permission to convert non-agricultural land into agricultural land. In a country like ours, where the source of livelihood of more than 70 per cent of the population, is agriculture, the restriction placed by the Revenue Act is quite understandable. Such provisions and restrictions are found in the Revenue Acts of all the States in the country. The provision has, therefore, to be construed as mandatory and given effect to as such. 8. The High Court has obviously ignored the mandatory nature of the said provision. On this point, after referring to an earlier decision of the same Court in Mysore Feeds Ltd. case1 the Court has held as follows: "As held in the above case, land which is agricultural may cease to be agricultural for various reasons. Theoretically such land may fall within the definition of Land in Section 2(18) of the Act. However, in the absence of any specific finding regarding the nature or usage of the land as agricultural, the Special Deputy Commissioner cannot treat it to be an agricultural land merely on account of the fact that permission for conversion of the l and under Section 95(2) of the Karnataka Land Revenue Act was sought. Even otherwise, admittedly, the land in question does not satisfy any of the characteristics as required under aforesaid definition investing Respondent 2 with the jurisdiction to take proceedings under Section 79-B of the Act. Furthermore, since vesting could take place only on a declaration being made as provided under sub-section (3) of Section 79-B of the Act, a declaration by the holder at some earlier point of time in respect of the land cannot vest the authority with the jurisdiction to pass an order of vesting notwithstanding the fact that the land by then had ceased to be an agricultural land and treated as such since long. This view is also in conformity with the scheme of the Act, inter alia, regarding disposal of surplus land vesting in the State as provided under Section 77 of the Act." * 9.Thus the High Court has proceeded on the basis that there is no specific finding regarding the nature and usage of the land as agricultural and hence, the Special Deputy Commissioner could not treat it to be an agricultural land merely on account of the fact that permission for conversion of the land under Section 95(2) of the Revenue Act was sought (but admittedly not given). Secondly, it has proceeded on the footing that the land in question does not satisfy any of the characteristics as required under the definition of land in Section 2(18) of the Act, i.e., Karnataka Land Reforms Act investing the authorities with the jurisdiction to take proceedings under Section 79-B of the Act. We are afraid that the High Court has misread the facts on record. The consistent stand taken by the authorities is that the land was never converted for non- agricultural use as required by the provisions of Section 95(2) of the Revenue Act. The mere fact that at the relevant time, the land was not used for agricultural purpose or purposes subservient thereto as mentioned in Section 2(18) of the Act or that it was used for non-agricultural purpose, assuming it to be so, would not convert the agricultural land into a non-agricultural land for the purposes either of the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold otherwise would defeat the object of both the Acts and would, in particular, render the provisions of Section 95(2) of the Revenue Act, nugatory. Such an interpretation is not permissible by any rule of the interpretation of statutes. What is further, the respondent-Company had itself filed a declaration under Section 79-B(2)(a) of the Act stating therein that the entire disputed land was agricultural land and had claimed exemption from the provisions of the said Section 79-B under Section 109 of the Act on the ground that the land was mortgaged to the Mysore State Financial Corporation. We are, therefore, unable to agree with the view taken by the High Court on the point. | 1[ds]The first question has been answered by the High Court in the affirmative while on the second question, the High Court has taken the view that the land vests in the Government from the date of the notification. According to us, both the answers are wrong in law9.Thus the High Court has proceeded on the basis that there is no specific finding regarding the nature and usage of the land as agricultural and hence, the Special Deputy Commissioner could not treat it to be an agricultural land merely on account of the fact that permission for conversion of the land under Section 95(2) of the Revenue Act was sought (but admittedly not given). Secondly, it has proceeded on the footing that the land in question does not satisfy any of the characteristics as required under the definition of land in Section 2(18) of the Act, i.e., Karnataka Land Reforms Act investing the authorities with the jurisdiction to take proceedings under Section 79-B of the Act. We are afraid that the High Court has misread the facts on record. The consistent stand taken by the authorities is that the land was never converted for non- agricultural use as required by the provisions of Section 95(2) of the Revenue Act. The mere fact that at the relevant time, the land was not used for agricultural purpose or purposes subservient thereto as mentioned in Section 2(18) of the Act or that it was used for non-agricultural purpose, assuming it to be so, would not convert the agricultural land into a non-agricultural land for the purposes either of the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold otherwise would defeat the object of both the Acts and would, in particular, render the provisions of Section 95(2) of the Revenue Act, nugatory. Such an interpretation is not permissible by any rule of the interpretation of statutes. What is further, the respondent-Company had itself filed a declaration under Section 79-B(2)(a) of the Act stating therein that the entire disputed land was agricultural land and had claimed exemption from the provisions of the said Section 79-B under Section 109 of the Act on the ground that the land was mortgaged to the Mysore State Financial Corporation. We are, therefore, unable to agree with the view taken by the High Court on the point25.It will thus be noticed that the Legislature had taken pains to mention in the other provisions the specific dates from which the consequences in question will follow. There is a reason for doing so. Unless the land to be vested in the State Government is first ascertained, no date of vesting of such land could be fore-determined. That is not the case under Section 7 9-B, since it provides for the vesting in the Government of all agricultural lands held by certain persons like the respondent-Company. This is apart from the fact that the provisions of the other sections cannot help the interpretation of Section 79-B(3) the language of which is self-evident and is in conformity with the intent of Section 79-B and the Act | 1 | 1,985 | 579 | ### 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:
has preferred the present appeal. 5.Two questions arise in this appeal. The first is whether the land can be deemed to have been permitted to be converted for non-agricultural use merely because it was used for non-agricultural purposes although, admittedly, no permission under Section 95(2) of the Revenue Act was taken, to do so. The second question is whether under Section 79-B of the Act, the land vests in the State Government prospectively from the date of the notification or retrospectively from the date of the coming into operation of the Act. The first question has been answered by the High Court in the affirmative while on the second question, the High Court has taken the view that the land vests in the Government from the date of the notification. According to us, both the answers are wrong in law. 6. Section 95(2) of the Revenue Act at the relevant time read as follows: "95. Uses of agricultural land and the procedure for use of agricultural land for other purposes.-(1) (2)If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall apply for permission to the Deputy Commissioner who may, subject to the provisions of this section and the rules made under this Act, refuse permission or grant it on such conditions as he may think fit:" * 7. The obvious purpose of this section is to prevent indiscriminate conversion of agricultural land for non- agricultural use and to regulate and control the conversion of agricultural land into non-agricultural land. Section 83 of that Act provides for different rates of assessment for agricultural and non-agricultural land. That provision strengthens the presumption that agricultural land is not to be used, as per the holders sweet will, for nonagricultural purposes. This is also clear from the absence of any provision under that Act requiring permission to convert non-agricultural land into agricultural land. In a country like ours, where the source of livelihood of more than 70 per cent of the population, is agriculture, the restriction placed by the Revenue Act is quite understandable. Such provisions and restrictions are found in the Revenue Acts of all the States in the country. The provision has, therefore, to be construed as mandatory and given effect to as such. 8. The High Court has obviously ignored the mandatory nature of the said provision. On this point, after referring to an earlier decision of the same Court in Mysore Feeds Ltd. case1 the Court has held as follows: "As held in the above case, land which is agricultural may cease to be agricultural for various reasons. Theoretically such land may fall within the definition of Land in Section 2(18) of the Act. However, in the absence of any specific finding regarding the nature or usage of the land as agricultural, the Special Deputy Commissioner cannot treat it to be an agricultural land merely on account of the fact that permission for conversion of the l and under Section 95(2) of the Karnataka Land Revenue Act was sought. Even otherwise, admittedly, the land in question does not satisfy any of the characteristics as required under aforesaid definition investing Respondent 2 with the jurisdiction to take proceedings under Section 79-B of the Act. Furthermore, since vesting could take place only on a declaration being made as provided under sub-section (3) of Section 79-B of the Act, a declaration by the holder at some earlier point of time in respect of the land cannot vest the authority with the jurisdiction to pass an order of vesting notwithstanding the fact that the land by then had ceased to be an agricultural land and treated as such since long. This view is also in conformity with the scheme of the Act, inter alia, regarding disposal of surplus land vesting in the State as provided under Section 77 of the Act." * 9.Thus the High Court has proceeded on the basis that there is no specific finding regarding the nature and usage of the land as agricultural and hence, the Special Deputy Commissioner could not treat it to be an agricultural land merely on account of the fact that permission for conversion of the land under Section 95(2) of the Revenue Act was sought (but admittedly not given). Secondly, it has proceeded on the footing that the land in question does not satisfy any of the characteristics as required under the definition of land in Section 2(18) of the Act, i.e., Karnataka Land Reforms Act investing the authorities with the jurisdiction to take proceedings under Section 79-B of the Act. We are afraid that the High Court has misread the facts on record. The consistent stand taken by the authorities is that the land was never converted for non- agricultural use as required by the provisions of Section 95(2) of the Revenue Act. The mere fact that at the relevant time, the land was not used for agricultural purpose or purposes subservient thereto as mentioned in Section 2(18) of the Act or that it was used for non-agricultural purpose, assuming it to be so, would not convert the agricultural land into a non-agricultural land for the purposes either of the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold otherwise would defeat the object of both the Acts and would, in particular, render the provisions of Section 95(2) of the Revenue Act, nugatory. Such an interpretation is not permissible by any rule of the interpretation of statutes. What is further, the respondent-Company had itself filed a declaration under Section 79-B(2)(a) of the Act stating therein that the entire disputed land was agricultural land and had claimed exemption from the provisions of the said Section 79-B under Section 109 of the Act on the ground that the land was mortgaged to the Mysore State Financial Corporation. We are, therefore, unable to agree with the view taken by the High Court on the point.
### Response:
1
### Explanation:
The first question has been answered by the High Court in the affirmative while on the second question, the High Court has taken the view that the land vests in the Government from the date of the notification. According to us, both the answers are wrong in law9.Thus the High Court has proceeded on the basis that there is no specific finding regarding the nature and usage of the land as agricultural and hence, the Special Deputy Commissioner could not treat it to be an agricultural land merely on account of the fact that permission for conversion of the land under Section 95(2) of the Revenue Act was sought (but admittedly not given). Secondly, it has proceeded on the footing that the land in question does not satisfy any of the characteristics as required under the definition of land in Section 2(18) of the Act, i.e., Karnataka Land Reforms Act investing the authorities with the jurisdiction to take proceedings under Section 79-B of the Act. We are afraid that the High Court has misread the facts on record. The consistent stand taken by the authorities is that the land was never converted for non- agricultural use as required by the provisions of Section 95(2) of the Revenue Act. The mere fact that at the relevant time, the land was not used for agricultural purpose or purposes subservient thereto as mentioned in Section 2(18) of the Act or that it was used for non-agricultural purpose, assuming it to be so, would not convert the agricultural land into a non-agricultural land for the purposes either of the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold otherwise would defeat the object of both the Acts and would, in particular, render the provisions of Section 95(2) of the Revenue Act, nugatory. Such an interpretation is not permissible by any rule of the interpretation of statutes. What is further, the respondent-Company had itself filed a declaration under Section 79-B(2)(a) of the Act stating therein that the entire disputed land was agricultural land and had claimed exemption from the provisions of the said Section 79-B under Section 109 of the Act on the ground that the land was mortgaged to the Mysore State Financial Corporation. We are, therefore, unable to agree with the view taken by the High Court on the point25.It will thus be noticed that the Legislature had taken pains to mention in the other provisions the specific dates from which the consequences in question will follow. There is a reason for doing so. Unless the land to be vested in the State Government is first ascertained, no date of vesting of such land could be fore-determined. That is not the case under Section 7 9-B, since it provides for the vesting in the Government of all agricultural lands held by certain persons like the respondent-Company. This is apart from the fact that the provisions of the other sections cannot help the interpretation of Section 79-B(3) the language of which is self-evident and is in conformity with the intent of Section 79-B and the Act
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Anant Bhujangrao Kulkarni Vs. State of Maharashtra | wrist watch from there and the said wrist watch was of the following description "100.00 One wristwatch of Camy company, 17 jewels English script dial on the reverse No. 6300 and English have Trade Mark in which a belt of white of steel chain. The watch is in order." * 10. Azizuddin (PW 3) has stated that the flooring of the Baithak was of stone slabs and that there were two arches - one in the western wall and the other in the southern wall of the Baithak and that there is no door in the arches and the flooring of the arches is of stone slabs and that the appellant took out some earth from a part of the arch of the western side wall. PW 3 has also stated that the appellant dug about one inch in that part of the arch and that no earth was sticking to the wrist watch when it was taken out by the appellant. PW 3 has also stated that he did not remember the time that the wrist watch was showing when it was taken out by the appellant. The Investigating Officer, Subhash (PW 13), has, however, deposed that there were no stone slabs on the floor of the Baithak and that there were no stone slabs under the arches of the Baithak and the appellant dug out some earth by his hands, in one arch while taking out the wrist watch from there. PW 13 has further stated that some dust was sticking to the wrist watch but no mud or cow dung was sticking to the wrist watch. There is a contradiction between the statements of Azizuddin (PW 3) and Subhash (PW 13) on the question whether there were stone slabs on the floor of the Baithak from where the wrist watch was recovered. Moreover, the Panchnama (Ex. 11) and the evidence of PW 13 would indicate that when the wrist watch was recovered it was in working order and was running. The offence took place on the evening of October 13, 1975 and the wrist watch was recovered on October 16, 1975 at 1 p.m. If the watch was buried, as claimed, it is difficult to understand how it was found in working order when it was recovered. More-over, keeping in view the statement of Dattatraya (PW 12) that he was not having a wrist watch with him and the fact that no mud was found sticking to the wrist watch when it was recovered and the fact that no mention was made about the wrist watch in the missing report (Ex. 29) lodged by Dattatraya with the Police on October 14, 1975, we are unable to place reliance on the evidence adduced by the prosecution with regard to the recovery of the said wrist watch at the instance of the appellant from the Baithak in the wada where the appellant was residing. The third circumstance cannot, therefore, be held to be established. 11. The fourth circumstance relates the conduct of the appellant in not informing Waman (PW 10) about the time when he enquired about the where about of the deceased on the morning of October 14, 1975. We are of the opinion that the said circumstance cannot be held to be established on the basis of the evidence adduced by the prosecution. Waman (PW 10) has stated that on October 14, 1975, at about 10 a.m. he had met the appellant in front of Jain Fine Cloth Stores on Tilak Road and he had asked the appellant as to where the deceased had gone because he had not come back to the house after he had accompanied him (appellant) for taking tea at the appellants house and on being so asked, the appellant had questioned him (PW 10) in an angry manner as to what he (PW 10) had to do with the deceased and that the appellant had further stated that he (PW 10) should call Dattatraya, son of the deceased, and the appellant would tell Dattatraya as to where the deceased had gone the said evidence of Waman (PW 10) has been sought to be corroborated by Murlidhar (PW 4) who has stated that Waman (PW 10) had come to him at about 11 a.m. on October 14, 1975 and had informed him of the talk that he had with the appellant. The subsequent conduct of Murlidhar (PW 4) and Dattatraya (PW 12), however, throws a doubt on the veracity of this evidence. In spite of being informed about this talk between him and the appellant by Waman (PW 10) at about 11 a.m. on October 14, 1975, Murlidhar (PW 4) did not make any effort to contact the appellant. Without meeting the appellant Murlidhar went to Palsingan to meet Dattatraya and although both of them had returned to Beed by 8.30 p.m. on October 14, 1975, they did not make any effort to contact the appellant on October 14, 1975. Without contacting the appellant, Dattatraya lodged the missing report (Ex. 29) on October 14, 1975 and in the said report there is no mention of the talk that had taken place between Waman (PW 10) and the appellant on the morning of the October 14, 1975. Even in the report (Ex. 30) that was lodged by Dattatraya with the Police on October 15, 1975, and which forms the basis for the FIR, there is no mention of this fact and it only mentions that the appellant had informed about the murder of the deceased by Anant Manzarikar. The aforesaid conduct of Murlidhar and Dattatraya is thus inconsistent with the evidence of Waman (PW 10) about the appellant having behaved in the manner as stated by Waman on the morning of October 14, 1975 when Waman enquired about the whereabouts of the deceased. We are, therefore, unable to accept the evidence of Waman (PW 10) and Murlidhar (PW 4) in this regard and it must be held that the fourth circumstance is not established. | 1[ds]6. As regards the first circumstance that the deceased was last seen alive in the company of the appellant on October 13, 1975 at about 6 p.m. there is the evidence of Waman (P.W. 10) as well as Laxman (P.W. 5). The appellant in his statement recorded under S. 313, Cr.P.C. has also admitted that after Pothi was over the deceased had come with the appellant to the house of the appellant at about 6 p.m. The case of the appellant is, however, that the deceased had left his house after some time. In view of the evidence of Waman (P.W. 10) and Laxman (P.W. 5) as well as the admission made by the appellant in his statement recorded under S. 313, Cr.P.C., it must be held that the deceased was last seen alive in the company of the appellant on October 13, 1975 at about 6 p.m. and the first circumstance isWith regard to the second circumstance about the recovery of the dead body of the deceased, it may be pointed out that the dead body was recovered from a Ladni in Pargaonkars wada. From the Note of Spot Inspection (Ex. 13), it appears that the said wada consist of two parts. In the first or the front part of the wada, Anant Manzarikar and his family was residing at the material time. Beyond the first part is situated the second part or the back side part of the wada. The two parts are connected by a door frame. The appellant was residing in a room in the back part of the wada. There are two Ladnies in the wada. One Ladni is under the Malwadi Baithak which is towards the north of the Angan in front of the room in which the appellant was residing. The other Ladni is situated on the western side under the open space and it adjoins the western side wall of the room of the appellant and the southern wall of the wada. According to the Memorandum of scene of offence (Ex. 26), blood stained earth was found on the floor of the Ladni and one tin of Dalda (vanaspati oil) having blood stains was also found there. Some blood was also found on the step of the Ladni and on the mouth of the Ladni. The dead body was, however, found in the other Ladni adjacent to the room occupied by the appellant. There was heap of earth in the open space on the western side top portion of the said Ladni and nearby there was a pit indicating fresh digging of earth and the earth dug from the said pit was found to have been dropped on the dead body in the Ladni. Since there were no leaves on the door between the front part and the rear part of the wada, it cannot be said that the Ladni in which the dead body was recovered was in exclusive possession of the appellant. It may also be mentioned that in the report (Ex. 30) lodged by Dattatraya with the Police it is stated that the appellant had himself given the information that the dead body was lying in the said Ladni. The fact that blood stained earth as well as blood was found in the other Ladni indicates that the deceased was first brought to that Ladni and from there he was removed to the other Ladni where it was found. The recovery of the dead body from the Ladni in the portion of the wada in which the appellant resides is, therefore, not inconsistent with the innocence of the appellant and it cannot be regarded as an incriminatingComing to the third circumstance relating to the recovery of the wrist watch, it may be pointed out that in the missing report (Ex. 29) lodged by Dattatraya at the Police Station, Beed on the evening of October 14, 1975, there is no mention that the deceased was having a wrist watch with him. A note is appended to the said report wherein Dattatraya had taken care to indicate asage of Digamberrao Trimbakrao is 75 years and white colour, the clothes as usual used white dhoti Banian shirt and on the head red turban and in the leg shoes."is mention about the wrist watch in the report (Ex. 30) lodged with the Police Station, Beed on October 15, 1975 wherein it has been stated that the deceased was having a wrist watch of 17 jewels of Camy company. Dattatraya (PW 12) has stated, duringthat he had purchased the wrist watch about five years back and that he had given it to his father (deceased) about two years ago. He has also admitted that his father had been using another watch of Sando Company before he (PW 12) gave the wrist watch in question and the deceased had been using the said wrist watch for about six months before his death. PW 12 has also admitted that he was having no wrist watch with him atThe recovery of the wrist watch at the instance of the appellant is sought to be proved by Azizuddin (PW 3), the attesting witness of the Panchnama (Ex. 11). In the said Panchnama, it is stated that on the western wall of the Malvad Baithak in the house of the appellant, there is a niche in the arch towards north on the right side corner and the appellant dug some earth from the said niche by his hand and took out the buried wrist watch from there and the said wrist watch was of the followingOne wristwatch of Camy company, 17 jewels English script dial on the reverse No. 6300 and English have Trade Mark in which a belt of white of steel chain. The watch is in order."Azizuddin (PW 3) has stated that the flooring of the Baithak was of stone slabs and that there were two archesone in the western wall and the other in the southern wall of the Baithak and that there is no door in the arches and the flooring of the arches is of stone slabs and that the appellant took out some earth from a part of the arch of the western side wall. PW 3 has also stated that the appellant dug about one inch in that part of the arch and that no earth was sticking to the wrist watch when it was taken out by the appellant. PW 3 has also stated that he did not remember the time that the wrist watch was showing when it was taken out by the appellant. The Investigating Officer, Subhash (PW 13), has, however, deposed that there were no stone slabs on the floor of the Baithak and that there were no stone slabs under the arches of the Baithak and the appellant dug out some earth by his hands, in one arch while taking out the wrist watch from there. PW 13 has further stated that some dust was sticking to the wrist watch but no mud or cow dung was sticking to the wrist watch. There is a contradiction between the statements of Azizuddin (PW 3) and Subhash (PW 13) on the question whether there were stone slabs on the floor of the Baithak from where the wrist watch was recovered. Moreover, the Panchnama (Ex. 11) and the evidence of PW 13 would indicate that when the wrist watch was recovered it was in working order and was running. The offence took place on the evening of October 13, 1975 and the wrist watch was recovered on October 16, 1975 at 1 p.m. If the watch was buried, as claimed, it is difficult to understand how it was found in working order when it was recovered.keeping in view the statement of Dattatraya (PW 12) that he was not having a wrist watch with him and the fact that no mud was found sticking to the wrist watch when it was recovered and the fact that no mention was made about the wrist watch in the missing report (Ex. 29) lodged by Dattatraya with the Police on October 14, 1975, we are unable to place reliance on the evidence adduced by the prosecution with regard to the recovery of the said wrist watch at the instance of the appellant from the Baithak in the wada where the appellant was residing. The third circumstance cannot, therefore, be held to beThe fourth circumstance relates the conduct of the appellant in not informing Waman (PW 10) about the time when he enquired about the where about of the deceased on the morning of October 14, 1975. We are of the opinion that the said circumstance cannot be held to be established on the basis of the evidence adduced by the prosecution. Waman (PW 10) has stated that on October 14, 1975, at about 10 a.m. he had met the appellant in front of Jain Fine Cloth Stores on Tilak Road and he had asked the appellant as to where the deceased had gone because he had not come back to the house after he had accompanied him (appellant) for taking tea at the appellants house and on being so asked, the appellant had questioned him (PW 10) in an angry manner as to what he (PW 10) had to do with the deceased and that the appellant had further stated that he (PW 10) should call Dattatraya, son of the deceased, and the appellant would tell Dattatraya as to where the deceased had gone the said evidence of Waman (PW 10) has been sought to be corroborated by Murlidhar (PW 4) who has stated that Waman (PW 10) had come to him at about 11 a.m. on October 14, 1975 and had informed him of the talk that he had with the appellant. The subsequent conduct of Murlidhar (PW 4) and Dattatraya (PW 12), however, throws a doubt on the veracity of this evidence. In spite of being informed about this talk between him and the appellant by Waman (PW 10) at about 11 a.m. on October 14, 1975, Murlidhar (PW 4) did not make any effort to contact the appellant. Without meeting the appellant Murlidhar went to Palsingan to meet Dattatraya and although both of them had returned to Beed by 8.30 p.m. on October 14, 1975, they did not make any effort to contact the appellant on October 14, 1975. Without contacting the appellant, Dattatraya lodged the missing report (Ex. 29) on October 14, 1975 and in the said report there is no mention of the talk that had taken place between Waman (PW 10) and the appellant on the morning of the October 14, 1975. Even in the report (Ex. 30) that was lodged by Dattatraya with the Police on October 15, 1975, and which forms the basis for the FIR, there is no mention of this fact and it only mentions that the appellant had informed about the murder of the deceased by Anant Manzarikar. The aforesaid conduct of Murlidhar and Dattatraya is thus inconsistent with the evidence of Waman (PW 10) about the appellant having behaved in the manner as stated by Waman on the morning of October 14, 1975 when Waman enquired about the whereabouts of the deceased. We are, therefore, unable to accept the evidence of Waman (PW 10) and Murlidhar (PW 4) in this regard and it must be held that the fourth circumstance is not established | 1 | 3,710 | 2,122 | ### 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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wrist watch from there and the said wrist watch was of the following description "100.00 One wristwatch of Camy company, 17 jewels English script dial on the reverse No. 6300 and English have Trade Mark in which a belt of white of steel chain. The watch is in order." * 10. Azizuddin (PW 3) has stated that the flooring of the Baithak was of stone slabs and that there were two arches - one in the western wall and the other in the southern wall of the Baithak and that there is no door in the arches and the flooring of the arches is of stone slabs and that the appellant took out some earth from a part of the arch of the western side wall. PW 3 has also stated that the appellant dug about one inch in that part of the arch and that no earth was sticking to the wrist watch when it was taken out by the appellant. PW 3 has also stated that he did not remember the time that the wrist watch was showing when it was taken out by the appellant. The Investigating Officer, Subhash (PW 13), has, however, deposed that there were no stone slabs on the floor of the Baithak and that there were no stone slabs under the arches of the Baithak and the appellant dug out some earth by his hands, in one arch while taking out the wrist watch from there. PW 13 has further stated that some dust was sticking to the wrist watch but no mud or cow dung was sticking to the wrist watch. There is a contradiction between the statements of Azizuddin (PW 3) and Subhash (PW 13) on the question whether there were stone slabs on the floor of the Baithak from where the wrist watch was recovered. Moreover, the Panchnama (Ex. 11) and the evidence of PW 13 would indicate that when the wrist watch was recovered it was in working order and was running. The offence took place on the evening of October 13, 1975 and the wrist watch was recovered on October 16, 1975 at 1 p.m. If the watch was buried, as claimed, it is difficult to understand how it was found in working order when it was recovered. More-over, keeping in view the statement of Dattatraya (PW 12) that he was not having a wrist watch with him and the fact that no mud was found sticking to the wrist watch when it was recovered and the fact that no mention was made about the wrist watch in the missing report (Ex. 29) lodged by Dattatraya with the Police on October 14, 1975, we are unable to place reliance on the evidence adduced by the prosecution with regard to the recovery of the said wrist watch at the instance of the appellant from the Baithak in the wada where the appellant was residing. The third circumstance cannot, therefore, be held to be established. 11. The fourth circumstance relates the conduct of the appellant in not informing Waman (PW 10) about the time when he enquired about the where about of the deceased on the morning of October 14, 1975. We are of the opinion that the said circumstance cannot be held to be established on the basis of the evidence adduced by the prosecution. Waman (PW 10) has stated that on October 14, 1975, at about 10 a.m. he had met the appellant in front of Jain Fine Cloth Stores on Tilak Road and he had asked the appellant as to where the deceased had gone because he had not come back to the house after he had accompanied him (appellant) for taking tea at the appellants house and on being so asked, the appellant had questioned him (PW 10) in an angry manner as to what he (PW 10) had to do with the deceased and that the appellant had further stated that he (PW 10) should call Dattatraya, son of the deceased, and the appellant would tell Dattatraya as to where the deceased had gone the said evidence of Waman (PW 10) has been sought to be corroborated by Murlidhar (PW 4) who has stated that Waman (PW 10) had come to him at about 11 a.m. on October 14, 1975 and had informed him of the talk that he had with the appellant. The subsequent conduct of Murlidhar (PW 4) and Dattatraya (PW 12), however, throws a doubt on the veracity of this evidence. In spite of being informed about this talk between him and the appellant by Waman (PW 10) at about 11 a.m. on October 14, 1975, Murlidhar (PW 4) did not make any effort to contact the appellant. Without meeting the appellant Murlidhar went to Palsingan to meet Dattatraya and although both of them had returned to Beed by 8.30 p.m. on October 14, 1975, they did not make any effort to contact the appellant on October 14, 1975. Without contacting the appellant, Dattatraya lodged the missing report (Ex. 29) on October 14, 1975 and in the said report there is no mention of the talk that had taken place between Waman (PW 10) and the appellant on the morning of the October 14, 1975. Even in the report (Ex. 30) that was lodged by Dattatraya with the Police on October 15, 1975, and which forms the basis for the FIR, there is no mention of this fact and it only mentions that the appellant had informed about the murder of the deceased by Anant Manzarikar. The aforesaid conduct of Murlidhar and Dattatraya is thus inconsistent with the evidence of Waman (PW 10) about the appellant having behaved in the manner as stated by Waman on the morning of October 14, 1975 when Waman enquired about the whereabouts of the deceased. We are, therefore, unable to accept the evidence of Waman (PW 10) and Murlidhar (PW 4) in this regard and it must be held that the fourth circumstance is not established.
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earth from the said niche by his hand and took out the buried wrist watch from there and the said wrist watch was of the followingOne wristwatch of Camy company, 17 jewels English script dial on the reverse No. 6300 and English have Trade Mark in which a belt of white of steel chain. The watch is in order."Azizuddin (PW 3) has stated that the flooring of the Baithak was of stone slabs and that there were two archesone in the western wall and the other in the southern wall of the Baithak and that there is no door in the arches and the flooring of the arches is of stone slabs and that the appellant took out some earth from a part of the arch of the western side wall. PW 3 has also stated that the appellant dug about one inch in that part of the arch and that no earth was sticking to the wrist watch when it was taken out by the appellant. PW 3 has also stated that he did not remember the time that the wrist watch was showing when it was taken out by the appellant. The Investigating Officer, Subhash (PW 13), has, however, deposed that there were no stone slabs on the floor of the Baithak and that there were no stone slabs under the arches of the Baithak and the appellant dug out some earth by his hands, in one arch while taking out the wrist watch from there. PW 13 has further stated that some dust was sticking to the wrist watch but no mud or cow dung was sticking to the wrist watch. There is a contradiction between the statements of Azizuddin (PW 3) and Subhash (PW 13) on the question whether there were stone slabs on the floor of the Baithak from where the wrist watch was recovered. Moreover, the Panchnama (Ex. 11) and the evidence of PW 13 would indicate that when the wrist watch was recovered it was in working order and was running. The offence took place on the evening of October 13, 1975 and the wrist watch was recovered on October 16, 1975 at 1 p.m. If the watch was buried, as claimed, it is difficult to understand how it was found in working order when it was recovered.keeping in view the statement of Dattatraya (PW 12) that he was not having a wrist watch with him and the fact that no mud was found sticking to the wrist watch when it was recovered and the fact that no mention was made about the wrist watch in the missing report (Ex. 29) lodged by Dattatraya with the Police on October 14, 1975, we are unable to place reliance on the evidence adduced by the prosecution with regard to the recovery of the said wrist watch at the instance of the appellant from the Baithak in the wada where the appellant was residing. The third circumstance cannot, therefore, be held to beThe fourth circumstance relates the conduct of the appellant in not informing Waman (PW 10) about the time when he enquired about the where about of the deceased on the morning of October 14, 1975. We are of the opinion that the said circumstance cannot be held to be established on the basis of the evidence adduced by the prosecution. Waman (PW 10) has stated that on October 14, 1975, at about 10 a.m. he had met the appellant in front of Jain Fine Cloth Stores on Tilak Road and he had asked the appellant as to where the deceased had gone because he had not come back to the house after he had accompanied him (appellant) for taking tea at the appellants house and on being so asked, the appellant had questioned him (PW 10) in an angry manner as to what he (PW 10) had to do with the deceased and that the appellant had further stated that he (PW 10) should call Dattatraya, son of the deceased, and the appellant would tell Dattatraya as to where the deceased had gone the said evidence of Waman (PW 10) has been sought to be corroborated by Murlidhar (PW 4) who has stated that Waman (PW 10) had come to him at about 11 a.m. on October 14, 1975 and had informed him of the talk that he had with the appellant. The subsequent conduct of Murlidhar (PW 4) and Dattatraya (PW 12), however, throws a doubt on the veracity of this evidence. In spite of being informed about this talk between him and the appellant by Waman (PW 10) at about 11 a.m. on October 14, 1975, Murlidhar (PW 4) did not make any effort to contact the appellant. Without meeting the appellant Murlidhar went to Palsingan to meet Dattatraya and although both of them had returned to Beed by 8.30 p.m. on October 14, 1975, they did not make any effort to contact the appellant on October 14, 1975. Without contacting the appellant, Dattatraya lodged the missing report (Ex. 29) on October 14, 1975 and in the said report there is no mention of the talk that had taken place between Waman (PW 10) and the appellant on the morning of the October 14, 1975. Even in the report (Ex. 30) that was lodged by Dattatraya with the Police on October 15, 1975, and which forms the basis for the FIR, there is no mention of this fact and it only mentions that the appellant had informed about the murder of the deceased by Anant Manzarikar. The aforesaid conduct of Murlidhar and Dattatraya is thus inconsistent with the evidence of Waman (PW 10) about the appellant having behaved in the manner as stated by Waman on the morning of October 14, 1975 when Waman enquired about the whereabouts of the deceased. We are, therefore, unable to accept the evidence of Waman (PW 10) and Murlidhar (PW 4) in this regard and it must be held that the fourth circumstance is not established
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MALLIKARJUNAIAH Vs. NANJAIAH | of a large number of cases of this Court. 19. In T. Anjanappa & Ors. vs. Somalingappa & Anr., (2006) 7 SCC 570 , this Court held that mere possession, howsoever long it may be, does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owners title. 20. Relying upon the aforesaid decision, this Court again in Chatti Konati Rao & Ors. vs. Palle Venkata Subba Rao, (2010) 14 SCC 316 in para 14 held as under: 14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter. 21. Keeping in view the law relating to the adverse possession quoted above, when we examine the case at hand, we have no hesitation in holding that the Courts below were not justified in holding that the defendants have perfected their title over the suit land qua the plaintiff by virtue of their adverse possession over the suit land. This we say for the following reasons. 22. First, it is not in dispute that the appellant(plaintiff) was the owner of the entire land including the suit land, i.e., encroached portion, which was alleged to be in possession of the respondents(defendants). In other words, the respondents(defendants) have admitted the ownership of the appellant(plaintiff) over the entire land including the suit land by setting up the plea of adverse possession over it; Second, the burden to prove the adverse possession was on the respondents(defendants) because it was they who had set up this plea; Third, the respondents(defendants), in our view, failed to discharge this burden; Fourth, there was no element of either adversity or/and hostility between two co¬owners/brothers because in a dispute of this nature where both the parties are related to each other, the possession of one is regarded to be the possession of other unless the facts show otherwise; Fifth, the respondents(defendants) failed to adduce any evidence to prove that they were asserting their right of ownership over the entire land or the suit land or its part openly and to the knowledge of the appellant(plaintiff) continuously for a period of more than 12 years; Sixth, it is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner. Such is not the case here. Seventh, this was a case where both the parties were not aware as to how much land was in exclusive possession of each. In other words, here is a case where both the parties to the suit did not know as to how much land was in the exclusive possession of the appellant (plaintiff) and how much land was in possession of the respondents(defendants). It was only when the appellant(plaintiff) got the suit land measured through the revenue department in the year 1983, he came to know that some portion of the land, which had fallen to his share was in possession of the respondents(defendants). 23. Thereafter the appellant(plaintiff) filed a suit in the year 1992 against the respondents(defendants) for declaration and injunction and in the alternative also claimed possession of the suit land. The suit was, therefore, filed well within the period of 12 years from the date of knowledge, i.e., in the year 1983. During this period also, there was no evidence adduced by the defendants to prove that they ever asserted their right of ownership over the specific portion of the suit land as belonging to them openly and with assertion of hostility to the knowledge of appellant(plaintiff). 24. In our view, the appellant(plaintiff) having come to know that the respondents(defendants) had encroached upon his land in the year 1983 and he rightly filed the suit within 12 years from the date of knowledge, a plea of adverse possession was not available to the respondents(defendants) against the appellant(plaintiff) because 12 years had not been completed by then. 25. In this view of the matter, the question of respondents(defendants) perfecting their title by adverse possession over the suit land did not arise. As mentioned above, even if the respondents(defendants) claimed to be in possession over the suit land prior to the year 1983, the same was of no consequence for the simple reason that such possession was neither exclusive nor hostile and nor it was to the knowledge of the parties for want of actual measurements. 26. It is for all these reasons, we are of the considered view that the Courts below were not justified in declaring the respondents(defendants) to be the owner of the encroached portion of the suit land by virtue of adverse possession. This finding, in our view, being against the settled principle of law deserves to be set aside. | 1[ds]21. Keeping in view the law relating to the adverse possession quoted above, when we examine the case at hand, we have no hesitation in holding that the Courts below were not justified in holding that the defendants have perfected their title over the suit land qua the plaintiff by virtue of their adverse possession over the suit land. This we say for the following reasons22. First, it is not in dispute that the appellant(plaintiff) was the owner of the entire land including the suit land, i.e., encroached portion, which was alleged to be in possession of the respondents(defendants). In other words, the respondents(defendants) have admitted the ownership of the appellant(plaintiff) over the entire land including the suit land by setting up the plea of adverse possession over it; Second, the burden to prove the adverse possession was on the respondents(defendants) because it was they who had set up this plea; Third, the respondents(defendants), in our view, failed to discharge this burden; Fourth, there was no element of either adversity or/and hostility between two co¬owners/brothers because in a dispute of this nature where both the parties are related to each other, the possession of one is regarded to be the possession of other unless the facts show otherwise; Fifth, the respondents(defendants) failed to adduce any evidence to prove that they were asserting their right of ownership over the entire land or the suit land or its part openly and to the knowledge of the appellant(plaintiff) continuously for a period of more than 12 years; Sixth, it is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner. Such is not the case here. Seventh, this was a case where both the parties were not aware as to how much land was in exclusive possession of each. In other words, here is a case where both the parties to the suit did not know as to how much land was in the exclusive possession of the appellant (plaintiff) and how much land was in possession of the respondents(defendants). It was only when the appellant(plaintiff) got the suit land measured through the revenue department in the year 1983, he came to know that some portion of the land, which had fallen to his share was in possession of the respondents(defendants)23. Thereafter the appellant(plaintiff) filed a suit in the year 1992 against the respondents(defendants) for declaration and injunction and in the alternative also claimed possession of the suit land. The suit was, therefore, filed well within the period of 12 years from the date of knowledge, i.e., in the year 1983. During this period also, there was no evidence adduced by the defendants to prove that they ever asserted their right of ownership over the specific portion of the suit land as belonging to them openly and with assertion of hostility to the knowledge of appellant(plaintiff)24. In our view, the appellant(plaintiff) having come to know that the respondents(defendants) had encroached upon his land in the year 1983 and he rightly filed the suit within 12 years from the date of knowledge, a plea of adverse possession was not available to the respondents(defendants) against the appellant(plaintiff) because 12 years had not been completed by then25. In this view of the matter, the question of respondents(defendants) perfecting their title by adverse possession over the suit land did not arise. As mentioned above, even if the respondents(defendants) claimed to be in possession over the suit land prior to the year 1983, the same was of no consequence for the simple reason that such possession was neither exclusive nor hostile and nor it was to the knowledge of the parties for want of actual measurements26. It is for all these reasons, we are of the considered view that the Courts below were not justified in declaring the respondents(defendants) to be the owner of the encroached portion of the suit land by virtue of adverse possession. This finding, in our view, being against the settled principle of law deserves to be set aside. | 1 | 2,176 | 840 | ### Instruction:
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of a large number of cases of this Court. 19. In T. Anjanappa & Ors. vs. Somalingappa & Anr., (2006) 7 SCC 570 , this Court held that mere possession, howsoever long it may be, does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owners title. 20. Relying upon the aforesaid decision, this Court again in Chatti Konati Rao & Ors. vs. Palle Venkata Subba Rao, (2010) 14 SCC 316 in para 14 held as under: 14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter. 21. Keeping in view the law relating to the adverse possession quoted above, when we examine the case at hand, we have no hesitation in holding that the Courts below were not justified in holding that the defendants have perfected their title over the suit land qua the plaintiff by virtue of their adverse possession over the suit land. This we say for the following reasons. 22. First, it is not in dispute that the appellant(plaintiff) was the owner of the entire land including the suit land, i.e., encroached portion, which was alleged to be in possession of the respondents(defendants). In other words, the respondents(defendants) have admitted the ownership of the appellant(plaintiff) over the entire land including the suit land by setting up the plea of adverse possession over it; Second, the burden to prove the adverse possession was on the respondents(defendants) because it was they who had set up this plea; Third, the respondents(defendants), in our view, failed to discharge this burden; Fourth, there was no element of either adversity or/and hostility between two co¬owners/brothers because in a dispute of this nature where both the parties are related to each other, the possession of one is regarded to be the possession of other unless the facts show otherwise; Fifth, the respondents(defendants) failed to adduce any evidence to prove that they were asserting their right of ownership over the entire land or the suit land or its part openly and to the knowledge of the appellant(plaintiff) continuously for a period of more than 12 years; Sixth, it is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner. Such is not the case here. Seventh, this was a case where both the parties were not aware as to how much land was in exclusive possession of each. In other words, here is a case where both the parties to the suit did not know as to how much land was in the exclusive possession of the appellant (plaintiff) and how much land was in possession of the respondents(defendants). It was only when the appellant(plaintiff) got the suit land measured through the revenue department in the year 1983, he came to know that some portion of the land, which had fallen to his share was in possession of the respondents(defendants). 23. Thereafter the appellant(plaintiff) filed a suit in the year 1992 against the respondents(defendants) for declaration and injunction and in the alternative also claimed possession of the suit land. The suit was, therefore, filed well within the period of 12 years from the date of knowledge, i.e., in the year 1983. During this period also, there was no evidence adduced by the defendants to prove that they ever asserted their right of ownership over the specific portion of the suit land as belonging to them openly and with assertion of hostility to the knowledge of appellant(plaintiff). 24. In our view, the appellant(plaintiff) having come to know that the respondents(defendants) had encroached upon his land in the year 1983 and he rightly filed the suit within 12 years from the date of knowledge, a plea of adverse possession was not available to the respondents(defendants) against the appellant(plaintiff) because 12 years had not been completed by then. 25. In this view of the matter, the question of respondents(defendants) perfecting their title by adverse possession over the suit land did not arise. As mentioned above, even if the respondents(defendants) claimed to be in possession over the suit land prior to the year 1983, the same was of no consequence for the simple reason that such possession was neither exclusive nor hostile and nor it was to the knowledge of the parties for want of actual measurements. 26. It is for all these reasons, we are of the considered view that the Courts below were not justified in declaring the respondents(defendants) to be the owner of the encroached portion of the suit land by virtue of adverse possession. This finding, in our view, being against the settled principle of law deserves to be set aside.
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21. Keeping in view the law relating to the adverse possession quoted above, when we examine the case at hand, we have no hesitation in holding that the Courts below were not justified in holding that the defendants have perfected their title over the suit land qua the plaintiff by virtue of their adverse possession over the suit land. This we say for the following reasons22. First, it is not in dispute that the appellant(plaintiff) was the owner of the entire land including the suit land, i.e., encroached portion, which was alleged to be in possession of the respondents(defendants). In other words, the respondents(defendants) have admitted the ownership of the appellant(plaintiff) over the entire land including the suit land by setting up the plea of adverse possession over it; Second, the burden to prove the adverse possession was on the respondents(defendants) because it was they who had set up this plea; Third, the respondents(defendants), in our view, failed to discharge this burden; Fourth, there was no element of either adversity or/and hostility between two co¬owners/brothers because in a dispute of this nature where both the parties are related to each other, the possession of one is regarded to be the possession of other unless the facts show otherwise; Fifth, the respondents(defendants) failed to adduce any evidence to prove that they were asserting their right of ownership over the entire land or the suit land or its part openly and to the knowledge of the appellant(plaintiff) continuously for a period of more than 12 years; Sixth, it is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner. Such is not the case here. Seventh, this was a case where both the parties were not aware as to how much land was in exclusive possession of each. In other words, here is a case where both the parties to the suit did not know as to how much land was in the exclusive possession of the appellant (plaintiff) and how much land was in possession of the respondents(defendants). It was only when the appellant(plaintiff) got the suit land measured through the revenue department in the year 1983, he came to know that some portion of the land, which had fallen to his share was in possession of the respondents(defendants)23. Thereafter the appellant(plaintiff) filed a suit in the year 1992 against the respondents(defendants) for declaration and injunction and in the alternative also claimed possession of the suit land. The suit was, therefore, filed well within the period of 12 years from the date of knowledge, i.e., in the year 1983. During this period also, there was no evidence adduced by the defendants to prove that they ever asserted their right of ownership over the specific portion of the suit land as belonging to them openly and with assertion of hostility to the knowledge of appellant(plaintiff)24. In our view, the appellant(plaintiff) having come to know that the respondents(defendants) had encroached upon his land in the year 1983 and he rightly filed the suit within 12 years from the date of knowledge, a plea of adverse possession was not available to the respondents(defendants) against the appellant(plaintiff) because 12 years had not been completed by then25. In this view of the matter, the question of respondents(defendants) perfecting their title by adverse possession over the suit land did not arise. As mentioned above, even if the respondents(defendants) claimed to be in possession over the suit land prior to the year 1983, the same was of no consequence for the simple reason that such possession was neither exclusive nor hostile and nor it was to the knowledge of the parties for want of actual measurements26. It is for all these reasons, we are of the considered view that the Courts below were not justified in declaring the respondents(defendants) to be the owner of the encroached portion of the suit land by virtue of adverse possession. This finding, in our view, being against the settled principle of law deserves to be set aside.
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Pannalal Vs. State Of Bombay And Ors | the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under Or. 41, r. 22 can be directed against the other respondents, is correct. Whatever may have been the position under the old s. 561, the use of the word "cross-objection" in Or. 41 r. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As Rajammannar C.J., said in Venkateswarlu v. Ramamma [I.L.R. (1950) Mad. 874.]. "The legislature by describing the objection which could be taken by the respondent as a "cross-objection" must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent, the cross-objection must be an objection by respondent against the appellant". We think, with respect, that these observations put the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a correspondent is indicated by the substitution of the work "appellant" in the third paragraph by the words "the party who may be affected by such objection."13. On the facts of the present case, we have come to the conclusion that it was not open to the plaintiff-appellant before the High Court to file any cross-objection directed against the other defendants who were correspondents. The High Court was therefore wrong in refusing to consider what relief, if any, could be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code.Learned who appeared for the Gondia Municipality in Civil Appeal No. 209 of 1961, relied on the decision of the privy Council in Anath Nath v. Dwarka Nath [A.I.R. 1939 P.C. 86.], for his contention that rule 33 could not be rightly used in the present case. In that case the plaintiff challenged a revenue sale as wholly void for want of jurisdiction and bad for irregularities and further contended that the respondent had been guilty of fraud or improper conduct to the prejudice of his co-owners in the estate. The Trial Court rejected the plaintiffs case that the sale was void for want of jurisdiction and bad for irregularities but accepted the other contention and gave the plaintiff a decree. On appeal, the High Court held that no fraud or improper conduct towards owners in respect of the revenue sale had been proved against respondent No. 1. The High Court refused to grant any relief to the plaintiff on the other ground which had been rejected by the Trial Court in the view that it was no longer open to the plaintiff who had not filed any cross-objections to the decree of the Trial Court to maintain that the revenue sale should be set aside for want of jurisdiction or irregularity. In accepting this view of the High Court the Privy Council observed :-"In their Lordships view the case came clearly within the condition imposed by the concluding words of sub-r. (1) of R. 22, "provided he has filed such objections in the Appellate Court, etc., etc.". It was contended however that the language of R. 33 of the same Order was wide enough to cover the case. Even if their Lordships assume that the High Court was not wholly without power to entertain this ground of appeal - an assumption to which they do not commit themselves - they are clearly of opinion that Rule 33 could not rightly be used in the present case so as to abrogate the important condition which prevents an independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the courts below."This decision is of no assistance to the respondents. For the question which we have considered here, viz., how far it is open to a respondent to seek relief against a co-respondent by way of cross-objection did not fall for consideration by the Privy Council. The Privy Council based its decision on the view that it was open to the respondent before the High Court to file a cross-objection under Or. 41, r. 22 against the appellant and had not to consider the question now before us. We think it proper also to point out that the decision of the Privy Council in Anath Naths case [A.I.R. 1939 P.C. 86.], should not be considered as an authority for the proposition that the failure to file a cross-objection - where such objection could be filed under the law - invariably and necessarily excludes the application of Or. 41, r. 33. There their Lordships assumed, without deciding, that the High Court was not wholly without power to entertain the other ground of appeal but in the special circumstances of the case they thought that it would not have been right to give relief under the provisions of Rule 33 to the appellant.13. As the High Court has refused to exercise its powers under Or. 41, r. 33 of the Code of Civil Procedure on an incorrect view of the law the matter has to go back to the High Court. We maintain the High Courts order in so far as it dismisses the suits against the State of Bombay but set aside the order in so far as it dismisses the suits against the other defendants and send the case back to the High Court in order that it may decide, on an examination of the merits of the case, whether relief should be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code. Costs incurred in this Court will abide the final result in the appeals before the High Court at Bombay.14. | 1[ds]There is, in our opinion, no substance in the appellants contention that the State Government was liable. On the materials on the record, it appears clear to us that the Deputy Commissioner did not act on behalf of the State Government in signing the contracts. Nor can it be said that the State Government derived benefit from the work done by the plaintiff. In our opinion, the High Court was right in its conclusion that the State Government was not liable in respect of any of these contracts and rightly dismissed the suits as against the defendant No.the High Court has refused to exercise its powers under Or. 41, r. 33 of theCode of CivilProcedure on an incorrect view of the law the matter has to go back to the High Court. We maintain the High Courts order in so far as it dismisses the suits against the State of Bombay but set aside the order in so far as it dismisses the suits against the other defendants and send the case back to the High Court in order that it may decide, on an examination of the merits of the case, whether relief should be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code. Costs incurred in this Court will abide the final result in the appeals before the High Court atthe legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a correspondent is indicated by the substitution of the work "appellant" in the third paragraph by the words "the party who may be affected by suchour opinion, the view that has now been accepted by all the High Courts that Order 41, r. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under Or. 41, r. 22 can be directed against the other respondents, is correct. Whatever may have been the position under the old s. 561, the use of the word "cross-objection" in Or. 41 r. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant | 1 | 4,510 | 466 | ### 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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the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under Or. 41, r. 22 can be directed against the other respondents, is correct. Whatever may have been the position under the old s. 561, the use of the word "cross-objection" in Or. 41 r. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As Rajammannar C.J., said in Venkateswarlu v. Ramamma [I.L.R. (1950) Mad. 874.]. "The legislature by describing the objection which could be taken by the respondent as a "cross-objection" must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent, the cross-objection must be an objection by respondent against the appellant". We think, with respect, that these observations put the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a correspondent is indicated by the substitution of the work "appellant" in the third paragraph by the words "the party who may be affected by such objection."13. On the facts of the present case, we have come to the conclusion that it was not open to the plaintiff-appellant before the High Court to file any cross-objection directed against the other defendants who were correspondents. The High Court was therefore wrong in refusing to consider what relief, if any, could be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code.Learned who appeared for the Gondia Municipality in Civil Appeal No. 209 of 1961, relied on the decision of the privy Council in Anath Nath v. Dwarka Nath [A.I.R. 1939 P.C. 86.], for his contention that rule 33 could not be rightly used in the present case. In that case the plaintiff challenged a revenue sale as wholly void for want of jurisdiction and bad for irregularities and further contended that the respondent had been guilty of fraud or improper conduct to the prejudice of his co-owners in the estate. The Trial Court rejected the plaintiffs case that the sale was void for want of jurisdiction and bad for irregularities but accepted the other contention and gave the plaintiff a decree. On appeal, the High Court held that no fraud or improper conduct towards owners in respect of the revenue sale had been proved against respondent No. 1. The High Court refused to grant any relief to the plaintiff on the other ground which had been rejected by the Trial Court in the view that it was no longer open to the plaintiff who had not filed any cross-objections to the decree of the Trial Court to maintain that the revenue sale should be set aside for want of jurisdiction or irregularity. In accepting this view of the High Court the Privy Council observed :-"In their Lordships view the case came clearly within the condition imposed by the concluding words of sub-r. (1) of R. 22, "provided he has filed such objections in the Appellate Court, etc., etc.". It was contended however that the language of R. 33 of the same Order was wide enough to cover the case. Even if their Lordships assume that the High Court was not wholly without power to entertain this ground of appeal - an assumption to which they do not commit themselves - they are clearly of opinion that Rule 33 could not rightly be used in the present case so as to abrogate the important condition which prevents an independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the courts below."This decision is of no assistance to the respondents. For the question which we have considered here, viz., how far it is open to a respondent to seek relief against a co-respondent by way of cross-objection did not fall for consideration by the Privy Council. The Privy Council based its decision on the view that it was open to the respondent before the High Court to file a cross-objection under Or. 41, r. 22 against the appellant and had not to consider the question now before us. We think it proper also to point out that the decision of the Privy Council in Anath Naths case [A.I.R. 1939 P.C. 86.], should not be considered as an authority for the proposition that the failure to file a cross-objection - where such objection could be filed under the law - invariably and necessarily excludes the application of Or. 41, r. 33. There their Lordships assumed, without deciding, that the High Court was not wholly without power to entertain the other ground of appeal but in the special circumstances of the case they thought that it would not have been right to give relief under the provisions of Rule 33 to the appellant.13. As the High Court has refused to exercise its powers under Or. 41, r. 33 of the Code of Civil Procedure on an incorrect view of the law the matter has to go back to the High Court. We maintain the High Courts order in so far as it dismisses the suits against the State of Bombay but set aside the order in so far as it dismisses the suits against the other defendants and send the case back to the High Court in order that it may decide, on an examination of the merits of the case, whether relief should be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code. Costs incurred in this Court will abide the final result in the appeals before the High Court at Bombay.14.
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1
### Explanation:
There is, in our opinion, no substance in the appellants contention that the State Government was liable. On the materials on the record, it appears clear to us that the Deputy Commissioner did not act on behalf of the State Government in signing the contracts. Nor can it be said that the State Government derived benefit from the work done by the plaintiff. In our opinion, the High Court was right in its conclusion that the State Government was not liable in respect of any of these contracts and rightly dismissed the suits as against the defendant No.the High Court has refused to exercise its powers under Or. 41, r. 33 of theCode of CivilProcedure on an incorrect view of the law the matter has to go back to the High Court. We maintain the High Courts order in so far as it dismisses the suits against the State of Bombay but set aside the order in so far as it dismisses the suits against the other defendants and send the case back to the High Court in order that it may decide, on an examination of the merits of the case, whether relief should be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code. Costs incurred in this Court will abide the final result in the appeals before the High Court atthe legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a correspondent is indicated by the substitution of the work "appellant" in the third paragraph by the words "the party who may be affected by suchour opinion, the view that has now been accepted by all the High Courts that Order 41, r. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under Or. 41, r. 22 can be directed against the other respondents, is correct. Whatever may have been the position under the old s. 561, the use of the word "cross-objection" in Or. 41 r. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant
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Becharbhai S Prajapati Vs. State Of Gujarat | wait for an hour. It is alleged that within an hour the Police Jeep went towards the Police Station, and therefore, Panch No. 1 along with the complainant was sent to the Police Station. They went to the Police Station on foot and so did the others who followed. The complainant went up the first floor where he met the appellant-accused (P.S.I.) who was sitting in the Chamber while Panch No. 1 who accompanied the complainant waited at the door of the P.S.Is Chamber. The complainant requested to handover the papers of the luxury bus, but the appellant-accused asked whether he (complainant) had brought the money i.e. the illegal gratification. The complainant suggested that some lesser amount than Rs.250/- be accepted to which the appellant-accused replied that Rs.200/- be given. Accordingly, the complainant handed over the tainted currency notes of Rs.200/- to the appellant-accused who accepted the same by his left hand, put it in his right hand and then into his right hand trouser pocket. The appellant-accused then gave the portfolio that was in the cupboard. In the meanwhile, the complainant had kept the remaining currency note of Rs.50/- in his pocket. The appellant-accused then demanded the receipt which was given at the time of interception at the spot, but the complainant told that the receipt was with the driver. It is alleged that, at that time, Panch No.1 was at a distance of five feet from the Chamber of the appellant-accused and heard the conversation between the complainant and the appellant-accused. It is also alleged that the complainant, thereafter, came out near the staircase and gave the preplanned signal to the ACB personnel who rushed to the Chamber of the appellant-accused in the company of Panch No.2 Ishwarlal Girdharlal Chauhan. The ACB Inspector revealed his identity by showing his card, took away the revolver from the appellant-accused (P.S.I.). At that time, the appellant-accused got frightened and took out the said tainted currency notes from his trouser pocket and kept them in his fist. The P.I. ACB, Bhavnagar then apprehended the appellant for having demanded and accepted a sum of Rs.200/- from the complainant for showing him favour by allowing the luxury bus to go to the destination and the appellant-accused was asked to place his hands on the table and the tainted currency notes were recovered from the appellant-accused. Thereafter, the test of anthracene powder was carried out on the hands of the raiding party by viewing their hands under ultra violet lamp and no marks of anthracene powder was found. Similar test was carried out of the hands of the complainant, the appellant-accused and trousers of appellant-accused and presence of anthracene powder was noticed. It is further alleged that the recovered currency notes of Rs.200/- were compared with the numbers and denominations of the currency notes mentioned in the pre-trap Panchnama and the same having tallied in toto were seized. The appellant-accused was taken into custody. The tainted currency note of Rs.50/-that remained in the pocket of the complainant was also compared with the number and denomination mentioned in the pre-trap Panchnama and the same also tallied. Thereafter, a detailed second part of the Panchnama was drawn in presence of the Panchas, muddammal currency notes, trouser worn by the appellant-accused etc. were attached. It is further the case of the prosecution that on the next day, further statement of complainant was recorded and at that time he produced the receipt issued by the appellant-accused. The statements of witnesses were recorded and the sanction for prosecution in respect of the appellant-accused was obtained from Mr. Brar, Junagadh.After completion of investigation a charge sheet was filed undertaking alleged commission of offence punishable under Sections 7, 12 and 13(1)(d) of the Act. Learned Special Judge framed charges for offence punishable under Sections 7, 12 and 13 (1)(d) read with Section 13(2) of the Act and Section 161 of IPC.As noted above, the appellant was convicted for offence punishable under Section 7(2) of the Act and Section 161 IPC. The appeal before the High Court was dismissed on the ground that there was sufficient evidence on record to hold that the appellant did demand and accept the bribe money from the complainant. 5. The learned counsel for the appellant submitted that the evidence is inadequate and does not stablish demand and acceptance of illegal gratification. The appellant all through has taken the stand that he was falsely implicated. Alternatively, it was submitted that the sentence as imposed is heavy considering the amount of bribe alleged to have been received.6. Learned counsel for the respondent-State on the other hand supported the order.7. It is to be noted that both the trial Court and the High Court have analysed the evidence in great detail and have found that the appellant had demanded and accepted a sum of Rs.200/- from the complainant for allowing the luxury bus to go to the destination. The tainted currency notes were recovered from the appellant. The test of anthrecene powder was carried out of the hands of the raiding party under ultra violet lamp but no marks of anthracene powder was found. Similar test was carried out on the hands of the complainant. On the accused-appellants trouser presence of anthracene powder was noticed. It has also been established that the numbers of the currency notes were matched with the denominations mentioned in the pre-trap panchnama.8. Looked at from these angles, it cannot be said that the conclusions of, either the trial Court or the High Court, suffer from any infirmity.9. The alternative submission relates to the harshness of sentence. The occurrence took place nearly seven years back. It is stated that the appellant has suffered custody for more than six months. Taking into account all these aspects, we feel interest of justice would be best served if the sentence is reduced to the period undergone, while maintaining the conviction. It is to be noted that the minimum sentence prescribed under Section 7(2) of the Act is six months.10. | 0[ds]7. It is to be noted that both the trial Court and the High Court have analysed the evidence in great detail and have found that the appellant had demanded and accepted a sum of Rs.200/- from the complainant for allowing the luxury bus to go to the destination. The tainted currency notes were recovered from the appellant. The test of anthrecene powder was carried out of the hands of the raiding party under ultra violet lamp but no marks of anthracene powder was found. Similar test was carried out on the hands of the complainant. On the accused-appellants trouser presence of anthracene powder was noticed. It has also been established that the numbers of the currency notes were matched with the denominations mentioned in the pre-trap panchnama.8. Looked at from these angles, it cannot be said that the conclusions of, either the trial Court or the High Court, suffer from any infirmity.9. The alternative submission relates to the harshness of sentence. The occurrence took place nearly seven years back. It is stated that the appellant has suffered custody for more than six months. Taking into account all these aspects, we feel interest of justice would be best served if the sentence is reduced to the period undergone, while maintaining the conviction. It is to be noted that the minimum sentence prescribed under Section 7(2) of the Act is six months. | 0 | 2,141 | 257 | ### 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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wait for an hour. It is alleged that within an hour the Police Jeep went towards the Police Station, and therefore, Panch No. 1 along with the complainant was sent to the Police Station. They went to the Police Station on foot and so did the others who followed. The complainant went up the first floor where he met the appellant-accused (P.S.I.) who was sitting in the Chamber while Panch No. 1 who accompanied the complainant waited at the door of the P.S.Is Chamber. The complainant requested to handover the papers of the luxury bus, but the appellant-accused asked whether he (complainant) had brought the money i.e. the illegal gratification. The complainant suggested that some lesser amount than Rs.250/- be accepted to which the appellant-accused replied that Rs.200/- be given. Accordingly, the complainant handed over the tainted currency notes of Rs.200/- to the appellant-accused who accepted the same by his left hand, put it in his right hand and then into his right hand trouser pocket. The appellant-accused then gave the portfolio that was in the cupboard. In the meanwhile, the complainant had kept the remaining currency note of Rs.50/- in his pocket. The appellant-accused then demanded the receipt which was given at the time of interception at the spot, but the complainant told that the receipt was with the driver. It is alleged that, at that time, Panch No.1 was at a distance of five feet from the Chamber of the appellant-accused and heard the conversation between the complainant and the appellant-accused. It is also alleged that the complainant, thereafter, came out near the staircase and gave the preplanned signal to the ACB personnel who rushed to the Chamber of the appellant-accused in the company of Panch No.2 Ishwarlal Girdharlal Chauhan. The ACB Inspector revealed his identity by showing his card, took away the revolver from the appellant-accused (P.S.I.). At that time, the appellant-accused got frightened and took out the said tainted currency notes from his trouser pocket and kept them in his fist. The P.I. ACB, Bhavnagar then apprehended the appellant for having demanded and accepted a sum of Rs.200/- from the complainant for showing him favour by allowing the luxury bus to go to the destination and the appellant-accused was asked to place his hands on the table and the tainted currency notes were recovered from the appellant-accused. Thereafter, the test of anthracene powder was carried out on the hands of the raiding party by viewing their hands under ultra violet lamp and no marks of anthracene powder was found. Similar test was carried out of the hands of the complainant, the appellant-accused and trousers of appellant-accused and presence of anthracene powder was noticed. It is further alleged that the recovered currency notes of Rs.200/- were compared with the numbers and denominations of the currency notes mentioned in the pre-trap Panchnama and the same having tallied in toto were seized. The appellant-accused was taken into custody. The tainted currency note of Rs.50/-that remained in the pocket of the complainant was also compared with the number and denomination mentioned in the pre-trap Panchnama and the same also tallied. Thereafter, a detailed second part of the Panchnama was drawn in presence of the Panchas, muddammal currency notes, trouser worn by the appellant-accused etc. were attached. It is further the case of the prosecution that on the next day, further statement of complainant was recorded and at that time he produced the receipt issued by the appellant-accused. The statements of witnesses were recorded and the sanction for prosecution in respect of the appellant-accused was obtained from Mr. Brar, Junagadh.After completion of investigation a charge sheet was filed undertaking alleged commission of offence punishable under Sections 7, 12 and 13(1)(d) of the Act. Learned Special Judge framed charges for offence punishable under Sections 7, 12 and 13 (1)(d) read with Section 13(2) of the Act and Section 161 of IPC.As noted above, the appellant was convicted for offence punishable under Section 7(2) of the Act and Section 161 IPC. The appeal before the High Court was dismissed on the ground that there was sufficient evidence on record to hold that the appellant did demand and accept the bribe money from the complainant. 5. The learned counsel for the appellant submitted that the evidence is inadequate and does not stablish demand and acceptance of illegal gratification. The appellant all through has taken the stand that he was falsely implicated. Alternatively, it was submitted that the sentence as imposed is heavy considering the amount of bribe alleged to have been received.6. Learned counsel for the respondent-State on the other hand supported the order.7. It is to be noted that both the trial Court and the High Court have analysed the evidence in great detail and have found that the appellant had demanded and accepted a sum of Rs.200/- from the complainant for allowing the luxury bus to go to the destination. The tainted currency notes were recovered from the appellant. The test of anthrecene powder was carried out of the hands of the raiding party under ultra violet lamp but no marks of anthracene powder was found. Similar test was carried out on the hands of the complainant. On the accused-appellants trouser presence of anthracene powder was noticed. It has also been established that the numbers of the currency notes were matched with the denominations mentioned in the pre-trap panchnama.8. Looked at from these angles, it cannot be said that the conclusions of, either the trial Court or the High Court, suffer from any infirmity.9. The alternative submission relates to the harshness of sentence. The occurrence took place nearly seven years back. It is stated that the appellant has suffered custody for more than six months. Taking into account all these aspects, we feel interest of justice would be best served if the sentence is reduced to the period undergone, while maintaining the conviction. It is to be noted that the minimum sentence prescribed under Section 7(2) of the Act is six months.10.
### Response:
0
### Explanation:
7. It is to be noted that both the trial Court and the High Court have analysed the evidence in great detail and have found that the appellant had demanded and accepted a sum of Rs.200/- from the complainant for allowing the luxury bus to go to the destination. The tainted currency notes were recovered from the appellant. The test of anthrecene powder was carried out of the hands of the raiding party under ultra violet lamp but no marks of anthracene powder was found. Similar test was carried out on the hands of the complainant. On the accused-appellants trouser presence of anthracene powder was noticed. It has also been established that the numbers of the currency notes were matched with the denominations mentioned in the pre-trap panchnama.8. Looked at from these angles, it cannot be said that the conclusions of, either the trial Court or the High Court, suffer from any infirmity.9. The alternative submission relates to the harshness of sentence. The occurrence took place nearly seven years back. It is stated that the appellant has suffered custody for more than six months. Taking into account all these aspects, we feel interest of justice would be best served if the sentence is reduced to the period undergone, while maintaining the conviction. It is to be noted that the minimum sentence prescribed under Section 7(2) of the Act is six months.
|
Indian Relief Bank Limited Vs. P.K. Thomas | these entries. The facts upon which the trial court reached this conclusion are these. These debit entries had been made on December 29, 1951 when the defendant was the Managing Director of the Bank and he admitted, deposing as DW 1, that he used to go to the various branches of the Bank three or four times every year to inspect the accounts. The entries showed that the debits were made according to the instructions of the auditors. The accounts of the Bank used to be audited every year and the balance-sheet was prepared every year under the direct supervision and guidance of the Managing Director on the basis of the auditors report. The balance-sheet of 1951 was prepared prior to the defendants service as Managing Director was terminated. On a consideration of these facts the trial court held that it was "impossible to believe that the that the defendant was not aware of these three disputed entries". The following circumstances also weighed with the trial court in rejecting the defendants case that the debit entries were made on December 29, 1951 without his knowledge. The defendant was admittedly present when the Directors of the Bank met on October 7, 1952 and passed a resolution to the effect that the account in the name of Kora Thomas should be transferred to the account in the name of P.K. Thomas. A few days later, on October 13, 1952, the defendant sent two signed blank cheques with a covering letter (Ex. P-20) to Krishnamoorthy (PW 1) who was the agent of the Bank at Quilon. After the cheques were received, one of them (Ex. P-21) was filled in by PW 1 and the sum drawn was Rs. 47, 228-1-1. The trial court accepted the evidence of PW 1 that the cheques were not signed on the reverse when he received them. On October 16, 1952 the Bank wrote to the defendant : ".... we have closed Kora Thomas account and debited Mr. P.K. Thomas for the entire sum of Rs. 47, 042-7-7 together with interest accrued till date amounting to Rs. 47, 228-1-1. Your cheque No. 13765 is drawn for Rs. 47, 228-1-1 in favour of Kora Thomas and credited to Mr. Kora Thomas account as a transfer entry. As you have not signed on the reverse of the cheque we could not treat it as a cash entry." The trial court also accepted the case of the plaintiff that the defendant was present in Quilon on the day the letter was addressed to him and that he came and signed on the back of the cheque the same day. In these circumstances, it was held, the defendant could not dispute that the sum of Rs. 47, 228-1-1 was validly debited in his account in the name of P.K. Thomas. The trial court found on evidence that the debit entries had been made with the full knowledge and consent of the defendant and that his subsequent conduct also showed that he acquiesced in these entries being made. Clearly, therefore, the further finding recorded by the trial court that the debit entries were unauthorised but the defendant was estopped from challenging them, was not only inconsistent and unnecessary but also wrong. 4. The High Court on appeal preferred by the defendant held that the defendant was not liable for the sum decreed against him and that the amount due from him was only Rs. 1622-0-11. In reaching this conclusion however the High Court did not advert to the evidence relied on by the trial court and proceeded on certain assumptions of fact unsupported by the evidence on record. The High Court accepted the finding of the trial court that the debit entries were unauthorised but did not agree that the defendant was estopped from questioning the validity of these entries. The High Court held that there was "nothing to invest the appellant with the knowledge of these entries at any time" without considering the evidence upon which the trial court had found that the entries had been made with the defendants knowledge and consent. We have already pointed out that on the evidence found acceptable by the trial court, the entries could not be called unauthorised and no question of estoppel therefore arises in this case. The fact that the defendant had signed the proceedings of the meeting of the three-men committee in Madras on October 7, 1952 (Ex. P-53) was taken by the trial court as evidence of the defendants acceptance of the liability. The genuineness of the signature is not denied but according to the High Court this only indicated that the defendant was present at the meeting and did not further imply that he accepted the correctness of the sum found by the committee as due from him. The proceedings of the meeting however contain nothing to suggest that the defendant had asserted that he did not accept the liability. The trial court further found that the defendant signed on the back of the cheque (Ex. P-21) after the cheque had been drawn for Rs. 47, 228-1-1 which, according to the trial court, proved defendants knowledge and also his acceptance of the liability. The High Court set aside this finding on the assumption that PW 1 had admitted that "the name on the back of Ex. P-21 was written even when Ex. P-21 was received by the Bank". This is incorrect and quite contrary to what PW 1 had stated; we have earlier referred to his deposition on the point. for the appellant contended that this Court should not upset the findings of fact arrived at by the High Court. We have pointed out that these findings are not based on evidence. The findings of the trial court on the basic issues in the case were upset by the High Court not because on the evidence on record it took a different view, but on the incorrect reading of the evidence and without considering the relevant evidence on these issues. | 1[ds]4. The High Court on appeal preferred by the defendant held that the defendant was not liable for the sum decreed against him and that the amount due from him was only Rs.. In reaching this conclusion however the High Court did not advert to the evidence relied on by the trial court and proceeded on certain assumptions of fact unsupported by the evidence on record. The High Court accepted the finding of the trial court that the debit entries were unauthorised but did not agree that the defendant was estopped from questioning the validity of these entries. The High Court held that there was "nothing to invest the appellant with the knowledge of these entries at any time" without considering the evidence upon which the trial court had found that the entries had been made with the defendants knowledge and consent. We have already pointed out that on the evidence found acceptable by the trial court, the entries could not be called unauthorised and no question of estoppel therefore arises in this case. The fact that the defendant had signed the proceedings of the meeting of then committee in Madras on October 7, 1952 (Ex.) was taken by the trial court as evidence of the defendants acceptance of the liability. The genuineness of the signature is not denied but according to the High Court this only indicated that the defendant was present at the meeting and did not further imply that he accepted the correctness of the sum found by the committee as due from him. The proceedings of the meeting however contain nothing to suggest that the defendant had asserted that he did not accept the liability. The trial court further found that the defendant signed on the back of the cheque (Ex.) after the cheque had been drawn for Rs. 47,1 which, according to the trial court, proved defendants knowledge and also his acceptance of the liability. The High Court set aside this finding on the assumption that PW 1 had admitted that "the name on the back of Ex.1 was written even when Ex.1 was received by the Bank". This is incorrect and quite contrary to what PW 1 had stated; we have earlier referred to his deposition on the point. for the appellant contended that this Court should not upset the findings of fact arrived at by the High Court. We have pointed out that these findings are not based on evidence. The findings of the trial court on the basic issues in the case were upset by the High Court not because on the evidence on record it took a different view, but on the incorrect reading of the evidence and without considering the relevant evidence on these issues. | 1 | 1,836 | 491 | ### 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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these entries. The facts upon which the trial court reached this conclusion are these. These debit entries had been made on December 29, 1951 when the defendant was the Managing Director of the Bank and he admitted, deposing as DW 1, that he used to go to the various branches of the Bank three or four times every year to inspect the accounts. The entries showed that the debits were made according to the instructions of the auditors. The accounts of the Bank used to be audited every year and the balance-sheet was prepared every year under the direct supervision and guidance of the Managing Director on the basis of the auditors report. The balance-sheet of 1951 was prepared prior to the defendants service as Managing Director was terminated. On a consideration of these facts the trial court held that it was "impossible to believe that the that the defendant was not aware of these three disputed entries". The following circumstances also weighed with the trial court in rejecting the defendants case that the debit entries were made on December 29, 1951 without his knowledge. The defendant was admittedly present when the Directors of the Bank met on October 7, 1952 and passed a resolution to the effect that the account in the name of Kora Thomas should be transferred to the account in the name of P.K. Thomas. A few days later, on October 13, 1952, the defendant sent two signed blank cheques with a covering letter (Ex. P-20) to Krishnamoorthy (PW 1) who was the agent of the Bank at Quilon. After the cheques were received, one of them (Ex. P-21) was filled in by PW 1 and the sum drawn was Rs. 47, 228-1-1. The trial court accepted the evidence of PW 1 that the cheques were not signed on the reverse when he received them. On October 16, 1952 the Bank wrote to the defendant : ".... we have closed Kora Thomas account and debited Mr. P.K. Thomas for the entire sum of Rs. 47, 042-7-7 together with interest accrued till date amounting to Rs. 47, 228-1-1. Your cheque No. 13765 is drawn for Rs. 47, 228-1-1 in favour of Kora Thomas and credited to Mr. Kora Thomas account as a transfer entry. As you have not signed on the reverse of the cheque we could not treat it as a cash entry." The trial court also accepted the case of the plaintiff that the defendant was present in Quilon on the day the letter was addressed to him and that he came and signed on the back of the cheque the same day. In these circumstances, it was held, the defendant could not dispute that the sum of Rs. 47, 228-1-1 was validly debited in his account in the name of P.K. Thomas. The trial court found on evidence that the debit entries had been made with the full knowledge and consent of the defendant and that his subsequent conduct also showed that he acquiesced in these entries being made. Clearly, therefore, the further finding recorded by the trial court that the debit entries were unauthorised but the defendant was estopped from challenging them, was not only inconsistent and unnecessary but also wrong. 4. The High Court on appeal preferred by the defendant held that the defendant was not liable for the sum decreed against him and that the amount due from him was only Rs. 1622-0-11. In reaching this conclusion however the High Court did not advert to the evidence relied on by the trial court and proceeded on certain assumptions of fact unsupported by the evidence on record. The High Court accepted the finding of the trial court that the debit entries were unauthorised but did not agree that the defendant was estopped from questioning the validity of these entries. The High Court held that there was "nothing to invest the appellant with the knowledge of these entries at any time" without considering the evidence upon which the trial court had found that the entries had been made with the defendants knowledge and consent. We have already pointed out that on the evidence found acceptable by the trial court, the entries could not be called unauthorised and no question of estoppel therefore arises in this case. The fact that the defendant had signed the proceedings of the meeting of the three-men committee in Madras on October 7, 1952 (Ex. P-53) was taken by the trial court as evidence of the defendants acceptance of the liability. The genuineness of the signature is not denied but according to the High Court this only indicated that the defendant was present at the meeting and did not further imply that he accepted the correctness of the sum found by the committee as due from him. The proceedings of the meeting however contain nothing to suggest that the defendant had asserted that he did not accept the liability. The trial court further found that the defendant signed on the back of the cheque (Ex. P-21) after the cheque had been drawn for Rs. 47, 228-1-1 which, according to the trial court, proved defendants knowledge and also his acceptance of the liability. The High Court set aside this finding on the assumption that PW 1 had admitted that "the name on the back of Ex. P-21 was written even when Ex. P-21 was received by the Bank". This is incorrect and quite contrary to what PW 1 had stated; we have earlier referred to his deposition on the point. for the appellant contended that this Court should not upset the findings of fact arrived at by the High Court. We have pointed out that these findings are not based on evidence. The findings of the trial court on the basic issues in the case were upset by the High Court not because on the evidence on record it took a different view, but on the incorrect reading of the evidence and without considering the relevant evidence on these issues.
### Response:
1
### Explanation:
4. The High Court on appeal preferred by the defendant held that the defendant was not liable for the sum decreed against him and that the amount due from him was only Rs.. In reaching this conclusion however the High Court did not advert to the evidence relied on by the trial court and proceeded on certain assumptions of fact unsupported by the evidence on record. The High Court accepted the finding of the trial court that the debit entries were unauthorised but did not agree that the defendant was estopped from questioning the validity of these entries. The High Court held that there was "nothing to invest the appellant with the knowledge of these entries at any time" without considering the evidence upon which the trial court had found that the entries had been made with the defendants knowledge and consent. We have already pointed out that on the evidence found acceptable by the trial court, the entries could not be called unauthorised and no question of estoppel therefore arises in this case. The fact that the defendant had signed the proceedings of the meeting of then committee in Madras on October 7, 1952 (Ex.) was taken by the trial court as evidence of the defendants acceptance of the liability. The genuineness of the signature is not denied but according to the High Court this only indicated that the defendant was present at the meeting and did not further imply that he accepted the correctness of the sum found by the committee as due from him. The proceedings of the meeting however contain nothing to suggest that the defendant had asserted that he did not accept the liability. The trial court further found that the defendant signed on the back of the cheque (Ex.) after the cheque had been drawn for Rs. 47,1 which, according to the trial court, proved defendants knowledge and also his acceptance of the liability. The High Court set aside this finding on the assumption that PW 1 had admitted that "the name on the back of Ex.1 was written even when Ex.1 was received by the Bank". This is incorrect and quite contrary to what PW 1 had stated; we have earlier referred to his deposition on the point. for the appellant contended that this Court should not upset the findings of fact arrived at by the High Court. We have pointed out that these findings are not based on evidence. The findings of the trial court on the basic issues in the case were upset by the High Court not because on the evidence on record it took a different view, but on the incorrect reading of the evidence and without considering the relevant evidence on these issues.
|
Paradise Industrial Corpn Bombay Vs. Kiln Plastics Products | as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify."5. The learned Judge of the Small Causes Court used the words "defences to be struck of and did not use the words "he shall not be entitled to appear in or defend the suit except with leave of the Court, which l eave may be granted subject to such terms and conditions as the Court may specify". We are afraid the learned Judge of the High Court has missed the substance and chased the shadow. The words "sticking out the defence" are very commonly used by lawyers. Indeed the application made on 24th February 1969 by the plaintiffs was for a direction. to order the defences of the defendants to be struck off in default of the non-payment of the amount ordered by the Court. The phrase "defence struck off" or "defence struck but" is not unknown in the sphere of law Indeed it finds a place in order XI, rule 21 of the Code of Civil Procedure:"21. Where any party fails to comply with any order to answer interrogatories, or for discovery of inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an. Order to that effect, and an order may be made accordingly."6. In effect, both mean the same thing. Nobody could have misunderstood what was meant. Indeed, one may even say that the phrase `the defence to be struck off" or "struck out" is more advantageous from the point of view of the defendants. Even when a defence is struck off t he defendant is entitled to appear, cross-examine the plaintiffs witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him, whereas if it is ordered in accordance with s. 11 (4) that he shall not be entitled to appear in or defend the suit except with the leave of the Court he is placed at a greater disadvantage. The use of the words defence struck off does not in any way affect the substance of the order and the learned Judge of the High Court was wholly in error in holding that because of the form of the order passed on June 2, 1960 the order was illegal and without jurisdiction. The order squarely falls within s. 11(4). What the law contemplates is not adoption or use of a formula it looks at the substance. The order is not therefore one without jurisdiction. It is one which the Judge was competent to make. Be it noted that the learned Judge does not hold that the amount ordered to deposited b y the defendants by the order dated June 2, 1969 was wrong or that it could not have been ordered at all. That order also fired the interim standard rent as contemplated by that section. That section itself con templates that the Court may order t he deposit of such amount of the rent as the Court considers to be reasonably due to the landlord. Therefore, the order dated June 2, 1969 could not be held to be invalid on any ground whatsoever; nor has it been held to be illegal any ground other than that the words used were not the proper ones. It is to be further noted that the order itself did not order the defenes be struck off, it only fixed the 15th July 1969 as the date for striking out the defences and to fix the suit for ex-part hearing. So, till the expiry of a month given by that order for the deposit of money the question of striking out the defence did not arise nor was it in fact struck out. On the date fixed for striking out defences and fixing the date, for ex-parte hearing the defendants did not appear nor did they appear on the 5th and 6th of August when the suit was fixed for hearing. Though they were permitted to deposit Rs. 7, 000/- on their application dated 4th August 1969 they did not take any further steps and so the notice was dismissed. The deposit of Rs. 7, 000/- does not make any difference to the decision in this case because it was allowed to be deposited without prejudice to the rights and contentions of the parties. The defendants did not even apply for setting aside the ex-parte decree giving proper reasons for their non-appearance on the 5th and 6th August. They went on appeal against the ex-parte decree. The Appellate Bench of the Small Causes Court could have decided the appeal only on the basis of the material before it and the learned Judge of the High Court did not rely upon any material whatsoever except the form of the order made on the 2nd June 1969 for not merely setting aside the decree but even dismissing the suit itself. The deposit of the money after the ex-parte decree was passed was wholly irrelevant in considering whether the ex-parte decree passed was a proper one and much more so whether the suit itself could be dismissed.We are unable to understand how the learned Judge found it possible to bring the case within the provisions of s. 12(3) of the Act. The tenants did not pay either on the 1st day of the hearing of the suit or on or before the date the Court fixed. Indeed on proper construction of law it is s. 11(4) that will apply. Section 12(3)(b) does not deal with a case like the present.7. | 1[ds]As far as we are able to see the only reas on which persuaded the learned Judge to come to this extraordinary conclusion was that under s.11(4) of the Act the only order that could be passed was an order directing, after fixing the interim standard rent to be deposited within a particular time, that if the tenant fails to comply with any order made as aforesaid, within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify, and the section did not authorise the Court to strike of the Defencesuse of the words defence struck off does not in any way affect the substance of the order and the learned Judge of the High Court was wholly in error in holding that because of the form of the order passed on June 2, 1960 the order was illegal and without jurisdiction. The order squarely falls within s. 11(4). What the law contemplates is not adoption or use of a formula it looks at the substance. The order is not therefore one without jurisdiction. It is one which the Judge was competent to make. Be it noted that the learned Judge does not hold that the amount ordered to deposited b y the defendants by the order dated June 2, 1969 was wrong or that it could not have been ordered at all. That order also fired the interim standard rent as contemplated by that section. That section itself con templates that the Court may order t he deposit of such amount of the rent as the Court considers to be reasonably due to the landlord. Therefore, the order dated June 2, 1969 could not be held to be invalid on any ground whatsoever; nor has it been held to be illegal any ground other than that the words used were not the proper ones. It is to be further noted that the order itself did not order the defenes be struck off, it only fixed the 15th July 1969 as the date for striking out the defences and to fix the suit for ex-part hearing. So, till the expiry of a month given by that order for the deposit of money the question of striking out the defence did not arise nor was it in fact struck out. On the date fixed for striking out defences and fixing the date, for ex-parte hearing the defendants did not appear nor did they appear on the 5th and 6th of August when the suit was fixed for hearing. Though they were permitted to deposit Rs. 7, 000/- on their application dated 4th August 1969 they did not take any further steps and so the notice was dismissed. The deposit of Rs. 7, 000/- does not make any difference to the decision in this case because it was allowed to be deposited without prejudice to the rights and contentions of the parties. The defendants did not even apply for setting aside the ex-parte decree giving proper reasons for their non-appearance on the 5th and 6th August. They went on appeal against the ex-parte decree. The Appellate Bench of the Small Causes Court could have decided the appeal only on the basis of the material before it and the learned Judge of the High Court did not rely upon any material whatsoever except the form of the order made on the 2nd June 1969 for not merely setting aside the decree but even dismissing the suit itself. The deposit of the money after the ex-parte decree was passed was wholly irrelevant in considering whether the ex-parte decree passed was a proper one and much more so whether the suit itself could be dismissed.We are unable to understand how the learned Judge found it possible to bring the case within the provisions of s. 12(3) of the Act. The tenants did not pay either on the 1st day of the hearing of the suit or on or before the date the Court fixed. Indeed on proper construction of law it is s. 11(4) that will apply. Section 12(3)(b) does not deal with a case like the present. | 1 | 2,387 | 776 | ### 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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as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify."5. The learned Judge of the Small Causes Court used the words "defences to be struck of and did not use the words "he shall not be entitled to appear in or defend the suit except with leave of the Court, which l eave may be granted subject to such terms and conditions as the Court may specify". We are afraid the learned Judge of the High Court has missed the substance and chased the shadow. The words "sticking out the defence" are very commonly used by lawyers. Indeed the application made on 24th February 1969 by the plaintiffs was for a direction. to order the defences of the defendants to be struck off in default of the non-payment of the amount ordered by the Court. The phrase "defence struck off" or "defence struck but" is not unknown in the sphere of law Indeed it finds a place in order XI, rule 21 of the Code of Civil Procedure:"21. Where any party fails to comply with any order to answer interrogatories, or for discovery of inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an. Order to that effect, and an order may be made accordingly."6. In effect, both mean the same thing. Nobody could have misunderstood what was meant. Indeed, one may even say that the phrase `the defence to be struck off" or "struck out" is more advantageous from the point of view of the defendants. Even when a defence is struck off t he defendant is entitled to appear, cross-examine the plaintiffs witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him, whereas if it is ordered in accordance with s. 11 (4) that he shall not be entitled to appear in or defend the suit except with the leave of the Court he is placed at a greater disadvantage. The use of the words defence struck off does not in any way affect the substance of the order and the learned Judge of the High Court was wholly in error in holding that because of the form of the order passed on June 2, 1960 the order was illegal and without jurisdiction. The order squarely falls within s. 11(4). What the law contemplates is not adoption or use of a formula it looks at the substance. The order is not therefore one without jurisdiction. It is one which the Judge was competent to make. Be it noted that the learned Judge does not hold that the amount ordered to deposited b y the defendants by the order dated June 2, 1969 was wrong or that it could not have been ordered at all. That order also fired the interim standard rent as contemplated by that section. That section itself con templates that the Court may order t he deposit of such amount of the rent as the Court considers to be reasonably due to the landlord. Therefore, the order dated June 2, 1969 could not be held to be invalid on any ground whatsoever; nor has it been held to be illegal any ground other than that the words used were not the proper ones. It is to be further noted that the order itself did not order the defenes be struck off, it only fixed the 15th July 1969 as the date for striking out the defences and to fix the suit for ex-part hearing. So, till the expiry of a month given by that order for the deposit of money the question of striking out the defence did not arise nor was it in fact struck out. On the date fixed for striking out defences and fixing the date, for ex-parte hearing the defendants did not appear nor did they appear on the 5th and 6th of August when the suit was fixed for hearing. Though they were permitted to deposit Rs. 7, 000/- on their application dated 4th August 1969 they did not take any further steps and so the notice was dismissed. The deposit of Rs. 7, 000/- does not make any difference to the decision in this case because it was allowed to be deposited without prejudice to the rights and contentions of the parties. The defendants did not even apply for setting aside the ex-parte decree giving proper reasons for their non-appearance on the 5th and 6th August. They went on appeal against the ex-parte decree. The Appellate Bench of the Small Causes Court could have decided the appeal only on the basis of the material before it and the learned Judge of the High Court did not rely upon any material whatsoever except the form of the order made on the 2nd June 1969 for not merely setting aside the decree but even dismissing the suit itself. The deposit of the money after the ex-parte decree was passed was wholly irrelevant in considering whether the ex-parte decree passed was a proper one and much more so whether the suit itself could be dismissed.We are unable to understand how the learned Judge found it possible to bring the case within the provisions of s. 12(3) of the Act. The tenants did not pay either on the 1st day of the hearing of the suit or on or before the date the Court fixed. Indeed on proper construction of law it is s. 11(4) that will apply. Section 12(3)(b) does not deal with a case like the present.7.
### Response:
1
### Explanation:
As far as we are able to see the only reas on which persuaded the learned Judge to come to this extraordinary conclusion was that under s.11(4) of the Act the only order that could be passed was an order directing, after fixing the interim standard rent to be deposited within a particular time, that if the tenant fails to comply with any order made as aforesaid, within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify, and the section did not authorise the Court to strike of the Defencesuse of the words defence struck off does not in any way affect the substance of the order and the learned Judge of the High Court was wholly in error in holding that because of the form of the order passed on June 2, 1960 the order was illegal and without jurisdiction. The order squarely falls within s. 11(4). What the law contemplates is not adoption or use of a formula it looks at the substance. The order is not therefore one without jurisdiction. It is one which the Judge was competent to make. Be it noted that the learned Judge does not hold that the amount ordered to deposited b y the defendants by the order dated June 2, 1969 was wrong or that it could not have been ordered at all. That order also fired the interim standard rent as contemplated by that section. That section itself con templates that the Court may order t he deposit of such amount of the rent as the Court considers to be reasonably due to the landlord. Therefore, the order dated June 2, 1969 could not be held to be invalid on any ground whatsoever; nor has it been held to be illegal any ground other than that the words used were not the proper ones. It is to be further noted that the order itself did not order the defenes be struck off, it only fixed the 15th July 1969 as the date for striking out the defences and to fix the suit for ex-part hearing. So, till the expiry of a month given by that order for the deposit of money the question of striking out the defence did not arise nor was it in fact struck out. On the date fixed for striking out defences and fixing the date, for ex-parte hearing the defendants did not appear nor did they appear on the 5th and 6th of August when the suit was fixed for hearing. Though they were permitted to deposit Rs. 7, 000/- on their application dated 4th August 1969 they did not take any further steps and so the notice was dismissed. The deposit of Rs. 7, 000/- does not make any difference to the decision in this case because it was allowed to be deposited without prejudice to the rights and contentions of the parties. The defendants did not even apply for setting aside the ex-parte decree giving proper reasons for their non-appearance on the 5th and 6th August. They went on appeal against the ex-parte decree. The Appellate Bench of the Small Causes Court could have decided the appeal only on the basis of the material before it and the learned Judge of the High Court did not rely upon any material whatsoever except the form of the order made on the 2nd June 1969 for not merely setting aside the decree but even dismissing the suit itself. The deposit of the money after the ex-parte decree was passed was wholly irrelevant in considering whether the ex-parte decree passed was a proper one and much more so whether the suit itself could be dismissed.We are unable to understand how the learned Judge found it possible to bring the case within the provisions of s. 12(3) of the Act. The tenants did not pay either on the 1st day of the hearing of the suit or on or before the date the Court fixed. Indeed on proper construction of law it is s. 11(4) that will apply. Section 12(3)(b) does not deal with a case like the present.
|
National Insurance Company Limited Vs. Gonti Eiiza David & Others | the policy read with the first proviso to sub-section (1) of section 95 of Motor Vehicles Act, the liability of the Insurer will be limited to that arising under the Workmans Compensation Act, 1923. As the workman was drawing monthly wages of Rs. 300/- so, the argument proceeds, the maximum that the third party can recover from him, if recovery be at all ordered, will be the amount of Rs. 18,000/- in view of Schedule IV to the Workmens Compensation Act.8. The first proviso to sub-section (1) of section 95 of Motor Vehicles Act reads :Provided that a policy shall not be required :---(i) to cover liability in respect of the death arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee---(a) engaged in driving the vehicle, or(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets in the vehicles, or(c) if it is a goods vehicle, being carried in the vehicle.9. Clause (b) of the proviso of Article 1 of section II of the Policy Document reads :Except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939 the Insurer shall not be liable in respect of death of or bodily injury to the person in the employment of the insured arising out of and in the course of such employment.10. The learned Counsel for the Insurer relies on (Venkataramma and another v. Abdul Munaf Sahib and others)3, 1971 A.C.J. 77 which has been followed in the (Orissa Co-operative Insurance Society Ltd. v. Sarat Chandra Champati and another)4, 1975 A.C.J. 196, the (General Assurance Society Ltd. v. Jaya Lakshmi Ammal and others)5, 1975 A.C.J. 159 and (New India Assurance Co. Ltd., Anantapur v. Kamaparaju Sunkamma and others)6, 1981 A.C.J. 441, in support of his proposition. On the other hand, the learned Counsel for the opponents placed reliance on (Oriental Fire &General Insurance Company Ltd. and another v. Ram Sunder Dubey and others)7, A.I.R. 1982 Allahabad 198, which is a judgment of a Division Bench to traverse the argument.11. Sub-section (2) of section 95 of the Motor Vehicles Act reads : "(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely :---a) Where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmens Compensation Act, 1923 in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle.12. The cleavage of judicial opinion in this regard can be attributed to the difficulty in co-relating the language of the proviso to sub-section (1) of section 95 with that in sub-section (2) of that section. The former seems to tell the insurer and the owner : "as regards third party risks, it will be enough compliance of the statute, if you take out a policy which will cover the liability under the Workmens Compensation Act." Sub-section (2) on the other hand gives a confusing mandate : "there is an outer limit of one lac of rupees (sic) as respects the liability incurred as a result of an accident but that liability will include a liability arising under the Workmens Compensation Act also. The use of an inclusive definition in drafting sub-section (2) seems to suggest that the liability incurred in respect of an accident would embrace not only the one arising under the Workmens Compensation Act but also something more. Needless to say, that other species of liability would be the one arising under common law of tort.13. The only way to resolve the ambiguity would be as pointed out by the Supreme Court in (Motor Owner Insurance Co. Ltd. v. Jadavji Keshavji Modi and others)8, 1981 A.C.J. 507 to apply the touch stone that the purpose of law is to alleviate, not augment the sufferings of the people. Undoubtedly, an aggrieved employee is entitled under section 110-AA of Motor Vehicles Act to exercise his option regarding the forums which he can approach to prefer his claim for compensation. The factors to be taken into consideration in deciding his claim under the two Acts would be different. A Tribunal would apply the principles of strict liability circumscribed by the Workmens Compensation Act while, if the aggrieved chooses to move the Motor Vehicles Tribunal, it would go by the principles of tort in determining his case. The quantum of compensation under the Workmens Compensation Act is gratified in the schedule itself. But the quantum of damages under common law of tort is subject to determination by the Tribunal on the basis of well-settled principles. The Workmens Compensation Act offers no leeway in the matter of quantification of damages the process becomes mechanical once the pay packet of the claimant is known. The proof of damages in a common law action before a Tribunal which is generally presided over by a Senior Judicial Officer may throw open a number of issue the burden of proving which would lie on the claimant. In this option of forum shopping-if the workman has chosen to undertake the responsibility of discharching the onerous burden imposed upon him by tort law, it follows that he should get the benefit of the expression including the liabilities, if any, arising under the Workmens Compensation Act, 1923 occurring in Clause (a) of sub-section (2) of section 95 of Motor Vehicles Act which implies that insurer is liable for common law damages also and not only liabilities arising under the Workmens Compensation Act. | 0[ds]It appears to us that the facts of the N. Palaniswamys case can easily be distinguished from those of the present case. In N. Palaniswamys case the appellants had not even disclosed the name of the driver or the address of the driver, and hence, the Court found that the Insurance Company had no means of verification whether the driver has valid licence or not. In the present case, the Company had made no secret about the identity of the person who was driving the vehicle, and hence, it was obligatory on the part of the Insurer to do their best to ferret the truth from the Company (sic) by asking them to produce the relevant record regarding the qualifications of the driver appointed by them or to serve a set of interrogatories for eliciting the above information. We would not wish to be thought that we expect the Insurer to see through the entire records of the Motor Vehicles Department to prove that the driver of the vehicle did not hold a licence at the time of the accident or at any time before. But the least the Insurer could have done is toor Bhagwan who deposed about the prosecution of the driver for rash driving and bring it on record that the driver is also being prosecuted for driving without a valid licence.5. Not that the Insurers travails would have ended with such an admission from the Policebecause, as the expression had held a licence shows his liability persists to cover the case of a once licensed driver who forgot to renew his licence. A driver wouldremain a driver even though his licence had expired a few days before unless he had been disqualified from obtaining a fresh licence. The legislature in its wisdom has extended an umbrella protection to the victim or those claiming under him even in a case of an unlicensed driver, provided he had held a valid licence some time in his life in the remote past.6. In this view which we are taking, we are fortified by the observations of the Karnataka High Court in (S. Sanjiva Shetty v. Anantha and others)2, A.I.R. 1976 Karnataka 146, which places the onus on the Insurer to establish the allegation that the vehicle was driven by a person not duly licensed.The cleavage of judicial opinion in this regard can be attributed to the difficulty inthe language of the proviso to(1) of section 95 with that in(2) of that section. The former seems to tell the insurer and the owner : "as regards third party risks, it will be enough compliance of the statute, if you take out a policy which will cover the liability under the Workmens Compensation Act."(2) on the other hand gives a confusing mandate : "there is an outer limit of one lac of rupees (sic) as respects the liability incurred as a result of an accident but that liability will include a liability arising under the Workmens Compensation Act also. The use of an inclusive definition in drafting(2) seems to suggest that the liability incurred in respect of an accident would embrace not only the one arising under the Workmens Compensation Act but also something more. Needless to say, that other species of liability would be the one arising under common law of tort.13. The only way to resolve the ambiguity would be as pointed out by the Supreme Court in (Motor Owner Insurance Co. Ltd. v. Jadavji Keshavji Modi and others)8, 1981 A.C.J. 507 to apply the touch stone that the purpose of law is to alleviate, not augment the sufferings of the people. Undoubtedly, an aggrieved employee is entitled under sectionof Motor Vehicles Act to exercise his option regarding the forums which he can approach to prefer his claim for compensation. The factors to be taken into consideration in deciding his claim under the two Acts would be different. A Tribunal would apply the principles of strict liability circumscribed by the Workmens Compensation Act while, if the aggrieved chooses to move the Motor Vehicles Tribunal, it would go by the principles of tort in determining his case. The quantum of compensation under the Workmens Compensation Act is gratified in the schedule itself. But the quantum of damages under common law of tort is subject to determination by the Tribunal on the basis ofprinciples. The Workmens Compensation Act offers no leeway in the matter of quantification of damages the process becomes mechanical once the pay packet of the claimant is known. The proof of damages in a common law action before a Tribunal which is generally presided over by a Senior Judicial Officer may throw open a number of issue the burden of proving which would lie on the claimant. In this option of forumthe workman has chosen to undertake the responsibility of discharching the onerous burden imposed upon him by tort law, it follows that he should get the benefit of the expression including the liabilities, if any, arising under the Workmens Compensation Act, 1923 occurring in Clause (a) of(2) of section 95 of Motor Vehicles Act which implies that insurer is liable for common law damages also and not only liabilities arising under the Workmens Compensation Act. | 0 | 2,083 | 948 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the policy read with the first proviso to sub-section (1) of section 95 of Motor Vehicles Act, the liability of the Insurer will be limited to that arising under the Workmans Compensation Act, 1923. As the workman was drawing monthly wages of Rs. 300/- so, the argument proceeds, the maximum that the third party can recover from him, if recovery be at all ordered, will be the amount of Rs. 18,000/- in view of Schedule IV to the Workmens Compensation Act.8. The first proviso to sub-section (1) of section 95 of Motor Vehicles Act reads :Provided that a policy shall not be required :---(i) to cover liability in respect of the death arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee---(a) engaged in driving the vehicle, or(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets in the vehicles, or(c) if it is a goods vehicle, being carried in the vehicle.9. Clause (b) of the proviso of Article 1 of section II of the Policy Document reads :Except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939 the Insurer shall not be liable in respect of death of or bodily injury to the person in the employment of the insured arising out of and in the course of such employment.10. The learned Counsel for the Insurer relies on (Venkataramma and another v. Abdul Munaf Sahib and others)3, 1971 A.C.J. 77 which has been followed in the (Orissa Co-operative Insurance Society Ltd. v. Sarat Chandra Champati and another)4, 1975 A.C.J. 196, the (General Assurance Society Ltd. v. Jaya Lakshmi Ammal and others)5, 1975 A.C.J. 159 and (New India Assurance Co. Ltd., Anantapur v. Kamaparaju Sunkamma and others)6, 1981 A.C.J. 441, in support of his proposition. On the other hand, the learned Counsel for the opponents placed reliance on (Oriental Fire &General Insurance Company Ltd. and another v. Ram Sunder Dubey and others)7, A.I.R. 1982 Allahabad 198, which is a judgment of a Division Bench to traverse the argument.11. Sub-section (2) of section 95 of the Motor Vehicles Act reads : "(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely :---a) Where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmens Compensation Act, 1923 in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle.12. The cleavage of judicial opinion in this regard can be attributed to the difficulty in co-relating the language of the proviso to sub-section (1) of section 95 with that in sub-section (2) of that section. The former seems to tell the insurer and the owner : "as regards third party risks, it will be enough compliance of the statute, if you take out a policy which will cover the liability under the Workmens Compensation Act." Sub-section (2) on the other hand gives a confusing mandate : "there is an outer limit of one lac of rupees (sic) as respects the liability incurred as a result of an accident but that liability will include a liability arising under the Workmens Compensation Act also. The use of an inclusive definition in drafting sub-section (2) seems to suggest that the liability incurred in respect of an accident would embrace not only the one arising under the Workmens Compensation Act but also something more. Needless to say, that other species of liability would be the one arising under common law of tort.13. The only way to resolve the ambiguity would be as pointed out by the Supreme Court in (Motor Owner Insurance Co. Ltd. v. Jadavji Keshavji Modi and others)8, 1981 A.C.J. 507 to apply the touch stone that the purpose of law is to alleviate, not augment the sufferings of the people. Undoubtedly, an aggrieved employee is entitled under section 110-AA of Motor Vehicles Act to exercise his option regarding the forums which he can approach to prefer his claim for compensation. The factors to be taken into consideration in deciding his claim under the two Acts would be different. A Tribunal would apply the principles of strict liability circumscribed by the Workmens Compensation Act while, if the aggrieved chooses to move the Motor Vehicles Tribunal, it would go by the principles of tort in determining his case. The quantum of compensation under the Workmens Compensation Act is gratified in the schedule itself. But the quantum of damages under common law of tort is subject to determination by the Tribunal on the basis of well-settled principles. The Workmens Compensation Act offers no leeway in the matter of quantification of damages the process becomes mechanical once the pay packet of the claimant is known. The proof of damages in a common law action before a Tribunal which is generally presided over by a Senior Judicial Officer may throw open a number of issue the burden of proving which would lie on the claimant. In this option of forum shopping-if the workman has chosen to undertake the responsibility of discharching the onerous burden imposed upon him by tort law, it follows that he should get the benefit of the expression including the liabilities, if any, arising under the Workmens Compensation Act, 1923 occurring in Clause (a) of sub-section (2) of section 95 of Motor Vehicles Act which implies that insurer is liable for common law damages also and not only liabilities arising under the Workmens Compensation Act.
### Response:
0
### Explanation:
It appears to us that the facts of the N. Palaniswamys case can easily be distinguished from those of the present case. In N. Palaniswamys case the appellants had not even disclosed the name of the driver or the address of the driver, and hence, the Court found that the Insurance Company had no means of verification whether the driver has valid licence or not. In the present case, the Company had made no secret about the identity of the person who was driving the vehicle, and hence, it was obligatory on the part of the Insurer to do their best to ferret the truth from the Company (sic) by asking them to produce the relevant record regarding the qualifications of the driver appointed by them or to serve a set of interrogatories for eliciting the above information. We would not wish to be thought that we expect the Insurer to see through the entire records of the Motor Vehicles Department to prove that the driver of the vehicle did not hold a licence at the time of the accident or at any time before. But the least the Insurer could have done is toor Bhagwan who deposed about the prosecution of the driver for rash driving and bring it on record that the driver is also being prosecuted for driving without a valid licence.5. Not that the Insurers travails would have ended with such an admission from the Policebecause, as the expression had held a licence shows his liability persists to cover the case of a once licensed driver who forgot to renew his licence. A driver wouldremain a driver even though his licence had expired a few days before unless he had been disqualified from obtaining a fresh licence. The legislature in its wisdom has extended an umbrella protection to the victim or those claiming under him even in a case of an unlicensed driver, provided he had held a valid licence some time in his life in the remote past.6. In this view which we are taking, we are fortified by the observations of the Karnataka High Court in (S. Sanjiva Shetty v. Anantha and others)2, A.I.R. 1976 Karnataka 146, which places the onus on the Insurer to establish the allegation that the vehicle was driven by a person not duly licensed.The cleavage of judicial opinion in this regard can be attributed to the difficulty inthe language of the proviso to(1) of section 95 with that in(2) of that section. The former seems to tell the insurer and the owner : "as regards third party risks, it will be enough compliance of the statute, if you take out a policy which will cover the liability under the Workmens Compensation Act."(2) on the other hand gives a confusing mandate : "there is an outer limit of one lac of rupees (sic) as respects the liability incurred as a result of an accident but that liability will include a liability arising under the Workmens Compensation Act also. The use of an inclusive definition in drafting(2) seems to suggest that the liability incurred in respect of an accident would embrace not only the one arising under the Workmens Compensation Act but also something more. Needless to say, that other species of liability would be the one arising under common law of tort.13. The only way to resolve the ambiguity would be as pointed out by the Supreme Court in (Motor Owner Insurance Co. Ltd. v. Jadavji Keshavji Modi and others)8, 1981 A.C.J. 507 to apply the touch stone that the purpose of law is to alleviate, not augment the sufferings of the people. Undoubtedly, an aggrieved employee is entitled under sectionof Motor Vehicles Act to exercise his option regarding the forums which he can approach to prefer his claim for compensation. The factors to be taken into consideration in deciding his claim under the two Acts would be different. A Tribunal would apply the principles of strict liability circumscribed by the Workmens Compensation Act while, if the aggrieved chooses to move the Motor Vehicles Tribunal, it would go by the principles of tort in determining his case. The quantum of compensation under the Workmens Compensation Act is gratified in the schedule itself. But the quantum of damages under common law of tort is subject to determination by the Tribunal on the basis ofprinciples. The Workmens Compensation Act offers no leeway in the matter of quantification of damages the process becomes mechanical once the pay packet of the claimant is known. The proof of damages in a common law action before a Tribunal which is generally presided over by a Senior Judicial Officer may throw open a number of issue the burden of proving which would lie on the claimant. In this option of forumthe workman has chosen to undertake the responsibility of discharching the onerous burden imposed upon him by tort law, it follows that he should get the benefit of the expression including the liabilities, if any, arising under the Workmens Compensation Act, 1923 occurring in Clause (a) of(2) of section 95 of Motor Vehicles Act which implies that insurer is liable for common law damages also and not only liabilities arising under the Workmens Compensation Act.
|
Md. Hanif Vs. The State Of Assam | referred to the decision of this Court in State of Orissa v. Ramchandra(A.I.R. 1964 S.C. 685.). The material facts of that case are not parallel to those of the present case. The question at issue in that case was whether the Maliahs having been granted by the ex-Zamindars by virtue of the office they held under sanads and whether the grant was intended to serve as remuneration for services rendered by them by virtue of the said office. The case of the State of Orissa was that the land was held by the ex-Zamindars on service tenures which were resumable at the will of the grantor. The contention of the ex-Zamindars was that they had proprietary rights in the Maliahs and the State of Orissa had no right to resume the lands granted to them and were not entitled to recover possession from them. It would thus be seen that the main dispute of the parties w*as in regard to the nature of the grant. The distinction between grants of land burdened with service and grants of land made by way of remuneration attaching to the office created by them is well known. In the first category of cases, the grant may not be resumable while in the second category of cases, with the abolition of the office the land can be resumed. The parties in that case were at issue on the question about the character of the grants under which the predecessors of the ex-Zamindars were originally granted the areas in question. The material facts in the present case are quite different. The title of the appellant as lessee under the lease executed by the Secretary of State for India on December 19, 1907 is not disputed and the High Court had, therefore, no justification in dismissing the writ petition of the appellant in limine on the ground that a disputed question of title was involved. It is also not right to contend that the appellant was trying to enforce a mere contractual right by way of a writ petition under Art. 226 of the Constitution. Several important issues of. public law have been raised on behalf of the appellant. In the first place it was argued that the State of Assam had no right to resume the property in dispute under C1. V of the lease dated December 19, 1907 because the right of the British Government in respect of the lease has not devolved on or vested in the State, of Assam under the relevant constitutional provision. It was contended that even on the assumption that the right of the British Government under the lease of 1907 had devolved on the State of Assam the latter could only enforce its rights under the contract of lease and had no power to forcibly turn out the appellant from the property by mere executive action. It was stressed on behalf of the appellant that the Executive authorities can only act in pursuance of the power given to them by law and cannot interfere with the liberty or property of the subject except on condition that they can support the legality of their action before a court of law. It cannot be urged, therefore, that the appellant was merely attempting to enforce a contractual right by taking recourse to the machinery provided by Art. 226 of the Constitution.5. It is true that the jurisdiction of the High Court under Art. 226 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the jurisdiction of the High Court under Art. 226 is a supervisory jurisdiction, a jurisdiction meant to. supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction. In a proceeding under Art. 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object of such a proceeding under Art. 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction. Article 226 states that the High Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. All these writs are known in English law as prerogative writs, the reason being that they are specially associated with the Kings name. These writs were always granted for the protection of public interest and primarily by the Court of the Kings Bench. As a matter of history the Court of the Kings Bench was held to be coram rege ipso and was required to perform quasi-governmental functions. The theory of the English law is that the King himself superintends the due course of justice through his own Court --preventing cases of usurpation of Jurisdiction and insisting on vindication of public rights and protecting the liberty of the subjects by speedy and summary interposition. That is the theory of the English law and as pointed out by this Court in Basappa v. Nagappa([1955] 2 S.C.R. 250.) our Constitution makers have borrowed the conception of prerogative writs from the English law and the essential principles relating to such prerogative writs are applicable in Indian law. It is obvious that the remedy provided under Art. 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law. But as already pointed out the appellant in the present case is not merely attempting to enforce his contractual right but important constitutional issues have been raised on behalf of he appellant.6. | 1[ds]In our opinion there is justification for the argument put forward on behalf of thetitle of the appellant as lessee under the lease executed by the Secretary of State for India on December 19, 1907 is not disputed and the High Court had, therefore, no justification in dismissing the writ petition of the appellant in limine on the ground that a disputed question of title was involved. It is also not right to contend that the appellant was trying to enforce a mere contractual right by way of a writ petition under Art. 226 of the Constitution. Severalimportant issues of. public law have been raised on behalf of thecannot be urged, therefore, that the appellant was merely attempting to enforce a contractual right by taking recourse to the machinery provided by Art. 226 of theis obvious that the remedy provided under Art. 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law. But as already pointed out the appellant in the present case is not merely attempting to enforce his contractual right but important constitutional issues have been raised on behalf of hematerial facts of that case are not parallel to those of the presentmaterial facts in the present case are quite different. Thetitle of the appellant as lessee under the lease executed by the Secretary of State for India on December 19, 1907 is not disputed and the High Court had, therefore, no justification in dismissing the writ petition of the appellant in limine on the ground that a disputed question of title was involved. It is also not right to contend that the appellant was trying to enforce a mere contractual right by way of a writ petition under Art. 226 of thet be urged, therefore, that the appellant was merely attempting to enforce a contractual right by taking recourse to the machinery provided by Art. 226 of theis true that the jurisdiction of the High Court under Art. 226 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the jurisdiction of the High Court under Art. 226 is a supervisory jurisdiction, a jurisdiction meant to. supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction. In a proceeding under Art. 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object of such a proceeding under Art. 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction. Article 226 states that the High Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. All these writs are known in English law as prerogative writs, the reason being that they are specially associated with the Kings name. These writs were always granted for the protection of public interest and primarily by the Court of the Kings Bench. As a matter of history the Court of the Kings Bench was held to be coram rege ipso and was required to performfunctions. The theory of the English law is that the King himself superintends the due course of justice through his owncases of usurpation of Jurisdiction and insisting on vindication of public rights and protecting the liberty of the subjects by speedy and summary interposition. That is the theory of the English law and as pointed out by this Court in Basappa v. Nagappa([1955] 2 S.C.R. 250.) our Constitution makers have borrowed the conception of prerogative writs from the English law and the essential principles relating to such prerogative writs are applicable in Indian law. Itis obvious that the remedy provided under Art. 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law. But as already pointed out the appellant in the present case is not merely attempting to enforce his contractual right but important constitutional issues have been raised on behalf of he | 1 | 2,477 | 825 | ### 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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referred to the decision of this Court in State of Orissa v. Ramchandra(A.I.R. 1964 S.C. 685.). The material facts of that case are not parallel to those of the present case. The question at issue in that case was whether the Maliahs having been granted by the ex-Zamindars by virtue of the office they held under sanads and whether the grant was intended to serve as remuneration for services rendered by them by virtue of the said office. The case of the State of Orissa was that the land was held by the ex-Zamindars on service tenures which were resumable at the will of the grantor. The contention of the ex-Zamindars was that they had proprietary rights in the Maliahs and the State of Orissa had no right to resume the lands granted to them and were not entitled to recover possession from them. It would thus be seen that the main dispute of the parties w*as in regard to the nature of the grant. The distinction between grants of land burdened with service and grants of land made by way of remuneration attaching to the office created by them is well known. In the first category of cases, the grant may not be resumable while in the second category of cases, with the abolition of the office the land can be resumed. The parties in that case were at issue on the question about the character of the grants under which the predecessors of the ex-Zamindars were originally granted the areas in question. The material facts in the present case are quite different. The title of the appellant as lessee under the lease executed by the Secretary of State for India on December 19, 1907 is not disputed and the High Court had, therefore, no justification in dismissing the writ petition of the appellant in limine on the ground that a disputed question of title was involved. It is also not right to contend that the appellant was trying to enforce a mere contractual right by way of a writ petition under Art. 226 of the Constitution. Several important issues of. public law have been raised on behalf of the appellant. In the first place it was argued that the State of Assam had no right to resume the property in dispute under C1. V of the lease dated December 19, 1907 because the right of the British Government in respect of the lease has not devolved on or vested in the State, of Assam under the relevant constitutional provision. It was contended that even on the assumption that the right of the British Government under the lease of 1907 had devolved on the State of Assam the latter could only enforce its rights under the contract of lease and had no power to forcibly turn out the appellant from the property by mere executive action. It was stressed on behalf of the appellant that the Executive authorities can only act in pursuance of the power given to them by law and cannot interfere with the liberty or property of the subject except on condition that they can support the legality of their action before a court of law. It cannot be urged, therefore, that the appellant was merely attempting to enforce a contractual right by taking recourse to the machinery provided by Art. 226 of the Constitution.5. It is true that the jurisdiction of the High Court under Art. 226 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the jurisdiction of the High Court under Art. 226 is a supervisory jurisdiction, a jurisdiction meant to. supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction. In a proceeding under Art. 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object of such a proceeding under Art. 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction. Article 226 states that the High Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. All these writs are known in English law as prerogative writs, the reason being that they are specially associated with the Kings name. These writs were always granted for the protection of public interest and primarily by the Court of the Kings Bench. As a matter of history the Court of the Kings Bench was held to be coram rege ipso and was required to perform quasi-governmental functions. The theory of the English law is that the King himself superintends the due course of justice through his own Court --preventing cases of usurpation of Jurisdiction and insisting on vindication of public rights and protecting the liberty of the subjects by speedy and summary interposition. That is the theory of the English law and as pointed out by this Court in Basappa v. Nagappa([1955] 2 S.C.R. 250.) our Constitution makers have borrowed the conception of prerogative writs from the English law and the essential principles relating to such prerogative writs are applicable in Indian law. It is obvious that the remedy provided under Art. 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law. But as already pointed out the appellant in the present case is not merely attempting to enforce his contractual right but important constitutional issues have been raised on behalf of he appellant.6.
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In our opinion there is justification for the argument put forward on behalf of thetitle of the appellant as lessee under the lease executed by the Secretary of State for India on December 19, 1907 is not disputed and the High Court had, therefore, no justification in dismissing the writ petition of the appellant in limine on the ground that a disputed question of title was involved. It is also not right to contend that the appellant was trying to enforce a mere contractual right by way of a writ petition under Art. 226 of the Constitution. Severalimportant issues of. public law have been raised on behalf of thecannot be urged, therefore, that the appellant was merely attempting to enforce a contractual right by taking recourse to the machinery provided by Art. 226 of theis obvious that the remedy provided under Art. 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law. But as already pointed out the appellant in the present case is not merely attempting to enforce his contractual right but important constitutional issues have been raised on behalf of hematerial facts of that case are not parallel to those of the presentmaterial facts in the present case are quite different. Thetitle of the appellant as lessee under the lease executed by the Secretary of State for India on December 19, 1907 is not disputed and the High Court had, therefore, no justification in dismissing the writ petition of the appellant in limine on the ground that a disputed question of title was involved. It is also not right to contend that the appellant was trying to enforce a mere contractual right by way of a writ petition under Art. 226 of thet be urged, therefore, that the appellant was merely attempting to enforce a contractual right by taking recourse to the machinery provided by Art. 226 of theis true that the jurisdiction of the High Court under Art. 226 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the jurisdiction of the High Court under Art. 226 is a supervisory jurisdiction, a jurisdiction meant to. supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction. In a proceeding under Art. 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object of such a proceeding under Art. 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction. Article 226 states that the High Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. All these writs are known in English law as prerogative writs, the reason being that they are specially associated with the Kings name. These writs were always granted for the protection of public interest and primarily by the Court of the Kings Bench. As a matter of history the Court of the Kings Bench was held to be coram rege ipso and was required to performfunctions. The theory of the English law is that the King himself superintends the due course of justice through his owncases of usurpation of Jurisdiction and insisting on vindication of public rights and protecting the liberty of the subjects by speedy and summary interposition. That is the theory of the English law and as pointed out by this Court in Basappa v. Nagappa([1955] 2 S.C.R. 250.) our Constitution makers have borrowed the conception of prerogative writs from the English law and the essential principles relating to such prerogative writs are applicable in Indian law. Itis obvious that the remedy provided under Art. 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law. But as already pointed out the appellant in the present case is not merely attempting to enforce his contractual right but important constitutional issues have been raised on behalf of he
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DAKSHIN HARYANA BIJLI VITRAN NIGAM LTD Vs. M/S NAVIGANT TECHNOLOGIES PVT. LTD | view was taken by the majority arbitrators which, therefore, could not be interfered with, given the parameters of challenge to arbitral awards. The learned Single Judge also went on to hold that the New Series published by the Ministry could be applied in the case of the appellant as the base indices for 2004-2005 under the New Series were available. Having so held, the learned Single Judge stated that even though the view expressed in the dissenting award is more appealing, and that he preferred that view, yet he found that since the majority award is a possible view, the scope of interference being limited, the Section 34 petition was dismissed. A Section 37 appeal to the Division Bench of the Delhi High Court yielded the same result, by the impugned judgment dated 3-4-2017 [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] This Court set aside the award. However, in paragraph 77 of the Judgment, the Court held as under : 77. The judgments of the Single Judge [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] and of the Division Bench [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking our power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, we uphold the minority award, and state that it is this award, together with interest, that will now be executed between the parties. The minority award, in paras 11 and 12, states as follows: 11. I therefore award the claim of the claimant in full. 12. Costs — no amount is awarded to the parties. Each party shall bear its own cost. In Ssangyong, this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in paragraph 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act. (f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding. Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award. In McDermott International Inc. v. Burn Standard Co. Ltd., this Court held as under : 52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the courts jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it. 5. Applying the law to the facts of the present case, we find from a perusal of the arbitral proceedings that even though the award was pronounced on 27.04.2018, the signed copy of the award was provided to the parties only on 19.05.2018. The procedural orders of the tribunal reveal that on 27.04.2018, only a copy the award was provided to the parties to point out any computation error, any clerical or typographical error, or any other error of similar nature which may have occurred in the award on the next date. It was also recorded that the third arbitrator had dissented, and would be delivering his separate opinion. The proceedings were then posted for 12.05.2018. On 12.05.2018, the third arbitrator pronounced his dissenting opinion. On that date, the tribunal posted the matter to 19.05.2018, to enable the parties to point out any typographical or clerical mistakes in the dissenting opinion, and for handing over the original record of the proceedings to the parties. On 19.05.2018, the signed copy of the award and the dissenting opinion, alongwith the original record, were handed over to the parties, as also to each of the arbitrators. The tribunal ordered the termination of the proceedings 6. We are of the considered opinion that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties i.e. on 19.05.2018 in the instant case. 7. It is the admitted position that the objections were filed within the period of limitation prescribed by Section 34(3) of the Act, if reckoned from 19.05.2018. Undisputedly, in the instant case, the objections have been filed within the period of limitation prescribed under Section 34(3) from the date of receipt of the signed award | 1[ds]The statute recognises only one arbitral award being passed by an arbitral tribunal, which may either be a unanimous award, or an award passed by a majority in the case of a panel of members. An award is a binding decision made by the arbitrator/s on all the issues referred for adjudication. The award contains the reasons assigned by the tribunal on the adjudication of the rights and obligations of the parties arising from the underlying commercial contract. The award must be one which decides all the issues referred for arbitration. The view of a dissenting arbitrator is not an award, but his opinion. However, a party aggrieved by the award, may draw support from the reasoning and findings assigned in the dissenting opinion.Section 35 provides that an arbitral award shall be final and binding on the parties and persons claiming under them. A dissenting opinion does not determine the rights or liabilities of the parties which are enforceable under Section 36 of the Act.(v) The reference to the phrase arbitral award in Sections 34 and 36 refers to the decision of the majority of the members of the arbitral tribunal. A party cannot file a petition u/S. 34 for setting aside, or u/S. 36 for enforcement of a dissenting opinion. What is capable of being set aside u/S. 34 is the arbitral award i.e. the decision reached by the majority of members of the tribunal. Similarly, u/S. 36 what can be enforced is the arbitral award passed by the majority of the members.The statute makes it obligatory for each of the members of the tribunal to sign the award, to make it a valid award. The usage of the term shall makes it a mandatory requirement. It is not merely a ministerial act, or an empty formality which can be dispensed with.(ix) Sub-section (1) of Section 31 read with sub-section (4) makes it clear that the Act contemplates a single date on which the arbitral award is passed i.e. the date on which the signed copy of the award is delivered to the parties. Section 31 (5) enjoins upon the arbitrator / tribunal to provide the signed copy of the arbitral award to the parties. The receipt of a signed copy of the award is the date from which the period of limitation for filing objections u/S. 34 would commence.(x) In Union of India v. Tecco Trichy Engineers & Contractors (2005) 4 SCC 239 . , a three-judge bench of this Court held that the period of limitation for filing an application u/S. 34 would commence only after a valid delivery of the award takes place u/S. 31(5) of the Act. In para 8, it was held as under :8. The delivery of an arbitral award under sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be received by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings.(xi) The judgment in Tecco Trichy Engineers (supra) was followed in State of Maharashtra v. Ark Builders, (2011) 4 SCC 616 wherein this Court held that Section 31(1) obliges the members of the arbitral tribunal to make the award in writing and sign it. The legal requirement under sub-section (5) of Section 31 is the delivery of a copy of the award signed by the members of the arbitral tribunal / arbitrator, and not any copy of the award. On a harmonious construction of Section 31(5) read with Section 34(3), the period of limitation prescribed for filing objections would commence only from the date when the signed copy of the award is delivered to the party making the application for setting aside the award. If the law prescribes that a copy of the award is to be communicated, delivered, despatched, forwarded, rendered, or sent to the parties concerned in a particular way, and since the law sets a period of limitation for challenging the award in question by the aggrieved party, then the period of limitation can only commence from the date on which the award was received by the concerned party in the manner prescribed by law(xii) In State of Himachal Pradesh v Himachal Techno Engineers,this Court held that if one of the parties to the arbitration is Government, or a statutory body, which has notified holidays, and if the award was delivered to a beldar or a watchman on a holiday or non-working day, it cannot be considered to be receipt of the award by the party concerned for the purposes of Section 31(5) of the Act. When the award is delivered, or deposited, or left in the office of a party on a non-working day, the date of physical delivery is not the date of receipt of the award by that party. For the purposes of Section 31(5), the date of receipt will have to be the next working day.(xiii) Section 32 provides that the arbitral proceedings shall be terminated after the final award is passed. With the termination of the arbitral proceedings, the mandate of the arbitral tribunal terminates, and the tribunal becomes functus officio.(xiv) In an arbitral tribunal comprising of a panel of three members, if one of the members gives a dissenting opinion, it must be delivered contemporaneously on the same date as the final award, and not on a subsequent date, as the tribunal becomes functus officio upon the passing of the final award. The period for rendering the award and dissenting opinion must be within the period prescribed by Section 29A of the Act.The period of limitation for filing the objections to the award u/S. 34 commences from the date on which the party making the application has received a signed copy of the arbitral award, as required by Section 31(5) of the 1996 Act.Section 34(3) provides a specific time limit of three months from the date of receipt of the award, and a further period of thirty days, if the Court is satisfied that the party was prevented by sufficient cause from making the application within the said period, but not thereafterIn Union of India v. Popular Construction,(2001) 8 SCC 470 . this Court held that Section 5 of the Limitation Act, 1963 would not apply to applications filed under Section 34 of the Arbitration Act. It was held that :12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase but not thereafter wholly otiose. No principle of interpretation would justify such a result.(xix) If the objections are not filed within the period prescribed by Section 34, the award holder is entitled to move for enforcement of the arbitral award as a deemed decree of the Court u/S. 36 of the Act.This Court in P. Radha Bai v. P. Ashok Kumar,(2019) 13 SCC 445 . held that :32.5. Once the time-limit or extended time-limit for challenging the arbitral award expires, the period for enforcing the award under Section 36 of the Arbitration Act commences. This is evident from the phrase where the time for making an application to set aside the arbitral award under Section 34 has expired. [36. Enforcement.—Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.(emphasis supplied)] There is an integral nexus between the period prescribed under Section 34(3) to challenge the award and the commencement of the enforcement period under Section 36 to execute the award.36.2. Second, extending Section 17 of the Limitation Act to Section 34 would do violence to the scheme of the Arbitration Act. As discussed above, Section 36 enables a party to apply for enforcement of award when the period for challenging an award under Section 34 has expired. However, if Section 17 were to be extended to Section 34, the determination of time for making an application to set aside the arbitral award in Section 36 will become uncertain and create confusion in the enforcement of award. This runs counter to the scheme and object of the Arbitration Act.(a) The dissenting opinion of a minority arbitrator can be relied upon by the party seeking to set aside the award to buttress its submissions in the proceedings under Section 34.(b) At the stage of judicial scrutiny by the Court under Section 34, the Court is not precluded from considering the findings and conclusions of the dissenting opinion of the minority member of the tribunal.(e) In Ssangyong Engineering & Construction Co. Ltd v. NHAI,(2019) 15 SCC 131 this Court upheld the view taken in the dissenting opinion to be the correct position in law. In this case, the Court was hearing a special leave petition from an order passed by a division bench of the Delhi High Court. This Court noted that:12. A Section 34 petition which was filed by the appellant was rejected by the learned Single Judge of the Delhi High Court, by a judgment and order dated 9- 8-2016 [ Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] , in which it was held that a possible view was taken by the majority arbitrators which, therefore, could not be interfered with, given the parameters of challenge to arbitral awards. The learned Single Judge also went on to hold that the New Series published by the Ministry could be applied in the case of the appellant as the base indices for 2004-2005 under the New Series were available. Having so held, the learned Single Judge stated that even though the view expressed in the dissenting award is more appealing, and that he preferred that view, yet he found that since the majority award is a possible view, the scope of interference being limited, the Section 34 petition was dismissed. A Section 37 appeal to the Division Bench of the Delhi High Court yielded the same result, by the impugned judgment dated 3-4-2017 [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711]This Court set aside the award. However, in paragraph 77 of the Judgment, the Court held as under :77. The judgments of the Single Judge [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] and of the Division Bench [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking our power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, we uphold the minority award, and state that it is this award, together with interest, that will now be executed between the parties. The minority award, in paras 11 and 12, states as follows:11. I therefore award the claim of the claimant in full.12. Costs — no amount is awarded to the parties. Each party shall bear its own cost.In Ssangyong, this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in paragraph 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act.(f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding.Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award.In McDermott International Inc. v. Burn Standard Co. Ltd., this Court held as under :52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the courts jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it.5. Applying the law to the facts of the present case, we find from a perusal of the arbitral proceedings that even though the award was pronounced on 27.04.2018, the signed copy of the award was provided to the parties only on 19.05.2018. The procedural orders of the tribunal reveal that on 27.04.2018, only a copythe award was provided to the parties to point out any computation error, any clerical or typographical error, or any other error of similar nature which may have occurred in the award on the next date. It was also recorded that the third arbitrator had dissented, and would be delivering his separate opinion. The proceedings were then posted for 12.05.2018.On 12.05.2018, the third arbitrator pronounced his dissenting opinion. On that date, the tribunal posted the matter to 19.05.2018, to enable the parties to point out any typographical or clerical mistakes in the dissenting opinion, and for handing over the original record of the proceedings to the parties.On 19.05.2018, the signed copy of the award and the dissenting opinion, alongwith the original record, were handed over to the parties, as also to each of the arbitrators. The tribunal ordered the termination of the proceedings6. We are of the considered opinion that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties i.e. on 19.05.2018 in the instant case.7. It is the admitted position that the objections were filed within the period of limitation prescribed by Section 34(3) of the Act, if reckoned from 19.05.2018. Undisputedly, in the instant case, the objections have been filed within the period of limitation prescribed under Section 34(3) from the date of receipt of the signed award | 1 | 8,013 | 3,136 | ### 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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view was taken by the majority arbitrators which, therefore, could not be interfered with, given the parameters of challenge to arbitral awards. The learned Single Judge also went on to hold that the New Series published by the Ministry could be applied in the case of the appellant as the base indices for 2004-2005 under the New Series were available. Having so held, the learned Single Judge stated that even though the view expressed in the dissenting award is more appealing, and that he preferred that view, yet he found that since the majority award is a possible view, the scope of interference being limited, the Section 34 petition was dismissed. A Section 37 appeal to the Division Bench of the Delhi High Court yielded the same result, by the impugned judgment dated 3-4-2017 [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] This Court set aside the award. However, in paragraph 77 of the Judgment, the Court held as under : 77. The judgments of the Single Judge [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] and of the Division Bench [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking our power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, we uphold the minority award, and state that it is this award, together with interest, that will now be executed between the parties. The minority award, in paras 11 and 12, states as follows: 11. I therefore award the claim of the claimant in full. 12. Costs — no amount is awarded to the parties. Each party shall bear its own cost. In Ssangyong, this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in paragraph 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act. (f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding. Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award. In McDermott International Inc. v. Burn Standard Co. Ltd., this Court held as under : 52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the courts jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it. 5. Applying the law to the facts of the present case, we find from a perusal of the arbitral proceedings that even though the award was pronounced on 27.04.2018, the signed copy of the award was provided to the parties only on 19.05.2018. The procedural orders of the tribunal reveal that on 27.04.2018, only a copy the award was provided to the parties to point out any computation error, any clerical or typographical error, or any other error of similar nature which may have occurred in the award on the next date. It was also recorded that the third arbitrator had dissented, and would be delivering his separate opinion. The proceedings were then posted for 12.05.2018. On 12.05.2018, the third arbitrator pronounced his dissenting opinion. On that date, the tribunal posted the matter to 19.05.2018, to enable the parties to point out any typographical or clerical mistakes in the dissenting opinion, and for handing over the original record of the proceedings to the parties. On 19.05.2018, the signed copy of the award and the dissenting opinion, alongwith the original record, were handed over to the parties, as also to each of the arbitrators. The tribunal ordered the termination of the proceedings 6. We are of the considered opinion that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties i.e. on 19.05.2018 in the instant case. 7. It is the admitted position that the objections were filed within the period of limitation prescribed by Section 34(3) of the Act, if reckoned from 19.05.2018. Undisputedly, in the instant case, the objections have been filed within the period of limitation prescribed under Section 34(3) from the date of receipt of the signed award
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NHAI, 2016 SCC OnLine Del 4536] , in which it was held that a possible view was taken by the majority arbitrators which, therefore, could not be interfered with, given the parameters of challenge to arbitral awards. The learned Single Judge also went on to hold that the New Series published by the Ministry could be applied in the case of the appellant as the base indices for 2004-2005 under the New Series were available. Having so held, the learned Single Judge stated that even though the view expressed in the dissenting award is more appealing, and that he preferred that view, yet he found that since the majority award is a possible view, the scope of interference being limited, the Section 34 petition was dismissed. A Section 37 appeal to the Division Bench of the Delhi High Court yielded the same result, by the impugned judgment dated 3-4-2017 [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711]This Court set aside the award. However, in paragraph 77 of the Judgment, the Court held as under :77. The judgments of the Single Judge [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] and of the Division Bench [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking our power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, we uphold the minority award, and state that it is this award, together with interest, that will now be executed between the parties. The minority award, in paras 11 and 12, states as follows:11. I therefore award the claim of the claimant in full.12. Costs — no amount is awarded to the parties. Each party shall bear its own cost.In Ssangyong, this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in paragraph 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act.(f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding.Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award.In McDermott International Inc. v. Burn Standard Co. Ltd., this Court held as under :52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the courts jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it.5. Applying the law to the facts of the present case, we find from a perusal of the arbitral proceedings that even though the award was pronounced on 27.04.2018, the signed copy of the award was provided to the parties only on 19.05.2018. The procedural orders of the tribunal reveal that on 27.04.2018, only a copythe award was provided to the parties to point out any computation error, any clerical or typographical error, or any other error of similar nature which may have occurred in the award on the next date. It was also recorded that the third arbitrator had dissented, and would be delivering his separate opinion. The proceedings were then posted for 12.05.2018.On 12.05.2018, the third arbitrator pronounced his dissenting opinion. On that date, the tribunal posted the matter to 19.05.2018, to enable the parties to point out any typographical or clerical mistakes in the dissenting opinion, and for handing over the original record of the proceedings to the parties.On 19.05.2018, the signed copy of the award and the dissenting opinion, alongwith the original record, were handed over to the parties, as also to each of the arbitrators. The tribunal ordered the termination of the proceedings6. We are of the considered opinion that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties i.e. on 19.05.2018 in the instant case.7. It is the admitted position that the objections were filed within the period of limitation prescribed by Section 34(3) of the Act, if reckoned from 19.05.2018. Undisputedly, in the instant case, the objections have been filed within the period of limitation prescribed under Section 34(3) from the date of receipt of the signed award
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State Of A.P Vs. R. Jeevaratnam | been accepted the presumption automatically arose. This Court cited with approval the observations of a three Judge Bench in the case of Raghubir Singh vs. State of Punjab reported in (1974) 4 SCC 560 that the very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is "res ipsa loquitur". We are in full agreement with the observations made in that Judgment. 6. We now set out briefly the evidence in the matter. P.W. 1, i.e., the Complainant, has deposed about the demand made on 23rd December, 1991 and it being repeated on 30th December, 1991 when the Respondent asked him to pay at least Rs. 10,000/- on 31st December, 1991 in a hotel room in Hotel Apsara. He has deposed that he made a complaint to CBI and that CBI arranged the trap. The Complainant deposed that he had booked the room and he and P.W. 2 went into the Room no. 202. He deposed that on receiving a call from the reception he went and brought the Respondent, who came to Hotel Apsara, to Room No. 202 where P.W. 2 was waiting. He deposed that he introduced P.W. 2 as the Group Financial Manager who had come from Bombay. P.W. 1 deposed that the Respondent then asked whether he had brought the money demanded as a bribe. He deposed that he opened a rexin bag and offered the marked currency amounting to Rs. 10,000/- but that the Respondent asked him to put the money into the briefcase and, therefore, he put the amount into the briefcase. P.W. 1 deposed that thereafter the Respondent took the briefcase and was about to leave the room when he gave the prearranged signal and CBI nabbed the Respondent. In cross- examination this version of P.W. 1 could not be shaken at all. This evidence clearly established demand and acceptance of money.7. This version is supported by the deposition of P.W. 2. P.W. 2 was at that time the Assistant Director of Post Office at Visakhapatnam. He was asked by his superior Officer to go to the CBI Office. He did not know the Complainant or the Respondent. He deposed that P.W. 1, himself and the CBI officers along with marked currency went to Room No. 202 in Hotel Apsara. He deposed that a phone call was received from the reception and P.W. 1 went out and brought the Respondent into the room. He deposed that he was introduced to the Respondent as a Group Finance Manager of the company. He deposed that P.W. 1 mentioned that as agreed earlier money had been brought for payment of the first installment and that the rest of the amount would be paid afterwards. He deposed that P.W. 1 asked the Respondent to clear the file. He deposed that the Respondent thereupon assured P.W. 1 not to worry about the file and that he (the Respondent) would see to it that the file is cleared within one month. P.W. 2 deposed that P.W.1 offered the money to the Respondent, but the Respondent asked him to place the money into his briefcase. He deposed that P.W.1 therefore placed the money into the briefcase and the Respondent then picked up the briefcase and was going out of the room when he was apprehended pursuant to a pre-arranged signal.8. The Respondent was thus caught red-handed with the marked money in a briefcase carried by him. The presumption under Section 20(1) thus arose. The High Court unfortunately overlooks this aspect. 9. Faced with this situation it was submitted by Mr. Anand, on behalf of the Respondent, that the presumption under Section 20 does not arise in a case under Section 13(1)(d) of the Prevention of Corruption Act. He submitted that for an offence under Section 13(1)(d) the demand had also to be proved. In support of his submission he relied upon the case of Subash Parbat Sonvane vs. State of Gujarat reported in (2002) 5 SCC 86. 10. This submission overlooks the fact that the Respondent had been accused of an offence under Section 7 also. His explanation that the money must have been put into his briefcase when he had gone to the bathroom is unbelievable. Both P.Ws. 1 and 2 have denied that the Respondent went to the bathroom. There is no explanation worth its name as to why the Respondent had gone into the hotel room. Even his explanation that he had gone to the hotel to book a table for the night of 31st December is belied by the fact that there is no evidence that any table was booked by the Respondent. Thus it was proved that an offence under Section 7 of the Prevention of Corruption Act had been committed.11. Even otherwise, in our view, the High Court was entirely wrong in coming to a conclusion that there was no proof of demand. The evidence of P.Ws. 1 and 2, to the effect, that when the Respondent came into the room he was told that P.W.2 was the Group Finance Manager, who had brought Rs. 10,000/- as demanded and the further evidence that the Respondent assured that the file would be cleared clearly establish that there was a demand and receipt of the money was as a bribe. On this evidence which has not been shaken in cross- examination, in our view, the offence under Section 13(1)(d) read with Section 13(2) had also been made out. The High Court erred in acquitting the Respondent merely on the basis of conjectures and surmises.12. In this view of the matter, we set aside the Judgment of the High Court and convict the Respondent under Section 7 and Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act. In our view, the ends of justice would be met, by sentencing the accused under both the counts to one years rigorous imprisonment. The fine and default stipulations will be as stipulated by the trial Court. | 1[ds]At this stage, it must be mentioned that on a complaint made by the same Complainant, in respect of another incident, another officer of Visakhapatnam Port Trust had also been prosecuted. In that case also the Trial Court had found the Officer guilty but the High Court had acquitted her. This Court, in its Judgment in the case of State of Andhra Pradesh vs. C. Uma Maheswara Rao reported in (2004) 4 SCC 399 , set aside the Judgment of the High Court and convicted the accused in that case.While so doing, this Court noticed Section 20(1) of the Prevention of Corruption Act which reads asPresumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to beCourt then analyzed the law on subject and held that the term "shall be presumed" in Section 20(1) showed that Courts had to compulsory draw a presumption. It held that the only condition for drawing the presumption is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. It is held that the condition need not be satisfied only through direct evidence. It is held that proof did not mean direct proof as that would be impossible but the proof must be one which would induce a reasonable man to come to a particular conclusion. It was held that once it is proved that gratification has been accepted the presumption automatically arose. This Court cited with approval the observations of a three Judge Bench in the case of Raghubir Singh vs. State of Punjab reported in (1974) 4 SCC 560 that the very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is "res ipsa loquitur". We are in full agreement with the observations made in that Judgment.now set out briefly the evidence in the matter. P.W. 1, i.e., the Complainant, has deposed about the demand made on 23rd December, 1991 and it being repeated on 30th December, 1991 when the Respondent asked him to pay at least Rs. 10,000/- on 31st December, 1991 in a hotel room in Hotel Apsara. He has deposed that he made a complaint to CBI and that CBI arranged the trap. The Complainant deposed that he had booked the room and he and P.W. 2 went into the Room no. 202. He deposed that on receiving a call from the reception he went and brought the Respondent, who came to Hotel Apsara, to Room No. 202 where P.W. 2 was waiting. He deposed that he introduced P.W. 2 as the Group Financial Manager who had come from Bombay. P.W. 1 deposed that the Respondent then asked whether he had brought the money demanded as a bribe. He deposed that he opened a rexin bag and offered the marked currency amounting to Rs. 10,000/- but that the Respondent asked him to put the money into the briefcase and, therefore, he put the amount into the briefcase. P.W. 1 deposed that thereafter the Respondent took the briefcase and was about to leave the room when he gave the prearranged signal and CBI nabbed the Respondent. In cross- examination this version of P.W. 1 could not be shaken at all. This evidence clearly established demand and acceptance of money.7. This version is supported by the deposition of P.W. 2. P.W. 2 was at that time the Assistant Director of Post Office at Visakhapatnam. He was asked by his superior Officer to go to the CBI Office. He did not know the Complainant or the Respondent. He deposed that P.W. 1, himself and the CBI officers along with marked currency went to Room No. 202 in Hotel Apsara. He deposed that a phone call was received from the reception and P.W. 1 went out and brought the Respondent into the room. He deposed that he was introduced to the Respondent as a Group Finance Manager of the company. He deposed that P.W. 1 mentioned that as agreed earlier money had been brought for payment of the first installment and that the rest of the amount would be paid afterwards. He deposed that P.W. 1 asked the Respondent to clear the file. He deposed that the Respondent thereupon assured P.W. 1 not to worry about the file and that he (the Respondent) would see to it that the file is cleared within one month. P.W. 2 deposed that P.W.1 offered the money to the Respondent, but the Respondent asked him to place the money into his briefcase. He deposed that P.W.1 therefore placed the money into the briefcase and the Respondent then picked up the briefcase and was going out of the room when he was apprehended pursuant to a pre-arranged signal.8. The Respondent was thus caught red-handed with the marked money in a briefcase carried by him. The presumption under Section 20(1) thus arose. The High Court unfortunately overlooks this aspect.Faced with this situation it was submitted by Mr. Anand, on behalf of the Respondent, that the presumption under Section 20 does not arise in a case under Section 13(1)(d) of the Prevention of Corruption Act. He submitted that for an offence under Section 13(1)(d) the demand had also to be proved. In support of his submission he relied upon the case of Subash Parbat Sonvane vs. State of Gujarat reported in (2002) 5 SCC 86. This submission overlooks the fact that the Respondent had been accused of an offence under Section 7 also. His explanation that the money must have been put into his briefcase when he had gone to the bathroom is unbelievable. Both P.Ws. 1 and 2 have denied that the Respondent went to the bathroom. There is no explanation worth its name as to why the Respondent had gone into the hotel room. Even his explanation that he had gone to the hotel to book a table for the night of 31st December is belied by the fact that there is no evidence that any table was booked by the Respondent. Thus it was proved that an offence under Section 7 of the Prevention of Corruption Act had been committed.11. Even otherwise, in our view, the High Court was entirely wrong in coming to a conclusion that there was no proof of demand. The evidence of P.Ws. 1 and 2, to the effect, that when the Respondent came into the room he was told that P.W.2 was the Group Finance Manager, who had brought Rs. 10,000/- as demanded and the further evidence that the Respondent assured that the file would be cleared clearly establish that there was a demand and receipt of the money was as a bribe. On this evidence which has not been shaken in cross- examination, in our view, the offence under Section 13(1)(d) read with Section 13(2) had also been made out. The High Court erred in acquitting the Respondent merely on the basis of conjectures and surmises.12. In this view of the matter, we set aside the Judgment of the High Court and convict the Respondent under Section 7 and Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act. In our view, the ends of justice would be met, by sentencing the accused under both the counts to one years rigorous imprisonment. The fine and default stipulations will be as stipulated by the trial Court. | 1 | 2,204 | 1,527 | ### 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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been accepted the presumption automatically arose. This Court cited with approval the observations of a three Judge Bench in the case of Raghubir Singh vs. State of Punjab reported in (1974) 4 SCC 560 that the very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is "res ipsa loquitur". We are in full agreement with the observations made in that Judgment. 6. We now set out briefly the evidence in the matter. P.W. 1, i.e., the Complainant, has deposed about the demand made on 23rd December, 1991 and it being repeated on 30th December, 1991 when the Respondent asked him to pay at least Rs. 10,000/- on 31st December, 1991 in a hotel room in Hotel Apsara. He has deposed that he made a complaint to CBI and that CBI arranged the trap. The Complainant deposed that he had booked the room and he and P.W. 2 went into the Room no. 202. He deposed that on receiving a call from the reception he went and brought the Respondent, who came to Hotel Apsara, to Room No. 202 where P.W. 2 was waiting. He deposed that he introduced P.W. 2 as the Group Financial Manager who had come from Bombay. P.W. 1 deposed that the Respondent then asked whether he had brought the money demanded as a bribe. He deposed that he opened a rexin bag and offered the marked currency amounting to Rs. 10,000/- but that the Respondent asked him to put the money into the briefcase and, therefore, he put the amount into the briefcase. P.W. 1 deposed that thereafter the Respondent took the briefcase and was about to leave the room when he gave the prearranged signal and CBI nabbed the Respondent. In cross- examination this version of P.W. 1 could not be shaken at all. This evidence clearly established demand and acceptance of money.7. This version is supported by the deposition of P.W. 2. P.W. 2 was at that time the Assistant Director of Post Office at Visakhapatnam. He was asked by his superior Officer to go to the CBI Office. He did not know the Complainant or the Respondent. He deposed that P.W. 1, himself and the CBI officers along with marked currency went to Room No. 202 in Hotel Apsara. He deposed that a phone call was received from the reception and P.W. 1 went out and brought the Respondent into the room. He deposed that he was introduced to the Respondent as a Group Finance Manager of the company. He deposed that P.W. 1 mentioned that as agreed earlier money had been brought for payment of the first installment and that the rest of the amount would be paid afterwards. He deposed that P.W. 1 asked the Respondent to clear the file. He deposed that the Respondent thereupon assured P.W. 1 not to worry about the file and that he (the Respondent) would see to it that the file is cleared within one month. P.W. 2 deposed that P.W.1 offered the money to the Respondent, but the Respondent asked him to place the money into his briefcase. He deposed that P.W.1 therefore placed the money into the briefcase and the Respondent then picked up the briefcase and was going out of the room when he was apprehended pursuant to a pre-arranged signal.8. The Respondent was thus caught red-handed with the marked money in a briefcase carried by him. The presumption under Section 20(1) thus arose. The High Court unfortunately overlooks this aspect. 9. Faced with this situation it was submitted by Mr. Anand, on behalf of the Respondent, that the presumption under Section 20 does not arise in a case under Section 13(1)(d) of the Prevention of Corruption Act. He submitted that for an offence under Section 13(1)(d) the demand had also to be proved. In support of his submission he relied upon the case of Subash Parbat Sonvane vs. State of Gujarat reported in (2002) 5 SCC 86. 10. This submission overlooks the fact that the Respondent had been accused of an offence under Section 7 also. His explanation that the money must have been put into his briefcase when he had gone to the bathroom is unbelievable. Both P.Ws. 1 and 2 have denied that the Respondent went to the bathroom. There is no explanation worth its name as to why the Respondent had gone into the hotel room. Even his explanation that he had gone to the hotel to book a table for the night of 31st December is belied by the fact that there is no evidence that any table was booked by the Respondent. Thus it was proved that an offence under Section 7 of the Prevention of Corruption Act had been committed.11. Even otherwise, in our view, the High Court was entirely wrong in coming to a conclusion that there was no proof of demand. The evidence of P.Ws. 1 and 2, to the effect, that when the Respondent came into the room he was told that P.W.2 was the Group Finance Manager, who had brought Rs. 10,000/- as demanded and the further evidence that the Respondent assured that the file would be cleared clearly establish that there was a demand and receipt of the money was as a bribe. On this evidence which has not been shaken in cross- examination, in our view, the offence under Section 13(1)(d) read with Section 13(2) had also been made out. The High Court erred in acquitting the Respondent merely on the basis of conjectures and surmises.12. In this view of the matter, we set aside the Judgment of the High Court and convict the Respondent under Section 7 and Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act. In our view, the ends of justice would be met, by sentencing the accused under both the counts to one years rigorous imprisonment. The fine and default stipulations will be as stipulated by the trial Court.
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is proved that gratification has been accepted the presumption automatically arose. This Court cited with approval the observations of a three Judge Bench in the case of Raghubir Singh vs. State of Punjab reported in (1974) 4 SCC 560 that the very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is "res ipsa loquitur". We are in full agreement with the observations made in that Judgment.now set out briefly the evidence in the matter. P.W. 1, i.e., the Complainant, has deposed about the demand made on 23rd December, 1991 and it being repeated on 30th December, 1991 when the Respondent asked him to pay at least Rs. 10,000/- on 31st December, 1991 in a hotel room in Hotel Apsara. He has deposed that he made a complaint to CBI and that CBI arranged the trap. The Complainant deposed that he had booked the room and he and P.W. 2 went into the Room no. 202. He deposed that on receiving a call from the reception he went and brought the Respondent, who came to Hotel Apsara, to Room No. 202 where P.W. 2 was waiting. He deposed that he introduced P.W. 2 as the Group Financial Manager who had come from Bombay. P.W. 1 deposed that the Respondent then asked whether he had brought the money demanded as a bribe. He deposed that he opened a rexin bag and offered the marked currency amounting to Rs. 10,000/- but that the Respondent asked him to put the money into the briefcase and, therefore, he put the amount into the briefcase. P.W. 1 deposed that thereafter the Respondent took the briefcase and was about to leave the room when he gave the prearranged signal and CBI nabbed the Respondent. In cross- examination this version of P.W. 1 could not be shaken at all. This evidence clearly established demand and acceptance of money.7. This version is supported by the deposition of P.W. 2. P.W. 2 was at that time the Assistant Director of Post Office at Visakhapatnam. He was asked by his superior Officer to go to the CBI Office. He did not know the Complainant or the Respondent. He deposed that P.W. 1, himself and the CBI officers along with marked currency went to Room No. 202 in Hotel Apsara. He deposed that a phone call was received from the reception and P.W. 1 went out and brought the Respondent into the room. He deposed that he was introduced to the Respondent as a Group Finance Manager of the company. He deposed that P.W. 1 mentioned that as agreed earlier money had been brought for payment of the first installment and that the rest of the amount would be paid afterwards. He deposed that P.W. 1 asked the Respondent to clear the file. He deposed that the Respondent thereupon assured P.W. 1 not to worry about the file and that he (the Respondent) would see to it that the file is cleared within one month. P.W. 2 deposed that P.W.1 offered the money to the Respondent, but the Respondent asked him to place the money into his briefcase. He deposed that P.W.1 therefore placed the money into the briefcase and the Respondent then picked up the briefcase and was going out of the room when he was apprehended pursuant to a pre-arranged signal.8. The Respondent was thus caught red-handed with the marked money in a briefcase carried by him. The presumption under Section 20(1) thus arose. The High Court unfortunately overlooks this aspect.Faced with this situation it was submitted by Mr. Anand, on behalf of the Respondent, that the presumption under Section 20 does not arise in a case under Section 13(1)(d) of the Prevention of Corruption Act. He submitted that for an offence under Section 13(1)(d) the demand had also to be proved. In support of his submission he relied upon the case of Subash Parbat Sonvane vs. State of Gujarat reported in (2002) 5 SCC 86. This submission overlooks the fact that the Respondent had been accused of an offence under Section 7 also. His explanation that the money must have been put into his briefcase when he had gone to the bathroom is unbelievable. Both P.Ws. 1 and 2 have denied that the Respondent went to the bathroom. There is no explanation worth its name as to why the Respondent had gone into the hotel room. Even his explanation that he had gone to the hotel to book a table for the night of 31st December is belied by the fact that there is no evidence that any table was booked by the Respondent. Thus it was proved that an offence under Section 7 of the Prevention of Corruption Act had been committed.11. Even otherwise, in our view, the High Court was entirely wrong in coming to a conclusion that there was no proof of demand. The evidence of P.Ws. 1 and 2, to the effect, that when the Respondent came into the room he was told that P.W.2 was the Group Finance Manager, who had brought Rs. 10,000/- as demanded and the further evidence that the Respondent assured that the file would be cleared clearly establish that there was a demand and receipt of the money was as a bribe. On this evidence which has not been shaken in cross- examination, in our view, the offence under Section 13(1)(d) read with Section 13(2) had also been made out. The High Court erred in acquitting the Respondent merely on the basis of conjectures and surmises.12. In this view of the matter, we set aside the Judgment of the High Court and convict the Respondent under Section 7 and Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act. In our view, the ends of justice would be met, by sentencing the accused under both the counts to one years rigorous imprisonment. The fine and default stipulations will be as stipulated by the trial Court.
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Bajaj Auto Limited Vs. State of Maharashtra Labour Department & Others | the ratio of these cases cannot be made applicable to the case on hand. We will have to find out whether there is reasonable justification for making demand after a gap of few years. In the present case there is no dispute on the point that the earlier batch of 1200 workers was litigating with the petitioner company between the period from 1997 to 2003 and ultimately the matter got resolved in the Apex Court. A statement was made across the Bar that the workers got some relief by mutual settlement. A statement was also made across the Bar that there was an order of status quo granted by the trial Court and, therefore, the present workers rightfully thought to wait till the outcome of the said litigation. We find force in the submissions advanced by the learned counsel shri Prabhakaran that there is nothing wrong if the workers decided to wait for the outcome of the litigation which was going on between the earlier batch of workers and the petitioner company. Assuming that there is undue delay on the part of the workers to raise demand in time the Industrial Court has wide powers to mould the relief in an appropriate manner while considering the case on merits. Considering the judgments which have been cited supra by both the sides we find that the Industrial Court is not powerless to mould the relief in such situation if need arises. Therefore, in the fact situation of the case we are of the view that the order of reference passed by the appropriate Government on reaching its satisfaction cannot be discarded on the ground of alleged delay or laches on the part of the workers or the Union. 18) We find that the workers raised their demand after lapse of considerable period i.e. more than 8 to 18 years. There are total 1299 workers an if we calculate the workers who had raised demand upto 7 years the number would come to 1128 workers. Rest of the workers who raised demand between 8 to 18 years are 171. Therefore, we find that the major chunk of the workers who had raised demand were between the period from 3 to 7 years. 19) The learned Senior Counsel for the petitioner submitted that the failure report was submitted on 31st March 2005. Twice this Court had remanded the matter back to the appropriate Government - respondent NO.2 and the last such remand order was dated 23rd February 2006. It was submitted that the reference order was based on the failure report dated 31st March 2005 and therefore the impugned order deserves to be quashed and set aside. We are of the opinion that considering the reasoning adopted by this court earlier for remanding the matter the reference order could not be faulted on the ground that it was based on failure report dated 31st March 2005. 20) Perusal of the failure report shows that the Conciliator had put in efforts to see that the parties could settle the issue, but he failed. It is submitted on behalf of the petitioner that there was absolutely no material with respondent No.2 to reach his satisfaction for referring the dispute. Respondent no.2 filed additional affidavit in reply though on the last date of hearing stating therein:" I say and submit that I have gone through the record & proceedings of the conciliation, including the failure report. I have also gone through report of departmental officers visit dated 4-12-2004 under the Contract Labour Act, that the contract labours were found engaged in process/operations which are of incidental to or necessary for the Industry and of perennial nature on which process they could not have been engaged. Therefore I sent the proposal for prohibition of employment of contract labour in these process, to Government on dated 24-12-2004."A strong objection was raised on behalf of the petitioner on the contentions raised in the affidavit. 21) We will now turn to the reasons adopted by respondent No.2 in referring the matter to the Industrial Court. We find that a statement was made by the parties before respondent No.2 along with case laws cited by the parties. Respondent No.2 was well aware of his powers when it was observed in the order that the appropriate Government performs administrative act and not judicial or quasi judicial work in making reference under section 10 of the Industrial Disputes Act. It seems that respondent No.2 observed caution which may be gathered from the observations made in the order to the effect that being an administrative function the appropriate Government cannot delve into the merits of the dispute. Respondent No.2 rightly observed that he is not determining the rights of the parties by preferring an industrial dispute. We find that the order of reference is a reasoned order. In one of the remand orders passed by this court it was observed that detailed reasoned order is not expected from the Deputy Commissioner of Labour but what was expected was application of his mind and liveliness to the issues raised by the parties should be briefly reflected on merits in his order. We find that respondent No.2 has applied his mind by maintaining reasonable restrains in not entering into the merits, demerits of the demand or the factual disputes of the matter while reaching his satisfaction. The appropriate Government had exercised its discretion based on the material placed before it and after reaching satisfaction it decided to refer the dispute to the Industrial Court. We find that considering the para meters set out for judicial review of such an administrative decision, no interference is called for in exercise of writ jurisdiction under Article 226 of the Constitution of India in the impugned order. 22) For the reasons stated above, we are not inclined to grant relief to the petitioner as prayed for in this petition. We are convinced that the appropriate Government after reaching it satisfaction had decided to refer the dispute to the Industrial Court. | 0[ds]13) In para 5 of the petition the petitioner stated that out of 1366 temporaries 1348 seem to be temporary who were before respondent no.2 and the petitioner has record of 1299 temporaries at its disposal. The statement made by the petitioner shows that it is not the case that the petitioner has absolutely no record with them to contest the demand raised by respondent No.3Union or the individual workers. The contention raised on behalf of the petitioner that after lapse of so many years the petitioner company is handicapped to produce the relevant record or to support its case with the aid and assistance of such record does not seem to be convincing.14) It was submitted by the learned Senior Counsel that the petitioner is prevented to raise dispute regarding employeremployee relationship before the Industrial Tribunal in view of the terms of reference. We find that considering the reasoning adopted by the appropriate Government on the basis of the material collected and placed before it, the petitioner company is not prevented or precluded to raise such a dispute.15)The learned Senior Counsel appearing for the petitioner submitted that the contentions raised in the demand by individual workers or the Union are vague and ambiguous. What exactly is the demand of the workers and the ultimate prayer is not made clear. It was submitted that the demand is that the workers be given relief which was ultimately given to the earlier batch of workers by the Apex Court.We have perused the demand notice wherein we find that the workers have claimed that they be granted benefits of service like reinstatement, compensation as per the decision of the Honble Supreme Court of India declared onwithout prejudice to file detailed application under SectionA prayer is made that the petitioner company be directed to reinstate in service with full back wages by granting continuity and consequential benefits. The learned Senior Counsel submitted that a reference is made by the workers to the provision of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 alleging that the petitioner company had committed unfair labour practice. We have considered the relevant provisions of the Industrial Disputes Act and the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. We find that in the 5th Schedule to the Industrial Disputes Act 1947 unfair labour practices are made part of the said schedule. The learned Senior Counsel has referred to Item 3 of Second Schedule to support the contention that for the relief of claim against discharge or dismissal and for relief of reinstatement the jurisdiction lies with the Labour Court. Considering the facts of the case and the demand raised coupled with the provisions of the Industrial Disputes Act and the Schedule appended thereto we are of the opinion that the Industrial Court could consider the reference having its wide powers as reflected from the provision of the Industrial Disputes Act 1947. We are, therefore, of the opinion that the appropriate Government did not commit any error of law in referring the dispute to the Industrial Court.16) The learned Senior Counsel sought to submit that there is lack of material pleadings in the demand raised by the Union and the workers. We find that the workers had furnished particulars of their appointment orders which indicate the date of appointment and the last date on which they worked with the petitioner company. The petitioner also questioned the locus standi of respondent No.3Union to raise demand. It was submitted that under the provisions of Section 10(2) of the Act of 1947 respondent No.3 Union does not represent majority of the workers of the petitioner company. Thelearned counsel Shri. Prabhakaran for respondent No.3 states that the demand is not raised only by respondent No.3 Union but it was also raised individually.Therefore, the reference cannot be faulted on the question of locus standi of respondent No.3.17) The learned Senior Counsel Shri Cama laid much emphasis on the issue of delay in raising demand. It was submitted that the delay from 3 years to 18 years cannot by any stretch of imagination be considered to be reasonable and condonable one. There is absolutely no justification for raising demand after such a long lapse of period on whatsoever ground. In reply it was contended by the learned counsel Shri. Prabhakaran that on the ground of delay alone the order of reference shall not be set aside. The learned counsel tried to distinguish on facts the reported cases in Nedungadi Bank and Assistant Executive Engineer Karnataka (cited supra) while submitting that in the peculiar fact situation of the case the observations were made by the Apex Court. We have considered these cases and we find that on facts the ratio of these cases cannot be made applicable to the case on hand. We will have to find out whether there is reasonable justification for making demand after a gap of few years. In the present case there is no dispute on the point that the earlier batch of 1200 workers was litigating with the petitioner company between the period from 1997 to 2003 and ultimately the matter got resolved in the Apex Court. A statement was made across the Bar that the workers got some relief by mutual settlement. A statement was also made across the Bar that there was an order of status quo granted by the trial Court and, therefore, the present workers rightfully thought to wait till the outcome of the said litigation. We find force in the submissions advanced by the learned counsel shri Prabhakaran that there is nothing wrong if the workers decided to wait for the outcome of the litigation which was going on between the earlier batch of workers and the petitioner company. Assuming that there is undue delay on the part of the workers to raise demand in time the Industrial Court has wide powers to mould the relief in an appropriate manner while considering the case on merits. Considering the judgments which have been cited supra by both the sides we find that the Industrial Court is not powerless to mould the relief in such situation if need arises. Therefore, in the fact situation of the case we are of the view that the order of reference passed by the appropriate Government on reaching its satisfaction cannot be discarded on the ground of alleged delay or laches on the part of the workers or theWe find that the workers raised their demand after lapse of considerable period i.e. more than 8 to 18 years. There are total 1299 workers an if we calculate the workers who had raised demand upto 7 years the number would come to 1128 workers. Rest of the workers who raised demand between 8 to 18 years are 171. Therefore, we find that the major chunk of the workers who had raised demand were between the period from 3 to 7The learned Senior Counsel for the petitioner submitted that the failure report was submitted on 31st March 2005. Twice this Court had remanded the matter back to the appropriate Governmentrespondent NO.2 and the last such remand order was dated 23rd February 2006. It was submitted that the reference order was based on the failure report dated 31st March 2005 and therefore the impugned order deserves to be quashed and set aside. We are of the opinion that considering the reasoning adopted by this court earlier for remanding the matter the reference order could not be faulted on the ground that it was based on failure report dated 31st MarchPerusal of the failure report shows that the Conciliator had put in efforts to see that the parties could settle the issue, but he failed. It is submitted on behalf of the petitioner that there was absolutely no material with respondent No.2 to reach his satisfaction for referring the dispute. Respondent no.2 filed additional affidavit in reply though on the last date of hearing stating therein:" I say and submit that I have gone through the recordproceedings of the conciliation, including the failure report. I have also gone through report of departmental officers visit datedunder the Contract Labour Act, that the contract labours were found engaged in process/operations which are of incidental to or necessary for the Industry and of perennial nature on which process they could not have been engaged. Therefore I sent the proposal for prohibition of employment of contract labour in these process, to Government on datedstrong objection was raised on behalf of the petitioner on the contentions raised in theWe will now turn to the reasons adopted by respondent No.2 in referring the matter to the Industrial Court. We find that a statement was made by the parties before respondent No.2 along with case laws cited by the parties. Respondent No.2 was well aware of his powers when it was observed in the order that the appropriate Government performs administrative act and not judicial or quasi judicial work in making reference under section 10 of the Industrial Disputes Act. It seems that respondent No.2 observed caution which may be gathered from the observations made in the order to the effect that being an administrative function the appropriate Government cannot delve into the merits of the dispute. Respondent No.2 rightly observed that he is not determining the rights of the parties by preferring an industrial dispute. We find that the order of reference is a reasoned order. In one of the remand orders passed by this court it was observed that detailed reasoned order is not expected from the Deputy Commissioner of Labour but what was expected was application of his mind and liveliness to the issues raised by the parties should be briefly reflected on merits in his order. We find that respondent No.2 has applied his mind by maintaining reasonable restrains in not entering into the merits, demerits of the demand or the factual disputes of the matter while reaching his satisfaction. The appropriate Government had exercised its discretion based on the material placed before it and after reaching satisfaction it decided to refer the dispute to the Industrial Court. We find that considering the para meters set out for judicial review of such an administrative decision, no interference is called for in exercise of writ jurisdiction under Article 226 of the Constitution of India in the impugnedFor the reasons stated above, we are not inclined to grant relief to the petitioner as prayed for in this petition. We are convinced that the appropriate Government after reaching it satisfaction had decided to refer the dispute to the Industrial Court. | 0 | 7,056 | 1,858 | ### 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 ratio of these cases cannot be made applicable to the case on hand. We will have to find out whether there is reasonable justification for making demand after a gap of few years. In the present case there is no dispute on the point that the earlier batch of 1200 workers was litigating with the petitioner company between the period from 1997 to 2003 and ultimately the matter got resolved in the Apex Court. A statement was made across the Bar that the workers got some relief by mutual settlement. A statement was also made across the Bar that there was an order of status quo granted by the trial Court and, therefore, the present workers rightfully thought to wait till the outcome of the said litigation. We find force in the submissions advanced by the learned counsel shri Prabhakaran that there is nothing wrong if the workers decided to wait for the outcome of the litigation which was going on between the earlier batch of workers and the petitioner company. Assuming that there is undue delay on the part of the workers to raise demand in time the Industrial Court has wide powers to mould the relief in an appropriate manner while considering the case on merits. Considering the judgments which have been cited supra by both the sides we find that the Industrial Court is not powerless to mould the relief in such situation if need arises. Therefore, in the fact situation of the case we are of the view that the order of reference passed by the appropriate Government on reaching its satisfaction cannot be discarded on the ground of alleged delay or laches on the part of the workers or the Union. 18) We find that the workers raised their demand after lapse of considerable period i.e. more than 8 to 18 years. There are total 1299 workers an if we calculate the workers who had raised demand upto 7 years the number would come to 1128 workers. Rest of the workers who raised demand between 8 to 18 years are 171. Therefore, we find that the major chunk of the workers who had raised demand were between the period from 3 to 7 years. 19) The learned Senior Counsel for the petitioner submitted that the failure report was submitted on 31st March 2005. Twice this Court had remanded the matter back to the appropriate Government - respondent NO.2 and the last such remand order was dated 23rd February 2006. It was submitted that the reference order was based on the failure report dated 31st March 2005 and therefore the impugned order deserves to be quashed and set aside. We are of the opinion that considering the reasoning adopted by this court earlier for remanding the matter the reference order could not be faulted on the ground that it was based on failure report dated 31st March 2005. 20) Perusal of the failure report shows that the Conciliator had put in efforts to see that the parties could settle the issue, but he failed. It is submitted on behalf of the petitioner that there was absolutely no material with respondent No.2 to reach his satisfaction for referring the dispute. Respondent no.2 filed additional affidavit in reply though on the last date of hearing stating therein:" I say and submit that I have gone through the record & proceedings of the conciliation, including the failure report. I have also gone through report of departmental officers visit dated 4-12-2004 under the Contract Labour Act, that the contract labours were found engaged in process/operations which are of incidental to or necessary for the Industry and of perennial nature on which process they could not have been engaged. Therefore I sent the proposal for prohibition of employment of contract labour in these process, to Government on dated 24-12-2004."A strong objection was raised on behalf of the petitioner on the contentions raised in the affidavit. 21) We will now turn to the reasons adopted by respondent No.2 in referring the matter to the Industrial Court. We find that a statement was made by the parties before respondent No.2 along with case laws cited by the parties. Respondent No.2 was well aware of his powers when it was observed in the order that the appropriate Government performs administrative act and not judicial or quasi judicial work in making reference under section 10 of the Industrial Disputes Act. It seems that respondent No.2 observed caution which may be gathered from the observations made in the order to the effect that being an administrative function the appropriate Government cannot delve into the merits of the dispute. Respondent No.2 rightly observed that he is not determining the rights of the parties by preferring an industrial dispute. We find that the order of reference is a reasoned order. In one of the remand orders passed by this court it was observed that detailed reasoned order is not expected from the Deputy Commissioner of Labour but what was expected was application of his mind and liveliness to the issues raised by the parties should be briefly reflected on merits in his order. We find that respondent No.2 has applied his mind by maintaining reasonable restrains in not entering into the merits, demerits of the demand or the factual disputes of the matter while reaching his satisfaction. The appropriate Government had exercised its discretion based on the material placed before it and after reaching satisfaction it decided to refer the dispute to the Industrial Court. We find that considering the para meters set out for judicial review of such an administrative decision, no interference is called for in exercise of writ jurisdiction under Article 226 of the Constitution of India in the impugned order. 22) For the reasons stated above, we are not inclined to grant relief to the petitioner as prayed for in this petition. We are convinced that the appropriate Government after reaching it satisfaction had decided to refer the dispute to the Industrial Court.
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situation of the case the observations were made by the Apex Court. We have considered these cases and we find that on facts the ratio of these cases cannot be made applicable to the case on hand. We will have to find out whether there is reasonable justification for making demand after a gap of few years. In the present case there is no dispute on the point that the earlier batch of 1200 workers was litigating with the petitioner company between the period from 1997 to 2003 and ultimately the matter got resolved in the Apex Court. A statement was made across the Bar that the workers got some relief by mutual settlement. A statement was also made across the Bar that there was an order of status quo granted by the trial Court and, therefore, the present workers rightfully thought to wait till the outcome of the said litigation. We find force in the submissions advanced by the learned counsel shri Prabhakaran that there is nothing wrong if the workers decided to wait for the outcome of the litigation which was going on between the earlier batch of workers and the petitioner company. Assuming that there is undue delay on the part of the workers to raise demand in time the Industrial Court has wide powers to mould the relief in an appropriate manner while considering the case on merits. Considering the judgments which have been cited supra by both the sides we find that the Industrial Court is not powerless to mould the relief in such situation if need arises. Therefore, in the fact situation of the case we are of the view that the order of reference passed by the appropriate Government on reaching its satisfaction cannot be discarded on the ground of alleged delay or laches on the part of the workers or theWe find that the workers raised their demand after lapse of considerable period i.e. more than 8 to 18 years. There are total 1299 workers an if we calculate the workers who had raised demand upto 7 years the number would come to 1128 workers. Rest of the workers who raised demand between 8 to 18 years are 171. Therefore, we find that the major chunk of the workers who had raised demand were between the period from 3 to 7The learned Senior Counsel for the petitioner submitted that the failure report was submitted on 31st March 2005. Twice this Court had remanded the matter back to the appropriate Governmentrespondent NO.2 and the last such remand order was dated 23rd February 2006. It was submitted that the reference order was based on the failure report dated 31st March 2005 and therefore the impugned order deserves to be quashed and set aside. We are of the opinion that considering the reasoning adopted by this court earlier for remanding the matter the reference order could not be faulted on the ground that it was based on failure report dated 31st MarchPerusal of the failure report shows that the Conciliator had put in efforts to see that the parties could settle the issue, but he failed. It is submitted on behalf of the petitioner that there was absolutely no material with respondent No.2 to reach his satisfaction for referring the dispute. Respondent no.2 filed additional affidavit in reply though on the last date of hearing stating therein:" I say and submit that I have gone through the recordproceedings of the conciliation, including the failure report. I have also gone through report of departmental officers visit datedunder the Contract Labour Act, that the contract labours were found engaged in process/operations which are of incidental to or necessary for the Industry and of perennial nature on which process they could not have been engaged. Therefore I sent the proposal for prohibition of employment of contract labour in these process, to Government on datedstrong objection was raised on behalf of the petitioner on the contentions raised in theWe will now turn to the reasons adopted by respondent No.2 in referring the matter to the Industrial Court. We find that a statement was made by the parties before respondent No.2 along with case laws cited by the parties. Respondent No.2 was well aware of his powers when it was observed in the order that the appropriate Government performs administrative act and not judicial or quasi judicial work in making reference under section 10 of the Industrial Disputes Act. It seems that respondent No.2 observed caution which may be gathered from the observations made in the order to the effect that being an administrative function the appropriate Government cannot delve into the merits of the dispute. Respondent No.2 rightly observed that he is not determining the rights of the parties by preferring an industrial dispute. We find that the order of reference is a reasoned order. In one of the remand orders passed by this court it was observed that detailed reasoned order is not expected from the Deputy Commissioner of Labour but what was expected was application of his mind and liveliness to the issues raised by the parties should be briefly reflected on merits in his order. We find that respondent No.2 has applied his mind by maintaining reasonable restrains in not entering into the merits, demerits of the demand or the factual disputes of the matter while reaching his satisfaction. The appropriate Government had exercised its discretion based on the material placed before it and after reaching satisfaction it decided to refer the dispute to the Industrial Court. We find that considering the para meters set out for judicial review of such an administrative decision, no interference is called for in exercise of writ jurisdiction under Article 226 of the Constitution of India in the impugnedFor the reasons stated above, we are not inclined to grant relief to the petitioner as prayed for in this petition. We are convinced that the appropriate Government after reaching it satisfaction had decided to refer the dispute to the Industrial Court.
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Hardeo Kaur and others Vs. Rajasthan State Transport Corporation and another | the High Court for enhancement of compensation but the same was dismissed on March 2, 1988. Hence this appeal by the widow and her minor children. 4. The learned counsel for the appellants has argued that the courts below have grossly eared in reaching a finding that late Major Dalip Singh being an army officer used to spend one half of his salary on personal expenditure. According to him the finding is based on mere surmises and conjectures. According to him the finding is bases on mere surmises and conjectures. He has stated that it was specifically pleaded before the Tribunal that major Dalip Singh used to spend nearly 1400 per month on his family which was solely dependent upon him. The learned counsel has also argued that there was no basis to take the life span of an army officer to be 56 years. According to his the life span should be taken to be 70 years in the modern environments. The learned counsel has contended that the deduction of 1/3rd out of the assessed compensation on account of lump sum payment is wholly unjustified. He further contended that the compensation awarded to the minor children is on the lower side and no compensation was awarded for loss of consortium to wife and the minor children. 5. We see considerable force in the arguments of the learned counsel for the appellants. There was no basis or justification before the Tribunal to have reached the finding that Major Dalip Singh was spending half of the salary on himself. On the other hand it was specifically claimed by the appellants that he was spending nearly Rs. 1400 per month to support his family. It is common knowledge that personal needs of army officers including drinks are supplied to them at a subsidised price through the Army canteens. We, therefore, set aside the finding of the courts below and hold that late Major Dalip Singh was spending Rs. 1400 per month on his family. 6. This Court Jyotsna Dey v. State of Assam 1987 ACJ 172 ) has observed that the span of life should be taken to be 70 years in view of the high rise in life expectancy. It is specially so in the case of Army offices who are disciplined to live an active and energetic life. The courts below were not justified in taking the normal span of life to beg 60 years and that of an Army officer 56 years. 7. We are of the view that deduction of 1/3rd out of the assessed compensation on account of lump sum payment is not justified. The accident took place in July, 1977 and the litigation has come to an end, hopefully, today, 15 years thereafter. This Court in Moor Owners Insurance Company Ltd. v. Jadavji Keshavji Modi ( 1981 (4) SCC 660 : 1982 SCC(Cri) 28 : 1981 ACJ 507 ) held that the delay in the final disposal moor accident compensation cases, as in all other classes, as in all other classes of litigation, takes a sting out of the laws of compensation and added to that the monstrous inflation and the consequent fall in the value of rupee makes the compensation demanded years ago, less than quarter of its value when it is received after such a long time. In Manjushri Raha v. B. L. Gupta ( 1977 (2) SCC 174 : 1977 ACJ 507) this Court awarded compensation by multiplying the life expectancy without making any deductions. With the value of rupee dwindling due to high rate of inflation, there is no justification for making deduction due to lump sum payment. We, therefore, hold that the courts below were not justified in making lump-sum deduction in this case. 8. This Court in Concord of India Insurances Co. Ltd. v. Nirmala Devi ( 1979 (4) SCC 365 : 1979 SCC(Cri) 996 : 1980 ACJ 55 ) held as under. "The determination of the quantum must be liberal, not niggardly since the law values life in free contrary in generous scales." 9. The Tribunal became oblivious of the fact that there is timebound consideration for promotion in the Army. Apart from that there have been upward revisions in the pay-scales of Army personnel. No compensation was awarded for the loss of consortium to the wife and children. Even the life expectancy was taken to be as low as 56. Considering all these circumstances we are of the view that a multiplier of 24 would meet the ends of justice. 10. Thus the annual amount which Major Dalip Singh was spending for his family comes to Rs. 16, 800 (Rs. 1400 x 12) which multiplied by 24 comes Rs. 4, 03, 200. We, therefore, assess the amount of damages to be allowed to the appellant to the appellant-claimants at Rs. 4, 03, 200. 11. We agree with the tribunal that the injuries on the person of Hardeo Kaur were not such as to entitle her to claim compensation. The compensation awarded to the young boys, according to us, is on the lower side. We assess Rs. 10, 000 in the case of Jasminder Singh and Rs. 5000 in the case of Balvinder Singh. 12. The tribunal has awarded interest @ 6 per cent per annum from the date of filing of the application before the tribunal till the date of realisation. In Chameli Wati v. Delhi Municipal Corporation ( 1986 (4) SCC 503 : 1986 SCC(Cri) 533 : 1985 ACJ 645 ) this Court awarded interest @ 12 per cent per annum from the date of the application. Similarly in Jagbir Singh v. General Manager, Punjab Roadways ( 1986 (4) SCC 431 ; 1986 SCC(Cri) 495 : 1987 ACJ 15 ) this Court enhanced the interest from 6 per cent per annum to 12 per cent per annum. We, therefore, hold that apart from the damages the appellants are entitled to claim interest @ 12 per cent per annum instead of 6 per cent awarded by the tribunal. | 1[ds]5. We see considerable force in the arguments of the learned counsel for the appellants. There was no basis or justification before the Tribunal to have reached the finding that Major Dalip Singh was spending half of the salary on himself. On the other hand it was specifically claimed by the appellants that he was spending nearly Rs. 1400 per month to support his family. It is common knowledge that personal needs of army officers including drinks are supplied to them at a subsidised price through the Army canteens. We, therefore, set aside the finding of the courts below and hold that late Major Dalip Singh was spending Rs. 1400 per month on his family7. We are of the view that deduction of 1/3rd out of the assessed compensation on account of lump sum payment is not justified. The accident took place in July, 1977 and the litigation has come to an end, hopefully, today, 15 years thereafter9. The Tribunal became oblivious of the fact that there is timebound consideration for promotion in the Army. Apart from that there have been upward revisions in the pay-scales of Army personnel. No compensation was awarded for the loss of consortium to the wife and children. Even the life expectancy was taken to be as low as 56. Considering all these circumstances we are of the view that a multiplier of 24 would meet the ends of justice10. Thus the annual amount which Major Dalip Singh was spending for his family comes to Rs. 16, 800 (Rs. 1400 x 12) which multiplied by 24 comes Rs. 4, 03, 200. We, therefore, assess the amount of damages to be allowed to the appellant to the appellant-claimants at Rs. 4, 03, 20011. We agree with the tribunal that the injuries on the person of Hardeo Kaur were not such as to entitle her to claim compensation. The compensation awarded to the young boys, according to us, is on the lower side. We assess Rs. 10, 000 in the case of Jasminder Singh and Rs. 5000 in the case of Balvinder Singh12. The tribunal has awarded interest @ 6 per cent per annum from the date of filing of the application before the tribunal till the date of realisation. In Chameli Wati v. Delhi Municipal Corporation ( 1986 (4) SCC 503 : 1986 SCC(Cri) 533 : 1985 ACJ 645 ) this Court awarded interest @ 12 per cent per annum from the date of the application. Similarly in Jagbir Singh v. General Manager, Punjab Roadways ( 1986 (4) SCC 431 ; 1986 SCC(Cri) 495 : 1987 ACJ 15 ) this Court enhanced the interest from 6 per cent per annum to 12 per cent per annum. We, therefore, hold that apart from the damages the appellants are entitled to claim interest @ 12 per cent per annum instead of 6 per cent awarded by the tribunal | 1 | 1,738 | 544 | ### 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 High Court for enhancement of compensation but the same was dismissed on March 2, 1988. Hence this appeal by the widow and her minor children. 4. The learned counsel for the appellants has argued that the courts below have grossly eared in reaching a finding that late Major Dalip Singh being an army officer used to spend one half of his salary on personal expenditure. According to him the finding is based on mere surmises and conjectures. According to him the finding is bases on mere surmises and conjectures. He has stated that it was specifically pleaded before the Tribunal that major Dalip Singh used to spend nearly 1400 per month on his family which was solely dependent upon him. The learned counsel has also argued that there was no basis to take the life span of an army officer to be 56 years. According to his the life span should be taken to be 70 years in the modern environments. The learned counsel has contended that the deduction of 1/3rd out of the assessed compensation on account of lump sum payment is wholly unjustified. He further contended that the compensation awarded to the minor children is on the lower side and no compensation was awarded for loss of consortium to wife and the minor children. 5. We see considerable force in the arguments of the learned counsel for the appellants. There was no basis or justification before the Tribunal to have reached the finding that Major Dalip Singh was spending half of the salary on himself. On the other hand it was specifically claimed by the appellants that he was spending nearly Rs. 1400 per month to support his family. It is common knowledge that personal needs of army officers including drinks are supplied to them at a subsidised price through the Army canteens. We, therefore, set aside the finding of the courts below and hold that late Major Dalip Singh was spending Rs. 1400 per month on his family. 6. This Court Jyotsna Dey v. State of Assam 1987 ACJ 172 ) has observed that the span of life should be taken to be 70 years in view of the high rise in life expectancy. It is specially so in the case of Army offices who are disciplined to live an active and energetic life. The courts below were not justified in taking the normal span of life to beg 60 years and that of an Army officer 56 years. 7. We are of the view that deduction of 1/3rd out of the assessed compensation on account of lump sum payment is not justified. The accident took place in July, 1977 and the litigation has come to an end, hopefully, today, 15 years thereafter. This Court in Moor Owners Insurance Company Ltd. v. Jadavji Keshavji Modi ( 1981 (4) SCC 660 : 1982 SCC(Cri) 28 : 1981 ACJ 507 ) held that the delay in the final disposal moor accident compensation cases, as in all other classes, as in all other classes of litigation, takes a sting out of the laws of compensation and added to that the monstrous inflation and the consequent fall in the value of rupee makes the compensation demanded years ago, less than quarter of its value when it is received after such a long time. In Manjushri Raha v. B. L. Gupta ( 1977 (2) SCC 174 : 1977 ACJ 507) this Court awarded compensation by multiplying the life expectancy without making any deductions. With the value of rupee dwindling due to high rate of inflation, there is no justification for making deduction due to lump sum payment. We, therefore, hold that the courts below were not justified in making lump-sum deduction in this case. 8. This Court in Concord of India Insurances Co. Ltd. v. Nirmala Devi ( 1979 (4) SCC 365 : 1979 SCC(Cri) 996 : 1980 ACJ 55 ) held as under. "The determination of the quantum must be liberal, not niggardly since the law values life in free contrary in generous scales." 9. The Tribunal became oblivious of the fact that there is timebound consideration for promotion in the Army. Apart from that there have been upward revisions in the pay-scales of Army personnel. No compensation was awarded for the loss of consortium to the wife and children. Even the life expectancy was taken to be as low as 56. Considering all these circumstances we are of the view that a multiplier of 24 would meet the ends of justice. 10. Thus the annual amount which Major Dalip Singh was spending for his family comes to Rs. 16, 800 (Rs. 1400 x 12) which multiplied by 24 comes Rs. 4, 03, 200. We, therefore, assess the amount of damages to be allowed to the appellant to the appellant-claimants at Rs. 4, 03, 200. 11. We agree with the tribunal that the injuries on the person of Hardeo Kaur were not such as to entitle her to claim compensation. The compensation awarded to the young boys, according to us, is on the lower side. We assess Rs. 10, 000 in the case of Jasminder Singh and Rs. 5000 in the case of Balvinder Singh. 12. The tribunal has awarded interest @ 6 per cent per annum from the date of filing of the application before the tribunal till the date of realisation. In Chameli Wati v. Delhi Municipal Corporation ( 1986 (4) SCC 503 : 1986 SCC(Cri) 533 : 1985 ACJ 645 ) this Court awarded interest @ 12 per cent per annum from the date of the application. Similarly in Jagbir Singh v. General Manager, Punjab Roadways ( 1986 (4) SCC 431 ; 1986 SCC(Cri) 495 : 1987 ACJ 15 ) this Court enhanced the interest from 6 per cent per annum to 12 per cent per annum. We, therefore, hold that apart from the damages the appellants are entitled to claim interest @ 12 per cent per annum instead of 6 per cent awarded by the tribunal.
### Response:
1
### Explanation:
5. We see considerable force in the arguments of the learned counsel for the appellants. There was no basis or justification before the Tribunal to have reached the finding that Major Dalip Singh was spending half of the salary on himself. On the other hand it was specifically claimed by the appellants that he was spending nearly Rs. 1400 per month to support his family. It is common knowledge that personal needs of army officers including drinks are supplied to them at a subsidised price through the Army canteens. We, therefore, set aside the finding of the courts below and hold that late Major Dalip Singh was spending Rs. 1400 per month on his family7. We are of the view that deduction of 1/3rd out of the assessed compensation on account of lump sum payment is not justified. The accident took place in July, 1977 and the litigation has come to an end, hopefully, today, 15 years thereafter9. The Tribunal became oblivious of the fact that there is timebound consideration for promotion in the Army. Apart from that there have been upward revisions in the pay-scales of Army personnel. No compensation was awarded for the loss of consortium to the wife and children. Even the life expectancy was taken to be as low as 56. Considering all these circumstances we are of the view that a multiplier of 24 would meet the ends of justice10. Thus the annual amount which Major Dalip Singh was spending for his family comes to Rs. 16, 800 (Rs. 1400 x 12) which multiplied by 24 comes Rs. 4, 03, 200. We, therefore, assess the amount of damages to be allowed to the appellant to the appellant-claimants at Rs. 4, 03, 20011. We agree with the tribunal that the injuries on the person of Hardeo Kaur were not such as to entitle her to claim compensation. The compensation awarded to the young boys, according to us, is on the lower side. We assess Rs. 10, 000 in the case of Jasminder Singh and Rs. 5000 in the case of Balvinder Singh12. The tribunal has awarded interest @ 6 per cent per annum from the date of filing of the application before the tribunal till the date of realisation. In Chameli Wati v. Delhi Municipal Corporation ( 1986 (4) SCC 503 : 1986 SCC(Cri) 533 : 1985 ACJ 645 ) this Court awarded interest @ 12 per cent per annum from the date of the application. Similarly in Jagbir Singh v. General Manager, Punjab Roadways ( 1986 (4) SCC 431 ; 1986 SCC(Cri) 495 : 1987 ACJ 15 ) this Court enhanced the interest from 6 per cent per annum to 12 per cent per annum. We, therefore, hold that apart from the damages the appellants are entitled to claim interest @ 12 per cent per annum instead of 6 per cent awarded by the tribunal
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Firoj Farukee Vs. State of West Bengal | Shelat, J.1. The order of detention impugned in this petition is in identical terms as the one in Ananta Mukhi alias Ananta Hari v. The State of West Bengal. ([1972] 1 SCC 580 : 1972 SCC (Cri) 344 ). For the reasons given in the judgment in that petition the impugned order must be held to be bad. Consequently, the respondent-State is directed to release the petitioner and set him at liberty forthwith.Khanna, J.(For himself and Mathew, J.).2. This is a petition through jail under Article 32 of the Constitution of India for the issuance of a writ of habeas corpus by Firoj Farukee who has been ordered to be detained under Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970) hereinafter referred to as the Act.3. The order of detention which was made against the petitioner reads as under :"ORDERNo. 1767-C. Dated, Suri the 3rd May, 1971"Whereas I am satisfied with respect to the person known as Shri Firoj Farukee, Son of Md. Nowman of Tikapara, P.S. Bholpur, District Birbhum, that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, I, therefore, in exercise of the powers conferred by sub-section (1), read with sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970), make this order directing that the said Shri Firoj Farukee be detained.Given under my hand and seal of office.(Sd.) S. L. Bose3-5-71District Magistrate, Birbhum."4. The order of detention was made on May 3, 1971 and the same day the District Magistrate sent a report to the State Government about the passing of the detention order along with the grounds of detention and other necessary particulars. The petitioner was arrested on May 5, 1971 and was served with the grounds of detention also on the same day. On May 14, 1971, the State Government approved the detention order and also sent a report to the Central Government together with the ground of detention and other necessary particulars. On June 3, 1971, the case of the petitioner was placed before the Advisory Board. Representation, dated June 3, 1971, made by the Petitioner was received by the State Government on June 9, 1971. The said representation was considered by the State Government and was rejected as per order, dated July 1, 1971. The representation was forwarded by the State Government to the Advisory Board. The Advisory Board sent its report to the State Government on July 8, 1971. Opinion was expressed by the Advisory Board that there was sufficient clause for the detention of the petitioner. The State Government confirmed the order of detention on July 21, 1971.5. The petition has been resisted by the respondents and the affidavit of Shri Manoranjan Dey, Assistant Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.6. Mr. Santokh Singh who has argued the case amicus curiae on behalf of the petitioner, contends that the order of detention made against the petitioner by the District Magistrate shows an element of casualness and absence of due application of mind, as according to the order the petitioner was detained "with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order". It is urged that the use of the word "or" in the order shows that the detaining authority was not definite regarding the ground of detention. Similar argument was advanced before us in the case of Ananta Mukhi alias Ananta Hari v. The State of West Bengal (supra). and was rejected. It has been held by us that the use of the word "or" in the detention order would not introduce an infirmity as might justify the quashing of that order. | 0[ds]6. Mr. Santokh Singh who has argued the case amicus curiae on behalf of the petitioner, contends that the order of detention made against the petitioner by the District Magistrate shows an element of casualness and absence of due application of mind, as according to the order the petitioner was detained "with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order". It is urged that the use of the word "or" in the order shows that the detaining authority was not definite regarding the ground of detention.Similar argument was advanced before us in the case of Ananta Mukhi alias Ananta Hari v. The State of West Bengal (supra). and was rejected. It has been held by us that the use of the word "or" in the detention order would not introduce an infirmity as might justify the quashing of that order. | 0 | 766 | 174 | ### 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:
Shelat, J.1. The order of detention impugned in this petition is in identical terms as the one in Ananta Mukhi alias Ananta Hari v. The State of West Bengal. ([1972] 1 SCC 580 : 1972 SCC (Cri) 344 ). For the reasons given in the judgment in that petition the impugned order must be held to be bad. Consequently, the respondent-State is directed to release the petitioner and set him at liberty forthwith.Khanna, J.(For himself and Mathew, J.).2. This is a petition through jail under Article 32 of the Constitution of India for the issuance of a writ of habeas corpus by Firoj Farukee who has been ordered to be detained under Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970) hereinafter referred to as the Act.3. The order of detention which was made against the petitioner reads as under :"ORDERNo. 1767-C. Dated, Suri the 3rd May, 1971"Whereas I am satisfied with respect to the person known as Shri Firoj Farukee, Son of Md. Nowman of Tikapara, P.S. Bholpur, District Birbhum, that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, I, therefore, in exercise of the powers conferred by sub-section (1), read with sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970), make this order directing that the said Shri Firoj Farukee be detained.Given under my hand and seal of office.(Sd.) S. L. Bose3-5-71District Magistrate, Birbhum."4. The order of detention was made on May 3, 1971 and the same day the District Magistrate sent a report to the State Government about the passing of the detention order along with the grounds of detention and other necessary particulars. The petitioner was arrested on May 5, 1971 and was served with the grounds of detention also on the same day. On May 14, 1971, the State Government approved the detention order and also sent a report to the Central Government together with the ground of detention and other necessary particulars. On June 3, 1971, the case of the petitioner was placed before the Advisory Board. Representation, dated June 3, 1971, made by the Petitioner was received by the State Government on June 9, 1971. The said representation was considered by the State Government and was rejected as per order, dated July 1, 1971. The representation was forwarded by the State Government to the Advisory Board. The Advisory Board sent its report to the State Government on July 8, 1971. Opinion was expressed by the Advisory Board that there was sufficient clause for the detention of the petitioner. The State Government confirmed the order of detention on July 21, 1971.5. The petition has been resisted by the respondents and the affidavit of Shri Manoranjan Dey, Assistant Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.6. Mr. Santokh Singh who has argued the case amicus curiae on behalf of the petitioner, contends that the order of detention made against the petitioner by the District Magistrate shows an element of casualness and absence of due application of mind, as according to the order the petitioner was detained "with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order". It is urged that the use of the word "or" in the order shows that the detaining authority was not definite regarding the ground of detention. Similar argument was advanced before us in the case of Ananta Mukhi alias Ananta Hari v. The State of West Bengal (supra). and was rejected. It has been held by us that the use of the word "or" in the detention order would not introduce an infirmity as might justify the quashing of that order.
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0
### Explanation:
6. Mr. Santokh Singh who has argued the case amicus curiae on behalf of the petitioner, contends that the order of detention made against the petitioner by the District Magistrate shows an element of casualness and absence of due application of mind, as according to the order the petitioner was detained "with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order". It is urged that the use of the word "or" in the order shows that the detaining authority was not definite regarding the ground of detention.Similar argument was advanced before us in the case of Ananta Mukhi alias Ananta Hari v. The State of West Bengal (supra). and was rejected. It has been held by us that the use of the word "or" in the detention order would not introduce an infirmity as might justify the quashing of that order.
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M. A. Jabbar Vs. Commissioner Of Income-Tax, Andhra Pradesh,Hyderabad | refer to those cases, because the question whether a particular expenditure is of a capital nature or is a revenue expenditure has always to be decided on the special facts of each case. We may, however, make a reference to the decision of this Court in Gotan Lime Syndicate v. Commissioner of Income-tax, Rajasthan and Delhi, 1966-59 ITR 718 = (AIR 1966 SC 1564 ). In that case also, Rule 13 of the Rajasthan Minor Mineral Concession Rules, 1955, which was applicable, provided that the lease shall be in respect of plots comprising of 5 square miles each. The lessee was even entitled to transfer his lease or any right, title or interest therein to a person holding a certificate of approval on payment of a fee, subject to the previous sanction of the Director of Mines and Geology, and subject to some other conditions. Rule 18 prescribed a period of 5 years for a lease and the lease was renewable at the option of the assessee for a further period of five years. Even on these facts, this Court held that the lessee in that case, in obtaining the lease and paying lease money, had not incurred an expenditure of a capital nature, and was entitled to claim that the lease money paid by him was a revenue expenditure. In that case also, thus, the lease was in respect of plots, so that interest in land was conveyed, but the Court, on considering the object of the lease and the manner in winch the rights under it were to be exercised, came to the finding that no capital expenditure was involved and that the only right acquired was the right to obtain raw material from the leased land. The payment was not for securing an enduring advantage. In the case before us, the facts are much stronger in favour of the assessee. The period of lease is shorter and the only object of the lease is to remove sand lying loose on the surface, without exercising any other right on the land included in the lease. 5. In Bombay Steam Navigation Co. (1953) Private Ltd. v. Commissioner of Income-tax, Bombay, 1965-56 ITR 52 at p. 59 = (AIR 1965 SC 1201 at p. 1205), this Court explained the principle of determining the nature of an expenditure. The Court held: Whether a particular expenditure is revenue expenditure incurred for the purpose of business must be determined on a consideration of all the facts and circumstances, and by the application of principles of commercial trading. The question must be viewed in the larger context of business necessity or expediency. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit-earning process and not for acquisition of an asset or a right of a permanent character, the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure. Clearly, in the present case, the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of a permanent character. It was for the specific object of enabling the assessee to remove and lying loose on the surface which was the stock-in-trade of the business of the assessee, so that the expenditure has to be regarded as revenue expenditure. 6. Counsel appearing for the Department relied on a decision of this Court in K. T. M. T. M. Abdul Kayoom v. Commissioner of Income-tax, Madras. 1962-44 ITR 689 at p. 707 = (AIR 1962 SC 680 at p. 690). The majority judgment in that case shows that the assessee, which was carrying on business in conch shells locally known as chanks, took on lease the exclusive right, liberty and authority to take and carry away all chanks found in the sea for a period of three years ending on June, 30, 1947 along a specified portion of the coast. The consideration of Rs. 6,111 per year was payable in advance. It was held on the facts of that case that this expenditure was of the nature of capital expenditure and not revenue expenditure. On the face of it the distinguishing feature was that, in that case, the lessee had to obtain fish from the sea and, consequently, had to operate in the waters of the sea itself, and that was the main reason why the Court held against the assessee. This difference is clearly brought out in the judgment of the majority where it was held :- This is not a case of so much clay or so much salt-petre or a dump of tailings or leaves on the trees in a forest. The two modes in which the respondent did the business furnish adequate distinguishing characteristics. Here is an agreement to reserve a source, where the respondent hoped to find shells which, when found, became its stock-in-trade but which, in situ, were no more the firms than a shell in the deepest part of the ocean beyond the reach of its divers and nets. The expenses of fishing shells were its current expenses as also the expenses incurred over the purchase of shells from the divers. But to say that the payment of lease money for reserving an exclusive right to fish for chanks was on a par with payments of the other character is to err. 7. It is clear that, in the present case, there is no such reservation of an exclusive right in respect of any land. In fact, the first sentence in the quotation above is clearly applicable to the present case if, for the word clay, the word sand is substituted.The present is a case where sand lying loose on the surface of the land is to be removed and the whole object of the lease was to obtain the right to the sand which was to be the stock-in-trade of the assessee. | 1[ds]It appears to us that, on the language of the lease-deed, this submission cannot be accepted. The lease specifically mentions in para 3 that, under it, the Government do hereby demise and grant unto the lessee exclusive lease and liberty to enter, occupy, and use for quarrying purpose and to raise, render marketable, carry away, sell and dispose of sand within or under or upon the lands specified in this lease and for the period named therein. Thus, there was a specific provision that the lessee was to have an exclusive right to enter and occupy the land. Further, was a provision that, in case any mineral not specified in the lease was discovered in this land, the lessee was to report such discovery to the Director of Mines and Geology and could obtain either a prospecting licence or a mining lease in respect of it, but, if he intimated his intention of not working the newly discovered mineral, or failed to give any intimation to work it within the period of three months, it would be open to the Government to sublet the working of such newly discovered mineral. This use of the word sublet in the deed indicates that, though the Government reserved to it the right to allow some other person to work the newly discovered mineral, that person could only be admitted as a sub-lessee and, obviously, he would be the sub-lessee under the assessee.These terms do indicate that an interest in land was also conveyed by the lease; but that is, in our opinion, not decisive of the question whether the money payable under the lease was a capital expenditure or a revenue expenditure. As an example, if a shop is taken on rent by a person to run his business and he pays monthly or annual rent, he certainly acquires an interest in the building and the land on which it stands as a lessee, but no one will contend that the payment of rent would be an expenditure of a capital nature and not revenue expenditure. The decisive factor is the object with which the lease is taken and the nature of the payment which is being made when obtaining the lease3. In the present case, there are a number of factors which lead to the conclusion that the expenditure incurred by the assessee in obtaining the lease was revenue expenditure for the purpose of obtaining stock-in-trade and not capital expenditure. The first point is that the lease was for a very short period of 11 months only. Consequently, it is clear that the assessee did not obtain any capital asset of an enduring nature by obtaining this lease. Then the second circumstance is that the sole right which was acquired by him under the lease-deed was to take away the sand lying on the leased land. No doubt, the document mentioned that he was entitled to raise render marketable, carry away, sell and dispose of the sand within or under or upon the land specified in this lease; but there was a clear finding of fact recorded by the Appellate Assistant Commissioner and affirmed by the Tribunal that all the sand that could be removed was lying on the surface and there was no question of raising, digging or excavating for the sand before obtaining it. No operations were, therefore, to be performed on the land itself. It appears that the High Court, in giving its decision against the assessee, fell into an error in not accepting the finding of fact that the sand was lying loose on the surface and the contract was only for removal of that sand and, instead, recording for itself a different finding. In examining this question of fact it is clear that the High Court exceeded its jurisdiction. The finding of fact recorded by the Appellate Assistant Commissioner had been affirmed by the Tribunal and no question was referred to the High Court that it was a finding which was based on no evidenceThis circumstance that the sand was lying loose and merely required removal without any excavation or digging makes it clear that what the assessee was taking under the lease for the purpose of his business was the right to remove that sand and that he was not acquiring the land or any other rights in the land for any other purpose. Then there is the additional fact that the lease was for a very short period of 11 months. On these facts, the conclusion was irresistible that, in agreeing to pay this large sum of Rs. 82,500. the assesses was bargaining for the right to remove the sand lying loose on the land within that short period of 11 months to the extent to which he could do so. He did not acquire any fixed or capital asset of an enduring nature by obtaining this lease and all he had in view was to have the right to obtain his stock-in-trade in the form of sand. We do not consider it necessary to refer to those cases, because the question whether a particular expenditure is of a capital nature or is a revenue expenditure has always to be decided on the special facts of each caseIn the case before us, the facts are much stronger in favour of the assessee. The period of lease is shorter and the only object of the lease is to remove sand lying loose on the surface, without exercising any other right on the land included in the leaseClearly, in the present case, the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of a permanent character. It was for the specific object of enabling the assessee to remove and lying loose on the surface which was the stock-in-trade of the business of the assessee, so that the expenditure has to be regarded as revenue expenditureIt is clear that, in the present case, there is no such reservation of an exclusive right in respect of any land. In fact, the first sentence in the quotation above is clearly applicable to the present case if, for the word clay, the word sand is substituted.The present is a case where sand lying loose on the surface of the land is to be removed and the whole object of the lease was to obtain the right to the sand which was to be the stock-in-trade of the assessee4. During the course of arguments before us, a number of cases were brought to our notice which related to quarrying leases of various types in India and in. We do not consider it necessary to refer to those cases, because the question whether a particular expenditure is of a capital nature or is a revenue expenditure has always to be decided on the special facts of each. We may, however, make a reference to the decision of this Court in Gotan Lime Syndicate v. Commissioner of9 ITR 718 = (AIR 1966 SC 1564 ). In that case also, Rule 13 of the Rajasthan Minor Mineral Concession Rules, 1955, which was applicable, provided that the lease shall be in respect of plots comprising of 5 square miles each. The lessee was even entitled to transfer his lease or any right, title or interest therein to a person holding a certificate of approval on payment of a fee, subject to the previous sanction of the Director of Mines and Geology, and subject to some other conditions. Rule 18 prescribed a period of 5 years for a lease and the lease was renewable at the option of the assessee for a further period of five years. Even on these facts, this Court held that the lessee in that case, in obtaining the lease and paying lease money, had not incurred an expenditure of a capital nature, and was entitled to claim that the lease money paid by him was a revenue expenditure. In that case also, thus, the lease was in respect of plots, so that interest in land was conveyed, but the Court, on considering the object of the lease and the manner in winch the rights under it were to be exercised, came to the finding that no capital expenditure was involved and that the only right acquired was the right to obtain raw material from the leased land. The payment was not for securing an enduring advantage.In the case before us, the facts are much stronger in favour of the assessee. The period of lease is shorter and the only object of the lease is to remove sand lying loose on the surface, without exercising any other right on the land included in the | 1 | 3,007 | 1,564 | ### 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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refer to those cases, because the question whether a particular expenditure is of a capital nature or is a revenue expenditure has always to be decided on the special facts of each case. We may, however, make a reference to the decision of this Court in Gotan Lime Syndicate v. Commissioner of Income-tax, Rajasthan and Delhi, 1966-59 ITR 718 = (AIR 1966 SC 1564 ). In that case also, Rule 13 of the Rajasthan Minor Mineral Concession Rules, 1955, which was applicable, provided that the lease shall be in respect of plots comprising of 5 square miles each. The lessee was even entitled to transfer his lease or any right, title or interest therein to a person holding a certificate of approval on payment of a fee, subject to the previous sanction of the Director of Mines and Geology, and subject to some other conditions. Rule 18 prescribed a period of 5 years for a lease and the lease was renewable at the option of the assessee for a further period of five years. Even on these facts, this Court held that the lessee in that case, in obtaining the lease and paying lease money, had not incurred an expenditure of a capital nature, and was entitled to claim that the lease money paid by him was a revenue expenditure. In that case also, thus, the lease was in respect of plots, so that interest in land was conveyed, but the Court, on considering the object of the lease and the manner in winch the rights under it were to be exercised, came to the finding that no capital expenditure was involved and that the only right acquired was the right to obtain raw material from the leased land. The payment was not for securing an enduring advantage. In the case before us, the facts are much stronger in favour of the assessee. The period of lease is shorter and the only object of the lease is to remove sand lying loose on the surface, without exercising any other right on the land included in the lease. 5. In Bombay Steam Navigation Co. (1953) Private Ltd. v. Commissioner of Income-tax, Bombay, 1965-56 ITR 52 at p. 59 = (AIR 1965 SC 1201 at p. 1205), this Court explained the principle of determining the nature of an expenditure. The Court held: Whether a particular expenditure is revenue expenditure incurred for the purpose of business must be determined on a consideration of all the facts and circumstances, and by the application of principles of commercial trading. The question must be viewed in the larger context of business necessity or expediency. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit-earning process and not for acquisition of an asset or a right of a permanent character, the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure. Clearly, in the present case, the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of a permanent character. It was for the specific object of enabling the assessee to remove and lying loose on the surface which was the stock-in-trade of the business of the assessee, so that the expenditure has to be regarded as revenue expenditure. 6. Counsel appearing for the Department relied on a decision of this Court in K. T. M. T. M. Abdul Kayoom v. Commissioner of Income-tax, Madras. 1962-44 ITR 689 at p. 707 = (AIR 1962 SC 680 at p. 690). The majority judgment in that case shows that the assessee, which was carrying on business in conch shells locally known as chanks, took on lease the exclusive right, liberty and authority to take and carry away all chanks found in the sea for a period of three years ending on June, 30, 1947 along a specified portion of the coast. The consideration of Rs. 6,111 per year was payable in advance. It was held on the facts of that case that this expenditure was of the nature of capital expenditure and not revenue expenditure. On the face of it the distinguishing feature was that, in that case, the lessee had to obtain fish from the sea and, consequently, had to operate in the waters of the sea itself, and that was the main reason why the Court held against the assessee. This difference is clearly brought out in the judgment of the majority where it was held :- This is not a case of so much clay or so much salt-petre or a dump of tailings or leaves on the trees in a forest. The two modes in which the respondent did the business furnish adequate distinguishing characteristics. Here is an agreement to reserve a source, where the respondent hoped to find shells which, when found, became its stock-in-trade but which, in situ, were no more the firms than a shell in the deepest part of the ocean beyond the reach of its divers and nets. The expenses of fishing shells were its current expenses as also the expenses incurred over the purchase of shells from the divers. But to say that the payment of lease money for reserving an exclusive right to fish for chanks was on a par with payments of the other character is to err. 7. It is clear that, in the present case, there is no such reservation of an exclusive right in respect of any land. In fact, the first sentence in the quotation above is clearly applicable to the present case if, for the word clay, the word sand is substituted.The present is a case where sand lying loose on the surface of the land is to be removed and the whole object of the lease was to obtain the right to the sand which was to be the stock-in-trade of the assessee.
### Response:
1
### Explanation:
is that the sole right which was acquired by him under the lease-deed was to take away the sand lying on the leased land. No doubt, the document mentioned that he was entitled to raise render marketable, carry away, sell and dispose of the sand within or under or upon the land specified in this lease; but there was a clear finding of fact recorded by the Appellate Assistant Commissioner and affirmed by the Tribunal that all the sand that could be removed was lying on the surface and there was no question of raising, digging or excavating for the sand before obtaining it. No operations were, therefore, to be performed on the land itself. It appears that the High Court, in giving its decision against the assessee, fell into an error in not accepting the finding of fact that the sand was lying loose on the surface and the contract was only for removal of that sand and, instead, recording for itself a different finding. In examining this question of fact it is clear that the High Court exceeded its jurisdiction. The finding of fact recorded by the Appellate Assistant Commissioner had been affirmed by the Tribunal and no question was referred to the High Court that it was a finding which was based on no evidenceThis circumstance that the sand was lying loose and merely required removal without any excavation or digging makes it clear that what the assessee was taking under the lease for the purpose of his business was the right to remove that sand and that he was not acquiring the land or any other rights in the land for any other purpose. Then there is the additional fact that the lease was for a very short period of 11 months. On these facts, the conclusion was irresistible that, in agreeing to pay this large sum of Rs. 82,500. the assesses was bargaining for the right to remove the sand lying loose on the land within that short period of 11 months to the extent to which he could do so. He did not acquire any fixed or capital asset of an enduring nature by obtaining this lease and all he had in view was to have the right to obtain his stock-in-trade in the form of sand. We do not consider it necessary to refer to those cases, because the question whether a particular expenditure is of a capital nature or is a revenue expenditure has always to be decided on the special facts of each caseIn the case before us, the facts are much stronger in favour of the assessee. The period of lease is shorter and the only object of the lease is to remove sand lying loose on the surface, without exercising any other right on the land included in the leaseClearly, in the present case, the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of a permanent character. It was for the specific object of enabling the assessee to remove and lying loose on the surface which was the stock-in-trade of the business of the assessee, so that the expenditure has to be regarded as revenue expenditureIt is clear that, in the present case, there is no such reservation of an exclusive right in respect of any land. In fact, the first sentence in the quotation above is clearly applicable to the present case if, for the word clay, the word sand is substituted.The present is a case where sand lying loose on the surface of the land is to be removed and the whole object of the lease was to obtain the right to the sand which was to be the stock-in-trade of the assessee4. During the course of arguments before us, a number of cases were brought to our notice which related to quarrying leases of various types in India and in. We do not consider it necessary to refer to those cases, because the question whether a particular expenditure is of a capital nature or is a revenue expenditure has always to be decided on the special facts of each. We may, however, make a reference to the decision of this Court in Gotan Lime Syndicate v. Commissioner of9 ITR 718 = (AIR 1966 SC 1564 ). In that case also, Rule 13 of the Rajasthan Minor Mineral Concession Rules, 1955, which was applicable, provided that the lease shall be in respect of plots comprising of 5 square miles each. The lessee was even entitled to transfer his lease or any right, title or interest therein to a person holding a certificate of approval on payment of a fee, subject to the previous sanction of the Director of Mines and Geology, and subject to some other conditions. Rule 18 prescribed a period of 5 years for a lease and the lease was renewable at the option of the assessee for a further period of five years. Even on these facts, this Court held that the lessee in that case, in obtaining the lease and paying lease money, had not incurred an expenditure of a capital nature, and was entitled to claim that the lease money paid by him was a revenue expenditure. In that case also, thus, the lease was in respect of plots, so that interest in land was conveyed, but the Court, on considering the object of the lease and the manner in winch the rights under it were to be exercised, came to the finding that no capital expenditure was involved and that the only right acquired was the right to obtain raw material from the leased land. The payment was not for securing an enduring advantage.In the case before us, the facts are much stronger in favour of the assessee. The period of lease is shorter and the only object of the lease is to remove sand lying loose on the surface, without exercising any other right on the land included in the
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State of Bihar Vs. Shri K.M. Zuberi and Others | (f) forty-five acres equivalent to 18.211 hectares of hilly, sandy, forest land, even land perennially submerged under water or other kind of land none of which yields paddy, rabi or cash crops (hereinafter referred to as class VI land)" 7. Section 5 puts an embargo for any family to hold land in excess of the ceiling area except provided under the Act. "5. No person to hold land in excess of the ceiling area.--(l)(i) It shall not be lawful for any family to hold, except otherwise provided under this Act, land In excess of the ceiling area. Explanation.-- All lands own ed or held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be owned or held by the family.(ii) No land holder holding land in excess of the ceiling area shall from the commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1972 and till the publication of notification under Section 1 5, transfer any land held by him except with the previous permission in writing of the Collector, who may refuse to give such permission if he is satisfied for the reasons to be recorded in writing that the transfer is proposed to be made with a mala fide intention of defeating the object of this Act: Provided that the transfer of any land made, with the previous permission of the Collector, shall be deemed to have been made from within the ceiling area admissible to the land-holder: Provided also that the transfer of any land beyond the ceiling area admissible to the land-holder shall be deemed to have been made with the object of defeating the provisions of the Act. (iii) Notwithstanding anything to the contrary contained in any judgment. decree or order of any court or authority, the Collector shall have power to make enquiries in respect of any transfer of land by a land-holder whether by a registered instrument or otherwise made after the 22nd day of October 1959 and if he is satisfied that such transfer was made with the object of defeating, or in contravention of the provisions of this Act or for retaining, benami or farzi land in excess of the ceiling area, the Collector may after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer and thereupon the land shall be deemed to be held by the transferor for the purposes of determining the ceiling area he may hold under this section. (iv) Land donated by a land-holder under the Bihar Bhoodan Yagna Act, 1954 (Bihar Act XXII of 1954), to the extent it subsequently vests in the Bhoodan Yagna Committee under the said Act before the date of the final publication of draft statement under Section 11 of this Act, shall not be taken into account in determining the area he may retain under this section."Explanati on to Section 5(1) connotes that the land owned or held individually by the members of the family or jointly shall be deemed to be held or owned by the family. 8. Section 6 provides for issuance of the public notice calling upon the land-holders of the State who hold land in excess of the ceiling area to submit a return to the Collector of the District where they originally reside indicating the particulars as mentioned therein. 9. Section 7 authorizes the Collector to obtain necessary information if a ceiling surplus holder fails to submit return under Section 6 with regard to area held by such surplus holder. 10. Section 10 is the provision for preparation of a draft statement on the basis of information received from the land-holder. 11. Section 11 provides for publication of the draft statement after disposing all the claims or objections preferred by the land-holder. 12. Section 15 confers power on the State Government and the Collector o f the District to acquire surplus land in the hands of the surplus holder. We are not concerned with the other provisions of the Act for adjudicating the point in issue. An analysis of the aforesaid provisions unequivocally indicate that under the Act the ceiling area is required to be determined of a "family" as defined in Section 2(ee) and. therefore, the land-holder of whose ceiling is going to be determined may be either a person. his or her spouse, and minor children. A major child whether belonging to a Hindu family or a Mohammedan or Christian is not conceived of getting an additional unit while determining the ceiling area of a land holder. A major son of a Hindu can get an independent ceiling determined provided he is raiyat within the meaning of Section 2(k) and has become a land-holder within the ambit of Section 2 (g) but not as a successor to the land-holder whose ceiling is being determined on the ground that he has a right in the property by virtue of birth. In other words, under the Act no distinction has been maintained between Hindu, Mohammedan, Christian for determination of the ceiling area in the hands of the land-holder.The majority view expressed by Chief Justice as well as by Justice Agrawal approached the problem on incorrect premise as if under the Act the adult son of a land-holder governed by Mitakshara School of Hindu Law has been given an additional unit. Minority view of Justice L.M. Sharma is wholly correct one. The ultimate conclusion, as expressed by the majority judgment, in answering question no. 2 is, therefore, unsustainable in law. In our considered opinion, under the Act while determining the ceiling area in the hands of a land-holder whether governed by Mitakshara law or governed by Mohammedan law no additional unit is given to an adult son of the land-holder and, therefore, the earlier view expressed by Patna High Court in Imamul Hassan Choudhrys case reported in 1982 (Vol.30) Bihar Law Journal Reports p.150 lays down law correctly. 13. | 1[ds]It is to be noted that so far as the answer to the first question is concerned, there is no dispute between the parties and, in our view rightly since the statutory definition of "family" in Section 2 (ee) does not conceive of any personal law applicable to the said family and, therefore, no personal law can be taken into consideration for determination of the ceiling surplus with the land holder under the Act. In order to rest the correctness of the majority view, so far as the second question is concerned, it would be appropriate for us to examine the relevant provisions of the Act. Section 2 (aaa) defines "ceiling area" to mean the area of land fixed under Section 4 as the ceilinganalysis of the aforesaid provisions unequivocally indicate that under the Act the ceiling area is required to be determined of a "family" as defined in Section 2(ee) and. therefore, the land-holder of whose ceiling is going to be determined may be either a person. his or her spouse, and minor children. A major child whether belonging to a Hindu family or a Mohammedan or Christian is not conceived of getting an additional unit while determining the ceiling area of a land holder. A major son of a Hindu can get an independent ceiling determined provided he is raiyat within the meaning of Section 2(k) and has become a land-holder within the ambit of Section 2 (g) but not as a successor to the land-holder whose ceiling is being determined on the ground that he has a right in the property by virtue of birth. In other words, under the Act no distinction has been maintained between Hindu, Mohammedan, Christian for determination of the ceiling area in the hands of the land-holder.The majority view expressed by Chief Justice as well as by Justice Agrawal approached the problem on incorrect premise as if under the Act the adult son of a land-holder governed by Mitakshara School of Hindu Law has been given an additional unit. Minority view of Justice L.M. Sharma is wholly correct one. The ultimate conclusion, as expressed by the majority judgment, in answering question no. 2 is, therefore, unsustainable in law. In our considered opinion, under the Act while determining the ceiling area in the hands of a land-holder whether governed by Mitakshara law or governed by Mohammedan law no additional unit is given to an adult son of the land-holder and, therefore, the earlier view expressed by Patna High Court in Imamul Hassan Choudhrys case reported in 1982 (Vol.30) Bihar Law Journal Reports p.150 lays down law correctly. | 1 | 3,238 | 489 | ### 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:
(f) forty-five acres equivalent to 18.211 hectares of hilly, sandy, forest land, even land perennially submerged under water or other kind of land none of which yields paddy, rabi or cash crops (hereinafter referred to as class VI land)" 7. Section 5 puts an embargo for any family to hold land in excess of the ceiling area except provided under the Act. "5. No person to hold land in excess of the ceiling area.--(l)(i) It shall not be lawful for any family to hold, except otherwise provided under this Act, land In excess of the ceiling area. Explanation.-- All lands own ed or held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be owned or held by the family.(ii) No land holder holding land in excess of the ceiling area shall from the commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1972 and till the publication of notification under Section 1 5, transfer any land held by him except with the previous permission in writing of the Collector, who may refuse to give such permission if he is satisfied for the reasons to be recorded in writing that the transfer is proposed to be made with a mala fide intention of defeating the object of this Act: Provided that the transfer of any land made, with the previous permission of the Collector, shall be deemed to have been made from within the ceiling area admissible to the land-holder: Provided also that the transfer of any land beyond the ceiling area admissible to the land-holder shall be deemed to have been made with the object of defeating the provisions of the Act. (iii) Notwithstanding anything to the contrary contained in any judgment. decree or order of any court or authority, the Collector shall have power to make enquiries in respect of any transfer of land by a land-holder whether by a registered instrument or otherwise made after the 22nd day of October 1959 and if he is satisfied that such transfer was made with the object of defeating, or in contravention of the provisions of this Act or for retaining, benami or farzi land in excess of the ceiling area, the Collector may after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer and thereupon the land shall be deemed to be held by the transferor for the purposes of determining the ceiling area he may hold under this section. (iv) Land donated by a land-holder under the Bihar Bhoodan Yagna Act, 1954 (Bihar Act XXII of 1954), to the extent it subsequently vests in the Bhoodan Yagna Committee under the said Act before the date of the final publication of draft statement under Section 11 of this Act, shall not be taken into account in determining the area he may retain under this section."Explanati on to Section 5(1) connotes that the land owned or held individually by the members of the family or jointly shall be deemed to be held or owned by the family. 8. Section 6 provides for issuance of the public notice calling upon the land-holders of the State who hold land in excess of the ceiling area to submit a return to the Collector of the District where they originally reside indicating the particulars as mentioned therein. 9. Section 7 authorizes the Collector to obtain necessary information if a ceiling surplus holder fails to submit return under Section 6 with regard to area held by such surplus holder. 10. Section 10 is the provision for preparation of a draft statement on the basis of information received from the land-holder. 11. Section 11 provides for publication of the draft statement after disposing all the claims or objections preferred by the land-holder. 12. Section 15 confers power on the State Government and the Collector o f the District to acquire surplus land in the hands of the surplus holder. We are not concerned with the other provisions of the Act for adjudicating the point in issue. An analysis of the aforesaid provisions unequivocally indicate that under the Act the ceiling area is required to be determined of a "family" as defined in Section 2(ee) and. therefore, the land-holder of whose ceiling is going to be determined may be either a person. his or her spouse, and minor children. A major child whether belonging to a Hindu family or a Mohammedan or Christian is not conceived of getting an additional unit while determining the ceiling area of a land holder. A major son of a Hindu can get an independent ceiling determined provided he is raiyat within the meaning of Section 2(k) and has become a land-holder within the ambit of Section 2 (g) but not as a successor to the land-holder whose ceiling is being determined on the ground that he has a right in the property by virtue of birth. In other words, under the Act no distinction has been maintained between Hindu, Mohammedan, Christian for determination of the ceiling area in the hands of the land-holder.The majority view expressed by Chief Justice as well as by Justice Agrawal approached the problem on incorrect premise as if under the Act the adult son of a land-holder governed by Mitakshara School of Hindu Law has been given an additional unit. Minority view of Justice L.M. Sharma is wholly correct one. The ultimate conclusion, as expressed by the majority judgment, in answering question no. 2 is, therefore, unsustainable in law. In our considered opinion, under the Act while determining the ceiling area in the hands of a land-holder whether governed by Mitakshara law or governed by Mohammedan law no additional unit is given to an adult son of the land-holder and, therefore, the earlier view expressed by Patna High Court in Imamul Hassan Choudhrys case reported in 1982 (Vol.30) Bihar Law Journal Reports p.150 lays down law correctly. 13.
### Response:
1
### Explanation:
It is to be noted that so far as the answer to the first question is concerned, there is no dispute between the parties and, in our view rightly since the statutory definition of "family" in Section 2 (ee) does not conceive of any personal law applicable to the said family and, therefore, no personal law can be taken into consideration for determination of the ceiling surplus with the land holder under the Act. In order to rest the correctness of the majority view, so far as the second question is concerned, it would be appropriate for us to examine the relevant provisions of the Act. Section 2 (aaa) defines "ceiling area" to mean the area of land fixed under Section 4 as the ceilinganalysis of the aforesaid provisions unequivocally indicate that under the Act the ceiling area is required to be determined of a "family" as defined in Section 2(ee) and. therefore, the land-holder of whose ceiling is going to be determined may be either a person. his or her spouse, and minor children. A major child whether belonging to a Hindu family or a Mohammedan or Christian is not conceived of getting an additional unit while determining the ceiling area of a land holder. A major son of a Hindu can get an independent ceiling determined provided he is raiyat within the meaning of Section 2(k) and has become a land-holder within the ambit of Section 2 (g) but not as a successor to the land-holder whose ceiling is being determined on the ground that he has a right in the property by virtue of birth. In other words, under the Act no distinction has been maintained between Hindu, Mohammedan, Christian for determination of the ceiling area in the hands of the land-holder.The majority view expressed by Chief Justice as well as by Justice Agrawal approached the problem on incorrect premise as if under the Act the adult son of a land-holder governed by Mitakshara School of Hindu Law has been given an additional unit. Minority view of Justice L.M. Sharma is wholly correct one. The ultimate conclusion, as expressed by the majority judgment, in answering question no. 2 is, therefore, unsustainable in law. In our considered opinion, under the Act while determining the ceiling area in the hands of a land-holder whether governed by Mitakshara law or governed by Mohammedan law no additional unit is given to an adult son of the land-holder and, therefore, the earlier view expressed by Patna High Court in Imamul Hassan Choudhrys case reported in 1982 (Vol.30) Bihar Law Journal Reports p.150 lays down law correctly.
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Neelakantan Damodaran Namboori & Another Vs. Velayudhan Pillai Narayana Pillai & Another | AP and AR are the letters alleged to have been written by the respondent wherein it is said that he admitted that the marriage of the appellants was performed in the sarvaswadanam form. Except letters marked as exhibits N, P, and Q which were admitted, others were not proved. Most of those letters were written to Narayanan Namboori at Sivolli Illom, that is the maternal grand-father of the second appellant. They were written after Narayanan Namboori of Kopprathu Illom filed O. S. No. 1016 of 112 against the respondent for the recovery of the suit property therein on the basis of a lease. In the written statement, the respondent, in an attempt to non-suit him, alleged that the appellants were married in sarvaswadanam form and therefore the suit without impleading them as parties was not maintainable. He also tried by writing some of the aforesaid letters to persuade Narayanan Namboori of Sivolli Illom, i.e., the maternal grandfather of the second appellant, to take steps to get exhibits X & XI cancelled on the basis of the aforesaid marriage. But after the death of Narayanan Namboori, he was able to get a document, exhibit XXIX, from the surviving member of the family, the old lady, Nangayya Antharjanam, conveying all the properties to him. The appellants took immediate steps to get the document set aside. This made the respondent to change his front and deny the form of marriage in sarvaswadanam form. Admittedly, the respondent was not present when the marriage took place. His admissions therefore are only based on hearsay. They only show that he is a speculator in litigation and had no. scruples to take inconsistent positions to achieve his ends. Therefore, the admissions made by the respondent cannot afford a sound basis for holding that the marriage was in sarvaswadanam form.15. There remains only the oral evidence adduced in this case. P. Ws. 2 and 3 have stated that the marriage was in sarvaswadanam form and exhibit C was written and signed on 25-6-1102. Both of the them are related to each other and are also related to Damodaran Namboori. That apart, they had stated that a number of respectable elderly Namboories attended the marriage; but none of them was examined; nor any attempt made to examine the priest, who, according to them, officiated at the marriage. The learned Judges were not able to accept the evidence of P. Ws. 2 and 3. We have gone through the evidence and we do not think that we are justified in taking a different view. P. W. 1, Damodaran Namboori is obviously an interested party and therefore his evidence cannot be accepted.16. To summarize, long before the marriage and the execution of exhibit C, Vasudevan Namboori and other members of the family were not on good terms and indeed there were protracted litigations between them. Vasudevan Namboori, with his daughter, left Kopprathu Illom, when Sankaran Namboori was treated as an out-caste in the year 1084 and began to live in his father-in-laws Illom. Though, Vasudevan was the karnavan from 1099, the actual management of the Illom affairs was in the hands of Narayanan Namboori. The members of the family joined together, borrowed an amount of Rs. 2, 500 and celebrated the marriage of the daughter of the family in 1102, as it was the legal obligation of the family. At the time of the marriage, streedhanam of Rs. 2, 000 was given to the bride. Exhibit C, the document recording the form of the marriage was not signed by the de facto manager or other elder members of the family. It did not see the light of day till 1106; when reliance was placed upon it, Narayanan Namboori denied that the marriage was in sarvaswadanam form. Narayanan Namboori and other members of the family, except Vasudevan Namboori, never treated the appellants as members of the family. They dealt with the property as if the appellants did not have any interest therein. The appellants also, notwithstanding the execution of exhibit C, never lived in the family house except for 10 days. They never enjoyed the family income nor did they ever claim any share in it. They did not set up that they were married in sarvaswadanam form except in the document Nangayya Antharjanam executed cancelling exhibit XXIX. The respondent who admittedly did not attend the marriage, took up inconsistent positions to suit his convenience. The respectable people who attended the marriage were not examined to prove the form of marriage. The two witnesses that were examined are not only related to each other but are also related to the first appellant. In the circumstances, though exhibit C was executed some time before it was registered, we hold on the evidence that it has not been established that the appellants were married in sarvaswadanam form..17. It is then contended that even if the marriage was not is sarvaswadanam form, the last surviving member of the family conveyed the suit properties to the appellants under exhibit A. There are two obstacles in the way of sustaining the appellants claim on the basis of exhibit A. If the marriage of the appellants did not take place in sarvaswadanam form. Nangayya Antharjanam had acted within her rights in settling her properties on the respondent under exhibit XXIX. Unless exhibit XXIX is displaced, exhibit A will not have any legal effect. The more insurmountable obstacle is that Nangayya Antharjanam did not create any interest in favour of the appellants under exhibit A. It is stated in exhibit A that, by reason of sarvaswadanam marriage, the appellants were entitled to all moveable and immovable properties belonging to Kopprathu Illom and therefore she was executing the release deed conferring all the rights and claims they have obtained over the Illom properties by the sarvaswadanam form of marriage. The document, therefore, in terms confirms the pre-existing rights of the appellants and as we hold that they had no. pre-existing rights, the document did not convey any interest to them. | 0[ds]6. No. material has been placed before us to show precisely the necessary ceremonies accompanying such a marriage and the legal incidents flowing from it. Neither before the High Court nor before the learned District Judge any attempt was made to contend that, though the marriage was ostensibly performed in sarvaswadanam form, the necessary ceremonies were not performed and therefore the marriage in that form was invalid.7. In the circumstances, we do not propose to express our opinion on the customary incidents of such a marriage. In the Courts below, the parties proceeded on the basis that in a sarvaswadanam marriage the daughter retained all the rights in the family properties in spite of her marriage, in the same way as a son did and if there was an agreement to that effect thealso would become a member of the family. We would, therefore, proceed to dispose of these appeals on the same basis.There remains only the oral evidence adduced in this case. P. Ws. 2 and 3 have stated that the marriage was in sarvaswadanam form and exhibit C was written and signed onBoth of the them are related to each other and are also related to Damodaran Namboori. That apart, they had stated that a number of respectable elderly Namboories attended the marriage; but none of them was examined; nor any attempt made to examine the priest, who, according to them, officiated at the marriage. The learned Judges were not able to accept the evidence of P. Ws. 2 and 3. We have gone through the evidence and we do not think that we are justified in taking a different view. P. W. 1, Damodaran Namboori is obviously an interested party and therefore his evidence cannot be accepted.16. To summarize, long before the marriage and the execution of exhibit C, Vasudevan Namboori and other members of the family were not on good terms and indeed there were protracted litigations between them. Vasudevan Namboori, with his daughter, left Kopprathu Illom, when Sankaran Namboori was treated as anoutcaste in the year 1084 andbegan to live in hisIllom. Though, Vasudevan was the karnavan from 1099, the actual management of the Illom affairs was in the hands of Narayanan Namboori. The members of the family joined together, borrowed an amount of Rs. 2, 500 and celebrated the marriage of the daughter of the family in 1102, as it was the legal obligation of the family. At the time of the marriage, streedhanam of Rs. 2, 000 was given to the bride. Exhibit C, the document recording the form of the marriage was not signed by the de facto manager or other elder members of the family. It did not see the light of day till 1106; when reliance was placed upon it, Narayanan Namboori denied that the marriage was in sarvaswadanam form. Narayanan Namboori and other members of the family, except Vasudevan Namboori, never treated the appellants as members of the family. They dealt with the property as if the appellants did not have any interest therein. The appellants also, notwithstanding the execution of exhibit C, never lived in the family house except for 10 days. They never enjoyed the family income nor did they ever claim any share in it. They did not set up that they were married in sarvaswadanam form except in the document Nangayya Antharjanam executed cancelling exhibit XXIX. The respondent who admittedly did not attend the marriage, took up inconsistent positions to suit his convenience. The respectable people who attended the marriage were not examined to prove the form of marriage. The two witnesses that were examined are not only related to each other but are also related to the first appellant. In the circumstances, though exhibit C was executed some time before it was registered, we hold on the evidence that it has not been established that the appellants were married in sarvaswadanam form..17.It is then contended that even if the marriage was not is sarvaswadanam form, the last surviving member of the family conveyed the suit properties to the appellants under exhibit A.There are two obstacles in the way of sustaining the appellants claim on the basis of exhibit A. If the marriage of the appellants did not take place in sarvaswadanam form. Nangayya Antharjanam had acted within her rights in settling her properties on the respondent under exhibit XXIX. Unless exhibit XXIX is displaced, exhibit A will not have any legal effect. The more insurmountable obstacle is that Nangayya Antharjanam did not create any interest in favour of the appellants under exhibit A. It is stated in exhibit A that, by reason of sarvaswadanam marriage, the appellants were entitled to all moveable and immovable properties belonging to Kopprathu Illom and therefore she was executing the release deed conferring all the rights and claims they have obtained over the Illom properties by the sarvaswadanam form of marriage. The document, therefore, in terms confirms therights of the appellants and as we hold that they had no.rights, the document did not convey any interest to them.Prima facie the document supports the appellants version. But a scrutiny of the evidence discloses that the respondents case is true. The circumstances of the family before the date of the marriage would afford a background for appreciating the evidence in this case. Though Vasudevan Namboori was the eldest member of the Koprathu Illom and therefore its de jure karnavan, it is common case that he left his family house along with his daughter and shifted his residence to Sivolli Illom, the place of hisVasudevan Namboori admitted in his evidence in O. S. 448 of 1106 that the Illom affairs were not attended to by him, at any rate, from the year 1099. Cash receipts exhibits AC and AD and the michavaram receipts ranging from 1101 to 1104 are in the name of Narayanan Namboori. Indeed it is not disputed that Narayanan Namboori, the junior member of the family, had been in actual management of the family and its properties till he died. | 0 | 5,381 | 1,100 | ### 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:
AP and AR are the letters alleged to have been written by the respondent wherein it is said that he admitted that the marriage of the appellants was performed in the sarvaswadanam form. Except letters marked as exhibits N, P, and Q which were admitted, others were not proved. Most of those letters were written to Narayanan Namboori at Sivolli Illom, that is the maternal grand-father of the second appellant. They were written after Narayanan Namboori of Kopprathu Illom filed O. S. No. 1016 of 112 against the respondent for the recovery of the suit property therein on the basis of a lease. In the written statement, the respondent, in an attempt to non-suit him, alleged that the appellants were married in sarvaswadanam form and therefore the suit without impleading them as parties was not maintainable. He also tried by writing some of the aforesaid letters to persuade Narayanan Namboori of Sivolli Illom, i.e., the maternal grandfather of the second appellant, to take steps to get exhibits X & XI cancelled on the basis of the aforesaid marriage. But after the death of Narayanan Namboori, he was able to get a document, exhibit XXIX, from the surviving member of the family, the old lady, Nangayya Antharjanam, conveying all the properties to him. The appellants took immediate steps to get the document set aside. This made the respondent to change his front and deny the form of marriage in sarvaswadanam form. Admittedly, the respondent was not present when the marriage took place. His admissions therefore are only based on hearsay. They only show that he is a speculator in litigation and had no. scruples to take inconsistent positions to achieve his ends. Therefore, the admissions made by the respondent cannot afford a sound basis for holding that the marriage was in sarvaswadanam form.15. There remains only the oral evidence adduced in this case. P. Ws. 2 and 3 have stated that the marriage was in sarvaswadanam form and exhibit C was written and signed on 25-6-1102. Both of the them are related to each other and are also related to Damodaran Namboori. That apart, they had stated that a number of respectable elderly Namboories attended the marriage; but none of them was examined; nor any attempt made to examine the priest, who, according to them, officiated at the marriage. The learned Judges were not able to accept the evidence of P. Ws. 2 and 3. We have gone through the evidence and we do not think that we are justified in taking a different view. P. W. 1, Damodaran Namboori is obviously an interested party and therefore his evidence cannot be accepted.16. To summarize, long before the marriage and the execution of exhibit C, Vasudevan Namboori and other members of the family were not on good terms and indeed there were protracted litigations between them. Vasudevan Namboori, with his daughter, left Kopprathu Illom, when Sankaran Namboori was treated as an out-caste in the year 1084 and began to live in his father-in-laws Illom. Though, Vasudevan was the karnavan from 1099, the actual management of the Illom affairs was in the hands of Narayanan Namboori. The members of the family joined together, borrowed an amount of Rs. 2, 500 and celebrated the marriage of the daughter of the family in 1102, as it was the legal obligation of the family. At the time of the marriage, streedhanam of Rs. 2, 000 was given to the bride. Exhibit C, the document recording the form of the marriage was not signed by the de facto manager or other elder members of the family. It did not see the light of day till 1106; when reliance was placed upon it, Narayanan Namboori denied that the marriage was in sarvaswadanam form. Narayanan Namboori and other members of the family, except Vasudevan Namboori, never treated the appellants as members of the family. They dealt with the property as if the appellants did not have any interest therein. The appellants also, notwithstanding the execution of exhibit C, never lived in the family house except for 10 days. They never enjoyed the family income nor did they ever claim any share in it. They did not set up that they were married in sarvaswadanam form except in the document Nangayya Antharjanam executed cancelling exhibit XXIX. The respondent who admittedly did not attend the marriage, took up inconsistent positions to suit his convenience. The respectable people who attended the marriage were not examined to prove the form of marriage. The two witnesses that were examined are not only related to each other but are also related to the first appellant. In the circumstances, though exhibit C was executed some time before it was registered, we hold on the evidence that it has not been established that the appellants were married in sarvaswadanam form..17. It is then contended that even if the marriage was not is sarvaswadanam form, the last surviving member of the family conveyed the suit properties to the appellants under exhibit A. There are two obstacles in the way of sustaining the appellants claim on the basis of exhibit A. If the marriage of the appellants did not take place in sarvaswadanam form. Nangayya Antharjanam had acted within her rights in settling her properties on the respondent under exhibit XXIX. Unless exhibit XXIX is displaced, exhibit A will not have any legal effect. The more insurmountable obstacle is that Nangayya Antharjanam did not create any interest in favour of the appellants under exhibit A. It is stated in exhibit A that, by reason of sarvaswadanam marriage, the appellants were entitled to all moveable and immovable properties belonging to Kopprathu Illom and therefore she was executing the release deed conferring all the rights and claims they have obtained over the Illom properties by the sarvaswadanam form of marriage. The document, therefore, in terms confirms the pre-existing rights of the appellants and as we hold that they had no. pre-existing rights, the document did not convey any interest to them.
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### Explanation:
No. material has been placed before us to show precisely the necessary ceremonies accompanying such a marriage and the legal incidents flowing from it. Neither before the High Court nor before the learned District Judge any attempt was made to contend that, though the marriage was ostensibly performed in sarvaswadanam form, the necessary ceremonies were not performed and therefore the marriage in that form was invalid.7. In the circumstances, we do not propose to express our opinion on the customary incidents of such a marriage. In the Courts below, the parties proceeded on the basis that in a sarvaswadanam marriage the daughter retained all the rights in the family properties in spite of her marriage, in the same way as a son did and if there was an agreement to that effect thealso would become a member of the family. We would, therefore, proceed to dispose of these appeals on the same basis.There remains only the oral evidence adduced in this case. P. Ws. 2 and 3 have stated that the marriage was in sarvaswadanam form and exhibit C was written and signed onBoth of the them are related to each other and are also related to Damodaran Namboori. That apart, they had stated that a number of respectable elderly Namboories attended the marriage; but none of them was examined; nor any attempt made to examine the priest, who, according to them, officiated at the marriage. The learned Judges were not able to accept the evidence of P. Ws. 2 and 3. We have gone through the evidence and we do not think that we are justified in taking a different view. P. W. 1, Damodaran Namboori is obviously an interested party and therefore his evidence cannot be accepted.16. To summarize, long before the marriage and the execution of exhibit C, Vasudevan Namboori and other members of the family were not on good terms and indeed there were protracted litigations between them. Vasudevan Namboori, with his daughter, left Kopprathu Illom, when Sankaran Namboori was treated as anoutcaste in the year 1084 andbegan to live in hisIllom. Though, Vasudevan was the karnavan from 1099, the actual management of the Illom affairs was in the hands of Narayanan Namboori. The members of the family joined together, borrowed an amount of Rs. 2, 500 and celebrated the marriage of the daughter of the family in 1102, as it was the legal obligation of the family. At the time of the marriage, streedhanam of Rs. 2, 000 was given to the bride. Exhibit C, the document recording the form of the marriage was not signed by the de facto manager or other elder members of the family. It did not see the light of day till 1106; when reliance was placed upon it, Narayanan Namboori denied that the marriage was in sarvaswadanam form. Narayanan Namboori and other members of the family, except Vasudevan Namboori, never treated the appellants as members of the family. They dealt with the property as if the appellants did not have any interest therein. The appellants also, notwithstanding the execution of exhibit C, never lived in the family house except for 10 days. They never enjoyed the family income nor did they ever claim any share in it. They did not set up that they were married in sarvaswadanam form except in the document Nangayya Antharjanam executed cancelling exhibit XXIX. The respondent who admittedly did not attend the marriage, took up inconsistent positions to suit his convenience. The respectable people who attended the marriage were not examined to prove the form of marriage. The two witnesses that were examined are not only related to each other but are also related to the first appellant. In the circumstances, though exhibit C was executed some time before it was registered, we hold on the evidence that it has not been established that the appellants were married in sarvaswadanam form..17.It is then contended that even if the marriage was not is sarvaswadanam form, the last surviving member of the family conveyed the suit properties to the appellants under exhibit A.There are two obstacles in the way of sustaining the appellants claim on the basis of exhibit A. If the marriage of the appellants did not take place in sarvaswadanam form. Nangayya Antharjanam had acted within her rights in settling her properties on the respondent under exhibit XXIX. Unless exhibit XXIX is displaced, exhibit A will not have any legal effect. The more insurmountable obstacle is that Nangayya Antharjanam did not create any interest in favour of the appellants under exhibit A. It is stated in exhibit A that, by reason of sarvaswadanam marriage, the appellants were entitled to all moveable and immovable properties belonging to Kopprathu Illom and therefore she was executing the release deed conferring all the rights and claims they have obtained over the Illom properties by the sarvaswadanam form of marriage. The document, therefore, in terms confirms therights of the appellants and as we hold that they had no.rights, the document did not convey any interest to them.Prima facie the document supports the appellants version. But a scrutiny of the evidence discloses that the respondents case is true. The circumstances of the family before the date of the marriage would afford a background for appreciating the evidence in this case. Though Vasudevan Namboori was the eldest member of the Koprathu Illom and therefore its de jure karnavan, it is common case that he left his family house along with his daughter and shifted his residence to Sivolli Illom, the place of hisVasudevan Namboori admitted in his evidence in O. S. 448 of 1106 that the Illom affairs were not attended to by him, at any rate, from the year 1099. Cash receipts exhibits AC and AD and the michavaram receipts ranging from 1101 to 1104 are in the name of Narayanan Namboori. Indeed it is not disputed that Narayanan Namboori, the junior member of the family, had been in actual management of the family and its properties till he died.
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M/S Kranti Asso. Pvt. Ltd. Vs. Masood Ahmed Khan | show the principles on which they have proceeded. Adopting Lord Lane CJs observations (in R vs. Immigration Appeal Tribunal, ex p Khan (Mahmud) [1983] 2 All ER 420 at 423, (1983) QB 790 at 794-795), the reasons for the lower amount is not obvious. Mr. Cunningham is entitled to know, either expressly or inferentially stated, what it was to which the board were addressing their mind in arriving at their conclusion. It must be obvious to the board that Mr. Cunningham is left with a burning sense of grievance. They should be sensitive to the fact that he is left with a real feeling of injustice, that having been found to have been unfairly dismissed, he has been deprived of his just desserts (as he sees them). 47. The learned Master of Rolls further clarified by saying: ..thus, in the particular circumstances of this case, and without wishing to establish any precedent whatsoever, I am prepared to spell out an obligation on this board to give succinct reasons, if only to put the mind of Mr. Cunningham at rest. I would therefore allow this application. 48. But, however, the present trend of the law has been towards an increasing recognition of the duty of Court to give reasons (See North Range Shipping Limited vs. Seatrans Shipping Corporation, (2002) 1 WLR 2397). It has been acknowledged that this trend is consistent with the development towards openness in Government and judicial administration. 49. In English vs. Emery Reimbold and Strick Limited, (2002) 1 WLR 2409, it has been held that justice will not be done if it is not apparent to the parties why one has won and the other has lost. The House of Lords in Cullen vs. Chief Constable of the Royal Ulster Constabulary, (2003) 1 WLR 1763, Lord Bingham of Cornhill and Lord Steyn, on the requirement of reason held, First, they impose a discipline ... which may contribute to such decisions being considered with care. Secondly, reasons encourage transparency ... Thirdly, they assist the Courts in performing their supervisory function if judicial review proceedings are launched. (Para 7, page 1769 of the report) 50. The position in the United States has been indicated by this Court in S.N. Mukherjee (supra) in paragraph 11 at page 1988 of the judgment. This Court held that in the United States the Courts have always insisted on the recording of reasons by administrative authorities in exercise of their powers. It was further held that such recording of reasons is required as the Court cannot exercise their duty of review unless they are advised of the considerations underlying the action under review. In S.N. Mukherjee (supra) this court relied on the decisions of the U.S. Court in Securities and Exchange Commission vs. Chenery Corporation, (1942) 87 Law Ed 626 and John T. Dunlop vs. Walter Bachowski, (1975) 44 Law Ed 377 in support of its opinion discussed above. 51. Summarizing the above discussion, this Court holds: 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. | 0[ds]51. Summarizing the above discussion, this Court holds:a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudiciallyl authority must record reasons in support of its conclusionsc. 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 welld. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial andl or even administrative powere. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerationsf. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial,l and even by administrative bodiesg. Reasons facilitate the process of judicial review by superior Courtsh. 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 justicel 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 systemj. Insistence on reason is a requirement for both judicial accountability and transparencyk. If a Judge or al 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 incrementalisml. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons orp reasons is not to be equated with a valid decision making processn. 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 andAnya vs. University of, 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 decisionso. 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. | 0 | 5,524 | 473 | ### 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:
show the principles on which they have proceeded. Adopting Lord Lane CJs observations (in R vs. Immigration Appeal Tribunal, ex p Khan (Mahmud) [1983] 2 All ER 420 at 423, (1983) QB 790 at 794-795), the reasons for the lower amount is not obvious. Mr. Cunningham is entitled to know, either expressly or inferentially stated, what it was to which the board were addressing their mind in arriving at their conclusion. It must be obvious to the board that Mr. Cunningham is left with a burning sense of grievance. They should be sensitive to the fact that he is left with a real feeling of injustice, that having been found to have been unfairly dismissed, he has been deprived of his just desserts (as he sees them). 47. The learned Master of Rolls further clarified by saying: ..thus, in the particular circumstances of this case, and without wishing to establish any precedent whatsoever, I am prepared to spell out an obligation on this board to give succinct reasons, if only to put the mind of Mr. Cunningham at rest. I would therefore allow this application. 48. But, however, the present trend of the law has been towards an increasing recognition of the duty of Court to give reasons (See North Range Shipping Limited vs. Seatrans Shipping Corporation, (2002) 1 WLR 2397). It has been acknowledged that this trend is consistent with the development towards openness in Government and judicial administration. 49. In English vs. Emery Reimbold and Strick Limited, (2002) 1 WLR 2409, it has been held that justice will not be done if it is not apparent to the parties why one has won and the other has lost. The House of Lords in Cullen vs. Chief Constable of the Royal Ulster Constabulary, (2003) 1 WLR 1763, Lord Bingham of Cornhill and Lord Steyn, on the requirement of reason held, First, they impose a discipline ... which may contribute to such decisions being considered with care. Secondly, reasons encourage transparency ... Thirdly, they assist the Courts in performing their supervisory function if judicial review proceedings are launched. (Para 7, page 1769 of the report) 50. The position in the United States has been indicated by this Court in S.N. Mukherjee (supra) in paragraph 11 at page 1988 of the judgment. This Court held that in the United States the Courts have always insisted on the recording of reasons by administrative authorities in exercise of their powers. It was further held that such recording of reasons is required as the Court cannot exercise their duty of review unless they are advised of the considerations underlying the action under review. In S.N. Mukherjee (supra) this court relied on the decisions of the U.S. Court in Securities and Exchange Commission vs. Chenery Corporation, (1942) 87 Law Ed 626 and John T. Dunlop vs. Walter Bachowski, (1975) 44 Law Ed 377 in support of its opinion discussed above. 51. Summarizing the above discussion, this Court holds: 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.
### Response:
0
### Explanation:
51. Summarizing the above discussion, this Court holds:a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudiciallyl authority must record reasons in support of its conclusionsc. 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 welld. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial andl or even administrative powere. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerationsf. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial,l and even by administrative bodiesg. Reasons facilitate the process of judicial review by superior Courtsh. 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 justicel 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 systemj. Insistence on reason is a requirement for both judicial accountability and transparencyk. If a Judge or al 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 incrementalisml. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons orp reasons is not to be equated with a valid decision making processn. 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 andAnya vs. University of, 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 decisionso. 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.
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Infrastructure Leasing &Fin.Services Ltd Vs. B.P.L. Limited | remains with the owner i.e. the pawnor. Though such a distinction exists, yet it is an accepted legal principle that hypothecation is treated as a sub-species of pledge and virtually has the same legal effect. In this context, reference to a passage from Lallan Prasad V. Rahmat Ali and another (AIR 1967 SC 1322 ), would be seemly. “17. There is no difference between the common law of England and the law with regard to pledge as codified in sections 172 to 176 of the Contract Act. Under section 172 a pledge is a bailment of the goods as security for payment of a debt or performance of a promise. Section 173 entitles a pawnee to retain the goods pledged as security for payment of a debt and under section 175 he is entitled to receive from the pawner any extraordinary expenses he incurs for the preservation of the goods pledged with him. Section 176 deals with the rights of a pawnee and provides that in case of default by the pawner the pawnee has (1) the right to sue upon the debt and to retain the goods as collateral security and (2) to sell the goods after reasonable notice of the intended sale to the pawner. Once the pawnee by virtue of his right under section 176 sells the goods the right of the pawner to redeem them is of course extinguished. But as aforesaid the pawnee is bound to apply the sale proceeds towards satisfaction of the debt and pay the surplus, if any, to the pawner. So long, however, as the sale does not take place the pawner is entitled to redeem the goods on payment of the debt. It follows therefore that where a pawnee files a suit for recovery of debt, though he is entitled to retain the goods he is bound to return them on payment of the debt. The right to sue on the debt assumes that he is in a position to redeliver the goods on payment of the debt and therefore if he has put himself in a position where he is not able to redeliver the goods he cannot obtain a decree. If it were otherwise, the result would be that he would recover the debt and also retain the goods pledged and the pawner in such a case would be placed in a position where he incurs a greater liability than he bargained for under the contract of pledge. The pawnee therefore can sue on the debt retaining the pledged goods as collateral security. If the debt is ordered to be paid he has to return the goods or if the goods are sold with or without the assistance of the court appropriate the sale proceeds towards the debt. But if he sues on the debt denying the pledge, and it is found that he was given possession of the goods pledged and had retained the same, the pawner has the right to redeem the goods so pledged by payment of the debt. If the pawnee is not in a position to redeliver the goods he cannot have both the payment of the debt and also the goods. Where the value of the pledged property is less than the debt and in a suit for recovery of debt by the pledgee, the pledge denies the pledge or is otherwise not in a position to return the pledged goods he has to give credit for the value of the goods and would be entitled then to recover only the balance”. 43. More than eight decades back, the Bombay High Court in Gulamhusain Lalji Sajan V. Clara D’Souza (AIR 1929 Bom. 471 ), while dealing with the applicability of Section 176 of the Contract Act to a case of hypothecation, had opined thus: “Under S.176, Contract Act, the pledge has a right to bring a suit against the pledgor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged in giving the pledgor reasonable notice of the sale.It is clear under the law applicable to cases of a pledge that the creditor has two rights which are concurrent, and the right to proceed against the property pledged is not merely accessory to the right to proceed against the debtor personally.For the pledge may have a right to sue for sale of the property even in the absence of a right to sue for a personal decree.The same principles would apply to the case of hypothecation or mortgages of moveable property.” Be it noted, in the said case reliance was placed on Nim Chad Babu v. Jagabandhu Ghose ([1894] 22 Ca. 21)and Mahalinga Nadar v. Ganapathi Subbien ([1902] 27 Mad. 528).44. We will be failing in our duty if we do not advert to the issue that the appellant shall remain as a secured creditor, for it was registered as such under the Registrar of Companies. The formalities for creating the charge having duly followed, the Division Bench has referred to the Form No. 8 and 13 and also adverted to the power of Registrar to make entries of satisfaction and release, as provided under Sections 138 and 139 of the Act. It has also expressed the view that in the absence of any proceeding, the status of the company as a secured creditor continues.45. After registration of the deed of hypothecation, if a condition subsequent is not satisfied, that would be in a different realm altogether. In any case, the finding has been recorded that the respondent was not at fault and, in any case, that would not change the status of the appellant as a secured creditor.46. In view of the aforesaid analysis, we are of the considered opinion that the appellant cannot be treated as an unsecured creditor and it is not permissible for him to put forth a stand that it would not be bound by the Scheme that has been approved by the learned Company Judge. | 0[ds]18. From the narration of facts and the contentions which have been highlighted, it is clear that two facts are beyond dispute. First, the appellant stands registered as a secured creditor of the respondent company on the record of the Registrar of Companies under the Act; and second, the arbitral tribunal has passed an award on the basis of consent and it has the status of a decree which is executable in law. Keeping in view these two undisputed facts, we have to appreciate the rival submissions raised at theobserved that the nature of compromise or arrangement between the company and the creditors and the members has to be kept in view, for it is the commercial wisdom of the parties to the scheme who have taken an informed decision about the usefulness and propriety of the scheme by supporting it by the requisite majority vote. Therefore, the Court does not act as a Court of Appeal and sit in judgment over the informed view of the parties concerned to the compromise as the same would be in the realm of corporate and commercial wisdom of the parties concerned and further the Court has neither the expertise nor the jurisdiction to dig deep into the commercial wisdom exercised by the creditors and the members of the company who have ratified the scheme by the requisite majority. The Court eventually held that it has the supervisory jurisdiction which is also in consonance with the language employed under Section 392 of the Act.The purpose of the classification of creditors has its significance. It is with this object that when a class has to be restricted, the principle has to be founded on homogeneity and commonality of interest. It is to be seen that dissimilar classes with conflicting interest are not put in one compartment to avoid any kind of injustice.The aforesaid being the position relating to the status of a class, at this juncture, it is necessary to appreciate the basic facts which are determinative in the case at hand. As the exposition of facts would uncurtain, the appellant company had extended a short-term loan facility of Rs.150 million to the respondent company on 4.7.2001; that the respondent company had executed a deed of hypothecation in favour of the appellant hypothecating by way of an exclusive charge of the monies and right, title and interest relating to amounts, both present and future to be received or payable by M/s. Hewlett Packard Ltd.; that the respondent had filed Forms 8 and 13 and the charge by way of hypothecation was duly registered with the Registrar of Companies; that the appellant had initiated an arbitration proceeding which eventually resulted in the consent award dated 1.7.2004 whereby the arbitral tribunal directed a sum of Rs.48,683,710/- as due on 30.06.2004 along with interest @ 20% p.a. on the principal amount of Rs.36,360,000/- from 01.07.2004 till realization; that the award stipulated due discharge of the liability on payment of Rs.36,360,000/- in four instalments for the purpose of which post-dated cheques were issued; that there was a postulate that in case of default of payment of any instalment, the entire amount may become due and payable and the appellant would be entitled in law to execute the award for recovery of the entire due without prejudice to and in addition to entitlement to institute criminal proceedings under the Negotiable Instruments Act; that the respondent failed to pay the first instalment of Rs.17,500,000/- on or before 30.09.2004; that on 30.09.2004 the respondent filed a petition under Sections 391-394 of the Act for sanction of the scheme; that the appellant initially filed objections to the scheme in the form of a counter affidavit on 25.11.2004 on merits and thereafter at a subsequent stage on 20.1.2005 filed an additional affidavit stating, inter alia, that it was an unsecured creditor; that an affidavit was filed in oppugnation asserting that the appellant was a secured creditor, regard being had to the hypothecation deed and the registration having been effected with the Registrar of Companies; that meeting of the secured creditors and guarantors was held on 6.4.2005 and a Chairperson was appointed; that the said order was challenged by IndusInd Bank Ltd., WTI Bank Ltd. and Bank of Rajasthan Ltd. In appeals but the same were dismissed by the Division Bench on 17.06.2005; that the appellant preferred an appeal which was dismissed by the judgment on 17.1.2006, which is impugned herein; that the scheme which has been amended was put to vote and was duly approved by the three-fourth of the secured creditors present and voting in value terms; and that the Court has approved and accepted the modified Scheme.Keeping in view the factual backdrop, we have to appreciate the principal contentions. The seminal contention of the appellant is that it does not fall into the class of secured creditors, for it had initiated the arbitration proceeding and an award has been passed on consent which is a simple money decree and, therefore, the deed of hypothecation, even if assumed to be executed at one point of time, has become irrelevant. To elaborate, the status of the appellant had changed from a secured creditor to that of an unsecured creditor. On this foundation, a stance has been taken that the principles of Order II, Rule 2, C.P.C. would be applicable as the appellant would be debarred to issue on the basis of the charge of hypothecation. Emphasis has been laid on the factum that there having been a change of status, the appellant company cannot be clubbed with the secured creditors as a class and even if it is kept in homogenous category of secured creditors, it should still fall under a separate class, regard being had to the fact it has obtained an award from the arbitral tribunal. In this context, it is to be seen that whether the arbitration award has the effect of obliterating or nullifying the status of the appellant and making him an unsecured creditor as a consequence of which it would not be able to sue on the basis of a charge created in its favour.Applying the said test to the present case, it can be stated with certitude that there is no shadow of doubt that the consent award in an arbitral proceeding would not bar a suit for enforcement of the charge for the same reasons and it would not be hit by Order II, Rule 2 CPC. We are absolutely conscious that the present case does not relate to a charge as engrafted under Section 100 of the Transfer of Property Act, or simply for equitable mortgage. In the present case, the charge is by hypothecation and relates to movable property. Needless to say, provisions of Rules 14 and 15 of Order XXXIV would not be directly applicable but the principle inherent under the said Rules, as enunciated would be applicable. In fact, the ratio laid down in S. Nazeer Ahmed (supra), as we understand, makes it equally applicable to different causes of action. The said principle would apply, if we accept that the cause of action is distinct.The said plea has been advanced on the foundation that the controversy between the parties having been finally put to rest by the arbitral award, the respondent would not have dragged the appellant to the said proceeding as that would vex him twice. The issue before the Company Court was quite different than that was before the Arbitral Tribunal. True it is, it has the status of a decree which is executable, as a decree having gone unchallenged, but the lis of framing a Scheme under the Act is of different character. It could not have been directly or substantially in issue before the learned Arbitrator. That apart, we have already held the status of the appellant as a secured creditor has not changed. Therefore, in our considered opinion, the plea of resjudicata which has been canvassed by the learned senior counsel for the appellant does not commend acceptance and we so hold.44. We will be failing in our duty if we do not advert to the issue that the appellant shall remain as a secured creditor, for it was registered as such under the Registrar of Companies. The formalities for creating the charge having duly followed, the Division Bench has referred to the Form No. 8 and 13 and also adverted to the power of Registrar to make entries of satisfaction and release, as provided under Sections 138 and 139 of the Act. It has also expressed the view that in the absence of any proceeding, the status of the company as a secured creditor continues.45. After registration of the deed of hypothecation, if a condition subsequent is not satisfied, that would be in a different realm altogether. In any case, the finding has been recorded that the respondent was not at fault and, in any case, that would not change the status of the appellant as a secured creditor.46. In view of the aforesaid analysis, we are of the considered opinion that the appellant cannot be treated as an unsecured creditor and it is not permissible for him to put forth a stand that it would not be bound by the Scheme that has been approved by the learned Company Judge. | 0 | 15,353 | 1,664 | ### 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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remains with the owner i.e. the pawnor. Though such a distinction exists, yet it is an accepted legal principle that hypothecation is treated as a sub-species of pledge and virtually has the same legal effect. In this context, reference to a passage from Lallan Prasad V. Rahmat Ali and another (AIR 1967 SC 1322 ), would be seemly. “17. There is no difference between the common law of England and the law with regard to pledge as codified in sections 172 to 176 of the Contract Act. Under section 172 a pledge is a bailment of the goods as security for payment of a debt or performance of a promise. Section 173 entitles a pawnee to retain the goods pledged as security for payment of a debt and under section 175 he is entitled to receive from the pawner any extraordinary expenses he incurs for the preservation of the goods pledged with him. Section 176 deals with the rights of a pawnee and provides that in case of default by the pawner the pawnee has (1) the right to sue upon the debt and to retain the goods as collateral security and (2) to sell the goods after reasonable notice of the intended sale to the pawner. Once the pawnee by virtue of his right under section 176 sells the goods the right of the pawner to redeem them is of course extinguished. But as aforesaid the pawnee is bound to apply the sale proceeds towards satisfaction of the debt and pay the surplus, if any, to the pawner. So long, however, as the sale does not take place the pawner is entitled to redeem the goods on payment of the debt. It follows therefore that where a pawnee files a suit for recovery of debt, though he is entitled to retain the goods he is bound to return them on payment of the debt. The right to sue on the debt assumes that he is in a position to redeliver the goods on payment of the debt and therefore if he has put himself in a position where he is not able to redeliver the goods he cannot obtain a decree. If it were otherwise, the result would be that he would recover the debt and also retain the goods pledged and the pawner in such a case would be placed in a position where he incurs a greater liability than he bargained for under the contract of pledge. The pawnee therefore can sue on the debt retaining the pledged goods as collateral security. If the debt is ordered to be paid he has to return the goods or if the goods are sold with or without the assistance of the court appropriate the sale proceeds towards the debt. But if he sues on the debt denying the pledge, and it is found that he was given possession of the goods pledged and had retained the same, the pawner has the right to redeem the goods so pledged by payment of the debt. If the pawnee is not in a position to redeliver the goods he cannot have both the payment of the debt and also the goods. Where the value of the pledged property is less than the debt and in a suit for recovery of debt by the pledgee, the pledge denies the pledge or is otherwise not in a position to return the pledged goods he has to give credit for the value of the goods and would be entitled then to recover only the balance”. 43. More than eight decades back, the Bombay High Court in Gulamhusain Lalji Sajan V. Clara D’Souza (AIR 1929 Bom. 471 ), while dealing with the applicability of Section 176 of the Contract Act to a case of hypothecation, had opined thus: “Under S.176, Contract Act, the pledge has a right to bring a suit against the pledgor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged in giving the pledgor reasonable notice of the sale.It is clear under the law applicable to cases of a pledge that the creditor has two rights which are concurrent, and the right to proceed against the property pledged is not merely accessory to the right to proceed against the debtor personally.For the pledge may have a right to sue for sale of the property even in the absence of a right to sue for a personal decree.The same principles would apply to the case of hypothecation or mortgages of moveable property.” Be it noted, in the said case reliance was placed on Nim Chad Babu v. Jagabandhu Ghose ([1894] 22 Ca. 21)and Mahalinga Nadar v. Ganapathi Subbien ([1902] 27 Mad. 528).44. We will be failing in our duty if we do not advert to the issue that the appellant shall remain as a secured creditor, for it was registered as such under the Registrar of Companies. The formalities for creating the charge having duly followed, the Division Bench has referred to the Form No. 8 and 13 and also adverted to the power of Registrar to make entries of satisfaction and release, as provided under Sections 138 and 139 of the Act. It has also expressed the view that in the absence of any proceeding, the status of the company as a secured creditor continues.45. After registration of the deed of hypothecation, if a condition subsequent is not satisfied, that would be in a different realm altogether. In any case, the finding has been recorded that the respondent was not at fault and, in any case, that would not change the status of the appellant as a secured creditor.46. In view of the aforesaid analysis, we are of the considered opinion that the appellant cannot be treated as an unsecured creditor and it is not permissible for him to put forth a stand that it would not be bound by the Scheme that has been approved by the learned Company Judge.
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without prejudice to and in addition to entitlement to institute criminal proceedings under the Negotiable Instruments Act; that the respondent failed to pay the first instalment of Rs.17,500,000/- on or before 30.09.2004; that on 30.09.2004 the respondent filed a petition under Sections 391-394 of the Act for sanction of the scheme; that the appellant initially filed objections to the scheme in the form of a counter affidavit on 25.11.2004 on merits and thereafter at a subsequent stage on 20.1.2005 filed an additional affidavit stating, inter alia, that it was an unsecured creditor; that an affidavit was filed in oppugnation asserting that the appellant was a secured creditor, regard being had to the hypothecation deed and the registration having been effected with the Registrar of Companies; that meeting of the secured creditors and guarantors was held on 6.4.2005 and a Chairperson was appointed; that the said order was challenged by IndusInd Bank Ltd., WTI Bank Ltd. and Bank of Rajasthan Ltd. In appeals but the same were dismissed by the Division Bench on 17.06.2005; that the appellant preferred an appeal which was dismissed by the judgment on 17.1.2006, which is impugned herein; that the scheme which has been amended was put to vote and was duly approved by the three-fourth of the secured creditors present and voting in value terms; and that the Court has approved and accepted the modified Scheme.Keeping in view the factual backdrop, we have to appreciate the principal contentions. The seminal contention of the appellant is that it does not fall into the class of secured creditors, for it had initiated the arbitration proceeding and an award has been passed on consent which is a simple money decree and, therefore, the deed of hypothecation, even if assumed to be executed at one point of time, has become irrelevant. To elaborate, the status of the appellant had changed from a secured creditor to that of an unsecured creditor. On this foundation, a stance has been taken that the principles of Order II, Rule 2, C.P.C. would be applicable as the appellant would be debarred to issue on the basis of the charge of hypothecation. Emphasis has been laid on the factum that there having been a change of status, the appellant company cannot be clubbed with the secured creditors as a class and even if it is kept in homogenous category of secured creditors, it should still fall under a separate class, regard being had to the fact it has obtained an award from the arbitral tribunal. In this context, it is to be seen that whether the arbitration award has the effect of obliterating or nullifying the status of the appellant and making him an unsecured creditor as a consequence of which it would not be able to sue on the basis of a charge created in its favour.Applying the said test to the present case, it can be stated with certitude that there is no shadow of doubt that the consent award in an arbitral proceeding would not bar a suit for enforcement of the charge for the same reasons and it would not be hit by Order II, Rule 2 CPC. We are absolutely conscious that the present case does not relate to a charge as engrafted under Section 100 of the Transfer of Property Act, or simply for equitable mortgage. In the present case, the charge is by hypothecation and relates to movable property. Needless to say, provisions of Rules 14 and 15 of Order XXXIV would not be directly applicable but the principle inherent under the said Rules, as enunciated would be applicable. In fact, the ratio laid down in S. Nazeer Ahmed (supra), as we understand, makes it equally applicable to different causes of action. The said principle would apply, if we accept that the cause of action is distinct.The said plea has been advanced on the foundation that the controversy between the parties having been finally put to rest by the arbitral award, the respondent would not have dragged the appellant to the said proceeding as that would vex him twice. The issue before the Company Court was quite different than that was before the Arbitral Tribunal. True it is, it has the status of a decree which is executable, as a decree having gone unchallenged, but the lis of framing a Scheme under the Act is of different character. It could not have been directly or substantially in issue before the learned Arbitrator. That apart, we have already held the status of the appellant as a secured creditor has not changed. Therefore, in our considered opinion, the plea of resjudicata which has been canvassed by the learned senior counsel for the appellant does not commend acceptance and we so hold.44. We will be failing in our duty if we do not advert to the issue that the appellant shall remain as a secured creditor, for it was registered as such under the Registrar of Companies. The formalities for creating the charge having duly followed, the Division Bench has referred to the Form No. 8 and 13 and also adverted to the power of Registrar to make entries of satisfaction and release, as provided under Sections 138 and 139 of the Act. It has also expressed the view that in the absence of any proceeding, the status of the company as a secured creditor continues.45. After registration of the deed of hypothecation, if a condition subsequent is not satisfied, that would be in a different realm altogether. In any case, the finding has been recorded that the respondent was not at fault and, in any case, that would not change the status of the appellant as a secured creditor.46. In view of the aforesaid analysis, we are of the considered opinion that the appellant cannot be treated as an unsecured creditor and it is not permissible for him to put forth a stand that it would not be bound by the Scheme that has been approved by the learned Company Judge.
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Commissioner Of Income-Tax, Bombay Vs. M/S. Abdullabhai Abdulkadar | made for a deduction for which there is no specific provision in S. 10 (2), whether it is admissible or not will depend on whether having regard to accepted commercial parctice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. That passage has to be read in the cirmumstances of that case whether the employment of agents was incidental to the carrying on of the business and it was observed that it logically followed that the losses which were incidental to such employment were also incidental to the carrying on of the business. At p. 696 (of SCR) : (at p. 786 of AIR), it was observed :- At the same time it should be emphasised that the loss for which a deduction could be made under S. 10 (1) must be one that springs directly from the carrying on of the business and is incidental to it and not any loss sustained by the assessee, even if it has some connection with his business. 6. Reference may also be made to an English decision in Curtis v. J. and G. Oldfield Ltd., (1925) 9 Tax Cas 319. In that case the managing director of a company of wine and spirit merchants embezzled monies of the company and that was claimed as a loss as a bad debt and it was held that it was not a trading loss and was therefore not an admisible deduction. In that case the contention of the Crown was that the sum was not an ordinary trading debt and therefore could not be a bad debt and that the loss was not connected with and did not arise out of the trade. Rowlatt, J., said at p. 330: When the Rule speaks of a bad debt it means a debt which is debt that would have come into the balance-sheet as a trading debt in the trade that is in question and that it is bad. It does not really mean any bad debt which, when it was a good debt, would not have come in to swell the profit. 7. In the present case the liability was imposed upon the respondent firm because it was treated as an agent within the meaning of S. 42 (1) of the Act and the liability was imposed because of the deeming provision in sub-s. (2) of S. 42 of the Act.Can it be said, in the present case, that the liability imposed upon the respondent firm was a business debt arising out of the business of the respondent or to use the words of Venkatarama Ayyar, J., springs directly from the carrying on of the business and is incidental to it or is a trading debt in the business of the respondent firm. As we have said above, that condition has not been fulfilled and the loss which the appellant has incurred is not in its own business but the liability arose because of the business of another person and that is not a permissible deduction within S. 10 (1) of the Act. It is not a loss which has to be deducted in respect of the business of the respondent from the profits and gains of the respondents business. 8. Counsel for the respondent also relied on Lords Dairy Farm Ltd. v. Commr. of Income-tax, Bombay, (1955) 27 ITR 700 : ((S) AIR 1955 Bom 352 ) That was a case of embezlement by an employee and it was held that the loss directly arose form the necessity of employing cashiers and therefore the loss by embezzlement was a trading loss but in that very case it was held that before a claim could be made for deduction of a debt as bad debt it must be debt in law. That case is not applicable to the facts of the present case and is of little assistance in the decision of the question before us. Counsel for the respondent next relied on Calcutta Co. Ltd. v. Commr. of Income-tax, 1959-37 ITR 1 : (AIR 1959 S C 1165). It was held in that case that the expression profits and gains has to be understood in its commercial sense and that there could be no computation of profits and gains until the expenditure necessary for earning those profits and gains is deducted therefrom and that when there is no specific provision in S. 10 (2) in regard to claim made, its allowability will depend on accepted commercial practice and trading principles and it will be allowed if it can be said to arise out of the carrying on of the business and is incidental to it. As a principle it is unexceptionable but it does not carry the matter any further. 9. It was next contended that the matter falls within S. 10 (2)(xi) of the Act, i.e., it is in respect of the business. This contention has even less substance that the claim of deduction under S. 10 (1). Under cl. (xi) also a debt is only allowable when it is a debt and arises out of and as an incident to the trade. Except in money lending trade debts can only be so described if they are due from customers for goods supplied or loans to constituent or transactions of a similar kind. In every case the test is, was the debt due as an incident to the business; if it is not of that character it will be a capital loss. Thus a loan advanced by a firm of solicitors to a company in the formation of which it acted as legal adviser is not deductible on its becoming irrecoverable because that is not a part of the profession of a Solicitor: Commrs. of Inland Revenue v. Hagart and Burn Murdoch, (1929) A C 386 : 14 T C 433. 10. In our opinion the High Court was in error in answering the question in favour of the respondent. | 1[ds]7. In the present case the liability was imposed upon the respondent firm because it was treated as an agent within the meaning of S. 42 (1) of the Act and the liability was imposed because of the deeming provision in sub-s. (2) of S. 42 of the Act.Can it be said, in the present case, that the liability imposed upon the respondent firm was a business debt arising out of the business of the respondent or to use the words of Venkatarama Ayyar, J., springs directly from the carrying on of the business and is incidental to it or is a trading debt in the business of the respondent firm. As we have said above, that condition has not been fulfilled and the loss which the appellant has incurred is not in its own business but the liability arose because of the business of another person and that is not a permissible deduction within S. 10 (1) of the Act. It is not a loss which has to be deducted in respect of the business of the respondent from the profits and gains of the respondents business9. It was next contended that the matter falls within S. 10 (2)(xi) of the Act, i.e., it is in respect of the business. This contention has even less substance that the claim of deduction under S. 10 (1). Under cl. (xi) also a debt is only allowable when it is a debt and arises out of and as an incident to the trade. Except in money lending trade debts can only be so described if they are due from customers for goods supplied or loans to constituent or transactions of a similar kind. In every case the test is, was the debt due as an incident to the business; if it is not of that character it will be a capital loss. Thus a loan advanced by a firm of solicitors to a company in the formation of which it acted as legal adviser is not deductible on its becoming irrecoverable because that is not a part of the profession of a Solicitor:10. In our opinion the High Court was in error in answering the question in favour of the respondent. | 1 | 2,587 | 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.
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made for a deduction for which there is no specific provision in S. 10 (2), whether it is admissible or not will depend on whether having regard to accepted commercial parctice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. That passage has to be read in the cirmumstances of that case whether the employment of agents was incidental to the carrying on of the business and it was observed that it logically followed that the losses which were incidental to such employment were also incidental to the carrying on of the business. At p. 696 (of SCR) : (at p. 786 of AIR), it was observed :- At the same time it should be emphasised that the loss for which a deduction could be made under S. 10 (1) must be one that springs directly from the carrying on of the business and is incidental to it and not any loss sustained by the assessee, even if it has some connection with his business. 6. Reference may also be made to an English decision in Curtis v. J. and G. Oldfield Ltd., (1925) 9 Tax Cas 319. In that case the managing director of a company of wine and spirit merchants embezzled monies of the company and that was claimed as a loss as a bad debt and it was held that it was not a trading loss and was therefore not an admisible deduction. In that case the contention of the Crown was that the sum was not an ordinary trading debt and therefore could not be a bad debt and that the loss was not connected with and did not arise out of the trade. Rowlatt, J., said at p. 330: When the Rule speaks of a bad debt it means a debt which is debt that would have come into the balance-sheet as a trading debt in the trade that is in question and that it is bad. It does not really mean any bad debt which, when it was a good debt, would not have come in to swell the profit. 7. In the present case the liability was imposed upon the respondent firm because it was treated as an agent within the meaning of S. 42 (1) of the Act and the liability was imposed because of the deeming provision in sub-s. (2) of S. 42 of the Act.Can it be said, in the present case, that the liability imposed upon the respondent firm was a business debt arising out of the business of the respondent or to use the words of Venkatarama Ayyar, J., springs directly from the carrying on of the business and is incidental to it or is a trading debt in the business of the respondent firm. As we have said above, that condition has not been fulfilled and the loss which the appellant has incurred is not in its own business but the liability arose because of the business of another person and that is not a permissible deduction within S. 10 (1) of the Act. It is not a loss which has to be deducted in respect of the business of the respondent from the profits and gains of the respondents business. 8. Counsel for the respondent also relied on Lords Dairy Farm Ltd. v. Commr. of Income-tax, Bombay, (1955) 27 ITR 700 : ((S) AIR 1955 Bom 352 ) That was a case of embezlement by an employee and it was held that the loss directly arose form the necessity of employing cashiers and therefore the loss by embezzlement was a trading loss but in that very case it was held that before a claim could be made for deduction of a debt as bad debt it must be debt in law. That case is not applicable to the facts of the present case and is of little assistance in the decision of the question before us. Counsel for the respondent next relied on Calcutta Co. Ltd. v. Commr. of Income-tax, 1959-37 ITR 1 : (AIR 1959 S C 1165). It was held in that case that the expression profits and gains has to be understood in its commercial sense and that there could be no computation of profits and gains until the expenditure necessary for earning those profits and gains is deducted therefrom and that when there is no specific provision in S. 10 (2) in regard to claim made, its allowability will depend on accepted commercial practice and trading principles and it will be allowed if it can be said to arise out of the carrying on of the business and is incidental to it. As a principle it is unexceptionable but it does not carry the matter any further. 9. It was next contended that the matter falls within S. 10 (2)(xi) of the Act, i.e., it is in respect of the business. This contention has even less substance that the claim of deduction under S. 10 (1). Under cl. (xi) also a debt is only allowable when it is a debt and arises out of and as an incident to the trade. Except in money lending trade debts can only be so described if they are due from customers for goods supplied or loans to constituent or transactions of a similar kind. In every case the test is, was the debt due as an incident to the business; if it is not of that character it will be a capital loss. Thus a loan advanced by a firm of solicitors to a company in the formation of which it acted as legal adviser is not deductible on its becoming irrecoverable because that is not a part of the profession of a Solicitor: Commrs. of Inland Revenue v. Hagart and Burn Murdoch, (1929) A C 386 : 14 T C 433. 10. In our opinion the High Court was in error in answering the question in favour of the respondent.
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7. In the present case the liability was imposed upon the respondent firm because it was treated as an agent within the meaning of S. 42 (1) of the Act and the liability was imposed because of the deeming provision in sub-s. (2) of S. 42 of the Act.Can it be said, in the present case, that the liability imposed upon the respondent firm was a business debt arising out of the business of the respondent or to use the words of Venkatarama Ayyar, J., springs directly from the carrying on of the business and is incidental to it or is a trading debt in the business of the respondent firm. As we have said above, that condition has not been fulfilled and the loss which the appellant has incurred is not in its own business but the liability arose because of the business of another person and that is not a permissible deduction within S. 10 (1) of the Act. It is not a loss which has to be deducted in respect of the business of the respondent from the profits and gains of the respondents business9. It was next contended that the matter falls within S. 10 (2)(xi) of the Act, i.e., it is in respect of the business. This contention has even less substance that the claim of deduction under S. 10 (1). Under cl. (xi) also a debt is only allowable when it is a debt and arises out of and as an incident to the trade. Except in money lending trade debts can only be so described if they are due from customers for goods supplied or loans to constituent or transactions of a similar kind. In every case the test is, was the debt due as an incident to the business; if it is not of that character it will be a capital loss. Thus a loan advanced by a firm of solicitors to a company in the formation of which it acted as legal adviser is not deductible on its becoming irrecoverable because that is not a part of the profession of a Solicitor:10. In our opinion the High Court was in error in answering the question in favour of the respondent.
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S. K. Sahana and Sons Limited and Others Vs. Commissioner of Income Tax, Bihar, Patna | relationship between them was one of lessor and lessee. On these findings, the Tribunal accepted the contention of the assessee that there was absolutely no question of any transfer either out and out or even by way of lease of the business of the assessee; on the contrary, the assessee was very much carrying on its business through its agent, the managing contractor. The income, thus, according to the Tribunal, clearly fell within the purview of "income from business" and could not be assessed as "income from other sources" 2. The High Court, on reference, took into consideration the findings of fact made by the Tribunal and answered the question in the affirmative and in favour of the assessee. The attention of the Court was drawn to a judgment of this Court in the case of New Savan Sugar and Gur Refining Co., Ltd. v. CIT and it was argued that the transaction between the assessee and its contractor should not be treated as anything but transfer of the business of the assessee altogether 3. The High Court observed that it was well settled that each case must be decided on its own facts and on a proper construction of the documents in question. The High Court pointed out that in the case of New Savan Sugar case this Court found that the intention of the assessee was to part with the entire machinery of the factory and the premises with the obvious purpose of earning of rental income. This Court held that "It was not the intention of the assessee to treat the factory and machinery, etc., as a commercial concern during the subsistence of the lease." The High Court felt that in view of the findings made by the Tribunal, the question before the High Court had to be answered in favour of the assessee. The Revenue did not pursue the case any further 4. The very same question once again cropped up in course of assessment years of 1967-68, 1968-69 and 1969-70. The Appellate Assistant Commissioner held in favour of the assessee. The Tribunal merely followed its own findings of fact and its decision given in the earlier years case. A Full Bench was constituted to examine the question afresh. The Full Bench came to the conclusion that the earlier judgment of the Division Bench in the assessees own case in the assessment made in the years 1963-64 and 196465 was erroneous 5. The Full Bench, on a review of a large number of cases, came to the conclusion that not only the decision of the Division Bench of the Patna High Court in the assessees own case in the earlier years but also a large number of other High Court decisions were erroneous. One of the decisions with which the Full Bench disagreed was the judgment of the Allahabad High Court in the case of CIT v. Vikram Cotton Mills Ltd. (All) 6. The judgment of Allahabad High Court in Vikram Cotton Mills case (All)) was affirmed by this Court in the case of CIT v. Vikram Cotton Mills Ltd. It was held that in the facts of that case the rent received by the assessee was to be treated as business income. This decision was given on the basis of the finding of the Tribunal that the assessee had no intention to permanently discontinue its business. On behalf of the Revenue, it has been strenuously contended that each case must be decided on its own facts. Even though the decision of the Allahabad High Court in the case Vikram Cotton Mills (All)) was held to be erroneous by the Full Bench, in the instant case, in coming to its decision the mere fact that the decision of the Allahabad High Court has been affirmed by this Court will not make any difference to the position in law. He took us through the various clauses of the agreement between the parties and contended that the judgment of the Full Bench must be upheld. In particular, it relied on the decision of this Court in the case of New Savan Sugar case and contended that the principles laid down in that case are applicable to the facts of this case 7. We are unable to uphold the contention made on behalf of the Revenue. It has to be borne in mind that New Savan Sugar case was decided on its own facts. In that case it was recorded by this Court in its judgment "On appeal, the Appellate Assistant Commissioner found that it was a simple lease of the building and machinery in a sugar factory, and as such the method of payment based on production could not affect the character and nature of the income derived under the said lease. In further appeal the Appellate Tribunal came to the conclusion that on the facts stated the case fell under Section 12 and not under Section 10 and that since sub-section (3) of Section 12 did not include clauses (vi-a) and (vi-b) of Section 10(2) the claim of additional depreciation and development rebate could not be, allowed." * On the basis of this finding and analysis of the agreement, this Court came to the conclusion that the Tribunal had come to a correct decision 8. In the instant case, the Tribunal has merely followed its earlier decision for the Assessment Years 1963-64 and 1964-65 in which the Tribunal had categorically found the managing contractor was carrying on the colliery business under the effective control and guidance of the assessee and the relationship between the contractor and the assessee was not of lessor and lessee. The Tribunal came to the conclusion that the assessee was carrying on its business through its agent, the managing contractor 9. This finding of fact was not challenged before the High Court. No question was raised about the perversity of this finding. The Full Bench entirely overlooked the findings of fact made by the Tribunal by coming to its decision in this case | 1[ds]8. In the instant case, the Tribunal has merely followed its earlier decision for the Assessment Years4 and196465in which the Tribunal had categorically found the managing contractor was carrying on the colliery business under the effective control and guidance of the assessee and the relationship between the contractor and the assessee was not of lessor and lessee. The Tribunal came to the conclusion that the assessee was carrying on its business through its agent, the managing contractor9. This finding of fact was not challenged before the High Court. No question was raised about the perversity of this finding. The Full Bench entirely overlooked the findings of fact made by the Tribunal by coming to its decision in this case7. We are unable to uphold the contention made on behalf of the Revenue. It has to be borne in mind that New Savan Sugar case was decided on its own facts. In that case it was recorded by this Court in its judgment"On appeal, the Appellate Assistant Commissioner found that it was a simple lease of the building and machinery in a sugar factory, and as such the method of payment based on production could not affect the character and nature of the income derived under the said lease. In further appeal the Appellate Tribunal came to the conclusion that on the facts stated the case fell under Section 12 and not under Section 10 and that sincen (3) of Section 12 did not include clauses) and) of Section 10(2) the claim of additional depreciation and development rebate could not be, allowed." *On the basis of this finding and analysis of the agreement, this Court came to the conclusion that the Tribunal had come to a correct decision8. In the instant case, the Tribunal has merely followed its earlier decision for the Assessment Years4 and196465in which the Tribunal had categorically found the managing contractor was carrying on the colliery business under the effective control and guidance of the assessee and the relationship between the contractor and the assessee was not of lessor and lessee. The Tribunal came to the conclusion that the assessee was carrying on its business through its agent, the managing contractor9. This finding of fact was not challenged before the High Court. No question was raised about the perversity of this finding. The Full Bench entirely overlooked the findings of fact made by the Tribunal by coming to its decision in this case | 1 | 1,670 | 443 | ### Instruction:
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relationship between them was one of lessor and lessee. On these findings, the Tribunal accepted the contention of the assessee that there was absolutely no question of any transfer either out and out or even by way of lease of the business of the assessee; on the contrary, the assessee was very much carrying on its business through its agent, the managing contractor. The income, thus, according to the Tribunal, clearly fell within the purview of "income from business" and could not be assessed as "income from other sources" 2. The High Court, on reference, took into consideration the findings of fact made by the Tribunal and answered the question in the affirmative and in favour of the assessee. The attention of the Court was drawn to a judgment of this Court in the case of New Savan Sugar and Gur Refining Co., Ltd. v. CIT and it was argued that the transaction between the assessee and its contractor should not be treated as anything but transfer of the business of the assessee altogether 3. The High Court observed that it was well settled that each case must be decided on its own facts and on a proper construction of the documents in question. The High Court pointed out that in the case of New Savan Sugar case this Court found that the intention of the assessee was to part with the entire machinery of the factory and the premises with the obvious purpose of earning of rental income. This Court held that "It was not the intention of the assessee to treat the factory and machinery, etc., as a commercial concern during the subsistence of the lease." The High Court felt that in view of the findings made by the Tribunal, the question before the High Court had to be answered in favour of the assessee. The Revenue did not pursue the case any further 4. The very same question once again cropped up in course of assessment years of 1967-68, 1968-69 and 1969-70. The Appellate Assistant Commissioner held in favour of the assessee. The Tribunal merely followed its own findings of fact and its decision given in the earlier years case. A Full Bench was constituted to examine the question afresh. The Full Bench came to the conclusion that the earlier judgment of the Division Bench in the assessees own case in the assessment made in the years 1963-64 and 196465 was erroneous 5. The Full Bench, on a review of a large number of cases, came to the conclusion that not only the decision of the Division Bench of the Patna High Court in the assessees own case in the earlier years but also a large number of other High Court decisions were erroneous. One of the decisions with which the Full Bench disagreed was the judgment of the Allahabad High Court in the case of CIT v. Vikram Cotton Mills Ltd. (All) 6. The judgment of Allahabad High Court in Vikram Cotton Mills case (All)) was affirmed by this Court in the case of CIT v. Vikram Cotton Mills Ltd. It was held that in the facts of that case the rent received by the assessee was to be treated as business income. This decision was given on the basis of the finding of the Tribunal that the assessee had no intention to permanently discontinue its business. On behalf of the Revenue, it has been strenuously contended that each case must be decided on its own facts. Even though the decision of the Allahabad High Court in the case Vikram Cotton Mills (All)) was held to be erroneous by the Full Bench, in the instant case, in coming to its decision the mere fact that the decision of the Allahabad High Court has been affirmed by this Court will not make any difference to the position in law. He took us through the various clauses of the agreement between the parties and contended that the judgment of the Full Bench must be upheld. In particular, it relied on the decision of this Court in the case of New Savan Sugar case and contended that the principles laid down in that case are applicable to the facts of this case 7. We are unable to uphold the contention made on behalf of the Revenue. It has to be borne in mind that New Savan Sugar case was decided on its own facts. In that case it was recorded by this Court in its judgment "On appeal, the Appellate Assistant Commissioner found that it was a simple lease of the building and machinery in a sugar factory, and as such the method of payment based on production could not affect the character and nature of the income derived under the said lease. In further appeal the Appellate Tribunal came to the conclusion that on the facts stated the case fell under Section 12 and not under Section 10 and that since sub-section (3) of Section 12 did not include clauses (vi-a) and (vi-b) of Section 10(2) the claim of additional depreciation and development rebate could not be, allowed." * On the basis of this finding and analysis of the agreement, this Court came to the conclusion that the Tribunal had come to a correct decision 8. In the instant case, the Tribunal has merely followed its earlier decision for the Assessment Years 1963-64 and 1964-65 in which the Tribunal had categorically found the managing contractor was carrying on the colliery business under the effective control and guidance of the assessee and the relationship between the contractor and the assessee was not of lessor and lessee. The Tribunal came to the conclusion that the assessee was carrying on its business through its agent, the managing contractor 9. This finding of fact was not challenged before the High Court. No question was raised about the perversity of this finding. The Full Bench entirely overlooked the findings of fact made by the Tribunal by coming to its decision in this case
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8. In the instant case, the Tribunal has merely followed its earlier decision for the Assessment Years4 and196465in which the Tribunal had categorically found the managing contractor was carrying on the colliery business under the effective control and guidance of the assessee and the relationship between the contractor and the assessee was not of lessor and lessee. The Tribunal came to the conclusion that the assessee was carrying on its business through its agent, the managing contractor9. This finding of fact was not challenged before the High Court. No question was raised about the perversity of this finding. The Full Bench entirely overlooked the findings of fact made by the Tribunal by coming to its decision in this case7. We are unable to uphold the contention made on behalf of the Revenue. It has to be borne in mind that New Savan Sugar case was decided on its own facts. In that case it was recorded by this Court in its judgment"On appeal, the Appellate Assistant Commissioner found that it was a simple lease of the building and machinery in a sugar factory, and as such the method of payment based on production could not affect the character and nature of the income derived under the said lease. In further appeal the Appellate Tribunal came to the conclusion that on the facts stated the case fell under Section 12 and not under Section 10 and that sincen (3) of Section 12 did not include clauses) and) of Section 10(2) the claim of additional depreciation and development rebate could not be, allowed." *On the basis of this finding and analysis of the agreement, this Court came to the conclusion that the Tribunal had come to a correct decision8. In the instant case, the Tribunal has merely followed its earlier decision for the Assessment Years4 and196465in which the Tribunal had categorically found the managing contractor was carrying on the colliery business under the effective control and guidance of the assessee and the relationship between the contractor and the assessee was not of lessor and lessee. The Tribunal came to the conclusion that the assessee was carrying on its business through its agent, the managing contractor9. This finding of fact was not challenged before the High Court. No question was raised about the perversity of this finding. The Full Bench entirely overlooked the findings of fact made by the Tribunal by coming to its decision in this case
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Umrao Singh Vs. Darbara Singh & Ors | the journey was performed for attending a meeting held within a radius of five miles from his place of residence or he performed the journey in a transport provided at the expense of the Zila Parishads/Panchayat Samitis or any other local authority or Government. There were also limitations on the right to draw daily allowance, e. g., the amount of daily allowance was to be limited to 1/4th of the rate provided, if the Chairman was provided free board and lodging officially and at 1/2 rate if he was charged either for board or for lodging. It appears that, in the year 1965, it was considered desirable that the Chairman of a Panchayat Samiti should not draw travelling allowance and daily allowance while performing duties within the district and should only be entitled to these allowances when required to travel outside the district.Consequently, under Rule 3 of the Rules, provision was made for this monthly allowance of Rs. 100 as a consolidated amount in lieu of the travelling allowance, daily allowance, or any other allowances to which he might have been entitled in order to compensate him for expenses incurred in connection with the discharge of his official duties. In these circumstances, the High Court was perfectly correct in arriving at the conclusion that this allowance of Rs. 100 per month did not amount to receipt of any profit or gain by the Chairman and only represented the amount which he was expected to spend on an average every month for the purpose of properly discharging his official duties. 7. So far as rules 4 to 7 are concerned they only provide for payment of travelling allowance and daily allowance when a Chairman performs a journey in connection with his official duties outside the district. Clearly, these allowances are also meant to ensure that he does not have to incur expenditure from his own pocket for the purpose of discharging his official duties.There is again no evidence from which an inference may be drawn that the amount received by a Chairman for travelling allowance or daily allowance is in excess of the amount of expenditure which he would have to incur for the purpose of performing the journeys in order to discharge his official duties. 8. Our attention was drawn by learned counsel to the fact that in Rule 7 the persons entitled to daily allowance are divided into two categories and a Chairman of a Panchayat Samiti belonging to Category I is entitled to Rs. 6 per diem when a Member of the Samiti belonging to Category II is only entitled to Rs.4 per diem. The argument was that there was no explanation for payment at a higher rate to the Chairman and, consequently, it must be held that the Chairman must be making a gain out of the payment to him of daily allowance. We are unable to accept this submission. The daily allowance is invariably fixed after estimating what extra expenditure in a day the person concerned would have to incur. A Chairman, it appears, was expected to incur more expenditure per day than a Member, and that seems to be the reason why a higher rate of daily allowance was prescribed for him. In any case, such a payment is clearly meant only to cover additional expenditure and out-of-pocket expenses of the Chairman and, while no evidence has been advanced to show that out of the amount received as daily allowance the Chairman will in fact invariably make a saving, it cannot be held that this payment would result in gain so as to make the office an office of profit. 9. In the course of his submissions, learned counsel tried to urge that the payment of travelling allowance and daily allowance under Rules 3 to 7 was in addition to the payment of the consolidated monthly allowance under R.3 and payment of two sets of allowances must necessarily result in profit to the payee. The argument proceeds on a complete misunderstanding of the Rules. Rule 3 only covers payment to compensate a Chairman for journeys performed by him for his official duties within the district in which the Panchayat is situated, while rules 4 to 7 govern cases where the journey is performed outside the district. Rule 3 and Rules 4 to 7 are, therefore, complementary and exclusive of each other. In fact, Rule 5 makes it clear that the mileage allowance is admissible only for journeys undertaken outside the district, while, in respect of daily allowance, the fact that the right to receive it accrues only when the journey is outside the district is made manifest by laying down that the receipt of this daily allowance is to be subject to the provisions of Rule 3. The submission that the payment under Rules 4 to 7 is in addition to the payment under R. 3 is, thus, clearly misconceived. 10. In this connection, learned counsel drew our attention to a decision of this Court in Ravan Subanna v. G. S. Kaggeerappa, AIR 1954 SC 653 at p. 656 where, dealing with the provision relating to this disqualification, the Court held:-"The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The word "profit" connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit." This principle, on the finding arrived at by the High Court and affirmed by us above, is of no assistance to the appellant. It is clear that the appellant has failed to establish that the allowances payable under Rules 3 in 7 of the Rules result in any pecuniary gain to a Chairman of a Panchayat Samiti and, consequently, there is no question of any disqualification arising. | 0[ds]We consider that this appeal can be disposed of on the basis of the answer to the first question alone, because, in our opinion, the High Court came to a correct conclusion in holding that the allowances paid under Rules 3 to 7 of the Rules did not convert the office of Chairman of a Panchayat Samiti into an office of profit7. So far as rules 4 to 7 are concerned they only provide for payment of travelling allowance and daily allowance when a Chairman performs a journey in connection with his official duties outside the district. Clearly, these allowances are also meant to ensure that he does not have to incur expenditure from his own pocket for the purpose of discharging his official duties.There is again no evidence from which an inference may be drawn that the amount received by a Chairman for travelling allowance or daily allowance is in excess of the amount of expenditure which he would have to incur for the purpose of performing the journeys in order to discharge his official duties9. In the course of his submissions, learned counsel tried to urge that the payment of travelling allowance and daily allowance under Rules 3 to 7 was in addition to the payment of the consolidated monthly allowance under R.3 and payment of two sets of allowances must necessarily result in profit to the payee. The argument proceeds on a complete misunderstanding of the Rules. Rule 3 only covers payment to compensate a Chairman for journeys performed by him for his official duties within the district in which the Panchayat is situated, while rules 4 to 7 govern cases where the journey is performed outside the district. Rule 3 and Rules 4 to 7 are, therefore, complementary and exclusive of each other. In fact, Rule 5 makes it clear that the mileage allowance is admissible only for journeys undertaken outside the district, while, in respect of daily allowance, the fact that the right to receive it accrues only when the journey is outside the district is made manifest by laying down that the receipt of this daily allowance is to be subject to the provisions of Rule 3. The submission that the payment under Rules 4 to 7 is in addition to the payment under R. 3 is, thus, clearly misconceivedThis principle, on the finding arrived at by the High Court and affirmed by us above, is of no assistance to the appellant. It is clear that the appellant has failed to establish that the allowances payable under Rules 3 in 7 of the Rules result in any pecuniary gain to a Chairman of a Panchayat Samiti and, consequently, there is no question of any disqualification arising. | 0 | 3,309 | 484 | ### Instruction:
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the journey was performed for attending a meeting held within a radius of five miles from his place of residence or he performed the journey in a transport provided at the expense of the Zila Parishads/Panchayat Samitis or any other local authority or Government. There were also limitations on the right to draw daily allowance, e. g., the amount of daily allowance was to be limited to 1/4th of the rate provided, if the Chairman was provided free board and lodging officially and at 1/2 rate if he was charged either for board or for lodging. It appears that, in the year 1965, it was considered desirable that the Chairman of a Panchayat Samiti should not draw travelling allowance and daily allowance while performing duties within the district and should only be entitled to these allowances when required to travel outside the district.Consequently, under Rule 3 of the Rules, provision was made for this monthly allowance of Rs. 100 as a consolidated amount in lieu of the travelling allowance, daily allowance, or any other allowances to which he might have been entitled in order to compensate him for expenses incurred in connection with the discharge of his official duties. In these circumstances, the High Court was perfectly correct in arriving at the conclusion that this allowance of Rs. 100 per month did not amount to receipt of any profit or gain by the Chairman and only represented the amount which he was expected to spend on an average every month for the purpose of properly discharging his official duties. 7. So far as rules 4 to 7 are concerned they only provide for payment of travelling allowance and daily allowance when a Chairman performs a journey in connection with his official duties outside the district. Clearly, these allowances are also meant to ensure that he does not have to incur expenditure from his own pocket for the purpose of discharging his official duties.There is again no evidence from which an inference may be drawn that the amount received by a Chairman for travelling allowance or daily allowance is in excess of the amount of expenditure which he would have to incur for the purpose of performing the journeys in order to discharge his official duties. 8. Our attention was drawn by learned counsel to the fact that in Rule 7 the persons entitled to daily allowance are divided into two categories and a Chairman of a Panchayat Samiti belonging to Category I is entitled to Rs. 6 per diem when a Member of the Samiti belonging to Category II is only entitled to Rs.4 per diem. The argument was that there was no explanation for payment at a higher rate to the Chairman and, consequently, it must be held that the Chairman must be making a gain out of the payment to him of daily allowance. We are unable to accept this submission. The daily allowance is invariably fixed after estimating what extra expenditure in a day the person concerned would have to incur. A Chairman, it appears, was expected to incur more expenditure per day than a Member, and that seems to be the reason why a higher rate of daily allowance was prescribed for him. In any case, such a payment is clearly meant only to cover additional expenditure and out-of-pocket expenses of the Chairman and, while no evidence has been advanced to show that out of the amount received as daily allowance the Chairman will in fact invariably make a saving, it cannot be held that this payment would result in gain so as to make the office an office of profit. 9. In the course of his submissions, learned counsel tried to urge that the payment of travelling allowance and daily allowance under Rules 3 to 7 was in addition to the payment of the consolidated monthly allowance under R.3 and payment of two sets of allowances must necessarily result in profit to the payee. The argument proceeds on a complete misunderstanding of the Rules. Rule 3 only covers payment to compensate a Chairman for journeys performed by him for his official duties within the district in which the Panchayat is situated, while rules 4 to 7 govern cases where the journey is performed outside the district. Rule 3 and Rules 4 to 7 are, therefore, complementary and exclusive of each other. In fact, Rule 5 makes it clear that the mileage allowance is admissible only for journeys undertaken outside the district, while, in respect of daily allowance, the fact that the right to receive it accrues only when the journey is outside the district is made manifest by laying down that the receipt of this daily allowance is to be subject to the provisions of Rule 3. The submission that the payment under Rules 4 to 7 is in addition to the payment under R. 3 is, thus, clearly misconceived. 10. In this connection, learned counsel drew our attention to a decision of this Court in Ravan Subanna v. G. S. Kaggeerappa, AIR 1954 SC 653 at p. 656 where, dealing with the provision relating to this disqualification, the Court held:-"The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The word "profit" connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit." This principle, on the finding arrived at by the High Court and affirmed by us above, is of no assistance to the appellant. It is clear that the appellant has failed to establish that the allowances payable under Rules 3 in 7 of the Rules result in any pecuniary gain to a Chairman of a Panchayat Samiti and, consequently, there is no question of any disqualification arising.
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We consider that this appeal can be disposed of on the basis of the answer to the first question alone, because, in our opinion, the High Court came to a correct conclusion in holding that the allowances paid under Rules 3 to 7 of the Rules did not convert the office of Chairman of a Panchayat Samiti into an office of profit7. So far as rules 4 to 7 are concerned they only provide for payment of travelling allowance and daily allowance when a Chairman performs a journey in connection with his official duties outside the district. Clearly, these allowances are also meant to ensure that he does not have to incur expenditure from his own pocket for the purpose of discharging his official duties.There is again no evidence from which an inference may be drawn that the amount received by a Chairman for travelling allowance or daily allowance is in excess of the amount of expenditure which he would have to incur for the purpose of performing the journeys in order to discharge his official duties9. In the course of his submissions, learned counsel tried to urge that the payment of travelling allowance and daily allowance under Rules 3 to 7 was in addition to the payment of the consolidated monthly allowance under R.3 and payment of two sets of allowances must necessarily result in profit to the payee. The argument proceeds on a complete misunderstanding of the Rules. Rule 3 only covers payment to compensate a Chairman for journeys performed by him for his official duties within the district in which the Panchayat is situated, while rules 4 to 7 govern cases where the journey is performed outside the district. Rule 3 and Rules 4 to 7 are, therefore, complementary and exclusive of each other. In fact, Rule 5 makes it clear that the mileage allowance is admissible only for journeys undertaken outside the district, while, in respect of daily allowance, the fact that the right to receive it accrues only when the journey is outside the district is made manifest by laying down that the receipt of this daily allowance is to be subject to the provisions of Rule 3. The submission that the payment under Rules 4 to 7 is in addition to the payment under R. 3 is, thus, clearly misconceivedThis principle, on the finding arrived at by the High Court and affirmed by us above, is of no assistance to the appellant. It is clear that the appellant has failed to establish that the allowances payable under Rules 3 in 7 of the Rules result in any pecuniary gain to a Chairman of a Panchayat Samiti and, consequently, there is no question of any disqualification arising.
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Swastik Oil Mills Ltd Vs. H. B. Munshi, Deputy Commissioner Of Sales Tax,Bombay | escapes assessment, the appropriate provision, under which action is to be taken for assessing that turnover to tax, is S. 11-A. There is, however, no provision under which the power now sought to be exercised by the Deputy Commissioner in the case before us could have been exercised by any other authority. In this case, as we have indicated earlier, the first assessment of tax was made by the Sales Tax Officer, and the turnover now in question was assessed to tax by him. Having once assessed that turnover to tax, he could not initiate a fresh proceeding in respect of it under S. 11-A. The assessment made by him was set aside in appeal by the Assistant Collector and it is this order the Assistant Collector which is sought to be revised by the Deputy Commissioner. This is, therefore, not a case where the powers are being exercised for the purpose of assessing or reassessing an escaped turnover. The case is one where the revisional powers are sought to be exercised to correct what appears to be an incorrect order passed in appeal by the Assistant Collector, and, for such a purpose, proceedings could not possibly have been taken under S. 11-A. In exercising his revisional powers, therefore, the Deputy Commissioner is not encroaching upon the jurisdiction of any other authority specially entrusted with taking such proceedings. 9. In this connection, Mr. Desai relied on a decision of the Bombay High Court in Manordas Kalidas v. V. V. Tatke. 1960-11 STC 87 (Bom). The decision in that case also related to this very Act of 1946, but the point to be kept in view is that, in that case, the revisional power was sought to be exercised in respect of the original assessment order passed by the Sales Tax Officer under S. 11 of the Act. It was in these circumstances that the Bombay High Court, after referring to its two decisions in Bisesar House v. State of Bombay, 1958-19 STC 654 = (AIR 1959 Bom 130 ) and 1957-31 ITR 164 = (AIR 1957 Bom 1 ) (supra), held :-"In neither of those two cases revisional powers were sought to be exercised, but the principle of those cases must, in our judgment, apply for the same reasons to the exercise of revisional jurisdiction, and that jurisdiction must be exercised within a reasonable period, and the yard-stick of reasonableness will be the period prescribed for reassessment." It appears that, in view of the fact that proceedings for re-assessment would have been taken under S. 11-A in that case and, instead, revisional powers were sought to be exercised, that Court held that the exercise of such revisional powers must be governed by the same limitation which applied to the exercise of power of re-assessment. In fact, the correct principle that should have been applied in that case is the principle mentioned by us earlier laid down in K. M. Cheria Abdulla and Co. 1965-16 STC 875 = (AIR 1965 SC 1585 ) (supra). The revision should have been held to be incompetent on the ground that the power was sought to be exercised for assessment of escaped turnover which had not been assessed at all at the initial stage of assessment under S. 11 and proceedings under S. 11-A could have been competently initiated for bringing that turnover to tax. Instead, the Court equated the proceeding in revision with the proceeding for re-assessment and applied the 4-year period of limitation which was prescribed only for re-assessment and not for exercise of revisional power. In our opinion, the ultimate decision in that case was perfectly correct, but we are unable to affirm the view that the revisional power is governed by any period of limitation laid down in S. 11-A for proceedings for re-assessment of escaped turnover. 10. Reference, in this connection, was also made to a decision of this Court in Kamal Singh v. Commissioner of Income-tax, Bihar and Orissa, 1959-35 ITR 1 = (AIR 1959 SC 257 ) in which the Court dealt with a case of an assessee whose income to the extent of Rs. 93,604 representing interest on arrears of rent was omitted to be brought to assessment by the Income-tax Officer. Subsequently, in another case, the Privy Council held that interest on arrears of rent payable in respect of agricultural land was not agricultural income and, consequently, the Income-tax Officer initiated re-assessment proceedings under S. 34 (1) (b) of the Income-tax Act. The circumstance relied upon by learned counsel for the appellant was that the omission by the Income-tax Officer to bring to assessment that interest was part of an order made by him after his initial assessment order had been set aside by the Appellate Assistant Commissioner who directed a fresh assessment, allowing the appeal against that order. In that case, it was held that the escaped income could be brought to tax under S. 34 of the Income-tax Act and, on the basis of this decision, it was urged that, similarly, in the present case, the turnover now sought to be brought to tax in exercise of revisional powers could be reassessed under S. 11-A. This argument ignores the circumstance that, in that case, the last order, under which the income from interest had been exempted from tax, was an order made by the Income-tax Officer himself, though after the assessment proceedings had been remanded to him by the Appellate Assistant Commissioner. Since the income had escaped assessment under an order passed by the Income-tax Officer himself, he could competently take proceedings under Section 34. In the case before us, the turn over of the assessee now sought to be taxed in the revisional proceedings did not escape liability to tax under the orders of the Sales-tax Officer and, on the other hand, was actually taxed by him, which imposition of tax was set aside in appeal. Consequently, the Sales-tax Officer could not possibly take proceedings under S. 11-A in respect of that turnover. | 0[ds]We are unable to accept this principle laid down by that High Court as correct.Whenever a power is conferred on an authority to revise an order, the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it. When exercising such powers, there is no reason why the authority should not be entitled to hold an enquiry or direct an enquiry to be held and, for that purpose, admit additional material. The proceedings for revision, if started suo motu, must not of course, be based on a mere conjecture and there should be some ground for invoking the revisional powers. Once those powers are invoked, the actual interference must be based on sufficient grounds, and, if it is considered necessary that some additional enquiry should be made to arrive at a proper and just decision, there can be no bar to the revising authority holding a further enquiry or directing such an enquiry to be held by some other appropriate authority3. In the present case, the notice issued by the Deputy Commissioner of Sales Tax, on the face of it, discloses the reasons which led him to take proceedings for exercising his revisional power suo motu, and it cannot be said on those facts that he was acting merely on conjecture. The Deputy Commissioner has not yet proceeded further under the notice to make the assessment. We have no doubt that, when the Deputy Commissioner does make an enquiry, if any, for the purpose of exercising his revisional powers, he will keep within the limitations indicated by this Court in the case cited above. The notice cannot be quashed or the proceedings restrained merely on the ground that the Deputy Commissioner may have to hold some enquiries in order to properly exercise his revisional jurisdictionMr. Desai on behalf of the appellant emphasised the circumstance that in Section 12 (2) of the Madras General Sales Tax Act, which was considered by this Court, the Deputy Commissioners power was expressed by stating that he may pass such order as he thinks fit, while no such words occur in the corresponding provisions in the Bombay Sales Tax Acts with which we are concerned, but we do not think that this circumstance makes any difference. A revising authority necessarily has the power to make such order as, in the opinion of that authority, the case calls for when the authority is satisfied that it is an appropriate case for interference in exercise of revisional powers. In fact, in Sec. 12 (2) of the Madras General Sales Tax Act, the Deputy Commissioner, when exercising his powers, was to call for the record of the order or proceeding before passing any order which he thought fit, so that there was an expression used which could have been interpreted as limiting his powers to the examination of the record only without holding any further enquiry, and, yet, this Court held that the Deputy Commissioner could not be restricted to the record and was empowered to make an enquiry outside that record.In the provisions relating to revisions in the three Bombay Sales tax Acts, there are no such words indicating any limitation; and that would be an additional reason for holding that there can be no bar to an appropriate enquiry being held by the Deputy Commissioner when seeking to exercise his revisional powers suo motuOn this basis, advantage was sought to be taken of the circumstance that, under the Act of 1959, the revisional powers conferred by. S. 57 can be exercised within five years from the date of the order sought to be revised and, at the relevant time in 1963, could only be exercised within two years from the date of that order. The order sought to be revised was passed on 29th October, 1956, so that the notice to exercise revisional powers was being issued more than 6 years after that order had been passed. It appears to us that this submission is adequately met by the provisions contained in S. 77 of the Act of 1959It is true, as urged by Mr. Desai in the alternative, that, in fact, the proceedings should have been taken not under S. 31 of the Act of 1953, but under S. 22 of the Act of 1946. This is so, because, when the Act of 1946 was repealed by the Act of 1953, similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946. Section 48 (2) and S. 49 (1) clearly contained provisions indicating that, in respect of a liability to tax under the Act of 1946, the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act. Consequently, the Deputy Commissioner, in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, brad to proceed under S. 22 of the Act of 1946. That, however, is not at all material, because the provisions of S. 22 of the Act of 1946 are quite similar to those of S. 31 of the Act of 1953. The mere incorrect mention of S. 31 of the Act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under S. 22 of the Act of 1946 and, consequently, the proceedings initiated by him are not without jurisdictionSection 22 of the Act of 1946 and S. 31 of the Act of 1953 do not lay clown any limitation for exercise of the power of revision by a Deputy Commissioner suo motu, and we are not prepared to accept that any such limitation must be necessarily read in the two ActsThat case, however has no relevance at all, because in the Orissa Sales Tax Act, there was a proviso in general terms laying down that no order "assessing the amount of tax shall be passed after the lapse of 36 months from the expiry of the period", and it was held that this provision was, in substance, not a real proviso to the section in which it was placed, but was, in fact, a period of limitation prescribed for all orders of assessment made under any other provision of the Act. In the Bombay Sales Tax Acts of 1946 and 1953, there is no such general provision prescribing a period of limitation for making an assessment and, even though the effect of the order of the Dy. Commissioner passed in revision may be to briny about an assessment to tax of turnover which was set aside by the Assistant Collector in appeal, such an assessment does not come under any provision relating to limitationIn the present case, the Deputy Commissioner, when seeking to exercise his revisional powers, is clearly not encroaching upon the powers reserved to other authorities. Under the Act of 1946, the first assessment is made by the Sales-Tax Officer under S. 11. If information comes into his possession that any turnover in respect of sales or supplies of any goods chargeable to tax has escaped assessment in any year or has been under-assessed or assessed at a lower rate or any deductions have been wrongly made therefrom, proceedings can be taken afresh under S. 11-A. On the face of it, if a first assessment order is made under S. 11 and any turnove r escapes assessment, the appropriate provision, under which action is to be taken for assessing that turnover to tax, is S. 11-A. There is, however, no provision under which the power now sought to be exercised by the Deputy Commissioner in the case before us could have been exercised by any other authority. In this case, as we have indicated earlier, the first assessment of tax was made by the Sales Tax Officer, and the turnover now in question was assessed to tax by him. Having once assessed that turnover to tax, he could not initiate a fresh proceeding in respect of it under S. 11-A. The assessment made by him was set aside in appeal by the Assistant Collector and it is this order the Assistant Collector which is sought to be revised by the Deputys is, therefore, not a case where the powers are being exercised for the purpose of assessing or reassessing an escaped turnover. The case is one where the revisional powers are sought to be exercised to correct what appears to be an incorrect order passed in appeal by the Assistant Collector, and, for such a purpose, proceedings could not possibly have been taken under S. 11-A. In exercising his revisional powers, therefore, the Deputy Commissioner is not encroaching upon the jurisdiction of any other authority specially entrusted with taking such proceedingsIt appears that, in view of the fact that proceedings for re-assessment would have been taken under S. 11-A in that case and, instead, revisional powers were sought to be exercised, that Court held that the exercise of such revisional powers must be governed by the same limitation which applied to the exercise of power of re-assessment. In fact, the correct principle that should have been applied in that case is the principle mentioned by us earlier laid down in K. M. Cheria Abdulla and Co. 1965-16 STC 875 = (AIR 1965 SC 1585 ) (supra). The revision should have been held to be incompetent on the ground that the power was sought to be exercised for assessment of escaped turnover which had not been assessed at all at the initial stage of assessment under S. 11 and proceedings under S. 11-A could have been competently initiated for bringing that turnover to tax. Instead, the Court equated the proceeding in revision with the proceeding for re-assessment and applied the 4-year period of limitation which was prescribed only for re-assessment and not for exercise of revisional power. In our opinion, the ultimate decision in that case was perfectly correct, but we are unable to affirm the view that the revisional power is governed by any period of limitation laid down in S. 11-A for proceedings for re-assessment of escaped turnoverThis argument ignores the circumstance that, in that case, the last order, under which the income from interest had been exempted from tax, was an order made by the Income-tax Officer himself, though after the assessment proceedings had been remanded to him by the Appellate Assistant Commissioner. Since the income had escaped assessment under an order passed by the Income-tax Officer himself, he could competently take proceedings under Section 34. In the case before us, the turn over of the assessee now sought to be taxed in the revisional proceedings did not escape liability to tax under the orders of the Sales-tax Officer and, on the other hand, was actually taxed by him, which imposition of tax was set aside in appeal. Consequently, the Sales-tax Officer could not possibly take proceedings under S. 11-A in respect of that turnover. | 0 | 5,190 | 2,057 | ### 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:
escapes assessment, the appropriate provision, under which action is to be taken for assessing that turnover to tax, is S. 11-A. There is, however, no provision under which the power now sought to be exercised by the Deputy Commissioner in the case before us could have been exercised by any other authority. In this case, as we have indicated earlier, the first assessment of tax was made by the Sales Tax Officer, and the turnover now in question was assessed to tax by him. Having once assessed that turnover to tax, he could not initiate a fresh proceeding in respect of it under S. 11-A. The assessment made by him was set aside in appeal by the Assistant Collector and it is this order the Assistant Collector which is sought to be revised by the Deputy Commissioner. This is, therefore, not a case where the powers are being exercised for the purpose of assessing or reassessing an escaped turnover. The case is one where the revisional powers are sought to be exercised to correct what appears to be an incorrect order passed in appeal by the Assistant Collector, and, for such a purpose, proceedings could not possibly have been taken under S. 11-A. In exercising his revisional powers, therefore, the Deputy Commissioner is not encroaching upon the jurisdiction of any other authority specially entrusted with taking such proceedings. 9. In this connection, Mr. Desai relied on a decision of the Bombay High Court in Manordas Kalidas v. V. V. Tatke. 1960-11 STC 87 (Bom). The decision in that case also related to this very Act of 1946, but the point to be kept in view is that, in that case, the revisional power was sought to be exercised in respect of the original assessment order passed by the Sales Tax Officer under S. 11 of the Act. It was in these circumstances that the Bombay High Court, after referring to its two decisions in Bisesar House v. State of Bombay, 1958-19 STC 654 = (AIR 1959 Bom 130 ) and 1957-31 ITR 164 = (AIR 1957 Bom 1 ) (supra), held :-"In neither of those two cases revisional powers were sought to be exercised, but the principle of those cases must, in our judgment, apply for the same reasons to the exercise of revisional jurisdiction, and that jurisdiction must be exercised within a reasonable period, and the yard-stick of reasonableness will be the period prescribed for reassessment." It appears that, in view of the fact that proceedings for re-assessment would have been taken under S. 11-A in that case and, instead, revisional powers were sought to be exercised, that Court held that the exercise of such revisional powers must be governed by the same limitation which applied to the exercise of power of re-assessment. In fact, the correct principle that should have been applied in that case is the principle mentioned by us earlier laid down in K. M. Cheria Abdulla and Co. 1965-16 STC 875 = (AIR 1965 SC 1585 ) (supra). The revision should have been held to be incompetent on the ground that the power was sought to be exercised for assessment of escaped turnover which had not been assessed at all at the initial stage of assessment under S. 11 and proceedings under S. 11-A could have been competently initiated for bringing that turnover to tax. Instead, the Court equated the proceeding in revision with the proceeding for re-assessment and applied the 4-year period of limitation which was prescribed only for re-assessment and not for exercise of revisional power. In our opinion, the ultimate decision in that case was perfectly correct, but we are unable to affirm the view that the revisional power is governed by any period of limitation laid down in S. 11-A for proceedings for re-assessment of escaped turnover. 10. Reference, in this connection, was also made to a decision of this Court in Kamal Singh v. Commissioner of Income-tax, Bihar and Orissa, 1959-35 ITR 1 = (AIR 1959 SC 257 ) in which the Court dealt with a case of an assessee whose income to the extent of Rs. 93,604 representing interest on arrears of rent was omitted to be brought to assessment by the Income-tax Officer. Subsequently, in another case, the Privy Council held that interest on arrears of rent payable in respect of agricultural land was not agricultural income and, consequently, the Income-tax Officer initiated re-assessment proceedings under S. 34 (1) (b) of the Income-tax Act. The circumstance relied upon by learned counsel for the appellant was that the omission by the Income-tax Officer to bring to assessment that interest was part of an order made by him after his initial assessment order had been set aside by the Appellate Assistant Commissioner who directed a fresh assessment, allowing the appeal against that order. In that case, it was held that the escaped income could be brought to tax under S. 34 of the Income-tax Act and, on the basis of this decision, it was urged that, similarly, in the present case, the turnover now sought to be brought to tax in exercise of revisional powers could be reassessed under S. 11-A. This argument ignores the circumstance that, in that case, the last order, under which the income from interest had been exempted from tax, was an order made by the Income-tax Officer himself, though after the assessment proceedings had been remanded to him by the Appellate Assistant Commissioner. Since the income had escaped assessment under an order passed by the Income-tax Officer himself, he could competently take proceedings under Section 34. In the case before us, the turn over of the assessee now sought to be taxed in the revisional proceedings did not escape liability to tax under the orders of the Sales-tax Officer and, on the other hand, was actually taxed by him, which imposition of tax was set aside in appeal. Consequently, the Sales-tax Officer could not possibly take proceedings under S. 11-A in respect of that turnover.
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is not at all material, because the provisions of S. 22 of the Act of 1946 are quite similar to those of S. 31 of the Act of 1953. The mere incorrect mention of S. 31 of the Act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under S. 22 of the Act of 1946 and, consequently, the proceedings initiated by him are not without jurisdictionSection 22 of the Act of 1946 and S. 31 of the Act of 1953 do not lay clown any limitation for exercise of the power of revision by a Deputy Commissioner suo motu, and we are not prepared to accept that any such limitation must be necessarily read in the two ActsThat case, however has no relevance at all, because in the Orissa Sales Tax Act, there was a proviso in general terms laying down that no order "assessing the amount of tax shall be passed after the lapse of 36 months from the expiry of the period", and it was held that this provision was, in substance, not a real proviso to the section in which it was placed, but was, in fact, a period of limitation prescribed for all orders of assessment made under any other provision of the Act. In the Bombay Sales Tax Acts of 1946 and 1953, there is no such general provision prescribing a period of limitation for making an assessment and, even though the effect of the order of the Dy. Commissioner passed in revision may be to briny about an assessment to tax of turnover which was set aside by the Assistant Collector in appeal, such an assessment does not come under any provision relating to limitationIn the present case, the Deputy Commissioner, when seeking to exercise his revisional powers, is clearly not encroaching upon the powers reserved to other authorities. Under the Act of 1946, the first assessment is made by the Sales-Tax Officer under S. 11. If information comes into his possession that any turnover in respect of sales or supplies of any goods chargeable to tax has escaped assessment in any year or has been under-assessed or assessed at a lower rate or any deductions have been wrongly made therefrom, proceedings can be taken afresh under S. 11-A. On the face of it, if a first assessment order is made under S. 11 and any turnove r escapes assessment, the appropriate provision, under which action is to be taken for assessing that turnover to tax, is S. 11-A. There is, however, no provision under which the power now sought to be exercised by the Deputy Commissioner in the case before us could have been exercised by any other authority. In this case, as we have indicated earlier, the first assessment of tax was made by the Sales Tax Officer, and the turnover now in question was assessed to tax by him. Having once assessed that turnover to tax, he could not initiate a fresh proceeding in respect of it under S. 11-A. The assessment made by him was set aside in appeal by the Assistant Collector and it is this order the Assistant Collector which is sought to be revised by the Deputys is, therefore, not a case where the powers are being exercised for the purpose of assessing or reassessing an escaped turnover. The case is one where the revisional powers are sought to be exercised to correct what appears to be an incorrect order passed in appeal by the Assistant Collector, and, for such a purpose, proceedings could not possibly have been taken under S. 11-A. In exercising his revisional powers, therefore, the Deputy Commissioner is not encroaching upon the jurisdiction of any other authority specially entrusted with taking such proceedingsIt appears that, in view of the fact that proceedings for re-assessment would have been taken under S. 11-A in that case and, instead, revisional powers were sought to be exercised, that Court held that the exercise of such revisional powers must be governed by the same limitation which applied to the exercise of power of re-assessment. In fact, the correct principle that should have been applied in that case is the principle mentioned by us earlier laid down in K. M. Cheria Abdulla and Co. 1965-16 STC 875 = (AIR 1965 SC 1585 ) (supra). The revision should have been held to be incompetent on the ground that the power was sought to be exercised for assessment of escaped turnover which had not been assessed at all at the initial stage of assessment under S. 11 and proceedings under S. 11-A could have been competently initiated for bringing that turnover to tax. Instead, the Court equated the proceeding in revision with the proceeding for re-assessment and applied the 4-year period of limitation which was prescribed only for re-assessment and not for exercise of revisional power. In our opinion, the ultimate decision in that case was perfectly correct, but we are unable to affirm the view that the revisional power is governed by any period of limitation laid down in S. 11-A for proceedings for re-assessment of escaped turnoverThis argument ignores the circumstance that, in that case, the last order, under which the income from interest had been exempted from tax, was an order made by the Income-tax Officer himself, though after the assessment proceedings had been remanded to him by the Appellate Assistant Commissioner. Since the income had escaped assessment under an order passed by the Income-tax Officer himself, he could competently take proceedings under Section 34. In the case before us, the turn over of the assessee now sought to be taxed in the revisional proceedings did not escape liability to tax under the orders of the Sales-tax Officer and, on the other hand, was actually taxed by him, which imposition of tax was set aside in appeal. Consequently, the Sales-tax Officer could not possibly take proceedings under S. 11-A in respect of that turnover.
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Mathurdas Kanji & Others Vs. Labour Appellate Tribunal & Others | to pass on the bonus to the workmen. Exhibit U 10 was a letter, dated 14-2-1952, written by the Conciliation Officer (Central) to the appellants, wherein it was pointed out that the Ministry of Food and Agriculture, Government of India, had informed the Conciliation Officer that the contractors were required to pay he amount of bonus of annas 4 to the labour and that the agreement should be taken to be subject to the above condition. If the payment of the bonus of annas 4 to the workmen was not a term in the agreement, the mere fact that, subsequent to the agreement, the Government thought that the bonus of annas 4 per ton mentioned in the agreement should go to the workmen would not conceivably make it a term of the contract, unless the other parties to the contract agreed to the additional term. Admittedly the appellants did not agree to any such new term. In the circumstances, on the construction of the express terms of the contract, we have no hesitation to hold that the bonus of annas 4 mentioned in Note 2 of the agreement was part of an integrated scheme of additional remuneration vouch-safed to the appellants in case they complied with the conditions laid down in the agreement and the workmen employed by the appellants had no right to the same. As we have already pointed out, the other two agreements entered into by the Central Government with the second and the third appellants were similar in terms and what we have stated about the first agreement would equally apply to the construction of the terms of the said two agreements. If so, it follows that the workmen were not entitled either to the bonus under Note 2 to the agreement or to any share therein.3. The next question is whether the workmen are entitled to claim incentive bonus de hors the agreements. The Appellate Tribunal gave to the workmen a share of the bonus earned by the appellants under the terms of the agreement on the ground that social justice required that the employees, who were all piece rate workers, and had no steady and continuous flow of income and not entitled to gratuity, provident fund and other benefits, should get a share in the incentive bonus. The learned Attorney-General contended that the respondents claimed bonus only under the terms of the agreement entered into between the Central Government and the appellants and therefore the Tribunal was not justified in giving relief to them on a different basis. He further argued that the workmen were not entitled to bonus, whether incentive or otherwise, unless the appellants business made profits, and in this case there was neither an allegation much less proof that the appellants made profits during the years in question.4. The concept of the word bonus has been succinctly defined and the circumstance under which it is to be paid to the workmen has been clearly laid down by this Court in Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur (1955) 1 SCR 991 : ( (S) AIR 1955 SC 170 ) (A). Various definitions of the word bonus were culled out from authoritative text-books and quoted in the judgment with approval.They accepted the definition of bonus as cash payment made in addition to wages as a stimulus to extra work and efficiency by the labour. But to enable the labour to earn the bonus the following conditions are laid down at page 998 of the case cited above:(1) "when wages fall short of the living standard and(2)the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production".In the words of Bhagwati J., "The demand for bonus becomes and industrial claim when either or both these conditions are satisfied."5. Bonus schemes vary with the conditions obtaining in different industries. Though bonus is a cash payment made to the workmen in addition to the wages, it is no longer considered as an extra gratia payment. The claim, if raised, becomes an Industrial Dispute and the award made thereon is binding on the employer as well the employee. One of the categories of bonus is described as incentive bonus. The name indicates that it is given as a cash incentive to greater effort on the part of the labour. But the essential condition for the payment of incentive bonus just like any other kind of bonus, is that the industry concerned must earn profits part of which is due to the contribution which the workmen made in increasing production.6. The first question is whether in the case of workmen engaged on piece rate basis, there is any scope for awarding incentive bonus.If the wages of the workmen were fixed and paid on piece rate basis, they would earn more if they worked more and therefore, the argument proceeded, that it was neither just nor equitable to award payment of any further incentive bonus to workmen.7. Though the incentive to work may be implicit in the system of piece rate work, it may be contended that other devices or adventitious aids may be conceived and implemented to speed up the pace and to induce the labour to put up extra effort. We do not propose to express our opinion in this case on the said question, as, even if payment of incentive bonus was legally permissible in the case of piece rate work, the workmen would be entitled to it only if the appellants made profits in the business. But in this case the contesting respondents did not claim incentive bonus linking it with profits. There was no allegation at any stage of the proceeding that the appellants made profits due to the contribution which the workmen made in increasing the production. There was also no evidence placed before the Tribunals or before us to prove that the appellants earned profits. In the circumstances, the workmen were not entitled to incentive bonus claimed by them. | 1[ds]In the circumstances, on the construction of the express terms of the contract, we have no hesitation to hold that the bonus of annas 4 mentioned in Note 2 of the agreement was part of an integrated scheme of additional remunerationto the appellants in case they complied with the conditions laid down in the agreement and the workmen employed by the appellants had no right to the same. As we have already pointed out, the other two agreements entered into by the Central Government with the second and the third appellants were similar in terms and what we have stated about the first agreement would equally apply to the construction of the terms of the said two agreements. If so, it follows that the workmen were not entitled either to the bonus under Note 2 to the agreement or to any share therein.The first question is whether in the case of workmen engaged on piece rate basis, there is any scope for awarding incentivethe wages of the workmen were fixed and paid on piece rate basis, they would earn more if they worked more and therefore, the argument proceeded, that it was neither just nor equitable to award payment of any further incentive bonus to workmen.7. Though the incentive to work may be implicit in the system of piece rate work, it may be contended that other devices or adventitious aids may be conceived and implemented to speed up the pace and to induce the labour to put up extra effort. We do not propose to express our opinion in this case on the said question, as, even if payment of incentive bonus was legally permissible in the case of piece rate work, the workmen would be entitled to it only if the appellants made profits in the business. But in this case the contesting respondents did not claim incentive bonus linking it with profits. There was no allegation at any stage of the proceeding that the appellants made profits due to the contribution which the workmen made in increasing the production. There was also no evidence placed before the Tribunals or before us to prove that the appellants earned profits. In the circumstances, the workmen were not entitled to incentive bonus claimed by them. | 1 | 3,256 | 401 | ### 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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to pass on the bonus to the workmen. Exhibit U 10 was a letter, dated 14-2-1952, written by the Conciliation Officer (Central) to the appellants, wherein it was pointed out that the Ministry of Food and Agriculture, Government of India, had informed the Conciliation Officer that the contractors were required to pay he amount of bonus of annas 4 to the labour and that the agreement should be taken to be subject to the above condition. If the payment of the bonus of annas 4 to the workmen was not a term in the agreement, the mere fact that, subsequent to the agreement, the Government thought that the bonus of annas 4 per ton mentioned in the agreement should go to the workmen would not conceivably make it a term of the contract, unless the other parties to the contract agreed to the additional term. Admittedly the appellants did not agree to any such new term. In the circumstances, on the construction of the express terms of the contract, we have no hesitation to hold that the bonus of annas 4 mentioned in Note 2 of the agreement was part of an integrated scheme of additional remuneration vouch-safed to the appellants in case they complied with the conditions laid down in the agreement and the workmen employed by the appellants had no right to the same. As we have already pointed out, the other two agreements entered into by the Central Government with the second and the third appellants were similar in terms and what we have stated about the first agreement would equally apply to the construction of the terms of the said two agreements. If so, it follows that the workmen were not entitled either to the bonus under Note 2 to the agreement or to any share therein.3. The next question is whether the workmen are entitled to claim incentive bonus de hors the agreements. The Appellate Tribunal gave to the workmen a share of the bonus earned by the appellants under the terms of the agreement on the ground that social justice required that the employees, who were all piece rate workers, and had no steady and continuous flow of income and not entitled to gratuity, provident fund and other benefits, should get a share in the incentive bonus. The learned Attorney-General contended that the respondents claimed bonus only under the terms of the agreement entered into between the Central Government and the appellants and therefore the Tribunal was not justified in giving relief to them on a different basis. He further argued that the workmen were not entitled to bonus, whether incentive or otherwise, unless the appellants business made profits, and in this case there was neither an allegation much less proof that the appellants made profits during the years in question.4. The concept of the word bonus has been succinctly defined and the circumstance under which it is to be paid to the workmen has been clearly laid down by this Court in Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur (1955) 1 SCR 991 : ( (S) AIR 1955 SC 170 ) (A). Various definitions of the word bonus were culled out from authoritative text-books and quoted in the judgment with approval.They accepted the definition of bonus as cash payment made in addition to wages as a stimulus to extra work and efficiency by the labour. But to enable the labour to earn the bonus the following conditions are laid down at page 998 of the case cited above:(1) "when wages fall short of the living standard and(2)the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production".In the words of Bhagwati J., "The demand for bonus becomes and industrial claim when either or both these conditions are satisfied."5. Bonus schemes vary with the conditions obtaining in different industries. Though bonus is a cash payment made to the workmen in addition to the wages, it is no longer considered as an extra gratia payment. The claim, if raised, becomes an Industrial Dispute and the award made thereon is binding on the employer as well the employee. One of the categories of bonus is described as incentive bonus. The name indicates that it is given as a cash incentive to greater effort on the part of the labour. But the essential condition for the payment of incentive bonus just like any other kind of bonus, is that the industry concerned must earn profits part of which is due to the contribution which the workmen made in increasing production.6. The first question is whether in the case of workmen engaged on piece rate basis, there is any scope for awarding incentive bonus.If the wages of the workmen were fixed and paid on piece rate basis, they would earn more if they worked more and therefore, the argument proceeded, that it was neither just nor equitable to award payment of any further incentive bonus to workmen.7. Though the incentive to work may be implicit in the system of piece rate work, it may be contended that other devices or adventitious aids may be conceived and implemented to speed up the pace and to induce the labour to put up extra effort. We do not propose to express our opinion in this case on the said question, as, even if payment of incentive bonus was legally permissible in the case of piece rate work, the workmen would be entitled to it only if the appellants made profits in the business. But in this case the contesting respondents did not claim incentive bonus linking it with profits. There was no allegation at any stage of the proceeding that the appellants made profits due to the contribution which the workmen made in increasing the production. There was also no evidence placed before the Tribunals or before us to prove that the appellants earned profits. In the circumstances, the workmen were not entitled to incentive bonus claimed by them.
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In the circumstances, on the construction of the express terms of the contract, we have no hesitation to hold that the bonus of annas 4 mentioned in Note 2 of the agreement was part of an integrated scheme of additional remunerationto the appellants in case they complied with the conditions laid down in the agreement and the workmen employed by the appellants had no right to the same. As we have already pointed out, the other two agreements entered into by the Central Government with the second and the third appellants were similar in terms and what we have stated about the first agreement would equally apply to the construction of the terms of the said two agreements. If so, it follows that the workmen were not entitled either to the bonus under Note 2 to the agreement or to any share therein.The first question is whether in the case of workmen engaged on piece rate basis, there is any scope for awarding incentivethe wages of the workmen were fixed and paid on piece rate basis, they would earn more if they worked more and therefore, the argument proceeded, that it was neither just nor equitable to award payment of any further incentive bonus to workmen.7. Though the incentive to work may be implicit in the system of piece rate work, it may be contended that other devices or adventitious aids may be conceived and implemented to speed up the pace and to induce the labour to put up extra effort. We do not propose to express our opinion in this case on the said question, as, even if payment of incentive bonus was legally permissible in the case of piece rate work, the workmen would be entitled to it only if the appellants made profits in the business. But in this case the contesting respondents did not claim incentive bonus linking it with profits. There was no allegation at any stage of the proceeding that the appellants made profits due to the contribution which the workmen made in increasing the production. There was also no evidence placed before the Tribunals or before us to prove that the appellants earned profits. In the circumstances, the workmen were not entitled to incentive bonus claimed by them.
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Cycle Corpn. Of India Vs. T.I. Raleigh Inds. Pvt. Ltd. | bona fide user of the trade mark by unregistered user. It must, therefore, be held that though the deemed presumption under sub-section (2) of Section 48 is referable to the permitted user or the registered user and it does not extend to unregistered permitted user, the connecting link of passing off the goods between the licensors trade mark and the licensee should bona fide be with the permission or consent which may be express or implied by long course of dealings. It would connect the registered proprietor and the user of the trade mark by the unregistered licensee. The appellant must be presumed by course of conduct that he is a bona fide user for the purpose of Section 46(1)(b). 13. In K.R. Beri & Co. v. The Metal Goods Mfg. Co. Pvt. Ltd., AIR 1980 Delhi 299, the Division Bench construed Section 48(2) and held that an unregistered user of the trade mark even with the consent of the proprietor cannot be construed to be a registered user under Section 48(1) and such construction renders sub-section (2) of Section 48 surplusage or otiose which is impermissible by statutory construction. We have given anxious consideration to the reasoning therein. On strict interpretation, the view of the Division Bench may be correct but it is correct to hold that by a bona fide user of an unregistered user when connection between the proprietor of the trade mark and the permitted user in relation to passing off the goods under the trade mark are proved, it does not render sub-section (2) of Section 48 surplusage or otiose. 14. It is true that the burden lies on the registered proprietor of the trade mark to establish the exceptions provided under Section 46(3). Equally, the applicant for rectification also prima facie shows non-user for the relevant period. Then the burden shifts to the proprietor of the trade mark to affirmatively prove the special circumstances for non-user of trade mark. It must be shown that the non-use of trade mark is due to special circumstances of the trade and not due to some other cause which would have operated, whether the special circumstances had arisen or not. Although the special circumstances of trade taken by themselves would have prevented the use of the trade mark. If the non-user was, in fact, due to some other circumstances and would have occurred whether the circumstances and would have occurred whether the circumstances had followed or not, sub-section (3) would not apply. It must, therefore, be duty of the registered proprietor to show that non-user was strictly due to the special circumstances of trade and not of any intention on the part of the registered proprietor not to use the trade mark during the relevant period.15. Though there was a ban on import of the Raliegh cycles manufactured outside India and passed off under the registered mark of the respondents as a registered proprietor, the circumstances do not attract sub-section (3) of Section 46 to relieve the respondent to establish non-user, but on the facts of this case, we have the admitted position that Sen Raleigh, admittedly, was a registered user through which the appellant had bona fide used the registered trade mark of the registered proprietor. There is no discontinuance or non-use of the trade mark by the respondent to establish the special circumstances in this case. It is also not necessary to go into the question whether the application filed by the appellant under Section 48(1) and its pendency would be special circumstance in favour of the respondent. Suffice it to hold that sub-section (3) of Section 46 is not attracted to the facts in this case. 16. The question then is : whether the discretion has been properly exercised by both the Division Bench as well the single Judge in refusing to take off the trade mark from the register by striking off trade mark from the register of the Registrar of Trade Marks ? 17. It is true that while exercising discretion, the Court under Section 46 of the Act should take into consideration not only commercial interest of the parties but also public interest : In para 21.82 at page 386 of the Law of Trade Marks and Passing-off by P. Narayanan (4th Edn.), it is stated that the Court or the Registrar has discretion in granting or refusing an application for rectification. Ordinarily, however, the mark will be expugned (taken off) when the factual circumstances necessary for the removal are established unless it is shown that the case comes within the exceptions provided in sub-section (3). The High Court refused to exercise the discretion to strike off the trade mark from the register. It is seen that the appellant had not abandoned, at any point of time, the use of the trade mark of the respondent-registered proprietor till filing of the application. Though the appellant has not used the trade mark by itself since 1954 and after the expiry of the permitted use by Sen Raleigh until the notice was issued by the respondent directing the appellant not to use the trade mark, the appellant came to use the same in passing off bicycles manufactured by it under trade mark of the respondent. It is not relevant for the purpose of Section 46(1)(b) whether the bicycles were manufactured with the assistance of technical know-how passed on by Sen Raleigh or the permitted user. Suffice it to state that the appellant, as a fact, had used the trade mark of the respondent in passing off the bicycles manufactured by it. The High Court, in our view, declined for good reason, to rectify the trade mark under Section 46(1)(b) of the Act. We are, also not persuaded to take a different view from that of the High Court. In these circumstances, we are of the view that the High Court has properly exercised its discretion and refused to rectify and strike off the trade mark from the register of trade marks of the Registrar. | 0[ds]10. It would, therefore, be clear that a permitted use of the trade mark should be done under sub-section (1) of Section 48. It should be either by the registered proprietor of the trade mark or a person other than the registered proprietor registered under Section 48(1) to use the trade mark by operation of sub-section (2). An unregistered person under Section 48(1) or a person who did not register under Section (1) of Section 48 shall not be deemed to be a registered user for the purpose of Section 46 or any other law.11. The High Court recorded a finding and it is not disputed across the bar, that the appellant had entered into an agreement with Sen Raleigh which was a permitted user and used the trade mark till November 1, 1976 and thereafter by registered user agreement dated December 20, 1976 used trade mark for a period of 5 years. It is not in dispute that till date of filing of the application, the appellant used the trade mark in passing off the bicycles under the trade mark of theadmitted position and in the facts and circumstances, we are of the view that the appellant was a bona fide user of the trade mark of the respondent in passing off the bicycles under the trade mark of the respondent who, admittedly, is a registered proprietor. It is true, as held by this Court, that to get a trade mark registered without any intention to use it in relation to any goods but merely to make money out of it by selling it to others, the right to use it as a commodity would be trafficking in that trade mark. It requires to be prevented and prohibited. The Court would not lend assistance to such registered proprietors of the trade mark. There must be real trade connection between the proprietor of the trade and licensee of the goods and the intention to use the trade mark must exist at the date of the application for registration of trade mark and such intention must be genuine and bona fide and continue to subsist in order to disprove the charge of trafficking in trade mark. It is a question of fact in everyquestion was considered by this Court in American Home Products Corporation v. Mac Laboratories Pvt. Ltd., 1986(1) SCC 465 in paragraphs 38 and 39 and they need no reiteration.12. It is seen that preceding the nationalisation of the cycle manufacturing industry under the IDR Act, the respondent had a collaboration agreement with Sen Raleigh who was registered user under Section 48. From him, the appellant came to succeed by statutory operation. It was, therefore, not a case of getting the trade mark registered under the predecessor Act and continuing under the Act for trafficking of the trade mark. It is true that under Section 48(1) either the registered proprietor or a permitted person is required to register as permitted user. The benefit of Section 46 would be available during the period for which the agreement registered and user continued in furtherance thereof. It appears that even an unregistered licensee, so long as there is unbroken connection in the course of the trade between the licenser and the passing off licensees goods under the trade mark, there would be sufficient connection in the course of the trade between the proprietor and bona fide user of the trade mark by unregistered user. It must, therefore, be held that though the deemed presumption under sub-section (2) of Section 48 is referable to the permitted user or the registered user and it does not extend to unregistered permitted user, the connecting link of passing off the goods between the licensors trade mark and the licensee should bona fide be with the permission or consent which may be express or implied by long course of dealings. It would connect the registered proprietor and the user of the trade mark by the unregistered licensee. The appellant must be presumed by course of conduct that he is a bona fide user for the purpose of Section 46(1)(b).It is true that the burden lies on the registered proprietor of the trade mark to establish the exceptions provided under Section 46(3). Equally, the applicant for rectification also prima facie shows non-user for the relevant period. Then the burden shifts to the proprietor of the trade mark to affirmatively prove the special circumstances for non-user of trade mark. It must be shown that the non-use of trade mark is due to special circumstances of the trade and not due to some other cause which would have operated, whether the special circumstances had arisen or not. Although the special circumstances of trade taken by themselves would have prevented the use of the trade mark. If the non-user was, in fact, due to some other circumstances and would have occurred whether the circumstances and would have occurred whether the circumstances had followed or not, sub-section (3) would not apply. It must, therefore, be duty of the registered proprietor to show that non-user was strictly due to the special circumstances of trade and not of any intention on the part of the registered proprietor not to use the trade mark during the relevant period.15. Though there was a ban on import of the Raliegh cycles manufactured outside India and passed off under the registered mark of the respondents as a registered proprietor, the circumstances do not attract sub-section (3) of Section 46 to relieve the respondent to establish non-user, but on the facts of this case, we have the admitted position that Sen Raleigh, admittedly, was a registered user through which the appellant had bona fide used the registered trade mark of the registered proprietor. There is no discontinuance or non-use of the trade mark by the respondent to establish the special circumstances in this case. It is also not necessary to go into the question whether the application filed by the appellant under Section 48(1) and its pendency would be special circumstance in favour of the respondent. Suffice it to hold that sub-section (3) of Section 46 is not attracted to the facts in thishowever, the mark will be expugned (taken off) when the factual circumstances necessary for the removal are established unless it is shown that the case comes within the exceptions provided in sub-section (3). The High Court refused to exercise the discretion to strike off the trade mark from the register. It is seen that the appellant had not abandoned, at any point of time, the use of the trade mark of the respondent-registered proprietor till filing of the application. Though the appellant has not used the trade mark by itself since 1954 and after the expiry of the permitted use by Sen Raleigh until the notice was issued by the respondent directing the appellant not to use the trade mark, the appellant came to use the same in passing off bicycles manufactured by it under trade mark of the respondent. It is not relevant for the purpose of Section 46(1)(b) whether the bicycles were manufactured with the assistance of technical know-how passed on by Sen Raleigh or the permitted user. Suffice it to state that the appellant, as a fact, had used the trade mark of the respondent in passing off the bicycles manufactured by it. The High Court, in our view, declined for good reason, to rectify the trade mark under Section 46(1)(b) of the Act. We are, also not persuaded to take a different view from that of the High Court. In these circumstances, we are of the view that the High Court has properly exercised its discretion and refused to rectify and strike off the trade mark from the register of trade marks of the Registrar. | 0 | 4,775 | 1,436 | ### 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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bona fide user of the trade mark by unregistered user. It must, therefore, be held that though the deemed presumption under sub-section (2) of Section 48 is referable to the permitted user or the registered user and it does not extend to unregistered permitted user, the connecting link of passing off the goods between the licensors trade mark and the licensee should bona fide be with the permission or consent which may be express or implied by long course of dealings. It would connect the registered proprietor and the user of the trade mark by the unregistered licensee. The appellant must be presumed by course of conduct that he is a bona fide user for the purpose of Section 46(1)(b). 13. In K.R. Beri & Co. v. The Metal Goods Mfg. Co. Pvt. Ltd., AIR 1980 Delhi 299, the Division Bench construed Section 48(2) and held that an unregistered user of the trade mark even with the consent of the proprietor cannot be construed to be a registered user under Section 48(1) and such construction renders sub-section (2) of Section 48 surplusage or otiose which is impermissible by statutory construction. We have given anxious consideration to the reasoning therein. On strict interpretation, the view of the Division Bench may be correct but it is correct to hold that by a bona fide user of an unregistered user when connection between the proprietor of the trade mark and the permitted user in relation to passing off the goods under the trade mark are proved, it does not render sub-section (2) of Section 48 surplusage or otiose. 14. It is true that the burden lies on the registered proprietor of the trade mark to establish the exceptions provided under Section 46(3). Equally, the applicant for rectification also prima facie shows non-user for the relevant period. Then the burden shifts to the proprietor of the trade mark to affirmatively prove the special circumstances for non-user of trade mark. It must be shown that the non-use of trade mark is due to special circumstances of the trade and not due to some other cause which would have operated, whether the special circumstances had arisen or not. Although the special circumstances of trade taken by themselves would have prevented the use of the trade mark. If the non-user was, in fact, due to some other circumstances and would have occurred whether the circumstances and would have occurred whether the circumstances had followed or not, sub-section (3) would not apply. It must, therefore, be duty of the registered proprietor to show that non-user was strictly due to the special circumstances of trade and not of any intention on the part of the registered proprietor not to use the trade mark during the relevant period.15. Though there was a ban on import of the Raliegh cycles manufactured outside India and passed off under the registered mark of the respondents as a registered proprietor, the circumstances do not attract sub-section (3) of Section 46 to relieve the respondent to establish non-user, but on the facts of this case, we have the admitted position that Sen Raleigh, admittedly, was a registered user through which the appellant had bona fide used the registered trade mark of the registered proprietor. There is no discontinuance or non-use of the trade mark by the respondent to establish the special circumstances in this case. It is also not necessary to go into the question whether the application filed by the appellant under Section 48(1) and its pendency would be special circumstance in favour of the respondent. Suffice it to hold that sub-section (3) of Section 46 is not attracted to the facts in this case. 16. The question then is : whether the discretion has been properly exercised by both the Division Bench as well the single Judge in refusing to take off the trade mark from the register by striking off trade mark from the register of the Registrar of Trade Marks ? 17. It is true that while exercising discretion, the Court under Section 46 of the Act should take into consideration not only commercial interest of the parties but also public interest : In para 21.82 at page 386 of the Law of Trade Marks and Passing-off by P. Narayanan (4th Edn.), it is stated that the Court or the Registrar has discretion in granting or refusing an application for rectification. Ordinarily, however, the mark will be expugned (taken off) when the factual circumstances necessary for the removal are established unless it is shown that the case comes within the exceptions provided in sub-section (3). The High Court refused to exercise the discretion to strike off the trade mark from the register. It is seen that the appellant had not abandoned, at any point of time, the use of the trade mark of the respondent-registered proprietor till filing of the application. Though the appellant has not used the trade mark by itself since 1954 and after the expiry of the permitted use by Sen Raleigh until the notice was issued by the respondent directing the appellant not to use the trade mark, the appellant came to use the same in passing off bicycles manufactured by it under trade mark of the respondent. It is not relevant for the purpose of Section 46(1)(b) whether the bicycles were manufactured with the assistance of technical know-how passed on by Sen Raleigh or the permitted user. Suffice it to state that the appellant, as a fact, had used the trade mark of the respondent in passing off the bicycles manufactured by it. The High Court, in our view, declined for good reason, to rectify the trade mark under Section 46(1)(b) of the Act. We are, also not persuaded to take a different view from that of the High Court. In these circumstances, we are of the view that the High Court has properly exercised its discretion and refused to rectify and strike off the trade mark from the register of trade marks of the Registrar.
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lend assistance to such registered proprietors of the trade mark. There must be real trade connection between the proprietor of the trade and licensee of the goods and the intention to use the trade mark must exist at the date of the application for registration of trade mark and such intention must be genuine and bona fide and continue to subsist in order to disprove the charge of trafficking in trade mark. It is a question of fact in everyquestion was considered by this Court in American Home Products Corporation v. Mac Laboratories Pvt. Ltd., 1986(1) SCC 465 in paragraphs 38 and 39 and they need no reiteration.12. It is seen that preceding the nationalisation of the cycle manufacturing industry under the IDR Act, the respondent had a collaboration agreement with Sen Raleigh who was registered user under Section 48. From him, the appellant came to succeed by statutory operation. It was, therefore, not a case of getting the trade mark registered under the predecessor Act and continuing under the Act for trafficking of the trade mark. It is true that under Section 48(1) either the registered proprietor or a permitted person is required to register as permitted user. The benefit of Section 46 would be available during the period for which the agreement registered and user continued in furtherance thereof. It appears that even an unregistered licensee, so long as there is unbroken connection in the course of the trade between the licenser and the passing off licensees goods under the trade mark, there would be sufficient connection in the course of the trade between the proprietor and bona fide user of the trade mark by unregistered user. It must, therefore, be held that though the deemed presumption under sub-section (2) of Section 48 is referable to the permitted user or the registered user and it does not extend to unregistered permitted user, the connecting link of passing off the goods between the licensors trade mark and the licensee should bona fide be with the permission or consent which may be express or implied by long course of dealings. It would connect the registered proprietor and the user of the trade mark by the unregistered licensee. The appellant must be presumed by course of conduct that he is a bona fide user for the purpose of Section 46(1)(b).It is true that the burden lies on the registered proprietor of the trade mark to establish the exceptions provided under Section 46(3). Equally, the applicant for rectification also prima facie shows non-user for the relevant period. Then the burden shifts to the proprietor of the trade mark to affirmatively prove the special circumstances for non-user of trade mark. It must be shown that the non-use of trade mark is due to special circumstances of the trade and not due to some other cause which would have operated, whether the special circumstances had arisen or not. Although the special circumstances of trade taken by themselves would have prevented the use of the trade mark. If the non-user was, in fact, due to some other circumstances and would have occurred whether the circumstances and would have occurred whether the circumstances had followed or not, sub-section (3) would not apply. It must, therefore, be duty of the registered proprietor to show that non-user was strictly due to the special circumstances of trade and not of any intention on the part of the registered proprietor not to use the trade mark during the relevant period.15. Though there was a ban on import of the Raliegh cycles manufactured outside India and passed off under the registered mark of the respondents as a registered proprietor, the circumstances do not attract sub-section (3) of Section 46 to relieve the respondent to establish non-user, but on the facts of this case, we have the admitted position that Sen Raleigh, admittedly, was a registered user through which the appellant had bona fide used the registered trade mark of the registered proprietor. There is no discontinuance or non-use of the trade mark by the respondent to establish the special circumstances in this case. It is also not necessary to go into the question whether the application filed by the appellant under Section 48(1) and its pendency would be special circumstance in favour of the respondent. Suffice it to hold that sub-section (3) of Section 46 is not attracted to the facts in thishowever, the mark will be expugned (taken off) when the factual circumstances necessary for the removal are established unless it is shown that the case comes within the exceptions provided in sub-section (3). The High Court refused to exercise the discretion to strike off the trade mark from the register. It is seen that the appellant had not abandoned, at any point of time, the use of the trade mark of the respondent-registered proprietor till filing of the application. Though the appellant has not used the trade mark by itself since 1954 and after the expiry of the permitted use by Sen Raleigh until the notice was issued by the respondent directing the appellant not to use the trade mark, the appellant came to use the same in passing off bicycles manufactured by it under trade mark of the respondent. It is not relevant for the purpose of Section 46(1)(b) whether the bicycles were manufactured with the assistance of technical know-how passed on by Sen Raleigh or the permitted user. Suffice it to state that the appellant, as a fact, had used the trade mark of the respondent in passing off the bicycles manufactured by it. The High Court, in our view, declined for good reason, to rectify the trade mark under Section 46(1)(b) of the Act. We are, also not persuaded to take a different view from that of the High Court. In these circumstances, we are of the view that the High Court has properly exercised its discretion and refused to rectify and strike off the trade mark from the register of trade marks of the Registrar.
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STATE OF KERALA & ANR Vs. M/S POPULAR ESTATES (NOW DISSOLVED) & ANR | comprised of roads and buildings. These arguments found favour with the High Court. In our considered opinion, there is no glaring error in the impugned judgment, having regard to these circumstances. 39. The tribunal entirely rejected the evidence of PW-1, the Forest Range Officer, who gave the memorandum to the Commissioner on 01.09.1977. The tribunal wholly discredited and brushed aside the evidence of this officer and viewed it with suspicion. This is clear from the repeated use of the phrase magic money suggesting that PW-1 was devious and had been bribed. A reading of his deposition shows no such suggestion to him; no material was placed on record that he was prosecuted for an offence, nor were departmental proceedings initiated, for misconduct. 40. The other materials on record (the auditors balance sheets, Ex. A-57 to A- 64) the evidence of the auditor (PW-4), the deposition of the manager of the respondent/ Popular Estates, PW-5, who had worked since 1969 onwards reinforce the respondents contentions that the largest part of the area was cultivation for plantation crops. The tribunal, in this courts opinion unreasonably discarded these materials. 41. The other documents, i.e. Ex. A-66, Settlement arrived at between Popular Estates and its workers after closure on 25.6.1982 reveal that it had 80 permanent workers and 29 temporary workers on its rolls. Likewise, copies of income tax returns for various dates showed that income from these estates was consistently reported, along with expenditure. For the year ending on 31.3.1968 income was reported as ? 81,319; for the year ending 31.3.1969 it was ?95,707/-; the year ending 31.3.1970 it was ? 1,12,524; and for the year ending 31.3.1971 it was ? 1,38,918. The respondent Popular Estates was apparently depositing agricultural income tax and employees provident fund (Ex. A-67, A-69 and A-70). It had produced correspondence with these statutory authorities, as well as sales tax returns (Ex. A-71). 42. The title deeds of the predecessor-in-interest of the partners of the Popular Estates who had acquired the lands in 1963, show that large areas were shown as cardamon plantation. Popular Estates had filed agricultural income returns and even in 1970, it was producing coffee, rubber and cardamom. The fact that it had some labour trouble also supported its contention that Popular Estates plantation activities were on in full scale. All these materials, in the opinion of the court, support the conclusions of the High Court, which are based on plausible (and not an unreasonable) inference of the overall analysis of the evidence on the record. 43. There is some authority for the proposition that where two plausible views on the conclusions that can be drawn from facts on the record exist, this court, in exercise of its discretionary jurisdiction under Article 136 of the Constitution would not interfere with the findings of the High Court. It has been observed in Pritam Singh v. The State 1950 SCR 453, this Court observed that: On a careful examination of Article 136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. Similar observations were made in Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar (2004) 5 SCC 1. In Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214 , this Court observed that- The discretionary power of the Supreme Court is plenary in the sense that there are no words in Article 136 itself qualifying that power. The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to exist. 44. Likewise, in Union of India v. Gangadhar Narsingdas Agarwal & Anr (1997) 10 SCC 305 this court, declining to interfere with the order of the High Court in exercise of its power under Article 136 of the Constitution, said that even if two views are possible, the view taken by the High Court being a plausible one, it would not call for intervention by this court. A similar view was expressed in Jai Mangal Oraon v. Mira Nayak (Smt) & Ors (2000) 5 SCC 141 , wherein this court held that when there was nothing illegal and wrong in the reasoning and conclusions arrived at by the High Court and it appeared to be merited and in accordance with the interpretation of statutory provisions, this court would not interfere with the order of the High Court under Article 136 of the Constitution. In Taherakhatoon (D) By Lrs. v. Salambin Mohammad (1992) 2 SCC 635 , this Court at observed as follows: In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error- still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion. 45. This court has carefully considered the findings of the High Court while setting aside the order of the tribunal. The reasons which led the High Court to conclude that the tribunals findings called for interference are merited and in accord with the material evidence on record. | 0[ds]31. The definition of private forest given in Section 2(f) of the Vesting Act and Section 2(47) of the KLR Act were considered by this court in Gwalior Rayons Silk Mfg. (Wvg.) Ltd v. The Custodian of Vested Forests, Palghat & Anr 1990 (Supp) SCC 785. The lands involved in that case were forests as defined in the Madras Act and continued to be so when the Vesting Act came into force in 1971. It was observed that the definition of private forests applicable to the Malabar district was not general in terms but limited to the area and lands to which the Madras Act applied, and exempted therefrom land described under sub-clause (A) to (D). It was held that the previous decision of this court in Malankara Rubber & Produce Co. v. State of Kerala & Ors. [1973] 1 SCR 399 and the earlier decision in State of Kerala v. Gwalior Rayons Silk Mfg. (Wvg.) Ltd [1974] 1 SCR 67 1 (supra) was aa judicial recognition of the distinction between private forest in Travancore- Cochin area in Kerala State and the private forest in Malabar district. This distinction by itself is sufficient to dispel the anomalies suggested by counsel for the appellant. Look at the definition. Sub-clause (A) refers to gardens or nilams as defined in the KLR Act. Garden means lands used principally for growing coconut trees, arecanut trees or pepper vines or any two or more of the same. Nilam means lands adapted for the cultivation of paddy. Sub-clause (B) deals with what may be called plantation crops, cultivation of which in the general sense would be cultivation of agricultural crops. Such agricultural crops are by name specified. Lands used for any purpose ancillary to such cultivation or for preparation of the same for the market are also included thereunder. Next follows sub-clause (C). It first refers to lands which are principally cultivated with cashew or other fruit-bearing trees. It thus refers to only the fruit beating trees. It next refers to lands which are principally cultivated with any other agricultural crop. If the legislature had intended to use the term agricultural crop in a wide sense so as to take within its fold all species of trees fruit-beating or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruit-beating trees. It may be significant to note that the Legislature in each sub-clause (A) to (C) has used the words to identify the different categories of crops or trees. The words used in every sub-clause too have associations, echoes and overtones.33. The correct manner of interpreting the interplay between the Madras Act and the Vesting Act, was explained lucidly in the judgment of this court in State of Kerala v. Pullangode Rubber & Produce Co. Ltd (1999) 6 SCC 92. This court observed that:8. It is necessary first, we think, to construe the definition of private forest in the said Act. It means, as aforestated, in relation to the erstwhile Malabar District of the State of Madras, land to which the Madras Preservation of Private Forests Act applied immediately before 10-5-1971, being the appointed day under the said Act, but excluding, inter alia,lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. Such lands so used are, therefore, not private forests within the meaning of the said Act. Now what this means is that the lands in Malabar District aforementioned which are used (a) principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon, (b) for any purpose ancillary to the cultivation of such crops, and (c) for the preparation of such crops for the market are not private forests under the said Act. The use of the words are used in this context necessarily refers to such use as on the appointed date under the said Act, namely, 10-5-1971. It is not possible to give any other meaning to the words are used. They must relate to use on that particular day for it is on that day that land is or is not a private forest within the meaning of the said Act.34. The states contention that as Popular Estates had mentioned in its petition that a certain area was forest (since it was so, by virtue of provisions of the Madras Act) therefore, does not preclude the latters contention that no vesting could take place; whether the lands were forest or cultivated plantations or estates, for the purposes of Section 2(f)(1)(i)(B) of the Vesting Act, especially whether they stood excluded from operation of that Act, had to be considered independently.35. The judgment in Kunjanam Antony (supra) enunciated the rule that where the Land Board arrives at a determination about the character of lands, under the KLR Act, that becomes a piece of evidence for the purposes of the Vesting Act. It was observed that:There can be no doubt that the order of the Thaluka Land Board, a statutory authority, is binding on the authorities under the Land Reforms Act. So far as the proceedings under the Forest Act are concerned, the order of the Thaluka Land Board would be a piece of evidence but it cannot be treated as a binding on the authorities under the Forest Act. Unless a contrary state of affairs is shown to exist, the order of the Thaluka Land Board would have to be given due weight. From the material placed before the High Court and also before us, it appears that there is no evidence in regard to the destruction of the rubber plantation due to fire. There is, however, material to show that the appellant has been cultivating tapioca. Further, the High Court recorded a finding that there was no evidence indicating that the appellant had intention to cultivate the land which only meant cultivation of rubber plantation. There is also nothing on record to show that absence of rubber plantation was for short period and that the land was in the process of rubber plantation.36. Apart from this courts judgment in Popular II, another recent judgment, in State of Kerala v. Mohammed Basheer (2019) 2 SCC 260 has also followed the rule in Kunjanam Antony. Therefore, it is no longer open for the state to argue that the Boards determination or order, had little or no evidentiary value. In view of the judgments of this court, including Popular II, the enunciation of the principle that unless a contrary state of affairs were shown to exist, the Boards order would have to be given due weight had to apply, and was correctly invoked by the High Court.37. Coming to the facts of this case, what can be seen is that the two reports: preliminary and final, filed by the Commissioner, in the first proceeding (instituted by Popular Estates in 1974 by two applications) were the nearest in point of time, to the appointed date. The preliminary report, Ex. A-6 (filed on 15.01.1976) discloses widespread cultivation of coffee, cardamom, rubber, areca nut, etc. The two reports are part of the record. Ex. A-7 by the Commissioner, i.e. the final report dated 12.09.1977 recorded that the Forest Range Officer, after inspection stated that only disputed portions in Bit Nos. 1 to 7 had been demarcated and that the other areas were cultivated. The respondents contention was that this reflected the true factual position, coupled with the Range Officers memorandum (Ex. A-4) filed before the Commissioner on 01.09.1977.38. A combined reading of these materials, leads one to infer that a detailed inspection of the area took place. Only those areas that vested with the government were demarcated by the survey party, attached with the Superintendent, Land Records. It was in these circumstances that the respondent successfully urged before the High Court that what was demarcated was only 100 hectares and the others were not demarcated since they were cultivated. This was borne out by Ex. A-7, the final report. The possession with respect to 100 hectares of uncultivated forest lands was also covered by draft statement of land (Ex. A- 50, dated 24.01.1979) furnished to the Board in proceedings under the KLR Act. Ex. A-50 was the foundation for the Boards order dated 04.11.1980 (Ex. A-51). Both these documents confirmed that 100 hectares was vested forest. Popular Estates had submitted that 533 acres was under cardamom cultivation; 120 acres under rubber plantation; 257 acres under coffee plantation and that 155.9 acres was forest land; and 17.5 acres of were comprised of roads and buildings. These arguments found favour with the High Court. In our considered opinion, there is no glaring error in the impugned judgment, having regard to these circumstances.39. The tribunal entirely rejected the evidence of PW-1, the Forest Range Officer, who gave the memorandum to the Commissioner on 01.09.1977. The tribunal wholly discredited and brushed aside the evidence of this officer and viewed it with suspicion. This is clear from the repeated use of the phrase magic money suggesting that PW-1 was devious and had been bribed. A reading of his deposition shows no such suggestion to him; no material was placed on record that he was prosecuted for an offence, nor were departmental proceedings initiated, for misconduct.40. The other materials on record (the auditors balance sheets, Ex. A-57 to A- 64) the evidence of the auditor (PW-4), the deposition of the manager of the respondent/ Popular Estates, PW-5, who had worked since 1969 onwards reinforce the respondents contentions that the largest part of the area was cultivation for plantation crops. The tribunal, in this courts opinion unreasonably discarded these materials.41. The other documents, i.e. Ex. A-66, Settlement arrived at between Popular Estates and its workers after closure on 25.6.1982 reveal that it had 80 permanent workers and 29 temporary workers on its rolls. Likewise, copies of income tax returns for various dates showed that income from these estates was consistently reported, along with expenditure. For the year ending on 31.3.1968 income was reported as ? 81,319; for the year ending 31.3.1969 it was ?95,707/-; the year ending 31.3.1970 it was ? 1,12,524; and for the year ending 31.3.1971 it was ? 1,38,918. The respondent Popular Estates was apparently depositing agricultural income tax and employees provident fund (Ex. A-67, A-69 and A-70). It had produced correspondence with these statutory authorities, as well as sales tax returns (Ex. A-71).42. The title deeds of the predecessor-in-interest of the partners of the Popular Estates who had acquired the lands in 1963, show that large areas were shown as cardamon plantation. Popular Estates had filed agricultural income returns and even in 1970, it was producing coffee, rubber and cardamom. The fact that it had some labour trouble also supported its contention that Popular Estates plantation activities were on in full scale. All these materials, in the opinion of the court, support the conclusions of the High Court, which are based on plausible (and not an unreasonable) inference of the overall analysis of the evidence on the record.43. There is some authority for the proposition that where two plausible views on the conclusions that can be drawn from facts on the record exist, this court, in exercise of its discretionary jurisdiction under Article 136 of the Constitution would not interfere with the findings of the High Court. It has been observed in Pritam Singh v. The State 1950 SCR 453, this Court observed that:On a careful examination of Article 136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article.44. Likewise, in Union of India v. Gangadhar Narsingdas Agarwal & Anr (1997) 10 SCC 305 this court, declining to interfere with the order of the High Court in exercise of its power under Article 136 of the Constitution, said that even if two views are possible, the view taken by the High Court being a plausible one, it would not call for intervention by this court. A similar view was expressed in Jai Mangal Oraon v. Mira Nayak (Smt) & Ors (2000) 5 SCC 141 , wherein this court held that when there was nothing illegal and wrong in the reasoning and conclusions arrived at by the High Court and it appeared to be merited and in accordance with the interpretation of statutory provisions, this court would not interfere with the order of the High Court under Article 136 of the Constitution. In Taherakhatoon (D) By Lrs. v. Salambin Mohammad (1992) 2 SCC 635 , this Court at observed as follows:In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error- still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion.45. This court has carefully considered the findings of the High Court while setting aside the order of the tribunal. The reasons which led the High Court to conclude that the tribunals findings called for interference are merited and in accord with the material evidence on record. | 0 | 11,214 | 2,583 | ### Instruction:
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comprised of roads and buildings. These arguments found favour with the High Court. In our considered opinion, there is no glaring error in the impugned judgment, having regard to these circumstances. 39. The tribunal entirely rejected the evidence of PW-1, the Forest Range Officer, who gave the memorandum to the Commissioner on 01.09.1977. The tribunal wholly discredited and brushed aside the evidence of this officer and viewed it with suspicion. This is clear from the repeated use of the phrase magic money suggesting that PW-1 was devious and had been bribed. A reading of his deposition shows no such suggestion to him; no material was placed on record that he was prosecuted for an offence, nor were departmental proceedings initiated, for misconduct. 40. The other materials on record (the auditors balance sheets, Ex. A-57 to A- 64) the evidence of the auditor (PW-4), the deposition of the manager of the respondent/ Popular Estates, PW-5, who had worked since 1969 onwards reinforce the respondents contentions that the largest part of the area was cultivation for plantation crops. The tribunal, in this courts opinion unreasonably discarded these materials. 41. The other documents, i.e. Ex. A-66, Settlement arrived at between Popular Estates and its workers after closure on 25.6.1982 reveal that it had 80 permanent workers and 29 temporary workers on its rolls. Likewise, copies of income tax returns for various dates showed that income from these estates was consistently reported, along with expenditure. For the year ending on 31.3.1968 income was reported as ? 81,319; for the year ending 31.3.1969 it was ?95,707/-; the year ending 31.3.1970 it was ? 1,12,524; and for the year ending 31.3.1971 it was ? 1,38,918. The respondent Popular Estates was apparently depositing agricultural income tax and employees provident fund (Ex. A-67, A-69 and A-70). It had produced correspondence with these statutory authorities, as well as sales tax returns (Ex. A-71). 42. The title deeds of the predecessor-in-interest of the partners of the Popular Estates who had acquired the lands in 1963, show that large areas were shown as cardamon plantation. Popular Estates had filed agricultural income returns and even in 1970, it was producing coffee, rubber and cardamom. The fact that it had some labour trouble also supported its contention that Popular Estates plantation activities were on in full scale. All these materials, in the opinion of the court, support the conclusions of the High Court, which are based on plausible (and not an unreasonable) inference of the overall analysis of the evidence on the record. 43. There is some authority for the proposition that where two plausible views on the conclusions that can be drawn from facts on the record exist, this court, in exercise of its discretionary jurisdiction under Article 136 of the Constitution would not interfere with the findings of the High Court. It has been observed in Pritam Singh v. The State 1950 SCR 453, this Court observed that: On a careful examination of Article 136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. Similar observations were made in Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar (2004) 5 SCC 1. In Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214 , this Court observed that- The discretionary power of the Supreme Court is plenary in the sense that there are no words in Article 136 itself qualifying that power. The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to exist. 44. Likewise, in Union of India v. Gangadhar Narsingdas Agarwal & Anr (1997) 10 SCC 305 this court, declining to interfere with the order of the High Court in exercise of its power under Article 136 of the Constitution, said that even if two views are possible, the view taken by the High Court being a plausible one, it would not call for intervention by this court. A similar view was expressed in Jai Mangal Oraon v. Mira Nayak (Smt) & Ors (2000) 5 SCC 141 , wherein this court held that when there was nothing illegal and wrong in the reasoning and conclusions arrived at by the High Court and it appeared to be merited and in accordance with the interpretation of statutory provisions, this court would not interfere with the order of the High Court under Article 136 of the Constitution. In Taherakhatoon (D) By Lrs. v. Salambin Mohammad (1992) 2 SCC 635 , this Court at observed as follows: In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error- still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion. 45. This court has carefully considered the findings of the High Court while setting aside the order of the tribunal. The reasons which led the High Court to conclude that the tribunals findings called for interference are merited and in accord with the material evidence on record.
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materials, leads one to infer that a detailed inspection of the area took place. Only those areas that vested with the government were demarcated by the survey party, attached with the Superintendent, Land Records. It was in these circumstances that the respondent successfully urged before the High Court that what was demarcated was only 100 hectares and the others were not demarcated since they were cultivated. This was borne out by Ex. A-7, the final report. The possession with respect to 100 hectares of uncultivated forest lands was also covered by draft statement of land (Ex. A- 50, dated 24.01.1979) furnished to the Board in proceedings under the KLR Act. Ex. A-50 was the foundation for the Boards order dated 04.11.1980 (Ex. A-51). Both these documents confirmed that 100 hectares was vested forest. Popular Estates had submitted that 533 acres was under cardamom cultivation; 120 acres under rubber plantation; 257 acres under coffee plantation and that 155.9 acres was forest land; and 17.5 acres of were comprised of roads and buildings. These arguments found favour with the High Court. In our considered opinion, there is no glaring error in the impugned judgment, having regard to these circumstances.39. The tribunal entirely rejected the evidence of PW-1, the Forest Range Officer, who gave the memorandum to the Commissioner on 01.09.1977. The tribunal wholly discredited and brushed aside the evidence of this officer and viewed it with suspicion. This is clear from the repeated use of the phrase magic money suggesting that PW-1 was devious and had been bribed. A reading of his deposition shows no such suggestion to him; no material was placed on record that he was prosecuted for an offence, nor were departmental proceedings initiated, for misconduct.40. The other materials on record (the auditors balance sheets, Ex. A-57 to A- 64) the evidence of the auditor (PW-4), the deposition of the manager of the respondent/ Popular Estates, PW-5, who had worked since 1969 onwards reinforce the respondents contentions that the largest part of the area was cultivation for plantation crops. The tribunal, in this courts opinion unreasonably discarded these materials.41. The other documents, i.e. Ex. A-66, Settlement arrived at between Popular Estates and its workers after closure on 25.6.1982 reveal that it had 80 permanent workers and 29 temporary workers on its rolls. Likewise, copies of income tax returns for various dates showed that income from these estates was consistently reported, along with expenditure. For the year ending on 31.3.1968 income was reported as ? 81,319; for the year ending 31.3.1969 it was ?95,707/-; the year ending 31.3.1970 it was ? 1,12,524; and for the year ending 31.3.1971 it was ? 1,38,918. The respondent Popular Estates was apparently depositing agricultural income tax and employees provident fund (Ex. A-67, A-69 and A-70). It had produced correspondence with these statutory authorities, as well as sales tax returns (Ex. A-71).42. The title deeds of the predecessor-in-interest of the partners of the Popular Estates who had acquired the lands in 1963, show that large areas were shown as cardamon plantation. Popular Estates had filed agricultural income returns and even in 1970, it was producing coffee, rubber and cardamom. The fact that it had some labour trouble also supported its contention that Popular Estates plantation activities were on in full scale. All these materials, in the opinion of the court, support the conclusions of the High Court, which are based on plausible (and not an unreasonable) inference of the overall analysis of the evidence on the record.43. There is some authority for the proposition that where two plausible views on the conclusions that can be drawn from facts on the record exist, this court, in exercise of its discretionary jurisdiction under Article 136 of the Constitution would not interfere with the findings of the High Court. It has been observed in Pritam Singh v. The State 1950 SCR 453, this Court observed that:On a careful examination of Article 136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article.44. Likewise, in Union of India v. Gangadhar Narsingdas Agarwal & Anr (1997) 10 SCC 305 this court, declining to interfere with the order of the High Court in exercise of its power under Article 136 of the Constitution, said that even if two views are possible, the view taken by the High Court being a plausible one, it would not call for intervention by this court. A similar view was expressed in Jai Mangal Oraon v. Mira Nayak (Smt) & Ors (2000) 5 SCC 141 , wherein this court held that when there was nothing illegal and wrong in the reasoning and conclusions arrived at by the High Court and it appeared to be merited and in accordance with the interpretation of statutory provisions, this court would not interfere with the order of the High Court under Article 136 of the Constitution. In Taherakhatoon (D) By Lrs. v. Salambin Mohammad (1992) 2 SCC 635 , this Court at observed as follows:In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error- still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion.45. This court has carefully considered the findings of the High Court while setting aside the order of the tribunal. The reasons which led the High Court to conclude that the tribunals findings called for interference are merited and in accord with the material evidence on record.
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Katikara Chintamani Dora & Ors Vs. Guntreddi Annamnaidu & Ors | as a result of the High Courts decree, stood finally vacated. It is not at all clear from the language of this Amending Act, that the intention was to revive even such legally non-existent decisions of the Settlement Officer. On the contrary, definite indications are available that the section was not intended to have unlimited retrospective operation. The first of such indications is available from the marginal heading of Section 9-A, itself, which is to the effect: "Inquiry under Section 9 not necessary in certain cases". The heading discloses the purpose as well as the extent of the new provision. It envisages only such cases in which the decision of the Settlement Officer was not successfully challenged in the civil court on the ground that the particular property was not an inam village: for, it would be pointless, only in such cases, to hold a further inquiry into the matter.67. The second hint of legislative intent is available in Section 64-A (2) which has not been touched by the Amending Act. Section 64-A (2) provides that the decision of the civil court on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under the Abolition Act before the Tribunal or the Special Tribunal. If the intention was to exclude the jurisdiction of the civil court altogether, Section 64-A (2) would either have been deleted or drastically amended so as to alter the basic conditions with effect from the very inceptions of the parent Act, that in the altered conditions those decisions could not have been rendered by the civil courts. For instance, it could say that the decision of the Settlement Officer on the question whether a particular property is an inam village or not would be conclusive and final and would always be deemed to have been so.68. In view of what has been said above,we are of the opinion that Section 9-A takes in its retrospective sweep only those decisions of the Settlement Officer or the Tribunal which at the commencement of the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non est by a decree of a competent court. The decision dated September 2, 1950 of the Settlement Officer in the instant case, was not such a decision. It has ceased to exist as a result of the inter-linked decrees in O. S. 47 of 1953 and O. S. 101 of 1954, passed before the enactment of this Amending Act. The Amending Act of 1960, therefore, does not in any way, affect the finality or the binding effect of those decrees.69. Quite a number of authorities were cited by the learned Counsel on both sides, but it is not necessary to notice all of them because in most of them the facts were materially different. Only one of those cases in which the interpretation of Sections 9A and 64-A was involved deserves to be notices. It is reported in Yelisetti Satyanarayana v. A. Jagannadharao, ILR (1966) Andh Pra 729.70. The writ petitioners in that case had challenged the order of the Estates Abolition Tribunal which had held (1) that the previous order of the Civil Court holding the suit lands to be an estate by virtue of the Amending Act XVIII of 1936 to the Madras Estates Land Act, 1908, was not res judicata under Section 64-A of the Abolition Act and (2) that the land-holder had a right of appeal under Section 9-A of the said Act, and that the inam was not of the whole village and consequently was not an estate.71. The first question for consideration by the High Court was, whether the appeal filed by the land-holder before the Estates Abolition Tribunal was maintainable notwithstanding the fact that such an appeal was not entertained earlier by the Tribunal on the ground of its being incompetent. On the construction of Section 9-A (b), this question was answered in the affirmative.72. The second question before the High Court was, whether the previous judgments of the Civil Court were res judicata under Section 64-A. The Bench analysed and explained the circumstances in which the first or the second sub-section of S. 64-A operates. It will be useful to extract those observations here:"The bar under Section 64-A is applicable in two sets of circumstances: one where the decision was of a Tribunal or Special Tribunal or of a Judge of the High Court hearing a case under Section 51; (2) the other, where it is a decision of a Civil Court on any matter falling within its jurisdiction. The decisions mentioned in the first category are binding on the Civil Courts and the decisions mentioned in the second category are binding on the Tribunal or Special Tribunal or a Judge of the High Court when he hears a case under Section 51 (2). In so far as the facts of this case are concerned, it is sub-section (2) of Section 64-A that is applicable."73. On the second question, the learned Judges held that the previous decisions of the Civil Court could not operate as res judicata because the issue as to whether the suit property was an estate under the Amending Act of 1937, wasnot undercontest. Both the parties, as a matter of concession, hadconceded that fact and the Government was not a party to the proceeding. In these peculiar circumstances, it was held that the concession or assumption made in the previous proceedings, was not a decision within the meaning of Section 64-A (2). In the case before us, as already observed, the State had contested this issue regarding Kadakalla being an estate or not, right upto the High Court. It would, therefore, operate as res judicata between the State and the land-owners. The same binding effect is produced by estoppel raised by the consent decree in the suit out of which the present appeal has arisen. thus, this ruling does not advance the case of the respondents. | 1[ds]18. Explanation I makes it clear that (apart from being made, confirmed, or recognised by the Government), an inam grant in order to come within the purview of "estate" under Section 3(2) (d) has to be a grant expressly made of a named village or whole village, and not only of a part of the village or of some defined area in a village. However, it remains and is deemed to be a grant of a whole village notwithstanding the exclusion of certain lands already granted on service or other tenure or reserved for communal purposes; nor does it cease to be a grant of an entire village merely because the village has been subsequently partitioned amongst the grantees or their successors.It will be seen that Act 18 of 1957, made the Abolition Act applicable even to villages that became estates under the 1936 Amendment of the 1908 Act. For the purpose of the Abolition Act that distinction between pre-1936 and post-1936 inam grants disappeared, and this Act became applicable to all estates falling under the definition in Section 3(2) (d) of the 1908 Act.By virtue of Section 9 of theCode of Civil Procedure, the Civil Courts have jurisdiction to decide all suits of a Civil nature excepting those of which their cognizance is either expressly or impliedly barred. The exclusion of the Civil Courts jurisdiction, therefore, is not to be readily assumed unless the relevant statute expressly or by inevitable implication does so.This matter is not res integra. In Desika Charyulu v. State of Andhra Pradesh, AIR 1964 SC 807 , this Court held that there is an express bar to the jurisdiction of the Civil Court to adjudicate upon the question, whether "any inam village" is an "inam estate" or not, and that "to the extent of the question stated in Section 9 (1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive". It was pertinently added that this exclusion of the jurisdiction of the Civil Court would be subject to two limitations. First, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to tribunal set up and other relevant factors.34. Applying the above principles, the Court clarified the limits of the respective jurisdictions of the Settlement Officer/Tribunal and the Civil Court,the object of the Act is to abolish only "inam estates". This determination involves two distinct matters in view of the circumstances that every "inam village" is not necessarily "an inam estate" viz., (1) whether a particular property is or is not an "inam village" and (2) whether such a village is "an inam estate" within the definition of Sec. 2 (7). The first of these questions whether the grant is of an "inam village" is referred to in Section 9 (1) itself as some extrinsic fact which must pre-exist before the Settlement Officer can embark on the enquiry contemplated by the provision and the Abolition Act as it stood at the date relevant to this appeal, makes no provision for this being the subject of enquiry by the Settlement Officer.any finding recorded by the Settlement Officer regarding the property in question being an inam village or not, is not final or conclusive it being a finding of a jurisdictional fact, only, the pre-existence of which is a sine qua non to the exercise of his exclusive jurisdiction by the Settlement Officer. Investigation as to the existence or otherwise of this preliminary fact is done by the Settlement Officer to ascertain whether or not he has jurisdiction to determine that the particular property is an inam estate. If upon such investigation, he finds that the property is an inam village, the foundation for the exercise of his exclusive jurisdiction is laid, and he can then, and then only, embark upon the enquiry envisaged by the statute. If such investigation reveals that the property is not an inam village, the condition precedent to the exercise of such jurisdiction by him, would be lacking.40. The Legislature must have visualised that under the cloak of an erroneous finding as to the existence or non-existence of this pre-requisite, the Settlement Officer may illegally clutch at jurisdiction not conferred on him, or refuse to exercise jurisdiction vesting in him. Perhaps, that is why the statute does not leave the final determination of this preliminary fact to the Settlement Officer/Tribunal and his erroneous finding on the fact is liable to be questioned in civil court.41. The contention of Mr. Rao that before the Settlement Officer the fact of Kadakalla village being an inam village was not disputed, does not appear to be borne out by the record. A perusal of the Settlement Officers order dated September 2, 1950, would show that it was contended before him on behalf of the Inamdars "that there was no village at all at the time of grant" and "that there were more than one grant as Inam in the village".42. Assuming for the sake of argument that the appellants had failed to contest or adduce proof before the Settlement Officer that Kadakalla was not an inam village, then also, we fail to appreciate how, on principle, that would make the case any different so as to preclude the appellants from reagitating that matter in the Civil Court. Once it is held that determination of this fact is not a matter of the exclusive jurisdiction of the Settlement Officer, the appellants cannot be debarred on the basis of any doctrine of res judicata from getting the matter fully and finally adjudicated by a court of competent jurisdiction.43.In view of the above discussion, it is clear that under the law in force at the material time, a suit for a declaration that the decision of the Settlement Officer/Tribunal holding certain properties to be an estate under Section 3 (2) (d) of the 1908 Act was void, was maintainable on the ground that the suit property was not an inam village.44. There can be no dispute that Suit No. 47 of 1953 is of that category and falls well-nigh within the ratio of Venkata Narasayya v. State of Madras, AIR 1953 Mad 60 , which was approved by this Court in Desika Charyulus case, AIR 1964 SC 807 (supra). The main contention of the appellants in this suit was that the village Kadakalla was not an inam village as the grant did not comprise the whole village and consequently, it is not an estate within the definition in Section 3 (2) (d) of the 1908 Act. The trial Court accepted this contention and decreed the suit. The High Court confirmed that decision, holding that when the grant was made (in 1774), it was neither of the whole village nor of a named village within the meaning of Explanation 1 to Section 3 (2) (d) of the 1908 Act. In Original Suit 101 of 1954, also, the relief of rent or damages is conditional and dependent upon and linked up (by an agreement between the parties) with the determination of the main question involved in the former suit.45. We have, therefore, no hesitation in coming to the conclusion that the common question in both these suits regarding Kadakalla being an estate or not, on the ground that it was not an inam village, was within the competence of the Civilis well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights, (Maxwell on Interpretation, 12th Edn. 220). That is to say, in the absence of anything in the Act, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed.There is no non obstante clause in these Amending Acts of 1957 with reference to pending or closed civil actions. Nor is there anything in the scheme, setting or provisions of these Amending Acts which fundamentally alters the conditions on which such actions were founded. No back date or dates of their commencement have been specified in the body of these statutes as was done in Madras Estates Land Amendment Act II of 1945 which was expressly enforced with effect from the date of the commencement of Act 18 of 1936. These Amending Acts were published in the Government Gazette on December 23, 1957, and will therefore be deemed to have come into force from that date only. The provisions of these Amending Statutes are not merely procedural but affect, substantive rights, and impose new obligations and disabilities. In them the Legislature has not spoken in clear language that they would unsettle, settled claims or take away or abridge rights already accrued, or cause abatement of pending actions. These Amending Acts, therefore, can be construed as having a prospective operation only. They cannot be interpreted as taking away the rights of the litigants in suits O. S. 47 of 1953 and O. S. 101 of 1954 (which were at the commencement of these Amendments pending at the appellate or original stage) to have their respective claims determined in accordance with the law in force at the time of the institution of the actions.So far as the decree of the High Court (in A. S. 668 of 1954 arising out of O. S. 47 of 1953) is concerned, there is no dispute that it had become final and conclusive between the parties to that action, namely, the State Government and the present appellants on February 12, 1954. Learned Counsel are, however, not agreed as to whether the decree, dated March 28, 1958, passed by the Civil Court in Suit No. 101 of 1954 had also assumed such a character.Order 23, Rule 3,Code of Civil Procedure, not only permits a partial compromise and adjustment of a suit by a lawful agreement, but further gives a mandate to the court to record it and pass a decree in terms of such compromise or adjustment in so far as it relates to the suit. If the compromise agreement was lawful - and as we shall presently discuss it was so - the decree to the extent it was a consent decree, was not appealable because of the express bar in Section 96 (3) of the Code.There can be no doubt that as soon as the Court accepted the compromise agreement between the parties, and, acting on it, passed a decree in terms thereof, the compromise, to the extent of the matter covered by it, was complete. Nothing further remained to be done by the parties in pursuance of that agreement. The decree had become absolute and immediately executable on February 12, 1959 when the High Court in A. S. 668 of 1954 finally decided that Kadakalla was not an estate.59.Be that as it may, the bar to an appeal against a consent decree in sub-section (3) of Section 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forgo their right of appeal by any lawful agreement or compromise, or even by conduct. Therefore, as soon as the parties made the agreement to abide by the determination in the appeal (A. S. 668) and induced the court to pass a decree in terms of that agreement, the principle of estoppel underlying Section 96 (3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties. And, it was an effective in creating an estoppel between the parties as a judgment on contest.Thus, the determination in A. S. 668 - that Kadakalla was not an estate - became as much binding on the respondents, as on the parties in that appeal.In the light of the above discussion, we would hold that that part of the decree in Suit No. 101 of 1954 which was in terms of the compromise agreement had become final between the parties, and the appeal from that decree could not be said to be a continuation of that part of the claim which had been settled by agreement. The combined effect of the two integrated decrees in Suit No. 47 and Suit No. 101, in so far as they declared that Kadakalla not being an inam village, was not an estate under Section 3 (2) (d) of the 1908 Act, was to completely vacate and render non est the decision dated September 2, 1950 of the Settlement Officer.The Order, dated September 2, 1950, of the Settlement Officer in the instant case, was a decision of this category, inasmuch as he held that Kadakalla was not an inam estate because it was a post-1936 inam, and as such, was not covered by the definition in Section 2 (7) of the Abolition Act. But, before the commencement of the Amending Act, 1960, this decision as a result of the High Courts decree, stood finally vacated. It is not at all clear from the language of this Amending Act, that the intention was to revive even such legally non-existent decisions of the Settlement Officer. On the contrary, definite indications are available that the section was not intended to have unlimited retrospective operation. The first of such indications is available from the marginal heading of Section 9-A, itself, which is to the effect: "Inquiry under Section 9 not necessary in certain cases". The heading discloses the purpose as well as the extent of the new provision. It envisages only such cases in which the decision of the Settlement Officer was not successfully challenged in the civil court on the ground that the particular property was not an inam village: for, it would be pointless, only in such cases, to hold a further inquiry into the matter.67. The second hint of legislative intent is available in Section 64-A (2) which has not been touched by the Amending Act. Section 64-A (2) provides that the decision of the civil court on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under the Abolition Act before the Tribunal or the Special Tribunal. If the intention was to exclude the jurisdiction of the civil court altogether, Section 64-A (2) would either have been deleted or drastically amended so as to alter the basic conditions with effect from the very inceptions of the parent Act, that in the altered conditions those decisions could not have been rendered by the civil courts. For instance, it could say that the decision of the Settlement Officer on the question whether a particular property is an inam village or not would be conclusive and final and would always be deemed to have been so.68. In view of what has been said above,we are of the opinion that Section 9-A takes in its retrospective sweep only those decisions of the Settlement Officer or the Tribunal which at the commencement of the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non est by a decree of a competent court. The decision dated September 2, 1950 of the Settlement Officer in the instant case, was not such a decision. It has ceased to exist as a result of the inter-linked decrees in O. S. 47 of 1953 and O. S. 101 of 1954, passed before the enactment of this Amending Act. The Amending Act of 1960, therefore, does not in any way, affect the finality or the binding effect of thosethe case before us, as already observed, the State had contested this issue regarding Kadakalla being an estate or not, right upto the High Court. It would, therefore, operate as res judicata between the State and the land-owners. The same binding effect is produced by estoppel raised by the consent decree in the suit out of which the present appeal has arisen. thus, this ruling does not advance the case of the respondents.75. Krishna Iyer,judgment just delivered has my concurrence. But a certain juristic thought expressed therein and consecrated in an authoritative passage which has fallen from Bowen, L. J., in (1886) 31 Ch D 402, 408 persuades me to break my silence not so much in dissent but in explanatory divagation. The proposition there expressed and here followed relates to the presumption against vested rights being affected by subsequent legislation. Certainly this legal creed ofvintage has the support of learned pronouncements, English and Indian. But when we apply it in all its sternness and sweep, we err. Precedents should not be petrified nor judicial dicta divorced from themores of the age Judges are not prophets and only interpret laws in the light of the contemporary ethos. To regard them otherwise is unscientific. My thesis is that while applying the policy of statutory construction we should not forget the conditions and concepts which moved the judges whose rulings are cited, nor be obsessed by respect at the expense of reason. Justice*Cardozo has in felicitous words made the same point"*CardozoThe Nature of Judicial Process; pp.should be greater readiness to abandon an untenable position .... when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years. In such circumstances, the words of Wheeler, J., in Dwyv. Connecticut Co., 89 Conn 74,99, express the tone and temper in which problems should be met: "That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the legislature." If Judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.The Indian Constitution, adopting the fighting faith of equal protection of the laws to all citizens, necessarily contemplates a new jurisprudence where vested rights may be, and oftentimes are, extensively interfered with for achieving the founding fathers social goals. Legislative exercises directed towards distributive justice, as in the present case, cannot be considered in the light of a dated value system, though sanctified by bygone decisions of Courts.77. However, in the present case, let me hasten to repeat, the Act in question is clear about its intent and its application gives little difficulty. I have said these words only to enter a mild caveat on the lines indicated, so as to obviate future misapprehensions about the rule ofto add a new element of judicial subjectivism. Speaking generally, courts have to be anchored tocanons of statutory construction and if they are out of time with the law makers meaning and purpose the legitimate means of setting things right is to enact a new Interpretation Act. | 1 | 11,058 | 3,712 | ### Instruction:
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as a result of the High Courts decree, stood finally vacated. It is not at all clear from the language of this Amending Act, that the intention was to revive even such legally non-existent decisions of the Settlement Officer. On the contrary, definite indications are available that the section was not intended to have unlimited retrospective operation. The first of such indications is available from the marginal heading of Section 9-A, itself, which is to the effect: "Inquiry under Section 9 not necessary in certain cases". The heading discloses the purpose as well as the extent of the new provision. It envisages only such cases in which the decision of the Settlement Officer was not successfully challenged in the civil court on the ground that the particular property was not an inam village: for, it would be pointless, only in such cases, to hold a further inquiry into the matter.67. The second hint of legislative intent is available in Section 64-A (2) which has not been touched by the Amending Act. Section 64-A (2) provides that the decision of the civil court on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under the Abolition Act before the Tribunal or the Special Tribunal. If the intention was to exclude the jurisdiction of the civil court altogether, Section 64-A (2) would either have been deleted or drastically amended so as to alter the basic conditions with effect from the very inceptions of the parent Act, that in the altered conditions those decisions could not have been rendered by the civil courts. For instance, it could say that the decision of the Settlement Officer on the question whether a particular property is an inam village or not would be conclusive and final and would always be deemed to have been so.68. In view of what has been said above,we are of the opinion that Section 9-A takes in its retrospective sweep only those decisions of the Settlement Officer or the Tribunal which at the commencement of the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non est by a decree of a competent court. The decision dated September 2, 1950 of the Settlement Officer in the instant case, was not such a decision. It has ceased to exist as a result of the inter-linked decrees in O. S. 47 of 1953 and O. S. 101 of 1954, passed before the enactment of this Amending Act. The Amending Act of 1960, therefore, does not in any way, affect the finality or the binding effect of those decrees.69. Quite a number of authorities were cited by the learned Counsel on both sides, but it is not necessary to notice all of them because in most of them the facts were materially different. Only one of those cases in which the interpretation of Sections 9A and 64-A was involved deserves to be notices. It is reported in Yelisetti Satyanarayana v. A. Jagannadharao, ILR (1966) Andh Pra 729.70. The writ petitioners in that case had challenged the order of the Estates Abolition Tribunal which had held (1) that the previous order of the Civil Court holding the suit lands to be an estate by virtue of the Amending Act XVIII of 1936 to the Madras Estates Land Act, 1908, was not res judicata under Section 64-A of the Abolition Act and (2) that the land-holder had a right of appeal under Section 9-A of the said Act, and that the inam was not of the whole village and consequently was not an estate.71. The first question for consideration by the High Court was, whether the appeal filed by the land-holder before the Estates Abolition Tribunal was maintainable notwithstanding the fact that such an appeal was not entertained earlier by the Tribunal on the ground of its being incompetent. On the construction of Section 9-A (b), this question was answered in the affirmative.72. The second question before the High Court was, whether the previous judgments of the Civil Court were res judicata under Section 64-A. The Bench analysed and explained the circumstances in which the first or the second sub-section of S. 64-A operates. It will be useful to extract those observations here:"The bar under Section 64-A is applicable in two sets of circumstances: one where the decision was of a Tribunal or Special Tribunal or of a Judge of the High Court hearing a case under Section 51; (2) the other, where it is a decision of a Civil Court on any matter falling within its jurisdiction. The decisions mentioned in the first category are binding on the Civil Courts and the decisions mentioned in the second category are binding on the Tribunal or Special Tribunal or a Judge of the High Court when he hears a case under Section 51 (2). In so far as the facts of this case are concerned, it is sub-section (2) of Section 64-A that is applicable."73. On the second question, the learned Judges held that the previous decisions of the Civil Court could not operate as res judicata because the issue as to whether the suit property was an estate under the Amending Act of 1937, wasnot undercontest. Both the parties, as a matter of concession, hadconceded that fact and the Government was not a party to the proceeding. In these peculiar circumstances, it was held that the concession or assumption made in the previous proceedings, was not a decision within the meaning of Section 64-A (2). In the case before us, as already observed, the State had contested this issue regarding Kadakalla being an estate or not, right upto the High Court. It would, therefore, operate as res judicata between the State and the land-owners. The same binding effect is produced by estoppel raised by the consent decree in the suit out of which the present appeal has arisen. thus, this ruling does not advance the case of the respondents.
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the effect: "Inquiry under Section 9 not necessary in certain cases". The heading discloses the purpose as well as the extent of the new provision. It envisages only such cases in which the decision of the Settlement Officer was not successfully challenged in the civil court on the ground that the particular property was not an inam village: for, it would be pointless, only in such cases, to hold a further inquiry into the matter.67. The second hint of legislative intent is available in Section 64-A (2) which has not been touched by the Amending Act. Section 64-A (2) provides that the decision of the civil court on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under the Abolition Act before the Tribunal or the Special Tribunal. If the intention was to exclude the jurisdiction of the civil court altogether, Section 64-A (2) would either have been deleted or drastically amended so as to alter the basic conditions with effect from the very inceptions of the parent Act, that in the altered conditions those decisions could not have been rendered by the civil courts. For instance, it could say that the decision of the Settlement Officer on the question whether a particular property is an inam village or not would be conclusive and final and would always be deemed to have been so.68. In view of what has been said above,we are of the opinion that Section 9-A takes in its retrospective sweep only those decisions of the Settlement Officer or the Tribunal which at the commencement of the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non est by a decree of a competent court. The decision dated September 2, 1950 of the Settlement Officer in the instant case, was not such a decision. It has ceased to exist as a result of the inter-linked decrees in O. S. 47 of 1953 and O. S. 101 of 1954, passed before the enactment of this Amending Act. The Amending Act of 1960, therefore, does not in any way, affect the finality or the binding effect of thosethe case before us, as already observed, the State had contested this issue regarding Kadakalla being an estate or not, right upto the High Court. It would, therefore, operate as res judicata between the State and the land-owners. The same binding effect is produced by estoppel raised by the consent decree in the suit out of which the present appeal has arisen. thus, this ruling does not advance the case of the respondents.75. Krishna Iyer,judgment just delivered has my concurrence. But a certain juristic thought expressed therein and consecrated in an authoritative passage which has fallen from Bowen, L. J., in (1886) 31 Ch D 402, 408 persuades me to break my silence not so much in dissent but in explanatory divagation. The proposition there expressed and here followed relates to the presumption against vested rights being affected by subsequent legislation. Certainly this legal creed ofvintage has the support of learned pronouncements, English and Indian. But when we apply it in all its sternness and sweep, we err. Precedents should not be petrified nor judicial dicta divorced from themores of the age Judges are not prophets and only interpret laws in the light of the contemporary ethos. To regard them otherwise is unscientific. My thesis is that while applying the policy of statutory construction we should not forget the conditions and concepts which moved the judges whose rulings are cited, nor be obsessed by respect at the expense of reason. Justice*Cardozo has in felicitous words made the same point"*CardozoThe Nature of Judicial Process; pp.should be greater readiness to abandon an untenable position .... when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years. In such circumstances, the words of Wheeler, J., in Dwyv. Connecticut Co., 89 Conn 74,99, express the tone and temper in which problems should be met: "That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the legislature." If Judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.The Indian Constitution, adopting the fighting faith of equal protection of the laws to all citizens, necessarily contemplates a new jurisprudence where vested rights may be, and oftentimes are, extensively interfered with for achieving the founding fathers social goals. Legislative exercises directed towards distributive justice, as in the present case, cannot be considered in the light of a dated value system, though sanctified by bygone decisions of Courts.77. However, in the present case, let me hasten to repeat, the Act in question is clear about its intent and its application gives little difficulty. I have said these words only to enter a mild caveat on the lines indicated, so as to obviate future misapprehensions about the rule ofto add a new element of judicial subjectivism. Speaking generally, courts have to be anchored tocanons of statutory construction and if they are out of time with the law makers meaning and purpose the legitimate means of setting things right is to enact a new Interpretation Act.
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Union of India (UOI) and Ors Vs. Board of Control for Cricket in India and Ors | right and the degree of curtailment thereof by virtue of the provisions of Section 3 of the Sports Act, 2007 read with Section 8 of the Cable Act, 1995 to which aspect of the case we will now turn. 27. The Cable Act was enacted in the year 1995 to regulate the operation of cable television network which had come into India around that time. Cable television was a new experience for the Indian viewers who, overnight, had access to a large number of foreign channels carrying different kinds and forms of entertainment and information. While it is correct that some of the channels available on cable television network were Indianized in content, there was a apprehension, and perhaps justified, that the new trend and upsurge may make Doordarshan and its regional channels extinct resulting in dissemination of awareness on national issues. This is evident from the report of the Standing Committee to whom the Cable T.V. Network (Regulation) Bill 1993 was referred to. This is why Section 8 of the Cable Act, 1995 was enacted, namely, to obligate Cable TV operators to carry news and information concerning the developments of the country, Government Policies and other such related matters even to all such households who may have availed of cable services. In fact, transmission of Doordarshan channels by Cable Operators is always a complimentary part of any bouquet of services that a Cable Operator may make available to a consumer. 28. On the other hand, the Sports Act, 2007 which is a later enactment had altogether a different object for its enactment, namely, to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for maters connected therewith or incidental thereto. Section 3 of the Sports Act, 2007 is a significant provision to further the objective behind the enactment of the Sports Act, 2007. Though much argument has been advanced as to whether Section 3 of the Sports Act, 2007 is expropriatory in nature, we have no hesitation in holding the said provision of the Act to be of such a nature inasmuch as it curtails or abridges the rights of a content rights owner or holder and television or radio broadcasting service provider, as may be. Sharing of revenue between the content rights owner or holder and the Prasar Bharati envisaged by Section 3(2) of the Sports Act, 2007 would hardly redeem the situation to take the Sports Act, 2007 out of the category of expropriatory legislation. Section 3 of the Sports Act, 2007, therefore, has to be interpreted very strictly. Not only we do not find in the provisions of Section 3 of the Sports Act, 2007 any recognition of the requirement stipulated in Section 8 of the Cable Act, 1995, the plain language of the said provision i.e. Section 3 of the Sports Act, 2007 makes it clear that the obligation to share cast on the content rights owner or holder, etc. with Prasar Bharati is to enable the Prasar Bharati to transmit the same on its terrestrial and DTH networks. If the legislative intent was to allow Section 3 of the Sports Act, 2007 not to operate on its own language but to be controlled by Section 8 of the Cable Act, 1995, there would have been some manifestation of such intent either in Section 3 of the Sports Act, 2007 or in Section 8 of the Cable Act, 1995 (by an appropriate amendment thereto). In the absence of any such legislative intent it will only be correct to hold that Section 3 of the Sports Act, 2007 operates on its own without being controlled by any of the conditions or stipulations contained in Section 8 of the Cable Act, 1995. Any other view may have the effect of introducing a fragility in Section 8 of the Cable Act, a consequence that must surely be avoided. 29. Section 8 of the Cable Act imposes an obligation on the Cable Operators to carry/transmit such Doordarshan channels or the channels operated by or on behalf of Parliament, as may be, notified in the Official Gazette. The legislature has not specified any particular channel which must be mandatorily carried by Cable Operators. The task has been left to the Central Government. It will, therefore, be not wrong to understand the obligation cast on Cable Operators to transmit the DD1 (National) channel and the transmission of Live feed of major sports events of national importance on the said channel by the Doordarshan as a matter of mere coincidence instead of a legislative mandate. Hypothetically, it is always open to the Central Government to denotify DD1 (National) from the notified channels in the notification Under Section 8 of the Cable Act. Surely, the effect and operation of Section 3 of the Sports Act cannot be left to be decided on the basis of the discretion of the Central Government to include and subsequently exclude or not to include at all the DD1 (National) channel in a notification to be published Under Section 8 of the Cable Act, 1995. Insofar as DTH network of private operators is concerned, the same does not even come under the operation of a Cable Operator. 30. Needless to say our conclusions above do not, in any manner, impact or effect the rights of the Appellant Under Section 12(3)(c) of the Prasar Bharati Act which rights always remain available for exercise, if so desired. 31. On the basis of the above discussions, we, therefore, come to the conclusion that Under Section 3 of the Sports Act, 2007 the live feed received by Prasar Bharati from content rights owners or holders is only for the purpose of re-transmission of the said signals on its own terrestrial and DTH networks and not to Cable Operators so as to enable the Cable TV operators to reach such consumers who have already subscribed to a cable network. | 0[ds]It, therefore, appears that one of the main objectives behind the incorporation of Prasar Bharati is to provide an adequate coverage to sports and games for the purpose(s) already noticed.13. Specific notice would be required to be taken, in the light of the contentions advanced, which will be noticed later, of the provisions contained in Section 12(3)(c) of the Prasar Bharati Act, 1990 which enables the Prasar Bharati to negotiate for purchase of, or otherwise acquire, programmes and rights or privileges in respect of sports and other events, films, serials, occasions, meetings, functions or incidents of public interest for broadcasting and to establish procedures for the allocation of such programmes, rights or privileges to the services.Section 8 of the Cable Act, 1995 permits the Central Government to specify the names of Doordarshan channels or the channels operated by or on behalf of the Parliament which are required to be mandatorily carried by the Cable Operators. As already noticed, by notification dated 13th September, 2000, DD1 (National) channel and DD (News) channel and one regional channel have been notified as mandatorily required to be carried by the Cable Operators. There are certain subsequent notifications issued by the Ministry of Information and Broadcasting, Government of India Under Section 8(1) of the Cable Act, 1995, the subsisting one being dated 5th September, 2013. No specific notice of the aforesaid notification would be required to be taken as in substance and in law the position is no different.19. From the above, it can be noticed that Under Section 3 of the Sports Act, 2007, no content rights owner or holder and no television or radio broadcasting service provider can carry a live television broadcast on any cable or DTH network or radio commentary broadcast in India, of sporting events of national importance unless it simultaneously shares the live broadcasting signal, without its advertisements, with the Prasar Bharati to enable them to re-transmit the same on its terrestrial networks and Direct-to-Home networks in such manner and on such terms and conditions as may be specified.20. On the other hand, Section 8(1) of the Cable Act, 1995 carries a legislative mandate that every cable television operator is required to carry, on its network, such Doordarshan channels or channels operated by or on behalf of the Parliament, as may be notified by the Central Government in the Official Gazette.While the sweep of Article 19(1)(a) is certainly expansive to include receipt of information also, it is in the context of above argument of Shri Sibal that we may now recapitulate the short contention put forward with great force by Dr. Rajeev Dhavan, learned Senior Counsel. The same is to the effect that in the present case it is not the contention of BCCI that the provisions of Article 19(1)(g) of the Constitution have been violated. Insofar as the provisions of Article 19(1)(a) of the Constitution is concerned, Dr. Dhavan has contended that, at best, the present is a case where the slice of the cake becomes a little smaller; but that by no means would attract Article 19(1)(a) of the Constitution, it is argued. We agree with Dr. Dhavan.26. Proceeding further, we deem it necessary to clarify that for the present case it is not necessary and, therefore, we do not intend to go into the question raised by the parties with regard to the nature of the rights conferred by Section 37 of the Copyright Act, 1957 namely, whether the live telecast of a cricket match amounts to production of cinematograph film conferring on the author and its assignee the same inviolable rights that the provisions of the Copyright Act confer on a copyright holder. Rather, we are of the view that in the facts of the present case and to answer the issue arising therein it will suffice to acknowledge the existence of a right in the content rights owner/holder in the live feed of a cricket match or other sporting events of national importance.27. The Cable Act was enacted in the year 1995 to regulate the operation of cable television network which had come into India around that time. Cable television was a new experience for the Indian viewers who, overnight, had access to a large number of foreign channels carrying different kinds and forms of entertainment and information. While it is correct that some of the channels available on cable television network were Indianized in content, there was a apprehension, and perhaps justified, that the new trend and upsurge may make Doordarshan and its regional channels extinct resulting in dissemination of awareness on national issues. This is evident from the report of the Standing Committee to whom the Cable T.V. Network (Regulation) Bill 1993 was referred to. This is why Section 8 of the Cable Act, 1995 was enacted, namely, to obligate Cable TV operators to carry news and information concerning the developments of the country, Government Policies and other such related matters even to all such households who may have availed of cable services. In fact, transmission of Doordarshan channels by Cable Operators is always a complimentary part of any bouquet of services that a Cable Operator may make available to a consumer.28. On the other hand, the Sports Act, 2007 which is a later enactment had altogether a different object for its enactment, namely, to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for maters connected therewith or incidental thereto. Section 3 of the Sports Act, 2007 is a significant provision to further the objective behind the enactment of the Sports Act, 2007. Though much argument has been advanced as to whether Section 3 of the Sports Act, 2007 is expropriatory in nature, we have no hesitation in holding the said provision of the Act to be of such a nature inasmuch as it curtails or abridges the rights of a content rights owner or holder and television or radio broadcasting service provider, as may be. Sharing of revenue between the content rights owner or holder and the Prasar Bharati envisaged by Section 3(2) of the Sports Act, 2007 would hardly redeem the situation to take the Sports Act, 2007 out of the category of expropriatory legislation. Section 3 of the Sports Act, 2007, therefore, has to be interpreted very strictly. Not only we do not find in the provisions of Section 3 of the Sports Act, 2007 any recognition of the requirement stipulated in Section 8 of the Cable Act, 1995, the plain language of the said provision i.e. Section 3 of the Sports Act, 2007 makes it clear that the obligation to share cast on the content rights owner or holder, etc. with Prasar Bharati is to enable the Prasar Bharati to transmit the same on its terrestrial and DTH networks. If the legislative intent was to allow Section 3 of the Sports Act, 2007 not to operate on its own language but to be controlled by Section 8 of the Cable Act, 1995, there would have been some manifestation of such intent either in Section 3 of the Sports Act, 2007 or in Section 8 of the Cable Act, 1995 (by an appropriate amendment thereto). In the absence of any such legislative intent it will only be correct to hold that Section 3 of the Sports Act, 2007 operates on its own without being controlled by any of the conditions or stipulations contained in Section 8 of the Cable Act, 1995. Any other view may have the effect of introducing a fragility in Section 8 of the Cable Act, a consequence that must surely be avoided.29. Section 8 of the Cable Act imposes an obligation on the Cable Operators to carry/transmit such Doordarshan channels or the channels operated by or on behalf of Parliament, as may be, notified in the Official Gazette. The legislature has not specified any particular channel which must be mandatorily carried by Cable Operators. The task has been left to the Central Government. It will, therefore, be not wrong to understand the obligation cast on Cable Operators to transmit the DD1 (National) channel and the transmission of Live feed of major sports events of national importance on the said channel by the Doordarshan as a matter of mere coincidence instead of a legislative mandate. Hypothetically, it is always open to the Central Government to denotify DD1 (National) from the notified channels in the notification Under Section 8 of the Cable Act. Surely, the effect and operation of Section 3 of the Sports Act cannot be left to be decided on the basis of the discretion of the Central Government to include and subsequently exclude or not to include at all the DD1 (National) channel in a notification to be published Under Section 8 of the Cable Act, 1995. Insofar as DTH network of private operators is concerned, the same does not even come under the operation of a Cable Operator.30. Needless to say our conclusions above do not, in any manner, impact or effect the rights of the Appellant Under Section 12(3)(c) of the Prasar Bharati Act which rights always remain available for exercise, if so desired.31. On the basis of the above discussions, we, therefore, come to the conclusion that Under Section 3 of the Sports Act, 2007 the live feed received by Prasar Bharati from content rights owners or holders is only for the purpose of re-transmission of the said signals on its own terrestrial and DTH networks and not to Cable Operators so as to enable the Cable TV operators to reach such consumers who have already subscribed to a cable network. | 0 | 6,193 | 1,821 | ### 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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right and the degree of curtailment thereof by virtue of the provisions of Section 3 of the Sports Act, 2007 read with Section 8 of the Cable Act, 1995 to which aspect of the case we will now turn. 27. The Cable Act was enacted in the year 1995 to regulate the operation of cable television network which had come into India around that time. Cable television was a new experience for the Indian viewers who, overnight, had access to a large number of foreign channels carrying different kinds and forms of entertainment and information. While it is correct that some of the channels available on cable television network were Indianized in content, there was a apprehension, and perhaps justified, that the new trend and upsurge may make Doordarshan and its regional channels extinct resulting in dissemination of awareness on national issues. This is evident from the report of the Standing Committee to whom the Cable T.V. Network (Regulation) Bill 1993 was referred to. This is why Section 8 of the Cable Act, 1995 was enacted, namely, to obligate Cable TV operators to carry news and information concerning the developments of the country, Government Policies and other such related matters even to all such households who may have availed of cable services. In fact, transmission of Doordarshan channels by Cable Operators is always a complimentary part of any bouquet of services that a Cable Operator may make available to a consumer. 28. On the other hand, the Sports Act, 2007 which is a later enactment had altogether a different object for its enactment, namely, to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for maters connected therewith or incidental thereto. Section 3 of the Sports Act, 2007 is a significant provision to further the objective behind the enactment of the Sports Act, 2007. Though much argument has been advanced as to whether Section 3 of the Sports Act, 2007 is expropriatory in nature, we have no hesitation in holding the said provision of the Act to be of such a nature inasmuch as it curtails or abridges the rights of a content rights owner or holder and television or radio broadcasting service provider, as may be. Sharing of revenue between the content rights owner or holder and the Prasar Bharati envisaged by Section 3(2) of the Sports Act, 2007 would hardly redeem the situation to take the Sports Act, 2007 out of the category of expropriatory legislation. Section 3 of the Sports Act, 2007, therefore, has to be interpreted very strictly. Not only we do not find in the provisions of Section 3 of the Sports Act, 2007 any recognition of the requirement stipulated in Section 8 of the Cable Act, 1995, the plain language of the said provision i.e. Section 3 of the Sports Act, 2007 makes it clear that the obligation to share cast on the content rights owner or holder, etc. with Prasar Bharati is to enable the Prasar Bharati to transmit the same on its terrestrial and DTH networks. If the legislative intent was to allow Section 3 of the Sports Act, 2007 not to operate on its own language but to be controlled by Section 8 of the Cable Act, 1995, there would have been some manifestation of such intent either in Section 3 of the Sports Act, 2007 or in Section 8 of the Cable Act, 1995 (by an appropriate amendment thereto). In the absence of any such legislative intent it will only be correct to hold that Section 3 of the Sports Act, 2007 operates on its own without being controlled by any of the conditions or stipulations contained in Section 8 of the Cable Act, 1995. Any other view may have the effect of introducing a fragility in Section 8 of the Cable Act, a consequence that must surely be avoided. 29. Section 8 of the Cable Act imposes an obligation on the Cable Operators to carry/transmit such Doordarshan channels or the channels operated by or on behalf of Parliament, as may be, notified in the Official Gazette. The legislature has not specified any particular channel which must be mandatorily carried by Cable Operators. The task has been left to the Central Government. It will, therefore, be not wrong to understand the obligation cast on Cable Operators to transmit the DD1 (National) channel and the transmission of Live feed of major sports events of national importance on the said channel by the Doordarshan as a matter of mere coincidence instead of a legislative mandate. Hypothetically, it is always open to the Central Government to denotify DD1 (National) from the notified channels in the notification Under Section 8 of the Cable Act. Surely, the effect and operation of Section 3 of the Sports Act cannot be left to be decided on the basis of the discretion of the Central Government to include and subsequently exclude or not to include at all the DD1 (National) channel in a notification to be published Under Section 8 of the Cable Act, 1995. Insofar as DTH network of private operators is concerned, the same does not even come under the operation of a Cable Operator. 30. Needless to say our conclusions above do not, in any manner, impact or effect the rights of the Appellant Under Section 12(3)(c) of the Prasar Bharati Act which rights always remain available for exercise, if so desired. 31. On the basis of the above discussions, we, therefore, come to the conclusion that Under Section 3 of the Sports Act, 2007 the live feed received by Prasar Bharati from content rights owners or holders is only for the purpose of re-transmission of the said signals on its own terrestrial and DTH networks and not to Cable Operators so as to enable the Cable TV operators to reach such consumers who have already subscribed to a cable network.
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in the facts of the present case and to answer the issue arising therein it will suffice to acknowledge the existence of a right in the content rights owner/holder in the live feed of a cricket match or other sporting events of national importance.27. The Cable Act was enacted in the year 1995 to regulate the operation of cable television network which had come into India around that time. Cable television was a new experience for the Indian viewers who, overnight, had access to a large number of foreign channels carrying different kinds and forms of entertainment and information. While it is correct that some of the channels available on cable television network were Indianized in content, there was a apprehension, and perhaps justified, that the new trend and upsurge may make Doordarshan and its regional channels extinct resulting in dissemination of awareness on national issues. This is evident from the report of the Standing Committee to whom the Cable T.V. Network (Regulation) Bill 1993 was referred to. This is why Section 8 of the Cable Act, 1995 was enacted, namely, to obligate Cable TV operators to carry news and information concerning the developments of the country, Government Policies and other such related matters even to all such households who may have availed of cable services. In fact, transmission of Doordarshan channels by Cable Operators is always a complimentary part of any bouquet of services that a Cable Operator may make available to a consumer.28. On the other hand, the Sports Act, 2007 which is a later enactment had altogether a different object for its enactment, namely, to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for maters connected therewith or incidental thereto. Section 3 of the Sports Act, 2007 is a significant provision to further the objective behind the enactment of the Sports Act, 2007. Though much argument has been advanced as to whether Section 3 of the Sports Act, 2007 is expropriatory in nature, we have no hesitation in holding the said provision of the Act to be of such a nature inasmuch as it curtails or abridges the rights of a content rights owner or holder and television or radio broadcasting service provider, as may be. Sharing of revenue between the content rights owner or holder and the Prasar Bharati envisaged by Section 3(2) of the Sports Act, 2007 would hardly redeem the situation to take the Sports Act, 2007 out of the category of expropriatory legislation. Section 3 of the Sports Act, 2007, therefore, has to be interpreted very strictly. Not only we do not find in the provisions of Section 3 of the Sports Act, 2007 any recognition of the requirement stipulated in Section 8 of the Cable Act, 1995, the plain language of the said provision i.e. Section 3 of the Sports Act, 2007 makes it clear that the obligation to share cast on the content rights owner or holder, etc. with Prasar Bharati is to enable the Prasar Bharati to transmit the same on its terrestrial and DTH networks. If the legislative intent was to allow Section 3 of the Sports Act, 2007 not to operate on its own language but to be controlled by Section 8 of the Cable Act, 1995, there would have been some manifestation of such intent either in Section 3 of the Sports Act, 2007 or in Section 8 of the Cable Act, 1995 (by an appropriate amendment thereto). In the absence of any such legislative intent it will only be correct to hold that Section 3 of the Sports Act, 2007 operates on its own without being controlled by any of the conditions or stipulations contained in Section 8 of the Cable Act, 1995. Any other view may have the effect of introducing a fragility in Section 8 of the Cable Act, a consequence that must surely be avoided.29. Section 8 of the Cable Act imposes an obligation on the Cable Operators to carry/transmit such Doordarshan channels or the channels operated by or on behalf of Parliament, as may be, notified in the Official Gazette. The legislature has not specified any particular channel which must be mandatorily carried by Cable Operators. The task has been left to the Central Government. It will, therefore, be not wrong to understand the obligation cast on Cable Operators to transmit the DD1 (National) channel and the transmission of Live feed of major sports events of national importance on the said channel by the Doordarshan as a matter of mere coincidence instead of a legislative mandate. Hypothetically, it is always open to the Central Government to denotify DD1 (National) from the notified channels in the notification Under Section 8 of the Cable Act. Surely, the effect and operation of Section 3 of the Sports Act cannot be left to be decided on the basis of the discretion of the Central Government to include and subsequently exclude or not to include at all the DD1 (National) channel in a notification to be published Under Section 8 of the Cable Act, 1995. Insofar as DTH network of private operators is concerned, the same does not even come under the operation of a Cable Operator.30. Needless to say our conclusions above do not, in any manner, impact or effect the rights of the Appellant Under Section 12(3)(c) of the Prasar Bharati Act which rights always remain available for exercise, if so desired.31. On the basis of the above discussions, we, therefore, come to the conclusion that Under Section 3 of the Sports Act, 2007 the live feed received by Prasar Bharati from content rights owners or holders is only for the purpose of re-transmission of the said signals on its own terrestrial and DTH networks and not to Cable Operators so as to enable the Cable TV operators to reach such consumers who have already subscribed to a cable network.
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A. MANJU Vs. PRAJWAL REVANNA @ PRAJWAL R & ORS | cured. It was urged that permitting an affidavit to be filed at a later stage would provide an opportunity for embellishment of the case and defeat the statutory requirement of an affidavit. The nature of allegations made by the appellant against the respondent, it was urged, were in the nature of undisclosed profits from commercial operations through a partnership, and receipt of money from a sitting Rajya Sabha member. The allegations were made without disclosing any sources of information by way of an affidavit in Form 25. Conclusion: 19. We must begin at the inception by stating that intrinsically, election law is technical in nature. In the present matter, an election conducted under an independent body like the Election Commission is sought to be assailed, where the mandate of the public has gone in a particular way. The allegations must strictly fall within the parameters of the manner in which such a mandate can be overturned. The primary plea taken by the appellant is largely that success in the elections was obtained by concealment of material, which would have been germane in determining the opinion of the electorate. In effect, were such material to be available with the electorate, they would have exercised another option on the basis of it. However, while the requirements to be met in the election petition may be technical in nature, they are not hypertechnical, as observed in the Ponnala Lakshmaiah (supra) case. We have considered the aforesaid aspect by quoting the observations made therein which have received the imprimatur of a larger Bench. 20. In the conspectus of the aforesaid, if we examine the facts of the present case, the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis has been rightly rejected by the High Court. 21. Thus, the real and core question before us is that in view of the allegations of the alleged non-disclosure of assets in Form-26 by respondent No.1 being cited as corrupt practice, would it be mandatory for the election petitioner to file an affidavit in Form-25 and what would be the consequences of not filing such an affidavit. 22. We may take note of the Constitution Bench judgment of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 : (1964) 3 SCR 573 which opined that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petitioners petition summarily and such an affidavit can be permitted to be filed later. This Constitution Bench judgment was also referred to in G.M. Siddeshwar (supra) case to come to a conclusion that non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent No.1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act. 23. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah (supra) case which have received the imprimatur of the three Judges Bench in G.M. Siddeshwar (supra) case appear not to have been appreciated in the correct perspective. In fact, the G.M. Siddeshwar (supra) case has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge, i.e. Ponnala Lakshmaiah (supra) as well as G.M. Siddeshwar (supra), ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form. 24. The arguments of learned counsel for respondent No.1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This pre-supposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of respondent No.1. 25. The appellant states the case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by respondent no.1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold. | 0[ds]19. We must begin at the inception by stating that intrinsically, election law is technical in nature. In the present matter, an election conducted under an independent body like the Election Commission is sought to be assailed, where the mandate of the public has gone in a particular way. The allegations must strictly fall within the parameters of the manner in which such a mandate can be overturned.The primary plea taken by the appellant is largely that success in the elections was obtained by concealment of material, which would have been germane in determining the opinion of the electorate.In effect, were such material to be available with the electorate, they would have exercised another option on the basis of it. However, while the requirements to be met in the election petition may be technical in nature, they are not hypertechnical, as observed in the Ponnala Lakshmaiah (supra) case. We have considered the aforesaid aspect by quoting the observations made therein which have received the imprimatur of a larger Bench.20. In the conspectus of the aforesaid, if we examine the facts of the present case, the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis has been rightly rejected by the High Court.22. We may take note of the Constitution Bench judgment of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 : (1964) 3 SCR 573 which opined that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petitioners petition summarily and such an affidavit can be permitted to be filed later. This Constitution Bench judgment was also referred to in G.M. Siddeshwar (supra) case to come to a conclusion that non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent No.1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act.23. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah (supra) case which have received the imprimatur of the three Judges Bench in G.M. Siddeshwar (supra) case appear not to have been appreciated in the correct perspective. In fact, the G.M. Siddeshwar (supra) case has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge, i.e. Ponnala Lakshmaiah (supra) as well as G.M. Siddeshwar (supra), ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form.24. The arguments of learned counsel for respondent No.1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This pre-supposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of respondent No.1.25. The appellant states the case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by respondent no.1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold. | 0 | 4,645 | 932 | ### Instruction:
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cured. It was urged that permitting an affidavit to be filed at a later stage would provide an opportunity for embellishment of the case and defeat the statutory requirement of an affidavit. The nature of allegations made by the appellant against the respondent, it was urged, were in the nature of undisclosed profits from commercial operations through a partnership, and receipt of money from a sitting Rajya Sabha member. The allegations were made without disclosing any sources of information by way of an affidavit in Form 25. Conclusion: 19. We must begin at the inception by stating that intrinsically, election law is technical in nature. In the present matter, an election conducted under an independent body like the Election Commission is sought to be assailed, where the mandate of the public has gone in a particular way. The allegations must strictly fall within the parameters of the manner in which such a mandate can be overturned. The primary plea taken by the appellant is largely that success in the elections was obtained by concealment of material, which would have been germane in determining the opinion of the electorate. In effect, were such material to be available with the electorate, they would have exercised another option on the basis of it. However, while the requirements to be met in the election petition may be technical in nature, they are not hypertechnical, as observed in the Ponnala Lakshmaiah (supra) case. We have considered the aforesaid aspect by quoting the observations made therein which have received the imprimatur of a larger Bench. 20. In the conspectus of the aforesaid, if we examine the facts of the present case, the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis has been rightly rejected by the High Court. 21. Thus, the real and core question before us is that in view of the allegations of the alleged non-disclosure of assets in Form-26 by respondent No.1 being cited as corrupt practice, would it be mandatory for the election petitioner to file an affidavit in Form-25 and what would be the consequences of not filing such an affidavit. 22. We may take note of the Constitution Bench judgment of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 : (1964) 3 SCR 573 which opined that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petitioners petition summarily and such an affidavit can be permitted to be filed later. This Constitution Bench judgment was also referred to in G.M. Siddeshwar (supra) case to come to a conclusion that non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent No.1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act. 23. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah (supra) case which have received the imprimatur of the three Judges Bench in G.M. Siddeshwar (supra) case appear not to have been appreciated in the correct perspective. In fact, the G.M. Siddeshwar (supra) case has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge, i.e. Ponnala Lakshmaiah (supra) as well as G.M. Siddeshwar (supra), ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form. 24. The arguments of learned counsel for respondent No.1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This pre-supposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of respondent No.1. 25. The appellant states the case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by respondent no.1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold.
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19. We must begin at the inception by stating that intrinsically, election law is technical in nature. In the present matter, an election conducted under an independent body like the Election Commission is sought to be assailed, where the mandate of the public has gone in a particular way. The allegations must strictly fall within the parameters of the manner in which such a mandate can be overturned.The primary plea taken by the appellant is largely that success in the elections was obtained by concealment of material, which would have been germane in determining the opinion of the electorate.In effect, were such material to be available with the electorate, they would have exercised another option on the basis of it. However, while the requirements to be met in the election petition may be technical in nature, they are not hypertechnical, as observed in the Ponnala Lakshmaiah (supra) case. We have considered the aforesaid aspect by quoting the observations made therein which have received the imprimatur of a larger Bench.20. In the conspectus of the aforesaid, if we examine the facts of the present case, the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis has been rightly rejected by the High Court.22. We may take note of the Constitution Bench judgment of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 : (1964) 3 SCR 573 which opined that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petitioners petition summarily and such an affidavit can be permitted to be filed later. This Constitution Bench judgment was also referred to in G.M. Siddeshwar (supra) case to come to a conclusion that non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent No.1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act.23. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah (supra) case which have received the imprimatur of the three Judges Bench in G.M. Siddeshwar (supra) case appear not to have been appreciated in the correct perspective. In fact, the G.M. Siddeshwar (supra) case has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge, i.e. Ponnala Lakshmaiah (supra) as well as G.M. Siddeshwar (supra), ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form.24. The arguments of learned counsel for respondent No.1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This pre-supposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of respondent No.1.25. The appellant states the case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by respondent no.1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold.
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Osmanali Chous Vs. New India Assurance Co. Ltd. and Ors | Kurian Joseph, J. 1. Leave granted. 2. The Appellant approached the Commissioner, Workmens Compensation, Latur, Maharashtra for compensation in which it was held that he lost two toes of his left leg and that there were also burn injuries. The Appellant was a driver. By order dated 09.07.2012 the Commissioner, Workmens Compensation awarded compensation of Rs. 2,79,367/- with interest @ 12% per annum from the expiry of one month from the date of the accident till realization. The insurer, Respondent No. 1 herein, challenged the award before the High Court. The High Court as per the impugned order reduced the compensation to a meager sum of Rs. 83,664/-. 3. Despite service of notice there is no appearance for Respondent No. 1/Insurance Company. 4. Be that as it may, we have heard the learned Counsel for the Appellant and learned Counsel for Respondent No. 2, who is the owner of the vehicle. We also gone through the impugned judgment. We find absolutely no discussion as to the basis for reducing the compensation, On the contrary, the High Court has endorsed the findings of fact as recorded by the Commissioner, Workmens Compensation regarding the injuries. But, according to the High Court, it was not possible that the claimant has lost earning capacity by 100%. But that was not the views of the Commissioner, Workmens Compensation. The discussion is available at paragraphs 15 and 16 of the judgment of the Commissioner, Workmens Compensation, which are extracted below: 15) The applicant has raised the plea that he has sustained permanent physical disability and total loss in his earning capacity by the injuries caused in accident. To prove this aspect he has examined qualified medical practitioner Dr. Kazi at Exh. U-19. He has deposed that on radiological and clinical examination of applicant he found the loss of 4th and 5th toe of left feet and hypoesthesia and loss of weak grip of right hand, both feet, he assessed permanent physical disability to the extent of 21%. The applicant is unable to drive in future and because of that he has assessed total loss in his earning capacity. Accordingly he has issued certificate at Exh. U-20 and U-21 respectively. The Respondent No. 2 has cross examined him but he has not challenged the calculation of assessment of permanent physical disability on the basis of particulars given by medical officers. No doubt the Respondent has tried to say that the medical officer of Dist. Hospital Tandur has not mentioned the injuries caused to applicant except the head injury. It is pertinent to note that the FIR is lodged on day of incident itself. In FIR there is mention of injuries caused to leg and hand of applicant. Therefore mere non mentioning of injury by medical officer in one simple chit, is not sufficient to disbelieve the story and testimony of applicant and medical officer. Therefore, there is no substance in plea of Respondent. On this count it is clear that in accident the applicant sustained permanent physical disability to the extent of 21% as deposed by qualified medical practitioner. 16) It is true, there is no specific formula to evaluate the loss of earning capacity. On perusal of injuries i.e. amputation of 4th and 5th toe of left leg of applicant, it seems that he can walk properly. Though the applicant is unable to drive the vehicle in future, but he can do other work for earning as observed in the case of Palraj v. Divisional Controller reported in 2011 AAC 393 (SC). Till today the applicant has not applied to the RTO for cancellation of his driving licence. Though the validity period of driving licence is over on 12.6.09, the applicant has not taken steps prior to expiry of validity period and used such licence till its expiry. On taking into consideration the loss of toes and loss of grip feet, we can assess his loss to the extent of 70% equated with loss of the use of limb i.e. left feet below the hip. I hold accordingly and answer issue No. 3 in partly affirmative. 5. In that view of the matter, at paragraph 18, having regard to the functional disability (though that expression as such is not used by the Commissioner, Workmens Compensation), compensation was awarded and the computation details are available at paragraph 18, which reads as follows: 18) While determining issues No. 1 to 3 and issue No. 5 it is observed that the applicant met to an accident during course of his employment with Respondent No. 1 having monthly wages of Rs. 4,000/- and at that time he was having age 46 years and both the Respondents are jointly and severally liable to pay the compensation. The monthly wages Rs. 4000/- equated to 60% and such wages Rs. 2400/- multiplied with relevant factor 166.29 with reference to age 46 years, and reduced equated with loss of earning capacity to the extent of 70%, the applicant is entitled for compensation to extent of Rs. 2,79,367/-. 6. Unfortunately, the High Court has not referred to any of these discussions while reducing the compensation to 1/3rd of what has been awarded by the Commissioner, Workmens Compensation. It may be seen that an appeal before the High Court against an award of the Commissioner, Workmens Compensation is only on a substantial question of law. We do not find that there was any substantial question of law raised by the Insurance Company either. | 1[ds]4. Be that as it may, we have heard the learned Counsel for the Appellant and learned Counsel for Respondent No. 2, who is the owner of the vehicle. We also gone through the impugned judgment. We find absolutely no discussion as to the basis for reducing the compensation, On the contrary, the High Court has endorsed the findings of fact as recorded by the Commissioner, Workmens Compensation regarding the injuries. But, according to the High Court, it was not possible that the claimant has lost earning capacity by 100%. But that was not the views of the Commissioner, Workmens Compensation5. In that view of the matter, at paragraph 18, having regard to the functional disability (though that expression as such is not used by the Commissioner, Workmens Compensation), compensation was awarded and the computation details are available at paragraph 18, which reads as follows:18) While determining issues No. 1 to 3 and issue No. 5 it is observed that the applicant met to an accident during course of his employment with Respondent No. 1 having monthly wages of Rs. 4,000/- and at that time he was having age 46 years and both the Respondents are jointly and severally liable to pay the compensation. The monthly wages Rs. 4000/- equated to 60% and such wages Rs. 2400/- multiplied with relevant factor 166.29 with reference to age 46 years, and reduced equated with loss of earning capacity to the extent of 70%, the applicant is entitled for compensation to extent of Rs. 2,79,367/-6. Unfortunately, the High Court has not referred to any of these discussions while reducing the compensation to 1/3rd of what has been awarded by the Commissioner, Workmens Compensation. It may be seen that an appeal before the High Court against an award of the Commissioner, Workmens Compensation is only on a substantial question of law. We do not find that there was any substantial question of law raised by the Insurance Company either. | 1 | 1,021 | 372 | ### Instruction:
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Kurian Joseph, J. 1. Leave granted. 2. The Appellant approached the Commissioner, Workmens Compensation, Latur, Maharashtra for compensation in which it was held that he lost two toes of his left leg and that there were also burn injuries. The Appellant was a driver. By order dated 09.07.2012 the Commissioner, Workmens Compensation awarded compensation of Rs. 2,79,367/- with interest @ 12% per annum from the expiry of one month from the date of the accident till realization. The insurer, Respondent No. 1 herein, challenged the award before the High Court. The High Court as per the impugned order reduced the compensation to a meager sum of Rs. 83,664/-. 3. Despite service of notice there is no appearance for Respondent No. 1/Insurance Company. 4. Be that as it may, we have heard the learned Counsel for the Appellant and learned Counsel for Respondent No. 2, who is the owner of the vehicle. We also gone through the impugned judgment. We find absolutely no discussion as to the basis for reducing the compensation, On the contrary, the High Court has endorsed the findings of fact as recorded by the Commissioner, Workmens Compensation regarding the injuries. But, according to the High Court, it was not possible that the claimant has lost earning capacity by 100%. But that was not the views of the Commissioner, Workmens Compensation. The discussion is available at paragraphs 15 and 16 of the judgment of the Commissioner, Workmens Compensation, which are extracted below: 15) The applicant has raised the plea that he has sustained permanent physical disability and total loss in his earning capacity by the injuries caused in accident. To prove this aspect he has examined qualified medical practitioner Dr. Kazi at Exh. U-19. He has deposed that on radiological and clinical examination of applicant he found the loss of 4th and 5th toe of left feet and hypoesthesia and loss of weak grip of right hand, both feet, he assessed permanent physical disability to the extent of 21%. The applicant is unable to drive in future and because of that he has assessed total loss in his earning capacity. Accordingly he has issued certificate at Exh. U-20 and U-21 respectively. The Respondent No. 2 has cross examined him but he has not challenged the calculation of assessment of permanent physical disability on the basis of particulars given by medical officers. No doubt the Respondent has tried to say that the medical officer of Dist. Hospital Tandur has not mentioned the injuries caused to applicant except the head injury. It is pertinent to note that the FIR is lodged on day of incident itself. In FIR there is mention of injuries caused to leg and hand of applicant. Therefore mere non mentioning of injury by medical officer in one simple chit, is not sufficient to disbelieve the story and testimony of applicant and medical officer. Therefore, there is no substance in plea of Respondent. On this count it is clear that in accident the applicant sustained permanent physical disability to the extent of 21% as deposed by qualified medical practitioner. 16) It is true, there is no specific formula to evaluate the loss of earning capacity. On perusal of injuries i.e. amputation of 4th and 5th toe of left leg of applicant, it seems that he can walk properly. Though the applicant is unable to drive the vehicle in future, but he can do other work for earning as observed in the case of Palraj v. Divisional Controller reported in 2011 AAC 393 (SC). Till today the applicant has not applied to the RTO for cancellation of his driving licence. Though the validity period of driving licence is over on 12.6.09, the applicant has not taken steps prior to expiry of validity period and used such licence till its expiry. On taking into consideration the loss of toes and loss of grip feet, we can assess his loss to the extent of 70% equated with loss of the use of limb i.e. left feet below the hip. I hold accordingly and answer issue No. 3 in partly affirmative. 5. In that view of the matter, at paragraph 18, having regard to the functional disability (though that expression as such is not used by the Commissioner, Workmens Compensation), compensation was awarded and the computation details are available at paragraph 18, which reads as follows: 18) While determining issues No. 1 to 3 and issue No. 5 it is observed that the applicant met to an accident during course of his employment with Respondent No. 1 having monthly wages of Rs. 4,000/- and at that time he was having age 46 years and both the Respondents are jointly and severally liable to pay the compensation. The monthly wages Rs. 4000/- equated to 60% and such wages Rs. 2400/- multiplied with relevant factor 166.29 with reference to age 46 years, and reduced equated with loss of earning capacity to the extent of 70%, the applicant is entitled for compensation to extent of Rs. 2,79,367/-. 6. Unfortunately, the High Court has not referred to any of these discussions while reducing the compensation to 1/3rd of what has been awarded by the Commissioner, Workmens Compensation. It may be seen that an appeal before the High Court against an award of the Commissioner, Workmens Compensation is only on a substantial question of law. We do not find that there was any substantial question of law raised by the Insurance Company either.
### Response:
1
### Explanation:
4. Be that as it may, we have heard the learned Counsel for the Appellant and learned Counsel for Respondent No. 2, who is the owner of the vehicle. We also gone through the impugned judgment. We find absolutely no discussion as to the basis for reducing the compensation, On the contrary, the High Court has endorsed the findings of fact as recorded by the Commissioner, Workmens Compensation regarding the injuries. But, according to the High Court, it was not possible that the claimant has lost earning capacity by 100%. But that was not the views of the Commissioner, Workmens Compensation5. In that view of the matter, at paragraph 18, having regard to the functional disability (though that expression as such is not used by the Commissioner, Workmens Compensation), compensation was awarded and the computation details are available at paragraph 18, which reads as follows:18) While determining issues No. 1 to 3 and issue No. 5 it is observed that the applicant met to an accident during course of his employment with Respondent No. 1 having monthly wages of Rs. 4,000/- and at that time he was having age 46 years and both the Respondents are jointly and severally liable to pay the compensation. The monthly wages Rs. 4000/- equated to 60% and such wages Rs. 2400/- multiplied with relevant factor 166.29 with reference to age 46 years, and reduced equated with loss of earning capacity to the extent of 70%, the applicant is entitled for compensation to extent of Rs. 2,79,367/-6. Unfortunately, the High Court has not referred to any of these discussions while reducing the compensation to 1/3rd of what has been awarded by the Commissioner, Workmens Compensation. It may be seen that an appeal before the High Court against an award of the Commissioner, Workmens Compensation is only on a substantial question of law. We do not find that there was any substantial question of law raised by the Insurance Company either.
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Alwaye Agencies Vs. Dy. Commissioner of Agricultural Income Tax and Sales Tax | or deferred as provided in the agreement, and even when the goods were destined directly to the customer, it was the distributor who had to guarantee to arrange the payment. Clause 8 makes it quite clear that the arrangement for effecting payment had to be made by the distributor either in case of by demand draft or by irrevocable letter of credit in the companys favour negotiable against R/R or other documents of despatch of goods. It is also significant that where there was some time lag between the sending of the goods and the payment, the goods were to be insured at the cost of the assessee. This circumstance, i n our opinion, clearly shows that in respect of the goods dispatched under orders placed by the distributors, the distributors really acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the sa id company. In respect of the goods in question which were despatched through public carriers, although the invoices were prepared in the names of the consumers of the goods, and the goods were consigned to the destination through public carrier booked to self, as pointed by the Tribunal and the bills were endorsed and handed over to the assessee. When considered in the light of the agreement, these circumstances clearly shows that in respect of these transactions the property in the goods dispatched passed to the distributor on the bills being endorsed and handed over to the distributors.Our attention was drawn by Shri Krishnamurthy Iyer, learned counsel for the assessee (appellant) to the decision of this Court in The Bhopal Sugar Industries Ltd. v. Sales Tax Officer, Bhopal, [1977] 3 S.C.C. p. 147 where the question was whether the contract was one of agency or sale. This Court held that the question will have to be determined having regard to the terms and recitals of the agreement, the intention of the parties as may be spelt out from the terms of the document and the surrounding circumstances and having regard to the course of dealings between the parties. While interpreting the terms of the agreement, the Court has to look to the substance rather than the form of it. The mere fact that the word agent or agency is used or the words buyer and seller are used to describe the status of the parties concerned is not sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be conferred. We are in complete agreement with the principles laid down in this decision. We may point out that although we have referred to the assessee being described in the agreement as "distributor" and not as "agent" and to the fact that what they got was described as "rebate" and not "commission", we have not treated these circumstances as in any manner decisive. In our view, however, these descriptions considered in the light of the general tenor of the agreement and the circumstances surrounding the transactions between the parties show that the assessee was not agent, but really a purchaser from the company in respect of the goods in question. 4. Learned counsel for the appellant also drew our attention to a passage in Pollack &Mullas Commentary on the Sale of Goods and Partnership Acts, (4th Edition at page 114) where the learned authors have cited with approval the statement of Lord Justice Cotton to the effect that when the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of property therein. Lord Justice Cotton observed that in such cases the purchaser had no property in the goods, though he had offered to accept bills or had paid the price. These observations, however, in our view, have no application to the case before us, because in the case before us, although the goods were consigned to the self, the documents relating to the despatch of goods, namely R/R or other documents of title were endorsed in favour of the assessees and hand ed over to them on payment or were sent to the assessees through the bank for collection.We may mention that it was urged by learned counsel for the respondent, in the alternative, that, although sub-section 21 of Section 2 of the Kerala General Sales Tax Act defines sale in a manner similar to the definition of the said term under the Sale of Goods Act, Explanation 5 to sub-section 21 of Section 2 provides that two independent sales or purchases shall, for the purposes of that Act, be deemed to have taken place in the circumstances set out in that explanation. A perusal of the said explanation shows that such independent sales or purchases take place, inter-alia, where the goods are transferred from a principal to his selling agent and from the selling agent to the purchaser. It was submitted by him that in view of this explanation, even if the appellant firm was merely the agent of the said company in respect of the transactions in question, there were two sales which must be deemed to have taken place in respect of each of the transactions for the purposes of the said Act; one from the said company to the appellant and the other from the appellant to the respective consumer; and that the sale from the said company to the appellant was liable to be included in the taxable turnover of the assessce. In ourview, it is not necessary to consider this submission, because, according to us, in view of the said agreement, considered in the light of the surrounding circumstances, the assesseeas distributor was not an agent of the said company in respect of the transaction in question, but was the purchaser and hence the transactions were liable to be included in the turnover of the assessee. 5. | 0[ds]This circumstance, i n our opinion, clearly shows that in respect of the goods dispatched under orders placed by the distributors, the distributors really acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the sa id company. In respect of the goods in question which were despatched through public carriers, although the invoices were prepared in the names of the consumers of the goods, and the goods were consigned to the destination through public carrier booked to self, as pointed by the Tribunal and the bills were endorsed and handed over to the assessee. When considered in the light of the agreement, these circumstances clearly shows that in respect of these transactions the property in the goods dispatched passed to the distributor on the bills being endorsed and handed over to the distributors.Our attention was drawn by Shri Krishnamurthy Iyer, learned counsel for the assessee (appellant) to the decision of this Court in TheBhopal Sugar Industries Ltd. v. Sales Tax Officer, Bhopal, [1977] 3 S.C.C. p. 147where the question was whether the contract was one of agency or sale. This Court held that the question will have to be determined having regard to the terms and recitals of the agreement, the intention of the parties as may be spelt out from the terms of the document and the surrounding circumstances and having regard to the course of dealings between the parties. While interpreting the terms of the agreement, the Court has to look to the substance rather than the form of it. The mere fact that the word agent or agency is used or the words buyer and seller are used to describe the status of the parties concerned is not sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be conferred. We are in complete agreement with the principles laid down in this decision. We may point out that although we have referred to the assessee being described in the agreement as "distributor" and not as "agent" and to the fact that what they got was described as "rebate" and not "commission", we have not treated these circumstances as in any manner decisive. In our view, however, these descriptions considered in the light of the general tenor of the agreement and the circumstances surrounding the transactions between the parties show that the assessee was not agent, but really a purchaser from the company in respect of the goods incounsel for the appellant also drew our attention to a passage in Pollack &Mullas Commentary on the Sale of Goods and Partnership Acts, (4th Edition at page 114) where the learned authors have cited with approval the statement of Lord Justice Cotton to the effect that when the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of property therein. Lord Justice Cotton observed that in such cases the purchaser had no property in the goods, though he had offered to accept bills or had paid the price.These observations, however, in our view, have no application to the case before us, because in the case before us, although the goods were consigned to the self, the documents relating to the despatch of goods, namely R/R or other documents of title were endorsed in favour of the assessees and hand ed over to them on payment or were sent to the assessees through the bank for collection.We may mention that it was urged by learned counsel for the respondent, in the alternative, that, although sub-section 21 of Section 2 of the Kerala General Sales Tax Act defines sale in a manner similar to the definition of the said term under the Sale of Goods Act, Explanation 5 to sub-section 21 of Section 2 provides that two independent sales or purchases shall, for the purposes of that Act, be deemed to have taken place in the circumstances set out in that explanation. A perusal of the said explanation shows that such independent sales or purchases take place, inter-alia, where the goods are transferred from a principal to his selling agent and from the selling agent to the purchaser. It was submitted by him that in view of this explanation, even if the appellant firm was merely the agent of the said company in respect of the transactions in question, there were two sales which must be deemed to have taken place in respect of each of the transactions for the purposes of the said Act; one from the said company to the appellant and the other from the appellant to the respective consumer; and that the sale from the said company to the appellant was liable to be included in the taxable turnover of the assessce. In ourview, it is not necessary to consider this submission, because, according to us, in view of the said agreement, considered in the light of the surrounding circumstances, the assesseeas distributor was not an agent of the said company in respect of the transaction in question, but was the purchaser and hence the transactions were liable to be included in the turnover of the assessee. | 0 | 2,951 | 963 | ### Instruction:
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### Input:
or deferred as provided in the agreement, and even when the goods were destined directly to the customer, it was the distributor who had to guarantee to arrange the payment. Clause 8 makes it quite clear that the arrangement for effecting payment had to be made by the distributor either in case of by demand draft or by irrevocable letter of credit in the companys favour negotiable against R/R or other documents of despatch of goods. It is also significant that where there was some time lag between the sending of the goods and the payment, the goods were to be insured at the cost of the assessee. This circumstance, i n our opinion, clearly shows that in respect of the goods dispatched under orders placed by the distributors, the distributors really acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the sa id company. In respect of the goods in question which were despatched through public carriers, although the invoices were prepared in the names of the consumers of the goods, and the goods were consigned to the destination through public carrier booked to self, as pointed by the Tribunal and the bills were endorsed and handed over to the assessee. When considered in the light of the agreement, these circumstances clearly shows that in respect of these transactions the property in the goods dispatched passed to the distributor on the bills being endorsed and handed over to the distributors.Our attention was drawn by Shri Krishnamurthy Iyer, learned counsel for the assessee (appellant) to the decision of this Court in The Bhopal Sugar Industries Ltd. v. Sales Tax Officer, Bhopal, [1977] 3 S.C.C. p. 147 where the question was whether the contract was one of agency or sale. This Court held that the question will have to be determined having regard to the terms and recitals of the agreement, the intention of the parties as may be spelt out from the terms of the document and the surrounding circumstances and having regard to the course of dealings between the parties. While interpreting the terms of the agreement, the Court has to look to the substance rather than the form of it. The mere fact that the word agent or agency is used or the words buyer and seller are used to describe the status of the parties concerned is not sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be conferred. We are in complete agreement with the principles laid down in this decision. We may point out that although we have referred to the assessee being described in the agreement as "distributor" and not as "agent" and to the fact that what they got was described as "rebate" and not "commission", we have not treated these circumstances as in any manner decisive. In our view, however, these descriptions considered in the light of the general tenor of the agreement and the circumstances surrounding the transactions between the parties show that the assessee was not agent, but really a purchaser from the company in respect of the goods in question. 4. Learned counsel for the appellant also drew our attention to a passage in Pollack &Mullas Commentary on the Sale of Goods and Partnership Acts, (4th Edition at page 114) where the learned authors have cited with approval the statement of Lord Justice Cotton to the effect that when the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of property therein. Lord Justice Cotton observed that in such cases the purchaser had no property in the goods, though he had offered to accept bills or had paid the price. These observations, however, in our view, have no application to the case before us, because in the case before us, although the goods were consigned to the self, the documents relating to the despatch of goods, namely R/R or other documents of title were endorsed in favour of the assessees and hand ed over to them on payment or were sent to the assessees through the bank for collection.We may mention that it was urged by learned counsel for the respondent, in the alternative, that, although sub-section 21 of Section 2 of the Kerala General Sales Tax Act defines sale in a manner similar to the definition of the said term under the Sale of Goods Act, Explanation 5 to sub-section 21 of Section 2 provides that two independent sales or purchases shall, for the purposes of that Act, be deemed to have taken place in the circumstances set out in that explanation. A perusal of the said explanation shows that such independent sales or purchases take place, inter-alia, where the goods are transferred from a principal to his selling agent and from the selling agent to the purchaser. It was submitted by him that in view of this explanation, even if the appellant firm was merely the agent of the said company in respect of the transactions in question, there were two sales which must be deemed to have taken place in respect of each of the transactions for the purposes of the said Act; one from the said company to the appellant and the other from the appellant to the respective consumer; and that the sale from the said company to the appellant was liable to be included in the taxable turnover of the assessce. In ourview, it is not necessary to consider this submission, because, according to us, in view of the said agreement, considered in the light of the surrounding circumstances, the assesseeas distributor was not an agent of the said company in respect of the transaction in question, but was the purchaser and hence the transactions were liable to be included in the turnover of the assessee. 5.
### Response:
0
### Explanation:
This circumstance, i n our opinion, clearly shows that in respect of the goods dispatched under orders placed by the distributors, the distributors really acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the sa id company. In respect of the goods in question which were despatched through public carriers, although the invoices were prepared in the names of the consumers of the goods, and the goods were consigned to the destination through public carrier booked to self, as pointed by the Tribunal and the bills were endorsed and handed over to the assessee. When considered in the light of the agreement, these circumstances clearly shows that in respect of these transactions the property in the goods dispatched passed to the distributor on the bills being endorsed and handed over to the distributors.Our attention was drawn by Shri Krishnamurthy Iyer, learned counsel for the assessee (appellant) to the decision of this Court in TheBhopal Sugar Industries Ltd. v. Sales Tax Officer, Bhopal, [1977] 3 S.C.C. p. 147where the question was whether the contract was one of agency or sale. This Court held that the question will have to be determined having regard to the terms and recitals of the agreement, the intention of the parties as may be spelt out from the terms of the document and the surrounding circumstances and having regard to the course of dealings between the parties. While interpreting the terms of the agreement, the Court has to look to the substance rather than the form of it. The mere fact that the word agent or agency is used or the words buyer and seller are used to describe the status of the parties concerned is not sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be conferred. We are in complete agreement with the principles laid down in this decision. We may point out that although we have referred to the assessee being described in the agreement as "distributor" and not as "agent" and to the fact that what they got was described as "rebate" and not "commission", we have not treated these circumstances as in any manner decisive. In our view, however, these descriptions considered in the light of the general tenor of the agreement and the circumstances surrounding the transactions between the parties show that the assessee was not agent, but really a purchaser from the company in respect of the goods incounsel for the appellant also drew our attention to a passage in Pollack &Mullas Commentary on the Sale of Goods and Partnership Acts, (4th Edition at page 114) where the learned authors have cited with approval the statement of Lord Justice Cotton to the effect that when the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of property therein. Lord Justice Cotton observed that in such cases the purchaser had no property in the goods, though he had offered to accept bills or had paid the price.These observations, however, in our view, have no application to the case before us, because in the case before us, although the goods were consigned to the self, the documents relating to the despatch of goods, namely R/R or other documents of title were endorsed in favour of the assessees and hand ed over to them on payment or were sent to the assessees through the bank for collection.We may mention that it was urged by learned counsel for the respondent, in the alternative, that, although sub-section 21 of Section 2 of the Kerala General Sales Tax Act defines sale in a manner similar to the definition of the said term under the Sale of Goods Act, Explanation 5 to sub-section 21 of Section 2 provides that two independent sales or purchases shall, for the purposes of that Act, be deemed to have taken place in the circumstances set out in that explanation. A perusal of the said explanation shows that such independent sales or purchases take place, inter-alia, where the goods are transferred from a principal to his selling agent and from the selling agent to the purchaser. It was submitted by him that in view of this explanation, even if the appellant firm was merely the agent of the said company in respect of the transactions in question, there were two sales which must be deemed to have taken place in respect of each of the transactions for the purposes of the said Act; one from the said company to the appellant and the other from the appellant to the respective consumer; and that the sale from the said company to the appellant was liable to be included in the taxable turnover of the assessce. In ourview, it is not necessary to consider this submission, because, according to us, in view of the said agreement, considered in the light of the surrounding circumstances, the assesseeas distributor was not an agent of the said company in respect of the transaction in question, but was the purchaser and hence the transactions were liable to be included in the turnover of the assessee.
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Govind Yadav Vs. The New India Insurance Co.Ltd | to the appellant is just and reasonable or he is entitled to enhanced compensation under any of the following heads:(i) Loss of earning and other gains due to the amputation of leg.(ii) Loss of future earnings on account of permanent disability.(iii) Future medical expenses.(iv) Compensation for pain, suffering and trauma caused due to the amputation of leg.(v) Loss of amenities including loss of the prospects of marriage.(vi) Loss of expectation of life. 17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as Helper and was getting salary of Rs.4,000/- per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment and payment of salary by the employer. The Tribunal then proceeded to determine the amount of compensation in lieu of loss of earning by assuming the appellants income to be Rs.15,000/- per annum. On his part, the learned Single Judge of the High Court assumed that while working as a Cleaner, the appellant may have been earning Rs.2,000/- per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that at the relevant time minimum wages payable to a worker were Rs.3,000/- per month. Therefore, in the absence of other cogent evidence, the Tribunal and the High Court should have determined the amount of compensation in lieu of loss of earning by taking the appellants notional annual income as Rs.36,000/- and the loss of earning on account of 70% permanent disability as Rs.25,200/- per annum. The application of multiplier of 17 by the Tribunal, which was approved by the High Court will have to be treated as erroneous in view of the judgment in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121. In para 42 of that judgment, the Court has indicated that if the age of the victim of an accident is 24 years, then the appropriate multiplier would be 18. By applying that multiplier, we hold that the compensation payable to the appellant in lieu of the loss of earning would be Rs.4,53,600/-. 18. The award made by the Tribunal for future medical expenses was wholly inadequate. In Nagappa v. Gurudayal Singh (2003) 2 SCC 274 , this Court considered whether it was permissible to award compensation in installments or recurring compensation to meet the future medical expenses of the victim. After noticing the judgment of M. Jagannadha Rao, J. (as he then was) in P. Satyanarayana v. I. Babu Rajendra Prasad 1988 ACJ 88 (AP), the judgment of the Division Bench of the Kerala High Court in Valiyakathodi Mohd. Koya v. Ayyappankadu Ramamoorthi Mohan 1991 ACJ 140 (Kerala), this Court observed: "In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, the appellant would be required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs 18,000 and the High Court has awarded the said amount. For change of the artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs one lakh is awarded as an additional compensation, the appellant would be in a position to meet the said expenses from the interest of the said amount." After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs.2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses.19. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the Tribunals and the Courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg.20. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs.1,50,000/- for the loss of amenities and enjoyment of life. | 1[ds]e shall now consider whether the compensation awarded to the appellant is just and reasonable or he is entitled to enhanced compensation under any of the following heads:(i) Loss of earning and other gains due to the amputation of leg.(ii) Loss of future earnings on account of permanent disability.(iii) Future medical expenses.(iv) Compensation for pain, suffering and trauma caused due to the amputation of leg.(v) Loss of amenities including loss of the prospects of marriage.(vi) Loss of expectation ofthe aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs.2,00,000/to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses.19. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the Tribunals and the Courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/in lieu of pain, suffering and trauma caused due to the amputation of leg.20. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs.1,50,000/for the loss of amenities and enjoyment of life.We have considered respective submissions. This Court has, from time to time, expressed concern over the increasing number of motor accidents and pendency of large number of cases involving adjudication of claims made by the legal representatives of the deceased and also by those who suffer injuries and disabilities of various types as a result of accidents. The statistics compiled by Transport Research Wing of Ministry of Road Transport and Highways, New Delhi show that between 2004 and 2008, more than 5,00,000 people lost their lives and about 22,60,000 people were injured. | 1 | 4,663 | 600 | ### 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:
to the appellant is just and reasonable or he is entitled to enhanced compensation under any of the following heads:(i) Loss of earning and other gains due to the amputation of leg.(ii) Loss of future earnings on account of permanent disability.(iii) Future medical expenses.(iv) Compensation for pain, suffering and trauma caused due to the amputation of leg.(v) Loss of amenities including loss of the prospects of marriage.(vi) Loss of expectation of life. 17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as Helper and was getting salary of Rs.4,000/- per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment and payment of salary by the employer. The Tribunal then proceeded to determine the amount of compensation in lieu of loss of earning by assuming the appellants income to be Rs.15,000/- per annum. On his part, the learned Single Judge of the High Court assumed that while working as a Cleaner, the appellant may have been earning Rs.2,000/- per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that at the relevant time minimum wages payable to a worker were Rs.3,000/- per month. Therefore, in the absence of other cogent evidence, the Tribunal and the High Court should have determined the amount of compensation in lieu of loss of earning by taking the appellants notional annual income as Rs.36,000/- and the loss of earning on account of 70% permanent disability as Rs.25,200/- per annum. The application of multiplier of 17 by the Tribunal, which was approved by the High Court will have to be treated as erroneous in view of the judgment in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121. In para 42 of that judgment, the Court has indicated that if the age of the victim of an accident is 24 years, then the appropriate multiplier would be 18. By applying that multiplier, we hold that the compensation payable to the appellant in lieu of the loss of earning would be Rs.4,53,600/-. 18. The award made by the Tribunal for future medical expenses was wholly inadequate. In Nagappa v. Gurudayal Singh (2003) 2 SCC 274 , this Court considered whether it was permissible to award compensation in installments or recurring compensation to meet the future medical expenses of the victim. After noticing the judgment of M. Jagannadha Rao, J. (as he then was) in P. Satyanarayana v. I. Babu Rajendra Prasad 1988 ACJ 88 (AP), the judgment of the Division Bench of the Kerala High Court in Valiyakathodi Mohd. Koya v. Ayyappankadu Ramamoorthi Mohan 1991 ACJ 140 (Kerala), this Court observed: "In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, the appellant would be required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs 18,000 and the High Court has awarded the said amount. For change of the artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs one lakh is awarded as an additional compensation, the appellant would be in a position to meet the said expenses from the interest of the said amount." After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs.2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses.19. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the Tribunals and the Courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg.20. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs.1,50,000/- for the loss of amenities and enjoyment of life.
### Response:
1
### Explanation:
e shall now consider whether the compensation awarded to the appellant is just and reasonable or he is entitled to enhanced compensation under any of the following heads:(i) Loss of earning and other gains due to the amputation of leg.(ii) Loss of future earnings on account of permanent disability.(iii) Future medical expenses.(iv) Compensation for pain, suffering and trauma caused due to the amputation of leg.(v) Loss of amenities including loss of the prospects of marriage.(vi) Loss of expectation ofthe aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs.2,00,000/to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses.19. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the Tribunals and the Courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/in lieu of pain, suffering and trauma caused due to the amputation of leg.20. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs.1,50,000/for the loss of amenities and enjoyment of life.We have considered respective submissions. This Court has, from time to time, expressed concern over the increasing number of motor accidents and pendency of large number of cases involving adjudication of claims made by the legal representatives of the deceased and also by those who suffer injuries and disabilities of various types as a result of accidents. The statistics compiled by Transport Research Wing of Ministry of Road Transport and Highways, New Delhi show that between 2004 and 2008, more than 5,00,000 people lost their lives and about 22,60,000 people were injured.
|
Shiva Nath Prasad Vs. State Of West Bengal | of mutual and reciprocal wills and trusts only to understand the basis of the complaint. At this stage we are required to read the complaint as it is. Suffice it to state at this stage of the matter that the couple had executed mutual wills in 1981 and 1982; followed by reciprocal trusts in 1988 which are in almost identical words. The scheme of the mutual deeds read together is almost identical. It is not disputed that a mere declaration can create a trust obligation, particularly when the settlor is the sole trustee under the trust. Before us what is argued by the appellants is that there is no valid creation of trust; that, there was no "vesting" of the assets in the three public charitable institutions; that, the act of Smt. Birla in revoking the trusts and/or treating them as her own property was within her competence; that, the trusts were revocable; that, at the highest it is case of failure of the second charity and that predominantly the dispute is a civil dispute. At this stage, we may point out that what is complained of in the complaint filed by respondent no.2 herein is regarding the acts of management including dissolution of the trusts and making of the will by which trust properties have been allegedly converted dishonestly into personal properties of R.S. Lodha constituting an offence of criminal misappropriation under sections 405 and 406 and cheating under section 420, IPC. Here we may add that question as to whether Smt. Birla had the authority to revoke is different from the allegation that the acts of setting up personal title to the trust property constituted criminal breach of trust and that, the act was performed with the intent of converting trust property into private property pursuant to a conspiracy by the accused.23. In the complaint, respondent no.2 herein has averred that he was present and consulted when the couple opted for mutual wills in 1981, 1982 and even in 1988 when mutual and reciprocal trusts were executed. The complaint is based on the alleged oral agreement and understanding between the husband and wife regarding disposal of properties on their demise. Suffice it to say that these facts in issue are matters of evidence. The question as to whether there existed a valid trust or that Smt. Birla was entitled to dissolve the trust even during her lifetime are defences which can be taken at the appropriate time. As stated above, in this case we have mutual wills and mutual and reciprocal trusts in 1981, 1982 and 1988; clauses 7(b) and 8 of the trust deed reflect charitable intention coupled with nominations of 1990. What we would like to stress is that the complaint is based on an important aspect of mutual trust. The allegation is that the beneficial interest (enforceable not against the assets but against the trustees) is dishonestly misappropriated by the accused. The complaint is about dishonestly setting up personal title to the trust property. 24. The complaint is based on mutual and oral agreements imposing secret trust obligations as evidenced by the trust deeds. In this connection we may reiterate that "secret trust" is a doctrine evolved to prevent fraud; that, fraud is not an ingredient for the application of the said doctrine. However, the substance of the complaint here is that the secret trust has become the reason for fraud because the legatee under the secret trust is made to believe by the accused that she was the beneficial owner, free from any trust [See: Re Cleaver (Deceased) reported in 1981 (2) All.ER 1018]. Lastly, we may point out that in a matter of this type, oral evidence was admissible to prove what is called "fraud" [See: Ottaway v. Norman reported in 1971 (3) All.ER 1325]. 25. We have entered into the above discussion, not to express any opinion, but to answer the main plank of the argument advanced on behalf of the appellant that this case basically involves a civil dispute. None of our observations be treated as expression of our opinion on the rightfulness of the claim made in the complaint. In conclusion, we may quote Law of Crimes by Ratanlal and Dhirajlal page 2069 : "In a case under section 406 the question of trust must be fully inquired into. For this purpose it is essential that the whole prosecution evidence should be recorded. It is impossible to guess at an interim stage, what will be the result of the inquiry. Consequently, when only a few of the prosecution witnesses have been examined, it is too premature to decline to examine any more witnesses for the prosecution and discharge the accused on the ground that the case is of a civil nature." 26. Before us, number of judgments have been cited in support of the case that respondent no.2 (complainant) is the disgruntled employee of the MP Birla Group of Companies and that he has been put up by the Birlas, hence, the complaint is based on malafides and should, therefore, be dismissed. We need not go into the said judgments as the basic principle settled in the citations is that the question of malafides has to be decided on the facts of each case. At the outset, we reiterate that credentiality of the complainant at this stage is not relevant. As stated above, in this case, what is alleged by the complaint, inter alia, is that he was a privy to the discussions and consultations and thinking which went into making of the mutual wills and the mutual trusts; that, he was a formal witness to some of these deeds and that he was aware that the couple had mutually agreed to the disposal of the property to charity after their demise. In the facts and circumstances of this case, at this stage, we are not inclined to accept the argument that the complaint should be dismissed at the initial stage on the ground of alleged malafides of the complainant. | 0[ds]20. A will on its own terms is inherently revocable during the lifetime of the testator. However, "mutual wills" and "secret trusts" are doctrines evolved in equity to overcome the problems of revocability of wills and to prevent frauds. Mutual wills and secret trusts belong to the same category of cases. The doctrine of mutual wills is to the effect that where two individuals agree as to the disposal of their assets and execute mutual wills in pursuance of the agreement, on the death of the first testator (T1), the property of the survivor testator (T2), the subject matter of the agreement, is held on an implied trust for the beneficiary named in the wills. T2 may alter his/her will because a will is inherently revocable, but if he/she does so, his/her representative will take the assets subject to the trust. The rationale for imposing a "constructive trust" in such circumstances is that equity will not allow T2 to commit a fraud by going back on her agreement with T1. Since the assets received by T2, on the death of T1, were bequeathed to T2 on the basis of the agreement not to revoke the will of T1 it would be a fraud for T2 to take the benefit, while failing to observe the agreement and equity intervenes to prevent this fraud. In such cases, the Instrument itself is the evidence of the agreement and he, that dies first, does by his act carry the agreement on his part into execution. If T2 then refuses, he/she is guilty of fraud, can never unbind himself/herself and becomes a trustee, of course. For no man shall deceive another to his prejudice.21. Such a contract to make corresponding wills in many cases get established by the Instrument itself as the evidence of the agreement [See: Law of Trusts and Equitable Obligations by Robert Pearce and John Stevens pages 320 and 321]; See also : Re Dale (Deceased) reported in 1993(4) All. ER page 129]. In the case of mutual wills generally we have an agreement between the two testators concerning disposal of their respective properties. Their mutuality and reciprocity depends on several factors. Mutual wills and trusts are evidenced by the Deeds themselves (the recitals, terms and conditions mentioned therein) as also by the surrounding circumstances, namely, the simultaneity and the similarity of the terms of the wills/trusts, the pattern of successive wills, the reciprocity of one to the other, the age of the settlors, the value of the estates, dying of the settlors without any issues, making of the last will without reference to the revocation of previous wills. Lastly, in law we have the concept of accessory liability for having assisted in a breach of trust. In such a case the accused is not charged for having received trust income or assets for his own benefit but for having acted as an accessory to a breach of trust.22. We have referred to the doctrine of mutual and reciprocal wills and trusts only to understand the basis of the complaint. At this stage we are required to read the complaint as it is. Suffice it to state at this stage of the matter that the couple had executed mutual wills in 1981 and 1982; followed by reciprocal trusts in 1988 which are in almost identical words. The scheme of the mutual deeds read together is almost identical. It is not disputed that a mere declaration can create a trust obligation, particularly when the settlor is the sole trustee under the trust. Before us what is argued by the appellants is that there is no valid creation of trust; that, there was no "vesting" of the assets in the three public charitable institutions; that, the act of Smt. Birla in revoking the trusts and/or treating them as her own property was within her competence; that, the trusts were revocable; that, at the highest it is case of failure of the second charity and that predominantly the dispute is a civil dispute. At this stage, we may point out that what is complained of in the complaint filed by respondent no.2 herein is regarding the acts of management including dissolution of the trusts and making of the will by which trust properties have been allegedly converted dishonestly into personal properties of R.S. Lodha constituting an offence of criminal misappropriation under sections 405 and 406 and cheating under section 420, IPC.accused.23. In the complaint, respondent no.2 herein has averred that he was present and consulted when the couple opted for mutual wills in 1981, 1982 and even in 1988 when mutual and reciprocal trusts were executed. The complaint is based on the alleged oral agreement and understanding between the husband and wife regarding disposal of properties on their demise. Suffice it to say that these facts in issue are matters ofstated above, in this case we have mutual wills and mutual and reciprocal trusts in 1981, 1982 and 1988; clauses 7(b) and 8 of the trust deed reflect charitable intention coupled with nominations of 1990. What we would like to stress is that the complaint is based on an important aspect of mutual trust. The allegation is that the beneficial interest (enforceable not against the assets but against the trustees) is dishonestly misappropriated by the accused. The complaint is about dishonestly setting up personal title to the trust property.Before us, number of judgments have been cited in support of the case that respondent no.2 (complainant) is the disgruntled employee of the MP Birla Group of Companies and that he has been put up by the Birlas, hence, the complaint is based on malafides and should, therefore, be dismissed. We need not go into the said judgments as the basic principle settled in the citations is that the question of malafides has to be decided on the facts of each case. At the outset, we reiterate that credentiality of the complainant at this stage is not relevant. As stated above, in this case, what is alleged by the complaint, inter alia, is that he was a privy to the discussions and consultations and thinking which went into making of the mutual wills and the mutual trusts; that, he was a formal witness to some of these deeds and that he was aware that the couple had mutually agreed to the disposal of the property to charity after their demise. In the facts and circumstances of this case, at this stage, we are not inclined to accept the argument that the complaint should be dismissed at the initial stage on the ground of alleged malafides of the complainant. | 0 | 9,584 | 1,230 | ### 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:
of mutual and reciprocal wills and trusts only to understand the basis of the complaint. At this stage we are required to read the complaint as it is. Suffice it to state at this stage of the matter that the couple had executed mutual wills in 1981 and 1982; followed by reciprocal trusts in 1988 which are in almost identical words. The scheme of the mutual deeds read together is almost identical. It is not disputed that a mere declaration can create a trust obligation, particularly when the settlor is the sole trustee under the trust. Before us what is argued by the appellants is that there is no valid creation of trust; that, there was no "vesting" of the assets in the three public charitable institutions; that, the act of Smt. Birla in revoking the trusts and/or treating them as her own property was within her competence; that, the trusts were revocable; that, at the highest it is case of failure of the second charity and that predominantly the dispute is a civil dispute. At this stage, we may point out that what is complained of in the complaint filed by respondent no.2 herein is regarding the acts of management including dissolution of the trusts and making of the will by which trust properties have been allegedly converted dishonestly into personal properties of R.S. Lodha constituting an offence of criminal misappropriation under sections 405 and 406 and cheating under section 420, IPC. Here we may add that question as to whether Smt. Birla had the authority to revoke is different from the allegation that the acts of setting up personal title to the trust property constituted criminal breach of trust and that, the act was performed with the intent of converting trust property into private property pursuant to a conspiracy by the accused.23. In the complaint, respondent no.2 herein has averred that he was present and consulted when the couple opted for mutual wills in 1981, 1982 and even in 1988 when mutual and reciprocal trusts were executed. The complaint is based on the alleged oral agreement and understanding between the husband and wife regarding disposal of properties on their demise. Suffice it to say that these facts in issue are matters of evidence. The question as to whether there existed a valid trust or that Smt. Birla was entitled to dissolve the trust even during her lifetime are defences which can be taken at the appropriate time. As stated above, in this case we have mutual wills and mutual and reciprocal trusts in 1981, 1982 and 1988; clauses 7(b) and 8 of the trust deed reflect charitable intention coupled with nominations of 1990. What we would like to stress is that the complaint is based on an important aspect of mutual trust. The allegation is that the beneficial interest (enforceable not against the assets but against the trustees) is dishonestly misappropriated by the accused. The complaint is about dishonestly setting up personal title to the trust property. 24. The complaint is based on mutual and oral agreements imposing secret trust obligations as evidenced by the trust deeds. In this connection we may reiterate that "secret trust" is a doctrine evolved to prevent fraud; that, fraud is not an ingredient for the application of the said doctrine. However, the substance of the complaint here is that the secret trust has become the reason for fraud because the legatee under the secret trust is made to believe by the accused that she was the beneficial owner, free from any trust [See: Re Cleaver (Deceased) reported in 1981 (2) All.ER 1018]. Lastly, we may point out that in a matter of this type, oral evidence was admissible to prove what is called "fraud" [See: Ottaway v. Norman reported in 1971 (3) All.ER 1325]. 25. We have entered into the above discussion, not to express any opinion, but to answer the main plank of the argument advanced on behalf of the appellant that this case basically involves a civil dispute. None of our observations be treated as expression of our opinion on the rightfulness of the claim made in the complaint. In conclusion, we may quote Law of Crimes by Ratanlal and Dhirajlal page 2069 : "In a case under section 406 the question of trust must be fully inquired into. For this purpose it is essential that the whole prosecution evidence should be recorded. It is impossible to guess at an interim stage, what will be the result of the inquiry. Consequently, when only a few of the prosecution witnesses have been examined, it is too premature to decline to examine any more witnesses for the prosecution and discharge the accused on the ground that the case is of a civil nature." 26. Before us, number of judgments have been cited in support of the case that respondent no.2 (complainant) is the disgruntled employee of the MP Birla Group of Companies and that he has been put up by the Birlas, hence, the complaint is based on malafides and should, therefore, be dismissed. We need not go into the said judgments as the basic principle settled in the citations is that the question of malafides has to be decided on the facts of each case. At the outset, we reiterate that credentiality of the complainant at this stage is not relevant. As stated above, in this case, what is alleged by the complaint, inter alia, is that he was a privy to the discussions and consultations and thinking which went into making of the mutual wills and the mutual trusts; that, he was a formal witness to some of these deeds and that he was aware that the couple had mutually agreed to the disposal of the property to charity after their demise. In the facts and circumstances of this case, at this stage, we are not inclined to accept the argument that the complaint should be dismissed at the initial stage on the ground of alleged malafides of the complainant.
### Response:
0
### Explanation:
agreement, is held on an implied trust for the beneficiary named in the wills. T2 may alter his/her will because a will is inherently revocable, but if he/she does so, his/her representative will take the assets subject to the trust. The rationale for imposing a "constructive trust" in such circumstances is that equity will not allow T2 to commit a fraud by going back on her agreement with T1. Since the assets received by T2, on the death of T1, were bequeathed to T2 on the basis of the agreement not to revoke the will of T1 it would be a fraud for T2 to take the benefit, while failing to observe the agreement and equity intervenes to prevent this fraud. In such cases, the Instrument itself is the evidence of the agreement and he, that dies first, does by his act carry the agreement on his part into execution. If T2 then refuses, he/she is guilty of fraud, can never unbind himself/herself and becomes a trustee, of course. For no man shall deceive another to his prejudice.21. Such a contract to make corresponding wills in many cases get established by the Instrument itself as the evidence of the agreement [See: Law of Trusts and Equitable Obligations by Robert Pearce and John Stevens pages 320 and 321]; See also : Re Dale (Deceased) reported in 1993(4) All. ER page 129]. In the case of mutual wills generally we have an agreement between the two testators concerning disposal of their respective properties. Their mutuality and reciprocity depends on several factors. Mutual wills and trusts are evidenced by the Deeds themselves (the recitals, terms and conditions mentioned therein) as also by the surrounding circumstances, namely, the simultaneity and the similarity of the terms of the wills/trusts, the pattern of successive wills, the reciprocity of one to the other, the age of the settlors, the value of the estates, dying of the settlors without any issues, making of the last will without reference to the revocation of previous wills. Lastly, in law we have the concept of accessory liability for having assisted in a breach of trust. In such a case the accused is not charged for having received trust income or assets for his own benefit but for having acted as an accessory to a breach of trust.22. We have referred to the doctrine of mutual and reciprocal wills and trusts only to understand the basis of the complaint. At this stage we are required to read the complaint as it is. Suffice it to state at this stage of the matter that the couple had executed mutual wills in 1981 and 1982; followed by reciprocal trusts in 1988 which are in almost identical words. The scheme of the mutual deeds read together is almost identical. It is not disputed that a mere declaration can create a trust obligation, particularly when the settlor is the sole trustee under the trust. Before us what is argued by the appellants is that there is no valid creation of trust; that, there was no "vesting" of the assets in the three public charitable institutions; that, the act of Smt. Birla in revoking the trusts and/or treating them as her own property was within her competence; that, the trusts were revocable; that, at the highest it is case of failure of the second charity and that predominantly the dispute is a civil dispute. At this stage, we may point out that what is complained of in the complaint filed by respondent no.2 herein is regarding the acts of management including dissolution of the trusts and making of the will by which trust properties have been allegedly converted dishonestly into personal properties of R.S. Lodha constituting an offence of criminal misappropriation under sections 405 and 406 and cheating under section 420, IPC.accused.23. In the complaint, respondent no.2 herein has averred that he was present and consulted when the couple opted for mutual wills in 1981, 1982 and even in 1988 when mutual and reciprocal trusts were executed. The complaint is based on the alleged oral agreement and understanding between the husband and wife regarding disposal of properties on their demise. Suffice it to say that these facts in issue are matters ofstated above, in this case we have mutual wills and mutual and reciprocal trusts in 1981, 1982 and 1988; clauses 7(b) and 8 of the trust deed reflect charitable intention coupled with nominations of 1990. What we would like to stress is that the complaint is based on an important aspect of mutual trust. The allegation is that the beneficial interest (enforceable not against the assets but against the trustees) is dishonestly misappropriated by the accused. The complaint is about dishonestly setting up personal title to the trust property.Before us, number of judgments have been cited in support of the case that respondent no.2 (complainant) is the disgruntled employee of the MP Birla Group of Companies and that he has been put up by the Birlas, hence, the complaint is based on malafides and should, therefore, be dismissed. We need not go into the said judgments as the basic principle settled in the citations is that the question of malafides has to be decided on the facts of each case. At the outset, we reiterate that credentiality of the complainant at this stage is not relevant. As stated above, in this case, what is alleged by the complaint, inter alia, is that he was a privy to the discussions and consultations and thinking which went into making of the mutual wills and the mutual trusts; that, he was a formal witness to some of these deeds and that he was aware that the couple had mutually agreed to the disposal of the property to charity after their demise. In the facts and circumstances of this case, at this stage, we are not inclined to accept the argument that the complaint should be dismissed at the initial stage on the ground of alleged malafides of the complainant.
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Biswaranjan Bysack Vs. Commissioner of Income Tax, Calcutta | vested absolutely and belonged to the Thakoors Sri Sri Bolloramjee and Sri Sri Issur Radhakantjee or whether in the facts and circumstances, the said four properties vested in and belonged to Sarbaranjan Bysack, subject to a charge for meeting the expenses of sheba and worship of the said Thakoors, in the way the same was carried on by the said Kedarnath Bysack and his mother. " 3. The High Court answered the question against the assessee and in favour of the Commissioner of Income-tax. 4. It was argued on behalf of the appellant that the four properties have not been partitioned by metes and bounds between Purnashasbi Dassi and Sarbaranjan Bysack as has been done with respect to the other properties in the residuary estate. It was also pointed out that the Commissioner has, in his report dated July 4, 1900, mentioned that the four properties were " set apart for the purpose of sheba and pujah of the two deities for which it was necessary to provide a sum of Rs. 2, 000 annually ". The argument was therefore stressed on behalf of the appellant that, though there was a failure of the bequest to the two deities made by the testator in his will, there was a " debutter " created on account of the final decree of the Calcutta High Court and the commissioners report already referred to. In our opinion, there is no justification for the argument put forward on behalf of the appellant. It is important to notice that, in the preliminary decree in Suit No. 363 of 1896, the bequest to the two deities was declared invalid by the High Court. The result was that Sarbaranjan and the heir of Dakhinaranjan became entitled to the residuary estate. The preliminary decree directed " an enquriy as to what provision should be made for carrying on the worship of the two deities, Sri Sri Bolloramjee and Radha Kant Jew, ......... in the way the same was carried on by the said testator and his mother ". The preliminary decree proceeded to state" And it is further declared that the said defendant, Sreemutty Koylashmoney Dassee, is entitled to act as Sebayet of the said Thakoor during the minority of the infant defendant, Surborunjan Bysack, and that thereafter the said defendants, Sreemutty Koylashmoney Dassee and Surborunjun Bysack, will be entitled to act as Sebayots jointly. And it is further declared that, subject to the aforesaid provisions and payments being made, the plaintiff is entitled to the estate of a Hindoo widow to a moiety or one equal half part or share of the residue of the said testators estate (the same into two equal parts or shares being considered as divided and hereinafter referred to as the said residuary estate) and that the said defendant, Surborunjun Bysack, is entitled to the other moiety or equal half part or share thereof : " 5. It is clear that the direction in the preliminary decree was that provision should be made out of the testators estate for the performance of Sheba and worship of the deities and for meeting the other legacies in the testators will and thereafter the residuary estate was ordered to be divided equally between Purnashashi Dassi and Sarbaranjan Bysack. According to the direction of the preliminary decree, the commissioner reported that it was necessary to provide Rs. 1, 500 annually for the Sheba of Thakoors Bollor amjee and Radhakantjee Jew and Rs. 500 annually for gifts and donations on poojhas and for festival occasions. He recommended that four properties should be set apart for these purposes. It does not mean that the commissioner intended that the title to the four properties should be vested in the deities. The intention was that a fixed sum of Rs. 2, 000 annually should be spent for sheba and worship of the deities and it is not possible to draw any inference that there had been a gift of the four properties to the deities. The words " set apart " used in the commissioners report only indicated that the expenses of worship and puja of the deities should be met from the income of the four properties but not that the title and ownership of the properties should pass to the deities. In any case, even if there is an ambiguity in the commissioners report, it should be read in the context and background of the preliminary decree of the High Court in suit No. 363 of 1896. Having regard to the clear terms of the preliminary decree, we are of the opinion that there is no scope for the argument that there was any dedication of the four properties in favour of the two deities because of the commissioners report. It is manifest that the four properties formed part of the residuary estate of Sarbaranjan and Purnashasbi Dassi subject, however, to a charge or obligation to perform the Sheba and worship of the deities in the manner provided in the commissioners report. The argument was stressed on behalf of the appellant that the four properties had not been partitioned by metes and bounds between Purnashashi Dassi and Sarbaranjan as had been done with respect to the other properties comprised in the residuary estate. But this circumstance alone cannot lead to the conclusion that the four properties became vested in the deities. It is likely that the commissioner made no partition of these properties in view of his recommendation that the income from these properties should be spent for the Sheba and worship of the two deities. On a true interpretation of the will of late Sri Kedarnath Bysack and his codicil and having regard to the preliminary and final decrees of the High Court, we are of the opinion that the four properties which had been set apart by the commissioner for the performance of Sheba and worship of the deities formed part of the residuary estate of the testator and they were not dedicated for charitable purposes. | 0[ds]In our opinion, there is no justification for the argument put forward on behalf of the appellant. It is important to notice that, in the preliminary decree in Suit No. 363 of 1896, the bequest to the two deities was declared invalid by the High Court5. It is clear that the direction in the preliminary decree was that provision should be made out of the testators estate for the performance of Sheba and worship of the deities and for meeting the other legacies in the testators will and thereafter the residuary estate was ordered to be divided equally between Purnashashi Dassi and Sarbaranjan Bysack. According to the direction of the preliminary decree, the commissioner reported that it was necessary to provide Rs. 1, 500 annually for the Sheba of Thakoors Bollor amjee and Radhakantjee Jew and Rs. 500 annually for gifts and donations on poojhas and for festival occasions. He recommended that four properties should be set apart for these purposes. It does not mean that the commissioner intended that the title to the four properties should be vested in the deities. The intention was that a fixed sum of Rs. 2, 000 annually should be spent for sheba and worship of the deities and it is not possible to draw any inference that there had been a gift of the four properties to the deities. The words " set apart " used in the commissioners report only indicated that the expenses of worship and puja of the deities should be met from the income of the four properties but not that the title and ownership of the properties should pass to the deities. In any case, even if there is an ambiguity in the commissioners report, it should be read in the context and background of the preliminary decree of the High Court in suit No. 363 of 1896. Having regard to the clear terms of the preliminary decree, we are of the opinion that there is no scope for the argument that there was any dedication of the four properties in favour of the two deities because of the commissioners report. It is manifest that the four properties formed part of the residuary estate of Sarbaranjan and Purnashasbi Dassi subject, however, to a charge or obligation to perform the Sheba and worship of the deities in the manner provided in the commissioners reportBut this circumstance alone cannot lead to the conclusion that the four properties became vested in the deities. It is likely that the commissioner made no partition of these properties in view of his recommendation that the income from these properties should be spent for the Sheba and worship of the two deities. On a true interpretation of the will of late Sri Kedarnath Bysack and his codicil and having regard to the preliminary and final decrees of the High Court, we are of the opinion that the four properties which had been set apart by the commissioner for the performance of Sheba and worship of the deities formed part of the residuary estate of the testator and they were not dedicated for charitable purposes. | 0 | 2,172 | 554 | ### Instruction:
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vested absolutely and belonged to the Thakoors Sri Sri Bolloramjee and Sri Sri Issur Radhakantjee or whether in the facts and circumstances, the said four properties vested in and belonged to Sarbaranjan Bysack, subject to a charge for meeting the expenses of sheba and worship of the said Thakoors, in the way the same was carried on by the said Kedarnath Bysack and his mother. " 3. The High Court answered the question against the assessee and in favour of the Commissioner of Income-tax. 4. It was argued on behalf of the appellant that the four properties have not been partitioned by metes and bounds between Purnashasbi Dassi and Sarbaranjan Bysack as has been done with respect to the other properties in the residuary estate. It was also pointed out that the Commissioner has, in his report dated July 4, 1900, mentioned that the four properties were " set apart for the purpose of sheba and pujah of the two deities for which it was necessary to provide a sum of Rs. 2, 000 annually ". The argument was therefore stressed on behalf of the appellant that, though there was a failure of the bequest to the two deities made by the testator in his will, there was a " debutter " created on account of the final decree of the Calcutta High Court and the commissioners report already referred to. In our opinion, there is no justification for the argument put forward on behalf of the appellant. It is important to notice that, in the preliminary decree in Suit No. 363 of 1896, the bequest to the two deities was declared invalid by the High Court. The result was that Sarbaranjan and the heir of Dakhinaranjan became entitled to the residuary estate. The preliminary decree directed " an enquriy as to what provision should be made for carrying on the worship of the two deities, Sri Sri Bolloramjee and Radha Kant Jew, ......... in the way the same was carried on by the said testator and his mother ". The preliminary decree proceeded to state" And it is further declared that the said defendant, Sreemutty Koylashmoney Dassee, is entitled to act as Sebayet of the said Thakoor during the minority of the infant defendant, Surborunjan Bysack, and that thereafter the said defendants, Sreemutty Koylashmoney Dassee and Surborunjun Bysack, will be entitled to act as Sebayots jointly. And it is further declared that, subject to the aforesaid provisions and payments being made, the plaintiff is entitled to the estate of a Hindoo widow to a moiety or one equal half part or share of the residue of the said testators estate (the same into two equal parts or shares being considered as divided and hereinafter referred to as the said residuary estate) and that the said defendant, Surborunjun Bysack, is entitled to the other moiety or equal half part or share thereof : " 5. It is clear that the direction in the preliminary decree was that provision should be made out of the testators estate for the performance of Sheba and worship of the deities and for meeting the other legacies in the testators will and thereafter the residuary estate was ordered to be divided equally between Purnashashi Dassi and Sarbaranjan Bysack. According to the direction of the preliminary decree, the commissioner reported that it was necessary to provide Rs. 1, 500 annually for the Sheba of Thakoors Bollor amjee and Radhakantjee Jew and Rs. 500 annually for gifts and donations on poojhas and for festival occasions. He recommended that four properties should be set apart for these purposes. It does not mean that the commissioner intended that the title to the four properties should be vested in the deities. The intention was that a fixed sum of Rs. 2, 000 annually should be spent for sheba and worship of the deities and it is not possible to draw any inference that there had been a gift of the four properties to the deities. The words " set apart " used in the commissioners report only indicated that the expenses of worship and puja of the deities should be met from the income of the four properties but not that the title and ownership of the properties should pass to the deities. In any case, even if there is an ambiguity in the commissioners report, it should be read in the context and background of the preliminary decree of the High Court in suit No. 363 of 1896. Having regard to the clear terms of the preliminary decree, we are of the opinion that there is no scope for the argument that there was any dedication of the four properties in favour of the two deities because of the commissioners report. It is manifest that the four properties formed part of the residuary estate of Sarbaranjan and Purnashasbi Dassi subject, however, to a charge or obligation to perform the Sheba and worship of the deities in the manner provided in the commissioners report. The argument was stressed on behalf of the appellant that the four properties had not been partitioned by metes and bounds between Purnashashi Dassi and Sarbaranjan as had been done with respect to the other properties comprised in the residuary estate. But this circumstance alone cannot lead to the conclusion that the four properties became vested in the deities. It is likely that the commissioner made no partition of these properties in view of his recommendation that the income from these properties should be spent for the Sheba and worship of the two deities. On a true interpretation of the will of late Sri Kedarnath Bysack and his codicil and having regard to the preliminary and final decrees of the High Court, we are of the opinion that the four properties which had been set apart by the commissioner for the performance of Sheba and worship of the deities formed part of the residuary estate of the testator and they were not dedicated for charitable purposes.
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In our opinion, there is no justification for the argument put forward on behalf of the appellant. It is important to notice that, in the preliminary decree in Suit No. 363 of 1896, the bequest to the two deities was declared invalid by the High Court5. It is clear that the direction in the preliminary decree was that provision should be made out of the testators estate for the performance of Sheba and worship of the deities and for meeting the other legacies in the testators will and thereafter the residuary estate was ordered to be divided equally between Purnashashi Dassi and Sarbaranjan Bysack. According to the direction of the preliminary decree, the commissioner reported that it was necessary to provide Rs. 1, 500 annually for the Sheba of Thakoors Bollor amjee and Radhakantjee Jew and Rs. 500 annually for gifts and donations on poojhas and for festival occasions. He recommended that four properties should be set apart for these purposes. It does not mean that the commissioner intended that the title to the four properties should be vested in the deities. The intention was that a fixed sum of Rs. 2, 000 annually should be spent for sheba and worship of the deities and it is not possible to draw any inference that there had been a gift of the four properties to the deities. The words " set apart " used in the commissioners report only indicated that the expenses of worship and puja of the deities should be met from the income of the four properties but not that the title and ownership of the properties should pass to the deities. In any case, even if there is an ambiguity in the commissioners report, it should be read in the context and background of the preliminary decree of the High Court in suit No. 363 of 1896. Having regard to the clear terms of the preliminary decree, we are of the opinion that there is no scope for the argument that there was any dedication of the four properties in favour of the two deities because of the commissioners report. It is manifest that the four properties formed part of the residuary estate of Sarbaranjan and Purnashasbi Dassi subject, however, to a charge or obligation to perform the Sheba and worship of the deities in the manner provided in the commissioners reportBut this circumstance alone cannot lead to the conclusion that the four properties became vested in the deities. It is likely that the commissioner made no partition of these properties in view of his recommendation that the income from these properties should be spent for the Sheba and worship of the two deities. On a true interpretation of the will of late Sri Kedarnath Bysack and his codicil and having regard to the preliminary and final decrees of the High Court, we are of the opinion that the four properties which had been set apart by the commissioner for the performance of Sheba and worship of the deities formed part of the residuary estate of the testator and they were not dedicated for charitable purposes.
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M/S. Flex Engineering Ltd Vs. Commnr. Of Central Excise, U.P | Sarabhai Enterprises (P) Ltd. ((1989) 4 SCC 112 ) the finding in each case on the basis of the material before the Court was that the articles in question were not marketable and were not known to the market as such. The `marketability is thus essentially a question of fact to be decided on the facts of each case. There can be no generalisation. The fact that the goods are not in fact marketed is of no relevance.” 9. It may be noticed that in the cases referred to in the passage, quoted above, the reasons for holding the articles “not marketable” are different, however, they are not exhaustive. It is difficult to lay down a precise test to determine marketability of articles. Marketability of goods has certain attributes. The essence of marketability is neither in the form nor in the shape or condition in which the manufactured articles are to be found, it is the commercial identity of the articles known to the market for being bought and sold. The fact that the product in question is generally not being bought and sold or has no demand in the market would be irrelevant. The plastic body of EMR does not satisfy the aforementioned criteria. There are some competing manufacturers of EMR. Each is having a different plastic body to suit its design and requirement. If one goes to the market to purchase the plastic body of EMR of the respondents either for replacement or otherwise one cannot get it in the market because at present it is not a commercially known product. For these reasons, the plastic body, which is a part of EMR of the respondents, is not “goods” so as to be liable to duty as parts of EMR under para 5(f) of the said exemption notification.” (Emphasis supplied by us) 18. In Collector of Central Excise, Calcutta-II Vs. M/s Eastend Paper Industries Ltd. ((1989) 4 SCC 244 ), the assessee was manufacturing different kinds of paper. A question arose whether the wrapping paper manufactured and used for wrapping the finished product is a part of manufacture. It was held that wrapping of finished product by wrapping paper is process incidental and ancillary to completion of the manufactured product under Section 2 (f) of Act. Thus, the Court held that, anything required to make goods marketable, must form a part of manufacture and any raw material or any material used for same would be a component part of the final product. 19. In Dharampal Satyapal Vs. Commissioner of Central Excise, Delhi-I, New Delhi ((2005) 4 SCC 337 ), the term marketable has been held to mean saleable, as under: “18......Marketability is an attribute of manufacture. It is an essential criteria for charging duty. Identity of the product and marketability are the twin aspects to decide chargeability. Dutiability of the product depends on whether the product is known to the market. The test of marketability is that the product which is made liable to duty must be marketable in the condition in which it emerges. Marketable means saleable. The test of classification is, how are the goods known in the market. These tests have been laid down by this Court in a number of judgments including Moti Laminates (P). Ltd. v. CCE ((1995) 3 SCC 23 ), Union of India v. Delhi Cloth & General Mills Co. Ltd. ((1997) 5 SCC 767 ) and Cadila Laboratories (P) Ltd. v. CCE ((2003) 4 SCC 12 ).” 20. Thus, if a product is not saleable, it will not be marketable and consequently the process of manufacture would not be held to be complete and duty of excise would not be leviable on it. The corollary to the above is that till the time the step of manufacture continues, all the goods used in relation to it will be considered as inputs and thus, entitled to Modvat credit under Rule 57A of the Rules. In the present case, as aforesaid, each machine is tailor made according to the requirements of individual customers. If the results are not in conformity with the order, then the machine loses its marketability and is of no use to any other customer. Thus, the process of manufacture will not be said to be complete till the time the machines meet the contractual specifications and that will not be possible unless the machines are subjected to individual testing. Even though the revenue has alleged that the process of manufacture is complete as soon as the machine is assembled, yet it has not discharged the onus of proving the marketability of the machines thus assembled, prior to the stage of testing. Moreover, as has been held in the case of Hindustan Zinc Ltd. Vs. Commissioner of Central Excise, Jaipur ((2005) 2 SCC 662 ;), the burden of proving whether a particular product is marketable or not is on the department and in the absence of such proof it cannot be presumed to be marketable. In the absence of the revenue having adduced any such evidence or contorted the assessees claim that the machines cannot be sold unless testing is done with some alternative evidence as to their marketability, the stand of the revenue cannot be accepted. 21. Thus, in our opinion the process of testing the customised F&S machines is inextricably connected with the manufacturing process, in as much as, until this process is carried out in terms of the afore-extracted covenant in the purchase order, the manufacturing process is not complete; the machines are not fit for sale and hence not marketable at the factory gate. We are, therefore, of the opinion that the manufacturing process in the present case gets completed on testing of the said machines and hence, the afore-stated goods viz. the flexible plastic films used for testing the F&S machines are inputs used in relation to the manufacture of the final product and would be eligible for Modvat credit under Rule 57A of the Rules. 22. In view of the aforegoing discussion, the | 1[ds]13. It is manifest that Rule 57A of the Rules entitled a manufacturer to take credit of the Central Excise duty paid on the inputs used inor in relationto the manufacture of the final product provided that the input and the finished product are excisable goods and fall under any of the specified chapters in the tariff schedule. It is pertinent to note that vide Notification No.28/95-C.E. (N.T.), dated 29th June 1995, the said Rule was amended and the phrasedirectly or indirectly and whether contained in the final product orwas inserted. There is no dispute that in the instant case, both the F&S machines and the flexible laminated plastic film and poly paper are excisable. Therefore, the short question for consideration is whether the said material on which Modavt credit is claimed by the assessee, not physically used in the manufacture of the said machine but used for testing the F&S machines would be covered within the sweep of the expressionor in relationto the manufacture of the finalas appearing in Rule 57A of the Rules. In short, the bone of contention is as to what meaning is to be assigned to the expressionrelation to the manufacture of final products.In our opinion, apart from the fact that the amended Rule itself contemplates that physical presence of the input, in respect of which Modvat credit is claimed, in the final product is not a pre-requisite for such a claim, even otherwise this issue is no longer res-integra. In Collector of Central Excise & Ors. Vs. Solaris Chemtech Ltd. & Ors. ((2007) 7 SCC 347 : 2007 (214) E.L.T. 481 (S.C.)), this Court while examining the scope and purport of the expressionor in relationto the manufacture of the finalobserved that these words have been used to widen and expand the scope, meaning and content of the expressionso as to attract goods which do not enter into finished goods.Thus, if a product is not saleable, it will not be marketable and consequently the process of manufacture would not be held to be complete and duty of excise would not be leviable on it. The corollary to the above is that till the time the step of manufacture continues, all the goods used in relation to it will be considered as inputs and thus, entitled to Modvat credit under Rule 57A of the Rules. In the present case, as aforesaid, each machine is tailor made according to the requirements of individual customers. If the results are not in conformity with the order, then the machine loses its marketability and is of no use to any other customer. Thus, the process of manufacture will not be said to be complete till the time the machines meet the contractual specifications and that will not be possible unless the machines are subjected to individual testing. Even though the revenue has alleged that the process of manufacture is complete as soon as the machine is assembled, yet it has not discharged the onus of proving the marketability of the machines thus assembled, prior to the stage of testing.our opinion the process of testing the customised F&S machines is inextricably connected with the manufacturing process, in as much as, until this process is carried out in terms of the afore-extracted covenant in the purchase order, the manufacturing process is not complete; the machines are not fit for sale and hence not marketable at the factory gate. We are, therefore, of the opinion that the manufacturing process in the present case gets completed on testing of the said machines and hence, the afore-stated goods viz. the flexible plastic films used for testing the F&S machines are inputs used in relationto the manufacture of the finalproduct and would be eligible for Modvat credit under Rule 57A of the | 1 | 5,459 | 695 | ### Instruction:
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Sarabhai Enterprises (P) Ltd. ((1989) 4 SCC 112 ) the finding in each case on the basis of the material before the Court was that the articles in question were not marketable and were not known to the market as such. The `marketability is thus essentially a question of fact to be decided on the facts of each case. There can be no generalisation. The fact that the goods are not in fact marketed is of no relevance.” 9. It may be noticed that in the cases referred to in the passage, quoted above, the reasons for holding the articles “not marketable” are different, however, they are not exhaustive. It is difficult to lay down a precise test to determine marketability of articles. Marketability of goods has certain attributes. The essence of marketability is neither in the form nor in the shape or condition in which the manufactured articles are to be found, it is the commercial identity of the articles known to the market for being bought and sold. The fact that the product in question is generally not being bought and sold or has no demand in the market would be irrelevant. The plastic body of EMR does not satisfy the aforementioned criteria. There are some competing manufacturers of EMR. Each is having a different plastic body to suit its design and requirement. If one goes to the market to purchase the plastic body of EMR of the respondents either for replacement or otherwise one cannot get it in the market because at present it is not a commercially known product. For these reasons, the plastic body, which is a part of EMR of the respondents, is not “goods” so as to be liable to duty as parts of EMR under para 5(f) of the said exemption notification.” (Emphasis supplied by us) 18. In Collector of Central Excise, Calcutta-II Vs. M/s Eastend Paper Industries Ltd. ((1989) 4 SCC 244 ), the assessee was manufacturing different kinds of paper. A question arose whether the wrapping paper manufactured and used for wrapping the finished product is a part of manufacture. It was held that wrapping of finished product by wrapping paper is process incidental and ancillary to completion of the manufactured product under Section 2 (f) of Act. Thus, the Court held that, anything required to make goods marketable, must form a part of manufacture and any raw material or any material used for same would be a component part of the final product. 19. In Dharampal Satyapal Vs. Commissioner of Central Excise, Delhi-I, New Delhi ((2005) 4 SCC 337 ), the term marketable has been held to mean saleable, as under: “18......Marketability is an attribute of manufacture. It is an essential criteria for charging duty. Identity of the product and marketability are the twin aspects to decide chargeability. Dutiability of the product depends on whether the product is known to the market. The test of marketability is that the product which is made liable to duty must be marketable in the condition in which it emerges. Marketable means saleable. The test of classification is, how are the goods known in the market. These tests have been laid down by this Court in a number of judgments including Moti Laminates (P). Ltd. v. CCE ((1995) 3 SCC 23 ), Union of India v. Delhi Cloth & General Mills Co. Ltd. ((1997) 5 SCC 767 ) and Cadila Laboratories (P) Ltd. v. CCE ((2003) 4 SCC 12 ).” 20. Thus, if a product is not saleable, it will not be marketable and consequently the process of manufacture would not be held to be complete and duty of excise would not be leviable on it. The corollary to the above is that till the time the step of manufacture continues, all the goods used in relation to it will be considered as inputs and thus, entitled to Modvat credit under Rule 57A of the Rules. In the present case, as aforesaid, each machine is tailor made according to the requirements of individual customers. If the results are not in conformity with the order, then the machine loses its marketability and is of no use to any other customer. Thus, the process of manufacture will not be said to be complete till the time the machines meet the contractual specifications and that will not be possible unless the machines are subjected to individual testing. Even though the revenue has alleged that the process of manufacture is complete as soon as the machine is assembled, yet it has not discharged the onus of proving the marketability of the machines thus assembled, prior to the stage of testing. Moreover, as has been held in the case of Hindustan Zinc Ltd. Vs. Commissioner of Central Excise, Jaipur ((2005) 2 SCC 662 ;), the burden of proving whether a particular product is marketable or not is on the department and in the absence of such proof it cannot be presumed to be marketable. In the absence of the revenue having adduced any such evidence or contorted the assessees claim that the machines cannot be sold unless testing is done with some alternative evidence as to their marketability, the stand of the revenue cannot be accepted. 21. Thus, in our opinion the process of testing the customised F&S machines is inextricably connected with the manufacturing process, in as much as, until this process is carried out in terms of the afore-extracted covenant in the purchase order, the manufacturing process is not complete; the machines are not fit for sale and hence not marketable at the factory gate. We are, therefore, of the opinion that the manufacturing process in the present case gets completed on testing of the said machines and hence, the afore-stated goods viz. the flexible plastic films used for testing the F&S machines are inputs used in relation to the manufacture of the final product and would be eligible for Modvat credit under Rule 57A of the Rules. 22. In view of the aforegoing discussion, the
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13. It is manifest that Rule 57A of the Rules entitled a manufacturer to take credit of the Central Excise duty paid on the inputs used inor in relationto the manufacture of the final product provided that the input and the finished product are excisable goods and fall under any of the specified chapters in the tariff schedule. It is pertinent to note that vide Notification No.28/95-C.E. (N.T.), dated 29th June 1995, the said Rule was amended and the phrasedirectly or indirectly and whether contained in the final product orwas inserted. There is no dispute that in the instant case, both the F&S machines and the flexible laminated plastic film and poly paper are excisable. Therefore, the short question for consideration is whether the said material on which Modavt credit is claimed by the assessee, not physically used in the manufacture of the said machine but used for testing the F&S machines would be covered within the sweep of the expressionor in relationto the manufacture of the finalas appearing in Rule 57A of the Rules. In short, the bone of contention is as to what meaning is to be assigned to the expressionrelation to the manufacture of final products.In our opinion, apart from the fact that the amended Rule itself contemplates that physical presence of the input, in respect of which Modvat credit is claimed, in the final product is not a pre-requisite for such a claim, even otherwise this issue is no longer res-integra. In Collector of Central Excise & Ors. Vs. Solaris Chemtech Ltd. & Ors. ((2007) 7 SCC 347 : 2007 (214) E.L.T. 481 (S.C.)), this Court while examining the scope and purport of the expressionor in relationto the manufacture of the finalobserved that these words have been used to widen and expand the scope, meaning and content of the expressionso as to attract goods which do not enter into finished goods.Thus, if a product is not saleable, it will not be marketable and consequently the process of manufacture would not be held to be complete and duty of excise would not be leviable on it. The corollary to the above is that till the time the step of manufacture continues, all the goods used in relation to it will be considered as inputs and thus, entitled to Modvat credit under Rule 57A of the Rules. In the present case, as aforesaid, each machine is tailor made according to the requirements of individual customers. If the results are not in conformity with the order, then the machine loses its marketability and is of no use to any other customer. Thus, the process of manufacture will not be said to be complete till the time the machines meet the contractual specifications and that will not be possible unless the machines are subjected to individual testing. Even though the revenue has alleged that the process of manufacture is complete as soon as the machine is assembled, yet it has not discharged the onus of proving the marketability of the machines thus assembled, prior to the stage of testing.our opinion the process of testing the customised F&S machines is inextricably connected with the manufacturing process, in as much as, until this process is carried out in terms of the afore-extracted covenant in the purchase order, the manufacturing process is not complete; the machines are not fit for sale and hence not marketable at the factory gate. We are, therefore, of the opinion that the manufacturing process in the present case gets completed on testing of the said machines and hence, the afore-stated goods viz. the flexible plastic films used for testing the F&S machines are inputs used in relationto the manufacture of the finalproduct and would be eligible for Modvat credit under Rule 57A of the
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ANGLO AMERICAN METALLURGICAL COAL PTY LTD Vs. MMTC LTD | ; Pure Helium India (P) Ltd. v. ONGC, (2003) 8 SCC 593 and D.D. Sharma v. Union of India, (2004) 5 SCC 325 ]. 17. 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. (pages 166-168) 46. Likewise, in Dyna Technologies Pvt. Ltd. v. Cromptom Greaves Ltd., 2019 SCC Online SC 1656, [Dyna Technologies], this Court held: 26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated. 27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act. 47. In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., (2019) 7 SCC 236 , after referring to the parameters of review in Associate Builders (supra) and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Courts judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Courts judgment was upheld. 48. In South East Asia Marine Engg. & Constructions Ltd. (SEAMEC LTD.) v. Oil India Ltd., (2020) 5 SCC 164, a three Judge Bench of this Court referred to the judgment of this Court in Dyna Technologies (supra) and found that the interpretation of the arbitral tribunal in expanding the meaning of clause 23 of the contract to include a change in rate of high-speed diesel, not being even a possible interpretation of the concerned contract, the High Court in setting aside the award, could not be said to be incorrect. Also, other contractual terms when seen together with this interpretation would also render such finding perverse. 49. In Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167 , this Court, after setting out the law stated in Associate Builders (supra) and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , applied the test of perversity and then concluded: 26. Even though the High Court in para 44 of the judgment referred to various judgments, including Western Geco [ONGC v. WesternGeco International Ltd., (2014) 9 SCC 263 ] [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in para 42.3 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 , paras 40 to 45], which was reiterated in para 40 of Ssangyong Engg. [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , para 19] judgment. 27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity. (pages 179-180) 50. All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders (supra) and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse. | 1[ds]16. Having heard the learned counsel appearing for the parties, there can be no doubt whatsoever that the Majority Award is a detailed award, which goes into the facts in great detail, outlines the issues to be answered, and then answers all the issues, with due regard to the oral and documentary evidence given in the case.17. The first and most important point, therefore, to be noted is that this is a case in which there is a finding of fact by the Majority Award that the Appellant was able to supply the contracted quantity of coal for the Fifth Delivery Period, at the contractual price, and that it was the Respondent who was unwilling to lift the coal, owing to a slump in the market, the Respondent being conscious of the fact that mere commercial difficulty in performing a contract would not amount to frustration of the contract. It was for this reason that the Respondent decided, as an afterthought, in reply to the Appellants legal notice dated 04.03.2010, to attack the Appellant on the ground that it was the Appellant that was unable to supply the contracted quantity in the Fifth Delivery Period. Once this becomes clear, it is obvious that the Majority Award, after reading the entire correspondence between the parties and examining the oral evidence, has come to a possible view, both on the Respondent being in breach, and on the quantum of damages.18. We may hasten to add that the entire approach of the Division Bench is flawed. First and foremost, to cherry-pick three emails out of the entire correspondence and to rest a judgment on those three emails alone, without having regard to the context of the LTA and the correspondence, both before and after those three emails, would render the judgment of the Division Bench fundamentally flawed. Further, the finding that there was no evidence that the Respondent demanded stems of coal at a reduced rate vis-à-vis the contractual rate, flies in the face of at least three different exchanges between the parties, being the Respondents letters dated 20.11.2008, 27.11.2009 and 03.12.2009.19. Equally, the finding of the Division Bench that no evidence had been led to show that the Appellant had availability of the balance quantity of 454,034 metric tonnes of coal to supply to the Respondent during the Fifth Delivery Period, again completely fails to appreciate Mr. Wilcoxs evidence given by way of an Additional Affidavit dated 03.09.2013 and in response to questions in cross-examination before the Arbitral Tribunal on 23.09.2013, together with two letters exchanged between the parties on 21.09.2009 and 25.09.2009. All of these aspects were considered in the Majority Award of the Arbitral Tribunal.20. The finding that there is no evidence to prove market price of coal at the time of breach, and that therefore, quantum of damages could not be fixed, again completely ignores Mr. Wilcoxs evidence in chief and cross examination; the Respondents letters dated 25.09.2009, 27.11.2009 and 03.12.2009; as also the Appellants re-negotiated contracts with SAIL/RINL. All these aspects have been considered by the Majority Award in great detail.21. However, Shri Rohatgi invited us to look at the unequivocal language contained in the three emails relied upon by the Division Bench, namely the emails dated 02.07.2007, 22.07.2009 and 07.09.2009, which stated that not only were no stems available for August/September 2009, but that also there was no coal left for the remainder of the year, making it clear that this was an admission on the part of the Appellant that it was unable to supply the contracted quantity of coal during the remainder of the Fifth Delivery Period. However, what is missed by Shri Rohatgi is the crucial fact that no price for the coal to be lifted was stated in any of the emails or letters exchanged during this period. This is in fact what the Majority Award adverts to and fills up by having recourse to the evidence given by Mr. Wilcox, stating that the ambiguity qua price was resolved by the fact that no coal was available for lifting at a price lower than the contractual price. The Majority Award found, relying upon Mr. Wilcoxs evidence, that the supplies that were sought to be made in August and September, 2009 were therefore, also in the nature of mixed supplies, i.e., coal at the contractual price, as well as coal at a much lower price. This is a finding of fact that cannot be characterised as perverse, as it is clear from the evidence led, the factual matrix of the setting of there being a slump in the market, in which the performance of the contract took place, as well as the ambiguity as to whether the correspondence referred to contractual price or mixed price, and thus, is a possible view to take.22. The Division Bench also relied upon Smt. Kamala Devi v. Takhatmal and Anr., (1964) 2 SCR 152 , [Smt. Kamala Devi] which in turn, relied upon section 94 of the Indian Evidence Act, 1872 [Evidence Act], by which the Division Bench concluded that it found no reason to look for the undisclosed intention of the parties, since the clear and express words contained in the three crucial emails were perfectly in accord with and applied squarely to the existing facts. Therefore, the ordinary meaning of what was stated in those emails must be accepted, without more, which led to the conclusion that the Appellant did not have any coal available till the end of the year (i.e., 2009) to supply to the Respondent.28. When sections 92, 94 and 95 of the Evidence Act are applied to a string of correspondence between parties, it is important to remember that each document must be taken to be part of a coherent whole, which happens only when the plain language of the document is first applied accurately to existing facts.31. The picture that emerges, therefore, is that a patent ambiguity provision, as contained in section 94 of the Evidence Act, is only applicable when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense. Given that, in the facts of the present case, there was no mention of the price at which coal was to be supplied in the three crucial emails, these emails must be read as part of the entirety of the correspondence between the parties, which would then make the so-called admissions in the aforementioned emails apply to existing facts. Once this is done, it is clear that there is no scope for the further application of the patent ambiguity principle contained in section 94 of the Evidence Act, to the facts of the present case.32. However, section 95 of the Evidence Act, dealing with latent ambiguity, when read with proviso (6) and illustration (f) to section 92 of the Evidence Act, could apply to the facts of the present case, as when the plain language of a document is otherwise unmeaning in reference to how particular words are used in a particular sense, given the entirety of the correspondence, evidence may be led to show the peculiar sense of such language. Thus, if this provision is applied, the Majority Award cannot be faulted as it has accepted the evidence given by Mr. Wilcox, wherein he explained that the three emails would only be meaningful if they were taken to refer to mixed supplies of coal, and not supplies of coal at the contractual price.33. A judgment of the Court of Appeal in Singapore, in Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd, [2008] SGCA 27, discussed section 96 of the Evidence Act of Singapore, which is the equivalent of section 94 of the Indian Evidence Act. The Singapore Court of Appeal, after setting out the section, held:77 … The somewhat narrow wording of s 96, which refers to the specific situation where the language in a document applies accurately to existing facts, is probably attributable to its provenance as a rule of interpretation pertaining to wills. This section should therefore not be read too restrictively. Like s 95 of the Evidence Act, s 96 should be viewed as prescribing a common-sense limit on the use of extrinsic evidence which has been admitted under proviso (f) to s 94. In Butterworths Annotated Statutes, it is stated (at p 275) that:The earlier section [ie, s. 95] and the present section [ie, s 96] lay down the outer limits of interpretation in the sense that they mark the place where the language used by the writer must prevail over any extrinsic evidence and the place where extrinsic evidence may prevail over the language. So just as where the language is patently ambiguous it cannot be cured by extrinsic evidence, so where the language used is plain on its face, it must be given effect to, although it can be shown that the writer has made a mistake.Similarly, in Woodroffe at p 3510, the explanation of s 94 of the Indian Act (which is in pari materia with s 96 of the Evidence Act) makes clear that:When a court is asked to interpret a document, it looks at its language. If the language is clear and unambiguous and applies accurately to existing facts, the court accepts the plain and ordinary meaning ... When it is said that a court should look into all the circumstances to find an authors intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. If, however, the words are clear in the context of the surrounding circumstances, the court cannot rely on them to attribute to the author an intention contrary to the plain meanings of the words used in the document.108 It is evident from the Court of Appeals reasoning in Sandar Aung [2007] 2 SLR 89 that in Singapore, the parol evidence rule (as statutorily embedded in s 94 of the Evidence Act) still operates as a restriction on the use of extrinsic material to affect a contract. However, extrinsic material is admissible for the purpose of interpreting the language of the contract. In this respect, Sandar Aung acknowledges that extrinsic material is admissible even if no ambiguity is present in the plain language of the contract. However, ambiguity still plays an important role, in that the court can only place on the relevant contractual word, phrase or term an interpretation which is different from that to be ascribed by its plain language if a consideration of the context of the contract leads to the conclusion that the word, phrase or term in question may take on two or more possible meanings, ie, if there is latent ambiguity. In Sandar Aung, after the Estimate was taken into account, the phrase all charges, expenses and liabilities incurred by and on behalf of the Patient could plausibly be taken to mean all charges, expenses and liabilities incurred by and on behalf of the Patient in respect of the envisaged angioplasty. Thus, the court had a legitimate basis to place a narrower interpretation on the contractual term (or, in more informal parlance, to read down that term) which would not otherwise have been warranted by its broad and general language. It may be possible to argue that what the court did in Sandar Aung in fact constituted variation of the relevant contractual terms in contravention of s 94 of the Evidence Act. This issue shall be addressed in greater detail at [122]–[123] below. It remains to be noted that proviso (f) to s 94 was not discussed in Sandar Aung. Thus, the issue of whether ambiguity was a prerequisite for the application of this proviso and its relationship with the common law contextual approach to contractual interpretation was left open.(B) THE PAROL EVIDENCE RULE111 As mentioned earlier, in Singapore, the parol evidence rule lives on in s 94 of the Evidence Act and has been applied assiduously by the courts in case law. The Singapore courts have always been mindful of the need for contractual certainty, especially in commercial agreements (such as the Policy in the present case). In Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR 927, the High Court emphasised that not only is sanctity of contract … vital to certainty and predictability in commercial transactions, but also:The perception of the importance of commercial certainty and predictability is deeply entrenched within the commercial legal landscape in general and in the individual psyches of commercial parties (and even non-commercial parties, for that matter) in particular.112 However, the parol evidence rule only operates where the contract was intended by the parties to contain all the terms of their agreement. Where the contractual terms are ambiguous on their face, it is likely that the contract does not contain all the terms intended by the parties. Furthermore, in order to ascertain whether the parties intended to embody their entire agreement in the contract, the court may take cognisance of extrinsic evidence or the surrounding circumstances of the contract.113 Assuming that the contract is one to which the parol evidence rule applies, no extrinsic evidence is admissible to contradict, vary, add to or subtract from its terms (see s 94 of the Evidence Act).Finally, in a synopsis at the end, the Court of Appeal held:132 To summarise, the approach adopted in Singapore to the admissibility of extrinsic evidence to affect written contracts is a pragmatic and principled one. The main features of this approach are as follows:(a) A court should take into account the essence and attributes of the document being examined. The courts treatment of extrinsic evidence at various stages of the analytical process may differ depending on the nature of the document. In general, the court ought to be more reluctant to allow extrinsic evidence to affect standard form contracts and commercial documents.(b) If the court is satisfied that the parties intended to embody their entire agreement in a written contract, no extrinsic evidence is admissible to contradict, vary, add to, or subtract from its terms (see ss 93–94 of the Evidence Act). In determining whether the parties so intended, our courts may look at extrinsic evidence and apply the normal objective test, subject to a rebuttable presumption that a contract which is complete on its face was intended to contain all the terms of the parties agreement. In other words, where a contract is complete on its face, the language of the contract constitutes prima facie proof of the parties intentions.(c) Extrinsic evidence is admissible under proviso (f) to s 94 to aid in the interpretation of the written words. Our courts now adopt, via this proviso, the modern contextual approach to interpretation, in line with the developments in England in this area of the law to date. Crucially, ambiguity is not a prerequisite for the admissibility of extrinsic evidence under proviso (f) to s 94.(d) The extrinsic evidence in question is admissible so long as it is relevant, reasonably available to all the contracting parties and relates to a clear or obvious context. However, the principle of objectively ascertaining contractual intention(s) remains paramount. Thus, the extrinsic evidence must always go towards proof of what the parties, from an objective viewpoint, ultimately agreed upon. Further, where extrinsic evidence in the form of prior negotiations and subsequent conduct is concerned, we find the views expressed in McMeels article and Nicholls article persuasive. For this reason, there should be no absolute or rigid prohibition against evidence of previous negotiations or subsequent conduct, although, in the normal case, such evidence is likely to be inadmissible for non-compliance with the requirements set out at [125] and [128]–[129] above. (We should add that the relevance of subsequent conduct remains a controversial and evolving topic that will require more extensive scrutiny by this court at a more appropriate juncture.) Declarations of subjective intent remain inadmissible except for the purpose of giving meaning to terms which have been determined to be latently ambiguous.(e) In some cases, the extrinsic evidence in question leads to possible alternative interpretations of the written words (ie, the court determines that latent ambiguity exists). A court may give effect to these alternative interpretations, always bearing in mind s 94 of the Evidence Act. In arriving at the ultimate interpretation of the words to be construed, the court may take into account subjective declarations of intent. Furthermore, the normal canons of interpretation apply in conjunction with the relevant provisions of the Evidence Act, ie, ss 95–100.(f) A court should always be careful to ensure that extrinsic evidence is used to explain and illuminate the written words, and not to contradict or vary them. Where the court concludes that the parties have used the wrong words, rectification may be a more appropriate remedy.34. The approach of the Singapore Court of Appeal has our broad approval, being in line with the modern contextual approach to the interpretation of contracts. When proviso (6) and illustration (f) to section 92, section 94 and section 95 of the Evidence Act are read together, the picture that emerges is that when there are a number of documents exchanged between the parties in the performance of a contract, all of them must be read as a connected whole, relating each particular document to existing facts, which include how particular words are used in a particular sense, given the entirety of correspondence between the parties. Thus, after the application of proviso (6) to section 92 of the Evidence Act, the adjudicating authority must be very careful when it applies provisions dealing with patent ambiguity, as it must first ascertain whether the plain language of a particular document applies accurately to existing facts. If, however, it is ambiguous or unmeaning in reference to existing facts, evidence may then be given to show that the words used in a particular document were used in a sense that would make the aforesaid words meaningful in the context of the entirety of the correspondence between the parties.35. This approach is also reflected in a recent judgment of this Court in Transmission Corpn. of Andhra Pradesh Ltd. v. GMR Vemagiri Power Generation Ltd., (2018) 3 SCC 716 , as follows:21. In the event of any ambiguity arising, the terms of the contract will have to be interpreted by taking into consideration all surrounding facts and circumstances, including correspondence exchanged, to arrive at the real intendment of the parties, and not what one of the parties may contend subsequently to have been the intendment or to say as included afterwards, as observed in Bank of India v. K. Mohandas [Bank of India v. K. Mohandas, (2009) 5 SCC 313 ] : (SCC p. 328, para 28)28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties.36. The Division Benchs reliance upon Smt. Kamala Devi (supra) to set aside the Majority Award is wholly misplaced. The ratio in Smt. Kamala Devi (supra) is contained in the words:… Sometimes when it is said that a Court should look into all the circumstances to find an authors intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document…37. So read, the judgment in Smt. Kamala Devi (supra) accords with what has been held hereinabove. It is clear that the three critical emails have to be read in the surrounding circumstances of the entirety of the LTA and the correspondence which ensued between the parties. Once that exercise is undertaken, as was undertaken by the Majority Award, it is impossible to hold that the Majority Award is not a possible view on the facts of this case. The reliance of the Majority Award upon the correspondence between the parties pre-July and in September to December 2009, buttressed by Mr. Wilcoxs evidence, cannot therefore be said to be flawed.38. Shri Rohatgis argument in support of the impugned judgment of the Division Bench that there is no evidence to demonstrate proof of damage suffered as on the date of breach, is also factually incorrect. It is well established that the arbitral tribunal is the final judge of the quality, as well as the quantity of evidence before it (see Sudarsan Trading Co. v. Govt. of Kerala, (1989) 2 SCC 38 at page 53). As was correctly pointed out by Shri Sibal, the Majority Award has taken into account Mr. Wilcoxs Affidavit dated 10.07.2013 and Additional Affidavit dated 03.09.2013 detailing the prices at which sales of coal were made to Chinese purchasers during the Fifth Delivery Period, which ended on 30.09.2009, being the date of breach as found by the Majority Award. In addition, contemporaneous correspondence, including letters dated 27.11.2009 and 03.12.2009 were also relied upon to show that the Respondent was itself seeking coal at roughly the price of $128 per metric tonne, at around the same time. Hence, the difference between the contractual price and market price was arrived at as $173.383 per metric tonne, in accordance with the law laid down by this Court in Murlidhar Chiranjilal v. Harishchandra Dwarkadas and Anr., (1962) 1 SCR 653 , as follows:We may in this connection refer to the following observations in Chao v. British Traders and Shippers Ltd. [(1954) 1 All ER 779, 797] which are apposite to the facts of the present case:It is true that the defendants knew that the plaintiffs were merchants and, therefore, had bought for re-sale, but every one who sells to a merchant knows that he has bought for re-sale, and it does not, as I understand it, make any difference to the ordinary measure of damages where there is a market. What is contemplated is that the merchant buys for res-ale, but, if the goods are not delivered to him, he will go out into the market and buy similar goods and honour his contract in that way. If the market has fallen he has not suffered any damage, if the market has risen the measure of damages is the difference in the market price.In these circumstances this is not a case where it can be said that the parties when they made the contract knew that the likely result of breach would be that the buyer would not be able to make profit in Calcutta. This is a simple case of purchase of goods for re-sale anywhere and therefore the measure of damages has to be calculated as they would naturally arise in the usual course of things from such breach. That means that the respondent had to prove the market rate at Kanpur on the date of breach for similar goods and that would fix the amount of damages, in case that rate had gone above the contract rate on the date of breach. We are therefore of opinion that this is not a case of the special type to which the words which the parties knew, when they made the contract, to be likely to result from the breach of it appearing in s. 73 of the Contract Act apply. This is an ordinary case of contract between traders which is covered by the words which naturally arose in the usual course of things from such breach appearing in s. 73. As the respondent had failed to prove the rate for similar canvas in Kanpur on the date of breach it is not entitled to any damages in the circumstances.39. The Single Judge correctly appreciated this part of the case when he stated as follows:86. MMTCs submission is belied by what it has itself stated in the correspondence exchanged with Anglo. In its letter dated 25th September, 2009, MMTC describes USD 128 as the 2009 rate. In its letter dated 27th November, 2009 it refers to the 2009 price level of US$ 128/125 PMT. In its letter dated 3rd December, 2009 MMTC referred to coal being purchased at current price of US$ 128.25 PMT. Further the re-negotiated contracts with SAIL and RINL acknowledge the slump in coal prices to USD 128 during the period from April, 2009 to March 2010. The date of 30th September, 2009 fell between the said dates and was the date to be reckoned for determining the prevalent market price.87. The majority Award has based its conclusion as regards the prevalent market price of coal as on 30th September, 2009 on the basis of the above evidence. It was a view that was possible to be taken on the evidence made available to the AT. The Court is not persuaded to hold the said finding to be perverse or patently illegal.40. This being the case, it is not possible to accept Shri Rohatgis argument that the letters dated 27.11.2009 or 03.12.2009 do not reflect the market price of coal as on the date of breach or that the market price of coal cannot be established from the special long-term contracts operating at around the same time as the date of breach. This argument must therefore be rejected.41. The present case is that of an international commercial arbitration, the Majority Award being delivered in New Delhi on 12.05.2014. Resultantly, this case has been argued on the basis of the law as it stood before the Arbitration and Conciliation (Amendment) Act, 2015 [Amendment] added two explanations to section 34(1) and sub-section (2A) to section 34 of the Arbitration Act, in which it was made clear that the ground of patent illegality appearing on the face of the award is not a ground which could be taken to challenge an international commercial award made in India after 23.10.2015, when the Amendment was brought into force. We, therefore, proceed to consider this case on the pre-existing law, which is contained in the seminal decision of Associate Builders (supra).42. The judgment in Associate Builders (supra) examined each of the heads set out in Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, together with the addition of the fourth head of patent illegality laid down in ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705. Since we are concerned with the perversity principle, the relevant paragraphs of this judgment are set out as follows:29. It is clear that the juristic principle of a judicial approach demands that a decision be fair, reasonable and objective. On the obverse side, anything arbitrary and whimsical would obviously not be a determination which would either be fair, reasonable or objective.31. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where:(i) a finding is based on no evidence, or(ii) an Arbitral Tribunal takes into account something irrelevant to the decision which it arrives at; or(iii) ignores vital evidence in arriving at its decision,such decision would necessarily be perverse.32. A good working test of perversity is contained in two judgments. In Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312], it was held: (SCC p. 317, para 7)7. … It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10] , it was held: (SCC p. 14, para 10)10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.33. It must clearly be understood that when a court is applying the public policy test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts. In P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H. Securities (P) Ltd. [(2012) 1 SCC 594] , this Court held: (SCC pp. 601-02, para 21)21. A court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or reappreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. The Arbitral Tribunal has examined the facts and held that both the second respondent and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye-law 248, in a claim against a non-member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the appellant did the transaction in the name of the second respondent and is therefore, liable along with the second respondent. Therefore, in the absence of any ground under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.34. It is with this very important caveat that the two fundamental principles which form part of the fundamental policy of Indian law (that the arbitrator must have a judicial approach and that he must not act perversely) are to be understood. (pages 75-77)42. In the 1996 Act, this principle is substituted by the patent illegality principle which, in turn, contains three subheads:42.1. (a) A contravention of the substantive law of India would result in the death knell of an arbitral award. This must be understood in the sense that such illegality must go to the root of the matter and cannot be of a trivial nature. This again is really a contravention of Section 28(1) (a) of the Act, which reads as under:28. Rules applicable to substance of dispute.—(1) Where the place of arbitration is situated in India—(a) in an arbitration other than an international commercial arbitration, the Arbitral Tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;42.2. (b) A contravention of the Arbitration Act itself would be regarded as a patent illegality — for example if an arbitrator gives no reasons for an award in contravention of Section 31(3) of the Act, such award will be liable to be set aside.42.3. (c) Equally, the third subhead of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under:28. Rules applicable to substance of dispute.(3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair- minded or reasonable person could do. (page 81)43. This judgment has been consistently followed in a plethora of subsequent judgments, including:a. National Highways Authority of India v. ITD Cementation India Ltd., (2015) 14 SCC 21 at paragraph 24 (page 38);b. Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228 at paragraph 45 (page 252);c. Venture Global Engg. LLC v. Tech Mahindra Ltd., (2018) 1 SCC 656 at paragraph 85 (page 687);d. Sutlej Construction Ltd. v. State (UT of Chandigarh), (2018) 1 SCC 718 at paragraph 11 (page 722);e. Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd., (2018) 3 SCC 133 at paragraph 51 (page 169);f. HRD Corpn. v. GAIL (India) Ltd., (2018) 12 SCC 471 at paragraphs 18-19 (page 493);g. M.P. Power Generation Co. Ltd. v. ANSALDO Energia SpA, (2018) 16 SCC 661 at paragraph 25 (page 679);h. Shriram EPC Ltd. v. Rioglass Solar Sa, (2018) 18 SCC 313 at paragraph 34 (page 328);i. State of Jharkhand v. HSS Integrated Sdn, (2019) 9 SCC 798 at paragraph 7 (page 804); andj. Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 at paragraphs 20, 34-36 (pages 154, 169-170).44. Given the parameters of judicial review laid down in Associate Builders (supra), it is obvious that neither the ground of fundamental policy of Indian law, nor the ground of patent illegality, have been made out in the facts of this case, given the fact that the Majority Award is certainly a possible view based on the oral and documentary evidence led in the case, which cannot be characterized as being either perverse or being based on no evidence.47. In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., (2019) 7 SCC 236 , after referring to the parameters of review in Associate Builders (supra) and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Courts judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Courts judgment was upheld.49. In Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167 , this Court, after setting out the law stated in Associate Builders (supra) and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , applied the test of perversity and then concluded:26. Even though the High Court in para 44 of the judgment referred to various judgments, including Western Geco [ONGC v. WesternGeco International Ltd., (2014) 9 SCC 263 ] [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in para 42.3 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 , paras 40 to 45], which was reiterated in para 40 of Ssangyong Engg. [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , para 19] judgment.27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity.50. All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders (supra) and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse. | 1 | 21,632 | 7,128 | ### 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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; Pure Helium India (P) Ltd. v. ONGC, (2003) 8 SCC 593 and D.D. Sharma v. Union of India, (2004) 5 SCC 325 ]. 17. 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. (pages 166-168) 46. Likewise, in Dyna Technologies Pvt. Ltd. v. Cromptom Greaves Ltd., 2019 SCC Online SC 1656, [Dyna Technologies], this Court held: 26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated. 27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act. 47. In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., (2019) 7 SCC 236 , after referring to the parameters of review in Associate Builders (supra) and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Courts judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Courts judgment was upheld. 48. In South East Asia Marine Engg. & Constructions Ltd. (SEAMEC LTD.) v. Oil India Ltd., (2020) 5 SCC 164, a three Judge Bench of this Court referred to the judgment of this Court in Dyna Technologies (supra) and found that the interpretation of the arbitral tribunal in expanding the meaning of clause 23 of the contract to include a change in rate of high-speed diesel, not being even a possible interpretation of the concerned contract, the High Court in setting aside the award, could not be said to be incorrect. Also, other contractual terms when seen together with this interpretation would also render such finding perverse. 49. In Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167 , this Court, after setting out the law stated in Associate Builders (supra) and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , applied the test of perversity and then concluded: 26. Even though the High Court in para 44 of the judgment referred to various judgments, including Western Geco [ONGC v. WesternGeco International Ltd., (2014) 9 SCC 263 ] [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in para 42.3 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 , paras 40 to 45], which was reiterated in para 40 of Ssangyong Engg. [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , para 19] judgment. 27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity. (pages 179-180) 50. All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders (supra) and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse.
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India;42.2. (b) A contravention of the Arbitration Act itself would be regarded as a patent illegality — for example if an arbitrator gives no reasons for an award in contravention of Section 31(3) of the Act, such award will be liable to be set aside.42.3. (c) Equally, the third subhead of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under:28. Rules applicable to substance of dispute.(3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair- minded or reasonable person could do. (page 81)43. This judgment has been consistently followed in a plethora of subsequent judgments, including:a. National Highways Authority of India v. ITD Cementation India Ltd., (2015) 14 SCC 21 at paragraph 24 (page 38);b. Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228 at paragraph 45 (page 252);c. Venture Global Engg. LLC v. Tech Mahindra Ltd., (2018) 1 SCC 656 at paragraph 85 (page 687);d. Sutlej Construction Ltd. v. State (UT of Chandigarh), (2018) 1 SCC 718 at paragraph 11 (page 722);e. Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd., (2018) 3 SCC 133 at paragraph 51 (page 169);f. HRD Corpn. v. GAIL (India) Ltd., (2018) 12 SCC 471 at paragraphs 18-19 (page 493);g. M.P. Power Generation Co. Ltd. v. ANSALDO Energia SpA, (2018) 16 SCC 661 at paragraph 25 (page 679);h. Shriram EPC Ltd. v. Rioglass Solar Sa, (2018) 18 SCC 313 at paragraph 34 (page 328);i. State of Jharkhand v. HSS Integrated Sdn, (2019) 9 SCC 798 at paragraph 7 (page 804); andj. Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 at paragraphs 20, 34-36 (pages 154, 169-170).44. Given the parameters of judicial review laid down in Associate Builders (supra), it is obvious that neither the ground of fundamental policy of Indian law, nor the ground of patent illegality, have been made out in the facts of this case, given the fact that the Majority Award is certainly a possible view based on the oral and documentary evidence led in the case, which cannot be characterized as being either perverse or being based on no evidence.47. In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., (2019) 7 SCC 236 , after referring to the parameters of review in Associate Builders (supra) and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Courts judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Courts judgment was upheld.49. In Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167 , this Court, after setting out the law stated in Associate Builders (supra) and Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , applied the test of perversity and then concluded:26. Even though the High Court in para 44 of the judgment referred to various judgments, including Western Geco [ONGC v. WesternGeco International Ltd., (2014) 9 SCC 263 ] [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in para 42.3 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 , paras 40 to 45], which was reiterated in para 40 of Ssangyong Engg. [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 , para 19] judgment.27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity.50. All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders (supra) and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse.
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Smt. Srilekha Banerjee And Others Vs. Commissioner Of Income-Tax, Bihar And Orissa | amount of the notes. No doubt, this Court, in referring to that case, summarised the reasons, but it pointed out that it was not open to the Tribunal to make a guess as to the number of high denomination notes which could be accepted, and cited the Allahabad case and some others in that connection.13. It seems to us that the correct approach to questions of this kind is this, If there is an entry in the account books of the assessee which shows the receipt or a sum of conversion of high denomination notes tendered for conversion by the assessee himself, it is necessary for the assessee to establish, if asked, what the source of that money is and to prove that it does not bear the nature of income. The Department is not at this stage required to prove anything. It can ask the assessee to bring any books of account or other documents or evidence pertinent to the explanation if one is furnished, and examine the evidence and the explanation. If the explanation shows that the receipt was not of an income nature, the Department cannot act unreasonably and reject that explanation to hold that it was income. If, however, the explanation is unconvincing and one which deserves to be rejected, the Department can reject it and draw the inference that the amount represents income either from the sources already disclosed by the assessee or from some undisclosed source. The Department does not then proceed on no evidence, because the fact that there was receipt of money, is itself evidence against the assessee. There is thus prima facie evidence against the assessee which he fails to rebut, and being unrebutted, that evidence can be used against him by holding that it was a receipt of an income nature. The very word "an undisclosed source show that the disclosure must come from the assessee and not from the Department. In cases of high denomination notes, where the business and the state of accounts and dealings of the assessee justify a reasonable inference that he might have for convenience kept the whole or a part of a particular sum in high denomination notes, the assessee prima facie discharges his initial burden when he proves the balance and that it might reasonably have been kept in high denomination notes. Before the Department rejects such evidence, it must either show an inherent weakness in the explanation or rebut it by putting to the assessee some information or evidence which it has in its possession. The Department cannot by merely rejecting unreasonably a good explanation, convert good proof into no proof. It is within the range of these principles that such cases have to be decided.We do not think that the Allahabad view puts no burden upon the assessee and throws the entire burden on the Department. The case itself does not bear this out. If it does, them, it is not the right view.14. In the present case, the assessee claimed that the high denomination notes were a part of the cash balance at the head office.The Income-tax Officer found that at first the cash on hand was said to be Rs. 1,62,022, but on scrutiny, it was found to be wrong. Indeed, the assessee himself corrected it before the Appellate Assistant Commissioner and stated there that the balance was Rs. 1,21,875. Ordinarily, this would have prima facie proved that the assessee might have kept a portion of this balance in high denomination notes. But the assessee failed to prove this balance, as books of the assessee did not contain entries in respect of banks. Though cash used to be received from banks and sent to the various places where works were carried on and vice versa, no central account of such transfers was disclosed. There was also no account of personal expenses of the assessee and he had failed to prove why such large sums were kept on hand in one place when at each of the places where work was carried on, there were banks with which he had accounts. The Appellate Assistant Commissioner also went into the question and found that on the same day when the high denomination notes were encashed, a sum of Rs. 45,000was drawn by cheque. The next remittance immediately afterwards was of Rs. 16,000 to Bakaro, but Rs. 17,000 were withdrawn a few days before to meet this expense. A withdrawal of Rs. 8,000was made a day later and Rs. 20,000 were withdrawn ten days later to finance the business. It appears that the money on hand (RS. 45,000) was not touched at all, but on January 30, 1946, a further sum of Rs. 6,005 was withdrawn and not utilized, which made up the sum of Rs. 51,000 for which the high denomination notes were encashed.15.On these facts, the Tribunal came to the conclusion that the High Court denomination notes represented not the cash balance but some other money which remained unexplained, and the Tribunal treated it as income from some undisclosed source. The High Court held on the above facts and circumstances that there were materials to show that Rs. 51,000 did not form part of the cash balance, and the source of money not having been satisfactorily proved, the Department was justified in holding it to be assessable income of the assessee from some undisclosed source. In this conclusion, the High Court was justified, regard being had to the principles we have explained above.16. The argument that as this was a case under S. 34 of the Income-tax Act, it cast a special burden on the Department to show that this income had escaped earlier, need not detain us. No doubt, proceedings under S. 34 can only be commenced under the conditions prescribed in the section, but when the proceedings are validly commenced, there is no difference between an ordinary assessment and an additional assessment under S. 34, and the same rule as to burden of proof governs the additional assessment. | 0[ds]14. In the present case, the assessee claimed that the high denomination notes were a part of the cash balance at the head office.The Income-tax Officer found that at first the cash on hand was said to be Rs. 1,62,022, but on scrutiny, it was found to be wrong. Indeed, the assessee himself corrected it before the Appellate Assistant Commissioner and stated there that the balance was Rs. 1,21,875. Ordinarily, this would have prima facie proved that the assessee might have kept a portion of this balance in high denomination notes. But the assessee failed to prove this balance, as books of the assessee did not contain entries in respect of banks. Though cash used to be received from banks and sent to the various places where works were carried on and vice versa, no central account of such transfers was disclosed. There was also no account of personal expenses of the assessee and he had failed to prove why such large sums were kept on hand in one place when at each of the places where work was carried on, there were banks with which he had accounts. The Appellate Assistant Commissioner also went into the question and found that on the same day when the high denomination notes were encashed, a sum of Rs. 45,000was drawn by cheque. The next remittance immediately afterwards was of Rs. 16,000 to Bakaro, but Rs. 17,000 were withdrawn a few days before to meet this expense. A withdrawal of Rs. 8,000was made a day later and Rs. 20,000 were withdrawn ten days later to finance the business. It appears that the money on hand (RS. 45,000) was not touched at all, but on January 30, 1946, a further sum of Rs. 6,005 was withdrawn and not utilized, which made up the sum of Rs. 51,000 for which the high denomination notes were encashed.15.On these facts, the Tribunal came to the conclusion that the High Court denomination notes represented not the cash balance but some other money which remained unexplained, and the Tribunal treated it as income from some undisclosed source. The High Court held on the above facts and circumstances that there were materials to show that Rs. 51,000 did not form part of the cash balance, and the source of money not having been satisfactorily proved, the Department was justified in holding it to be assessable income of the assessee from some undisclosed source. In this conclusion, the High Court was justified, regard being had to the principles we have explained above.16. The argument that as this was a case under S. 34 of the Income-tax Act, it cast a special burden on the Department to show that this income had escaped earlier, need not detain us. No doubt, proceedings under S. 34 can only be commenced under the conditions prescribed in the section, but when the proceedings are validly commenced, there is no difference between an ordinary assessment and an additional assessment under S. 34, and the same rule as to burden of proof governs the additional assessment. | 0 | 4,523 | 566 | ### 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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amount of the notes. No doubt, this Court, in referring to that case, summarised the reasons, but it pointed out that it was not open to the Tribunal to make a guess as to the number of high denomination notes which could be accepted, and cited the Allahabad case and some others in that connection.13. It seems to us that the correct approach to questions of this kind is this, If there is an entry in the account books of the assessee which shows the receipt or a sum of conversion of high denomination notes tendered for conversion by the assessee himself, it is necessary for the assessee to establish, if asked, what the source of that money is and to prove that it does not bear the nature of income. The Department is not at this stage required to prove anything. It can ask the assessee to bring any books of account or other documents or evidence pertinent to the explanation if one is furnished, and examine the evidence and the explanation. If the explanation shows that the receipt was not of an income nature, the Department cannot act unreasonably and reject that explanation to hold that it was income. If, however, the explanation is unconvincing and one which deserves to be rejected, the Department can reject it and draw the inference that the amount represents income either from the sources already disclosed by the assessee or from some undisclosed source. The Department does not then proceed on no evidence, because the fact that there was receipt of money, is itself evidence against the assessee. There is thus prima facie evidence against the assessee which he fails to rebut, and being unrebutted, that evidence can be used against him by holding that it was a receipt of an income nature. The very word "an undisclosed source show that the disclosure must come from the assessee and not from the Department. In cases of high denomination notes, where the business and the state of accounts and dealings of the assessee justify a reasonable inference that he might have for convenience kept the whole or a part of a particular sum in high denomination notes, the assessee prima facie discharges his initial burden when he proves the balance and that it might reasonably have been kept in high denomination notes. Before the Department rejects such evidence, it must either show an inherent weakness in the explanation or rebut it by putting to the assessee some information or evidence which it has in its possession. The Department cannot by merely rejecting unreasonably a good explanation, convert good proof into no proof. It is within the range of these principles that such cases have to be decided.We do not think that the Allahabad view puts no burden upon the assessee and throws the entire burden on the Department. The case itself does not bear this out. If it does, them, it is not the right view.14. In the present case, the assessee claimed that the high denomination notes were a part of the cash balance at the head office.The Income-tax Officer found that at first the cash on hand was said to be Rs. 1,62,022, but on scrutiny, it was found to be wrong. Indeed, the assessee himself corrected it before the Appellate Assistant Commissioner and stated there that the balance was Rs. 1,21,875. Ordinarily, this would have prima facie proved that the assessee might have kept a portion of this balance in high denomination notes. But the assessee failed to prove this balance, as books of the assessee did not contain entries in respect of banks. Though cash used to be received from banks and sent to the various places where works were carried on and vice versa, no central account of such transfers was disclosed. There was also no account of personal expenses of the assessee and he had failed to prove why such large sums were kept on hand in one place when at each of the places where work was carried on, there were banks with which he had accounts. The Appellate Assistant Commissioner also went into the question and found that on the same day when the high denomination notes were encashed, a sum of Rs. 45,000was drawn by cheque. The next remittance immediately afterwards was of Rs. 16,000 to Bakaro, but Rs. 17,000 were withdrawn a few days before to meet this expense. A withdrawal of Rs. 8,000was made a day later and Rs. 20,000 were withdrawn ten days later to finance the business. It appears that the money on hand (RS. 45,000) was not touched at all, but on January 30, 1946, a further sum of Rs. 6,005 was withdrawn and not utilized, which made up the sum of Rs. 51,000 for which the high denomination notes were encashed.15.On these facts, the Tribunal came to the conclusion that the High Court denomination notes represented not the cash balance but some other money which remained unexplained, and the Tribunal treated it as income from some undisclosed source. The High Court held on the above facts and circumstances that there were materials to show that Rs. 51,000 did not form part of the cash balance, and the source of money not having been satisfactorily proved, the Department was justified in holding it to be assessable income of the assessee from some undisclosed source. In this conclusion, the High Court was justified, regard being had to the principles we have explained above.16. The argument that as this was a case under S. 34 of the Income-tax Act, it cast a special burden on the Department to show that this income had escaped earlier, need not detain us. No doubt, proceedings under S. 34 can only be commenced under the conditions prescribed in the section, but when the proceedings are validly commenced, there is no difference between an ordinary assessment and an additional assessment under S. 34, and the same rule as to burden of proof governs the additional assessment.
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14. In the present case, the assessee claimed that the high denomination notes were a part of the cash balance at the head office.The Income-tax Officer found that at first the cash on hand was said to be Rs. 1,62,022, but on scrutiny, it was found to be wrong. Indeed, the assessee himself corrected it before the Appellate Assistant Commissioner and stated there that the balance was Rs. 1,21,875. Ordinarily, this would have prima facie proved that the assessee might have kept a portion of this balance in high denomination notes. But the assessee failed to prove this balance, as books of the assessee did not contain entries in respect of banks. Though cash used to be received from banks and sent to the various places where works were carried on and vice versa, no central account of such transfers was disclosed. There was also no account of personal expenses of the assessee and he had failed to prove why such large sums were kept on hand in one place when at each of the places where work was carried on, there were banks with which he had accounts. The Appellate Assistant Commissioner also went into the question and found that on the same day when the high denomination notes were encashed, a sum of Rs. 45,000was drawn by cheque. The next remittance immediately afterwards was of Rs. 16,000 to Bakaro, but Rs. 17,000 were withdrawn a few days before to meet this expense. A withdrawal of Rs. 8,000was made a day later and Rs. 20,000 were withdrawn ten days later to finance the business. It appears that the money on hand (RS. 45,000) was not touched at all, but on January 30, 1946, a further sum of Rs. 6,005 was withdrawn and not utilized, which made up the sum of Rs. 51,000 for which the high denomination notes were encashed.15.On these facts, the Tribunal came to the conclusion that the High Court denomination notes represented not the cash balance but some other money which remained unexplained, and the Tribunal treated it as income from some undisclosed source. The High Court held on the above facts and circumstances that there were materials to show that Rs. 51,000 did not form part of the cash balance, and the source of money not having been satisfactorily proved, the Department was justified in holding it to be assessable income of the assessee from some undisclosed source. In this conclusion, the High Court was justified, regard being had to the principles we have explained above.16. The argument that as this was a case under S. 34 of the Income-tax Act, it cast a special burden on the Department to show that this income had escaped earlier, need not detain us. No doubt, proceedings under S. 34 can only be commenced under the conditions prescribed in the section, but when the proceedings are validly commenced, there is no difference between an ordinary assessment and an additional assessment under S. 34, and the same rule as to burden of proof governs the additional assessment.
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Polychem Limited and Another Vs. State of Maharashtra and Others | this supervision charges are collected in advance at the beginning of every quarter. The question for consideration is whether this collection of supervision charges in advance can be revised as a consequence of revision of salaries to Government servants. While upholding such revision and collection of differential supervision charges retrospectively, the learned judges in the judgment under appeal he ld that the liability to pay supervision charges and the quantification of the same are two different concepts and, therefore, the liability was not imposed with retrospective effect, but merely rates are revised with retrospective effect. The Division Bench for coming to the above conclusion placed reliance on a single Judges judgment in Writ Petition No. 631/82. As a matter or fact, we find that the judgment of the learned Single judge in Writ Petition No. 631/82 was expressly overruled by an earlier Division Bench of the Bombay High Court on 1.8.89 in M/s J.E. Bilmorias case (supra). We presume that this Division Bench judgment was not brought to the notice of the latter Division Bench, otherwise they would not have taken diametrically opposite view without referring the issue to a larger Bench. We further notice that the judgment in M/s J.E. Bilmorias case was not challenged by the Revenue as per the information passed on by Mr. Nargolkar, learned counsel for the respondents.In M/s J.E. Bilmorias case, the reasonings of the Division Bench to hold that the demand of differential supervision charges retrospectively was without jurisdiction, are in the following words:- "We have already pointed out above the provisions of Section 58-A of the Bombay Prohibition Act the relevant rules and the conditions of licence, which bear upon the question of supervision charges. If in pursuance of the provisions of Section 58-A of the Bombay Prohibition Act, the rules and the conditions of licence, advance payment of the supervision charges had to be made at the beginning of every quarter and without payment of those charges, the articles could be removed from the bonded warehouse for sale evidently the duty of the licensee, who stores articles in the bonded warehouse, would be only to pay the amount which has been ascertained and had to be paid in advance. Neither of these provisions clothes the State Government or the commissioner with the authority to charge the supervision charges with retrospective effect. Obviously, when section 58-A uses the words "the cost of such staff shall be paid to the State Government", that would have reference to the cost of the staff as obtaining for the period during which the goods are stored in the bonded warehouse and not the incidence which the State would have to bear by reason of such a remote circumstance as the upward revision of the pay-scales of its own employees at & latter date." ................................... ................................... 6. We must bear in mind the nature of excise duty as indicated in M/s Mc Dowell &Co. s case, A.I.R. 197 7 S.C. 1459 (supra) that it is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, ultimate incidence will always to be on the customer. By attempting to pass on the incidence of upward revision of pay-scales to the licensees, several years after the removal of the articles from the bonded warehouse, the respondents would make it impossible for the petitioners to pass on the cost of storing the articles in the bonded warehouse to the ultimate consumer, and this clearly the respondents cannot be permitted to do, because such a situation had never been anticipated by the petitioners, and by the unilateral action of the respondents, no additional liability can be imposed on the petitioners.As observed in (Income Tax Officer V. I.M.C. Ponnoose), it is open to a sovereign legislature to enact laws which have retrospective operation. Even when the parliament enacts retrospective laws such laws are no doubt prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transaction s carried on upon the faith of the then existing law. The Courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication, it appears that such was the intention of the legislature. Here, it does not appear to us that Section 58-A of the Bombay prohibition Act permitted the Government retrospectively to raise the quantum of costs, nor is there any warrant to infer that there was delegation to the rule making authority to charge the amount of costs on the basis of the events which could not have been anticipated at the time the costs were assessed. 7. After describing in detail how the petitioners order their affairs, the petitioners have stated in ground No. (vi) of para 2 of the petition that on a rational interpretation of the relevant conditions and provisions, the petitioners were entitled to know in advance the costs payable by them so as to enable them to fix the price of goods, and the respondents, having acted in the manner and permitted to the petitioners to sell the goods on the effective representation that the cost of supervision charges for incoming quarter was fixed for the said quarter, cannot now be permitted to go back on their said representation and demand additional amount, more so with retrospective effect from 5.5.1970."On a scrutiny of these two Division Bench judgments, the view taken in M/s J.E. Bilmorias case commends to us and we are of the view that the reasonings given therein are well-founded. We are, therefore, of the view that the impugned demand of differential supervision charges retrospectively cannot be sustained and accordingly the judgment under appeal is set aside and the Writ Petition No. 1672/83 filed by the company stands allowed. The question posed at the beginning is answered in the negative. 8. | 1[ds]Section 58-A of the Bombay Prohibition Act,1949 enables the Statement Government to levy and collect what is called supervision charges. It is common ground that this supervision charges are collected in advance at the beginning of every quarter. The question for consideration is whether this collection of supervision charges in advance can be revised as a consequence of revision of salaries to Government servants. While upholding such revision and collection of differential supervision charges retrospectively, the learned judges in the judgment under appeal he ld that the liability to pay supervision charges and the quantification of the same are two different concepts and, therefore, the liability was not imposed with retrospective effect, but merely rates are revised with retrospective effect. The Division Bench for coming to the above conclusion placed reliance on a single Judges judgment in Writ Petition No. 631/82. As a matter or fact, we find that the judgment of the learned Single judge in Writ Petition No. 631/82 was expressly overruled by an earlier Division Bench of the Bombay High Court on 1.8.89 in M/s J.E. Bilmorias case (supra). We presume that this Division Bench judgment was not brought to the notice of the latter Division Bench, otherwise they would not have taken diametrically opposite view without referring the issue to a larger Bench. We further notice that the judgment in M/s J.E. Bilmorias case was not challenged by the Revenue as per the information passed on by Mr. Nargolkar, learned counsel for thedescribing in detail how the petitioners order their affairs, the petitioners have stated in ground No. (vi) of para 2 of the petition that on a rational interpretation of the relevant conditions and provisions, the petitioners were entitled to know in advance the costs payable by them so as to enable them to fix the price of goods, and the respondents, having acted in the manner and permitted to the petitioners to sell the goods on the effective representation that the cost of supervision charges for incoming quarter was fixed for the said quarter, cannot now be permitted to go back on their said representation and demand additional amount, more so with retrospective effect from 5.5.1970."On a scrutiny of these two Division Bench judgments, the view taken in M/s J.E. Bilmorias case commends to us and we are of the view that the reasonings given therein are well-founded. We are, therefore, of the view that the impugned demand of differential supervision charges retrospectively cannot be sustained and accordingly the judgment under appeal is set aside and the Writ Petition No. 1672/83 filed by the company stands allowed. The question posed at the beginning is answered in the negative. | 1 | 1,704 | 490 | ### Instruction:
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this supervision charges are collected in advance at the beginning of every quarter. The question for consideration is whether this collection of supervision charges in advance can be revised as a consequence of revision of salaries to Government servants. While upholding such revision and collection of differential supervision charges retrospectively, the learned judges in the judgment under appeal he ld that the liability to pay supervision charges and the quantification of the same are two different concepts and, therefore, the liability was not imposed with retrospective effect, but merely rates are revised with retrospective effect. The Division Bench for coming to the above conclusion placed reliance on a single Judges judgment in Writ Petition No. 631/82. As a matter or fact, we find that the judgment of the learned Single judge in Writ Petition No. 631/82 was expressly overruled by an earlier Division Bench of the Bombay High Court on 1.8.89 in M/s J.E. Bilmorias case (supra). We presume that this Division Bench judgment was not brought to the notice of the latter Division Bench, otherwise they would not have taken diametrically opposite view without referring the issue to a larger Bench. We further notice that the judgment in M/s J.E. Bilmorias case was not challenged by the Revenue as per the information passed on by Mr. Nargolkar, learned counsel for the respondents.In M/s J.E. Bilmorias case, the reasonings of the Division Bench to hold that the demand of differential supervision charges retrospectively was without jurisdiction, are in the following words:- "We have already pointed out above the provisions of Section 58-A of the Bombay Prohibition Act the relevant rules and the conditions of licence, which bear upon the question of supervision charges. If in pursuance of the provisions of Section 58-A of the Bombay Prohibition Act, the rules and the conditions of licence, advance payment of the supervision charges had to be made at the beginning of every quarter and without payment of those charges, the articles could be removed from the bonded warehouse for sale evidently the duty of the licensee, who stores articles in the bonded warehouse, would be only to pay the amount which has been ascertained and had to be paid in advance. Neither of these provisions clothes the State Government or the commissioner with the authority to charge the supervision charges with retrospective effect. Obviously, when section 58-A uses the words "the cost of such staff shall be paid to the State Government", that would have reference to the cost of the staff as obtaining for the period during which the goods are stored in the bonded warehouse and not the incidence which the State would have to bear by reason of such a remote circumstance as the upward revision of the pay-scales of its own employees at & latter date." ................................... ................................... 6. We must bear in mind the nature of excise duty as indicated in M/s Mc Dowell &Co. s case, A.I.R. 197 7 S.C. 1459 (supra) that it is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, ultimate incidence will always to be on the customer. By attempting to pass on the incidence of upward revision of pay-scales to the licensees, several years after the removal of the articles from the bonded warehouse, the respondents would make it impossible for the petitioners to pass on the cost of storing the articles in the bonded warehouse to the ultimate consumer, and this clearly the respondents cannot be permitted to do, because such a situation had never been anticipated by the petitioners, and by the unilateral action of the respondents, no additional liability can be imposed on the petitioners.As observed in (Income Tax Officer V. I.M.C. Ponnoose), it is open to a sovereign legislature to enact laws which have retrospective operation. Even when the parliament enacts retrospective laws such laws are no doubt prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transaction s carried on upon the faith of the then existing law. The Courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication, it appears that such was the intention of the legislature. Here, it does not appear to us that Section 58-A of the Bombay prohibition Act permitted the Government retrospectively to raise the quantum of costs, nor is there any warrant to infer that there was delegation to the rule making authority to charge the amount of costs on the basis of the events which could not have been anticipated at the time the costs were assessed. 7. After describing in detail how the petitioners order their affairs, the petitioners have stated in ground No. (vi) of para 2 of the petition that on a rational interpretation of the relevant conditions and provisions, the petitioners were entitled to know in advance the costs payable by them so as to enable them to fix the price of goods, and the respondents, having acted in the manner and permitted to the petitioners to sell the goods on the effective representation that the cost of supervision charges for incoming quarter was fixed for the said quarter, cannot now be permitted to go back on their said representation and demand additional amount, more so with retrospective effect from 5.5.1970."On a scrutiny of these two Division Bench judgments, the view taken in M/s J.E. Bilmorias case commends to us and we are of the view that the reasonings given therein are well-founded. We are, therefore, of the view that the impugned demand of differential supervision charges retrospectively cannot be sustained and accordingly the judgment under appeal is set aside and the Writ Petition No. 1672/83 filed by the company stands allowed. The question posed at the beginning is answered in the negative. 8.
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Section 58-A of the Bombay Prohibition Act,1949 enables the Statement Government to levy and collect what is called supervision charges. It is common ground that this supervision charges are collected in advance at the beginning of every quarter. The question for consideration is whether this collection of supervision charges in advance can be revised as a consequence of revision of salaries to Government servants. While upholding such revision and collection of differential supervision charges retrospectively, the learned judges in the judgment under appeal he ld that the liability to pay supervision charges and the quantification of the same are two different concepts and, therefore, the liability was not imposed with retrospective effect, but merely rates are revised with retrospective effect. The Division Bench for coming to the above conclusion placed reliance on a single Judges judgment in Writ Petition No. 631/82. As a matter or fact, we find that the judgment of the learned Single judge in Writ Petition No. 631/82 was expressly overruled by an earlier Division Bench of the Bombay High Court on 1.8.89 in M/s J.E. Bilmorias case (supra). We presume that this Division Bench judgment was not brought to the notice of the latter Division Bench, otherwise they would not have taken diametrically opposite view without referring the issue to a larger Bench. We further notice that the judgment in M/s J.E. Bilmorias case was not challenged by the Revenue as per the information passed on by Mr. Nargolkar, learned counsel for thedescribing in detail how the petitioners order their affairs, the petitioners have stated in ground No. (vi) of para 2 of the petition that on a rational interpretation of the relevant conditions and provisions, the petitioners were entitled to know in advance the costs payable by them so as to enable them to fix the price of goods, and the respondents, having acted in the manner and permitted to the petitioners to sell the goods on the effective representation that the cost of supervision charges for incoming quarter was fixed for the said quarter, cannot now be permitted to go back on their said representation and demand additional amount, more so with retrospective effect from 5.5.1970."On a scrutiny of these two Division Bench judgments, the view taken in M/s J.E. Bilmorias case commends to us and we are of the view that the reasonings given therein are well-founded. We are, therefore, of the view that the impugned demand of differential supervision charges retrospectively cannot be sustained and accordingly the judgment under appeal is set aside and the Writ Petition No. 1672/83 filed by the company stands allowed. The question posed at the beginning is answered in the negative.
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Ramnath Verma & Others Vs. State of Rajasthan & Others | contention therefore based on the judgment of this Court in Malik Rams case, AIR 1961 SC 1575 must on the facts and circumstances of these appeals be rejected.5. Besides this main objection, three subsidiary points have been raised on behalf of the appellants. It appears that in some cases the objectors served routes which overlapped the three routes which have been taken over. In these cases what has been done is that in some cases the permits of the objectors have been cancelled with respect to the overlapping part of the routes while in other cases the objectors are allowed to ply even on the overlapping part but they have been forbidden to pick up passengers on the overlapping part for destinations within the overlapping part. This latter method is called making the permits ineffective for the overlapping part. Now the grievance of those whose permits have thus been rendered ineffective for the overlapping pint is two-fold. In the first place, it is said that this cannot be done and in the second place, it is said that even if this can be done, the result is that those whose permits have been made ineffective for the overlapping part will not be entitled to compensation under S. 68-G read with S. 68-F (2), So far as the frist contention is concerned, we are of opinion that there is no force in it. Under S. 68-C, it is open to frame a scheme in which there is a partial exclusion of private operators. Making the permits ineffective for the overlapping part only amounts to partial exclusion of the private operators from that route. In the circumstances an order making the permit ineffective for the overlapping part would be justified under S. 68-C,. As to the second point, there is no doubt that where the permit is made ineffective the permit-holder would not be entitled to any compensation under S. 68-G.It is said that this amounts to discrimination between those whose permits have been cancelled for the overlapping part and who would get compensation and those whose permits have been made ineffective and who would therefore not ret compensation. Now we should have thought that the making of the permit ineffective for the overlapping part of the route and allowing the permit-holder to pick up passengers on the overlapping route for destinations beyond that portion of the route would be to the advantage of the permit-holder. In any case, if any permit-holder feels that he would rather have his permit cancelled for the overlapping route and get compensation it is for him to raise that objection before the State Government or the officer hearing objections. If he does not do so, he cannot be heard to say that there is discrimination because his permit has been rendered ineffective and he gets no compensation, for it may very well be that he is still he after off than the person whose permit has been cancelled for the overlapping part of the route. In any case unless facts are brought on the record which would show that in spite of the advantage which the permit holder, whose permit has been made ineffective for the overlapping part of the route, gets by picking up passengers on the overlapping route for destinations beyond that part is not equal to the compensation which he would get in case his permit is cancelled for the overlapping part of the route, there would be no case for discrimination under Art. 14 of the Constitution. In the present appeals no such case has been made out on the facts and therefore we must reject this argument based upon discrimination.6. Secondly, it is urged that in the case of some persons, the permits have neither been cancelled nor made ineffective over the overlapping route and this amounts to discrimination. The reply of the State to this contention is that it was by oversight that permits of certain permit-holders on the overlapping routes have not been cancelled or made ineffective and it is further said that the State would have corrected this oversight but for the stay order obtained from this Court. Discrimination envisaged under Art. 14 conscious discrimination and a discrimination arising out of oversight is no discrimination at all. In the present case the discrimination has resulted because of an oversight which the State is prepared to rectify. It is not the case of the appellants that these few permits- holders are being favoured deliberately for ulterior reasons. We therefore accept the reply of the State that a few permit-holders on the overlapping route have been left out by oversight and that their permits will be dealt with in the same manner as of the appellants, as soon as the stay order passed by this Court comes to an end. There is therefore no force in this contention also and it is hereby rejected.7. Lastly, it is urged that the permits on the Ajmer-Kotah route have been cancelled or rendered ineffective between Deoli and Ajmer only and therefore the permit-holders are entitled to ply between Deoli and Kotah. It appears however that Deoli-Kotah part of the Ajmer-Kotah route is common to Jaipur-Kotah route from Deoli to Kotah and the necessary orders for exclusion of permit-holders have been passed in connection with the Jaipur-Kotah route. The scheme with respect to that route was quashed by the High Court and the matter sent back for re-hearing the objectors in accordance with the decision of this Court in Malik Rams case, AIR 1961 SC 1575 . Therefore, the question whether the permit-holders can ply on the Deoli-Kotah portion of the Ajmer-Kotah route will depend on the decision of the Jaipur-Kotah scheme. If that scheme is upheld on re-hearing, the exclusion will continue. But if that scheme is not upheld, the position may have to be reviewed in connection with this portion of the Ajmer-Kotah route. In the circumstances no relief can be granted to the appellants of the Ajmer-Kotah route at this stage. | 0[ds]It is not in dispute that the appellants never applied before the Legal Remembrancer that they wanted to lead evidence on any point in support of their objections. Only in one writ petition (see C. A. 144 of 1962) it was averred that the Legal Remembrancer did not allow the appellants to lead evidence but that in our opinion is not correct, because the Legal Remembrancer has filed an affidavit to the effect that no such oral request was made to him by the objectors on the three routes with which these appeals are concerned. The High Court therefore was right in saying that it could not be said in these cases that the Legal Remembrancer had shut out evidence relating to the inquiry before him which the objectors desired to produce. But it is urged on behalf of the appellants that as the Legal Remembrancer had already taken one view in the case of Jaipur-Ajmer route it was useless for them to make an application to him for leading evidence for that would have inevitably been rejected in view of the earlier judgment of the Rajasthan High Court referred to above. Even though, this may be so, it is remarkable that that did not prevent the objectors on the Jaipur-Ajmer and Jaipur-Kotah routes from making applications to the Legal Remembrancer that the draft-schemes should be totally rejected and they should be given an opportunity to lead evidence to show this. We fail to see why the appellants could not have taken the same course if they really desired to lead any evidence in order to make out their case for total rejection of the schemes with which they were concerned. It seems to us clear therefore that at the stage when objections were being heard by the Legal Remembrancer there was no desire on the part of the appellants to lead any evidence in support of their objections. Nor does it appear that when the writ petitions were filed in the High Court the appellants claimed that they had desired to lead evidence and had been shut out by the Legal Remembrancer. It was only after the decision in Malik Rams case AIR 1961 SC 1575 that applications were filed taking advantage of that decision and pointing out that the wrong approach of the Legal Remembrancer in holding that it was not open to him to reject the draft-scheme in its entirety had resulted in the appellants not getting an effective hearing. But it does not seem to have been suggested even at that stage (except in one case) that the appellants had desired to lead evidence before the Legal Remembrancer and he had shut them out. Nor was it shown at that stage what evidence the appellants could produce in support of their objections if an opportunity had been given to them. Lastly even in this Court the appellants have not indicated what evidence they could produce in support of the objections raised by them. It seems to us therefore that the appellants never really desired to produce any evidence in order to establish that the schemes as a whole should be rejected and that they put forward the contention that they would have produced evidence if given an opportunity to do so, merely taking advantage of the decision of this Court in Malik Rams case AIR 1961 SC 1575 . Further it seems to us on looking at one of the objections filed before the Legal Remembrancer in C. A. 142 of 1962 as a sample that there was nothing in the objections which really required the giving of evidence and which would show that there could be any desire on the part of the objectors to leadshort a perusal of the objections shows that what was being contended before the Legal Remembrancer was not so much that the draft-schemes were not efficient, adequate, economical and properly co-ordinated but that the objectors were providing transport service which was more efficient, adequate, economical and properly co-ordained than the service proposed to be provided in the draft-schemes. That howerver is hardly a reason for rejecting the draft-schemes in their entirety. Further, a perusal of the order of the Legal Remembrancer summarising the objections which are relevant under S. 68-D shows that the objections were of such a nature not to require the production of evidence in support of them for the questions of act raised there were not in dispute. Therefore, there could be an effective hearing before the Legal Remembrancer if objectors were given a chance to put forward their arguments in support of the objections even without any evidence. We are therefore, of opinion that the appellants cannot in the circumstances take advantage of the decision in, Malik Rams case, AIR 1961 SC 1575 and on the facts and circumstances in the present appeals there is no doubt that they had an effective hearing and the order of the Legal Remembrancer approving the schemes is not in any way vitiated by the wrong view taken by him that he had no power to reject the draft-schemes in their entirety. It seems that he considered the draft-schemes on merits as required by Ss. 68-C and 68-D and held that it was in accordance with the requirements of S. 68-C.The facts that in some cases the number of buses might have been reduced or the fares have been raised or some of the direct services had to be cut down where their routes overlapped with the routes in the three draft-schemes would not necessarily lead to the conclusion that the draft-schemes were not in conformity with the requirements of S. 68-C. The contention therefore based on the judgment of this Court in Malik Rams case, AIR 1961 SC 1575 must on the facts and circumstances of these appeals beappears that in some cases the objectors served routes which overlapped the three routes which have been taken over. In these cases what has been done is that in some cases the permits of the objectors have been cancelled with respect to the overlapping part of the routes while in other cases the objectors are allowed to ply even on the overlapping part but they have been forbidden to pick up passengers on the overlapping part for destinations within the overlapping part. This latter method is called making the permits ineffective for the overlapping part. Now the grievance of those whose permits have thus been rendered ineffective for the overlapping pint is two-fold. In the first place, it is said that this cannot be done and in the second place, it is said that even if this can be done, the result is that those whose permits have been made ineffective for the overlapping part will not be entitled to compensation under S. 68-G read with S. 68-F (2), So far as the frist contention is concerned, we are of opinion that there is no force in it. Under S. 68-C, it is open to frame a scheme in which there is a partial exclusion of private operators. Making the permits ineffective for the overlapping part only amounts to partial exclusion of the private operators from that route. In the circumstances an order making the permit ineffective for the overlapping part would be justified under S. 68-C,. As to the second point, there is no doubt that where the permit is made ineffective the permit-holder would not be entitled to any compensation under S. 68-G.It is said that this amounts to discrimination between those whose permits have been cancelled for the overlapping part and who would get compensation and those whose permits have been made ineffective and who would therefore not ret compensation. Now we should have thought that the making of the permit ineffective for the overlapping part of the route and allowing the permit-holder to pick up passengers on the overlapping route for destinations beyond that portion of the route would be to the advantage of the permit-holder. In any case, if any permit-holder feels that he would rather have his permit cancelled for the overlapping route and get compensation it is for him to raise that objection before the State Government or the officer hearing objections. If he does not do so, he cannot be heard to say that there is discrimination because his permit has been rendered ineffective and he gets no compensation, for it may very well be that he is still he after off than the person whose permit has been cancelled for the overlapping part of the route. In any case unless facts are brought on the record which would show that in spite of the advantage which the permit holder, whose permit has been made ineffective for the overlapping part of the route, gets by picking up passengers on the overlapping route for destinations beyond that part is not equal to the compensation which he would get in case his permit is cancelled for the overlapping part of the route, there would be no case for discrimination under Art. 14 of the Constitution. In the present appeals no such case has been made out on the facts and therefore we must reject this argument based uponenvisaged under Art. 14 conscious discrimination and a discrimination arising out of oversight is no discrimination at all. In the present case the discrimination has resulted because of an oversight which the State is prepared to rectify. It is not the case of the appellants that these few permits- holders are being favoured deliberately for ulterior reasons. We therefore accept the reply of the State that a few permit-holders on the overlapping route have been left out by oversight and that their permits will be dealt with in the same manner as of the appellants, as soon as the stay order passed by this Court comes to an end. There is therefore no force in this contention also and it is hereby rejected.Lastly, it is urged that the permits on the Ajmer-Kotah route have been cancelled or rendered ineffective between Deoli and Ajmer only and therefore the permit-holders are entitled to ply between Deoli and Kotah. It appears however that Deoli-Kotah part of the Ajmer-Kotah route is common to Jaipur-Kotah route from Deoli to Kotah and the necessary orders for exclusion of permit-holders have been passed in connection with the Jaipur-Kotah route. The scheme with respect to that route was quashed by the High Court and the matter sent back for re-hearing the objectors in accordance with the decision of this Court in Malik Rams case, AIR 1961 SC 1575 . Therefore, the question whether the permit-holders can ply on the Deoli-Kotah portion of the Ajmer-Kotah route will depend on the decision of the Jaipur-Kotah scheme. If that scheme is upheld on re-hearing, the exclusion will continue. But if that scheme is not upheld, the position may have to be reviewed in connection with this portion of the Ajmer-Kotah route. In the circumstances no relief can be granted to the appellants of the Ajmer-Kotah route at this stage. | 0 | 3,190 | 1,933 | ### 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:
contention therefore based on the judgment of this Court in Malik Rams case, AIR 1961 SC 1575 must on the facts and circumstances of these appeals be rejected.5. Besides this main objection, three subsidiary points have been raised on behalf of the appellants. It appears that in some cases the objectors served routes which overlapped the three routes which have been taken over. In these cases what has been done is that in some cases the permits of the objectors have been cancelled with respect to the overlapping part of the routes while in other cases the objectors are allowed to ply even on the overlapping part but they have been forbidden to pick up passengers on the overlapping part for destinations within the overlapping part. This latter method is called making the permits ineffective for the overlapping part. Now the grievance of those whose permits have thus been rendered ineffective for the overlapping pint is two-fold. In the first place, it is said that this cannot be done and in the second place, it is said that even if this can be done, the result is that those whose permits have been made ineffective for the overlapping part will not be entitled to compensation under S. 68-G read with S. 68-F (2), So far as the frist contention is concerned, we are of opinion that there is no force in it. Under S. 68-C, it is open to frame a scheme in which there is a partial exclusion of private operators. Making the permits ineffective for the overlapping part only amounts to partial exclusion of the private operators from that route. In the circumstances an order making the permit ineffective for the overlapping part would be justified under S. 68-C,. As to the second point, there is no doubt that where the permit is made ineffective the permit-holder would not be entitled to any compensation under S. 68-G.It is said that this amounts to discrimination between those whose permits have been cancelled for the overlapping part and who would get compensation and those whose permits have been made ineffective and who would therefore not ret compensation. Now we should have thought that the making of the permit ineffective for the overlapping part of the route and allowing the permit-holder to pick up passengers on the overlapping route for destinations beyond that portion of the route would be to the advantage of the permit-holder. In any case, if any permit-holder feels that he would rather have his permit cancelled for the overlapping route and get compensation it is for him to raise that objection before the State Government or the officer hearing objections. If he does not do so, he cannot be heard to say that there is discrimination because his permit has been rendered ineffective and he gets no compensation, for it may very well be that he is still he after off than the person whose permit has been cancelled for the overlapping part of the route. In any case unless facts are brought on the record which would show that in spite of the advantage which the permit holder, whose permit has been made ineffective for the overlapping part of the route, gets by picking up passengers on the overlapping route for destinations beyond that part is not equal to the compensation which he would get in case his permit is cancelled for the overlapping part of the route, there would be no case for discrimination under Art. 14 of the Constitution. In the present appeals no such case has been made out on the facts and therefore we must reject this argument based upon discrimination.6. Secondly, it is urged that in the case of some persons, the permits have neither been cancelled nor made ineffective over the overlapping route and this amounts to discrimination. The reply of the State to this contention is that it was by oversight that permits of certain permit-holders on the overlapping routes have not been cancelled or made ineffective and it is further said that the State would have corrected this oversight but for the stay order obtained from this Court. Discrimination envisaged under Art. 14 conscious discrimination and a discrimination arising out of oversight is no discrimination at all. In the present case the discrimination has resulted because of an oversight which the State is prepared to rectify. It is not the case of the appellants that these few permits- holders are being favoured deliberately for ulterior reasons. We therefore accept the reply of the State that a few permit-holders on the overlapping route have been left out by oversight and that their permits will be dealt with in the same manner as of the appellants, as soon as the stay order passed by this Court comes to an end. There is therefore no force in this contention also and it is hereby rejected.7. Lastly, it is urged that the permits on the Ajmer-Kotah route have been cancelled or rendered ineffective between Deoli and Ajmer only and therefore the permit-holders are entitled to ply between Deoli and Kotah. It appears however that Deoli-Kotah part of the Ajmer-Kotah route is common to Jaipur-Kotah route from Deoli to Kotah and the necessary orders for exclusion of permit-holders have been passed in connection with the Jaipur-Kotah route. The scheme with respect to that route was quashed by the High Court and the matter sent back for re-hearing the objectors in accordance with the decision of this Court in Malik Rams case, AIR 1961 SC 1575 . Therefore, the question whether the permit-holders can ply on the Deoli-Kotah portion of the Ajmer-Kotah route will depend on the decision of the Jaipur-Kotah scheme. If that scheme is upheld on re-hearing, the exclusion will continue. But if that scheme is not upheld, the position may have to be reviewed in connection with this portion of the Ajmer-Kotah route. In the circumstances no relief can be granted to the appellants of the Ajmer-Kotah route at this stage.
### Response:
0
### Explanation:
no power to reject the draft-schemes in their entirety. It seems that he considered the draft-schemes on merits as required by Ss. 68-C and 68-D and held that it was in accordance with the requirements of S. 68-C.The facts that in some cases the number of buses might have been reduced or the fares have been raised or some of the direct services had to be cut down where their routes overlapped with the routes in the three draft-schemes would not necessarily lead to the conclusion that the draft-schemes were not in conformity with the requirements of S. 68-C. The contention therefore based on the judgment of this Court in Malik Rams case, AIR 1961 SC 1575 must on the facts and circumstances of these appeals beappears that in some cases the objectors served routes which overlapped the three routes which have been taken over. In these cases what has been done is that in some cases the permits of the objectors have been cancelled with respect to the overlapping part of the routes while in other cases the objectors are allowed to ply even on the overlapping part but they have been forbidden to pick up passengers on the overlapping part for destinations within the overlapping part. This latter method is called making the permits ineffective for the overlapping part. Now the grievance of those whose permits have thus been rendered ineffective for the overlapping pint is two-fold. In the first place, it is said that this cannot be done and in the second place, it is said that even if this can be done, the result is that those whose permits have been made ineffective for the overlapping part will not be entitled to compensation under S. 68-G read with S. 68-F (2), So far as the frist contention is concerned, we are of opinion that there is no force in it. Under S. 68-C, it is open to frame a scheme in which there is a partial exclusion of private operators. Making the permits ineffective for the overlapping part only amounts to partial exclusion of the private operators from that route. In the circumstances an order making the permit ineffective for the overlapping part would be justified under S. 68-C,. As to the second point, there is no doubt that where the permit is made ineffective the permit-holder would not be entitled to any compensation under S. 68-G.It is said that this amounts to discrimination between those whose permits have been cancelled for the overlapping part and who would get compensation and those whose permits have been made ineffective and who would therefore not ret compensation. Now we should have thought that the making of the permit ineffective for the overlapping part of the route and allowing the permit-holder to pick up passengers on the overlapping route for destinations beyond that portion of the route would be to the advantage of the permit-holder. In any case, if any permit-holder feels that he would rather have his permit cancelled for the overlapping route and get compensation it is for him to raise that objection before the State Government or the officer hearing objections. If he does not do so, he cannot be heard to say that there is discrimination because his permit has been rendered ineffective and he gets no compensation, for it may very well be that he is still he after off than the person whose permit has been cancelled for the overlapping part of the route. In any case unless facts are brought on the record which would show that in spite of the advantage which the permit holder, whose permit has been made ineffective for the overlapping part of the route, gets by picking up passengers on the overlapping route for destinations beyond that part is not equal to the compensation which he would get in case his permit is cancelled for the overlapping part of the route, there would be no case for discrimination under Art. 14 of the Constitution. In the present appeals no such case has been made out on the facts and therefore we must reject this argument based uponenvisaged under Art. 14 conscious discrimination and a discrimination arising out of oversight is no discrimination at all. In the present case the discrimination has resulted because of an oversight which the State is prepared to rectify. It is not the case of the appellants that these few permits- holders are being favoured deliberately for ulterior reasons. We therefore accept the reply of the State that a few permit-holders on the overlapping route have been left out by oversight and that their permits will be dealt with in the same manner as of the appellants, as soon as the stay order passed by this Court comes to an end. There is therefore no force in this contention also and it is hereby rejected.Lastly, it is urged that the permits on the Ajmer-Kotah route have been cancelled or rendered ineffective between Deoli and Ajmer only and therefore the permit-holders are entitled to ply between Deoli and Kotah. It appears however that Deoli-Kotah part of the Ajmer-Kotah route is common to Jaipur-Kotah route from Deoli to Kotah and the necessary orders for exclusion of permit-holders have been passed in connection with the Jaipur-Kotah route. The scheme with respect to that route was quashed by the High Court and the matter sent back for re-hearing the objectors in accordance with the decision of this Court in Malik Rams case, AIR 1961 SC 1575 . Therefore, the question whether the permit-holders can ply on the Deoli-Kotah portion of the Ajmer-Kotah route will depend on the decision of the Jaipur-Kotah scheme. If that scheme is upheld on re-hearing, the exclusion will continue. But if that scheme is not upheld, the position may have to be reviewed in connection with this portion of the Ajmer-Kotah route. In the circumstances no relief can be granted to the appellants of the Ajmer-Kotah route at this stage.
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Ramlal & Sons Vs. State Of Rajasthan | 1949 under which mining or prospecting operation is allowed to be undertaken do not provide for payment of premium by the lessee except with the prior approval of the Central Government. It was also pointed out in the order that no such approval was secured by the State Government before accepting the premium of Rs. 1, 55, 000 from the appellant. It was, therefore, pointed out that the acceptance of the premium w as illegal. It was further held that the State Government was entitled to charge only royalty in the present case and it could charge dead rent or royalty, whichever was higher, only after execution of a formal lease.Then came the St ate Governments impugned order of November 9, 1967, addressed to the appellant. There was reference in the above order to the fact that the appellant-"approached the Central Government in revision. The Central Government have held that the permissive permission of this block to you is not even as a licensee under the Mineral Concession Rules 1949. Government, therefore, do not want that the possession of this area should remain with you any longer. Government is, therefore, pleased to order that you should vacate the aforesaid block No. 6 with in a month from the date of the receipt of this note, failing which such action shall be taken as may be deemed p roper".4. It may be mentioned that the Central Government in the order referred to above in the extract also observed "this licence was not within the meaning of Mineral Concession Rules 1949 but was governed by the General law, e.g. the Easement Act". (See Central Government letter dated March 19, 1966.)5. The appellant after receipt of the order of November 9, 1967, instituted an application under article 226 of the Constitution in the High Court of Rajasthan (being Writ Petition No. 691 of 1 967) praying for a writ of certiorari to quash the aforesaid order, to restrain the State from revoking the licence and dispossessing the appellant from the mining area absolutely or in the alternative, till compensation along with refund of the premium of Rs. 1, 55, 000 and the dead rent realised in excess of royalty were paid by the State. As a last alternative it prayed for a direction to the State to grant the lease of the balance area of 3628 acres or such other area to which the appellant was entitled in law.6. The learned single Judge of the High Court dismissed the writ application as infructuous in view of the offer made by the State in its application of April 20, 1970, repeated through the learned Advocate General. The learned Advocate General submitted before the High Court that the State Government "was still prepared to pay them compensation in order to revoke the licence granted in favour of the petitioner".In the aforesaid application of April 20, 1970, the State Government was prepared to pay compensation to the appellant at the rate of Rs. 7750 per annum for the unexpired period of 20 years ending on March 14, 1971.7. The learned single Judge while dismissing the application observed that if the petitioner thought that the compensation was inadequate he could agitate the matter in court.8. The appellants appeal thereafter to the Division Bench was summarily dismissed and leave to appeal to this Court was also rejected. Hence this appeal by special leave.9. We have heard the learned counsel for both the parties. In view of the fact that the period of the purported lease already expired on March 14, 1971, there is no question of a writ for granting the lease. Since a proper lease had not been executed, for whatever reasons, there was no question also of exercise of an option of renewal of lease. The only question that survives is whether the State Government could realise premium in a lawful manner under the Mineral Concession Rules.10. We do not find any provision in the Rules authorising realisation of premium as done in this case. Rule 41 of the Rules of 1949 applicable at the relevant time provides for conditions of the lease. These conditions specifically mention royalty, dead rent and surface rent, but not premium. Again proviso to rule 41(1)(iii) states that the lessee shall be liable to pay the dead-rent or royalty in respect of each mineral whichever be higher in amount, but not both. Under subsection (3) of section 41, a mining lease may contain any other special conditions, subject to the prior approval of the Central Government. The Central Government, is, therefore, right in holding that the realisation of the premium of Rs. 1, 55, 000 was illegal, particularly because there was no prior approval under sub-section (3) of rule 41 of the Rules.When in this case grant of the mining lease was envisaged under definite statutory rules made in exercise of power, conferred under section 5 of the Mines &Minerals (Regulation and Development) Act, 1948, the State Government was under legal obligation to act in accordance with these rules. It could not exercise a power in the matter of grant of mining lease unknown to these Rules. The State Government could not impose terms and conditions according to its own whims ignoring or disregarding the statutory rules which are binding on it. The appellant is, therefore, entitled to a refund of Rs. 1, 21, 930.71 which is due to the appellant out of the illegally realised premium of Rs. 1, 55, 000 allowing the sum of Rs. 33, 069.29 already received by the appellant from the Government on account of compensation.11. The appellants counsel made a statement in court that since the appellant had already vacated the area it will not of its own make any further claim for compensation or under any other heads but reserves its right to raise all possible defences against any action that may be instituted by the State against the appellant in the matter of the grant of mining for mica in the area. Subject | 1[ds]In view of the fact that the period of the purported lease already expired on March 14, 1971, there is no question of a writ for granting the lease. Since a proper lease had not been executed, for whatever reasons, there was no question also of exercise of an option of renewal ofdo not find any provision in the Rules authorising realisation of premium as done in this case. Rule 41 of the Rules of 1949 applicable at the relevant time provides for conditions of the lease. These conditions specifically mention royalty, dead rent and surface rent, but not premium. Again proviso to rule 41(1)(iii) states that the lessee shall be liable to pay the dead-rent or royalty in respect of each mineral whichever be higher in amount, but not both. Under subsection (3) of section 41, a mining lease may contain any other special conditions, subject to the prior approval of the Central Government. The Central Government, is, therefore, right in holding that the realisation of the premium of Rs. 1, 55, 000 was illegal, particularly because there was no prior approval under sub-section (3) of rule 41 of the Rules.When in this case grant of the mining lease was envisaged under definite statutory rules made in exercise of power, conferred under section 5 of the Mines &Minerals (Regulation and Development) Act, 1948, the State Government was under legal obligation to act in accordance with these rules. It could not exercise a power in the matter of grant of mining lease unknown to these Rules. The State Government could not impose terms and conditions according to its own whims ignoring or disregarding the statutory rules which are binding on it. The appellant is, therefore, entitled to a refund of Rs. 1, 21, 930.71 which is due to the appellant out of the illegally realised premium of Rs. 1, 55, 000 allowing the sum of Rs. 33, 069.29 already received by the appellant from the Government on account of compensation. | 1 | 1,729 | 386 | ### 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:
1949 under which mining or prospecting operation is allowed to be undertaken do not provide for payment of premium by the lessee except with the prior approval of the Central Government. It was also pointed out in the order that no such approval was secured by the State Government before accepting the premium of Rs. 1, 55, 000 from the appellant. It was, therefore, pointed out that the acceptance of the premium w as illegal. It was further held that the State Government was entitled to charge only royalty in the present case and it could charge dead rent or royalty, whichever was higher, only after execution of a formal lease.Then came the St ate Governments impugned order of November 9, 1967, addressed to the appellant. There was reference in the above order to the fact that the appellant-"approached the Central Government in revision. The Central Government have held that the permissive permission of this block to you is not even as a licensee under the Mineral Concession Rules 1949. Government, therefore, do not want that the possession of this area should remain with you any longer. Government is, therefore, pleased to order that you should vacate the aforesaid block No. 6 with in a month from the date of the receipt of this note, failing which such action shall be taken as may be deemed p roper".4. It may be mentioned that the Central Government in the order referred to above in the extract also observed "this licence was not within the meaning of Mineral Concession Rules 1949 but was governed by the General law, e.g. the Easement Act". (See Central Government letter dated March 19, 1966.)5. The appellant after receipt of the order of November 9, 1967, instituted an application under article 226 of the Constitution in the High Court of Rajasthan (being Writ Petition No. 691 of 1 967) praying for a writ of certiorari to quash the aforesaid order, to restrain the State from revoking the licence and dispossessing the appellant from the mining area absolutely or in the alternative, till compensation along with refund of the premium of Rs. 1, 55, 000 and the dead rent realised in excess of royalty were paid by the State. As a last alternative it prayed for a direction to the State to grant the lease of the balance area of 3628 acres or such other area to which the appellant was entitled in law.6. The learned single Judge of the High Court dismissed the writ application as infructuous in view of the offer made by the State in its application of April 20, 1970, repeated through the learned Advocate General. The learned Advocate General submitted before the High Court that the State Government "was still prepared to pay them compensation in order to revoke the licence granted in favour of the petitioner".In the aforesaid application of April 20, 1970, the State Government was prepared to pay compensation to the appellant at the rate of Rs. 7750 per annum for the unexpired period of 20 years ending on March 14, 1971.7. The learned single Judge while dismissing the application observed that if the petitioner thought that the compensation was inadequate he could agitate the matter in court.8. The appellants appeal thereafter to the Division Bench was summarily dismissed and leave to appeal to this Court was also rejected. Hence this appeal by special leave.9. We have heard the learned counsel for both the parties. In view of the fact that the period of the purported lease already expired on March 14, 1971, there is no question of a writ for granting the lease. Since a proper lease had not been executed, for whatever reasons, there was no question also of exercise of an option of renewal of lease. The only question that survives is whether the State Government could realise premium in a lawful manner under the Mineral Concession Rules.10. We do not find any provision in the Rules authorising realisation of premium as done in this case. Rule 41 of the Rules of 1949 applicable at the relevant time provides for conditions of the lease. These conditions specifically mention royalty, dead rent and surface rent, but not premium. Again proviso to rule 41(1)(iii) states that the lessee shall be liable to pay the dead-rent or royalty in respect of each mineral whichever be higher in amount, but not both. Under subsection (3) of section 41, a mining lease may contain any other special conditions, subject to the prior approval of the Central Government. The Central Government, is, therefore, right in holding that the realisation of the premium of Rs. 1, 55, 000 was illegal, particularly because there was no prior approval under sub-section (3) of rule 41 of the Rules.When in this case grant of the mining lease was envisaged under definite statutory rules made in exercise of power, conferred under section 5 of the Mines &Minerals (Regulation and Development) Act, 1948, the State Government was under legal obligation to act in accordance with these rules. It could not exercise a power in the matter of grant of mining lease unknown to these Rules. The State Government could not impose terms and conditions according to its own whims ignoring or disregarding the statutory rules which are binding on it. The appellant is, therefore, entitled to a refund of Rs. 1, 21, 930.71 which is due to the appellant out of the illegally realised premium of Rs. 1, 55, 000 allowing the sum of Rs. 33, 069.29 already received by the appellant from the Government on account of compensation.11. The appellants counsel made a statement in court that since the appellant had already vacated the area it will not of its own make any further claim for compensation or under any other heads but reserves its right to raise all possible defences against any action that may be instituted by the State against the appellant in the matter of the grant of mining for mica in the area. Subject
### Response:
1
### Explanation:
In view of the fact that the period of the purported lease already expired on March 14, 1971, there is no question of a writ for granting the lease. Since a proper lease had not been executed, for whatever reasons, there was no question also of exercise of an option of renewal ofdo not find any provision in the Rules authorising realisation of premium as done in this case. Rule 41 of the Rules of 1949 applicable at the relevant time provides for conditions of the lease. These conditions specifically mention royalty, dead rent and surface rent, but not premium. Again proviso to rule 41(1)(iii) states that the lessee shall be liable to pay the dead-rent or royalty in respect of each mineral whichever be higher in amount, but not both. Under subsection (3) of section 41, a mining lease may contain any other special conditions, subject to the prior approval of the Central Government. The Central Government, is, therefore, right in holding that the realisation of the premium of Rs. 1, 55, 000 was illegal, particularly because there was no prior approval under sub-section (3) of rule 41 of the Rules.When in this case grant of the mining lease was envisaged under definite statutory rules made in exercise of power, conferred under section 5 of the Mines &Minerals (Regulation and Development) Act, 1948, the State Government was under legal obligation to act in accordance with these rules. It could not exercise a power in the matter of grant of mining lease unknown to these Rules. The State Government could not impose terms and conditions according to its own whims ignoring or disregarding the statutory rules which are binding on it. The appellant is, therefore, entitled to a refund of Rs. 1, 21, 930.71 which is due to the appellant out of the illegally realised premium of Rs. 1, 55, 000 allowing the sum of Rs. 33, 069.29 already received by the appellant from the Government on account of compensation.
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The Lodna Colliery Co. Ltd Vs. Bhola Nath Roy | 4. It is clear that since the settlement the zamindars have had at least a prima facie title to all lands for which they pay revenue, such lands being commonly referred to as malguzari lands.18. The right of the zemindars to the sub-soil minerals under their land follows from their being proprietors of the soil and has been recognized in a number of cases between the zemindars and persons holding land under a tenure from them. It has been held in those cases that, in the absence of the right to sub-soil minerals being conferred on the tenure-holder under the terms of the tenure held by him, he does not get any right to them.19. The first such case is Hari Narayan Singh v. Sriram Chakravarti, 37 Ind App 136 (PC). The same view was expressed in Durga Prasad Singh v. Braja Nath Bose, 39 Ind App 133 (PC).20. In Sashi Bushan Misra v. Jyoti Prasad Singh Deo, 44 Ind App 46 : (AIR 1916 PC 191) Lord Buckmaster said at p. 53 (of Ind App): (at p. 193 of AIR) with regard to the above two cases:"Theses decisions, therefore, have laid down a principle which applies to and concludes the present dispute. They establish that when a grant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable, and transferable, minerals will not be held to have formed part of the grant in the absence of express evidence to that effect.The fact that the tenure was rent free, makes no difference to this principle, as held in Raghunath Roy Marwari v. Raja of Jheria, 46 Ind App. 158 : (AIR 1919 PC 17).21. We are therefore of opinion that the right of property of the persons with whom resumed invalid Lakhraj land had been settled being the same as of the zemindars, extends to the sub-soil minerals of the land held by them.22. Further, the plaintiffs trace their rights to the documents Exhibits 10, 2 and 6(a). Before dealing with them, we may refer to two other Regulations not so far mentioned.23. Regulation II of 1819 modified the then existing Regulations regarding the resumption of revenue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the same manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry about the claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us.24. Exhibit 10 is the Robakari of the Deputy Collector of burdwan. Dated April 15, 1841, with respect to Touzi No. 2597. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-in-interest of the plaintiffs with respect to the land in suit. It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land consisting of Brahmottar land measuring 156 bighas 10 cattahs and the Debutter land measuring 18 bigghas 10 cattahs, in all 175 bighas, situated in village Pariharupur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessed to land revenue. Madhusudhan Roy and Sitaram Roy and other defendants claimed right to get settlement because it was the Lakharaj property obtained by their ancestors. The settlement was however made with Manik Chandra Roy on April 19, 1838, as the others defendants did not turn up. Subsequently. Madhusudhan Roy applied for settlement jointly with Manik Chandra Roy and others. As a result of the enquiry made, permanent settlement was separately made with Manik Chandra Roy and others with respect to certain area and with Madhusudan Roy and Sitaram Roy with respect to the rest. On April 15, 1841. Amalnama, Exhibit 2. was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them to pay their respective rents to the persons with whom settlement was made.25. Exhibit 6(a) is certified copy of settlement khatian No. 611 in respect of village Sripur, relating to Touzi No. 2597, R. S. No. 2416. It described the interest in the land in suit to be Bajeapti (resumed) Lakhraj Pariharpur and others. It mentions five persons including the son of Madhusudhan Roy and the sons of Sitanath Roy, to be the proprietors in possession of that interest. It also shows the King Emperor of India as possessing the entire superior interest. It is thus clear that the possessors of the Bajeapati (resumed) Lakhraj land in suit held it as proprietors under the King-Emperor of India. They must consequently, have the same rights which other proprietors like zamindars had.26. It is however urged for the appellants that the records prior to the resumption proceedings showed the lands in suit to be the Brahmottar and Debutter lands of the predecessors of the plaintiffs and that therefore, in view of the principle of law laid down by the Privy Council in Hari Narayan Singhs case, 37 Ind App 136 (PC) and the later decisions, they cannot be held to possess rights in the sub-soil in the absence of definite evidence that such rights were conveyed under those grants. We do not agree with this contention. The predecessors-in-interest of the plaintiffs held the land from the Government and not on a subordinate tenure from the zamindars and therefore the principle of law as stated in Hari Narayan Singhs case, 37 Ind App 136 (PC) and later confirmed in several decisions by the Privy Council does not apply to the present case. | 1[ds]It is clear from this section that the Regulation simply dealt with the question about the liability of certain lands to the payment of revenue and provided that any dispute about proprietary right between the grantees and the grantors would be a matter of a private nature to be decided by the Courts of Diwani Adalat. It, however, definitely provides that the grantees or the then possessors of land, until dispossessed by a decree of the Diwani Adalat, are to be considered as the proprietors of the lands with the same right of property therein as in declared to be vested in properties of estates or dependent taluks according as the land may exceed or be less than one hundred bighas subject to the payment of revenue. Such proprietors of land were to execute engagements for revenue with which their lands may be declared chargeable, either to the Government or to the proprietor or farmer of the estates in which the lands be situated.12. The grantees of invalid Lakhraj lands therefore had the same right of property in that land, subject to the payment of revenue as had been declared to be vested in the proprietors of estates. If the zamindars, the proprietors of estates, have rights not only over the surface of the land but in the sub-soil as well, the persons whose grants had been held to be invalid and who were held to be liable to pay land revenue also possessed rights in the sub-soil of the land settled with them.It is thus clear from the above declarations that the zemindars, the proprietors of estates, were recognised to be the proprietors of the soil.The right of the zemindars to the sub-soil minerals under their land follows from their being proprietors of the soil and has been recognized in a number of cases between the zemindars and persons holding land under a tenure from them. It has been held in those cases that, in the absence of the right to sub-soil minerals being conferred on the tenure-holder under the terms of the tenure held by him, he does not get any right to them.We are therefore of opinion that the right of property of the persons with whom resumed invalid Lakhraj land had been settled being the same as of the zemindars, extends to the sub-soil minerals of the land held by them.22. Further, the plaintiffs trace their rights to the documents Exhibits 10, 2 and 6(a). Before dealing with them, we may refer to two other Regulations not so far mentioned.23. Regulation II of 1819 modified the then existing Regulations regarding the resumption of revenue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the same manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry about the claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us.24. Exhibit 10 is the Robakari of the Deputy Collector of burdwan. Dated April 15, 1841, with respect to Touzi No. 2597. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-in-interest of the plaintiffs with respect to the land in suit. It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land consisting of Brahmottar land measuring 156 bighas 10 cattahs and the Debutter land measuring 18 bigghas 10 cattahs, in all 175 bighas, situated in village Pariharupur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessed to land revenue. Madhusudhan Roy and Sitaram Roy and other defendants claimed right to get settlement because it was the Lakharaj property obtained by their ancestors. The settlement was however made with Manik Chandra Roy on April 19, 1838, as the others defendants did not turn up. Subsequently. Madhusudhan Roy applied for settlement jointly with Manik Chandra Roy and others. As a result of the enquiry made, permanent settlement was separately made with Manik Chandra Roy and others with respect to certain area and with Madhusudan Roy and Sitaram Roy with respect to the rest. On April 15, 1841. Amalnama, Exhibit 2. was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them to pay their respective rents to the persons with whom settlement was made.25. Exhibit 6(a) is certified copy of settlement khatian No. 611 in respect of village Sripur, relating to Touzi No. 2597, R. S. No. 2416. It described the interest in the land in suit to be Bajeapti (resumed) Lakhraj Pariharpur and others. It mentions five persons including the son of Madhusudhan Roy and the sons of Sitanath Roy, to be the proprietors in possession of that interest. It also shows the King Emperor of India as possessing the entire superior interest. It is thus clear that the possessors of the Bajeapati (resumed) Lakhraj land in suit held it as proprietors under the King-Emperor of India. They must consequently, have the same rights which other proprietors like zamindarspredecessors-in-interest of the plaintiffs held the land from the Government and not on a subordinate tenure from the zamindars and therefore the principle of law as stated in Hari Narayan Singhs case, 37 Ind App 136 (PC) and later confirmed in several decisions by the Privy Council does not apply to the present case. | 1 | 3,277 | 1,067 | ### Instruction:
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4. It is clear that since the settlement the zamindars have had at least a prima facie title to all lands for which they pay revenue, such lands being commonly referred to as malguzari lands.18. The right of the zemindars to the sub-soil minerals under their land follows from their being proprietors of the soil and has been recognized in a number of cases between the zemindars and persons holding land under a tenure from them. It has been held in those cases that, in the absence of the right to sub-soil minerals being conferred on the tenure-holder under the terms of the tenure held by him, he does not get any right to them.19. The first such case is Hari Narayan Singh v. Sriram Chakravarti, 37 Ind App 136 (PC). The same view was expressed in Durga Prasad Singh v. Braja Nath Bose, 39 Ind App 133 (PC).20. In Sashi Bushan Misra v. Jyoti Prasad Singh Deo, 44 Ind App 46 : (AIR 1916 PC 191) Lord Buckmaster said at p. 53 (of Ind App): (at p. 193 of AIR) with regard to the above two cases:"Theses decisions, therefore, have laid down a principle which applies to and concludes the present dispute. They establish that when a grant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable, and transferable, minerals will not be held to have formed part of the grant in the absence of express evidence to that effect.The fact that the tenure was rent free, makes no difference to this principle, as held in Raghunath Roy Marwari v. Raja of Jheria, 46 Ind App. 158 : (AIR 1919 PC 17).21. We are therefore of opinion that the right of property of the persons with whom resumed invalid Lakhraj land had been settled being the same as of the zemindars, extends to the sub-soil minerals of the land held by them.22. Further, the plaintiffs trace their rights to the documents Exhibits 10, 2 and 6(a). Before dealing with them, we may refer to two other Regulations not so far mentioned.23. Regulation II of 1819 modified the then existing Regulations regarding the resumption of revenue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the same manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry about the claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us.24. Exhibit 10 is the Robakari of the Deputy Collector of burdwan. Dated April 15, 1841, with respect to Touzi No. 2597. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-in-interest of the plaintiffs with respect to the land in suit. It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land consisting of Brahmottar land measuring 156 bighas 10 cattahs and the Debutter land measuring 18 bigghas 10 cattahs, in all 175 bighas, situated in village Pariharupur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessed to land revenue. Madhusudhan Roy and Sitaram Roy and other defendants claimed right to get settlement because it was the Lakharaj property obtained by their ancestors. The settlement was however made with Manik Chandra Roy on April 19, 1838, as the others defendants did not turn up. Subsequently. Madhusudhan Roy applied for settlement jointly with Manik Chandra Roy and others. As a result of the enquiry made, permanent settlement was separately made with Manik Chandra Roy and others with respect to certain area and with Madhusudan Roy and Sitaram Roy with respect to the rest. On April 15, 1841. Amalnama, Exhibit 2. was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them to pay their respective rents to the persons with whom settlement was made.25. Exhibit 6(a) is certified copy of settlement khatian No. 611 in respect of village Sripur, relating to Touzi No. 2597, R. S. No. 2416. It described the interest in the land in suit to be Bajeapti (resumed) Lakhraj Pariharpur and others. It mentions five persons including the son of Madhusudhan Roy and the sons of Sitanath Roy, to be the proprietors in possession of that interest. It also shows the King Emperor of India as possessing the entire superior interest. It is thus clear that the possessors of the Bajeapati (resumed) Lakhraj land in suit held it as proprietors under the King-Emperor of India. They must consequently, have the same rights which other proprietors like zamindars had.26. It is however urged for the appellants that the records prior to the resumption proceedings showed the lands in suit to be the Brahmottar and Debutter lands of the predecessors of the plaintiffs and that therefore, in view of the principle of law laid down by the Privy Council in Hari Narayan Singhs case, 37 Ind App 136 (PC) and the later decisions, they cannot be held to possess rights in the sub-soil in the absence of definite evidence that such rights were conveyed under those grants. We do not agree with this contention. The predecessors-in-interest of the plaintiffs held the land from the Government and not on a subordinate tenure from the zamindars and therefore the principle of law as stated in Hari Narayan Singhs case, 37 Ind App 136 (PC) and later confirmed in several decisions by the Privy Council does not apply to the present case.
### Response:
1
### Explanation:
It is clear from this section that the Regulation simply dealt with the question about the liability of certain lands to the payment of revenue and provided that any dispute about proprietary right between the grantees and the grantors would be a matter of a private nature to be decided by the Courts of Diwani Adalat. It, however, definitely provides that the grantees or the then possessors of land, until dispossessed by a decree of the Diwani Adalat, are to be considered as the proprietors of the lands with the same right of property therein as in declared to be vested in properties of estates or dependent taluks according as the land may exceed or be less than one hundred bighas subject to the payment of revenue. Such proprietors of land were to execute engagements for revenue with which their lands may be declared chargeable, either to the Government or to the proprietor or farmer of the estates in which the lands be situated.12. The grantees of invalid Lakhraj lands therefore had the same right of property in that land, subject to the payment of revenue as had been declared to be vested in the proprietors of estates. If the zamindars, the proprietors of estates, have rights not only over the surface of the land but in the sub-soil as well, the persons whose grants had been held to be invalid and who were held to be liable to pay land revenue also possessed rights in the sub-soil of the land settled with them.It is thus clear from the above declarations that the zemindars, the proprietors of estates, were recognised to be the proprietors of the soil.The right of the zemindars to the sub-soil minerals under their land follows from their being proprietors of the soil and has been recognized in a number of cases between the zemindars and persons holding land under a tenure from them. It has been held in those cases that, in the absence of the right to sub-soil minerals being conferred on the tenure-holder under the terms of the tenure held by him, he does not get any right to them.We are therefore of opinion that the right of property of the persons with whom resumed invalid Lakhraj land had been settled being the same as of the zemindars, extends to the sub-soil minerals of the land held by them.22. Further, the plaintiffs trace their rights to the documents Exhibits 10, 2 and 6(a). Before dealing with them, we may refer to two other Regulations not so far mentioned.23. Regulation II of 1819 modified the then existing Regulations regarding the resumption of revenue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the same manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry about the claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us.24. Exhibit 10 is the Robakari of the Deputy Collector of burdwan. Dated April 15, 1841, with respect to Touzi No. 2597. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-in-interest of the plaintiffs with respect to the land in suit. It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land consisting of Brahmottar land measuring 156 bighas 10 cattahs and the Debutter land measuring 18 bigghas 10 cattahs, in all 175 bighas, situated in village Pariharupur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessed to land revenue. Madhusudhan Roy and Sitaram Roy and other defendants claimed right to get settlement because it was the Lakharaj property obtained by their ancestors. The settlement was however made with Manik Chandra Roy on April 19, 1838, as the others defendants did not turn up. Subsequently. Madhusudhan Roy applied for settlement jointly with Manik Chandra Roy and others. As a result of the enquiry made, permanent settlement was separately made with Manik Chandra Roy and others with respect to certain area and with Madhusudan Roy and Sitaram Roy with respect to the rest. On April 15, 1841. Amalnama, Exhibit 2. was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them to pay their respective rents to the persons with whom settlement was made.25. Exhibit 6(a) is certified copy of settlement khatian No. 611 in respect of village Sripur, relating to Touzi No. 2597, R. S. No. 2416. It described the interest in the land in suit to be Bajeapti (resumed) Lakhraj Pariharpur and others. It mentions five persons including the son of Madhusudhan Roy and the sons of Sitanath Roy, to be the proprietors in possession of that interest. It also shows the King Emperor of India as possessing the entire superior interest. It is thus clear that the possessors of the Bajeapati (resumed) Lakhraj land in suit held it as proprietors under the King-Emperor of India. They must consequently, have the same rights which other proprietors like zamindarspredecessors-in-interest of the plaintiffs held the land from the Government and not on a subordinate tenure from the zamindars and therefore the principle of law as stated in Hari Narayan Singhs case, 37 Ind App 136 (PC) and later confirmed in several decisions by the Privy Council does not apply to the present case.
|
Gondumogula Tatayya Vs. Penumatcha Ananda Vijaya Venkatarama Timma Jagapathiraju(A | renumbered as Explanations (2) and (3) respectively and a new Explanation was inserted as Explanation (1) by S. 2 (1) of the Madras Estates Land (Amendment) Act, 1945, (Madras Act II of 1945). The reasons why the amendments became necessary have been explained in the Full Bench decision of the Madras High Court in M. Bhavanarayana v M. Venkatadu. ILR (1954) Mad 116: (AIR 1954 Mad 415 ). In Naravanaswami Nayudu v. Subramanyam TLR 39 Mad 683: (AIR 1916 Mad 263) it was observed by the Madras High Court that the existence of service inams was very common in villages and that where there was a subsequent grant of the village, to hold that such grant was not an estate as defined in S. 3 (2) (d) by reason of the existence of minor inams would result in the exclusion of agraharams, shrotriyams and mokhasa villages from the operation of the Act and that could not have been the intention of the Legislature. In that decision Srinivasa Ayyangar, J. observed:"The definition in sub-section 3, clause (d) was obviously intended to exclude from the definition of Estate what are known as minor inams, namely, particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries. The latter are known as whole inam villages. The existence of minor inams in whole inam villages is very common and if these inam villages do not come within the definition of Estate almost all the agraharams, shrotriyam and mokhasa villages will be excluded. This certainly cannot have been the intention of the Legislature. "This interpretation of S. 3 (2) (d) was accepted without question until the decision in Ademma v. Satyadhyana Thirtha Swamivaru, 1943-2 Mad LJ 289: (AIR 1943 Mad 187 ) where for the first time a different note was struck. It was held therein that where portions of the estate had previously been granted as minor inams, a subsequent grant of the rest of the village was not of an estate as it was not of the whole village. The Legislature thereupon intervened and enacted Explanation (1) with the object of restoring the view of the law which had been held before the decision in 1943-22 Mad 289: (AIR 1943 Mad 187 ).The crucial test to find out whether the subject-matter of a grant falls within the definition of an estate under S. 3 (2) (d) of the Act is whether at the time of the grant the subject-matter was a whole village or only a part of a village. If at the time of the grant it was only a part of a village, then the amending Act makes no difference to this and such a part would not be an estate within the meaning of the term. But if the grant was of the whole village and a named one, then it would be an estate. Learned Advocate for the appellants has referred us to the Mokhasa sanad of December 8, 1802. That sanad gives a list of villages of which Goteru is one. The argument of learned Advocate for the appellants is that the inam lands being within village Goteru, they also are "estates" within the meaning of S. 3 (2) (d) read with Explanation (1). It appears to us that this argument is clearly erroneous. There is no doubt that the Mokhasa grant is an estate within the meaning of the S. 3 (2) of the Madras Estates Land Act, and that is not disputed before us. That does not however, mean that the minor inams would also constitute an estate within the meaning of S. 3 (2) (d). As was pointed out in ILR (1954) Mad 116 : (AIR 1954 Mad 415 (FB) ) the crucial test is whether at the time of the grant the subject-matter was a whole village or only part of a village.In District Board, Tanjore v. M. K. Noor Mohamed Rowther, AIR 1953 S C 446 this Court observed that Any inam village" in Sec. 3 (2) (d) meant a whole village granted in inam and not anything less than a village however big a part it might be of that village. In other words, the grant must either comprise the whole area of a village or must be so expressed as is tantamount to the grant of a named village as a whole, even though it does not comprise the whole of the village area, and in the latter case, in order to come within the scope of the definition it must fulfil the conditions: (a) the words of the grant should expressly (and not by implication) make it a grant of a particular village as such by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure, or (c) that it had been reserved for communal purposes. The minor inams under consideration in these suits were pre-settlement inams and the finding which cannot now be challenged is that they were excluded from the assets of the zamindari at the time of the permanent settlement in 1802, though the Mokhasas were not so excluded. That being the position, the minor inams were not grants of whole villages and were not estates within the meaning of S. 3 (2) (d) of the Madras Estates Land Act. Therefore, the appellants cannot claim the benefit of S. 6 of the said Act.8. Learned Advocate for the appellants also addressed us at some length on the beneficent nature of the provisions of the Madras Estates Land Act and submitted that the appellants herein should not be deprived of the benefits of that Act. But the appellants must satisfy us first that they come within the protection or benefits of the Act. If the lands which they held were not an "estate" within the meaning of the Act, then there can be no question of giving them the benefit of the Act. | 0[ds]This interpretation of S. 3 (2) (d) was accepted without question until the decision in Ademma v. Satyadhyana Thirtha Swamivaru, 1943-2 Mad LJ 289: (AIR 1943 Mad 187 ) where for the first time a different note was struck. It was held therein that where portions of the estate had previously been granted as minor inams, a subsequent grant of the rest of the village was not of an estate as it was not of the whole village. The Legislature thereupon intervened and enacted Explanation (1) with the object of restoring the view of the law which had been held before the decision in 1943-22 Mad 289: (AIR 1943 Mad 187 ).The crucial test to find out whether the subject-matter of a grant falls within the definition of an estate under S. 3 (2) (d) of the Act is whether at the time of the grant the subject-matter was a whole village or only a part of a village. If at the time of the grant it was only a part of a village, then the amending Act makes no difference to this and such a part would not be an estate within the meaning of the term. But if the grant was of the whole village and a named one, then it would be an estate. Learned Advocate for the appellants has referred us to the Mokhasa sanad of December 8, 1802. That sanad gives a list of villages of which Goteru is one. The argument of learned Advocate for the appellants is that the inam lands being within village Goteru, they also are "estates" within the meaning of S. 3 (2) (d) read with Explanation (1). It appears to us that this argument is clearly erroneous. There is no doubt that the Mokhasa grant is an estate within the meaning of the S. 3 (2) of the Madras Estates Land Act, and that is not disputed before us. That does not however, mean that the minor inams would also constitute an estate within the meaning of S. 3 (2) (d). As was pointed out in ILR (1954) Mad 116 : (AIR 1954 Mad 415 (FB) ) the crucial test is whether at the time of the grant the subject-matter was a whole village or only part of a village.In District Board, Tanjore v. M. K. Noor Mohamed Rowther, AIR 1953 S C 446 this Court observed that Any inam village" in Sec. 3 (2) (d) meant a whole village granted in inam and not anything less than a village however big a part it might be of that village. In other words, the grant must either comprise the whole area of a village or must be so expressed as is tantamount to the grant of a named village as a whole, even though it does not comprise the whole of the village area, and in the latter case, in order to come within the scope of the definition it must fulfil the conditions: (a) the words of the grant should expressly (and not by implication) make it a grant of a particular village as such by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure, or (c) that it had been reserved for communal purposes. The minor inams under consideration in these suits were pre-settlement inams and the finding which cannot now be challenged is that they were excluded from the assets of the zamindari at the time of the permanent settlement in 1802, though the Mokhasas were not so excluded. That being the position, the minor inams were not grants of whole villages and were not estates within the meaning of S. 3 (2) (d) of the Madras Estates Land Act. Therefore, the appellants cannot claim the benefit of S. 6 of the said Act.8. Learned Advocate for the appellants also addressed us at some length on the beneficent nature of the provisions of the Madras Estates Land Act and submitted that the appellants herein should not be deprived of the benefits of that Act. But the appellants must satisfy us first that they come within the protection or benefits of the Act. If the lands which they held were not an "estate" within the meaning of the Act, then there can be no question of giving them the benefit of theinterpretation of S. 3 (2) (d) was accepted without question until the decision in Ademma v. Satyadhyana Thirtha Swamivaru, 1943-2 Mad LJ 289: (AIR 1943 Mad 187 ) where for the first time a different note was struck. It was held therein that where portions of the estate had previously been granted as minor inams, a subsequent grant of the rest of the village was not of an estate as it was not of the whole village. The Legislature thereupon intervened and enacted Explanation (1) with the object of restoring the view of the law which had been held before the decision in 1943-22 Mad 289: (AIR 1943 Mad 187 ).The crucial test to find out whether the subject-matter of a grant falls within the definition of an estate under S. 3 (2) (d) of the Act is whether at the time of the grant the subject-matter was a whole village or only a part of a village. If at the time of the grant it was only a part of a village, then the amending Act makes no difference to this and such a part would not be an estate within the meaning of the term. But if the grant was of the whole village and a named one, then it would be an estate. Learned Advocate for the appellants has referred us to the Mokhasa sanad of December 8, 1802. That sanad gives a list of villages of which Goteru is one. The argument of learned Advocate for the appellants is that the inam lands being within village Goteru, they also are "estates" within the meaning of S. 3 (2) (d) read with Explanation (1). It appears to us that this argument is clearly erroneous. There is no doubt that the Mokhasa grant is an estate within the meaning of the S. 3 (2) of the Madras Estates Land Act, and that is not disputed before us. That does not however, mean that the minor inams would also constitute an estate within the meaning of S. 3 (2) (d). As was pointed out in ILR (1954) Mad 116 : (AIR 1954 Mad 415 (FB) ) the crucial test is whether at the time of the grant the subject-matter was a whole village or only part of a village.In District Board, Tanjore v. M. K. Noor Mohamed Rowther, AIR 1953 S C 446 this Court observed that Any inam village" in Sec. 3 (2) (d) meant a whole village granted in inam and not anything less than a village however big a part it might be of that village. In other words, the grant must either comprise the whole area of a village or must be so expressed as is tantamount to the grant of a named village as a whole, even though it does not comprise the whole of the village area, and in the latter case, in order to come within the scope of the definition it must fulfil the conditions: (a) the words of the grant should expressly (and not by implication) make it a grant of a particular village as such by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure, or (c) that it had been reserved for communal purposes. The minor inams under consideration in these suits were pre-settlement inams and the finding which cannot now be challenged is that they were excluded from the assets of the zamindari at the time of the permanent settlement in 1802, though the Mokhasas were not so excluded. That being the position, the minor inams were not grants of whole villages and were not estates within the meaning of S. 3 (2) (d) of the Madras Estates Land Act. Therefore, the appellants cannot claim the benefit of S. 6 of the said Act. | 0 | 3,180 | 1,564 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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renumbered as Explanations (2) and (3) respectively and a new Explanation was inserted as Explanation (1) by S. 2 (1) of the Madras Estates Land (Amendment) Act, 1945, (Madras Act II of 1945). The reasons why the amendments became necessary have been explained in the Full Bench decision of the Madras High Court in M. Bhavanarayana v M. Venkatadu. ILR (1954) Mad 116: (AIR 1954 Mad 415 ). In Naravanaswami Nayudu v. Subramanyam TLR 39 Mad 683: (AIR 1916 Mad 263) it was observed by the Madras High Court that the existence of service inams was very common in villages and that where there was a subsequent grant of the village, to hold that such grant was not an estate as defined in S. 3 (2) (d) by reason of the existence of minor inams would result in the exclusion of agraharams, shrotriyams and mokhasa villages from the operation of the Act and that could not have been the intention of the Legislature. In that decision Srinivasa Ayyangar, J. observed:"The definition in sub-section 3, clause (d) was obviously intended to exclude from the definition of Estate what are known as minor inams, namely, particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries. The latter are known as whole inam villages. The existence of minor inams in whole inam villages is very common and if these inam villages do not come within the definition of Estate almost all the agraharams, shrotriyam and mokhasa villages will be excluded. This certainly cannot have been the intention of the Legislature. "This interpretation of S. 3 (2) (d) was accepted without question until the decision in Ademma v. Satyadhyana Thirtha Swamivaru, 1943-2 Mad LJ 289: (AIR 1943 Mad 187 ) where for the first time a different note was struck. It was held therein that where portions of the estate had previously been granted as minor inams, a subsequent grant of the rest of the village was not of an estate as it was not of the whole village. The Legislature thereupon intervened and enacted Explanation (1) with the object of restoring the view of the law which had been held before the decision in 1943-22 Mad 289: (AIR 1943 Mad 187 ).The crucial test to find out whether the subject-matter of a grant falls within the definition of an estate under S. 3 (2) (d) of the Act is whether at the time of the grant the subject-matter was a whole village or only a part of a village. If at the time of the grant it was only a part of a village, then the amending Act makes no difference to this and such a part would not be an estate within the meaning of the term. But if the grant was of the whole village and a named one, then it would be an estate. Learned Advocate for the appellants has referred us to the Mokhasa sanad of December 8, 1802. That sanad gives a list of villages of which Goteru is one. The argument of learned Advocate for the appellants is that the inam lands being within village Goteru, they also are "estates" within the meaning of S. 3 (2) (d) read with Explanation (1). It appears to us that this argument is clearly erroneous. There is no doubt that the Mokhasa grant is an estate within the meaning of the S. 3 (2) of the Madras Estates Land Act, and that is not disputed before us. That does not however, mean that the minor inams would also constitute an estate within the meaning of S. 3 (2) (d). As was pointed out in ILR (1954) Mad 116 : (AIR 1954 Mad 415 (FB) ) the crucial test is whether at the time of the grant the subject-matter was a whole village or only part of a village.In District Board, Tanjore v. M. K. Noor Mohamed Rowther, AIR 1953 S C 446 this Court observed that Any inam village" in Sec. 3 (2) (d) meant a whole village granted in inam and not anything less than a village however big a part it might be of that village. In other words, the grant must either comprise the whole area of a village or must be so expressed as is tantamount to the grant of a named village as a whole, even though it does not comprise the whole of the village area, and in the latter case, in order to come within the scope of the definition it must fulfil the conditions: (a) the words of the grant should expressly (and not by implication) make it a grant of a particular village as such by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure, or (c) that it had been reserved for communal purposes. The minor inams under consideration in these suits were pre-settlement inams and the finding which cannot now be challenged is that they were excluded from the assets of the zamindari at the time of the permanent settlement in 1802, though the Mokhasas were not so excluded. That being the position, the minor inams were not grants of whole villages and were not estates within the meaning of S. 3 (2) (d) of the Madras Estates Land Act. Therefore, the appellants cannot claim the benefit of S. 6 of the said Act.8. Learned Advocate for the appellants also addressed us at some length on the beneficent nature of the provisions of the Madras Estates Land Act and submitted that the appellants herein should not be deprived of the benefits of that Act. But the appellants must satisfy us first that they come within the protection or benefits of the Act. If the lands which they held were not an "estate" within the meaning of the Act, then there can be no question of giving them the benefit of the Act.
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a village.In District Board, Tanjore v. M. K. Noor Mohamed Rowther, AIR 1953 S C 446 this Court observed that Any inam village" in Sec. 3 (2) (d) meant a whole village granted in inam and not anything less than a village however big a part it might be of that village. In other words, the grant must either comprise the whole area of a village or must be so expressed as is tantamount to the grant of a named village as a whole, even though it does not comprise the whole of the village area, and in the latter case, in order to come within the scope of the definition it must fulfil the conditions: (a) the words of the grant should expressly (and not by implication) make it a grant of a particular village as such by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure, or (c) that it had been reserved for communal purposes. The minor inams under consideration in these suits were pre-settlement inams and the finding which cannot now be challenged is that they were excluded from the assets of the zamindari at the time of the permanent settlement in 1802, though the Mokhasas were not so excluded. That being the position, the minor inams were not grants of whole villages and were not estates within the meaning of S. 3 (2) (d) of the Madras Estates Land Act. Therefore, the appellants cannot claim the benefit of S. 6 of the said Act.8. Learned Advocate for the appellants also addressed us at some length on the beneficent nature of the provisions of the Madras Estates Land Act and submitted that the appellants herein should not be deprived of the benefits of that Act. But the appellants must satisfy us first that they come within the protection or benefits of the Act. If the lands which they held were not an "estate" within the meaning of the Act, then there can be no question of giving them the benefit of theinterpretation of S. 3 (2) (d) was accepted without question until the decision in Ademma v. Satyadhyana Thirtha Swamivaru, 1943-2 Mad LJ 289: (AIR 1943 Mad 187 ) where for the first time a different note was struck. It was held therein that where portions of the estate had previously been granted as minor inams, a subsequent grant of the rest of the village was not of an estate as it was not of the whole village. The Legislature thereupon intervened and enacted Explanation (1) with the object of restoring the view of the law which had been held before the decision in 1943-22 Mad 289: (AIR 1943 Mad 187 ).The crucial test to find out whether the subject-matter of a grant falls within the definition of an estate under S. 3 (2) (d) of the Act is whether at the time of the grant the subject-matter was a whole village or only a part of a village. If at the time of the grant it was only a part of a village, then the amending Act makes no difference to this and such a part would not be an estate within the meaning of the term. But if the grant was of the whole village and a named one, then it would be an estate. Learned Advocate for the appellants has referred us to the Mokhasa sanad of December 8, 1802. That sanad gives a list of villages of which Goteru is one. The argument of learned Advocate for the appellants is that the inam lands being within village Goteru, they also are "estates" within the meaning of S. 3 (2) (d) read with Explanation (1). It appears to us that this argument is clearly erroneous. There is no doubt that the Mokhasa grant is an estate within the meaning of the S. 3 (2) of the Madras Estates Land Act, and that is not disputed before us. That does not however, mean that the minor inams would also constitute an estate within the meaning of S. 3 (2) (d). As was pointed out in ILR (1954) Mad 116 : (AIR 1954 Mad 415 (FB) ) the crucial test is whether at the time of the grant the subject-matter was a whole village or only part of a village.In District Board, Tanjore v. M. K. Noor Mohamed Rowther, AIR 1953 S C 446 this Court observed that Any inam village" in Sec. 3 (2) (d) meant a whole village granted in inam and not anything less than a village however big a part it might be of that village. In other words, the grant must either comprise the whole area of a village or must be so expressed as is tantamount to the grant of a named village as a whole, even though it does not comprise the whole of the village area, and in the latter case, in order to come within the scope of the definition it must fulfil the conditions: (a) the words of the grant should expressly (and not by implication) make it a grant of a particular village as such by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure, or (c) that it had been reserved for communal purposes. The minor inams under consideration in these suits were pre-settlement inams and the finding which cannot now be challenged is that they were excluded from the assets of the zamindari at the time of the permanent settlement in 1802, though the Mokhasas were not so excluded. That being the position, the minor inams were not grants of whole villages and were not estates within the meaning of S. 3 (2) (d) of the Madras Estates Land Act. Therefore, the appellants cannot claim the benefit of S. 6 of the said Act.
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M/S Electrical Cable Development Association Vs. M/S Arun Commercial Premises Cooperative Housing Society Lt | Court that the appellant-Company is a distinct legal entity which came into existence in 1976 and is in occupation of suit premises without any agreement of leave or licence in incorrect inasmuch as the appellant is only a successor to the two un-registered bodies referred to earlier; and (3) that the finding recorded by the appellate court pursuant to the directions issued by this Court on 20th of August, 1991 are not correct. 4. Section 91 of the Act provides for raising a dispute inter alia touching upon the business of a cooperative society. When a question was raised as to where a society builds houses for the members and such members let out the premises, whether it would be within the scope of business of the society, this Court in O.M. Bhatanagar v. Ruki Bai, 1982(2) SCC 244 : 1982(2) RCR 54, answered the same. It was held that if the business of the Society is to construct or buy houses and let them out to its members, such letting out would form part of its business. A society formed with the object of providing accommodation to its members which is its normal business activity and has to ensure that the premises are in occupation of its members in accordance with the bye-laws framed by it rather than of a person in unauthorised occupation as it is the concern of the members who let it out to another under an agreement to leave and licence and wants to secure possession of the premises for his own use after the termination of the licence. Therefore, a claim by the Society together with such member for ejectment of a person who was permitted to occupy, upon the revocation of a licence, is a dispute falling within Section 91(1) of the Act. The same view has been reiterated by this Court in Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. and others, (1990) 2 SCC 288. Therefore, it would not be open to the appellant now to contend that the proceedings before the authorities functioning under Section 91 of the Act would be barred notwithstanding the proceedings filed by respondent No. 2 before the Small Causes Court. As held by this Court in the aforesaid decisions the proceedings under the Act could be maintained and, therefore, we are of the view that the first contention raised by Shri Rohtagi deserves to be rejected. 5. Plethora of material was placed before the authorities and we are also taken through the same to show that there was in existence an unregistered body known as M/s Electrical Cable Development Association and also M/s Indian Cable Makers Association, its predecessor. However, there is no material on the record to show that the appellant is the successor to such association. We have also carefully gone through the Memorandum of Association and the Articles of the appellant-Company to find out whether in any form the unregistered body has converted itself into a registered body as a Company. On the other hand, what is stated in clause 3(a) in regard to membership is as follows :- "3(a) Every person who shall be a member of the unregistered association known as "Electrical Cable Development Association" at the date of registration of this Association shall be entitled as of right to be admitted as a member of this Association on his submitting a formal application addressed to the Secretary of the Association agreeing to be bound by the Rules and Regulations and Bye-Laws made under these presents. Such a person shall be exempted from payment of entrance fee but shall have to pay deposit as per Rule 5, within the period as may be prescribed and extended by the Executive Committee." 6. All that is provided under the said Article is that a member of Electrical Cable Development Association as of right be admitted as a member of the appellant-Company subject to certain conditions. It does not say that all those members in the unregistered association become members of the association much less any resolution is produced before us of the Electrical Cable Development Association to show that they are converting themselves into an incorporated body. The members of the unregistered body are all incorporated bodies having a high commercial standing in the corporate sector, and therefore, cannot be expected to be so naive or ignorant as not to take such steps in the event it was the intention of such body to become an incorporated body in the manner suggested by the appellant. If really such action had been taken, it would not have been difficult for the appellant to produce such material. Therefore, the fact that the appellant is a distinct legal entity as found by the authorities below and affirmed by the High Court, cannot be seriously disputed. Since the appellant is a distinct legal entity other than the unregistered bodies and there is no material to show that it is a successor thereto it is not understandable as to how it became a tenant in respect of the premises in question without an agreement with the Society or respondent No. 2 who is a member thereof. It baffles us and thus the view taken by the High Court appears to us to be correct. Therefore, the second contention raised by the appellant either has no merit and is rejected.7. So far as the third contention urged on behalf of the appellant is concerned in the view we have taken, we may at once state that it is not necessary to examine the evidence adduced before the appellate Court and the appreciation of the same by it. Even without deciding the same if we assume the same for the purpose of appreciation of the matter that the findings recorded by the appellate Court are not correct and deserve to be answered in favour of the appellant, still the appellant has to fail in view of the finding we have recorded on the second contention raised by the appellant. | 0[ds]6. All that is provided under the said Article is that a member of Electrical Cable Development Association as of right be admitted as a member of thesubject to certain conditions. It does not say that all those members in the unregistered association become members of the association much less any resolution is produced before us of the Electrical Cable Development Association to show that they are converting themselves into an incorporated body. The members of the unregistered body are all incorporated bodies having a high commercial standing in the corporate sector, and therefore, cannot be expected to be so naive or ignorant as not to take such steps in the event it was the intention of such body to become an incorporated body in the manner suggested by the appellant. If really such action had been taken, it would not have been difficult for the appellant to produce such material. Therefore, the fact that the appellant is a distinct legal entity as found by the authorities below and affirmed by the High Court, cannot be seriously disputed. Since the appellant is a distinct legal entity other than the unregistered bodies and there is no material to show that it is a successor thereto it is not understandable as to how it became a tenant in respect of the premises in question without an agreement with the Society or respondent No. 2 who is a member thereof. It baffles us and thus the view taken by the High Court appears to us to be correct. Therefore, the second contention raised by the appellant either has no merit and is rejected.7. So far as the third contention urged on behalf of the appellant is concerned in the view we have taken, we may at once state that it is not necessary to examine the evidence adduced before the appellate Court and the appreciation of the same by it. Even without deciding the same if we assume the same for the purpose of appreciation of the matter that the findings recorded by the appellate Court are not correct and deserve to be answered in favour of the appellant, still the appellant has to fail in view of the finding we have recorded on the second contention raised by the appellant. | 0 | 1,773 | 404 | ### 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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Court that the appellant-Company is a distinct legal entity which came into existence in 1976 and is in occupation of suit premises without any agreement of leave or licence in incorrect inasmuch as the appellant is only a successor to the two un-registered bodies referred to earlier; and (3) that the finding recorded by the appellate court pursuant to the directions issued by this Court on 20th of August, 1991 are not correct. 4. Section 91 of the Act provides for raising a dispute inter alia touching upon the business of a cooperative society. When a question was raised as to where a society builds houses for the members and such members let out the premises, whether it would be within the scope of business of the society, this Court in O.M. Bhatanagar v. Ruki Bai, 1982(2) SCC 244 : 1982(2) RCR 54, answered the same. It was held that if the business of the Society is to construct or buy houses and let them out to its members, such letting out would form part of its business. A society formed with the object of providing accommodation to its members which is its normal business activity and has to ensure that the premises are in occupation of its members in accordance with the bye-laws framed by it rather than of a person in unauthorised occupation as it is the concern of the members who let it out to another under an agreement to leave and licence and wants to secure possession of the premises for his own use after the termination of the licence. Therefore, a claim by the Society together with such member for ejectment of a person who was permitted to occupy, upon the revocation of a licence, is a dispute falling within Section 91(1) of the Act. The same view has been reiterated by this Court in Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. and others, (1990) 2 SCC 288. Therefore, it would not be open to the appellant now to contend that the proceedings before the authorities functioning under Section 91 of the Act would be barred notwithstanding the proceedings filed by respondent No. 2 before the Small Causes Court. As held by this Court in the aforesaid decisions the proceedings under the Act could be maintained and, therefore, we are of the view that the first contention raised by Shri Rohtagi deserves to be rejected. 5. Plethora of material was placed before the authorities and we are also taken through the same to show that there was in existence an unregistered body known as M/s Electrical Cable Development Association and also M/s Indian Cable Makers Association, its predecessor. However, there is no material on the record to show that the appellant is the successor to such association. We have also carefully gone through the Memorandum of Association and the Articles of the appellant-Company to find out whether in any form the unregistered body has converted itself into a registered body as a Company. On the other hand, what is stated in clause 3(a) in regard to membership is as follows :- "3(a) Every person who shall be a member of the unregistered association known as "Electrical Cable Development Association" at the date of registration of this Association shall be entitled as of right to be admitted as a member of this Association on his submitting a formal application addressed to the Secretary of the Association agreeing to be bound by the Rules and Regulations and Bye-Laws made under these presents. Such a person shall be exempted from payment of entrance fee but shall have to pay deposit as per Rule 5, within the period as may be prescribed and extended by the Executive Committee." 6. All that is provided under the said Article is that a member of Electrical Cable Development Association as of right be admitted as a member of the appellant-Company subject to certain conditions. It does not say that all those members in the unregistered association become members of the association much less any resolution is produced before us of the Electrical Cable Development Association to show that they are converting themselves into an incorporated body. The members of the unregistered body are all incorporated bodies having a high commercial standing in the corporate sector, and therefore, cannot be expected to be so naive or ignorant as not to take such steps in the event it was the intention of such body to become an incorporated body in the manner suggested by the appellant. If really such action had been taken, it would not have been difficult for the appellant to produce such material. Therefore, the fact that the appellant is a distinct legal entity as found by the authorities below and affirmed by the High Court, cannot be seriously disputed. Since the appellant is a distinct legal entity other than the unregistered bodies and there is no material to show that it is a successor thereto it is not understandable as to how it became a tenant in respect of the premises in question without an agreement with the Society or respondent No. 2 who is a member thereof. It baffles us and thus the view taken by the High Court appears to us to be correct. Therefore, the second contention raised by the appellant either has no merit and is rejected.7. So far as the third contention urged on behalf of the appellant is concerned in the view we have taken, we may at once state that it is not necessary to examine the evidence adduced before the appellate Court and the appreciation of the same by it. Even without deciding the same if we assume the same for the purpose of appreciation of the matter that the findings recorded by the appellate Court are not correct and deserve to be answered in favour of the appellant, still the appellant has to fail in view of the finding we have recorded on the second contention raised by the appellant.
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6. All that is provided under the said Article is that a member of Electrical Cable Development Association as of right be admitted as a member of thesubject to certain conditions. It does not say that all those members in the unregistered association become members of the association much less any resolution is produced before us of the Electrical Cable Development Association to show that they are converting themselves into an incorporated body. The members of the unregistered body are all incorporated bodies having a high commercial standing in the corporate sector, and therefore, cannot be expected to be so naive or ignorant as not to take such steps in the event it was the intention of such body to become an incorporated body in the manner suggested by the appellant. If really such action had been taken, it would not have been difficult for the appellant to produce such material. Therefore, the fact that the appellant is a distinct legal entity as found by the authorities below and affirmed by the High Court, cannot be seriously disputed. Since the appellant is a distinct legal entity other than the unregistered bodies and there is no material to show that it is a successor thereto it is not understandable as to how it became a tenant in respect of the premises in question without an agreement with the Society or respondent No. 2 who is a member thereof. It baffles us and thus the view taken by the High Court appears to us to be correct. Therefore, the second contention raised by the appellant either has no merit and is rejected.7. So far as the third contention urged on behalf of the appellant is concerned in the view we have taken, we may at once state that it is not necessary to examine the evidence adduced before the appellate Court and the appreciation of the same by it. Even without deciding the same if we assume the same for the purpose of appreciation of the matter that the findings recorded by the appellate Court are not correct and deserve to be answered in favour of the appellant, still the appellant has to fail in view of the finding we have recorded on the second contention raised by the appellant.
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Pramod Malhotra & Others Vs. Union of India & Others | the depositors’ funds were safe and properly managed. Thus, the facts of this case were also identical to the facts of the present case. Such a claim was not accepted. It was held that relationship between the plaintiffs and defendants was not such that it would be just and reasonable to impose the liability in negligence for the loss suffered by the plaintiffs. It was held that the Board and the Treasurer were exercising typical functions of modern Government in the general public interst which included balancing of competing considerations. It was held that the defendants did not possess sufficient control over the management of the Bank to warrant imposition of liability. The principles laid down in Ann’s case were held not applicable to financial transactions.23. Mr. Sorabjee also relied upon the case of Three Rivers DC v. Bank of England reported in (2000) 3 All England Law Reports 1, and in (2001) 2 All England Reports 513. This again was a case wherein the Bank of England had granted a licence to the BCCI to carry on business as a deposit taking institution. BCCI collapsed in 1991 owing to fraud on a vast scale. Several thousand depositors brought proceedings against the Bank of England seeking recovery of their sums when BCCI collapsed. In that case it was pleaded that the Officers of the Bank of England had acted in bad faith by licensing BCCI when they knew that to do so was unlawful and that the Officers had shut their eyes to what was happening with BCCI after granting the licence and had failed to take steps to close BCCI at least by mid-1980s. On a preliminary issue the trial Judge struck out the claim. The House of Lords held that this could not have been done at the preliminary stage and remitted the matter back for trial. But, while so doing, it accepted the principles laid down in the case of Davis v. Radcliffe. Thereafter in the same case, while remitting the matter back, the House of Lords held that the essential elements should be as follows: “First, there must be an unlawful act or omission done or made in the exercise of power by the public officer. Second, as the essence of the tort is an abuse of power, the act or omission must have been done or made with the required mental element. Third, for the same reason, the act or omission must have been done or made in bad faith. Fourth, as to standing, the claimants must demonstrate that they have a sufficient interest to sue the defendant. Fifth, as causation is an essential element of the cause of action, the act or omission must have caused the claimants’ loss.” 24. Mr. Sorabjee submitted that in the present case there are no averments. He submitted that even if there were averments these are not matters which could be gone into in writ jurisdiction as it would require extensive evidence. He submitted that these are matters in which the Court could not pass any order in exercise of its writ jurisdiction. 25. We have heard the submissions of both the parties. Whilst we sympathise with the depositors for their loss, we are unable to accept the submission of Mr. Lalit that the principles laid down in cases relating to breach of Article 21 rights can be applied to cases of loss caused in financial transactions undertaken by individuals with open eyes. In our view the principles laid down in the cases of Yuen Kun-yeu v. A-G of Hong Kong and Davis v. Radcliffe are fully applicable. In our view the principles laid down in Ann’s case have no application to financial transactions. RBI is undoubtedly performing a statutory function. Undoubtedly the general public interest has to be kept in mind by RBI. But that is not the only thing they have to keep in mind. They also have to balance general public interest with the interests and need of Banks and Financial Institutions. They cannot easily close down a Banking Institution merely because there are a few irregularities. They have to keep in mind the implications of closing a Bank or a financial institution. A closing of a Bank or financial institution has its impact not just on that Bank/financial institution and its customers and debtors but on the future of financial services in that region. Thus competing interests have to be weighed and balanced. In hindsight it is easy to point fingers. However at that stage it would not have been an easy decision for RBI to have closed SBL when it was a major Bank in a small State like Sikkim. One may criticize the decision of RBI to grant SBL a licence to open a Branch in Delhi when the licence under Section 22 had not yet been granted. But still that will not be sufficient to foist liability on RBI to repay all depositors. What the petitioners want is to foist on RBI liability for the default of SBL. Such liability will be rarely imposed. RBI did not have day-to-day management or control on SBL. Also the relationship of RBI with creditors or depositors of SBL is not such that it would be just or reasonable to impose a liability in negligence on RBI.26. Even otherwise we find that there are no proper averments. There is absolutely no averment regarding bad faith. It was fairly admitted by Mr. Lalit that there is no case made out on the basis of public misfeasance. He fairly stated that at the highest the case could only be that of a violation of statutory duties. However, as observed above, compensation for violation of a statutory duty to enable individuals to recoup financial loan has never been recognized in India. In our view the petitioners having chosen on their own to deposit amounts with the SBL cannot claim to recover against RBI. In such a case the loss has to be allowed to fail where it falls. | 0[ds]20. Mr. Sorabjee submitted, and in our view correctly, that the Indian cases relied upon by Mr. Lalit are all cases which relate to infringement of life and liberty under Article 21 i.e. where a person has been injured or killed. It is in those types of cases that the above mentioned principles have been applied in India. Mr. Sorabjee pointed that Mr. Lalit was not able to show any case where these principles have been applied to financial transactions undertaken by individuals with open eyes in the hope of making larger profits. He submitted that except for a few stray averments in the petition there was no averment that by issuing licence RBI represented that SBL was sound and creditworthy.We have heard the submissions of both the parties. Whilst we sympathise with the depositors for their loss, we are unable to accept the submission of Mr. Lalit that the principles laid down in cases relating to breach of Article 21 rights can be applied to cases of loss caused in financial transactions undertaken by individuals with open eyes. In our view the principles laid down in the cases of Yuenof Hong Kong and Davis v. Radcliffe are fully applicable. In our view the principles laid down incase have no application to financial transactions. RBI is undoubtedly performing a statutory function. Undoubtedly the general public interest has to be kept in mind by RBI. But that is not the only thing they have to keep in mind. They also have to balance general public interest with the interests and need of Banks and Financial Institutions. They cannot easily close down a Banking Institution merely because there are a few irregularities. They have to keep in mind the implications of closing a Bank or a financial institution. A closing of a Bank or financial institution has its impact not just on that Bank/financial institution and its customers and debtors but on the future of financial services in that region. Thus competing interests have to be weighed and balanced. In hindsight it is easy to point fingers. However at that stage it would not have been an easy decision for RBI to have closed SBL when it was a major Bank in a small State like Sikkim. One may criticize the decision of RBI to grant SBL a licence to open a Branch in Delhi when the licence under Section 22 had not yet been granted. But still that will not be sufficient to foist liability on RBI to repay all depositors. What the petitioners want is to foist on RBI liability for the default of SBL. Such liability will be rarely imposed. RBI did not havemanagement or control on SBL. Also the relationship of RBI with creditors or depositors of SBL is not such that it would be just or reasonable to impose a liability in negligence on RBI.26. Even otherwise we find that there are no proper averments. There is absolutely no averment regarding bad faith. It was fairly admitted by Mr. Lalit that there is no case made out on the basis of public misfeasance. He fairly stated that at the highest the case could only be that of a violation of statutory duties. However, as observed above, compensation for violation of a statutory duty to enable individuals to recoup financial loan has never been recognized in India. In our view the petitioners having chosen on their own to deposit amounts with the SBL cannot claim to recover against RBI. In such a case the loss has to be allowed to fail where it falls. | 0 | 5,962 | 639 | ### 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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the depositors’ funds were safe and properly managed. Thus, the facts of this case were also identical to the facts of the present case. Such a claim was not accepted. It was held that relationship between the plaintiffs and defendants was not such that it would be just and reasonable to impose the liability in negligence for the loss suffered by the plaintiffs. It was held that the Board and the Treasurer were exercising typical functions of modern Government in the general public interst which included balancing of competing considerations. It was held that the defendants did not possess sufficient control over the management of the Bank to warrant imposition of liability. The principles laid down in Ann’s case were held not applicable to financial transactions.23. Mr. Sorabjee also relied upon the case of Three Rivers DC v. Bank of England reported in (2000) 3 All England Law Reports 1, and in (2001) 2 All England Reports 513. This again was a case wherein the Bank of England had granted a licence to the BCCI to carry on business as a deposit taking institution. BCCI collapsed in 1991 owing to fraud on a vast scale. Several thousand depositors brought proceedings against the Bank of England seeking recovery of their sums when BCCI collapsed. In that case it was pleaded that the Officers of the Bank of England had acted in bad faith by licensing BCCI when they knew that to do so was unlawful and that the Officers had shut their eyes to what was happening with BCCI after granting the licence and had failed to take steps to close BCCI at least by mid-1980s. On a preliminary issue the trial Judge struck out the claim. The House of Lords held that this could not have been done at the preliminary stage and remitted the matter back for trial. But, while so doing, it accepted the principles laid down in the case of Davis v. Radcliffe. Thereafter in the same case, while remitting the matter back, the House of Lords held that the essential elements should be as follows: “First, there must be an unlawful act or omission done or made in the exercise of power by the public officer. Second, as the essence of the tort is an abuse of power, the act or omission must have been done or made with the required mental element. Third, for the same reason, the act or omission must have been done or made in bad faith. Fourth, as to standing, the claimants must demonstrate that they have a sufficient interest to sue the defendant. Fifth, as causation is an essential element of the cause of action, the act or omission must have caused the claimants’ loss.” 24. Mr. Sorabjee submitted that in the present case there are no averments. He submitted that even if there were averments these are not matters which could be gone into in writ jurisdiction as it would require extensive evidence. He submitted that these are matters in which the Court could not pass any order in exercise of its writ jurisdiction. 25. We have heard the submissions of both the parties. Whilst we sympathise with the depositors for their loss, we are unable to accept the submission of Mr. Lalit that the principles laid down in cases relating to breach of Article 21 rights can be applied to cases of loss caused in financial transactions undertaken by individuals with open eyes. In our view the principles laid down in the cases of Yuen Kun-yeu v. A-G of Hong Kong and Davis v. Radcliffe are fully applicable. In our view the principles laid down in Ann’s case have no application to financial transactions. RBI is undoubtedly performing a statutory function. Undoubtedly the general public interest has to be kept in mind by RBI. But that is not the only thing they have to keep in mind. They also have to balance general public interest with the interests and need of Banks and Financial Institutions. They cannot easily close down a Banking Institution merely because there are a few irregularities. They have to keep in mind the implications of closing a Bank or a financial institution. A closing of a Bank or financial institution has its impact not just on that Bank/financial institution and its customers and debtors but on the future of financial services in that region. Thus competing interests have to be weighed and balanced. In hindsight it is easy to point fingers. However at that stage it would not have been an easy decision for RBI to have closed SBL when it was a major Bank in a small State like Sikkim. One may criticize the decision of RBI to grant SBL a licence to open a Branch in Delhi when the licence under Section 22 had not yet been granted. But still that will not be sufficient to foist liability on RBI to repay all depositors. What the petitioners want is to foist on RBI liability for the default of SBL. Such liability will be rarely imposed. RBI did not have day-to-day management or control on SBL. Also the relationship of RBI with creditors or depositors of SBL is not such that it would be just or reasonable to impose a liability in negligence on RBI.26. Even otherwise we find that there are no proper averments. There is absolutely no averment regarding bad faith. It was fairly admitted by Mr. Lalit that there is no case made out on the basis of public misfeasance. He fairly stated that at the highest the case could only be that of a violation of statutory duties. However, as observed above, compensation for violation of a statutory duty to enable individuals to recoup financial loan has never been recognized in India. In our view the petitioners having chosen on their own to deposit amounts with the SBL cannot claim to recover against RBI. In such a case the loss has to be allowed to fail where it falls.
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20. Mr. Sorabjee submitted, and in our view correctly, that the Indian cases relied upon by Mr. Lalit are all cases which relate to infringement of life and liberty under Article 21 i.e. where a person has been injured or killed. It is in those types of cases that the above mentioned principles have been applied in India. Mr. Sorabjee pointed that Mr. Lalit was not able to show any case where these principles have been applied to financial transactions undertaken by individuals with open eyes in the hope of making larger profits. He submitted that except for a few stray averments in the petition there was no averment that by issuing licence RBI represented that SBL was sound and creditworthy.We have heard the submissions of both the parties. Whilst we sympathise with the depositors for their loss, we are unable to accept the submission of Mr. Lalit that the principles laid down in cases relating to breach of Article 21 rights can be applied to cases of loss caused in financial transactions undertaken by individuals with open eyes. In our view the principles laid down in the cases of Yuenof Hong Kong and Davis v. Radcliffe are fully applicable. In our view the principles laid down incase have no application to financial transactions. RBI is undoubtedly performing a statutory function. Undoubtedly the general public interest has to be kept in mind by RBI. But that is not the only thing they have to keep in mind. They also have to balance general public interest with the interests and need of Banks and Financial Institutions. They cannot easily close down a Banking Institution merely because there are a few irregularities. They have to keep in mind the implications of closing a Bank or a financial institution. A closing of a Bank or financial institution has its impact not just on that Bank/financial institution and its customers and debtors but on the future of financial services in that region. Thus competing interests have to be weighed and balanced. In hindsight it is easy to point fingers. However at that stage it would not have been an easy decision for RBI to have closed SBL when it was a major Bank in a small State like Sikkim. One may criticize the decision of RBI to grant SBL a licence to open a Branch in Delhi when the licence under Section 22 had not yet been granted. But still that will not be sufficient to foist liability on RBI to repay all depositors. What the petitioners want is to foist on RBI liability for the default of SBL. Such liability will be rarely imposed. RBI did not havemanagement or control on SBL. Also the relationship of RBI with creditors or depositors of SBL is not such that it would be just or reasonable to impose a liability in negligence on RBI.26. Even otherwise we find that there are no proper averments. There is absolutely no averment regarding bad faith. It was fairly admitted by Mr. Lalit that there is no case made out on the basis of public misfeasance. He fairly stated that at the highest the case could only be that of a violation of statutory duties. However, as observed above, compensation for violation of a statutory duty to enable individuals to recoup financial loan has never been recognized in India. In our view the petitioners having chosen on their own to deposit amounts with the SBL cannot claim to recover against RBI. In such a case the loss has to be allowed to fail where it falls.
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P. Suseela and Ors Vs. University Grants Commission and Ors | unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited.(Vide Hindustan Development Corpn. [(1993) 3 SCC 499] 20. In University Grants Commission v. Sadhana Chaudhary (1996) 10 SCC, 536 , it is true that in paragraph 22, some of the very appellants before us are referred to as having a legitimate expectation in the matter of appointment to the post of Lecturer in Universities/Colleges, but that case would have no direct application here. There a challenge was made to exemptions granted at that time to Ph.D. holders and M. Phil. degree holders. It was found that such exemption had a rational relation to the object sought to be achieved at that point of time, being based on an intelligible differentia. An Article 14 challenge to the said exemption was, therefore, repelled. Even assuming that the said judgment would continue to apply even after the 2009 Regulations, a legitimate expectation must always yield to the larger public interest. The larger public interest in the present case is nothing less than having highly qualified Assistant Professors to teach in UGC Institutions. Even if, therefore, the private appellants before us had a legitimate expectation that given the fact that the UGC granted them an exemption from the NET and continued to state that such exemption should continue to be granted even after the Government direction of 12th November, 2008 would have to yield to the larger public interest of selection of the most meritorious among candidates to teach in Institutions governed by the UGC Act. 21. The Allahabad High Court in its judgment dated 6th April, 2012 has held as follows: 104. CONCLUSIONS: 1. The Central Government, in exercise of its powers under Section 20 (1) of UGC Act, 1956, does not possess powers and authority to set aside or annul the recommendations of the University Grants Commission, and the regulations made by it under Section 26 (1) (e) of the Act defining the qualification, that should ordinarily be required to be possessed by any person to be appointed to the teaching posts of the University, for which under Section 26 (2) of the UGC Act, 1956, the previous approval of the Central Government is not required. 2. The exemptions given by UGC to those, who were awarded Ph.D degrees prior to 31.12.2009 before the enforcement of the Regulations of 2009, is not a question of policy relating to national purpose on which the Central Government could have issued directions under Section 20 (1) of the UGC Act, 1956. 3. The UGC is an expert body constituted with specialists in laying down standards and for promotion and coordination of University education. The recommendations made by it in the matters of qualifications and the limited exemptions of such qualifications for appointment for teachers in Universities taken after constituting expert Committees and considering their recommendations is not subject to supervision and control by the Central Government. The Central Government in the matters of laying down minimum qualifications for appointment of teachers in the University, does not possess any supervisory powers, to annul the resolutions of UGC. 4. The Ph.D holders, who were awarded Ph.D degrees prior to 31.12.2009, cannot be said to have legitimate expectation maturing into any right to be considered for appointment on teaching posts in the University, without obtaining the NET/SLET/SET qualifications, unless the UGC has provided for any exemptions. 5. The resolution on agenda item no. 6.04 and 6.05 in the 468th meeting of the UGC held on 23.2.2010, and the resolution of UGC in its 471st meeting on agenda item no. 2.08 dated 12.8.2010 recommending the 3rd Amendments to the Regulations of 2009 to be prospective in nature, is binding on the Universities including the University of Allahabad. 6. The petitioners were awarded Ph.D degrees in the year 2009 and in the year 2003 respectively prior to enforcement of the 3rd Amendment in the regulations, which came into force on 31.12.2009, and thus they are eligible, even if they are not NET/SLET/SET qualified, if they have been awarded Ph.D degree with any six conditions out of 11 recommended by the UGC prior to 31.12.2009. The writ petition is allowed. The petitioners are held eligible for consideration for appointment as Lecturer for guest faculty in the Department of Sanskrit of the University, provided they satisfy any of the six tests out of eleven, laid down by the UGC, and which are made essential for award of Ph.D degree under the 3rd Amendment of the Regulations of 2009. It will be open to the University to consider from the material produced by the petitioners, that they satisfy six out of eleven tests recommended by the University Grants Commission for award of their Ph.D. 22. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also pointed out that the regulation making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government. | 1[ds]12. It is clear that Section 26 enables the Commission to make regulations only if they are consistent with the UGC Act. This necessarily means that such regulations must conform to Section 20 of the Act and under Section 20 of the Act the Central Government is given the power to give directions on questions of policy relating to national purposes which shall guide the Commission in the discharge of its functions under the Act. It is clear, therefore, that both the directions of 12th November, 2008 and 30th March, 2010 are directions made pertaining to questions of policy relating to national purposes inasmuch as, being based on the Mungekar Committee Report, the Central Government felt that a common uniform nationwide test should be a minimum eligibility condition for recruitment for the appointment of Lecturer/Assistant Professors in Universities/Colleges/Institutions. This is for the obvious reason that M. Phil. degrees or Ph.D. degrees are granted by different Universities/Institutions having differing standards of excellence. It is quite possible to conceive of M.Phil/ Ph.D. degrees being granted by several Universities which did not have stringent standards of excellence. Considering as a matter of policy that the appointment of Lecturers/ Assistant Professors in all institutions governed by the UGC Act (which are institutions all over the country), the need was felt to have in addition a national entrance test as a minimum eligibility condition being an additional qualification which has become necessary in view of wide disparities in the granting of M. Phil./Ph.D. degrees by various Universities/ Institutions. The object sought to be achieved by these directions is clear: that all Lecturers in Universities/Colleges/Institutions governed by the UGC Act should have a certain minimum standard of excellence before they are appointed as such. These directions are not only made in exercise of powers under Section 20 of the Act but are made to provide for coordination and determination of standards which lies at the very core of the UGC Act. It is clear, therefore, that any regulation made under Section 26 must conform to directions issued by the Central Government under Section 20 of the Act13. It was argued that since the previous approval of the Central Government was not necessary for regulations which define the qualifications required of persons to be appointed to the teaching staff of a University, the Government has no role to play in such matters and cannot dictate to the Commission. This argument does not hold water for the simple reason that it ignores the opening lines of Section 26(1) which states that the Commission can only make regulations consistent with the Act, which brings in the Central Governments power under Section 20 of the Act, a power that is independent of sub-section (2) of Section 26. A regulation may not require the previous approval of the Central Government and may yet have to be in conformity with a direction issued under Section 20 of the Act. In fact, even where a regulation can only be made with the previous approval of the Central Government, the Central Government would have a role to play both before and after the regulation is made. In the first case, it would accord its previous approval to the regulation. Once the regulation becomes law, it may issue directions under Section 20 pursuant to which the very same regulation may have to be modified or done away with to conform to such direction. It is clear, therefore, that Section 26(2) would not stand in the way of the directions issued in the present case by the Central Government to the Commission15. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail16. One of the learned counsel for the petitioners argued, based on the language of the direction of the Central Government dated 12th November, 2008 that all that the Government wanted the UGC to do was to generally prescribe NET as a qualification. But this did not mean that UGC had to prescribe this qualification without providing for any exemption. We are unable to accede to this argument for the simple reason that the word generally precedes the word compulsory and it is clear that the language of the direction has been followed both in letter and in spirit by the UGC regulations of 2009 and 201017. The arguments based on Article 14 equally have to be rejected. It is clear that the object of the directions of the Central Government read with the UGC regulations of 2009/2010 are to maintain excellence in standards of higher education. Keeping this object in mind, a minimum eligibility condition of passing the national eligibility test is laid down. True, there may have been exemptions laid down by the UGC in the past, but the Central Government now as a matter of policy feels that any exemption would compromise the excellence of teaching standards in Universities/Colleges/Institutions governed by the UGC. Obviously, there is nothing arbitrary or discriminatory in this – in fact it is a core function of the UGC to see that such standards do not get diluted22. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also pointed out that the regulation making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government24. In SLP (C) NO.3054-3055/2014, a judgment of the same High Court dated 6th January, 2014 again by a Division Bench arrived at the opposite conclusion. This is also a matter which causes us some distress. A Division Bench judgment of the same High Court is binding on a subsequent Division Bench. The subsequent Division Bench can either follow it or refer such judgment to the Chief Justice to constitute a Full Bench if it differs with it. We do not appreciate the manner in which this subsequent judgment, (even though it has reached the right result) has dealt with an earlier binding Division Bench judgment of the same High Court. | 1 | 6,186 | 1,295 | ### 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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unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited.(Vide Hindustan Development Corpn. [(1993) 3 SCC 499] 20. In University Grants Commission v. Sadhana Chaudhary (1996) 10 SCC, 536 , it is true that in paragraph 22, some of the very appellants before us are referred to as having a legitimate expectation in the matter of appointment to the post of Lecturer in Universities/Colleges, but that case would have no direct application here. There a challenge was made to exemptions granted at that time to Ph.D. holders and M. Phil. degree holders. It was found that such exemption had a rational relation to the object sought to be achieved at that point of time, being based on an intelligible differentia. An Article 14 challenge to the said exemption was, therefore, repelled. Even assuming that the said judgment would continue to apply even after the 2009 Regulations, a legitimate expectation must always yield to the larger public interest. The larger public interest in the present case is nothing less than having highly qualified Assistant Professors to teach in UGC Institutions. Even if, therefore, the private appellants before us had a legitimate expectation that given the fact that the UGC granted them an exemption from the NET and continued to state that such exemption should continue to be granted even after the Government direction of 12th November, 2008 would have to yield to the larger public interest of selection of the most meritorious among candidates to teach in Institutions governed by the UGC Act. 21. The Allahabad High Court in its judgment dated 6th April, 2012 has held as follows: 104. CONCLUSIONS: 1. The Central Government, in exercise of its powers under Section 20 (1) of UGC Act, 1956, does not possess powers and authority to set aside or annul the recommendations of the University Grants Commission, and the regulations made by it under Section 26 (1) (e) of the Act defining the qualification, that should ordinarily be required to be possessed by any person to be appointed to the teaching posts of the University, for which under Section 26 (2) of the UGC Act, 1956, the previous approval of the Central Government is not required. 2. The exemptions given by UGC to those, who were awarded Ph.D degrees prior to 31.12.2009 before the enforcement of the Regulations of 2009, is not a question of policy relating to national purpose on which the Central Government could have issued directions under Section 20 (1) of the UGC Act, 1956. 3. The UGC is an expert body constituted with specialists in laying down standards and for promotion and coordination of University education. The recommendations made by it in the matters of qualifications and the limited exemptions of such qualifications for appointment for teachers in Universities taken after constituting expert Committees and considering their recommendations is not subject to supervision and control by the Central Government. The Central Government in the matters of laying down minimum qualifications for appointment of teachers in the University, does not possess any supervisory powers, to annul the resolutions of UGC. 4. The Ph.D holders, who were awarded Ph.D degrees prior to 31.12.2009, cannot be said to have legitimate expectation maturing into any right to be considered for appointment on teaching posts in the University, without obtaining the NET/SLET/SET qualifications, unless the UGC has provided for any exemptions. 5. The resolution on agenda item no. 6.04 and 6.05 in the 468th meeting of the UGC held on 23.2.2010, and the resolution of UGC in its 471st meeting on agenda item no. 2.08 dated 12.8.2010 recommending the 3rd Amendments to the Regulations of 2009 to be prospective in nature, is binding on the Universities including the University of Allahabad. 6. The petitioners were awarded Ph.D degrees in the year 2009 and in the year 2003 respectively prior to enforcement of the 3rd Amendment in the regulations, which came into force on 31.12.2009, and thus they are eligible, even if they are not NET/SLET/SET qualified, if they have been awarded Ph.D degree with any six conditions out of 11 recommended by the UGC prior to 31.12.2009. The writ petition is allowed. The petitioners are held eligible for consideration for appointment as Lecturer for guest faculty in the Department of Sanskrit of the University, provided they satisfy any of the six tests out of eleven, laid down by the UGC, and which are made essential for award of Ph.D degree under the 3rd Amendment of the Regulations of 2009. It will be open to the University to consider from the material produced by the petitioners, that they satisfy six out of eleven tests recommended by the University Grants Commission for award of their Ph.D. 22. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also pointed out that the regulation making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government.
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Professors in all institutions governed by the UGC Act (which are institutions all over the country), the need was felt to have in addition a national entrance test as a minimum eligibility condition being an additional qualification which has become necessary in view of wide disparities in the granting of M. Phil./Ph.D. degrees by various Universities/ Institutions. The object sought to be achieved by these directions is clear: that all Lecturers in Universities/Colleges/Institutions governed by the UGC Act should have a certain minimum standard of excellence before they are appointed as such. These directions are not only made in exercise of powers under Section 20 of the Act but are made to provide for coordination and determination of standards which lies at the very core of the UGC Act. It is clear, therefore, that any regulation made under Section 26 must conform to directions issued by the Central Government under Section 20 of the Act13. It was argued that since the previous approval of the Central Government was not necessary for regulations which define the qualifications required of persons to be appointed to the teaching staff of a University, the Government has no role to play in such matters and cannot dictate to the Commission. This argument does not hold water for the simple reason that it ignores the opening lines of Section 26(1) which states that the Commission can only make regulations consistent with the Act, which brings in the Central Governments power under Section 20 of the Act, a power that is independent of sub-section (2) of Section 26. A regulation may not require the previous approval of the Central Government and may yet have to be in conformity with a direction issued under Section 20 of the Act. In fact, even where a regulation can only be made with the previous approval of the Central Government, the Central Government would have a role to play both before and after the regulation is made. In the first case, it would accord its previous approval to the regulation. Once the regulation becomes law, it may issue directions under Section 20 pursuant to which the very same regulation may have to be modified or done away with to conform to such direction. It is clear, therefore, that Section 26(2) would not stand in the way of the directions issued in the present case by the Central Government to the Commission15. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail16. One of the learned counsel for the petitioners argued, based on the language of the direction of the Central Government dated 12th November, 2008 that all that the Government wanted the UGC to do was to generally prescribe NET as a qualification. But this did not mean that UGC had to prescribe this qualification without providing for any exemption. We are unable to accede to this argument for the simple reason that the word generally precedes the word compulsory and it is clear that the language of the direction has been followed both in letter and in spirit by the UGC regulations of 2009 and 201017. The arguments based on Article 14 equally have to be rejected. It is clear that the object of the directions of the Central Government read with the UGC regulations of 2009/2010 are to maintain excellence in standards of higher education. Keeping this object in mind, a minimum eligibility condition of passing the national eligibility test is laid down. True, there may have been exemptions laid down by the UGC in the past, but the Central Government now as a matter of policy feels that any exemption would compromise the excellence of teaching standards in Universities/Colleges/Institutions governed by the UGC. Obviously, there is nothing arbitrary or discriminatory in this – in fact it is a core function of the UGC to see that such standards do not get diluted22. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also pointed out that the regulation making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government24. In SLP (C) NO.3054-3055/2014, a judgment of the same High Court dated 6th January, 2014 again by a Division Bench arrived at the opposite conclusion. This is also a matter which causes us some distress. A Division Bench judgment of the same High Court is binding on a subsequent Division Bench. The subsequent Division Bench can either follow it or refer such judgment to the Chief Justice to constitute a Full Bench if it differs with it. We do not appreciate the manner in which this subsequent judgment, (even though it has reached the right result) has dealt with an earlier binding Division Bench judgment of the same High Court.
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BHARAT PETROLEUM CORPORATION LIMITED AND OTHERS Vs. ANIL PADEGAONKAR | on Union of India vs. B.V. Gopinath, (2014) 1 SCC 351 , to submit that a charge- sheet not issued according to law rendered the entire proceedings non-est. The High Court, in the facts of the case ought not to have given liberty to issue fresh charge-sheet or deny back wages while directing reinstatement. 8. The entire proceedings having been vitiated back wages ought to have been granted while directing reinstatement relying on Chairmen-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, (2011) 5 SCC 142. With regard to the second charge-sheet, it was submitted that the punishment of dismissal for absence from place of duty one hour before duty hours got over was grossly disproportionate relying on Dev Singh vs. Punjab Tourism Development Corporation Limited and Another, (2003) 8 SCC 9. 9. We have considered the submissions on behalf of the parties. The employee was posted at the Air Force Station Gwalior. There can be no two opinions that the nature of his duties had an inherent seriousness. Two charge-sheets were issued to him and departmental proceedings were conducted. The employee was given full opportunity of defence. A finding of guilt was arrived at by the enquiry officer with regard to both the charges. The employee in his departmental appeal raised no issues of procedural irregularity with consequent prejudice. A common order of punishment of discharge from service dated 21.05.1997 followed under Part III B (2)(e) of the Rules. No order of dismissal was passed under Part III-B (2)(f) of the Rules. If the Corporation was of the opinion that dismissal was the appropriate punishment in the facts of the case nothing prevented it from stating so. The High Court fell in a serious error by opining that the employee had been dismissed from service and on that premise arrived at the conclusion that the charge- sheet was incompetent in absence of it having been issued by the Functional Director who was the disciplinary authority under Sr. 1 (b) of Schedule I under Part III of the Rules for dismissal. 10. Part-III B (2) of the Rules provides for major penalties which includes inter alia removal from service which shall not be a disqualification for future employment and dismissal from service which shall ordinarily be a disqualification from future employment. The Rules therefore themselves recognise them as different punishments with varying severity. Though the word discharge does not find reference under the Rules, nonetheless in service jurisprudence, removal and/or discharge are synonymous leading to a termination or end of service but without the punitive consequences of dismissal entailing loss of past services, affecting future employment and debarring retiral benefits. There is no dispute that consequent to the impugned order of discharge, the employee has been paid his dues. 11. The employee either in his reply to the charges or in the departmental appeal rightly raised no issues with regard to lack of competence in the DGM to issue the charge-sheet. Sr. 1 (a) of Schedule I, to be read with Part III of the Rules, provides that with regard to Job Group A the Functional General Manager was the disciplinary authority for all other penalties except that of dismissal. The Functional Director was the disciplinary authority for punishment of dismissal only. The employee for the first time raised the issue in the writ petition that the charge-sheet had been issued by other than the disciplinary authority. If the employee had raised the issue either in his reply to the memo of charges or in appeal perhaps the Corporation could have addressed the issue better. Nonetheless, since a fundamental issue of jurisdiction has been raised, we shall proceed to examine the issue. 12. Rule 3(e) defines a Functional Manager as the Manager in- charge of a function. Rule 3(g) defines Disciplinary Authority as specified in Schedule I competent to impose penalties under the Rules. Competent Authority has been defined in Rule 3(h) to mean any authority empowered by the Board of Directors or the Chairman by any general or special rule or order to discharge the function or use the powers specified in the rule or order. Under Schedule I, the Functional General Manager was the disciplinary authority for punishment lesser than dismissal and the Functional director was the disciplinary authority for punishment of dismissal. We are of the considered opinion that the term Competent Authority will include a disciplinary authority so authorised in the manner prescribed in 3(h) under the delegation of authority manual dated 15.12.1987. Under Part III-F(1) of the Rules dealing with procedure for imposing major penalties, the disciplinary authority has been described to include an authority as specified in Schedule I. It includes both a Functional manager and Functional Director. Part-III-F(23) provides as follows: (23) If the Disciplinary Authority or the Competent Authority having regard to its findings on all or any of the charges is of the opinion that any of the penalties specified in Rule B should be imposed on the Management Staff it shall, notwithstanding anything contained in Rule G, make an order imposing such penalty 13. The fact that the words Disciplinary Authority or Competent Authority have been used interchangeably in Part III- F leaves no doubt in our mind that the delegation of authority manual had never been recalled or superseded. It is the specific case of the Corporation that the manual for delegation of authority issued on 15.12.1987 had never been withdrawn and the Corporation had all along in all other cases also acted on basis of the same and that no charge-sheet for a punishment lesser than dismissal had ever been issued by the Functional Director. The DGM was therefore fully competent under the manual also to both suspend and issue charge-sheet. The High Court itself reasoned that had the penalty been other than dismissal, the Functional Manager would have been competent to issue the charge-sheet. The High Court having posed unto itself the wrong question of dismissal from service, naturally arrived at an erroneous conclusion. | 1[ds]9. We have considered the submissions on behalf of the parties. The employee was posted at the Air Force Station Gwalior. There can be no two opinions that the nature of his duties had an inherent seriousness. Two charge-sheets were issued to him and departmental proceedings were conducted. The employee was given full opportunity of defence. A finding of guilt was arrived at by the enquiry officer with regard to both the charges. The employee in his departmental appeal raised no issues of procedural irregularity with consequent prejudice. A common order of punishment of discharge from service dated 21.05.1997 followed under Part III B (2)(e) of the Rules. No order of dismissal was passed under Part III-B (2)(f) of the Rules. If the Corporation was of the opinion that dismissal was the appropriate punishment in the facts of the case nothing prevented it from stating so. The High Court fell in a serious error by opining that the employee had been dismissed from service and on that premise arrived at the conclusion that the charge- sheet was incompetent in absence of it having been issued by the Functional Director who was the disciplinary authority under Sr. 1 (b) of Schedule I under Part III of the Rules for dismissal11. The employee either in his reply to the charges or in the departmental appeal rightly raised no issues with regard to lack of competence in the DGM to issue the charge-sheet. Sr. 1 (a) of Schedule I, to be read with Part III of the Rules, provides that with regard to Job Group A the Functional General Manager was the disciplinary authority for all other penalties except that of dismissal. The Functional Director was the disciplinary authority for punishment of dismissal only. The employee for the first time raised the issue in the writ petition that the charge-sheet had been issued by other than the disciplinary authority. If the employee had raised the issue either in his reply to the memo of charges or in appeal perhaps the Corporation could have addressed the issue better. We are of the considered opinion that the term Competent Authority will include a disciplinary authority so authorised in the manner prescribed in 3(h) under the delegation of authority manual dated 15.12.1987. Under Part III-F(1) of the Rules dealing with procedure for imposing major penalties, the disciplinary authority has been described to include an authority as specified in Schedule I. It includes both a Functional manager and Functional Director13. The fact that the words Disciplinary Authority or Competent Authority have been used interchangeably in Part III- F leaves no doubt in our mind that the delegation of authority manual had never been recalled or superseded. It is the specific case of the Corporation that the manual for delegation of authority issued on 15.12.1987 had never been withdrawn and the Corporation had all along in all other cases also acted on basis of the same and that no charge-sheet for a punishment lesser than dismissal had ever been issued by the Functional Director. The DGM was therefore fully competent under the manual also to both suspend and issue charge-sheet. The High Court itself reasoned that had the penalty been other than dismissal, the Functional Manager would have been competent to issue the charge-sheet. The High Court having posed unto itself the wrong question of dismissal from service, naturally arrived at an erroneous conclusion. | 1 | 2,229 | 620 | ### Instruction:
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on Union of India vs. B.V. Gopinath, (2014) 1 SCC 351 , to submit that a charge- sheet not issued according to law rendered the entire proceedings non-est. The High Court, in the facts of the case ought not to have given liberty to issue fresh charge-sheet or deny back wages while directing reinstatement. 8. The entire proceedings having been vitiated back wages ought to have been granted while directing reinstatement relying on Chairmen-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, (2011) 5 SCC 142. With regard to the second charge-sheet, it was submitted that the punishment of dismissal for absence from place of duty one hour before duty hours got over was grossly disproportionate relying on Dev Singh vs. Punjab Tourism Development Corporation Limited and Another, (2003) 8 SCC 9. 9. We have considered the submissions on behalf of the parties. The employee was posted at the Air Force Station Gwalior. There can be no two opinions that the nature of his duties had an inherent seriousness. Two charge-sheets were issued to him and departmental proceedings were conducted. The employee was given full opportunity of defence. A finding of guilt was arrived at by the enquiry officer with regard to both the charges. The employee in his departmental appeal raised no issues of procedural irregularity with consequent prejudice. A common order of punishment of discharge from service dated 21.05.1997 followed under Part III B (2)(e) of the Rules. No order of dismissal was passed under Part III-B (2)(f) of the Rules. If the Corporation was of the opinion that dismissal was the appropriate punishment in the facts of the case nothing prevented it from stating so. The High Court fell in a serious error by opining that the employee had been dismissed from service and on that premise arrived at the conclusion that the charge- sheet was incompetent in absence of it having been issued by the Functional Director who was the disciplinary authority under Sr. 1 (b) of Schedule I under Part III of the Rules for dismissal. 10. Part-III B (2) of the Rules provides for major penalties which includes inter alia removal from service which shall not be a disqualification for future employment and dismissal from service which shall ordinarily be a disqualification from future employment. The Rules therefore themselves recognise them as different punishments with varying severity. Though the word discharge does not find reference under the Rules, nonetheless in service jurisprudence, removal and/or discharge are synonymous leading to a termination or end of service but without the punitive consequences of dismissal entailing loss of past services, affecting future employment and debarring retiral benefits. There is no dispute that consequent to the impugned order of discharge, the employee has been paid his dues. 11. The employee either in his reply to the charges or in the departmental appeal rightly raised no issues with regard to lack of competence in the DGM to issue the charge-sheet. Sr. 1 (a) of Schedule I, to be read with Part III of the Rules, provides that with regard to Job Group A the Functional General Manager was the disciplinary authority for all other penalties except that of dismissal. The Functional Director was the disciplinary authority for punishment of dismissal only. The employee for the first time raised the issue in the writ petition that the charge-sheet had been issued by other than the disciplinary authority. If the employee had raised the issue either in his reply to the memo of charges or in appeal perhaps the Corporation could have addressed the issue better. Nonetheless, since a fundamental issue of jurisdiction has been raised, we shall proceed to examine the issue. 12. Rule 3(e) defines a Functional Manager as the Manager in- charge of a function. Rule 3(g) defines Disciplinary Authority as specified in Schedule I competent to impose penalties under the Rules. Competent Authority has been defined in Rule 3(h) to mean any authority empowered by the Board of Directors or the Chairman by any general or special rule or order to discharge the function or use the powers specified in the rule or order. Under Schedule I, the Functional General Manager was the disciplinary authority for punishment lesser than dismissal and the Functional director was the disciplinary authority for punishment of dismissal. We are of the considered opinion that the term Competent Authority will include a disciplinary authority so authorised in the manner prescribed in 3(h) under the delegation of authority manual dated 15.12.1987. Under Part III-F(1) of the Rules dealing with procedure for imposing major penalties, the disciplinary authority has been described to include an authority as specified in Schedule I. It includes both a Functional manager and Functional Director. Part-III-F(23) provides as follows: (23) If the Disciplinary Authority or the Competent Authority having regard to its findings on all or any of the charges is of the opinion that any of the penalties specified in Rule B should be imposed on the Management Staff it shall, notwithstanding anything contained in Rule G, make an order imposing such penalty 13. The fact that the words Disciplinary Authority or Competent Authority have been used interchangeably in Part III- F leaves no doubt in our mind that the delegation of authority manual had never been recalled or superseded. It is the specific case of the Corporation that the manual for delegation of authority issued on 15.12.1987 had never been withdrawn and the Corporation had all along in all other cases also acted on basis of the same and that no charge-sheet for a punishment lesser than dismissal had ever been issued by the Functional Director. The DGM was therefore fully competent under the manual also to both suspend and issue charge-sheet. The High Court itself reasoned that had the penalty been other than dismissal, the Functional Manager would have been competent to issue the charge-sheet. The High Court having posed unto itself the wrong question of dismissal from service, naturally arrived at an erroneous conclusion.
### Response:
1
### Explanation:
9. We have considered the submissions on behalf of the parties. The employee was posted at the Air Force Station Gwalior. There can be no two opinions that the nature of his duties had an inherent seriousness. Two charge-sheets were issued to him and departmental proceedings were conducted. The employee was given full opportunity of defence. A finding of guilt was arrived at by the enquiry officer with regard to both the charges. The employee in his departmental appeal raised no issues of procedural irregularity with consequent prejudice. A common order of punishment of discharge from service dated 21.05.1997 followed under Part III B (2)(e) of the Rules. No order of dismissal was passed under Part III-B (2)(f) of the Rules. If the Corporation was of the opinion that dismissal was the appropriate punishment in the facts of the case nothing prevented it from stating so. The High Court fell in a serious error by opining that the employee had been dismissed from service and on that premise arrived at the conclusion that the charge- sheet was incompetent in absence of it having been issued by the Functional Director who was the disciplinary authority under Sr. 1 (b) of Schedule I under Part III of the Rules for dismissal11. The employee either in his reply to the charges or in the departmental appeal rightly raised no issues with regard to lack of competence in the DGM to issue the charge-sheet. Sr. 1 (a) of Schedule I, to be read with Part III of the Rules, provides that with regard to Job Group A the Functional General Manager was the disciplinary authority for all other penalties except that of dismissal. The Functional Director was the disciplinary authority for punishment of dismissal only. The employee for the first time raised the issue in the writ petition that the charge-sheet had been issued by other than the disciplinary authority. If the employee had raised the issue either in his reply to the memo of charges or in appeal perhaps the Corporation could have addressed the issue better. We are of the considered opinion that the term Competent Authority will include a disciplinary authority so authorised in the manner prescribed in 3(h) under the delegation of authority manual dated 15.12.1987. Under Part III-F(1) of the Rules dealing with procedure for imposing major penalties, the disciplinary authority has been described to include an authority as specified in Schedule I. It includes both a Functional manager and Functional Director13. The fact that the words Disciplinary Authority or Competent Authority have been used interchangeably in Part III- F leaves no doubt in our mind that the delegation of authority manual had never been recalled or superseded. It is the specific case of the Corporation that the manual for delegation of authority issued on 15.12.1987 had never been withdrawn and the Corporation had all along in all other cases also acted on basis of the same and that no charge-sheet for a punishment lesser than dismissal had ever been issued by the Functional Director. The DGM was therefore fully competent under the manual also to both suspend and issue charge-sheet. The High Court itself reasoned that had the penalty been other than dismissal, the Functional Manager would have been competent to issue the charge-sheet. The High Court having posed unto itself the wrong question of dismissal from service, naturally arrived at an erroneous conclusion.
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The State of Odisha & Ors Vs. Orissa Private Engineering College Association (OPECA) & Anr | is issued with the approval of the Competent Authority. 5. Following the above letter, the first appellant informed the first respondent on 7 January 2021 that the circular issued by the AICTE relates only to the PGDM/MBA courses and not to the B.Tech Degree courses. The communication of the first appellant was challenged by the first respondent before the High Court, while seeking directions to allow students to take admission to the B.Tech courses on the basis of marks obtained in the qualifying examination. The High Court, by its order dated 21 January 2021, came to the conclusion that there was an error apparent on the face of the letter dated 7 January 2021 by not permitting engineering institutions to allow students to take admission to B.Tech (Engineering) Courses on the basis of the marks obtained in the qualifying examination. The High Court held that the same benefit which was granted to aspiring students for the PGDM/MBA courses should be given to students of the Engineering Degree stream on the basis of the AICTE circular. 6. The submission which has been urged on behalf of the appellants by Mr Tushar Mehta, learned Solicitor General appearing with Mr Sibo Sankar Mishra, learned Standing Counsel, is that the direction of the High Court is contrary to the provisions contained in Section 3 of the 2007 Act. It has been urged that Section 3(1) stipulates that admission of students in all private professional educational institutions, government institutions and sponsored institutions to all seats including lateral entry seats shall be made through an entrance test approved by the government followed by centralized counselling in order of merit. Hence, it has been submitted that the direction of the High Court to the State Government to allow for admissions to the B.Tech Degree courses on the basis of marks obtained in the qualifying examination is contrary to Section 3(1). Apart from this submission, it has been urged that, as a matter of fact, the AICTE, in its communication which has been referred to earlier had clearly opined that the B.Tech Degree courses could not be placed at par with PGDM/MBA courses. Hence, an appropriate decision was left to the government to take in view of the provisions of the state legislation. 7. On the other hand, Mr Siddhartha Dave, learned Senior Counsel appearing on behalf of the first respondent, on caveat, has submitted that, as a matter of fact, benefit has been granted of the direction issued by the High Court to about 592 students who have taken admission to B.Tech Degree courses under direct entry and 243 students who have taken admission under lateral entry in the State of Odisha. In this context, the following chart has been placed on the record in the synopsis to the appeal: 1 TOTAL NUMBER SEATS IN B.TECH 4YEAR COURSE 33,653 2 TOTAL APPLICATION RECEIVED UNDER B.TECH DURING OJEE 2020 14,422 3 TOTAL NUMBER OF STUDENTS APPEARED AT OJEE2020 UNDER B.TECH 6,605 4 TOTAL NUMBER OF STUDENTS REGISTERED FOR OJEE2020 COUNSELLING FOR ADMISSION TO B.TECH 4 YEAR COURSE FROM JEE MAIN MERIT LIST – 11,682 FROM OJEE MERIT LIST – 2,285 5 NUMBER OF STUDENTS JOINED FOR B.TECH COURSE FROM OJEE 2020 EXAM 1,227 DURING OJEE COUNSELLING 1,933 DURING COLLEGE/INSTITUTION LEVEL ADMISSION (AFTER OJEE COUNSELLING) 8. The above chart indicates that while there are over 33,000 seats for the B.Tech four Year course, as a matter of fact, the number of students who have joined on the basis of the entrance examination is a meagre fraction of the total number of seats. It has been submitted that for the present year, having regard to the onset of the Covid-19 pandemic, the direction of the High Court need not be interfered with. 9. Mr Gaurav Agrawal, learned counsel, has appeared on behalf of some of the students who have obtained admission. 10. In view of the submission which has been urged on behalf of the institutions by Mr Siddhartha Dave, as noted above, we had requested the Solicitor General to seek a factual clarification from the competent authority of the State Government in regard to the actual number of students who have secured admission in pursuance of the order of the High Court. The Solicitor General has stated that factually, about 592 students have secured admission to B.Tech degree courses under direct entry and 243 students have secured admission under lateral entry pursuant to the order of the High Court, as stated on behalf of the first respondent by the learned counsel. 11. The direction by the High Court to the State Government which operates as a mandamus to admit students to the B.Tech Degree courses on the basis of the marks obtained in the qualifying examination is expressly contrary to the terms of Section 3(1) of the 2007 Act. It was in this context that the earlier order of the High Court dated 24 December 2020 left it to the AICTE and the State Government to take an appropriate decision in regard to extending the same benefit which was extended to PGDM/MBA students to the students aspiring for admission to the B.Tech Degree courses. AICTE, in the course of its letter, had clearly indicated that the B.Tech degree courses cannot be placed at par with the PGDM/MBA courses and, hence, it was left to the State Government to take an appropriate decision. Mr Siddhartha Dave is correct in urging that the actual decision which was taken by the State Government on 7 January 2021 proceeded on an erroneous interpretation of the letter which was addressed by the AICTE, that AICTE had not approved of the course of action. However, that does not obviate the position that the State Government is duty bound to comply with the provisions of Section 3(1) which hold the field in the State of Odisha. In this backdrop, the High Court was not justified in issuing a mandamus to the State Government in the teeth of the provisions of the statute, more particularly Section 3(1). | 1[ds]11. The direction by the High Court to the State Government which operates as a mandamus to admit students to the B.Tech Degree courses on the basis of the marks obtained in the qualifying examination is expressly contrary to the terms of Section 3(1) of the 2007 Act. It was in this context that the earlier order of the High Court dated 24 December 2020 left it to the AICTE and the State Government to take an appropriate decision in regard to extending the same benefit which was extended to PGDM/MBA students to the students aspiring for admission to the B.Tech Degree courses. AICTE, in the course of its letter, had clearly indicated that the B.Tech degree courses cannot be placed at par with the PGDM/MBA courses and, hence, it was left to the State Government to take an appropriate decision. Mr Siddhartha Dave is correct in urging that the actual decision which was taken by the State Government on 7 January 2021 proceeded on an erroneous interpretation of the letter which was addressed by the AICTE, that AICTE had not approved of the course of action. However, that does not obviate the position that the State Government is duty bound to comply with the provisions of Section 3(1) which hold the field in the State of Odisha. In this backdrop, the High Court was not justified in issuing a mandamus to the State Government in the teeth of the provisions of the statute, more particularly Section 3(1). | 1 | 1,947 | 277 | ### Instruction:
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is issued with the approval of the Competent Authority. 5. Following the above letter, the first appellant informed the first respondent on 7 January 2021 that the circular issued by the AICTE relates only to the PGDM/MBA courses and not to the B.Tech Degree courses. The communication of the first appellant was challenged by the first respondent before the High Court, while seeking directions to allow students to take admission to the B.Tech courses on the basis of marks obtained in the qualifying examination. The High Court, by its order dated 21 January 2021, came to the conclusion that there was an error apparent on the face of the letter dated 7 January 2021 by not permitting engineering institutions to allow students to take admission to B.Tech (Engineering) Courses on the basis of the marks obtained in the qualifying examination. The High Court held that the same benefit which was granted to aspiring students for the PGDM/MBA courses should be given to students of the Engineering Degree stream on the basis of the AICTE circular. 6. The submission which has been urged on behalf of the appellants by Mr Tushar Mehta, learned Solicitor General appearing with Mr Sibo Sankar Mishra, learned Standing Counsel, is that the direction of the High Court is contrary to the provisions contained in Section 3 of the 2007 Act. It has been urged that Section 3(1) stipulates that admission of students in all private professional educational institutions, government institutions and sponsored institutions to all seats including lateral entry seats shall be made through an entrance test approved by the government followed by centralized counselling in order of merit. Hence, it has been submitted that the direction of the High Court to the State Government to allow for admissions to the B.Tech Degree courses on the basis of marks obtained in the qualifying examination is contrary to Section 3(1). Apart from this submission, it has been urged that, as a matter of fact, the AICTE, in its communication which has been referred to earlier had clearly opined that the B.Tech Degree courses could not be placed at par with PGDM/MBA courses. Hence, an appropriate decision was left to the government to take in view of the provisions of the state legislation. 7. On the other hand, Mr Siddhartha Dave, learned Senior Counsel appearing on behalf of the first respondent, on caveat, has submitted that, as a matter of fact, benefit has been granted of the direction issued by the High Court to about 592 students who have taken admission to B.Tech Degree courses under direct entry and 243 students who have taken admission under lateral entry in the State of Odisha. In this context, the following chart has been placed on the record in the synopsis to the appeal: 1 TOTAL NUMBER SEATS IN B.TECH 4YEAR COURSE 33,653 2 TOTAL APPLICATION RECEIVED UNDER B.TECH DURING OJEE 2020 14,422 3 TOTAL NUMBER OF STUDENTS APPEARED AT OJEE2020 UNDER B.TECH 6,605 4 TOTAL NUMBER OF STUDENTS REGISTERED FOR OJEE2020 COUNSELLING FOR ADMISSION TO B.TECH 4 YEAR COURSE FROM JEE MAIN MERIT LIST – 11,682 FROM OJEE MERIT LIST – 2,285 5 NUMBER OF STUDENTS JOINED FOR B.TECH COURSE FROM OJEE 2020 EXAM 1,227 DURING OJEE COUNSELLING 1,933 DURING COLLEGE/INSTITUTION LEVEL ADMISSION (AFTER OJEE COUNSELLING) 8. The above chart indicates that while there are over 33,000 seats for the B.Tech four Year course, as a matter of fact, the number of students who have joined on the basis of the entrance examination is a meagre fraction of the total number of seats. It has been submitted that for the present year, having regard to the onset of the Covid-19 pandemic, the direction of the High Court need not be interfered with. 9. Mr Gaurav Agrawal, learned counsel, has appeared on behalf of some of the students who have obtained admission. 10. In view of the submission which has been urged on behalf of the institutions by Mr Siddhartha Dave, as noted above, we had requested the Solicitor General to seek a factual clarification from the competent authority of the State Government in regard to the actual number of students who have secured admission in pursuance of the order of the High Court. The Solicitor General has stated that factually, about 592 students have secured admission to B.Tech degree courses under direct entry and 243 students have secured admission under lateral entry pursuant to the order of the High Court, as stated on behalf of the first respondent by the learned counsel. 11. The direction by the High Court to the State Government which operates as a mandamus to admit students to the B.Tech Degree courses on the basis of the marks obtained in the qualifying examination is expressly contrary to the terms of Section 3(1) of the 2007 Act. It was in this context that the earlier order of the High Court dated 24 December 2020 left it to the AICTE and the State Government to take an appropriate decision in regard to extending the same benefit which was extended to PGDM/MBA students to the students aspiring for admission to the B.Tech Degree courses. AICTE, in the course of its letter, had clearly indicated that the B.Tech degree courses cannot be placed at par with the PGDM/MBA courses and, hence, it was left to the State Government to take an appropriate decision. Mr Siddhartha Dave is correct in urging that the actual decision which was taken by the State Government on 7 January 2021 proceeded on an erroneous interpretation of the letter which was addressed by the AICTE, that AICTE had not approved of the course of action. However, that does not obviate the position that the State Government is duty bound to comply with the provisions of Section 3(1) which hold the field in the State of Odisha. In this backdrop, the High Court was not justified in issuing a mandamus to the State Government in the teeth of the provisions of the statute, more particularly Section 3(1).
### Response:
1
### Explanation:
11. The direction by the High Court to the State Government which operates as a mandamus to admit students to the B.Tech Degree courses on the basis of the marks obtained in the qualifying examination is expressly contrary to the terms of Section 3(1) of the 2007 Act. It was in this context that the earlier order of the High Court dated 24 December 2020 left it to the AICTE and the State Government to take an appropriate decision in regard to extending the same benefit which was extended to PGDM/MBA students to the students aspiring for admission to the B.Tech Degree courses. AICTE, in the course of its letter, had clearly indicated that the B.Tech degree courses cannot be placed at par with the PGDM/MBA courses and, hence, it was left to the State Government to take an appropriate decision. Mr Siddhartha Dave is correct in urging that the actual decision which was taken by the State Government on 7 January 2021 proceeded on an erroneous interpretation of the letter which was addressed by the AICTE, that AICTE had not approved of the course of action. However, that does not obviate the position that the State Government is duty bound to comply with the provisions of Section 3(1) which hold the field in the State of Odisha. In this backdrop, the High Court was not justified in issuing a mandamus to the State Government in the teeth of the provisions of the statute, more particularly Section 3(1).
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Kali Kinkor Ganguly Vs. Panna Banerjee And Ors | Such transfer was said to amount to delegation of delegated authority and could not be sanctioned even on the footing of a custom because it would be against public policy.16. The doctrine in Raja Vurmahs case (supra) has been applied on transactions by way of lease or mortgage. In Sunderambal v. Yogavanagurukkal ILR 38 Mad 850 = (AIR 1915 Mad 561 ) one of the parties alienated half share in the Archaka right for a pecuniary benefit. It was said that "an alienation of a religious office by which the alienor gets a pecuniary benefit cannot be upheld even if a custom is set up sanctioning such alienation.17. The rule against alienation of shebaiti right has been relaxed by reason of certain special circumstances. These are classified by Dr. B. K. Mukherjea at page 231 in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust, 1st edition under three heads. The first case is where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties. Second, when the transfer is made in the interests of the deity itself and to meet some pressing necessity. Third, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected with the family.18. In the present case counsel for the appellant rested on the second exception on the ground that the transfer is made in the interest of the deity and to meet some pressing necessity.19. The reason why transfer in favour of the next shebait or one in the line of succession or a co-shebaits is permissible is that if anyone of the shebaits intends to get rid of the duties the proper thing for him to do would be to surrender his office in favour of the remaining shebaits. In such a case no policy of Hindu Law is likely to be affected nor can such transaction be said to be against the presumed intentions of the founder. A transfer of shebaiti by will is not permitted because nothing which the shebait has can pass by his will which operates only at his death (See Rajeswar v. Gopeswar, (1908) ILR 35 Cal 226). The decisions in Mahammayas case and Khetra Chandra Ghoshs case (supra) do not support the appellants contention of sale of shebaiti right for pecuniary consideration. A shebait cannot delegate his duties to another person, but he is not bound to accept his office. If he renounces his duties the renunciation in the form of a transfer in favour of the next heir can be valid in law.20. In Khetra Chandra Ghoshs case (supra) on which the appellant relied in support of the assignment of shebaiti right on the doctrine of benefit to the deity the question was whether the Ghoshes who were the shebaits of a private family endowment could make over the idol together with the endowed property to the predecessors of the plaintiff in that case on the ground that the Ghoshes were unable to carry on the worship of the idol with the income of the Debutter. Dr. B. K. Mukherjea at pages 236-239 in his Tagore Law Lectures 1st Edition examined various decisions on this aspect. In Khetra Chandra Ghoshs case (supra) the Court relied on the decision of the Judicial Committee in Prosanna Kumari v. Golap Chand. (1874-75) 2 Ind App 145 (PC) where the Judicial Committee said that a shebait must, of necessity, be empowered to do whatever might be required for the services of the idol and for benefit and preservation of the property. The ratio in Khetra Chandra Ghoshs case (supra) is that all the members of the Ghosh family, for the purpose of preserving the property of idol and preventing the discontinuance of its worship gave the estate another direction.21. In Rajeswar v. Gopeswar case (supra) the doctrine of necessity or benefit to the deity was referred to. The actual decision in the case was that a hereditary shebait cannot alienate his office by will.22. In Nirmal Chandra v. Jyoti Prasad 42 Cal WN 1138 = (AIR 1938 Cal 709 ) the transfer of shebaiti rights was not by way of a sale, but was found to be conducive to the interests of the idol. It was held to be valid.23. Dr. B. K. Mukherjea doubted the propriety of these decisions. Shri Venkatarama Aiyar as the editor of the Second Edition of Dr. B. K. Mukherjeas Tagore Law Lectures also expressed the same view at pages 219-220 that even if the transfer is for no consideration the transfer would be bad if it is not in favour of those next in the line of succession.24. Dr. B. K. Mukherjea in his Tagore Law Lectures has pointed out that the decision in Prosanna Kumaris case (supra) was that the rule of necessity extended only to an alienation of the temporality of the idol and it does not and cannot apply to alienation to the spiritual rights and duties. Dr. Mukherjee illustrated this with reference to the decision in Nagendra Nath, ILR 53 Cal 132 = (AIR 1926 Cal 490 ) and an earlier decision in Rajeswar v. Gopeswar (supra). The doctrine of alienation of shebaitship on the ground of necessity or benefit to the deity is said by Dr. Mukherjea to be of doubtful authority and based upon a misconception of certain pronouncements of the Judicial Committee.25. In the present case, the appellant cannot invoke the doctrine of transfer of shebaiti right for the benefit of the deity because the transfer of Pramila Debi to Upendra Nath Ganguli is illegal for the principal reason that neither the temple nor the deities nor the shebaiti right can be transferred by sale for pecuniary consideration. The transfer by sale is void in its inception. | 0[ds]17. The rule against alienation of shebaiti right has been relaxed by reason of certain special circumstances. These are classified by Dr. B. K. Mukherjea at page 231 in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust, 1st edition under three heads. The first case is where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties. Second, when the transfer is made in the interests of the deity itself and to meet some pressing necessity. Third, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected with the family.18. In the present case counsel for the appellant rested on the second exception on the ground that the transfer is made in the interest of the deity and to meet some pressing necessity.19. The reason why transfer in favour of the next shebait or one in the line of succession or a co-shebaits is permissible is that if anyone of the shebaits intends to get rid of the duties the proper thing for him to do would be to surrender his office in favour of the remaining shebaits. In such a case no policy of Hindu Law is likely to be affected nor can such transaction be said to be against the presumed intentions of the founder. A transfer of shebaiti by will is not permitted because nothing which the shebait has can pass by his will which operates only at hisIn the present case, the appellant cannot invoke the doctrine of transfer of shebaiti right for the benefit of the deity because the transfer of Pramila Debi to Upendra Nath Ganguli is illegal for the principal reason that neither the temple nor the deities nor the shebaiti right can be transferred by sale for pecuniary consideration. The transfer by sale is void in its inception. | 0 | 2,926 | 368 | ### 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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Such transfer was said to amount to delegation of delegated authority and could not be sanctioned even on the footing of a custom because it would be against public policy.16. The doctrine in Raja Vurmahs case (supra) has been applied on transactions by way of lease or mortgage. In Sunderambal v. Yogavanagurukkal ILR 38 Mad 850 = (AIR 1915 Mad 561 ) one of the parties alienated half share in the Archaka right for a pecuniary benefit. It was said that "an alienation of a religious office by which the alienor gets a pecuniary benefit cannot be upheld even if a custom is set up sanctioning such alienation.17. The rule against alienation of shebaiti right has been relaxed by reason of certain special circumstances. These are classified by Dr. B. K. Mukherjea at page 231 in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust, 1st edition under three heads. The first case is where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties. Second, when the transfer is made in the interests of the deity itself and to meet some pressing necessity. Third, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected with the family.18. In the present case counsel for the appellant rested on the second exception on the ground that the transfer is made in the interest of the deity and to meet some pressing necessity.19. The reason why transfer in favour of the next shebait or one in the line of succession or a co-shebaits is permissible is that if anyone of the shebaits intends to get rid of the duties the proper thing for him to do would be to surrender his office in favour of the remaining shebaits. In such a case no policy of Hindu Law is likely to be affected nor can such transaction be said to be against the presumed intentions of the founder. A transfer of shebaiti by will is not permitted because nothing which the shebait has can pass by his will which operates only at his death (See Rajeswar v. Gopeswar, (1908) ILR 35 Cal 226). The decisions in Mahammayas case and Khetra Chandra Ghoshs case (supra) do not support the appellants contention of sale of shebaiti right for pecuniary consideration. A shebait cannot delegate his duties to another person, but he is not bound to accept his office. If he renounces his duties the renunciation in the form of a transfer in favour of the next heir can be valid in law.20. In Khetra Chandra Ghoshs case (supra) on which the appellant relied in support of the assignment of shebaiti right on the doctrine of benefit to the deity the question was whether the Ghoshes who were the shebaits of a private family endowment could make over the idol together with the endowed property to the predecessors of the plaintiff in that case on the ground that the Ghoshes were unable to carry on the worship of the idol with the income of the Debutter. Dr. B. K. Mukherjea at pages 236-239 in his Tagore Law Lectures 1st Edition examined various decisions on this aspect. In Khetra Chandra Ghoshs case (supra) the Court relied on the decision of the Judicial Committee in Prosanna Kumari v. Golap Chand. (1874-75) 2 Ind App 145 (PC) where the Judicial Committee said that a shebait must, of necessity, be empowered to do whatever might be required for the services of the idol and for benefit and preservation of the property. The ratio in Khetra Chandra Ghoshs case (supra) is that all the members of the Ghosh family, for the purpose of preserving the property of idol and preventing the discontinuance of its worship gave the estate another direction.21. In Rajeswar v. Gopeswar case (supra) the doctrine of necessity or benefit to the deity was referred to. The actual decision in the case was that a hereditary shebait cannot alienate his office by will.22. In Nirmal Chandra v. Jyoti Prasad 42 Cal WN 1138 = (AIR 1938 Cal 709 ) the transfer of shebaiti rights was not by way of a sale, but was found to be conducive to the interests of the idol. It was held to be valid.23. Dr. B. K. Mukherjea doubted the propriety of these decisions. Shri Venkatarama Aiyar as the editor of the Second Edition of Dr. B. K. Mukherjeas Tagore Law Lectures also expressed the same view at pages 219-220 that even if the transfer is for no consideration the transfer would be bad if it is not in favour of those next in the line of succession.24. Dr. B. K. Mukherjea in his Tagore Law Lectures has pointed out that the decision in Prosanna Kumaris case (supra) was that the rule of necessity extended only to an alienation of the temporality of the idol and it does not and cannot apply to alienation to the spiritual rights and duties. Dr. Mukherjee illustrated this with reference to the decision in Nagendra Nath, ILR 53 Cal 132 = (AIR 1926 Cal 490 ) and an earlier decision in Rajeswar v. Gopeswar (supra). The doctrine of alienation of shebaitship on the ground of necessity or benefit to the deity is said by Dr. Mukherjea to be of doubtful authority and based upon a misconception of certain pronouncements of the Judicial Committee.25. In the present case, the appellant cannot invoke the doctrine of transfer of shebaiti right for the benefit of the deity because the transfer of Pramila Debi to Upendra Nath Ganguli is illegal for the principal reason that neither the temple nor the deities nor the shebaiti right can be transferred by sale for pecuniary consideration. The transfer by sale is void in its inception.
### Response:
0
### Explanation:
17. The rule against alienation of shebaiti right has been relaxed by reason of certain special circumstances. These are classified by Dr. B. K. Mukherjea at page 231 in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust, 1st edition under three heads. The first case is where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties. Second, when the transfer is made in the interests of the deity itself and to meet some pressing necessity. Third, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected with the family.18. In the present case counsel for the appellant rested on the second exception on the ground that the transfer is made in the interest of the deity and to meet some pressing necessity.19. The reason why transfer in favour of the next shebait or one in the line of succession or a co-shebaits is permissible is that if anyone of the shebaits intends to get rid of the duties the proper thing for him to do would be to surrender his office in favour of the remaining shebaits. In such a case no policy of Hindu Law is likely to be affected nor can such transaction be said to be against the presumed intentions of the founder. A transfer of shebaiti by will is not permitted because nothing which the shebait has can pass by his will which operates only at hisIn the present case, the appellant cannot invoke the doctrine of transfer of shebaiti right for the benefit of the deity because the transfer of Pramila Debi to Upendra Nath Ganguli is illegal for the principal reason that neither the temple nor the deities nor the shebaiti right can be transferred by sale for pecuniary consideration. The transfer by sale is void in its inception.
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West Bengal State Electricity Board Vs. Calcutta Electric Supply Corpn. Ltd | of revised cost can only be under sub-section (2) of Section 44 and in fact the Board also communicated the same in the purported exercise of power under sub-section (2) of Section 44. The further consent in respect of the revised project cost having been given under sub-section (2) of Section 44, a dispute did arise within the ambit of sub-section (3) of Section 44 and, therefore, the authority concerned contemplated under sub-section (3) of Section 44, gets jurisdiction to arbitrate upon the dispute between the parties and in the case in hand, the said authority ultimately passed an award. In view of our analysis, as stated above, it is difficult for us to sustain the argument of Mr. Reddy, appearing for the Board that the so-called dispute regarding the project cost, cannot be a dispute arising out of the provision of Section 44 and as such would not be arbitrable under sub-section (3) of the said Section. We, therefore, are in agreement with the conclusion of the Division Bench of Calcutta High Court and hold that the dispute in question did come within the purview of sub-section (2) of Section 44 and as such was arbitrable under sub-section (3) thereof and the award cannot be held to be without jurisdiction, as contended by the Board.6. There is yet another facet in the case in hand, namely how the Board itself as well as the authority have themselves understood the provisions of the Act. The concerned authority, who was the statutory arbitrator under sub-section (3) of Section 44, while deciding the question of jurisdiction, unequivocally came to the conclusion that Section 44(1)(a)(ii) brings within its sweep the cost aspect of the project which is important for taking decision regarding establishment or acquisition of a generating station and the revision of cost is also being done under said section 44. With this conclusion is rejected the prayer of the Board, challenging the jurisdiction of the arbitrator. When the question of revision of project cost cropped up, the Chief Engineer of the Board by its letter dated 4.12.1996 called upon the licensee to furnish the detailed break up of the cost estimate, while it furnished the application originally in the year 1991 and the revised cost claimed by the licensee to the tune of Rs. 2220 crores. On 18th of December, 1996, the Joint Secretary to the Government of West Bengal also called upon the licensee to submit a detailed proposal for revision of the project cost, as required under Section 44 of the Supply Act. Again on 4th June, 1998, the Government wrote to the Board, requiring the approval of the Board to the revised project cost under Section 44 of the Act. On the very same date, that is on 4th June, 1998, the Government also wrote to the licensee that under the provisions of the Electricity Supply Act, the revised cost of the project of the licensee has to be worked out and approved by the State Electricity Board under Section 44 of the said Act and in the event the licensee is not satisfied with the decision of the Board, then the relief is available in the Supply Act itself, obviously referring to an arbitrator under sub-section (3) of Section 44. On 11th June, 1998, the Board wrote to the licensee that after careful and detailed examination of all data and records furnished by the licensee, the Board in its 505th meeting held on 22nd May, 1998, resolved that the reasonable project cost would be Rs. 1853 crores and as such the Board approves the revised project cost at Rs. 1853 crores under Section 44 of the Electricity (Supply) Act. The Board, therefore not only understood that the project cost is required to be approved under Section 44, but did take a decision, approving the reasonable revised project cost at a particular figure in exercise of its power under Section 44. The Board having exercised power under Section 44 and having approved the revised cost at a particular figure, cannot take a stand when the dispute regarding the project cost was referred to the authority for arbitration that the project cost does not come within the purview of Section 44. Thus, apart from our conclusion on interpreting the provisions of Section 44 of the Electricity (Supply) Act, the conduct of the Board itself disentitles it to take a stand that the revised project cost would not come within the ambit of Section 44 of the Supply Act. In the aforesaid premises, we do not find any merits in the contention of Mr. Reddy, challenging the jurisdiction of the arbitrator to entertain the dispute regarding the reasonability of the revised project cost. In our considered opinion, the dispute is one, which comes within the ambit of Section 44 and as such arbitrable under sub-section (3) of Section 44 and the Award cannot be held to be without jurisdiction. The conclusion of the Division Bench of the Calcutta High Court on this score remains unassailable.7. Mr. Reddy, then contended that the High Court was not justified in making any observations with regard to the impact of the revised project cost on the tariff, as the same was not a subject matter and the only question that had been raised before the High court was whether the arbitrator had the jurisdiction or not. We find sufficient force in the aforesaid contention of Mr. Reddy and Mr. Shanti Bhushan, the learned senior counsel, appearing for the licensee also fairly stated that it was not necessary for the High Court to make any observation as to what would be the effect of the reasonable project cost on the tariff structure. While, therefore, upholding the Division Bench Judgment of the Calcutta High Court, we further observe that it was not at all necessary for the High Court to go into the question of impact of the project cost upon the tariff structure and any observations made in respect of the same are set aside. | 0[ds]A plain reading of the aforesaid sub-section would indicate that an applicant is bound to furnish all such particulars which the Board may reasonably require to enable the Board to give its consent and where a consent is given, then while acting in pursuance of that consent, the applicant shall not without further consent of the Board, make any material variation in the particulars, so stated. If the project cost is one of the particulars required to be given by an applicant, while making an application under sub-section (1) of Section 44, then in the event, Board gives the consent and while acting in pursuance of that consent, the project cost varies, then for such variation, further consent of Board would be necessary, as provided under sub-section (2) of Section 44. Since the Board could withheld the consent, if it shows to the applicant that the electricity required by him could be more economically obtained within a reasonable time from another appropriate source, to arrive at such conclusion, it would be reasonable to infer that the applicant must indicate the project cost in its application for consent. If the project cost is not indicated in the application for consent, then the Board will not be in a position to find out whether the electricity required by the applicant could be more economically obtained from another appropriate source within a reasonable time and, therefore, in our view it is necessary for every applicant while invoking power of the Board under sub-section (1) of Section 44 to obtain the previous consent in writing for establishment of a generating station to indicate the cost of the project. This being the position, where consent is received on the basis of the project cost indicated in the application, while acting in pursuance of such consent, if the project cost varies, then it would be a material variation of an important particular and consequently, a further consent of the Board would be necessary under sub-section (2) of Section 44. In the case in hand, the original consent of the Board had been obtained and while acting in pursuance of such consent, it was found that the project cost has got escalated and application for further consent was made to the Board and the Board also did accord its further consent at Rs. 1853 crores, which was communicated to the applicant-licensee. While the applicant-licensee had indicated the revised project cost at a much higher figure but the Board approved the revised cost at Rs. 1853 crores and this further consent on the basis of revised cost can only be under sub-section (2) of Section 44 and in fact the Board also communicated the same in the purported exercise of power under sub-section (2) of Section 44. The further consent in respect of the revised project cost having been given under sub-section (2) of Section 44, a dispute did arise within the ambit of sub-section (3) of Section 44 and, therefore, the authority concerned contemplated under sub-section (3) of Section 44, gets jurisdiction to arbitrate upon the dispute between the parties and in the case in hand, the said authority ultimately passed an award. In view of our analysis, as stated above, it is difficult for us to sustain the argument of Mr. Reddy, appearing for the Board that the so-called dispute regarding the project cost, cannot be a dispute arising out of the provision of Section 44 and as such would not be arbitrable under sub-section (3) of the said Section. We, therefore, are in agreement with the conclusion of the Division Bench of Calcutta High Court and hold that the dispute in question did come within the purview of sub-section (2) of Section 44 and as such was arbitrable under sub-section (3) thereof and the award cannot be held to be without jurisdiction, as contended by the Board.6. There is yet another facet in the case in hand, namely how the Board itself as well as the authority have themselves understood the provisions of the Act. The concerned authority, who was the statutory arbitrator under sub-section (3) of Section 44, while deciding the question of jurisdiction, unequivocally came to the conclusion that Section 44(1)(a)(ii) brings within its sweep the cost aspect of the project which is important for taking decision regarding establishment or acquisition of a generating station and the revision of cost is also being done under said section 44. With this conclusion is rejected the prayer of the Board, challenging the jurisdiction of the arbitrator. When the question of revision of project cost cropped up, the Chief Engineer of the Board by its letter dated 4.12.1996 called upon the licensee to furnish the detailed break up of the cost estimate, while it furnished the application originally in the year 1991 and the revised cost claimed by the licensee to the tune of Rs. 2220 crores. On 18th of December, 1996, the Joint Secretary to the Government of West Bengal also called upon the licensee to submit a detailed proposal for revision of the project cost, as required under Section 44 of the Supply Act. Again on 4th June, 1998, the Government wrote to the Board, requiring the approval of the Board to the revised project cost under Section 44 of the Act. On the very same date, that is on 4th June, 1998, the Government also wrote to the licensee that under the provisions of the Electricity Supply Act, the revised cost of the project of the licensee has to be worked out and approved by the State Electricity Board under Section 44 of the said Act and in the event the licensee is not satisfied with the decision of the Board, then the relief is available in the Supply Act itself, obviously referring to an arbitrator under sub-section (3) of Section 44. On 11th June, 1998, the Board wrote to the licensee that after careful and detailed examination of all data and records furnished by the licensee, the Board in its 505th meeting held on 22nd May, 1998, resolved that the reasonable project cost would be Rs. 1853 crores and as such the Board approves the revised project cost at Rs. 1853 crores under Section 44 of the Electricity (Supply) Act. The Board, therefore not only understood that the project cost is required to be approved under Section 44, but did take a decision, approving the reasonable revised project cost at a particular figure in exercise of its power under Section 44. The Board having exercised power under Section 44 and having approved the revised cost at a particular figure, cannot take a stand when the dispute regarding the project cost was referred to the authority for arbitration that the project cost does not come within the purview of Section 44. Thus, apart from our conclusion on interpreting the provisions of Section 44 of the Electricity (Supply) Act, the conduct of the Board itself disentitles it to take a stand that the revised project cost would not come within the ambit of Section 44 of the Supply Act. In the aforesaid premises, we do not find any merits in the contention of Mr. Reddy, challenging the jurisdiction of the arbitrator to entertain the dispute regarding the reasonability of the revised project cost. In our considered opinion, the dispute is one, which comes within the ambit of Section 44 and as such arbitrable under sub-section (3) of Section 44 and the Award cannot be held to be without jurisdiction. The conclusion of the Division Bench of the Calcutta High Court on this score remains unassailable.7. Mr. Reddy, then contended that the High Court was not justified in making any observations with regard to the impact of the revised project cost on the tariff, as the same was not a subject matter and the only question that had been raised before the High court was whether the arbitrator had the jurisdiction or not. We find sufficient force in the aforesaid contention of Mr. Reddy and Mr. Shanti Bhushan, the learned senior counsel, appearing for the licensee also fairly stated that it was not necessary for the High Court to make any observation as to what would be the effect of the reasonable project cost on the tariff structure. While, therefore, upholding the Division Bench Judgment of the Calcutta High Court, we further observe that it was not at all necessary for the High Court to go into the question of impact of the project cost upon the tariff structure and any observations made in respect of the same are set aside. | 0 | 4,776 | 1,587 | ### Instruction:
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of revised cost can only be under sub-section (2) of Section 44 and in fact the Board also communicated the same in the purported exercise of power under sub-section (2) of Section 44. The further consent in respect of the revised project cost having been given under sub-section (2) of Section 44, a dispute did arise within the ambit of sub-section (3) of Section 44 and, therefore, the authority concerned contemplated under sub-section (3) of Section 44, gets jurisdiction to arbitrate upon the dispute between the parties and in the case in hand, the said authority ultimately passed an award. In view of our analysis, as stated above, it is difficult for us to sustain the argument of Mr. Reddy, appearing for the Board that the so-called dispute regarding the project cost, cannot be a dispute arising out of the provision of Section 44 and as such would not be arbitrable under sub-section (3) of the said Section. We, therefore, are in agreement with the conclusion of the Division Bench of Calcutta High Court and hold that the dispute in question did come within the purview of sub-section (2) of Section 44 and as such was arbitrable under sub-section (3) thereof and the award cannot be held to be without jurisdiction, as contended by the Board.6. There is yet another facet in the case in hand, namely how the Board itself as well as the authority have themselves understood the provisions of the Act. The concerned authority, who was the statutory arbitrator under sub-section (3) of Section 44, while deciding the question of jurisdiction, unequivocally came to the conclusion that Section 44(1)(a)(ii) brings within its sweep the cost aspect of the project which is important for taking decision regarding establishment or acquisition of a generating station and the revision of cost is also being done under said section 44. With this conclusion is rejected the prayer of the Board, challenging the jurisdiction of the arbitrator. When the question of revision of project cost cropped up, the Chief Engineer of the Board by its letter dated 4.12.1996 called upon the licensee to furnish the detailed break up of the cost estimate, while it furnished the application originally in the year 1991 and the revised cost claimed by the licensee to the tune of Rs. 2220 crores. On 18th of December, 1996, the Joint Secretary to the Government of West Bengal also called upon the licensee to submit a detailed proposal for revision of the project cost, as required under Section 44 of the Supply Act. Again on 4th June, 1998, the Government wrote to the Board, requiring the approval of the Board to the revised project cost under Section 44 of the Act. On the very same date, that is on 4th June, 1998, the Government also wrote to the licensee that under the provisions of the Electricity Supply Act, the revised cost of the project of the licensee has to be worked out and approved by the State Electricity Board under Section 44 of the said Act and in the event the licensee is not satisfied with the decision of the Board, then the relief is available in the Supply Act itself, obviously referring to an arbitrator under sub-section (3) of Section 44. On 11th June, 1998, the Board wrote to the licensee that after careful and detailed examination of all data and records furnished by the licensee, the Board in its 505th meeting held on 22nd May, 1998, resolved that the reasonable project cost would be Rs. 1853 crores and as such the Board approves the revised project cost at Rs. 1853 crores under Section 44 of the Electricity (Supply) Act. The Board, therefore not only understood that the project cost is required to be approved under Section 44, but did take a decision, approving the reasonable revised project cost at a particular figure in exercise of its power under Section 44. The Board having exercised power under Section 44 and having approved the revised cost at a particular figure, cannot take a stand when the dispute regarding the project cost was referred to the authority for arbitration that the project cost does not come within the purview of Section 44. Thus, apart from our conclusion on interpreting the provisions of Section 44 of the Electricity (Supply) Act, the conduct of the Board itself disentitles it to take a stand that the revised project cost would not come within the ambit of Section 44 of the Supply Act. In the aforesaid premises, we do not find any merits in the contention of Mr. Reddy, challenging the jurisdiction of the arbitrator to entertain the dispute regarding the reasonability of the revised project cost. In our considered opinion, the dispute is one, which comes within the ambit of Section 44 and as such arbitrable under sub-section (3) of Section 44 and the Award cannot be held to be without jurisdiction. The conclusion of the Division Bench of the Calcutta High Court on this score remains unassailable.7. Mr. Reddy, then contended that the High Court was not justified in making any observations with regard to the impact of the revised project cost on the tariff, as the same was not a subject matter and the only question that had been raised before the High court was whether the arbitrator had the jurisdiction or not. We find sufficient force in the aforesaid contention of Mr. Reddy and Mr. Shanti Bhushan, the learned senior counsel, appearing for the licensee also fairly stated that it was not necessary for the High Court to make any observation as to what would be the effect of the reasonable project cost on the tariff structure. While, therefore, upholding the Division Bench Judgment of the Calcutta High Court, we further observe that it was not at all necessary for the High Court to go into the question of impact of the project cost upon the tariff structure and any observations made in respect of the same are set aside.
### Response:
0
### Explanation:
of revised cost can only be under sub-section (2) of Section 44 and in fact the Board also communicated the same in the purported exercise of power under sub-section (2) of Section 44. The further consent in respect of the revised project cost having been given under sub-section (2) of Section 44, a dispute did arise within the ambit of sub-section (3) of Section 44 and, therefore, the authority concerned contemplated under sub-section (3) of Section 44, gets jurisdiction to arbitrate upon the dispute between the parties and in the case in hand, the said authority ultimately passed an award. In view of our analysis, as stated above, it is difficult for us to sustain the argument of Mr. Reddy, appearing for the Board that the so-called dispute regarding the project cost, cannot be a dispute arising out of the provision of Section 44 and as such would not be arbitrable under sub-section (3) of the said Section. We, therefore, are in agreement with the conclusion of the Division Bench of Calcutta High Court and hold that the dispute in question did come within the purview of sub-section (2) of Section 44 and as such was arbitrable under sub-section (3) thereof and the award cannot be held to be without jurisdiction, as contended by the Board.6. There is yet another facet in the case in hand, namely how the Board itself as well as the authority have themselves understood the provisions of the Act. The concerned authority, who was the statutory arbitrator under sub-section (3) of Section 44, while deciding the question of jurisdiction, unequivocally came to the conclusion that Section 44(1)(a)(ii) brings within its sweep the cost aspect of the project which is important for taking decision regarding establishment or acquisition of a generating station and the revision of cost is also being done under said section 44. With this conclusion is rejected the prayer of the Board, challenging the jurisdiction of the arbitrator. When the question of revision of project cost cropped up, the Chief Engineer of the Board by its letter dated 4.12.1996 called upon the licensee to furnish the detailed break up of the cost estimate, while it furnished the application originally in the year 1991 and the revised cost claimed by the licensee to the tune of Rs. 2220 crores. On 18th of December, 1996, the Joint Secretary to the Government of West Bengal also called upon the licensee to submit a detailed proposal for revision of the project cost, as required under Section 44 of the Supply Act. Again on 4th June, 1998, the Government wrote to the Board, requiring the approval of the Board to the revised project cost under Section 44 of the Act. On the very same date, that is on 4th June, 1998, the Government also wrote to the licensee that under the provisions of the Electricity Supply Act, the revised cost of the project of the licensee has to be worked out and approved by the State Electricity Board under Section 44 of the said Act and in the event the licensee is not satisfied with the decision of the Board, then the relief is available in the Supply Act itself, obviously referring to an arbitrator under sub-section (3) of Section 44. On 11th June, 1998, the Board wrote to the licensee that after careful and detailed examination of all data and records furnished by the licensee, the Board in its 505th meeting held on 22nd May, 1998, resolved that the reasonable project cost would be Rs. 1853 crores and as such the Board approves the revised project cost at Rs. 1853 crores under Section 44 of the Electricity (Supply) Act. The Board, therefore not only understood that the project cost is required to be approved under Section 44, but did take a decision, approving the reasonable revised project cost at a particular figure in exercise of its power under Section 44. The Board having exercised power under Section 44 and having approved the revised cost at a particular figure, cannot take a stand when the dispute regarding the project cost was referred to the authority for arbitration that the project cost does not come within the purview of Section 44. Thus, apart from our conclusion on interpreting the provisions of Section 44 of the Electricity (Supply) Act, the conduct of the Board itself disentitles it to take a stand that the revised project cost would not come within the ambit of Section 44 of the Supply Act. In the aforesaid premises, we do not find any merits in the contention of Mr. Reddy, challenging the jurisdiction of the arbitrator to entertain the dispute regarding the reasonability of the revised project cost. In our considered opinion, the dispute is one, which comes within the ambit of Section 44 and as such arbitrable under sub-section (3) of Section 44 and the Award cannot be held to be without jurisdiction. The conclusion of the Division Bench of the Calcutta High Court on this score remains unassailable.7. Mr. Reddy, then contended that the High Court was not justified in making any observations with regard to the impact of the revised project cost on the tariff, as the same was not a subject matter and the only question that had been raised before the High court was whether the arbitrator had the jurisdiction or not. We find sufficient force in the aforesaid contention of Mr. Reddy and Mr. Shanti Bhushan, the learned senior counsel, appearing for the licensee also fairly stated that it was not necessary for the High Court to make any observation as to what would be the effect of the reasonable project cost on the tariff structure. While, therefore, upholding the Division Bench Judgment of the Calcutta High Court, we further observe that it was not at all necessary for the High Court to go into the question of impact of the project cost upon the tariff structure and any observations made in respect of the same are set aside.
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M. S. Shvananda Vs. Karnataka State Road Transport Corporation And Others | 10. Further, it is significant to notice that the saving clause that we are considering in s. 31(2) (i) of the Act, saves things done while the ordinance was in force; it does not purport to preserve a right acquired under the repealed ordinance. It is unlike the usual saving clauses which preserve unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder. It is also clear that even s. 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute.Employees in excess of the scale prescribed for the categories specified under proviso to sub-s. (3) of s. 19 of the Act are clearly not entitled for absorption. Though sub- cl. (3) to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from January 30, 1976, it doe s not follow that there was an automatic absorption as from that date. Every such person eligible for absorption had to fulfill three conditions, viz., (1) he had to be a workman within the meaning of the Industrial Disputes Act, 1947; (2 ) he should have been immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub-cl. (3) to cl. 20. The whole object of inserting sub-cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment. For this purpose the Corporation had necessarily to screen the applicants. 11. It is necessary to mention that cl. 5 of t he Ordinance, which corresponds to s. 5 of the Act, provided that every contract carriage operator shall within 15 days from the notified date or within such further time as the State Government may allow, furnish to the State Government or any officer authorised by it in this behalf, complete particulars among others of persons who were in their employment immediately before the notified date. It was only after such information was received that steps had to be take n for the purpose of ascertaining as to who were entitled to be absorbed in the service of the Corporation in accordance with sub-cl. (3) to cl. 20 of the ordinance. The authorities after collecting the necessary information had to determine not only the corresponding posts to which the erstwhile employees of the contract carriage operators could be absorbed in the service of the Corporation but also their relative seniority, for the purpose of excluding the employees who were in excess of the scale for the purpose of absorption.As sub-cl. (3) to cl. 20 itself provides that a person who is not willing to become an employee of The Corporation is entitled to retrenchment compensation as provided for in the Industrial Disputes Act, the authorities were also required to ascertain as to whether the employee, who was entitled to be absorbed in service, was willing to become an employee of the Corporation or not. It was only if the employee was willing to be absorbed in th e service of the Corporation that the Corporation could absorb him in service, provided the other conditions specified in sub-cl. (3) to cl. 20 were satisfied. Thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who could be absorbed in the service of the Corporation, in accordance with sub-cl. (3) to cl. 20 of the ordinance. 12. The very fact that all these Various steps were necessary to be taken, which necessarily takes time, shows that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible. When the ordinance came to be replaced by the Act, the Corporation felt that the number of employees of the erstwhile contract carriage operators was too large for its requirements. The legislature, therefore, stepped in and reduced the scale of absorption in the proviso to sub-s. (3) of s. 19 from 7.9 per vehicle to 4.45 per vehicle. 13. This is , in our judgment, sufficient for the determination of the appeal. But, as we have formed a clear opinion on the other aspect, we do not hesitate to express that opinion. That contention is of this nature. It is pointed out that the employees of the erstwhile contract carriage operators acquired vested right to absorption in the service of the Corporation by virtue of sub-cl. (3) to cl. 20 of the repealed ordinance with effect from January 30, 1976, which cannot be taken a way by the proviso to sub-s. (3) of s. 19. Even if-contrary to the decision reached by us, it were possible to hold that they had some kind of such right, that right is expressly taken away by the legislature. The contention does not take note of the fact that by sub-s. (1) of s. 1 the Act was brought into force with effect from January 30, 1976, i.e., the date on which the ordinance was promulgated. The Act substitutes a new proviso in sub-s. (3) of s. 1 in place of the old proviso to sub-cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it now holds the field from the notified date i.e., January a 30, 1976. The proviso in sub-cl. (3) to cl. 20 laying down a particular ratio of absorption, is protanto avoided by an express enactment of a new proviso to sub-s. (3) of s. 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected. | 0[ds]The High Court rightly observes that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub-cl. (3) to cl. 20. The employees of the former contract carriage operators in normal course filled in the pro form giving their service particulars and reported to duty. This was in the mere ho pe or expectation of acquiring a right. The submission of these call reports by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service. As a matter of fact, nothing was done while the ordinance was in force. The Act was published on March 12, 1976. on May 29, 1976, the Corporation sent up proposals for equation of posts to be filled in by the employees of the former contract carriage operators. The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter-se seniority, met on June 2, 1976. The Committee decided that even in the case of helpers-cleaners, there should be a trade test and the staff cleared by the Committee for the posts of helper B helper A and assistant artisans should be on the basis of their technical competence, experience, ability etc. The Committee also decided that all other employees of contract carriage operators who were, eligible for absorption, should be interviewed by that p Committee for the purpose of absorption on the basis of experience, ability, duties and responsibilities. These norms were not laid down till June 2, 1976. Till their actual absorption, the employees of the erstwhile contract carriage operators had only an incohate right.The distinction between what is, and what is not a right preserved by the provisions of s. 6 of the General Clauses Act is often one of great finenessIt must be mentioned that the object of s. 31(2) (i) is to preserve only the things done and action taken under the repealed Ordinance, and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforcedIt is also clear that even s. 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute.Employees in excess of the scale prescribed for the categories specified under proviso to sub-s. (3) of s. 19 of the Act are clearly not entitled for absorption. Though sub- cl. (3) to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from January 30, 1976, it doe s not follow that there was an automatic absorption as from that date. Every such person eligible for absorption had to fulfill three conditions, viz., (1) he had to be a workman within the meaning ofthe Industrial Disputes Act, 1947; (2 ) he should have been immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub-cl. (3) to cl. 20. The whole object of inserting sub-cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment. For this purpose the Corporation had necessarily to screen the applicantsThis is , in our judgment, sufficient for the determination of the appeal. But, as we have formed a clear opinion on the other aspect, we do not hesitate to express that opinion. That contention is of this nature. It is pointed out that the employees of the erstwhile contract carriage operators acquired vested right to absorption in the service of the Corporation by virtue of sub-cl. (3) to cl. 20 of the repealed ordinance with effect from January 30, 1976, which cannot be taken a way by the proviso to sub-s. (3) of s. 19. Even if-contrary to the decision reached by us, it were possible to hold that they had some kind of such right, that right is expressly taken away by the legislature. The contention does not take note of the fact that by sub-s. (1) of s. 1 the Act was brought into force with effect from January 30, 1976, i.e., the date on which the ordinance was promulgated. The Act substitutes a new proviso in sub-s. (3) of s. 1 in place of the old proviso to sub-cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it now holds the field from the notified date i.e., January a 30, 1976. The proviso in sub-cl. (3) to cl. 20 laying down a particular ratio of absorption, is protanto avoided by an express enactment of a new proviso to sub-s. (3) of s. 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected. | 0 | 4,021 | 1,012 | ### Instruction:
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10. Further, it is significant to notice that the saving clause that we are considering in s. 31(2) (i) of the Act, saves things done while the ordinance was in force; it does not purport to preserve a right acquired under the repealed ordinance. It is unlike the usual saving clauses which preserve unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder. It is also clear that even s. 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute.Employees in excess of the scale prescribed for the categories specified under proviso to sub-s. (3) of s. 19 of the Act are clearly not entitled for absorption. Though sub- cl. (3) to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from January 30, 1976, it doe s not follow that there was an automatic absorption as from that date. Every such person eligible for absorption had to fulfill three conditions, viz., (1) he had to be a workman within the meaning of the Industrial Disputes Act, 1947; (2 ) he should have been immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub-cl. (3) to cl. 20. The whole object of inserting sub-cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment. For this purpose the Corporation had necessarily to screen the applicants. 11. It is necessary to mention that cl. 5 of t he Ordinance, which corresponds to s. 5 of the Act, provided that every contract carriage operator shall within 15 days from the notified date or within such further time as the State Government may allow, furnish to the State Government or any officer authorised by it in this behalf, complete particulars among others of persons who were in their employment immediately before the notified date. It was only after such information was received that steps had to be take n for the purpose of ascertaining as to who were entitled to be absorbed in the service of the Corporation in accordance with sub-cl. (3) to cl. 20 of the ordinance. The authorities after collecting the necessary information had to determine not only the corresponding posts to which the erstwhile employees of the contract carriage operators could be absorbed in the service of the Corporation but also their relative seniority, for the purpose of excluding the employees who were in excess of the scale for the purpose of absorption.As sub-cl. (3) to cl. 20 itself provides that a person who is not willing to become an employee of The Corporation is entitled to retrenchment compensation as provided for in the Industrial Disputes Act, the authorities were also required to ascertain as to whether the employee, who was entitled to be absorbed in service, was willing to become an employee of the Corporation or not. It was only if the employee was willing to be absorbed in th e service of the Corporation that the Corporation could absorb him in service, provided the other conditions specified in sub-cl. (3) to cl. 20 were satisfied. Thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who could be absorbed in the service of the Corporation, in accordance with sub-cl. (3) to cl. 20 of the ordinance. 12. The very fact that all these Various steps were necessary to be taken, which necessarily takes time, shows that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible. When the ordinance came to be replaced by the Act, the Corporation felt that the number of employees of the erstwhile contract carriage operators was too large for its requirements. The legislature, therefore, stepped in and reduced the scale of absorption in the proviso to sub-s. (3) of s. 19 from 7.9 per vehicle to 4.45 per vehicle. 13. This is , in our judgment, sufficient for the determination of the appeal. But, as we have formed a clear opinion on the other aspect, we do not hesitate to express that opinion. That contention is of this nature. It is pointed out that the employees of the erstwhile contract carriage operators acquired vested right to absorption in the service of the Corporation by virtue of sub-cl. (3) to cl. 20 of the repealed ordinance with effect from January 30, 1976, which cannot be taken a way by the proviso to sub-s. (3) of s. 19. Even if-contrary to the decision reached by us, it were possible to hold that they had some kind of such right, that right is expressly taken away by the legislature. The contention does not take note of the fact that by sub-s. (1) of s. 1 the Act was brought into force with effect from January 30, 1976, i.e., the date on which the ordinance was promulgated. The Act substitutes a new proviso in sub-s. (3) of s. 1 in place of the old proviso to sub-cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it now holds the field from the notified date i.e., January a 30, 1976. The proviso in sub-cl. (3) to cl. 20 laying down a particular ratio of absorption, is protanto avoided by an express enactment of a new proviso to sub-s. (3) of s. 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected.
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The High Court rightly observes that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub-cl. (3) to cl. 20. The employees of the former contract carriage operators in normal course filled in the pro form giving their service particulars and reported to duty. This was in the mere ho pe or expectation of acquiring a right. The submission of these call reports by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service. As a matter of fact, nothing was done while the ordinance was in force. The Act was published on March 12, 1976. on May 29, 1976, the Corporation sent up proposals for equation of posts to be filled in by the employees of the former contract carriage operators. The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter-se seniority, met on June 2, 1976. The Committee decided that even in the case of helpers-cleaners, there should be a trade test and the staff cleared by the Committee for the posts of helper B helper A and assistant artisans should be on the basis of their technical competence, experience, ability etc. The Committee also decided that all other employees of contract carriage operators who were, eligible for absorption, should be interviewed by that p Committee for the purpose of absorption on the basis of experience, ability, duties and responsibilities. These norms were not laid down till June 2, 1976. Till their actual absorption, the employees of the erstwhile contract carriage operators had only an incohate right.The distinction between what is, and what is not a right preserved by the provisions of s. 6 of the General Clauses Act is often one of great finenessIt must be mentioned that the object of s. 31(2) (i) is to preserve only the things done and action taken under the repealed Ordinance, and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforcedIt is also clear that even s. 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute.Employees in excess of the scale prescribed for the categories specified under proviso to sub-s. (3) of s. 19 of the Act are clearly not entitled for absorption. Though sub- cl. (3) to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from January 30, 1976, it doe s not follow that there was an automatic absorption as from that date. Every such person eligible for absorption had to fulfill three conditions, viz., (1) he had to be a workman within the meaning ofthe Industrial Disputes Act, 1947; (2 ) he should have been immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub-cl. (3) to cl. 20. The whole object of inserting sub-cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment. For this purpose the Corporation had necessarily to screen the applicantsThis is , in our judgment, sufficient for the determination of the appeal. But, as we have formed a clear opinion on the other aspect, we do not hesitate to express that opinion. That contention is of this nature. It is pointed out that the employees of the erstwhile contract carriage operators acquired vested right to absorption in the service of the Corporation by virtue of sub-cl. (3) to cl. 20 of the repealed ordinance with effect from January 30, 1976, which cannot be taken a way by the proviso to sub-s. (3) of s. 19. Even if-contrary to the decision reached by us, it were possible to hold that they had some kind of such right, that right is expressly taken away by the legislature. The contention does not take note of the fact that by sub-s. (1) of s. 1 the Act was brought into force with effect from January 30, 1976, i.e., the date on which the ordinance was promulgated. The Act substitutes a new proviso in sub-s. (3) of s. 1 in place of the old proviso to sub-cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it now holds the field from the notified date i.e., January a 30, 1976. The proviso in sub-cl. (3) to cl. 20 laying down a particular ratio of absorption, is protanto avoided by an express enactment of a new proviso to sub-s. (3) of s. 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected.
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Khudiram Das Vs. The State Of West Bengal & Ors | to the petitioner. Ground (e) must accordingly be rejected.17. That takes us to ground (d) which impugns the order of approval passed by the State Government under Section 3, sub-section (3) of the Act. This requirement of approval of the State Government imposed by Section 3, sub-s. (3) is intended to act as a check on the exercise of the power of detention by the District Magistrate under Sec. 3, sub-section (2) of the Act. Therefore, a fortiori all the basic facts and materials which weighed with the District Magistrate in reaching his subjective satisfaction must be placed before the State Government, so that the State Government can, as a supervisory authority, decide whether the power of detention has been properly or improperly exercised by the. District Magistrate. But in addition to such basic facts and materials, which constitute the grounds of detention, the District Magistrate is also required to send to the State Government under Section 3, sub-sec. (3) "such other particulars as in his opinion have a bearing on the matter." Obviously, these "other particulars"" would be different from the basic facts and materials which constitute the grounds of detention and would not be material which has gone into the formation of the subjective satisfaction of the District Magistrate. If there are any materials of such a nature as could reasonably be said to have influenced the District Magistrate in arriving at his subjective satisfaction, they would be part of the grounds of detention and not other particulars."It is not possible to categorise precisely what these "other particulars" can be, but they may include particulars relating to the background of the circumstances in which the District Magistrate reached his subjective satisfaction leading to the making of the order of detention or particulars found to be administratively necessary for him to communicate to the State Government, so that the State Government may be able to effectively discharge its function as an overseeing superior authority while determining whether or not to grant approval to the order of detention made by the District Magistrate. There is nothing in Article 22 (5) of the Constitution or in any provision of the Act which requires that these other particulars" should be communicated to the detenu. The only requirement of communication is in regard to the basic facts and materials which constitute the grounds of detention and if there are "other particulars" besides the grounds of detention which are communicated to the State Government they need not be disclosed to the detenu. We cannot import any requirement of disclosure in regard to these "other particulars" merely on the basis of a supposed intention of the legislature when there is nothing in the statute which evinces any such intention.18. The petitioner, however, relied very strongly on the following observations of this Court in Nardhan Sahas case W. P. No. 1989 of 1973, D/. 21-8-1974 = (Reported in AIR 1974 SC 2154 ):"The Preventive Detention Act, 1950,was considered by this Court and it is an established rule of this Court that a detenu has a right to be apprised of all the materials on which an order of detention is passed or approved."and contended that the detenu was, therefore, entitled to a disclosure not only of the grounds of detention but also of "other particulars" communicated by the District Magistrate to the State (government under Section 3, sub-section (3). We do not think the observations relied upon by the petitioner support his contention. There can be no doubt that when the Court made these observations, what it had in mind was the materials which constituted the grounds of detention and not "other particulars", for the making of the order of detention would be based on the former and not on the latter and so also its approval by the State Government. What the Court meant to say in making these observations was that all the materials on which the order of detention is made or approved that is, the materials constituting the grounds of detention, must be communicated to the detenu and not that "other particulars" communicated to the State Government under Section 3, subsection (3) which do not form the basis of the making of the order of detention or its approval should be disclosed to the detenu. The Court could not have intended to say that in addition to the grounds of detention "other particulars" mentioned in Section 3, sub-section (3) should also be communicated to the detenu when there is no requirement to that effect either in Article 22 (5) of the Constitution or in any provision of the Act. We may point out that in fact no such question arose for decision in that case and the Court was not called upon to decide whether "other particulars" communicated to the State Government under Section 3, sub-section (3) are required to be disclosed to the detenu. The Court merely reiterated the well-settled proposition that the materials constituting the grounds of detention on which the order of detention is made by the District Magistrate and approved by the State Government must be communicated to the detenu. The observations made by the Court did not go further than this and cannot be read in the manner contended on behalf of the petitioner.19. Now in the present case, as already pointed out above, the material from the history-sheet, which was not disclosed to the petitioner, did not form part of the grounds of detention on which the order of detention was made by the District Magistrate and approved by the State Government, but merely constituted "other particulars" communicated by the District Magistrate to the State Government under Section 3, sub-section (3). There was, therefore, no obligation on the District Magistrate or the State Government to disclose this material to the petitioner and the non-disclosure of it to the petitioner did not have the effect of invalidating the approval of the State Government to the order of detention. Ground (d) must also, therefore, fail and be rejected. | 0[ds]6. The answer to these questions does not present any serious difficulty if only we consider the reason why the grounds are required to be communicated to the detenu as soon as may be after the detention. Obviously the reason is two-fold. In the first place, the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu, so that, not only the detenu may know what are the facts and materials before the detaining authority on the basis of which he is being deprived of his personal liberty, but he can also invoke the power of judicial review, howsoever limited and peripheral it may be. Secondly, the detenu has to be afforded an opportunity of making a representation against the order of detention. But if the grounds of detention are not communicated to him, how can he make an effective representation? The opportunity of making a representation would be rendered illusory.The communication of the grounds of detention is, therefore, also intended to subserve the purpose of enabling the detenu to make an effective representation. If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvious that the grounds meanall the basic facts and materialswhich have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention isis, therefore, clear that nothingless than allthe basic facts and materials, which influenced the detaining authority in making the order of detention, must be communicated to the detenu. That is the plain requirement of the first safeguard in Article 22 (5). The second safeguard in Article 22 (5) requires that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. No avoidable delay, no short fall in the materials communicated shall stand in the way of the detenu in making an early, yet comprehensive and effective, representation in regard to all basic facts and materials which may have influenced the detaining authority in making the order of detention depriving him of his freedom. These are the legal bulwarks enacted by the constitution-makers against arbitrary or improper exercise of the vast powers of preventive detention which may be vested in the executive by a law of preventive detention such as the Maintenance of Internal Security Act, 1971.That disposes of grounds (a) and (b) and we must now proceed to consider ground (c). Now before we consider ground (c), we must deal with an objection raised by counsel on behalf of the State, which, if well founded, would cut short an inquiry into this ground. Counsel on behalf of the State submitted that though the District Magistrate in his affidavit in reply admitted that besides the three incidents referred to in the grounds of detention, other material was also placed before him, he stated on oath that he did not take such other material into account in making the order of detention and this statement on oath made by him must be accepted as correct and that should be an end to all further inquiry by the Court. He strenuously protested against the Court requiring the State to produce the history-sheet of the petitioner containing other material which was before the District Magistrate. His argument was that it was not competent to the Court to probe further into the matter for the purpose of examining what was the nature of the other material before the District Magistrate and whether he was influenced by such other material in making the order of detention. This claim made by counsel on behalf of the State is Indeed a bold claim calculated to shut out judicial intrusion merely on the strength of ipse dixit of the detaining authority. We cannot countenance such a claim.Now, the proposition can hardly be disputed that if there is before the District Magistrate material against the detenu which is of a highly damaging character and having nexus and relevancy with the object of detention, and proximity with the time when the subjective satisfaction forming the basis of the detention order was arrived at, it would be legitimate for the Court to infer that such material must have influenced the District Magistrate in arriving at his subjective satisfaction and in such a case the Court would refuse to accept the bald statement of the District Magistrate that he did not take such material into account and excluded it from consideration. It is elementary that the human mind does not function in compartments. When it receives impressions from different sources, it is the totality of the impressions which goes into the making of the decision and it is not possible to analyse and dissect the impressions and predicate which impressions went into the making/of the decision and which did not. Nor is it an easy exercise to erase the impression created by particular circumstances so as to exclude the influence of such impression in the decision-making process. Therefore, in a case where the material before the District Magistrate is of a character which would in all reasonable probability be likely to influence the decision of any reasonable human being, the Court would be most reluctant to accept the ipse dixit of the District Magistrate that he was not so influenced and a fortiori, if such material is not disclosed to the detenu, the order of detention would be vitiated, both on the ground that all the basic facts and materials which influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as also on the ground that the detenu was denied an opportunity of making an effective representation against the order of detention.16. But in the present case we do not find that there is any such infirmity vitiating the order of detention against the petitioner. The material in the history sheet of the petitioner which was not disclosed to him referred to two circumstances. One was that the petitioner had picked up the habit of committing thefts of copper wires and he committed thefts of copper wires and the other was that there were several thefts of transformers from villages like Betrabad, Uttar Lakshipur, Sultanganj and Nandalalpur. So far as the first circumstance is concerned, it was merely a generalization based on the three incidents referred to in the grounds of detention and it did not refer to any other incidents of theft of copper wires besides the three enumerated in the grounds of detention did not, therefore, constitute any additional material prejudicia1 to the petitioner which could be said to have gone into the formation of the subjective satisfaction of the District Magistrate and the non-disclosure of it to the petitioner did not have the effect of invalidating the order of detention. The second circumstance was not directed against any activity of the petitioner at all. It merely provided the background of the social malady which must have been exercising the mind of the authority charged with the administration of law and order when it said that there were several thefts of transformers from Betrabad, Uttar Lakshipur, Sultanganj and Nandlalpur villages and it was in the context of this background that the three incidents referred to in the grounds of detention were considered by the District Magistrate. What were alleged against the petitioner were only the three incidents set out in the grounds of detention. The thefts of transformers referred to in the second circumstance were not attributed to the petitioner. They merely provided the backdrop of the prevailing situation in the area and did not constitute material prejudicial to the petitioner which ought to have been disclosed to him. There was, therefore, no material before the District Magistrate, other than the three incidents set out in the grounds of detention, which went into the formation of the subjective satisfaction of the District Magistrate and which ought, therefore, to have been communicated to the petitioner. Ground (e) must accordingly be rejected.17. That takes us to ground (d) which impugns the order of approval passed by the State Government under Section 3, sub-section (3) of the Act. This requirement of approval of the State Government imposed by Section 3, sub-s. (3) is intended to act as a check on the exercise of the power of detention by the District Magistrate under Sec. 3, sub-section (2) of the Act. Therefore, a fortiori all the basic facts and materials which weighed with the District Magistrate in reaching his subjective satisfaction must be placed before the State Government, so that the State Government can, as a supervisory authority, decide whether the power of detention has been properly or improperly exercised by the. District Magistrate. But in addition to such basic facts and materials, which constitute the grounds of detention, the District Magistrate is also required to send to the State Government under Section 3, sub-sec. (3) "such other particulars as in his opinion have a bearing on the matter." Obviously, these "other particulars"" would be different from the basic facts and materials which constitute the grounds of detention and would not be material which has gone into the formation of the subjective satisfaction of the District Magistrate. If there are any materials of such a nature as could reasonably be said to have influenced the District Magistrate in arriving at his subjective satisfaction, they would be part of the grounds of detention and not other particulars."It is not possible to categorise precisely what these "other particulars" can be, but they may include particulars relating to the background of the circumstances in which the District Magistrate reached his subjective satisfaction leading to the making of the order of detention or particulars found to be administratively necessary for him to communicate to the State Government, so that the State Government may be able to effectively discharge its function as an overseeing superior authority while determining whether or not to grant approval to the order of detention made by the District Magistrate. There is nothing in Article 22 (5) of the Constitution or in any provision of the Act which requires that these other particulars" should be communicated to the detenu. The only requirement of communication is in regard to the basic facts and materials which constitute the grounds of detention and if there are "other particulars" besides the grounds of detention which are communicated to the State Government they need not be disclosed to the detenu. We cannot import any requirement of disclosure in regard to these "other particulars" merely on the basis of a supposed intention of the legislature when there is nothing in the statute which evinces any such intention.Now in the present case, as already pointed out above, the material from the history-sheet, which was not disclosed to the petitioner, did not form part of the grounds of detention on which the order of detention was made by the District Magistrate and approved by the State Government, but merely constituted "other particulars" communicated by the District Magistrate to the State Government under Section 3, sub-section (3). There was, therefore, no obligation on the District Magistrate or the State Government to disclose this material to the petitioner and the non-disclosure of it to the petitioner did not have the effect of invalidating the approval of the State Government to the order of detention. Ground (d) must also, therefore, fail and be rejected. | 0 | 10,549 | 2,119 | ### Instruction:
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to the petitioner. Ground (e) must accordingly be rejected.17. That takes us to ground (d) which impugns the order of approval passed by the State Government under Section 3, sub-section (3) of the Act. This requirement of approval of the State Government imposed by Section 3, sub-s. (3) is intended to act as a check on the exercise of the power of detention by the District Magistrate under Sec. 3, sub-section (2) of the Act. Therefore, a fortiori all the basic facts and materials which weighed with the District Magistrate in reaching his subjective satisfaction must be placed before the State Government, so that the State Government can, as a supervisory authority, decide whether the power of detention has been properly or improperly exercised by the. District Magistrate. But in addition to such basic facts and materials, which constitute the grounds of detention, the District Magistrate is also required to send to the State Government under Section 3, sub-sec. (3) "such other particulars as in his opinion have a bearing on the matter." Obviously, these "other particulars"" would be different from the basic facts and materials which constitute the grounds of detention and would not be material which has gone into the formation of the subjective satisfaction of the District Magistrate. If there are any materials of such a nature as could reasonably be said to have influenced the District Magistrate in arriving at his subjective satisfaction, they would be part of the grounds of detention and not other particulars."It is not possible to categorise precisely what these "other particulars" can be, but they may include particulars relating to the background of the circumstances in which the District Magistrate reached his subjective satisfaction leading to the making of the order of detention or particulars found to be administratively necessary for him to communicate to the State Government, so that the State Government may be able to effectively discharge its function as an overseeing superior authority while determining whether or not to grant approval to the order of detention made by the District Magistrate. There is nothing in Article 22 (5) of the Constitution or in any provision of the Act which requires that these other particulars" should be communicated to the detenu. The only requirement of communication is in regard to the basic facts and materials which constitute the grounds of detention and if there are "other particulars" besides the grounds of detention which are communicated to the State Government they need not be disclosed to the detenu. We cannot import any requirement of disclosure in regard to these "other particulars" merely on the basis of a supposed intention of the legislature when there is nothing in the statute which evinces any such intention.18. The petitioner, however, relied very strongly on the following observations of this Court in Nardhan Sahas case W. P. No. 1989 of 1973, D/. 21-8-1974 = (Reported in AIR 1974 SC 2154 ):"The Preventive Detention Act, 1950,was considered by this Court and it is an established rule of this Court that a detenu has a right to be apprised of all the materials on which an order of detention is passed or approved."and contended that the detenu was, therefore, entitled to a disclosure not only of the grounds of detention but also of "other particulars" communicated by the District Magistrate to the State (government under Section 3, sub-section (3). We do not think the observations relied upon by the petitioner support his contention. There can be no doubt that when the Court made these observations, what it had in mind was the materials which constituted the grounds of detention and not "other particulars", for the making of the order of detention would be based on the former and not on the latter and so also its approval by the State Government. What the Court meant to say in making these observations was that all the materials on which the order of detention is made or approved that is, the materials constituting the grounds of detention, must be communicated to the detenu and not that "other particulars" communicated to the State Government under Section 3, subsection (3) which do not form the basis of the making of the order of detention or its approval should be disclosed to the detenu. The Court could not have intended to say that in addition to the grounds of detention "other particulars" mentioned in Section 3, sub-section (3) should also be communicated to the detenu when there is no requirement to that effect either in Article 22 (5) of the Constitution or in any provision of the Act. We may point out that in fact no such question arose for decision in that case and the Court was not called upon to decide whether "other particulars" communicated to the State Government under Section 3, sub-section (3) are required to be disclosed to the detenu. The Court merely reiterated the well-settled proposition that the materials constituting the grounds of detention on which the order of detention is made by the District Magistrate and approved by the State Government must be communicated to the detenu. The observations made by the Court did not go further than this and cannot be read in the manner contended on behalf of the petitioner.19. Now in the present case, as already pointed out above, the material from the history-sheet, which was not disclosed to the petitioner, did not form part of the grounds of detention on which the order of detention was made by the District Magistrate and approved by the State Government, but merely constituted "other particulars" communicated by the District Magistrate to the State Government under Section 3, sub-section (3). There was, therefore, no obligation on the District Magistrate or the State Government to disclose this material to the petitioner and the non-disclosure of it to the petitioner did not have the effect of invalidating the approval of the State Government to the order of detention. Ground (d) must also, therefore, fail and be rejected.
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of detention would be vitiated, both on the ground that all the basic facts and materials which influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as also on the ground that the detenu was denied an opportunity of making an effective representation against the order of detention.16. But in the present case we do not find that there is any such infirmity vitiating the order of detention against the petitioner. The material in the history sheet of the petitioner which was not disclosed to him referred to two circumstances. One was that the petitioner had picked up the habit of committing thefts of copper wires and he committed thefts of copper wires and the other was that there were several thefts of transformers from villages like Betrabad, Uttar Lakshipur, Sultanganj and Nandalalpur. So far as the first circumstance is concerned, it was merely a generalization based on the three incidents referred to in the grounds of detention and it did not refer to any other incidents of theft of copper wires besides the three enumerated in the grounds of detention did not, therefore, constitute any additional material prejudicia1 to the petitioner which could be said to have gone into the formation of the subjective satisfaction of the District Magistrate and the non-disclosure of it to the petitioner did not have the effect of invalidating the order of detention. The second circumstance was not directed against any activity of the petitioner at all. It merely provided the background of the social malady which must have been exercising the mind of the authority charged with the administration of law and order when it said that there were several thefts of transformers from Betrabad, Uttar Lakshipur, Sultanganj and Nandlalpur villages and it was in the context of this background that the three incidents referred to in the grounds of detention were considered by the District Magistrate. What were alleged against the petitioner were only the three incidents set out in the grounds of detention. The thefts of transformers referred to in the second circumstance were not attributed to the petitioner. They merely provided the backdrop of the prevailing situation in the area and did not constitute material prejudicial to the petitioner which ought to have been disclosed to him. There was, therefore, no material before the District Magistrate, other than the three incidents set out in the grounds of detention, which went into the formation of the subjective satisfaction of the District Magistrate and which ought, therefore, to have been communicated to the petitioner. Ground (e) must accordingly be rejected.17. That takes us to ground (d) which impugns the order of approval passed by the State Government under Section 3, sub-section (3) of the Act. This requirement of approval of the State Government imposed by Section 3, sub-s. (3) is intended to act as a check on the exercise of the power of detention by the District Magistrate under Sec. 3, sub-section (2) of the Act. Therefore, a fortiori all the basic facts and materials which weighed with the District Magistrate in reaching his subjective satisfaction must be placed before the State Government, so that the State Government can, as a supervisory authority, decide whether the power of detention has been properly or improperly exercised by the. District Magistrate. But in addition to such basic facts and materials, which constitute the grounds of detention, the District Magistrate is also required to send to the State Government under Section 3, sub-sec. (3) "such other particulars as in his opinion have a bearing on the matter." Obviously, these "other particulars"" would be different from the basic facts and materials which constitute the grounds of detention and would not be material which has gone into the formation of the subjective satisfaction of the District Magistrate. If there are any materials of such a nature as could reasonably be said to have influenced the District Magistrate in arriving at his subjective satisfaction, they would be part of the grounds of detention and not other particulars."It is not possible to categorise precisely what these "other particulars" can be, but they may include particulars relating to the background of the circumstances in which the District Magistrate reached his subjective satisfaction leading to the making of the order of detention or particulars found to be administratively necessary for him to communicate to the State Government, so that the State Government may be able to effectively discharge its function as an overseeing superior authority while determining whether or not to grant approval to the order of detention made by the District Magistrate. There is nothing in Article 22 (5) of the Constitution or in any provision of the Act which requires that these other particulars" should be communicated to the detenu. The only requirement of communication is in regard to the basic facts and materials which constitute the grounds of detention and if there are "other particulars" besides the grounds of detention which are communicated to the State Government they need not be disclosed to the detenu. We cannot import any requirement of disclosure in regard to these "other particulars" merely on the basis of a supposed intention of the legislature when there is nothing in the statute which evinces any such intention.Now in the present case, as already pointed out above, the material from the history-sheet, which was not disclosed to the petitioner, did not form part of the grounds of detention on which the order of detention was made by the District Magistrate and approved by the State Government, but merely constituted "other particulars" communicated by the District Magistrate to the State Government under Section 3, sub-section (3). There was, therefore, no obligation on the District Magistrate or the State Government to disclose this material to the petitioner and the non-disclosure of it to the petitioner did not have the effect of invalidating the approval of the State Government to the order of detention. Ground (d) must also, therefore, fail and be rejected.
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R. B. Seth Jessaram Fatehchand Vs. Om Narain Tankha & Anr | and circumstances of the case were considered and it was held on those facts and circumstances that there was a trust. In that case Rs. 2,000 had been left as trust by a will, but the executor who was the son of the testator said that his father had intended to bequeath Rs. 3,000 and the question was whether the further Rs. 1,000 was also a trust. On the facts and circumstances of that case it was held that as the amount bequeathed (namely, Rs. 2,000) was certainly a trust, the addition of Rs. 1,000 to it by the executor would be of the same kind and would be equally impressed with trust. That case also shows that where a trust can be inferred clearly a provision for payment of interest would be immaterial.16. In re: Halletts Estate, Knatchbull v. Hallettt, (1880) 13 Ch D 696, it was held that if a person held money in a fiduciary character but mixed it up with his own account, the person for whom the money was held could follow it and had a charge on the balance in the bankers hands. This case again shows that the main question that Courts have to decide in such cases is whether on the facts and circumstances a fiduciary relationship is established. If it is established, then the fact that the money was mixed with the trustees money may not make any difference.17. In re: Hallett and Co., 1894-2 QBD 237, segregation was the test used for the purpose of deciding whether there was trust or not.18. In Frank M. Mckey v. M. Paradise, (1936) 81 Law Ed 75, the question arose with reference to a claim of an employee welfare association against the employer and it was held that without segregating any money as due to the association there could be no trust. This case shows the significance of segregation in arriving at the inference whether there was a trust.19. A consideration of these English and American cases also in our opinion shows that the first question in each case where the Court is dealing with a security deposit is to ask whether on the agreement in writing, if any, and on the facts and circumstances of the case and conduct of the parties it can be said that the security deposit was impressed with some kind of a trust. If that can be said then the question whether interest was provided for and whether the trustee could mix the deposit money with his own money would not be of importance and would not take away the character of the deposit being impressed with a trust. The mere fact that money was deposited as a security is not sufficient to come to the conclusion that it must be treated as trust money. The Court will have to look to all the terms of the agreement if in writing and to the facts and circumstances of the case and to the conduct of the parties before coming to the conclusion whether a security deposit was impressed with a trust. If a trust can clearly be spelled out from the terms of the agreement that ends the matter. But if the trust cannot be spelled out clearly the fact that there was no segregation provided for and the fact that interest was to be paid would go a long way to show that the deposit was not impressed with the character of a trust particularly where the person with whom the deposit was made could mix it with his own money and could use it for himself. In such a case the inference would be that the relationship between the parties was that of a debtor and creditor. Further besides these circumstances if there is any other term which suggests one kind of relationship rather than the other that will also have to be taken into account. Illustrations of this will be found both in the Bombay case [i.e., in Manekjis case, AIR 1932 Bom 311], and in the Allahabad case [i.e., Maheshwari Brothers case, ILR (1942) All 242: (AIR 1942 All 119) (FB)]. In the Bombay case besides absence of segregation and presence of interest there was a further fact that in certain circumstances segregation had been provided for. The Court was entitled to take that fact into consideration and hold that the deposit was not impressed with trust till segregation took place. In the Allahabad case a floating charge was created which failed for want of registration, and that circumstance was also used to show that the relationship between the parties was that of a debtor and creditor and not that of a trustee and beneficiary.20. Let us now apply these principles to the facts of the present case. The facts show that there was no segregation in this case and the Mills could mix the security deposit with its own money and use it for its own purpose. Further because the Mills could use the money for its own purpose, it had to pay interest. In addition to these two circumstances which would incline one to the view that the relationship was that of a debtor and creditor, there is the further fact that Cl. (9) of the agreement provides that even though the period fixed in the agreement comes to an end, the agreement would continue if the security deposit is not refunded and the commission due is not paid. We agree with the learned Company Judge that the last words in Cl. (9) make the security deposit and the commission due on a par. The commission due can be nothing other than a debt; the security deposit is put on a par with that. That is a further indication that the relationship in the present case was that of a debtor and creditor. In the circumstances we are of opinion that the High Court was right in its view as to the nature of the security deposit in the present case. | 0[ds]6. It will be seen from the terms of the agreement already set out that there was no stipulation that the amount of Rs. 50,000 deposited as security would be kept as a separate fund by the Mills and it would not use it for its own purposes. On the other hand, it is clear that interest had to be paid and there was nothing in the agreement to prevent the Mills from using the money as its own so long as it paid interest on it. It is true that the money was to be refunded along with interest on the termination of the agency but Cl. (9) further provided that in case the money was not refunded after one year, the appellant would be entitled to commission as if the agreement had not terminated. As the agreement itself puts it, it will remain alive even after the period of one year so long as the security with interest was not refunded and the commission due was not paid. The last words of Cl. (9) of the agreement put the security deposit and the commission due on the same footing. It is because of this provision that the learned Company Judge held that as the security deposit and the commission due were put on the same footing and the commission could only be a debt the security deposit in the circumstances of this agreement could not be treated on a higher footing It seems to us that the view taken by the learned Company Judge so far as this agreement is concerned (which was upheld by the Division Bench ) is correct.There can in our opinion be no disagreement with principle so enunciated, and the conclusion whether the deposit is in the nature of a trust or a loan will depend upon the facts and circumstances of each case, particularly on the terms of the agreement if there is one in writing. The difficulty, however arises in the application of the principle to particular cases. But the Calcutta and Madras High Courts seem to lean to the view that where there is a security deposit it will generally be in the nature of aso these two cases make it clear that the proper approach to the question is to ask whether on the interpretation of the document, if there is one or from proved or admitted facts and circumstances a trust is established or not. If a trust is established, a provision for payment of interest by the trustee does not destroy the character of the trust nor does the fact that the money is not segregated.It will thus be seen that the view of the learned Company Judge that the conflict between the Calcutta and Madras High Courts on one side and the Allahabad and Bombay High Courts on the other is more apparent than real is borne out by the fact that in each case the Court considered the agreement to decide whether on the terms thereof and facts and circumstances of the case the deposit was impressed with a trust, though it must be admitted that the conclusion on reached was not the same.13. We are of opinion that the question whether the security deposit in a particular case can be said to be impressed with trust will have to be decided on the basis of the terms of the agreement and the facts and circumstances of each case without any leaning one way or the other on the fact that the money was given as a security deposit. If the terms of the agreement if it is in writing clearly indicate that the deposit was in the nature of a trust the Court will come to that conclusion in spite of the fact that interest is provided for in the agreement. But where the terms of the agreement do not clearly indicate a trust the Court will have to consider the facts and circumstances of each case along with the terms to decide whether in fact something in the nature of a trust was impressed on the security deposit. In such a case the fact whether segregation was provided for or not would be one circumstance to be taken into consideration. Where segregation is provided for the Court would lean towards the deposit being in the nature of a trust. But where segregation is not provided for and the deposit is permitted to be mixed up with the funds of the person with whom the deposit is made the Court may come to the conclusion that anything in the nature of trust was not intended for generally speaking in view of S. 51 of the Indian Trusts Act (No. 2 of 1882) a trustee cannot use or deal with the trust property for his own profit or for any other purpose unconnected with the trust. It is true that where there is a clear trust and the trust deed if any provides that the trustee may use the trust property as he likes the fact that the trustee can mix the trust property with his own may not make any difference. But where there is no clear indication that security deposit was impressed with trust absence of segregation would be a circumstance against there being a trust.trust.19. A consideration of these English and American cases also in our opinion shows that the first question in each case where the Court is dealing with a security deposit is to ask whether on the agreement in writing, if any, and on the facts and circumstances of the case and conduct of the parties it can be said that the security deposit was impressed with some kind of a trust. If that can be said then the question whether interest was provided for and whether the trustee could mix the deposit money with his own money would not be of importance and would not take away the character of the deposit being impressed with a trust. The mere fact that money was deposited as a security is not sufficient to come to the conclusion that it must be treated as trust money. The Court will have to look to all the terms of the agreement if in writing and to the facts and circumstances of the case and to the conduct of the parties before coming to the conclusion whether a security deposit was impressed with a trust. If a trust can clearly be spelled out from the terms of the agreement that ends the matter. But if the trust cannot be spelled out clearly the fact that there was no segregation provided for and the fact that interest was to be paid would go a long way to show that the deposit was not impressed with the character of a trust particularly where the person with whom the deposit was made could mix it with his own money and could use it for himself. In such a case the inference would be that the relationship between the parties was that of a debtor and creditor. Further besides these circumstances if there is any other term which suggests one kind of relationship rather than the other that will also have to be taken into account.Let us now apply these principles to the facts of the present case. The facts show that there was no segregation in this case and the Mills could mix the security deposit with its own money and use it for its own purpose. Further because the Mills could use the money for its own purpose, it had to pay interest. In addition to these two circumstances which would incline one to the view that the relationship was that of a debtor and creditor, there is the further fact that Cl. (9) of the agreement provides that even though the period fixed in the agreement comes to an end, the agreement would continue if the security deposit is not refunded and the commission due is not paid. We agree with the learned Company Judge that the last words in Cl. (9) make the security deposit and the commission due on a par. The commission due can be nothing other than a debt; the security deposit is put on a par with that. That is a further indication that the relationship in the present case was that of a debtor and creditor. In the circumstances we are of opinion that the High Court was right in its view as to the nature of the security deposit in the present case.14. Another circumstance which may have to be taken into account in a case where the agreement does not indicate clearly that the security deposit is impressed with a trust is the payment of interest. Where there is no payment of interest provided for an inference may be readily drawn that the deposit was in the nature of a trust. But where the person with whom the deposit is made is to pay interest it may be possible to infer that payment of interest is a pointer towards there being no trust. Further any other provision in the agreement and any other circumstance as to the manner in which the deposit was dealt with may also have to be taken into account in coming to the conclusion whether the security deposit in a particular case was impressed with a trust or not. | 0 | 3,721 | 1,640 | ### Instruction:
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and circumstances of the case were considered and it was held on those facts and circumstances that there was a trust. In that case Rs. 2,000 had been left as trust by a will, but the executor who was the son of the testator said that his father had intended to bequeath Rs. 3,000 and the question was whether the further Rs. 1,000 was also a trust. On the facts and circumstances of that case it was held that as the amount bequeathed (namely, Rs. 2,000) was certainly a trust, the addition of Rs. 1,000 to it by the executor would be of the same kind and would be equally impressed with trust. That case also shows that where a trust can be inferred clearly a provision for payment of interest would be immaterial.16. In re: Halletts Estate, Knatchbull v. Hallettt, (1880) 13 Ch D 696, it was held that if a person held money in a fiduciary character but mixed it up with his own account, the person for whom the money was held could follow it and had a charge on the balance in the bankers hands. This case again shows that the main question that Courts have to decide in such cases is whether on the facts and circumstances a fiduciary relationship is established. If it is established, then the fact that the money was mixed with the trustees money may not make any difference.17. In re: Hallett and Co., 1894-2 QBD 237, segregation was the test used for the purpose of deciding whether there was trust or not.18. In Frank M. Mckey v. M. Paradise, (1936) 81 Law Ed 75, the question arose with reference to a claim of an employee welfare association against the employer and it was held that without segregating any money as due to the association there could be no trust. This case shows the significance of segregation in arriving at the inference whether there was a trust.19. A consideration of these English and American cases also in our opinion shows that the first question in each case where the Court is dealing with a security deposit is to ask whether on the agreement in writing, if any, and on the facts and circumstances of the case and conduct of the parties it can be said that the security deposit was impressed with some kind of a trust. If that can be said then the question whether interest was provided for and whether the trustee could mix the deposit money with his own money would not be of importance and would not take away the character of the deposit being impressed with a trust. The mere fact that money was deposited as a security is not sufficient to come to the conclusion that it must be treated as trust money. The Court will have to look to all the terms of the agreement if in writing and to the facts and circumstances of the case and to the conduct of the parties before coming to the conclusion whether a security deposit was impressed with a trust. If a trust can clearly be spelled out from the terms of the agreement that ends the matter. But if the trust cannot be spelled out clearly the fact that there was no segregation provided for and the fact that interest was to be paid would go a long way to show that the deposit was not impressed with the character of a trust particularly where the person with whom the deposit was made could mix it with his own money and could use it for himself. In such a case the inference would be that the relationship between the parties was that of a debtor and creditor. Further besides these circumstances if there is any other term which suggests one kind of relationship rather than the other that will also have to be taken into account. Illustrations of this will be found both in the Bombay case [i.e., in Manekjis case, AIR 1932 Bom 311], and in the Allahabad case [i.e., Maheshwari Brothers case, ILR (1942) All 242: (AIR 1942 All 119) (FB)]. In the Bombay case besides absence of segregation and presence of interest there was a further fact that in certain circumstances segregation had been provided for. The Court was entitled to take that fact into consideration and hold that the deposit was not impressed with trust till segregation took place. In the Allahabad case a floating charge was created which failed for want of registration, and that circumstance was also used to show that the relationship between the parties was that of a debtor and creditor and not that of a trustee and beneficiary.20. Let us now apply these principles to the facts of the present case. The facts show that there was no segregation in this case and the Mills could mix the security deposit with its own money and use it for its own purpose. Further because the Mills could use the money for its own purpose, it had to pay interest. In addition to these two circumstances which would incline one to the view that the relationship was that of a debtor and creditor, there is the further fact that Cl. (9) of the agreement provides that even though the period fixed in the agreement comes to an end, the agreement would continue if the security deposit is not refunded and the commission due is not paid. We agree with the learned Company Judge that the last words in Cl. (9) make the security deposit and the commission due on a par. The commission due can be nothing other than a debt; the security deposit is put on a par with that. That is a further indication that the relationship in the present case was that of a debtor and creditor. In the circumstances we are of opinion that the High Court was right in its view as to the nature of the security deposit in the present case.
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and the facts and circumstances of each case without any leaning one way or the other on the fact that the money was given as a security deposit. If the terms of the agreement if it is in writing clearly indicate that the deposit was in the nature of a trust the Court will come to that conclusion in spite of the fact that interest is provided for in the agreement. But where the terms of the agreement do not clearly indicate a trust the Court will have to consider the facts and circumstances of each case along with the terms to decide whether in fact something in the nature of a trust was impressed on the security deposit. In such a case the fact whether segregation was provided for or not would be one circumstance to be taken into consideration. Where segregation is provided for the Court would lean towards the deposit being in the nature of a trust. But where segregation is not provided for and the deposit is permitted to be mixed up with the funds of the person with whom the deposit is made the Court may come to the conclusion that anything in the nature of trust was not intended for generally speaking in view of S. 51 of the Indian Trusts Act (No. 2 of 1882) a trustee cannot use or deal with the trust property for his own profit or for any other purpose unconnected with the trust. It is true that where there is a clear trust and the trust deed if any provides that the trustee may use the trust property as he likes the fact that the trustee can mix the trust property with his own may not make any difference. But where there is no clear indication that security deposit was impressed with trust absence of segregation would be a circumstance against there being a trust.trust.19. A consideration of these English and American cases also in our opinion shows that the first question in each case where the Court is dealing with a security deposit is to ask whether on the agreement in writing, if any, and on the facts and circumstances of the case and conduct of the parties it can be said that the security deposit was impressed with some kind of a trust. If that can be said then the question whether interest was provided for and whether the trustee could mix the deposit money with his own money would not be of importance and would not take away the character of the deposit being impressed with a trust. The mere fact that money was deposited as a security is not sufficient to come to the conclusion that it must be treated as trust money. The Court will have to look to all the terms of the agreement if in writing and to the facts and circumstances of the case and to the conduct of the parties before coming to the conclusion whether a security deposit was impressed with a trust. If a trust can clearly be spelled out from the terms of the agreement that ends the matter. But if the trust cannot be spelled out clearly the fact that there was no segregation provided for and the fact that interest was to be paid would go a long way to show that the deposit was not impressed with the character of a trust particularly where the person with whom the deposit was made could mix it with his own money and could use it for himself. In such a case the inference would be that the relationship between the parties was that of a debtor and creditor. Further besides these circumstances if there is any other term which suggests one kind of relationship rather than the other that will also have to be taken into account.Let us now apply these principles to the facts of the present case. The facts show that there was no segregation in this case and the Mills could mix the security deposit with its own money and use it for its own purpose. Further because the Mills could use the money for its own purpose, it had to pay interest. In addition to these two circumstances which would incline one to the view that the relationship was that of a debtor and creditor, there is the further fact that Cl. (9) of the agreement provides that even though the period fixed in the agreement comes to an end, the agreement would continue if the security deposit is not refunded and the commission due is not paid. We agree with the learned Company Judge that the last words in Cl. (9) make the security deposit and the commission due on a par. The commission due can be nothing other than a debt; the security deposit is put on a par with that. That is a further indication that the relationship in the present case was that of a debtor and creditor. In the circumstances we are of opinion that the High Court was right in its view as to the nature of the security deposit in the present case.14. Another circumstance which may have to be taken into account in a case where the agreement does not indicate clearly that the security deposit is impressed with a trust is the payment of interest. Where there is no payment of interest provided for an inference may be readily drawn that the deposit was in the nature of a trust. But where the person with whom the deposit is made is to pay interest it may be possible to infer that payment of interest is a pointer towards there being no trust. Further any other provision in the agreement and any other circumstance as to the manner in which the deposit was dealt with may also have to be taken into account in coming to the conclusion whether the security deposit in a particular case was impressed with a trust or not.
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Hanu Motel Pvt. Ltd. and Anr Vs. Uttar pradesh financial Corporation Ltd. and Anr | 19. Having heard the learned counsel for the parties, in our opinion, the orders passed by the High Court cannot be sustained. It is clear that the suit was filed by two plaintiffs as early as in April, 2001. Plaintiff No. 1 was the Company and plaintiff No. 2 - Ram Raj Singh was shown to be a Director. An application under Order XXXIX of the Code was filed wherein interim relief was granted. Appeal against Order was filed by the Corporation and only in August, 2002, a Miscellaneous Application was filed by Ram Raj Singh to delete his name alleging that he had not singed the plaint and he was fraudulently described and shown as plaintiff No. 2 in the suit. It is unfortunate that the High Court decided the matter without hearing the present appellants, i.e. appellant No. 1-Company and appellant No. 2-Avdesh Kumar whose impleadment application was allowed on December 14, 2002 by the High Court and the High Court was, therefore, aware that he was very much on record. The learned counsel for the appellants is also right in contending that the High Court virtually decided the matter on the basis of one sided version of Ram Raj Singh who had alleged that fraud was committed against him. This is clear from what is stated by the High Court. 20. The High Court while disposing of the appeal inter alia observed; "The plaintiff No.2 in the suit is practicing advocate of the Lucknow Courts and is present in the Court. He made statement at Bar that he did not file any suit. The suit was filed by resorting to impersonation. He did not make signatures on the plaint and the affidavit. The plaintiff No.1 has not been arrayed through any of its Directors. The plaintiff No.2 has also not been mentioned in the array of parties to be the Director of the Company. In view of the statement made by Sri Ram Raj that he ha snot filed the suit in question and he is not prosecuting the suit, the suit is liable to be dismissed on behalf of plaintiff No.2 and the suit also cannot proceed on behalf of plaintiff No.1, as the Company ha snot been arrayed as party through any Director. Therefore, the suit is liable to be dismissed. Consequently the impugned order has merged in the order of dismissal of suit, which has rendered the appeal as infructuous. The appeal is dismissed accordingly as having become infructuous". 21. Granting liberty to Ram Raj Singh to take legal recourse against those persons who had played fraud upon him, the Court proceeded to state; "However, Shri Ram Raj, advocate is at liberty to take legal recourse against those persons who have played fraud upon him. Sri Ram Raj, advocate and learned counsel for the appellant have submitted that a fraud has been played to abuse the process of law, therefore, this Court may order the CBI to register a case against company and its Directors and investigate as to who has played fraud. Having regard to the seriousness of the fraud played, we direct the S.P., CBI to investigate the matter personally and prosecute the person who is found guilty in investigation. Record of the Civil Suit No.111 of 2001 shall be kept in sealed cover and shall be handed over during the course of investigation to S.P., CBI". 22. The counsel submitted that had an opportunity been afforded to the appellants, they could have shown that it was not correct that Ram Raj Singh had not signed the plaint or fraud had been committed by the Company or any officer of the Company. According to the learned counsel, on the contrary, CBI made the inquiry and submitted the report wherein it was specifically observed that Ram Raj Singh was not right when he asserted that he had not singed the plaint and that fraud was committed. According to CBI, it was Ram Raj Singh who had filed the suit, was shown as plaintiff No. 2 and it was his signature in the proceedings. 23. In our opinion, the learned counsel for the appellants is also right in contending that when present appellant No. 2 Avdesh Kumar was impleaded in December, 2002 as party and was very much on record in Appeal against Order, opportunity ought to have been afforded to him as to whether the Appeal from Order had become infructuous and whether the suit would not survive. To us, it appears that the High Court followed an easy path unknown to law when it rejected Review Petition on May 28, 2003 by recalling the order passed on December 11, 2002 virtually rectifying the order passed on May 6, 2003. In our considered opinion, the High Court ought to have extended an opportunity of hearing before passing order dated May 6, 2003 as also dated May 28, 2003 to appellant No.1-Company as well as to appellant No.2-Avdesh Kumar. 24. As to the report of CBI and prima facie case found against Ram Raj Singh in the investigation undertaken, it would not be appropriate to state anything one way or the other. Since we are of the view that both the orders passed by the High Court are liable to be set aside only on the ground of non-observance of natural justice, the matter should be remanded to the High Court for fresh disposal in accordance with law. Observations made by this Court may adversely affect one or the other party and it is not appropriate to express any such opinion. We are, however, convinced that both the orders dated May 06, 2003 and May 28, 2003 passed by the High Court are liable to be set aside. 25. In the result, both the appeals are allowed. Orders dated May 06, 2003 and May 28, 2003 are hereby set aside. The matters are remanded to the High Court for fresh decision in accordance with law after giving opportunity of hearing to all the parties.26. | 1[ds]. In our opinion, the learned counsel for the appellants is also right in contending that when present appellant No. 2 Avdesh Kumar was impleaded in December, 2002 as party and was very much on record in Appeal against Order, opportunity ought to have been afforded to him as to whether the Appeal from Order had become infructuous and whether the suit would not survive. To us, it appears that the High Court followed an easy path unknown to law when it rejected Review Petition on May 28, 2003 by recalling the order passed on December 11, 2002 virtually rectifying the order passed on May 6, 2003. In our considered opinion, the High Court ought to have extended an opportunity of hearing before passing order dated May 6, 2003 as also dated May 28, 2003 to appellant No.1-Company as well as to appellant No.2-Avdeshto the report of CBI and prima facie case found against Ram Raj Singh in the investigation undertaken, it would not be appropriate to state anything one way or the other. Since we are of the view that both the orders passed by the High Court are liable to be set aside only on the ground of non-observance of natural justice, the matter should be remanded to the High Court for fresh disposal in accordance with law. Observations made by this Court may adversely affect one or the other party and it is not appropriate to express any such opinion. We are, however, convinced that both the orders dated May 06, 2003 and May 28, 2003 passed by the High Court are liable to be setthe result, both the appeals are allowed. Orders dated May 06, 2003 and May 28, 2003 are hereby set aside. The matters are remanded to the High Court for fresh decision in accordance with law after giving opportunity of hearing to all the parties. | 1 | 2,924 | 344 | ### 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:
19. Having heard the learned counsel for the parties, in our opinion, the orders passed by the High Court cannot be sustained. It is clear that the suit was filed by two plaintiffs as early as in April, 2001. Plaintiff No. 1 was the Company and plaintiff No. 2 - Ram Raj Singh was shown to be a Director. An application under Order XXXIX of the Code was filed wherein interim relief was granted. Appeal against Order was filed by the Corporation and only in August, 2002, a Miscellaneous Application was filed by Ram Raj Singh to delete his name alleging that he had not singed the plaint and he was fraudulently described and shown as plaintiff No. 2 in the suit. It is unfortunate that the High Court decided the matter without hearing the present appellants, i.e. appellant No. 1-Company and appellant No. 2-Avdesh Kumar whose impleadment application was allowed on December 14, 2002 by the High Court and the High Court was, therefore, aware that he was very much on record. The learned counsel for the appellants is also right in contending that the High Court virtually decided the matter on the basis of one sided version of Ram Raj Singh who had alleged that fraud was committed against him. This is clear from what is stated by the High Court. 20. The High Court while disposing of the appeal inter alia observed; "The plaintiff No.2 in the suit is practicing advocate of the Lucknow Courts and is present in the Court. He made statement at Bar that he did not file any suit. The suit was filed by resorting to impersonation. He did not make signatures on the plaint and the affidavit. The plaintiff No.1 has not been arrayed through any of its Directors. The plaintiff No.2 has also not been mentioned in the array of parties to be the Director of the Company. In view of the statement made by Sri Ram Raj that he ha snot filed the suit in question and he is not prosecuting the suit, the suit is liable to be dismissed on behalf of plaintiff No.2 and the suit also cannot proceed on behalf of plaintiff No.1, as the Company ha snot been arrayed as party through any Director. Therefore, the suit is liable to be dismissed. Consequently the impugned order has merged in the order of dismissal of suit, which has rendered the appeal as infructuous. The appeal is dismissed accordingly as having become infructuous". 21. Granting liberty to Ram Raj Singh to take legal recourse against those persons who had played fraud upon him, the Court proceeded to state; "However, Shri Ram Raj, advocate is at liberty to take legal recourse against those persons who have played fraud upon him. Sri Ram Raj, advocate and learned counsel for the appellant have submitted that a fraud has been played to abuse the process of law, therefore, this Court may order the CBI to register a case against company and its Directors and investigate as to who has played fraud. Having regard to the seriousness of the fraud played, we direct the S.P., CBI to investigate the matter personally and prosecute the person who is found guilty in investigation. Record of the Civil Suit No.111 of 2001 shall be kept in sealed cover and shall be handed over during the course of investigation to S.P., CBI". 22. The counsel submitted that had an opportunity been afforded to the appellants, they could have shown that it was not correct that Ram Raj Singh had not signed the plaint or fraud had been committed by the Company or any officer of the Company. According to the learned counsel, on the contrary, CBI made the inquiry and submitted the report wherein it was specifically observed that Ram Raj Singh was not right when he asserted that he had not singed the plaint and that fraud was committed. According to CBI, it was Ram Raj Singh who had filed the suit, was shown as plaintiff No. 2 and it was his signature in the proceedings. 23. In our opinion, the learned counsel for the appellants is also right in contending that when present appellant No. 2 Avdesh Kumar was impleaded in December, 2002 as party and was very much on record in Appeal against Order, opportunity ought to have been afforded to him as to whether the Appeal from Order had become infructuous and whether the suit would not survive. To us, it appears that the High Court followed an easy path unknown to law when it rejected Review Petition on May 28, 2003 by recalling the order passed on December 11, 2002 virtually rectifying the order passed on May 6, 2003. In our considered opinion, the High Court ought to have extended an opportunity of hearing before passing order dated May 6, 2003 as also dated May 28, 2003 to appellant No.1-Company as well as to appellant No.2-Avdesh Kumar. 24. As to the report of CBI and prima facie case found against Ram Raj Singh in the investigation undertaken, it would not be appropriate to state anything one way or the other. Since we are of the view that both the orders passed by the High Court are liable to be set aside only on the ground of non-observance of natural justice, the matter should be remanded to the High Court for fresh disposal in accordance with law. Observations made by this Court may adversely affect one or the other party and it is not appropriate to express any such opinion. We are, however, convinced that both the orders dated May 06, 2003 and May 28, 2003 passed by the High Court are liable to be set aside. 25. In the result, both the appeals are allowed. Orders dated May 06, 2003 and May 28, 2003 are hereby set aside. The matters are remanded to the High Court for fresh decision in accordance with law after giving opportunity of hearing to all the parties.26.
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1
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. In our opinion, the learned counsel for the appellants is also right in contending that when present appellant No. 2 Avdesh Kumar was impleaded in December, 2002 as party and was very much on record in Appeal against Order, opportunity ought to have been afforded to him as to whether the Appeal from Order had become infructuous and whether the suit would not survive. To us, it appears that the High Court followed an easy path unknown to law when it rejected Review Petition on May 28, 2003 by recalling the order passed on December 11, 2002 virtually rectifying the order passed on May 6, 2003. In our considered opinion, the High Court ought to have extended an opportunity of hearing before passing order dated May 6, 2003 as also dated May 28, 2003 to appellant No.1-Company as well as to appellant No.2-Avdeshto the report of CBI and prima facie case found against Ram Raj Singh in the investigation undertaken, it would not be appropriate to state anything one way or the other. Since we are of the view that both the orders passed by the High Court are liable to be set aside only on the ground of non-observance of natural justice, the matter should be remanded to the High Court for fresh disposal in accordance with law. Observations made by this Court may adversely affect one or the other party and it is not appropriate to express any such opinion. We are, however, convinced that both the orders dated May 06, 2003 and May 28, 2003 passed by the High Court are liable to be setthe result, both the appeals are allowed. Orders dated May 06, 2003 and May 28, 2003 are hereby set aside. The matters are remanded to the High Court for fresh decision in accordance with law after giving opportunity of hearing to all the parties.
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M.P. Cement Manufacturers' Asson Vs. State Of M.P. | of Section 12. As we read the sub-section, it is a mandate to the policy makers who, before proposing legislation, are required to consult the State Regulatory Commission. 33. Under the Sudhar Adhiniyam, the State Commission is a juristic entity [Section 3(1)]. The Members of the Commission, according to Section 5 of the Sudhar Adhiniyam, shall be persons of ability, integrity and standing who have adequate knowledge and experience of, or have shown capacity in dealing with problems relating to engineering, economics, commerce, finance, law, administration or management.... Under Section 9 of the Sudhar Adhiniyam, the Commission has been vested with the powers inter alia - (a) to regulate the purchase, distribution, supply and utilization of electricity, the quality of service, the tariff and charges payable considering the interest of the consumer and the Electricity Industry both; (c) to determine the tariff for electricity, wholesale, bulk, grid or retail in accordance with the provisions of this Act. 34. In particular the Commission has been given the power to determine the tariff under Section 26 of the Sudhar Adhiniyam, 2000. For discharging its functions, the Commission has been given wide ranging powers to carry out the objects for which it has been set up including the powers of a Civil Court in certain specified matters [Section 10]. 35. It is true that the Sudhar Adhiniyam, 2000 although published in the Official Gazette prior to the promulgation of the impugned Ordinance, came into force after such promulgation. Nevertheless, the Act which replaced the Ordinance was introduced as a Bill when the Sudhar Adhiniyam was operative and was certainly in place when the Explanation was added to Section 3(2) in 2003. There was admittedly no consultation by the State Government with the Commission at any stage though the levy of cess by the impugned legislation affects the electricity industry. 36. We are not concerned with why the legislature provided for this mandate of prior consultation but the important of consultation at a pre-decisional stage has been recognised by Narayan Shankaran Mooss vs. State of Kerala and another [(1974) 2 SCR 60, page 70]:- "... First impressions and provisional judgments have a tendency to become ultimate ideas and final judgments. They would settle unconsciously on the investigators mind as the imperceptible dust-particles on an optical lens. They would dim his understanding and obfuscate his observation. Facts which will dovetail with them would arrest his attention; facts which will conflict with them would flit his observation. If by any chance he happens to notice refractory facts, he would seek to reconcile them with his first impressions and provisional judgment. This understanding of human psychology seems to have persuaded Parliament to interpose the condition of the Boards consultation to the Governments action. The Board is an independent body. It consists of three members. One of them is a technical expert, the other is financial expert, and the third an administrative expert. While considering the facts presented to it by the Government and by the licensee in his explanation, the Board will undoubtedly act with an open and unconditioned mind and will be able to offer unbiased counsel to the Government...." 37. In our opinion, the consequence of non-consultation in terms of Section 12(3) of the Sudhar Adhiniyam would not be an incompetent piece of legislation but a legislation introduced in breach of a salutary requirement to consult an expert statutory body. The statutory requirement for consultation with a body of experts before proposing legislation will serve as an in-built safeguard against a challenge under Article 14 of the Constitution apart from anything else.38. Nevertheless, we do not propose to decide - whether by reason only of such non-consultation, Section 3(2) of the 1981 Adhiniyam is violative of Article 14, nor do we propose to decide whether the cess of 20 paise is excessive, nor the other grounds urged by the appellants pertaining to Article 14. We have referred to the provisions of Sudhar Adhiniyam so that the State Government may in future act in consonance with Section 12(3)39. An additional challenge has been raised to the constitutional validity of sub-sections (3), (4) and (5) of Section 3 in Civil Appeal No. 2003 of 2002 alleging violation of Articles 202, 204, 207, 260 and 267 of the Constitution.40. In order to appreciate the submission, we may recapitulate briefly the effect of these sub-sections. Under sub-section (3), the proceeds of the cess levied under sub-section (1) and (2) are required to be credited to the Consolidated Fund of the State. The State Government may then withdraw an amount equivalent to the proceeds of cess realised in the preceding financial year and place it to the credit of a separate fund called the Energy Development Fund. Such credit to the fund would be an expenditure charged on the Consolidated Fund. The State Government has also the discretion to use the amount in the credit for the various purposes specified in sub-section (4). A further discretion is given to the State Government under sub-section (5) to finally and conclusively decide whether the funds were in fact being utilised for a purpose falling under sub-section (4).41. Apart from the submission that the respondents had not disclosed any information as to what had been done by the State after collecting the cess from its consumers and how the cess collected in fact been utilised since 1981 although called upon to do so, it is argued by the appellants that no fund could be earmarked or appropriated or expended from the Consolidated Fund of the State except in accordance with the provisions of Articles 196, 198, 199 and 200 of the Constitution which requires the expenditure to be passed by the State Legislature and it cannot be left to the State Executive to determine the expenditure at its discretion. This argument was raised before the High Court but not dealt with. Nor do we do so since we have upheld the appellants contentions on the very imposition of the cess under Section 3(2). | 1[ds]37. In our opinion, the consequence ofin terms of Section 12(3) of the Sudhar Adhiniyam would not be an incompetent piece of legislation but a legislation introduced in breach of a salutary requirement to consult an expert statutory body. The statutory requirement for consultation with a body of experts before proposing legislation will serve as ansafeguard against a challenge under Article 14 of the Constitution apart from anything else.38. Nevertheless, we do not propose to decidewhether by reason only of suchSection 3(2) of the 1981 Adhiniyam is violative of Article 14, nor do we propose to decide whether the cess of 20 paise is excessive, nor the other grounds urged by the appellants pertaining to Article 14. We have referred to the provisions of Sudhar Adhiniyam so that the State Government may in future act in consonance with Section 12(3)39. An additional challenge has been raised to the constitutional validity of(3), (4) and (5) of Section 3 in Civil Appeal No. 2003 of 2002 alleging violation of Articles 202, 204, 207, 260 and 267 of the Constitution.40. In order to appreciate the submission, we may recapitulate briefly the effect of theseon (3), the proceeds of the cess levied under(1) and (2) are required to be credited to the Consolidated Fund of the State. The State Government may then withdraw an amount equivalent to the proceeds of cess realised in the preceding financial year and place it to the credit of a separate fund called the Energy Development Fund. Such credit to the fund would be an expenditure charged on the Consolidated Fund. The State Government has also the discretion to use the amount in the credit for the various purposes specified in(4). A further discretion is given to the State Government under(5) to finally and conclusively decide whether the funds were in fact being utilised for a purpose falling under(4).41. Apart from the submission that the respondents had not disclosed any information as to what had been done by the State after collecting the cess from its consumers and how the cess collected in fact been utilised since 1981 although called upon to do so, it is argued by the appellants that no fund could be earmarked or appropriated or expended from the Consolidated Fund of the State except in accordance with the provisions of Articles 196, 198, 199 and 200 of the Constitution which requires the expenditure to be passed by the State Legislature and it cannot be left to the State Executive to determine the expenditure at its discretion. This argument was raised before the High Court but not dealt with. Nor do we do so since we have upheld the appellants contentions on the very imposition of the cess under Section 3(2).A plain reading ofion 3 introduced by the amendment to the 1981 Adhiniyam makes it clear that the levy of cess was "on the electrical energy produced". the phrase whether for sale or supply merely clarified that all electricity produced irrespective of its destination would be liable to cess at the specified rate. The use of the word whether after the phrase energy produced means that the cess would apply on units produced whichever of the alternatives mentioned after the word whether, namely, sale or supply or consumption is the case. There is no reason to assume that the words used did not reflect the intention of the Legislature. The imposition envisaged was on the production of electricity units. The charge was on generation and not on the sale or consumption of electricity. There is a conscious linguistic departure from the language used in Section 3 of the Electricity Duty Act, 1949 and indeed the language used in Section 3(1) of the same Act where the cess is levied on the total units of electrical energy sold or supplied by distributors of electrical energy. When dealing with producers under(2) of the same section, the cess is required to be paid on the total units of electrical energy produced. If, as is contended by the respondents, the incidence of levy under Section (1) and(2) were identical, the same language should have been used in bothThe deliberate change in language reflects an intention to alter the subject matter of levy as far as producers were concerned.14. Our interpretation of(2) of Section 3 is buttressed by and in keeping with the language and effect of the proviso to the saidIt has been held that the normal function of the proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of theThat the intention of the Legislature was to levy cess on the production of electricity is also borne out from the Statement of Objects and Reasons which accompanied the Act which replaced the Ordinance. It says:"With a view to impose cess on the electricity generated by the producers from their Captive Power Plants/Diesel Generating Sets for self consumption or for sale at the rate of 20 paise per unit on all generated electricity units, it has been decided to amend the Madhya Pradesh Upkar Adhiniyam, 1981 (No.1 of 1982)) refers to "any policy directive which it proposes to issue" or "any legislation proposed to be enacted affecting the Electricity Industry".It does not stop the State from enacting the legislation but merely states that prior to any legislation being proposed, the Government shall "duly take into account the recommendation, if any, given by the Commission". It was and is open to the State Legislature to repeal this law. As long it continues to be operative, it must be assumed that it was not a mere exercise in futility and some effect must be given to the words of the(3) of Section 12. As we read theit is a mandate to the policy makers who, before proposing legislation, are required to consult the State Regulatory Commission. | 1 | 6,752 | 1,111 | ### 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:
of Section 12. As we read the sub-section, it is a mandate to the policy makers who, before proposing legislation, are required to consult the State Regulatory Commission. 33. Under the Sudhar Adhiniyam, the State Commission is a juristic entity [Section 3(1)]. The Members of the Commission, according to Section 5 of the Sudhar Adhiniyam, shall be persons of ability, integrity and standing who have adequate knowledge and experience of, or have shown capacity in dealing with problems relating to engineering, economics, commerce, finance, law, administration or management.... Under Section 9 of the Sudhar Adhiniyam, the Commission has been vested with the powers inter alia - (a) to regulate the purchase, distribution, supply and utilization of electricity, the quality of service, the tariff and charges payable considering the interest of the consumer and the Electricity Industry both; (c) to determine the tariff for electricity, wholesale, bulk, grid or retail in accordance with the provisions of this Act. 34. In particular the Commission has been given the power to determine the tariff under Section 26 of the Sudhar Adhiniyam, 2000. For discharging its functions, the Commission has been given wide ranging powers to carry out the objects for which it has been set up including the powers of a Civil Court in certain specified matters [Section 10]. 35. It is true that the Sudhar Adhiniyam, 2000 although published in the Official Gazette prior to the promulgation of the impugned Ordinance, came into force after such promulgation. Nevertheless, the Act which replaced the Ordinance was introduced as a Bill when the Sudhar Adhiniyam was operative and was certainly in place when the Explanation was added to Section 3(2) in 2003. There was admittedly no consultation by the State Government with the Commission at any stage though the levy of cess by the impugned legislation affects the electricity industry. 36. We are not concerned with why the legislature provided for this mandate of prior consultation but the important of consultation at a pre-decisional stage has been recognised by Narayan Shankaran Mooss vs. State of Kerala and another [(1974) 2 SCR 60, page 70]:- "... First impressions and provisional judgments have a tendency to become ultimate ideas and final judgments. They would settle unconsciously on the investigators mind as the imperceptible dust-particles on an optical lens. They would dim his understanding and obfuscate his observation. Facts which will dovetail with them would arrest his attention; facts which will conflict with them would flit his observation. If by any chance he happens to notice refractory facts, he would seek to reconcile them with his first impressions and provisional judgment. This understanding of human psychology seems to have persuaded Parliament to interpose the condition of the Boards consultation to the Governments action. The Board is an independent body. It consists of three members. One of them is a technical expert, the other is financial expert, and the third an administrative expert. While considering the facts presented to it by the Government and by the licensee in his explanation, the Board will undoubtedly act with an open and unconditioned mind and will be able to offer unbiased counsel to the Government...." 37. In our opinion, the consequence of non-consultation in terms of Section 12(3) of the Sudhar Adhiniyam would not be an incompetent piece of legislation but a legislation introduced in breach of a salutary requirement to consult an expert statutory body. The statutory requirement for consultation with a body of experts before proposing legislation will serve as an in-built safeguard against a challenge under Article 14 of the Constitution apart from anything else.38. Nevertheless, we do not propose to decide - whether by reason only of such non-consultation, Section 3(2) of the 1981 Adhiniyam is violative of Article 14, nor do we propose to decide whether the cess of 20 paise is excessive, nor the other grounds urged by the appellants pertaining to Article 14. We have referred to the provisions of Sudhar Adhiniyam so that the State Government may in future act in consonance with Section 12(3)39. An additional challenge has been raised to the constitutional validity of sub-sections (3), (4) and (5) of Section 3 in Civil Appeal No. 2003 of 2002 alleging violation of Articles 202, 204, 207, 260 and 267 of the Constitution.40. In order to appreciate the submission, we may recapitulate briefly the effect of these sub-sections. Under sub-section (3), the proceeds of the cess levied under sub-section (1) and (2) are required to be credited to the Consolidated Fund of the State. The State Government may then withdraw an amount equivalent to the proceeds of cess realised in the preceding financial year and place it to the credit of a separate fund called the Energy Development Fund. Such credit to the fund would be an expenditure charged on the Consolidated Fund. The State Government has also the discretion to use the amount in the credit for the various purposes specified in sub-section (4). A further discretion is given to the State Government under sub-section (5) to finally and conclusively decide whether the funds were in fact being utilised for a purpose falling under sub-section (4).41. Apart from the submission that the respondents had not disclosed any information as to what had been done by the State after collecting the cess from its consumers and how the cess collected in fact been utilised since 1981 although called upon to do so, it is argued by the appellants that no fund could be earmarked or appropriated or expended from the Consolidated Fund of the State except in accordance with the provisions of Articles 196, 198, 199 and 200 of the Constitution which requires the expenditure to be passed by the State Legislature and it cannot be left to the State Executive to determine the expenditure at its discretion. This argument was raised before the High Court but not dealt with. Nor do we do so since we have upheld the appellants contentions on the very imposition of the cess under Section 3(2).
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### Explanation:
37. In our opinion, the consequence ofin terms of Section 12(3) of the Sudhar Adhiniyam would not be an incompetent piece of legislation but a legislation introduced in breach of a salutary requirement to consult an expert statutory body. The statutory requirement for consultation with a body of experts before proposing legislation will serve as ansafeguard against a challenge under Article 14 of the Constitution apart from anything else.38. Nevertheless, we do not propose to decidewhether by reason only of suchSection 3(2) of the 1981 Adhiniyam is violative of Article 14, nor do we propose to decide whether the cess of 20 paise is excessive, nor the other grounds urged by the appellants pertaining to Article 14. We have referred to the provisions of Sudhar Adhiniyam so that the State Government may in future act in consonance with Section 12(3)39. An additional challenge has been raised to the constitutional validity of(3), (4) and (5) of Section 3 in Civil Appeal No. 2003 of 2002 alleging violation of Articles 202, 204, 207, 260 and 267 of the Constitution.40. In order to appreciate the submission, we may recapitulate briefly the effect of theseon (3), the proceeds of the cess levied under(1) and (2) are required to be credited to the Consolidated Fund of the State. The State Government may then withdraw an amount equivalent to the proceeds of cess realised in the preceding financial year and place it to the credit of a separate fund called the Energy Development Fund. Such credit to the fund would be an expenditure charged on the Consolidated Fund. The State Government has also the discretion to use the amount in the credit for the various purposes specified in(4). A further discretion is given to the State Government under(5) to finally and conclusively decide whether the funds were in fact being utilised for a purpose falling under(4).41. Apart from the submission that the respondents had not disclosed any information as to what had been done by the State after collecting the cess from its consumers and how the cess collected in fact been utilised since 1981 although called upon to do so, it is argued by the appellants that no fund could be earmarked or appropriated or expended from the Consolidated Fund of the State except in accordance with the provisions of Articles 196, 198, 199 and 200 of the Constitution which requires the expenditure to be passed by the State Legislature and it cannot be left to the State Executive to determine the expenditure at its discretion. This argument was raised before the High Court but not dealt with. Nor do we do so since we have upheld the appellants contentions on the very imposition of the cess under Section 3(2).A plain reading ofion 3 introduced by the amendment to the 1981 Adhiniyam makes it clear that the levy of cess was "on the electrical energy produced". the phrase whether for sale or supply merely clarified that all electricity produced irrespective of its destination would be liable to cess at the specified rate. The use of the word whether after the phrase energy produced means that the cess would apply on units produced whichever of the alternatives mentioned after the word whether, namely, sale or supply or consumption is the case. There is no reason to assume that the words used did not reflect the intention of the Legislature. The imposition envisaged was on the production of electricity units. The charge was on generation and not on the sale or consumption of electricity. There is a conscious linguistic departure from the language used in Section 3 of the Electricity Duty Act, 1949 and indeed the language used in Section 3(1) of the same Act where the cess is levied on the total units of electrical energy sold or supplied by distributors of electrical energy. When dealing with producers under(2) of the same section, the cess is required to be paid on the total units of electrical energy produced. If, as is contended by the respondents, the incidence of levy under Section (1) and(2) were identical, the same language should have been used in bothThe deliberate change in language reflects an intention to alter the subject matter of levy as far as producers were concerned.14. Our interpretation of(2) of Section 3 is buttressed by and in keeping with the language and effect of the proviso to the saidIt has been held that the normal function of the proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of theThat the intention of the Legislature was to levy cess on the production of electricity is also borne out from the Statement of Objects and Reasons which accompanied the Act which replaced the Ordinance. It says:"With a view to impose cess on the electricity generated by the producers from their Captive Power Plants/Diesel Generating Sets for self consumption or for sale at the rate of 20 paise per unit on all generated electricity units, it has been decided to amend the Madhya Pradesh Upkar Adhiniyam, 1981 (No.1 of 1982)) refers to "any policy directive which it proposes to issue" or "any legislation proposed to be enacted affecting the Electricity Industry".It does not stop the State from enacting the legislation but merely states that prior to any legislation being proposed, the Government shall "duly take into account the recommendation, if any, given by the Commission". It was and is open to the State Legislature to repeal this law. As long it continues to be operative, it must be assumed that it was not a mere exercise in futility and some effect must be given to the words of the(3) of Section 12. As we read theit is a mandate to the policy makers who, before proposing legislation, are required to consult the State Regulatory Commission.
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Royal Enfield Vs. Commissioner of Central Excise, Chennai | goods to be considered for including the cost thereof in the “value”? Or does the law require a line to be drawn somewhere? We must remember that while packing is necessary to make the excisable article marketable, the statutory provision calls for strict construction because the levy is sought to be extended beyond the manufactured article itself. It seems to us that the degree of secondary packing which is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate is the degree of packing whose cost can be included in the “value” of the article for the purpose of the excise levy. To that extent, the cost of secondary packing cannot be deducted from the wholesale cash price of the excisable article at the factory gate.” 13. In Union of India & Ors. v. Godfrey Philips India Ltd. & Ors. reported at 1985 (22) ELT 306 (SC) this Court again considered a similar issue. What was decided by the majority of Judges in the said case was that the cost of packing done for protection of excisable goods during the transportation is also includible in assessable value. The said case basically revolved round the cost of corrugated fibreboard containers and all the three learned Judges uniformly reiterated the principles and the test evolved in Bombay Tyre International but arrived at divergent conclusions (the majority comprising Pathak and Sen, JJ. taking one view and Bhagwati, C.J., the other) on the basis of differing perceptions as to the factual situation in that case. As was noted in the said case the majority and minority came to different conclusions not on account of their adopting a different test or principle but only on account of their differing perceptions of the factual situation. So far as the test applicable is concerned, all the three learned Judges were at one and in agreement. 14. Finally in the decision of Government of India v. Madras Rubber Factory Ltd. reported at 1995 (77) ELT 433 (SC) a three-Judge Bench of this Court held that where the goods are delivered in a packed condition at the time of removal the cost of such packing shall be included. While recording the aforesaid conclusion this Court took notice of the aforesaid definition of value as given in sub- Section 4 of Section 4 of the Act. After noticing the aforesaid definition it was held that the provision in the sub-clause is a plain one and does not admit of any ambiguity as what it says is that where the goods are delivered in a packed condition, at the time of removal, the cost of such packing shall be included and that only where such packing is of a durable nature and is returnable by the buyer to the assessee, should the cost of such packing be not included in the value of the goods. It was also held in that decision that the concept of primary and secondary packing which is recognized to some extent in the decision of this Court in Bombay Tyre International Ltd. case [supra], which is not possible to be wished away and is merely a refinement and is not borne out by the express language of the enactment and, therefore, the same is to be resorted to with care and circumspection. Thereafter, the Court proceeded to discuss the case of Bombay Tyre International Ltd. [supra] and also the decision in Godfrey Philips India Ltd. & Ors. [supra]. Having discussed both the cases, this Court laid down the test in the following terms: - “43. ..........Whether packing, the cost whereof is sought to be included is the packing in which it is ordinarily sold in the course of a wholesale trade to the wholesale buyer. In other words, whether such packing is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate. If it is, then its cost is liable to be included in the value of the goods; and if it is not, the cost of such packing has to be excluded........................” 15. The aforesaid decision was rendered by this Court with respect to “tyres” which also were sold at the factory gate in a packed condition for onward easy transportation. In the background of the said case, it was held that the cost of such packing would be included in the assessable value.16. Almost similar are the facts of the present case. The authorities below as also the Tribunal found that the facts of the present case entirely fit in the facts of the aforesaid decision in the case of Madras Rubber Factory Ltd. [supra]. The said three authorities as also the Tribunal on analyzing the records came to a finding that the packing which is given by the appellant-company to their motorcycles is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate and, therefore, such cost is liable to be included in the value of the goods and the cost of such packing cannot be excluded. The aforesaid conclusions are based on cogent reasons and are also supported by a well-reasoned decision of three Judges Bench of this Court.17. Although, the counsel appearing for the appellant-company vehemently submitted that the facts of this case are more akin to the cases of Bombay Tyre International Ltd. [supra] and also to the that of Godfrey Philips India Ltd. & Ors. case [supra] having considered the above situation of facts and law, we are of the considered opinion, that all the aforesaid decisions, which are relied upon by the counsel appearing for the appellant, were taken notice of in the subsequent decision in Madras Rubber Factory Ltd. [supra] and this Court after detailed discussion of such cases has given a very reasoned order which is applicable to the facts of the present case in full force. | 0[ds]15. The aforesaid decision was rendered by this Court with respect towhich also were sold at the factory gate in a packed condition for onward easy transportation. In the background of the said case, it was held that the cost of such packing would be included in the assessable value.16. Almost similar are the facts of the present case. The authorities below as also the Tribunal found that the facts of the present case entirely fit in the facts of the aforesaid decision in the case of Madras Rubber Factory Ltd. [supra]. The said three authorities as also the Tribunal on analyzing the records came to a finding that the packing which is given by the appellant-company to their motorcycles is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate and, therefore, such cost is liable to be included in the value of the goods and the cost of such packing cannot be excluded. The aforesaid conclusions are based on cogent reasons and are also supported by a well-reasoned decision of three Judges Bench of this Court.17. Although, the counsel appearing for the appellant-company vehemently submitted that the facts of this case are more akin to the cases of Bombay Tyre International Ltd. [supra] and also to the that of Godfrey Philips India Ltd. & Ors. case [supra] having considered the above situation of facts and law, we are of the considered opinion, that all the aforesaid decisions, which are relied upon by the counsel appearing for the appellant, were taken notice of in the subsequent decision in Madras Rubber Factory Ltd. [supra] and this Court after detailed discussion of such cases has given a very reasoned order which is applicable to the facts of the present case in full force. | 0 | 3,323 | 335 | ### 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:
goods to be considered for including the cost thereof in the “value”? Or does the law require a line to be drawn somewhere? We must remember that while packing is necessary to make the excisable article marketable, the statutory provision calls for strict construction because the levy is sought to be extended beyond the manufactured article itself. It seems to us that the degree of secondary packing which is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate is the degree of packing whose cost can be included in the “value” of the article for the purpose of the excise levy. To that extent, the cost of secondary packing cannot be deducted from the wholesale cash price of the excisable article at the factory gate.” 13. In Union of India & Ors. v. Godfrey Philips India Ltd. & Ors. reported at 1985 (22) ELT 306 (SC) this Court again considered a similar issue. What was decided by the majority of Judges in the said case was that the cost of packing done for protection of excisable goods during the transportation is also includible in assessable value. The said case basically revolved round the cost of corrugated fibreboard containers and all the three learned Judges uniformly reiterated the principles and the test evolved in Bombay Tyre International but arrived at divergent conclusions (the majority comprising Pathak and Sen, JJ. taking one view and Bhagwati, C.J., the other) on the basis of differing perceptions as to the factual situation in that case. As was noted in the said case the majority and minority came to different conclusions not on account of their adopting a different test or principle but only on account of their differing perceptions of the factual situation. So far as the test applicable is concerned, all the three learned Judges were at one and in agreement. 14. Finally in the decision of Government of India v. Madras Rubber Factory Ltd. reported at 1995 (77) ELT 433 (SC) a three-Judge Bench of this Court held that where the goods are delivered in a packed condition at the time of removal the cost of such packing shall be included. While recording the aforesaid conclusion this Court took notice of the aforesaid definition of value as given in sub- Section 4 of Section 4 of the Act. After noticing the aforesaid definition it was held that the provision in the sub-clause is a plain one and does not admit of any ambiguity as what it says is that where the goods are delivered in a packed condition, at the time of removal, the cost of such packing shall be included and that only where such packing is of a durable nature and is returnable by the buyer to the assessee, should the cost of such packing be not included in the value of the goods. It was also held in that decision that the concept of primary and secondary packing which is recognized to some extent in the decision of this Court in Bombay Tyre International Ltd. case [supra], which is not possible to be wished away and is merely a refinement and is not borne out by the express language of the enactment and, therefore, the same is to be resorted to with care and circumspection. Thereafter, the Court proceeded to discuss the case of Bombay Tyre International Ltd. [supra] and also the decision in Godfrey Philips India Ltd. & Ors. [supra]. Having discussed both the cases, this Court laid down the test in the following terms: - “43. ..........Whether packing, the cost whereof is sought to be included is the packing in which it is ordinarily sold in the course of a wholesale trade to the wholesale buyer. In other words, whether such packing is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate. If it is, then its cost is liable to be included in the value of the goods; and if it is not, the cost of such packing has to be excluded........................” 15. The aforesaid decision was rendered by this Court with respect to “tyres” which also were sold at the factory gate in a packed condition for onward easy transportation. In the background of the said case, it was held that the cost of such packing would be included in the assessable value.16. Almost similar are the facts of the present case. The authorities below as also the Tribunal found that the facts of the present case entirely fit in the facts of the aforesaid decision in the case of Madras Rubber Factory Ltd. [supra]. The said three authorities as also the Tribunal on analyzing the records came to a finding that the packing which is given by the appellant-company to their motorcycles is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate and, therefore, such cost is liable to be included in the value of the goods and the cost of such packing cannot be excluded. The aforesaid conclusions are based on cogent reasons and are also supported by a well-reasoned decision of three Judges Bench of this Court.17. Although, the counsel appearing for the appellant-company vehemently submitted that the facts of this case are more akin to the cases of Bombay Tyre International Ltd. [supra] and also to the that of Godfrey Philips India Ltd. & Ors. case [supra] having considered the above situation of facts and law, we are of the considered opinion, that all the aforesaid decisions, which are relied upon by the counsel appearing for the appellant, were taken notice of in the subsequent decision in Madras Rubber Factory Ltd. [supra] and this Court after detailed discussion of such cases has given a very reasoned order which is applicable to the facts of the present case in full force.
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0
### Explanation:
15. The aforesaid decision was rendered by this Court with respect towhich also were sold at the factory gate in a packed condition for onward easy transportation. In the background of the said case, it was held that the cost of such packing would be included in the assessable value.16. Almost similar are the facts of the present case. The authorities below as also the Tribunal found that the facts of the present case entirely fit in the facts of the aforesaid decision in the case of Madras Rubber Factory Ltd. [supra]. The said three authorities as also the Tribunal on analyzing the records came to a finding that the packing which is given by the appellant-company to their motorcycles is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate and, therefore, such cost is liable to be included in the value of the goods and the cost of such packing cannot be excluded. The aforesaid conclusions are based on cogent reasons and are also supported by a well-reasoned decision of three Judges Bench of this Court.17. Although, the counsel appearing for the appellant-company vehemently submitted that the facts of this case are more akin to the cases of Bombay Tyre International Ltd. [supra] and also to the that of Godfrey Philips India Ltd. & Ors. case [supra] having considered the above situation of facts and law, we are of the considered opinion, that all the aforesaid decisions, which are relied upon by the counsel appearing for the appellant, were taken notice of in the subsequent decision in Madras Rubber Factory Ltd. [supra] and this Court after detailed discussion of such cases has given a very reasoned order which is applicable to the facts of the present case in full force.
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Commissioner of Income Tax Vs. Sun Engineering Works Private Limited | cannot make an order of reassessment inconsistent with the original order of assessment in respect of matters which are not the subject matter of proceedings under section 147. An assessee cannot resist validly initiated reassessment proceedings under this section merely by showing that other income which had been assessed originally was at too high a figure except in cases under section 152(2). The words such income in Section 147 clearly refer to the income which is chargeable to tax but has escaped assessment and the Income-tax Officers jurisdiction under the section is confined only to such income which has escaped assessment. It does not extend to reconsidering generally the concluded earlier assessment. Claims which have been disallowed in the original assessment proceeding cannot be permitted to be reagitated on the assessment being reopened for bringing to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which are relevant only in respect of the income which had not been brought to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which ar relevant only in respect of the income which had not been brought to tax during the course of the original assessment. A matter not agitated in the concluded original assessment proceedings also cannot be permitted to be agitated in the reassessment proceedings unless relatable to the times sought to be taxed as escaped income. Indeed, in the reassessment proceedings for bringing to tax items which had escaped assessment, it would be open to an assessee to put forward claims for deduction of any expenditure in respect of that income or the non-taxability of the items at all. Keeping in view the object and purpose of the proceedings under section 147 of the Act which are for the benefit of the Revenue and not an assessee, an assessee cannot be permitted to convert the reassessment proceedings as his appeal or revision, in disguise, and seek relief in respect of items earlier rejected or claim relief in respect of items not claimed in the original assessment proceedings, unless relatable to escaped income, and reagitate the concluded matters. Even in cases where the claims of the assessee during the course of reassessment proceedings relating to the escaped assessment are accepted, still the allowance of such claims has to be limited to the extent to which they reduce the income to that originally assessed. The income for purposes of reassessment cannot be reduced beyond the income originally assessed42. It would be seen that whereas in the case of Anglo-French Textile Company Limited case ( 1953 (23) ITR 82 : 1953 AIR(SC) 111) the question as to the rights of an assessee to claim redoing, revising or recomputing entire income during the reassessment proceedings was left open, that question did not come up for consideration in the case of H. R. Sri Ramulu ( 1973 (2) SCC 137 : 1973 SCC(Tax) 484 : 1973 (32) STC 77 ) or H. M. Esufali ( 1977 (107) ITR 760 (Bom)) or even in Jagan Mohan Rao case ( 1969 (2) SCC 389 : 1970 (75) ITR 373 ). Some of the High Courts, therefore, fell in error in reading those judgments, divorced from the context in which the precise questions came up for consideration in those cases, and to hold that the assessee could reagitate the concluded issues and claim relief in respect of items, finally concluded in the original assessment proceedings, during the reassessment proceedings, unconnected with the escapement of income. We cannot, therefore, approve the broad proposition laid down in that regard in Deputy Commissioner of Commercial Taxes v. Indian Refrigeration Industries P. Ltd. ( 1980 (46) STC 264 (Mad) , CIT v. Ramsevak Paul ( 1977 (110) ITR 527 (Cal)), CIT v. Assam Oil Co. Ltd. ( 1982 (133) ITR 204 (Cal), CIT v. Standard Motor Products of India Ltd. ( 1983 (142) ITR 877 (Mad), CIT v. Rangnath Bangur ( 1984 (149) ITR 487 (Raj)), State Bank of Hyderabad v. CIT ( 1988 (171) ITR 232 (AP)), CIT v. Indian Rare Earth Ltd ( 1990 (181) ITR 22 (Bom) (FB)) 43. Keeping in view the above principles, we may now turn our attention to the question formulated by the High Court as noticed in the earlier part of the judgment 44. The Tribunal rightly found that the loss which the assessee wanted to be set off against the escaped income could not be allowed to be so set off because in the original assessment proceedings, no set off was claimed or permitted and the original assessment had acquired finality when the appeal against the order of assessment failed before the Appellate Assistant Commissioner and the assessee took no further steps to agitate the issue. The Tribunal was also right in concluding that the item which the assessee wanted to be taken into account in the proceedings under section 147 of the Act were unconnected with the escapement of income. The High Court clearly fell in error in holding otherwise. Since the original assessment had been concluded finally against the assessee, it was not permissible for the assessee in the reassessment proceedings to seek a review/revision of the concluded assessment for the purpose of computation of the escaped income. The High Court clearly fell in error in permitting the assessee to reagitate, in reassessment proceedings under section 147(a) of the Act, the finally concluded assessment proceedings and to grant to him relief in respect of items not only earlier rejected, but also unconnected with the escapement of income by assuming as if the original assessment had not been concluded or was "still open"45. Therefore, our answer to the question formulated by the High Court and noticed in the earlier part of this judgment is that, in the reassessment proceedings, it is not open to an assessee to seek a review of the concluded item, unconnected with the escapement of income, for the purpose of computation of the escaped income | 1[ds]11. In view of the settled position of law, as noticed above, the Tribunal was right to opine that, in the present case, by the order dated December 12, 1962, the assessment proceedings had concluded and with the dismissal of the appeals against that order, the order of the ITO, dated December 12, 1962, had acquired finality. The High Court clearly fell in error in holding that in the assessment proceedings there had been no final determination of losses for the relevant year and to assume as if the loss return had not been finally disposed of or to be still open. The Income Tax Officer had disposed of the assessment proceedings, accepting the plea of the assessee that for the relevant year it had no income and that is why the proceedings were filed as No demand. The order of assessment had, thus, become final on the conclusion of the proceedings and dismissal of theAs a result of the aforesaid discussion, we find that in proceedings under section 147 of the Act, the Income Tax Officer may being to charge items of income which had escaped assessment other than or in addition to that item or times which have led to the issuance of the notice under Section 148 and where reassessment is made under Section 147 in respect of income which has escaped tax, the Income Tax Officers jurisdiction is confined to only such income which has escaped tax or has beenand does not extend to revising, reopening in or reconsidering the whole assessment or permitting the assessee the reagitate questions which had been decided in the original assessment proceedings. It is only the underassessment which is set aside and not the entire assessment when reassessment proceedings are initiated. TheOfficer cannot make an order of reassessment inconsistent with the original order of assessment in respect of matters which are not the subject matter of proceedings under section 147. An assessee cannot resist validly initiated reassessment proceedings under this section merely by showing that other income which had been assessed originally was at too high a figure except in cases under section 152(2). The words such income in Section 147 clearly refer to the income which is chargeable to tax but has escaped assessment and theOfficers jurisdiction under the section is confined only to such income which has escaped assessment. It does not extend to reconsidering generally the concluded earlier assessment. Claims which have been disallowed in the original assessment proceeding cannot be permitted to be reagitated on the assessment being reopened for bringing to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which are relevant only in respect of the income which had not been brought to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which ar relevant only in respect of the income which had not been brought to tax during the course of the original assessment. A matter not agitated in the concluded original assessment proceedings also cannot be permitted to be agitated in the reassessment proceedings unless relatable to the times sought to be taxed as escaped income. Indeed, in the reassessment proceedings for bringing to tax items which had escaped assessment, it would be open to an assessee to put forward claims for deduction of any expenditure in respect of that income or theof the items at all. Keeping in view the object and purpose of the proceedings under section 147 of the Act which are for the benefit of the Revenue and not an assessee, an assessee cannot be permitted to convert the reassessment proceedings as his appeal or revision, in disguise, and seek relief in respect of items earlier rejected or claim relief in respect of items not claimed in the original assessment proceedings, unless relatable to escaped income, and reagitate the concluded matters. Even in cases where the claims of the assessee during the course of reassessment proceedings relating to the escaped assessment are accepted, still the allowance of such claims has to be limited to the extent to which they reduce the income to that originally assessed. The income for purposes of reassessment cannot be reduced beyond the income originally assessed42. It would be seen that whereas in the case ofTextile Company Limited case ( 1953 (23) ITR 82 : 1953 AIR(SC) 111) the question as to the rights of an assessee to claim redoing, revising or recomputing entire income during the reassessment proceedings was left open, that question did not come up for consideration in the case of H. R. Sri Ramulu ( 1973 (2) SCC 137 : 1973 SCC(Tax) 484 : 1973 (32) STC 77 ) or H. M. Esufali ( 1977 (107) ITR 760 (Bom)) or even in Jagan Mohan Rao case ( 1969 (2) SCC 389 : 1970 (75) ITR 373 ). Some of the High Courts, therefore, fell in error in reading those judgments, divorced from the context in which the precise questions came up for consideration in those cases, and to hold that the assessee could reagitate the concluded issues and claim relief in respect of items, finally concluded in the original assessment proceedings, during the reassessment proceedings, unconnected with the escapement of income. We cannot, therefore, approve the broad proposition laid down in that regard in Deputy Commissioner of Commercial Taxes v. Indian Refrigeration Industries P. Ltd. ( 1980 (46) STC 264 (Mad) , CIT v. Ramsevak Paul ( 1977 (110) ITR 527 (Cal)), CIT v. Assam Oil Co. Ltd. ( 1982 (133) ITR 204 (Cal), CIT v. Standard Motor Products of India Ltd. ( 1983 (142) ITR 877 (Mad), CIT v. Rangnath Bangur ( 1984 (149) ITR 487 (Raj)), State Bank of Hyderabad v. CIT ( 1988 (171) ITR 232 (AP)), CIT v. Indian Rare Earth Ltd ( 1990 (181) ITR 22 (Bom) The Tribunal rightly found that the loss which the assessee wanted to be set off against the escaped income could not be allowed to be so set off because in the original assessment proceedings, no set off was claimed or permitted and the original assessment had acquired finality when the appeal against the order of assessment failed before the Appellate Assistant Commissioner and the assessee took no further steps to agitate the issue. The Tribunal was also right in concluding that the item which the assessee wanted to be taken into account in the proceedings under section 147 of the Act were unconnected with the escapement of income. The High Court clearly fell in error in holding otherwise. Since the original assessment had been concluded finally against the assessee, it was not permissible for the assessee in the reassessment proceedings to seek a review/revision of the concluded assessment for the purpose of computation of the escaped income. The High Court clearly fell in error in permitting the assessee to reagitate, in reassessment proceedings under section 147(a) of the Act, the finally concluded assessment proceedings and to grant to him relief in respect of items not only earlier rejected, but also unconnected with the escapement of income by assuming as if the original assessment had not been concluded or was "still open"45. Therefore, our answer to the question formulated by the High Court and noticed in the earlier part of this judgment is that, in the reassessment proceedings, it is not open to an assessee to seek a review of the concluded item, unconnected with the escapement of income, for the purpose of computation of the escaped income | 1 | 11,104 | 1,401 | ### 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:
cannot make an order of reassessment inconsistent with the original order of assessment in respect of matters which are not the subject matter of proceedings under section 147. An assessee cannot resist validly initiated reassessment proceedings under this section merely by showing that other income which had been assessed originally was at too high a figure except in cases under section 152(2). The words such income in Section 147 clearly refer to the income which is chargeable to tax but has escaped assessment and the Income-tax Officers jurisdiction under the section is confined only to such income which has escaped assessment. It does not extend to reconsidering generally the concluded earlier assessment. Claims which have been disallowed in the original assessment proceeding cannot be permitted to be reagitated on the assessment being reopened for bringing to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which are relevant only in respect of the income which had not been brought to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which ar relevant only in respect of the income which had not been brought to tax during the course of the original assessment. A matter not agitated in the concluded original assessment proceedings also cannot be permitted to be agitated in the reassessment proceedings unless relatable to the times sought to be taxed as escaped income. Indeed, in the reassessment proceedings for bringing to tax items which had escaped assessment, it would be open to an assessee to put forward claims for deduction of any expenditure in respect of that income or the non-taxability of the items at all. Keeping in view the object and purpose of the proceedings under section 147 of the Act which are for the benefit of the Revenue and not an assessee, an assessee cannot be permitted to convert the reassessment proceedings as his appeal or revision, in disguise, and seek relief in respect of items earlier rejected or claim relief in respect of items not claimed in the original assessment proceedings, unless relatable to escaped income, and reagitate the concluded matters. Even in cases where the claims of the assessee during the course of reassessment proceedings relating to the escaped assessment are accepted, still the allowance of such claims has to be limited to the extent to which they reduce the income to that originally assessed. The income for purposes of reassessment cannot be reduced beyond the income originally assessed42. It would be seen that whereas in the case of Anglo-French Textile Company Limited case ( 1953 (23) ITR 82 : 1953 AIR(SC) 111) the question as to the rights of an assessee to claim redoing, revising or recomputing entire income during the reassessment proceedings was left open, that question did not come up for consideration in the case of H. R. Sri Ramulu ( 1973 (2) SCC 137 : 1973 SCC(Tax) 484 : 1973 (32) STC 77 ) or H. M. Esufali ( 1977 (107) ITR 760 (Bom)) or even in Jagan Mohan Rao case ( 1969 (2) SCC 389 : 1970 (75) ITR 373 ). Some of the High Courts, therefore, fell in error in reading those judgments, divorced from the context in which the precise questions came up for consideration in those cases, and to hold that the assessee could reagitate the concluded issues and claim relief in respect of items, finally concluded in the original assessment proceedings, during the reassessment proceedings, unconnected with the escapement of income. We cannot, therefore, approve the broad proposition laid down in that regard in Deputy Commissioner of Commercial Taxes v. Indian Refrigeration Industries P. Ltd. ( 1980 (46) STC 264 (Mad) , CIT v. Ramsevak Paul ( 1977 (110) ITR 527 (Cal)), CIT v. Assam Oil Co. Ltd. ( 1982 (133) ITR 204 (Cal), CIT v. Standard Motor Products of India Ltd. ( 1983 (142) ITR 877 (Mad), CIT v. Rangnath Bangur ( 1984 (149) ITR 487 (Raj)), State Bank of Hyderabad v. CIT ( 1988 (171) ITR 232 (AP)), CIT v. Indian Rare Earth Ltd ( 1990 (181) ITR 22 (Bom) (FB)) 43. Keeping in view the above principles, we may now turn our attention to the question formulated by the High Court as noticed in the earlier part of the judgment 44. The Tribunal rightly found that the loss which the assessee wanted to be set off against the escaped income could not be allowed to be so set off because in the original assessment proceedings, no set off was claimed or permitted and the original assessment had acquired finality when the appeal against the order of assessment failed before the Appellate Assistant Commissioner and the assessee took no further steps to agitate the issue. The Tribunal was also right in concluding that the item which the assessee wanted to be taken into account in the proceedings under section 147 of the Act were unconnected with the escapement of income. The High Court clearly fell in error in holding otherwise. Since the original assessment had been concluded finally against the assessee, it was not permissible for the assessee in the reassessment proceedings to seek a review/revision of the concluded assessment for the purpose of computation of the escaped income. The High Court clearly fell in error in permitting the assessee to reagitate, in reassessment proceedings under section 147(a) of the Act, the finally concluded assessment proceedings and to grant to him relief in respect of items not only earlier rejected, but also unconnected with the escapement of income by assuming as if the original assessment had not been concluded or was "still open"45. Therefore, our answer to the question formulated by the High Court and noticed in the earlier part of this judgment is that, in the reassessment proceedings, it is not open to an assessee to seek a review of the concluded item, unconnected with the escapement of income, for the purpose of computation of the escaped income
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whole assessment or permitting the assessee the reagitate questions which had been decided in the original assessment proceedings. It is only the underassessment which is set aside and not the entire assessment when reassessment proceedings are initiated. TheOfficer cannot make an order of reassessment inconsistent with the original order of assessment in respect of matters which are not the subject matter of proceedings under section 147. An assessee cannot resist validly initiated reassessment proceedings under this section merely by showing that other income which had been assessed originally was at too high a figure except in cases under section 152(2). The words such income in Section 147 clearly refer to the income which is chargeable to tax but has escaped assessment and theOfficers jurisdiction under the section is confined only to such income which has escaped assessment. It does not extend to reconsidering generally the concluded earlier assessment. Claims which have been disallowed in the original assessment proceeding cannot be permitted to be reagitated on the assessment being reopened for bringing to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which are relevant only in respect of the income which had not been brought to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which ar relevant only in respect of the income which had not been brought to tax during the course of the original assessment. A matter not agitated in the concluded original assessment proceedings also cannot be permitted to be agitated in the reassessment proceedings unless relatable to the times sought to be taxed as escaped income. Indeed, in the reassessment proceedings for bringing to tax items which had escaped assessment, it would be open to an assessee to put forward claims for deduction of any expenditure in respect of that income or theof the items at all. Keeping in view the object and purpose of the proceedings under section 147 of the Act which are for the benefit of the Revenue and not an assessee, an assessee cannot be permitted to convert the reassessment proceedings as his appeal or revision, in disguise, and seek relief in respect of items earlier rejected or claim relief in respect of items not claimed in the original assessment proceedings, unless relatable to escaped income, and reagitate the concluded matters. Even in cases where the claims of the assessee during the course of reassessment proceedings relating to the escaped assessment are accepted, still the allowance of such claims has to be limited to the extent to which they reduce the income to that originally assessed. The income for purposes of reassessment cannot be reduced beyond the income originally assessed42. It would be seen that whereas in the case ofTextile Company Limited case ( 1953 (23) ITR 82 : 1953 AIR(SC) 111) the question as to the rights of an assessee to claim redoing, revising or recomputing entire income during the reassessment proceedings was left open, that question did not come up for consideration in the case of H. R. Sri Ramulu ( 1973 (2) SCC 137 : 1973 SCC(Tax) 484 : 1973 (32) STC 77 ) or H. M. Esufali ( 1977 (107) ITR 760 (Bom)) or even in Jagan Mohan Rao case ( 1969 (2) SCC 389 : 1970 (75) ITR 373 ). Some of the High Courts, therefore, fell in error in reading those judgments, divorced from the context in which the precise questions came up for consideration in those cases, and to hold that the assessee could reagitate the concluded issues and claim relief in respect of items, finally concluded in the original assessment proceedings, during the reassessment proceedings, unconnected with the escapement of income. We cannot, therefore, approve the broad proposition laid down in that regard in Deputy Commissioner of Commercial Taxes v. Indian Refrigeration Industries P. Ltd. ( 1980 (46) STC 264 (Mad) , CIT v. Ramsevak Paul ( 1977 (110) ITR 527 (Cal)), CIT v. Assam Oil Co. Ltd. ( 1982 (133) ITR 204 (Cal), CIT v. Standard Motor Products of India Ltd. ( 1983 (142) ITR 877 (Mad), CIT v. Rangnath Bangur ( 1984 (149) ITR 487 (Raj)), State Bank of Hyderabad v. CIT ( 1988 (171) ITR 232 (AP)), CIT v. Indian Rare Earth Ltd ( 1990 (181) ITR 22 (Bom) The Tribunal rightly found that the loss which the assessee wanted to be set off against the escaped income could not be allowed to be so set off because in the original assessment proceedings, no set off was claimed or permitted and the original assessment had acquired finality when the appeal against the order of assessment failed before the Appellate Assistant Commissioner and the assessee took no further steps to agitate the issue. The Tribunal was also right in concluding that the item which the assessee wanted to be taken into account in the proceedings under section 147 of the Act were unconnected with the escapement of income. The High Court clearly fell in error in holding otherwise. Since the original assessment had been concluded finally against the assessee, it was not permissible for the assessee in the reassessment proceedings to seek a review/revision of the concluded assessment for the purpose of computation of the escaped income. The High Court clearly fell in error in permitting the assessee to reagitate, in reassessment proceedings under section 147(a) of the Act, the finally concluded assessment proceedings and to grant to him relief in respect of items not only earlier rejected, but also unconnected with the escapement of income by assuming as if the original assessment had not been concluded or was "still open"45. Therefore, our answer to the question formulated by the High Court and noticed in the earlier part of this judgment is that, in the reassessment proceedings, it is not open to an assessee to seek a review of the concluded item, unconnected with the escapement of income, for the purpose of computation of the escaped income
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INDIA RESURGENCE ARC PRIVATE LIMITED Vs. M/S. AMIT METALIKS LIMITED & ANR | Authority itself modified the offending terms of the plan and provided for monetary payment to the dissenting financial creditor. This latter part of the order of the Adjudicating Authority was not approved by this Court while holding that after disapproval of such term related with financial model proposed in the resolution plan, the Adjudicating Authority itself could not have modified the same and ought to have sent the matter back to CoC for reconsideration. However, that part of the decision in Jaypee Kensingtonis not relevant for the present purpose.). In that context, this Court held that such action of payment could only be by handing over the quantum of money or allowing the recovery of such money by enforcement of security interest, as per the entitlement of a dissenting financial creditor. This Court further made it clear that in case a valid security interest is held by a dissenting financial creditor, the entitlement of such dissenting financial creditor to receive the amount could be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. This Court clarified that by enforcing such a security interest, a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code. This Court, interalia, observed and held as under: - 121.1. Therefore, when, for the purpose of discharge of obligation mentioned in the second part of clause (b) of Section 30(2) of the Code, the dissenting financial creditors are to be paid an amount quantified in terms of the proceeds of assets receivable under Section 53 of the Code; and the amount payable is to be paid in priority over their assenting counterparts, the statute is referring only to the sum of money and not anything else. In the frame and purport of the provision and also the scheme of the Code, the expression payment is clearly descriptive of the action of discharge of obligation and at the same time, is also prescriptive of the mode of undertaking such an action. And, that action could only be of handing over the quantum of money, or allowing the recovery of such money by enforcement of security interest, as per the entitlement of the dissenting financial creditor. 121.2. We would hasten to observe that in case a dissenting financial creditor is a secured creditor and a valid security interest is created in his favour and is existing, the entitlement of such a dissenting financial creditor to receive the amount payable could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. Obviously, by enforcing such a security interest, a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code.... (underlining supplied for emphasis) 14.1. In Jaypee Kensington(supra), this Court repeatedly made it clear that a dissenting financial creditor would be receiving the payment of the amount as per his entitlement; and that entitlement could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him. It has never been laid down that if a dissenting financial creditor is having a security available with him, he would be entitled to enforce the entire of security interest or to receive the entire value of the security available with him. It is but obvious that his dealing with the security interest, if occasion so arise, would be conditioned by the extent of value receivable by him. 14.2. The extent of value receivable by the appellant is distinctly given out in the resolution plan i.e., a sum of INR 2.026 crores which is in the same proportion and percentage as provided to the other secured financial creditors with reference to their respective admitted claims. Repeated reference on behalf of the appellant to the value of security at about INR 12 crores is wholly inapt and is rather ill-conceived. 15. The limitation on the extent of the amount receivable by a dissenting financial creditor is innate in Section 30(2)(b) of the Code and has been further exposited in the decisions aforesaid. It has not been the intent of the legislature that a security interest available to a dissenting financial creditor over the assets of the corporate debtor gives him some right over and above other financial creditors so as to enforce the entire of the security interest and thereby bring about an inequitable scenario, by receiving excess amount, beyond the receivable liquidation value proposed for the same class of creditors. 16. It needs hardly any emphasis that if the propositions suggested on behalf of the appellant were to be accepted, the result would be that rather than insolvency resolution and maximisation of the value of assets of the corporate debtor, the processes would lead to more liquidations, with every secured financial creditor opting to stand on dissent. Such a result would be defeating the very purpose envisaged by the Code; and cannot be countenanced. We may profitably refer to the relevant observations in this regard by this Court in Essar Steel as follows:- 85. Indeed, if an equality for all approach recognising the rights of different classes of creditors as part of an insolvency resolution process is adopted, secured financial creditors will, in many cases, be incentivised to vote for liquidation rather than resolution, as they would have better rights if the corporate debtor was to be liquidated rather than a resolution plan being approved. This would defeat the entire objective of the Code which is to first ensure that resolution of distressed assets takes place and only if the same is not possible should liquidation follow. 17. Viewed from any angle, the submissions made on behalf of the appellant do not merit acceptance and are required to be rejected. | 0[ds]8. Having heard the learned counsel and having perused the material placed on record, we are clearly of the view that this appeal remains totally bereft of substance and does not merit admission.9. The requirements of law, particularly in regard to the contentions sought to be urged on behalf of the appellant, are referable to the provisions contained in Section 30 of the Code dealing with the processes relating to submission of a resolution plan, its mandatory contents, its consideration and approval by the Committee of Creditors, and its submission to the Adjudicating Authority for approval.10. As regards the process of consideration and approval of resolution plan, it is now beyond a shadow of doubt that the matter is essentially that of the commercial wisdom of Committee of Creditors and the scope of judicial review remains limited within the four-corners of Section 30(2) of the Code for the Adjudicating Authority; and Section 30(2) read with Section 61(3) for the Appellate Authority. In the case of Jaypee Kensington (supra), this Court, after taking note of the previous decisions in Essar Steel (supra) as also in K. Sashidhar v. Indian Overseas Bank and Ors.: (2019) 12 SCC 150 and Maharashtra Seamless Limited v. Padmanabhan Venkatesh and Ors. : (2020) 11 SCC 467, summarised the principles as follows:-77. In the scheme of IBC, where approval of resolution plan is exclusively in the domain of the commercial wisdom of CoC, the scope of judicial review is correspondingly circumscribed by the provisions contained in Section 31 as regards approval of the Adjudicating Authority and in Section 32 read with Section 61 as regards the scope of appeal against the order of approval.77.1. Such limitations on judicial review have been duly underscored by this Court in the decisions above-referred, where it has been laid down in explicit terms that the powers of the Adjudicating Authority dealing with the resolution plan do not extend to examine the correctness or otherwise of the commercial wisdom exercised by the CoC. The limited judicial review available to Adjudicating Authority lies within the four corners of Section 30(2) of the Code, which would essentially be to examine that the resolution plan does not contravene any of the provisions of law for the time being in force, it conforms to such other requirements as may be specified by the Board, and it provides for: (a) payment of insolvency resolution process costs in priority; (b) payment of debts of operational creditors; (c) payment of debts of dissenting financial creditors; (d) for management of affairs of corporate debtor after approval of the resolution plan; and (e) implementation and supervision of the resolution plan.77.2. The limitations on the scope of judicial review are reinforced by the limited ground provided for an appeal against an order approving a resolution plan, namely, if the plan is in contravention of the provisions of any law for the time being in force; or there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period; or the debts owed to the operational creditors have not been provided for; or the insolvency resolution process costs have not been provided for repayment in priority; or the resolution plan does not comply with any other criteria specified by the Board.77.3. The material propositions laid down in Essar Steel (supra) on the extent of judicial review are that the Adjudicating Authority would see if CoC has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors have been taken care of. And, if the Adjudicating Authority would find on a given set of facts that the requisite parameters have not been kept in view, it may send the resolution plan back to the Committee of Creditors for re-submission after satisfying the parameters. Then, as observed in Maharashtra Seamless Ltd. (supra), there is no scope for the Adjudicating Authority or the Appellate Authority to proceed on any equitable perception or to assess the resolution plan on the basis of quantitative analysis. Thus, the treatment of any debt or asset is essentially required to be left to the collective commercial wisdom of the financial creditors.11. It needs hardly any elaboration that financial proposal in the resolution plan forms the core of the business decision of Committee of Creditors. Once it is found that all the mandatory requirements have been duly complied with and taken care of, the process of judicial review cannot be stretched to carry out quantitative analysis qua a particular creditor or any stakeholder, who may carry his own dissatisfaction. In other words, in the scheme of IBC, every dissatisfaction does not partake the character of a legal grievance and cannot be taken up as a ground of appeal.(For the purpose of illustration, reference may be made to the decision in Jaypee Kensington(supra) wherein, as regards the grounds sought to be urged by minority shareholders against the resolution plan, this Court held that their grievances could not be recognised as legal grievances (videparagraph 154). Similarly, when this Court noticed that the homebuyers as a class assented to the plan, it was held that any individual homebuyer or association was not entitled to maintain achallenge to the resolution plan and could not be treated as carrying any legal grievance(vide paragraph 170).)12. The provisions of amended sub-section (4) of Section 30 of the Code, on which excessive reliance is placed on behalf of the appellant, in our view, do not make out any case for interference with the resolution plan at the instance of the appellant. The purport and effect of the amendment to sub-section (4) of Section 30 of the Code, by way of sub-clause (b) of Section 6 of the Amending Act of 2019, was also explained by this Court in Essar Steel(supra), as duly taken note of by the Appellate Authority (vide the extraction hereinbefore).The NCLAT was, therefore, right in observing that such amendment to sub-section (4) of Section 30 only amplified the considerations for the Committee of Creditors while exercising its commercial wisdom so as to take an informed decision in regard to the viability and feasibility of resolution plan, with fairness of distribution amongst similarly situated creditors; and the business decision taken in exercise of the commercial wisdom of CoC does not call for interference unless creditors belonging to a class being similarly situated are denied fair and equitable treatment.12.1. In regard to the question of fair and equitable treatment, though the Adjudicating Authority as also the Appellate Authority have returned concurrent findings in favour of the resolution plan yet, to satisfy ourselves, we have gone through the financial proposal in the resolution plan. What we find is that the proposal for payment to all the secured financial creditors (all of them ought to be carrying security interest with them) is equitable and the proposal for payment to the appellant is at par with the percentage of payment proposed for other secured financial creditors. No case of denial of fair and equitable treatment or disregard of priority is made out.13. The repeated submissions on behalf of the appellant with reference to the value of its security interest neither carry any meaning nor any substance.What the dissenting financial creditor is entitled to is specified in the later part of sub-section (2)(b) of Section 30 of the Code and the same has been explained by this Court in Essar Steel as under: -128. When it comes to the validity of the substitution of Section 30(2)(b) by Section 6 of the Amending Act of 2019, it is clear that the substituted Section 30(2)(b) gives operational creditors something more than was given earlier as it is the higher of the figures mentioned in sub-clauses (i) and (ii) of sub-clause (b) that is now to be paid as a minimum amount to operational creditors. The same goes for the latter part of sub-clause (b) which refers to dissentient financial creditors. Ms Madhavi Divan is correct in her argument that Section 30(2)(b) is in fact a beneficial provision in favour of operational creditors and dissentient financial creditors as they are now to be paid a certain minimum amount, the minimum in the case of operational creditors being the higher of the two figures calculated under sub-clauses (i) and (ii) of clause (b), and the minimum in the case of dissentient financial creditor being a minimum amount that was not earlier payable. As a matter of fact, pre-amendment, secured financial creditors may cramdown unsecured financial creditors who are dissentient, the majority vote of 66% voting to give them nothing or next to nothing for their dues. In the earlier regime it may have been possible to have done this but after the amendment such financial creditors are now to be paid the minimum amount mentioned in sub-section (2). Ms Madhavi Divan is also correct in stating that the order of priority of payment of creditors mentioned in Section 53 is not engrafted in sub-section (2)(b) as amended. Section 53 is only referred to in order that a certain minimum figure be paid to different classes of operational and financial creditors. It is only for this purpose that Section 53(1) is to be looked at as it is clear that it is the commercial wisdom of the Committee of Creditors that is free to determine what amounts be paid to different classes and subclasses of creditors in accordance with the provisions of the Code and the Regulations made thereunder.(underlining supplied for emphasis)13.1. Thus, what amount is to be paid to different classes or subclasses of creditors in accordance with provisions of the Code and the related Regulations, is essentially the commercial wisdom of the Committee of Creditors; and a dissenting secured creditor like the appellant cannot suggest a higher amount to be paid to it with reference to the value of the security interest.14. In the case of Jaypee Kensington (supra), the proposal in the resolution plan was to the effect that if the dissenting financial creditors would be entitled to some amount in the nature of liquidation value in terms of Sections 30 and 53 of IBC read with Regulation 38 of the CIRP Regulations, they would be provided such liquidation value in the form of proportionate share in the equity of a special purpose vehicle proposed to be set up and with transfer of certain land parcels belonging to corporate debtor. Such method of meeting with the liability towards dissenting financial creditors in the resolution plan was disapproved by the Adjudicating Authority; and this part of the order of the Adjudicating Authority was upheld by this Court with the finding that the proposal in the resolution plan was not in accord with the requirement of payment as envisaged by clause (b) of Section 30(2) of the Code(In Jaypee Kensington, after disapproving the proposition of the resolution plan regarding dissenting financial creditor, the Adjudicating Authority itself modified the offending terms of the plan and provided for monetary payment to the dissenting financial creditor. This latter part of the order of the Adjudicating Authority was not approved by this Court while holding that after disapproval of such term related with financial model proposed in the resolution plan, the Adjudicating Authority itself could not have modified the same and ought to have sent the matter back to CoC for reconsideration. However, that part of the decision in Jaypee Kensingtonis not relevant for the present purpose.). In that context, this Court held that such action of payment could only be by handing over the quantum of money or allowing the recovery of such money by enforcement of security interest, as per the entitlement of a dissenting financial creditor. This Court further made it clear that in case a valid security interest is held by a dissenting financial creditor, the entitlement of such dissenting financial creditor to receive the amount could be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. This Court clarified that by enforcing such a security interest, a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code. This Court, interalia, observed and held as under: -121.1. Therefore, when, for the purpose of discharge of obligation mentioned in the second part of clause (b) of Section 30(2) of the Code, the dissenting financial creditors are to be paid an amount quantified in terms of the proceeds of assets receivable under Section 53 of the Code; and the amount payable is to be paid in priority over their assenting counterparts, the statute is referring only to the sum of money and not anything else. In the frame and purport of the provision and also the scheme of the Code, the expression payment is clearly descriptive of the action of discharge of obligation and at the same time, is also prescriptive of the mode of undertaking such an action. And, that action could only be of handing over the quantum of money, or allowing the recovery of such money by enforcement of security interest, as per the entitlement of the dissenting financial creditor.121.2. We would hasten to observe that in case a dissenting financial creditor is a secured creditor and a valid security interest is created in his favour and is existing, the entitlement of such a dissenting financial creditor to receive the amount payable could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. Obviously, by enforcing such a security interest, a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code....(underlining supplied for emphasis)14.1. In Jaypee Kensington(supra), this Court repeatedly made it clear that a dissenting financial creditor would be receiving the payment of the amount as per his entitlement; and that entitlement could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him. It has never been laid down that if a dissenting financial creditor is having a security available with him, he would be entitled to enforce the entire of security interest or to receive the entire value of the security available with him. It is but obvious that his dealing with the security interest, if occasion so arise, would be conditioned by the extent of value receivable by him.14.2. The extent of value receivable by the appellant is distinctly given out in the resolution plan i.e., a sum of INR 2.026 crores which is in the same proportion and percentage as provided to the other secured financial creditors with reference to their respective admitted claims. Repeated reference on behalf of the appellant to the value of security at about INR 12 crores is wholly inapt and is rather ill-conceived.16. It needs hardly any emphasis that if the propositions suggested on behalf of the appellant were to be accepted, the result would be that rather than insolvency resolution and maximisation of the value of assets of the corporate debtor, the processes would lead to more liquidations, with every secured financial creditor opting to stand on dissent. Such a result would be defeating the very purpose envisaged by the Code; and cannot be countenanced. We may profitably refer to the relevant observations in this regard by this Court in Essar Steel as follows:-85. Indeed, if an equality for all approach recognising the rights of different classes of creditors as part of an insolvency resolution process is adopted, secured financial creditors will, in many cases, be incentivised to vote for liquidation rather than resolution, as they would have better rights if the corporate debtor was to be liquidated rather than a resolution plan being approved. This would defeat the entire objective of the Code which is to first ensure that resolution of distressed assets takes place and only if the same is not possible should liquidation follow.17. Viewed from any angle, the submissions made on behalf of the appellant do not merit acceptance and are required to be rejected. | 0 | 6,842 | 3,064 | ### Instruction:
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Authority itself modified the offending terms of the plan and provided for monetary payment to the dissenting financial creditor. This latter part of the order of the Adjudicating Authority was not approved by this Court while holding that after disapproval of such term related with financial model proposed in the resolution plan, the Adjudicating Authority itself could not have modified the same and ought to have sent the matter back to CoC for reconsideration. However, that part of the decision in Jaypee Kensingtonis not relevant for the present purpose.). In that context, this Court held that such action of payment could only be by handing over the quantum of money or allowing the recovery of such money by enforcement of security interest, as per the entitlement of a dissenting financial creditor. This Court further made it clear that in case a valid security interest is held by a dissenting financial creditor, the entitlement of such dissenting financial creditor to receive the amount could be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. This Court clarified that by enforcing such a security interest, a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code. This Court, interalia, observed and held as under: - 121.1. Therefore, when, for the purpose of discharge of obligation mentioned in the second part of clause (b) of Section 30(2) of the Code, the dissenting financial creditors are to be paid an amount quantified in terms of the proceeds of assets receivable under Section 53 of the Code; and the amount payable is to be paid in priority over their assenting counterparts, the statute is referring only to the sum of money and not anything else. In the frame and purport of the provision and also the scheme of the Code, the expression payment is clearly descriptive of the action of discharge of obligation and at the same time, is also prescriptive of the mode of undertaking such an action. And, that action could only be of handing over the quantum of money, or allowing the recovery of such money by enforcement of security interest, as per the entitlement of the dissenting financial creditor. 121.2. We would hasten to observe that in case a dissenting financial creditor is a secured creditor and a valid security interest is created in his favour and is existing, the entitlement of such a dissenting financial creditor to receive the amount payable could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. Obviously, by enforcing such a security interest, a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code.... (underlining supplied for emphasis) 14.1. In Jaypee Kensington(supra), this Court repeatedly made it clear that a dissenting financial creditor would be receiving the payment of the amount as per his entitlement; and that entitlement could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him. It has never been laid down that if a dissenting financial creditor is having a security available with him, he would be entitled to enforce the entire of security interest or to receive the entire value of the security available with him. It is but obvious that his dealing with the security interest, if occasion so arise, would be conditioned by the extent of value receivable by him. 14.2. The extent of value receivable by the appellant is distinctly given out in the resolution plan i.e., a sum of INR 2.026 crores which is in the same proportion and percentage as provided to the other secured financial creditors with reference to their respective admitted claims. Repeated reference on behalf of the appellant to the value of security at about INR 12 crores is wholly inapt and is rather ill-conceived. 15. The limitation on the extent of the amount receivable by a dissenting financial creditor is innate in Section 30(2)(b) of the Code and has been further exposited in the decisions aforesaid. It has not been the intent of the legislature that a security interest available to a dissenting financial creditor over the assets of the corporate debtor gives him some right over and above other financial creditors so as to enforce the entire of the security interest and thereby bring about an inequitable scenario, by receiving excess amount, beyond the receivable liquidation value proposed for the same class of creditors. 16. It needs hardly any emphasis that if the propositions suggested on behalf of the appellant were to be accepted, the result would be that rather than insolvency resolution and maximisation of the value of assets of the corporate debtor, the processes would lead to more liquidations, with every secured financial creditor opting to stand on dissent. Such a result would be defeating the very purpose envisaged by the Code; and cannot be countenanced. We may profitably refer to the relevant observations in this regard by this Court in Essar Steel as follows:- 85. Indeed, if an equality for all approach recognising the rights of different classes of creditors as part of an insolvency resolution process is adopted, secured financial creditors will, in many cases, be incentivised to vote for liquidation rather than resolution, as they would have better rights if the corporate debtor was to be liquidated rather than a resolution plan being approved. This would defeat the entire objective of the Code which is to first ensure that resolution of distressed assets takes place and only if the same is not possible should liquidation follow. 17. Viewed from any angle, the submissions made on behalf of the appellant do not merit acceptance and are required to be rejected.
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of proportionate share in the equity of a special purpose vehicle proposed to be set up and with transfer of certain land parcels belonging to corporate debtor. Such method of meeting with the liability towards dissenting financial creditors in the resolution plan was disapproved by the Adjudicating Authority; and this part of the order of the Adjudicating Authority was upheld by this Court with the finding that the proposal in the resolution plan was not in accord with the requirement of payment as envisaged by clause (b) of Section 30(2) of the Code(In Jaypee Kensington, after disapproving the proposition of the resolution plan regarding dissenting financial creditor, the Adjudicating Authority itself modified the offending terms of the plan and provided for monetary payment to the dissenting financial creditor. This latter part of the order of the Adjudicating Authority was not approved by this Court while holding that after disapproval of such term related with financial model proposed in the resolution plan, the Adjudicating Authority itself could not have modified the same and ought to have sent the matter back to CoC for reconsideration. However, that part of the decision in Jaypee Kensingtonis not relevant for the present purpose.). In that context, this Court held that such action of payment could only be by handing over the quantum of money or allowing the recovery of such money by enforcement of security interest, as per the entitlement of a dissenting financial creditor. This Court further made it clear that in case a valid security interest is held by a dissenting financial creditor, the entitlement of such dissenting financial creditor to receive the amount could be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. This Court clarified that by enforcing such a security interest, a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code. This Court, interalia, observed and held as under: -121.1. Therefore, when, for the purpose of discharge of obligation mentioned in the second part of clause (b) of Section 30(2) of the Code, the dissenting financial creditors are to be paid an amount quantified in terms of the proceeds of assets receivable under Section 53 of the Code; and the amount payable is to be paid in priority over their assenting counterparts, the statute is referring only to the sum of money and not anything else. In the frame and purport of the provision and also the scheme of the Code, the expression payment is clearly descriptive of the action of discharge of obligation and at the same time, is also prescriptive of the mode of undertaking such an action. And, that action could only be of handing over the quantum of money, or allowing the recovery of such money by enforcement of security interest, as per the entitlement of the dissenting financial creditor.121.2. We would hasten to observe that in case a dissenting financial creditor is a secured creditor and a valid security interest is created in his favour and is existing, the entitlement of such a dissenting financial creditor to receive the amount payable could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him and in the order of priority available to him. Obviously, by enforcing such a security interest, a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code....(underlining supplied for emphasis)14.1. In Jaypee Kensington(supra), this Court repeatedly made it clear that a dissenting financial creditor would be receiving the payment of the amount as per his entitlement; and that entitlement could also be satisfied by allowing him to enforce the security interest, to the extent of the value receivable by him. It has never been laid down that if a dissenting financial creditor is having a security available with him, he would be entitled to enforce the entire of security interest or to receive the entire value of the security available with him. It is but obvious that his dealing with the security interest, if occasion so arise, would be conditioned by the extent of value receivable by him.14.2. The extent of value receivable by the appellant is distinctly given out in the resolution plan i.e., a sum of INR 2.026 crores which is in the same proportion and percentage as provided to the other secured financial creditors with reference to their respective admitted claims. Repeated reference on behalf of the appellant to the value of security at about INR 12 crores is wholly inapt and is rather ill-conceived.16. It needs hardly any emphasis that if the propositions suggested on behalf of the appellant were to be accepted, the result would be that rather than insolvency resolution and maximisation of the value of assets of the corporate debtor, the processes would lead to more liquidations, with every secured financial creditor opting to stand on dissent. Such a result would be defeating the very purpose envisaged by the Code; and cannot be countenanced. We may profitably refer to the relevant observations in this regard by this Court in Essar Steel as follows:-85. Indeed, if an equality for all approach recognising the rights of different classes of creditors as part of an insolvency resolution process is adopted, secured financial creditors will, in many cases, be incentivised to vote for liquidation rather than resolution, as they would have better rights if the corporate debtor was to be liquidated rather than a resolution plan being approved. This would defeat the entire objective of the Code which is to first ensure that resolution of distressed assets takes place and only if the same is not possible should liquidation follow.17. Viewed from any angle, the submissions made on behalf of the appellant do not merit acceptance and are required to be rejected.
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Commr.Of Income Tax-Xvii,New Delhi Vs. Punjab Stainless Steel Industries | using stainless steel as raw material, from which utensils are manufactured. The raw material, which is not capable of being used for manufacturing utensils will have to be either sold as scrap or might have to be re-cycled in the form of sheets of stainless steel, if the manufacturing unit is also having its re-rolling plant. If it is not having such a plant, the manufacturer would dispose of the scrap of steel to someone who would re-cycle the said scrap into steel so that the said steel can be re-used. 23. When such scrap is sold, in our opinion, the sale proceeds of the scrap cannot be included in the term ‘turnover’ for the reason that the respondent-unit is engaged primarily in the manufacturing and selling of steel utensils and not scrap of steel. Therefore, the proceeds of such scrap would not be included in ‘sales’ in the Profit and Loss Account of the respondent-assessee. 24. The situation would be different in the case of the buyer, who purchases scrap from the respondent-assessee and sells it to someone else. The sale proceeds for such a buyer would be treated as “turnover” for a simple reason that the buyer of the scrap is a person who is primarily dealing in scrap. In the case on hand, as the respondent-assessee is not primarily dealing in scrap but is a manufacturer of stainless steel utensils, only sale proceeds from sale of utensils would be treated as his “turnover”. 25. So as to be more accurate about the word “turnover”, one can either refer to dictionaries or to materials which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ‘ICAI’) has published some material under the head “Guidance Note on Tax Audit Under Section 44AB of the Income Tax Act”. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain material for its members, one can rely upon the same. Para 5 of the said Note deals with “Sales”, “turnover” and “gross receipts”. Paras 5.2 and 5.3 of the said Note are reproduced hereinbelow, which pertain to the term “turnover”. “5.2 In the “Guidance Note on Terms Used in Financial Statements” published by the ICAI, the expression “Sales Turnover” (Item 15.01) has been defined as under:-“The aggregate amount for which sales are effected or services rendered by an enterprise. The term `gross turnover’ and `net turnover’ (or `gross sales’ and `net sales’) are sometimes used to distinguish the sales aggregate before and after deduction of returns and trade discounts”. 5.3 The Guide to Company Audit issued by the ICAI in the year 1980, while discussing “sales”, stated as follows: “Total turnover, that is, the aggregate amount for which sales are effected by the company, giving the amount of sales in respect of each class of goods dealt with by the company and indicating the quantities of such sales for each class separately.Note (i) The term ‘turnover’ would mean the total sales after deducting therefrom goods returned, price adjustments, trade discount and cancellation of bills for the period of audit, if any. Adjustments which do not relate to turnover should not be made e.g. writing off bad debts, royalty etc. Where excise duty is included in turnover, the corresponding amount should be distinctly shown as a debit item in the profit and loss account.” (emphasis added) The aforestated meaning given by the ICAI clearly denotes that in normal accounting parlance the word “turnover” would mean “total sales” as explained hereinabove. The said sales would definitely not include the scrap material which is either to be deducted from the cost of raw material or is to be shown separately under a different head. We do not see any reason for not accepting the meaning of the term “turnover” given by a body of Accountants, which is having a statutory recognition. 26. If all accountants, auditors, businessmen, manufacturers etc. are normally interpreting the term ‘turnover’ as sale proceeds of the commodity in which the business unit is dealing, we see no reason to take a different view than the view normally taken by the persons who are concerned with the said term. 27. In addition to the above factors, which we have considered for understanding the meaning of the term “turnover”, we should not miss the purpose with which the said term has been incorporated in Section 80 HHC of the Act. 28. The intention behind enactment of Section 80HHC of the Act was to encourage export so as to earn more foreign exchange. For the said purpose the Government wanted to encourage businessmen, traders and manufacturers to increase the export so as to bring more foreign exchange in our country. If the purpose is to bring more foreign exchange and to encourage export, we are of the view that the legislature would surely like to give more benefit to persons who are making an effort to help our nation in the process of bringing more foreign exchange. If a trader or a manufacturer is trying his best to increase his exports, even at the cost of his business in a local market, we are sure that the Government would like to encourage such a person. In our opinion, once the Government decides to give some benefit to someone who is helping the nation in bringing foreign exchange, the Revenue should also make all possible efforts to encourage such traders or manufacturers by giving such business units more benefits as contemplated under the provisions of law. 29. For the aforesaid reasons, we are of the view that the view expressed by the High Court is in conformity with the normal accounting practice followed by the traders, including the respondent-assessee and it was justified in coming to a conclusion that the proceeds generated from the sale of scrap would not be included in the ‘total turnover’. 30. | 0[ds]21. In simple words, the wordwould mean only the amount of sale proceeds received in respect of the goods in which an assessee is dealing in.When such scrap is sold, in our opinion, the sale proceeds of the scrap cannot be included in the termfor the reason that the respondent-unit is engaged primarily in the manufacturing and selling of steel utensils and not scrap of steel. Therefore, the proceeds of such scrap would not be included inin the Profit and Loss Account of theaforestated meaning given by the ICAI clearly denotes that in normal accounting parlance the wordas explained hereinabove. The said sales would definitely not include the scrap material which is either to be deducted from the cost of raw material or is to be shown separately under a different head. We do not see any reason for not accepting the meaning of the termgiven by a body of Accountants, which is having a statutory recognition.The intention behind enactment of Section 80HHC of the Act was to encourage export so as to earn more foreign exchange. For the said purpose the Government wanted to encourage businessmen, traders and manufacturers to increase the export so as to bring more foreign exchange in our country. If the purpose is to bring more foreign exchange and to encourage export, we are of the view that the legislature would surely like to give more benefit to persons who are making an effort to help our nation in the process of bringing more foreign exchange. If a trader or a manufacturer is trying his best to increase his exports, even at the cost of his business in a local market, we are sure that the Government would like to encourage such a person. In our opinion, once the Government decides to give some benefit to someone who is helping the nation in bringing foreign exchange, the Revenue should also make all possible efforts to encourage such traders or manufacturers by giving such business units more benefits as contemplated under the provisions of | 0 | 2,842 | 362 | ### 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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using stainless steel as raw material, from which utensils are manufactured. The raw material, which is not capable of being used for manufacturing utensils will have to be either sold as scrap or might have to be re-cycled in the form of sheets of stainless steel, if the manufacturing unit is also having its re-rolling plant. If it is not having such a plant, the manufacturer would dispose of the scrap of steel to someone who would re-cycle the said scrap into steel so that the said steel can be re-used. 23. When such scrap is sold, in our opinion, the sale proceeds of the scrap cannot be included in the term ‘turnover’ for the reason that the respondent-unit is engaged primarily in the manufacturing and selling of steel utensils and not scrap of steel. Therefore, the proceeds of such scrap would not be included in ‘sales’ in the Profit and Loss Account of the respondent-assessee. 24. The situation would be different in the case of the buyer, who purchases scrap from the respondent-assessee and sells it to someone else. The sale proceeds for such a buyer would be treated as “turnover” for a simple reason that the buyer of the scrap is a person who is primarily dealing in scrap. In the case on hand, as the respondent-assessee is not primarily dealing in scrap but is a manufacturer of stainless steel utensils, only sale proceeds from sale of utensils would be treated as his “turnover”. 25. So as to be more accurate about the word “turnover”, one can either refer to dictionaries or to materials which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ‘ICAI’) has published some material under the head “Guidance Note on Tax Audit Under Section 44AB of the Income Tax Act”. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain material for its members, one can rely upon the same. Para 5 of the said Note deals with “Sales”, “turnover” and “gross receipts”. Paras 5.2 and 5.3 of the said Note are reproduced hereinbelow, which pertain to the term “turnover”. “5.2 In the “Guidance Note on Terms Used in Financial Statements” published by the ICAI, the expression “Sales Turnover” (Item 15.01) has been defined as under:-“The aggregate amount for which sales are effected or services rendered by an enterprise. The term `gross turnover’ and `net turnover’ (or `gross sales’ and `net sales’) are sometimes used to distinguish the sales aggregate before and after deduction of returns and trade discounts”. 5.3 The Guide to Company Audit issued by the ICAI in the year 1980, while discussing “sales”, stated as follows: “Total turnover, that is, the aggregate amount for which sales are effected by the company, giving the amount of sales in respect of each class of goods dealt with by the company and indicating the quantities of such sales for each class separately.Note (i) The term ‘turnover’ would mean the total sales after deducting therefrom goods returned, price adjustments, trade discount and cancellation of bills for the period of audit, if any. Adjustments which do not relate to turnover should not be made e.g. writing off bad debts, royalty etc. Where excise duty is included in turnover, the corresponding amount should be distinctly shown as a debit item in the profit and loss account.” (emphasis added) The aforestated meaning given by the ICAI clearly denotes that in normal accounting parlance the word “turnover” would mean “total sales” as explained hereinabove. The said sales would definitely not include the scrap material which is either to be deducted from the cost of raw material or is to be shown separately under a different head. We do not see any reason for not accepting the meaning of the term “turnover” given by a body of Accountants, which is having a statutory recognition. 26. If all accountants, auditors, businessmen, manufacturers etc. are normally interpreting the term ‘turnover’ as sale proceeds of the commodity in which the business unit is dealing, we see no reason to take a different view than the view normally taken by the persons who are concerned with the said term. 27. In addition to the above factors, which we have considered for understanding the meaning of the term “turnover”, we should not miss the purpose with which the said term has been incorporated in Section 80 HHC of the Act. 28. The intention behind enactment of Section 80HHC of the Act was to encourage export so as to earn more foreign exchange. For the said purpose the Government wanted to encourage businessmen, traders and manufacturers to increase the export so as to bring more foreign exchange in our country. If the purpose is to bring more foreign exchange and to encourage export, we are of the view that the legislature would surely like to give more benefit to persons who are making an effort to help our nation in the process of bringing more foreign exchange. If a trader or a manufacturer is trying his best to increase his exports, even at the cost of his business in a local market, we are sure that the Government would like to encourage such a person. In our opinion, once the Government decides to give some benefit to someone who is helping the nation in bringing foreign exchange, the Revenue should also make all possible efforts to encourage such traders or manufacturers by giving such business units more benefits as contemplated under the provisions of law. 29. For the aforesaid reasons, we are of the view that the view expressed by the High Court is in conformity with the normal accounting practice followed by the traders, including the respondent-assessee and it was justified in coming to a conclusion that the proceeds generated from the sale of scrap would not be included in the ‘total turnover’. 30.
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21. In simple words, the wordwould mean only the amount of sale proceeds received in respect of the goods in which an assessee is dealing in.When such scrap is sold, in our opinion, the sale proceeds of the scrap cannot be included in the termfor the reason that the respondent-unit is engaged primarily in the manufacturing and selling of steel utensils and not scrap of steel. Therefore, the proceeds of such scrap would not be included inin the Profit and Loss Account of theaforestated meaning given by the ICAI clearly denotes that in normal accounting parlance the wordas explained hereinabove. The said sales would definitely not include the scrap material which is either to be deducted from the cost of raw material or is to be shown separately under a different head. We do not see any reason for not accepting the meaning of the termgiven by a body of Accountants, which is having a statutory recognition.The intention behind enactment of Section 80HHC of the Act was to encourage export so as to earn more foreign exchange. For the said purpose the Government wanted to encourage businessmen, traders and manufacturers to increase the export so as to bring more foreign exchange in our country. If the purpose is to bring more foreign exchange and to encourage export, we are of the view that the legislature would surely like to give more benefit to persons who are making an effort to help our nation in the process of bringing more foreign exchange. If a trader or a manufacturer is trying his best to increase his exports, even at the cost of his business in a local market, we are sure that the Government would like to encourage such a person. In our opinion, once the Government decides to give some benefit to someone who is helping the nation in bringing foreign exchange, the Revenue should also make all possible efforts to encourage such traders or manufacturers by giving such business units more benefits as contemplated under the provisions of
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State of Punjab (Now Haryana) & Another Vs. M/s. New Rajasthan Mineral Syndicate | these terms:"The Coffee Board case as well as the of Binani Bros. (supra) clearly indicates that the distinction between sales for export and sales in the course of export is never to be lost sight of. The features which point with unerring accuracy to the contract between the appellant and the Corporation on the one hand and the contract between the Corporation and the foreign buyer on the other as two separate and independent contracts or sale within the ruling in the Coffee Board case (supra) and the Binani Brothers case, are these. The Corporation entered on the scene and entered into a direct contract with the foreign buyers to export the goods. The Corporation alone agreed to sell the goods to the foreign buyer. The corporation was the exporter of the goods. There was no privity of the contract between the appellant and the foreign buyer the privity of contract is between the Corporation and the foreign buyer. The immediate cause of the movement of goods and export was the contract between the foreign buyer who was the importer and the Corporation who was the exporter and shipper of the goods. All relevant documents were in the name of the Corporation whose contract of sale was the occasion of the export. The expression "occasions" in Section 5 of the Act means the immediate and direct cause. But for the contract between the Corporation and the foreign buyer, there was no occasion for export. Therefore, the export was occasioned by the contract of sale between the corporation and the foreign buyer and not by the contract of sale between the corporation and the appellant.The appellant sold the goods directly to the Corporation. The circumstances 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."22. With regard to the contention that the contracts between the assessee and the Corporation were F.O.B. contracts, the learned Chief Justice said:"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 buyers 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 contracts with the foreign buyer. The only scope of the deeming provision in the Act is to final out the contract of sale which is the direct cause or which occasions the export. . ..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.The fact that the exports can be made only through the State Trading Corporation does not have the effect of making the appellants the exporter where there is direct contract between the Corporation and the foreign buyer."23. The above observations, reproduced in extenso, furnish a complete and effective answer to all the arguments advanced on behalf of the assessee, in the instant case, to support the judgment of the High Court. Indeed, the factual premises on which Mr. Sharmas contentions are based, are weaker and less favourable to the assessee than those in Serajuddins case (AIR 1975 SC1564) (supra). Here there is no direct agreement between the assessee and the S.T.C, the agreement is between the assessee and N. and Co. Here is thus room for argument that the export sale made by the S.T.C. to the foreign buyers was preceded by two separate sales, namely, the first made by the assessee to N and Co. and the second made by N and Co, to S.T.C. Further, in the case before us, the assessee was entitled to payment even before ship ment, if the goods were weighed and approved by ,S.T.C. at Kandla Port.24. Be that as it may, the basic features of the case in hand are the same as those in ,Serajuddins case (AIR1975 SC 1564) (supra). Respectfully following the ratio and reasoning of this Court in the above quoted observations in Serajuddins case by which we are bound we accept the contentions canvassed on behalf of the appellant and negative those advanced by the assessee. | 1[ds]23. The above observations, reproduced in extenso, furnish a complete and effective answer to all the arguments advanced on behalf of the assessee, in the instant case, to support the judgment of the High Court. Indeed, the factual premises on which Mr. Sharmas contentions are based, are weaker and less favourable to the assessee than those in Serajuddins case (AIR 1975 SC1564) (supra). Here there is no direct agreement between the assessee and the S.T.C, the agreement is between the assessee and N. and Co. Here is thus room for argument that the export sale made by the S.T.C. to the foreign buyers was preceded by two separate sales, namely, the first made by the assessee to N and Co. and the second made by N and Co, to S.T.C. Further, in the case before us, the assessee was entitled to payment even before ship ment, if the goods were weighed and approved by ,S.T.C. at Kandla Port.24. Be that as it may, the basic features of the case in hand are the same as those in ,Serajuddins case (AIR1975 SC 1564) (supra). Respectfully following the ratio and reasoning of this Court in the above quoted observations in Serajuddins case by which we are bound we accept the contentions canvassed on behalf of the appellant and negative those advanced by the assessee. | 1 | 5,272 | 260 | ### 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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these terms:"The Coffee Board case as well as the of Binani Bros. (supra) clearly indicates that the distinction between sales for export and sales in the course of export is never to be lost sight of. The features which point with unerring accuracy to the contract between the appellant and the Corporation on the one hand and the contract between the Corporation and the foreign buyer on the other as two separate and independent contracts or sale within the ruling in the Coffee Board case (supra) and the Binani Brothers case, are these. The Corporation entered on the scene and entered into a direct contract with the foreign buyers to export the goods. The Corporation alone agreed to sell the goods to the foreign buyer. The corporation was the exporter of the goods. There was no privity of the contract between the appellant and the foreign buyer the privity of contract is between the Corporation and the foreign buyer. The immediate cause of the movement of goods and export was the contract between the foreign buyer who was the importer and the Corporation who was the exporter and shipper of the goods. All relevant documents were in the name of the Corporation whose contract of sale was the occasion of the export. The expression "occasions" in Section 5 of the Act means the immediate and direct cause. But for the contract between the Corporation and the foreign buyer, there was no occasion for export. Therefore, the export was occasioned by the contract of sale between the corporation and the foreign buyer and not by the contract of sale between the corporation and the appellant.The appellant sold the goods directly to the Corporation. The circumstances 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."22. With regard to the contention that the contracts between the assessee and the Corporation were F.O.B. contracts, the learned Chief Justice said:"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 buyers 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 contracts with the foreign buyer. The only scope of the deeming provision in the Act is to final out the contract of sale which is the direct cause or which occasions the export. . ..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.The fact that the exports can be made only through the State Trading Corporation does not have the effect of making the appellants the exporter where there is direct contract between the Corporation and the foreign buyer."23. The above observations, reproduced in extenso, furnish a complete and effective answer to all the arguments advanced on behalf of the assessee, in the instant case, to support the judgment of the High Court. Indeed, the factual premises on which Mr. Sharmas contentions are based, are weaker and less favourable to the assessee than those in Serajuddins case (AIR 1975 SC1564) (supra). Here there is no direct agreement between the assessee and the S.T.C, the agreement is between the assessee and N. and Co. Here is thus room for argument that the export sale made by the S.T.C. to the foreign buyers was preceded by two separate sales, namely, the first made by the assessee to N and Co. and the second made by N and Co, to S.T.C. Further, in the case before us, the assessee was entitled to payment even before ship ment, if the goods were weighed and approved by ,S.T.C. at Kandla Port.24. Be that as it may, the basic features of the case in hand are the same as those in ,Serajuddins case (AIR1975 SC 1564) (supra). Respectfully following the ratio and reasoning of this Court in the above quoted observations in Serajuddins case by which we are bound we accept the contentions canvassed on behalf of the appellant and negative those advanced by the assessee.
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1
### Explanation:
23. The above observations, reproduced in extenso, furnish a complete and effective answer to all the arguments advanced on behalf of the assessee, in the instant case, to support the judgment of the High Court. Indeed, the factual premises on which Mr. Sharmas contentions are based, are weaker and less favourable to the assessee than those in Serajuddins case (AIR 1975 SC1564) (supra). Here there is no direct agreement between the assessee and the S.T.C, the agreement is between the assessee and N. and Co. Here is thus room for argument that the export sale made by the S.T.C. to the foreign buyers was preceded by two separate sales, namely, the first made by the assessee to N and Co. and the second made by N and Co, to S.T.C. Further, in the case before us, the assessee was entitled to payment even before ship ment, if the goods were weighed and approved by ,S.T.C. at Kandla Port.24. Be that as it may, the basic features of the case in hand are the same as those in ,Serajuddins case (AIR1975 SC 1564) (supra). Respectfully following the ratio and reasoning of this Court in the above quoted observations in Serajuddins case by which we are bound we accept the contentions canvassed on behalf of the appellant and negative those advanced by the assessee.
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Hindustan Petroleum Corpn. Ltd Vs. Ashok Ranghba Ambre | the proceedings before the High Court under Article 226 of the Constitution as to permanency and other benefits on that basis, the writ petitioner could not contend that since the action of termination of his services was held to be illegal and he was ordered to be reinstated by Industrial Tribunal and the said Award was confirmed by the High Court, ipso facto, he ought to be treated as permanent employee of the Corporation and must be held entitled to the benefits claimed in the writ petition. To that extent, therefore, the order passed by the High Court is not in consonance with law. 12. Both the parties in this connection referred to several judgments in support of their respective contentions. We do not wish to deal with all those judgments since, in our opinion, law is well settled on the point. But as already noted earlier, the High Court, not only continued the appointment of the writ petitioner but observed that once the appointment was made and the workman was allowed to work for two decades, it would be hard and harsh to deny him the confirmation on the post. 13. The High Court further stated “We, therefore, hold that the petitioner (workman-respondent herein) is entitled to the status of permanent employee of the Corporation and accordingly we make the rule absolute in terms of prayer clause (a) with modification that the petitioner would be entitled to permanency with effect from the date of filing of the petition i.e. 16.3.1992. Petition is accordingly disposed of”. 14. Prayer (a) in the Writ Petition before the High Court reads thus: “(a) That this Hon’ble Court be pleased to declare the petitioner to be a permanent workman of the respondents in the post of Compounder/Dresser w.e.f. 6.6.1987 and direct the respondents to pay the petitioner all the benefits accruing by virtue of his permanency including fitment with annual increments in the appropriate grade with retrospective effect”. 15. The High Court observed that the writ petitioner was working as Compounder/Dresser right from 1984. It was not disputed that there was requirement of Compounder/Dresser at the Refinery which was working all throughout seven days in a week. It also noted the observation of the Tribunal in earlier Award that if the policy decision was breached in the appointment of the workman, the appointment could not be said to be illegal or prohibited by law. Such appointment would be merely irregular but not illegal. 16. In our opinion, the High Court was in clear error in equating reinstatement of employee in service in earlier proceedings with confirmation and granting status of permanency. Continuation in or regularization of service of an employee and extending the benefit of confirmation or making him permanent are two different concepts. Before more than four decades, in State of Mysore & Anr. v. S.V. Narayanappa, (1967) 1 SCR 128 , setting aside the order passed by the High Court of Mysore, this Court observed that the High Court erroneously proceeded on an assumption that “regularization” meant “permanence”. The Court stated that regularization would not mean that the appointment would have to be considered as permanent. 17. Again, in B.N. Nagarajan & Ors. v. State of Karnataka & Ors., (1979) 4 SCC 507 , orders were passed by the State Government promoting certain officers as Assistant Engineers “on a regular basis”. It was argued that the regularization of the promotion gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must, therefore, be deemed to have been made substantively. The Court held that the words “regular” or “regularization” do not connote “permanence”. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments and cannot be construed so as to convey an idea of the nature of tenure of appointments. 18. In the case on hand, according to the appellant-Corporation, the workman was appointed on a purely ad hoc and temporary basis, without following due process of law. His name was never sponsored by the Employment Exchange nor an advertisement was issued for the purpose of filling the post to which the writ petitioner was appointed. Cases of other similarly situated persons were not considered and the appointment was not legal and lawful. In industrial adjudication, an order of termination was quashed as it was not in accordance with law. But that did not mean that the workman had substantive right to hold the post. The High Court was, therefore, wrong in directing the Corporation to make the writ petitioner permanent and to extend him all benefits on that basis from 1992. The said direction, therefore, has to go. 19. For the foregoing reasons, the appeal is allowed by setting aside the direction issued by the High Court ordering the appellant-Corporation to make the writ-petitioner (respondent herein) permanent employee of the Corporation and to grant all benefits on that basis with effect from the date of filing of writ petition. 20. We may, however, observe that since the writ petitioner is working with the appellant-Corporation since 1984 and by now, he has completed more than two decades, his case for permanency be considered by the Corporation sympathetically. If there is age bar in considering the case of the writ petitioner for permanent appointment, the appellant-Corporation will not treat the writ petitioner ineligible on that count in view of the fact that he is already in service of the Corporation since 1984. If there are statutory rules/administrative instructions/guidelines which require minimum educational qualification and/or experience, it is open to the Corporation to insist compliance with such rules/instructions/guidelines. But if there is power of relaxation with the Corporation or any of its Officers, the appellant-Corporation will consider that aspect as well keeping in view the fact that the writ petitioner was appointed in 1984, has completed service of more than twenty years and is having rich experience. 21. In the result, the | 1[ds]The High Court observed that the writ petitioner was working as Compounder/Dresser right from 1984. It was not disputed that there was requirement of Compounder/Dresser at the Refinery which was working all throughout seven days in a week. It also noted the observation of the Tribunal in earlier Award that if the policy decision was breached in the appointment of the workman, the appointment could not be said to be illegal or prohibited by law. Such appointment would be merely irregular but notour opinion, the High Court was in clear error in equating reinstatement of employee in service in earlier proceedings with confirmation and granting status of permanency. Continuation in or regularization of service of an employee and extending the benefit of confirmation or making him permanent are two differentto the appellant-Corporation, the workman was appointed on a purely ad hoc and temporary basis, without following due process of law. His name was never sponsored by the Employment Exchange nor an advertisement was issued for the purpose of filling the post to which the writ petitioner was appointed. Cases of other similarly situated persons were not considered and the appointment was not legal and lawful. In industrial adjudication, an order of termination was quashed as it was not in accordance with law. But that did not mean that the workman had substantive right to hold the post. The High Court was, therefore, wrong in directing the Corporation to make the writ petitioner permanent and to extend him all benefits on that basis from 1992. The said direction, therefore, has toappeal is allowed by setting aside the direction issued by the High Court ordering the appellant-Corporation to make the writ-petitioner (respondent herein) permanent employee of the Corporation and to grant all benefits on that basis with effect from the date of filing of writmay, however, observe that since the writ petitioner is working with the appellant-Corporation since 1984 and by now, he has completed more than two decades, his case for permanency be considered by the Corporation sympathetically. If there is age bar in considering the case of the writ petitioner for permanent appointment, the appellant-Corporation will not treat the writ petitioner ineligible on that count in view of the fact that he is already in service of the Corporation since 1984. If there are statutory rules/administrative instructions/guidelines which require minimum educational qualification and/or experience, it is open to the Corporation to insist compliance with such rules/instructions/guidelines. But if there is power of relaxation with the Corporation or any of its Officers, the appellant-Corporation will consider that aspect as well keeping in view the fact that the writ petitioner was appointed in 1984, has completed service of more than twenty years and is having rich experience. | 1 | 2,809 | 492 | ### 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 proceedings before the High Court under Article 226 of the Constitution as to permanency and other benefits on that basis, the writ petitioner could not contend that since the action of termination of his services was held to be illegal and he was ordered to be reinstated by Industrial Tribunal and the said Award was confirmed by the High Court, ipso facto, he ought to be treated as permanent employee of the Corporation and must be held entitled to the benefits claimed in the writ petition. To that extent, therefore, the order passed by the High Court is not in consonance with law. 12. Both the parties in this connection referred to several judgments in support of their respective contentions. We do not wish to deal with all those judgments since, in our opinion, law is well settled on the point. But as already noted earlier, the High Court, not only continued the appointment of the writ petitioner but observed that once the appointment was made and the workman was allowed to work for two decades, it would be hard and harsh to deny him the confirmation on the post. 13. The High Court further stated “We, therefore, hold that the petitioner (workman-respondent herein) is entitled to the status of permanent employee of the Corporation and accordingly we make the rule absolute in terms of prayer clause (a) with modification that the petitioner would be entitled to permanency with effect from the date of filing of the petition i.e. 16.3.1992. Petition is accordingly disposed of”. 14. Prayer (a) in the Writ Petition before the High Court reads thus: “(a) That this Hon’ble Court be pleased to declare the petitioner to be a permanent workman of the respondents in the post of Compounder/Dresser w.e.f. 6.6.1987 and direct the respondents to pay the petitioner all the benefits accruing by virtue of his permanency including fitment with annual increments in the appropriate grade with retrospective effect”. 15. The High Court observed that the writ petitioner was working as Compounder/Dresser right from 1984. It was not disputed that there was requirement of Compounder/Dresser at the Refinery which was working all throughout seven days in a week. It also noted the observation of the Tribunal in earlier Award that if the policy decision was breached in the appointment of the workman, the appointment could not be said to be illegal or prohibited by law. Such appointment would be merely irregular but not illegal. 16. In our opinion, the High Court was in clear error in equating reinstatement of employee in service in earlier proceedings with confirmation and granting status of permanency. Continuation in or regularization of service of an employee and extending the benefit of confirmation or making him permanent are two different concepts. Before more than four decades, in State of Mysore & Anr. v. S.V. Narayanappa, (1967) 1 SCR 128 , setting aside the order passed by the High Court of Mysore, this Court observed that the High Court erroneously proceeded on an assumption that “regularization” meant “permanence”. The Court stated that regularization would not mean that the appointment would have to be considered as permanent. 17. Again, in B.N. Nagarajan & Ors. v. State of Karnataka & Ors., (1979) 4 SCC 507 , orders were passed by the State Government promoting certain officers as Assistant Engineers “on a regular basis”. It was argued that the regularization of the promotion gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must, therefore, be deemed to have been made substantively. The Court held that the words “regular” or “regularization” do not connote “permanence”. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments and cannot be construed so as to convey an idea of the nature of tenure of appointments. 18. In the case on hand, according to the appellant-Corporation, the workman was appointed on a purely ad hoc and temporary basis, without following due process of law. His name was never sponsored by the Employment Exchange nor an advertisement was issued for the purpose of filling the post to which the writ petitioner was appointed. Cases of other similarly situated persons were not considered and the appointment was not legal and lawful. In industrial adjudication, an order of termination was quashed as it was not in accordance with law. But that did not mean that the workman had substantive right to hold the post. The High Court was, therefore, wrong in directing the Corporation to make the writ petitioner permanent and to extend him all benefits on that basis from 1992. The said direction, therefore, has to go. 19. For the foregoing reasons, the appeal is allowed by setting aside the direction issued by the High Court ordering the appellant-Corporation to make the writ-petitioner (respondent herein) permanent employee of the Corporation and to grant all benefits on that basis with effect from the date of filing of writ petition. 20. We may, however, observe that since the writ petitioner is working with the appellant-Corporation since 1984 and by now, he has completed more than two decades, his case for permanency be considered by the Corporation sympathetically. If there is age bar in considering the case of the writ petitioner for permanent appointment, the appellant-Corporation will not treat the writ petitioner ineligible on that count in view of the fact that he is already in service of the Corporation since 1984. If there are statutory rules/administrative instructions/guidelines which require minimum educational qualification and/or experience, it is open to the Corporation to insist compliance with such rules/instructions/guidelines. But if there is power of relaxation with the Corporation or any of its Officers, the appellant-Corporation will consider that aspect as well keeping in view the fact that the writ petitioner was appointed in 1984, has completed service of more than twenty years and is having rich experience. 21. In the result, the
### Response:
1
### Explanation:
The High Court observed that the writ petitioner was working as Compounder/Dresser right from 1984. It was not disputed that there was requirement of Compounder/Dresser at the Refinery which was working all throughout seven days in a week. It also noted the observation of the Tribunal in earlier Award that if the policy decision was breached in the appointment of the workman, the appointment could not be said to be illegal or prohibited by law. Such appointment would be merely irregular but notour opinion, the High Court was in clear error in equating reinstatement of employee in service in earlier proceedings with confirmation and granting status of permanency. Continuation in or regularization of service of an employee and extending the benefit of confirmation or making him permanent are two differentto the appellant-Corporation, the workman was appointed on a purely ad hoc and temporary basis, without following due process of law. His name was never sponsored by the Employment Exchange nor an advertisement was issued for the purpose of filling the post to which the writ petitioner was appointed. Cases of other similarly situated persons were not considered and the appointment was not legal and lawful. In industrial adjudication, an order of termination was quashed as it was not in accordance with law. But that did not mean that the workman had substantive right to hold the post. The High Court was, therefore, wrong in directing the Corporation to make the writ petitioner permanent and to extend him all benefits on that basis from 1992. The said direction, therefore, has toappeal is allowed by setting aside the direction issued by the High Court ordering the appellant-Corporation to make the writ-petitioner (respondent herein) permanent employee of the Corporation and to grant all benefits on that basis with effect from the date of filing of writmay, however, observe that since the writ petitioner is working with the appellant-Corporation since 1984 and by now, he has completed more than two decades, his case for permanency be considered by the Corporation sympathetically. If there is age bar in considering the case of the writ petitioner for permanent appointment, the appellant-Corporation will not treat the writ petitioner ineligible on that count in view of the fact that he is already in service of the Corporation since 1984. If there are statutory rules/administrative instructions/guidelines which require minimum educational qualification and/or experience, it is open to the Corporation to insist compliance with such rules/instructions/guidelines. But if there is power of relaxation with the Corporation or any of its Officers, the appellant-Corporation will consider that aspect as well keeping in view the fact that the writ petitioner was appointed in 1984, has completed service of more than twenty years and is having rich experience.
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M/s. Medimpex (India) Private Limited Vs. Drug Controller-Cum-Chief Licensing Authority & Others | has also held that nothing was pointed out by counsel for the appellant to indicate that the findings of the Drug Controller were perverse or unsustainable. It has further been held by the High Court that the findings of the Drug Controller in his order dated December 22, 1984 that no such licence as claimed by the appellant for manufacture of Santopar was granted in its favour, could not obviously be treated as an order whereby either the licence of the appellant had been cancelled or its renewal had been refused. That being so, the appeal filed by the appellant before the Health Minister against the order of the Drug Controller dated December 22, 1984 was not maintainable inasmuch as Rule 84-A of the Rules which contained the necessary provision for appeal to the State Government contemplated an appeal only against an order of the Licensing Authority refusing to grant or renew a licence. It was held that since right to file an appeal was a creature of statute and no appeal had been provided for against an order such as the order dated December 22, 1984 passed by the Drug Controller in the inquiry held in pursuance of a direction of the High Court that no licence at all had been granted to the appellant to manufacture Santopar tablets, the order passed by the Health Minister was obviously without jurisdiction and consequently the order of the Health Minister dated October 15, 1985 and the subsequent order dated November 11, 1985 were liable to be quashed and as a necessary corollary the writ petition filed by the appellant deserved to be dismissed 7. It has been urged by Shri Sandhya that the order of the Drug Controller dated December 22, 1984 was, on the face of it, erroneous and the High Court committed an error in upholding it. In support of this submission reliance was placed on a document filed as Annexure A to I.A. No. 2 of 1989 made in the special leave petitions purporting to be a true copy of a certificate said to have been issued on January 20, 1984 by Shri Y. K. Sinha to the effect that the certificate or renewal and the list attached thereto as Annexure issued along with letter dated June 10, 1976 relating to the issue of licence for manufacturing of non-biological drugs to the appellant bore his signature and the same were signed June 9, 1976. According to Shri Sandhya in view of this certificate the finding of the Drug Controller that the photostat copy of the renewal certificate and there list attached thereto were forged and fabricated was patently erroneous. Suffice it to say, so far as this submission in concerned, that the said certificate does not appear to have been produced during the course of inquiry before the Drug Controller. The order of the Drug Controller is completely silent about it and nothing has been brought to our notice to indicate that the said certificate was indeed produced before the Drug Controller. So far as the writ petition filed by the appellant which has been decided by the judgment appealed against is concerned, on a specific question being put by us to him Shri Sandhya stated that the said certificate was not produced in the said writ petition. This being the position we are not inclined to take into consideration the said certificate particularly in the absence of any affidavit by Shri Y. K. Sinha vouchsafing the genuineness of the said certificate. On merits we find no justification to interfere with the finding recorded in this behalf by the Drug Controller and affirmed by the High Court, the same being essentially a finding of fact based on material placed before them 8. It was then urged by Shri Sandhya in the alternative that since an application had been made on behalf of the appellant on April 15, 1974 already referred to above containing information that the appellant had decided to manufacture Santopar brand name instead of Santonin and Calomel tablets or any brand name with a prayer that the said product may be considered on the appellants manufacturing item it fulfilled requirement of making an application for endorsement and even if no order was passed thereon it should be deemed that endorsement as prayed for had been granted. We find it difficult to agree with this submission either. The question as to whether as endorsement of making an addition in the licence should or should not be granted apparently requires an application of mind and an order making such endorsement is needed. Even in the case of the appellant the Licensing Authority had passed on order on January 25, 1975 specifically granting the appellants application made for adding six more drugs in its licence, after considering the merits of the application 9. We also do not find any substance in the submission made by Shri Sandhya that the High Court committed an error in holding that no appeal lay to the State Government against the order passed by the Drug Controller on December 22, 1984. The finding by the Drug Controller that no licence had ever been granted to the appellant to manufacture Santopar tablets recorded in the order dated December 22, 1984 passed by him in the inquiry made in compliance with the direction of the High Court could not obviously be treated as an order either refusing to grant licence or to renew it. Since an appeal lay to the State Government only against an order either refusing to grant a licence or to renew it the High Court, in our opinion, cannot be said to have committed any mistake in taking the view that the appeal filed by the appellant against the said order of the Drug Controller dated December 22, 1984 was not maintainable. On the writ petition filed by respondent 2 being allowed by the High Court the reliefs prayed for by the appellant in its writ petition could not obviously be granted | 0[ds]9. We also do not find any substance in the submission made by Shri Sandhya that the High Court committed an error in holding that no appeal lay to the State Government against the order passed by the Drug Controller on December 22, 1984. The finding by the Drug Controller that no licence had ever been granted to the appellant to manufacture Santopar tablets recorded in the order dated December 22, 1984 passed by him in the inquiry made in compliance with the direction of the High Court could not obviously be treated as an order either refusing to grant licence or to renew it. Since an appeal lay to the State Government only against an order either refusing to grant a licence or to renew it the High Court, in our opinion, cannot be said to have committed any mistake in taking the view that the appeal filed by the appellant against the said order of the Drug Controller dated December 22, 1984 was not maintainable. On the writ petition filed by respondent 2 being allowed by the High Court the reliefs prayed for by the appellant in its writ petition could not obviously be granted6. It has also held that nothing was pointed out by counsel for the appellant to indicate that the findings of the Drug Controller were perverse or unsustainable. It has further been held by the High Court that the findings of the Drug Controller in his order dated December 22, 1984 that no such licence as claimed by the appellant for manufacture of Santopar was granted in its favour, could not obviously be treated as an order whereby either the licence of the appellant had been cancelled or its renewal had been refused. That being so, the appeal filed by the appellant before the Health Minister against the order of the Drug Controller dated December 22, 1984 was not maintainable inasmuch as RuleA of the Rules which contained the necessary provision for appeal to the State Government contemplated an appeal only against an order of the Licensing Authority refusing to grant or renew a licence. It was held that since right to file an appeal was a creature of statute and no appeal had been provided for against an order such as the order dated December 22, 1984 passed by the Drug Controller in the inquiry held in pursuance of a direction of the High Court that no licence at all had been granted to the appellant to manufacture Santopar tablets, the order passed by the Health Minister was obviously without jurisdiction and consequently the order of the Health Minister dated October 15, 1985 and the subsequent order dated November 11, 1985 were liable to be quashed and as a necessary corollary the writ petition filed by the appellant deserved to be dismissedSuffice it to say, so far as this submission in concerned, that the said certificate does not appear to have been produced during the course of inquiry before the Drug Controller. The order of the Drug Controller is completely silent about it and nothing has been brought to our notice to indicate that the said certificate was indeed produced before the Drug Controller. So far as the writ petition filed by the appellant which has been decided by the judgment appealed against is concerned, on a specific question being put by us to him Shri Sandhya stated that the said certificate was not produced in the said writ petition. This being the position we are not inclined to take into consideration the said certificate particularly in the absence of any affidavit by Shri Y. K. Sinha vouchsafing the genuineness of the said certificate. On merits we find no justification to interfere with the finding recorded in this behalf by the Drug Controller and affirmed by the High Court, the same being essentially a finding of fact based on material placed before themWe find it difficult to agree with this submission either. The question as to whether as endorsement of making an addition in the licence should or should not be granted apparently requires an application of mind and an order making such endorsement is needed. Even in the case of the appellant the Licensing Authority had passed on order on January 25, 1975 specifically granting the appellants application made for adding six more drugs in its licence, after considering the merits of the application9. We also do not find any substance in the submission made by Shri Sandhya that the High Court committed an error in holding that no appeal lay to the State Government against the order passed by the Drug Controller on December 22, 1984. The finding by the Drug Controller that no licence had ever been granted to the appellant to manufacture Santopar tablets recorded in the order dated December 22, 1984 passed by him in the inquiry made in compliance with the direction of the High Court could not obviously be treated as an order either refusing to grant licence or to renew it. Since an appeal lay to the State Government only against an order either refusing to grant a licence or to renew it the High Court, in our opinion, cannot be said to have committed any mistake in taking the view that the appeal filed by the appellant against the said order of the Drug Controller dated December 22, 1984 was not maintainable. On the writ petition filed by respondent 2 being allowed by the High Court the reliefs prayed for by the appellant in its writ petition could not obviously be granted | 0 | 2,194 | 976 | ### 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:
has also held that nothing was pointed out by counsel for the appellant to indicate that the findings of the Drug Controller were perverse or unsustainable. It has further been held by the High Court that the findings of the Drug Controller in his order dated December 22, 1984 that no such licence as claimed by the appellant for manufacture of Santopar was granted in its favour, could not obviously be treated as an order whereby either the licence of the appellant had been cancelled or its renewal had been refused. That being so, the appeal filed by the appellant before the Health Minister against the order of the Drug Controller dated December 22, 1984 was not maintainable inasmuch as Rule 84-A of the Rules which contained the necessary provision for appeal to the State Government contemplated an appeal only against an order of the Licensing Authority refusing to grant or renew a licence. It was held that since right to file an appeal was a creature of statute and no appeal had been provided for against an order such as the order dated December 22, 1984 passed by the Drug Controller in the inquiry held in pursuance of a direction of the High Court that no licence at all had been granted to the appellant to manufacture Santopar tablets, the order passed by the Health Minister was obviously without jurisdiction and consequently the order of the Health Minister dated October 15, 1985 and the subsequent order dated November 11, 1985 were liable to be quashed and as a necessary corollary the writ petition filed by the appellant deserved to be dismissed 7. It has been urged by Shri Sandhya that the order of the Drug Controller dated December 22, 1984 was, on the face of it, erroneous and the High Court committed an error in upholding it. In support of this submission reliance was placed on a document filed as Annexure A to I.A. No. 2 of 1989 made in the special leave petitions purporting to be a true copy of a certificate said to have been issued on January 20, 1984 by Shri Y. K. Sinha to the effect that the certificate or renewal and the list attached thereto as Annexure issued along with letter dated June 10, 1976 relating to the issue of licence for manufacturing of non-biological drugs to the appellant bore his signature and the same were signed June 9, 1976. According to Shri Sandhya in view of this certificate the finding of the Drug Controller that the photostat copy of the renewal certificate and there list attached thereto were forged and fabricated was patently erroneous. Suffice it to say, so far as this submission in concerned, that the said certificate does not appear to have been produced during the course of inquiry before the Drug Controller. The order of the Drug Controller is completely silent about it and nothing has been brought to our notice to indicate that the said certificate was indeed produced before the Drug Controller. So far as the writ petition filed by the appellant which has been decided by the judgment appealed against is concerned, on a specific question being put by us to him Shri Sandhya stated that the said certificate was not produced in the said writ petition. This being the position we are not inclined to take into consideration the said certificate particularly in the absence of any affidavit by Shri Y. K. Sinha vouchsafing the genuineness of the said certificate. On merits we find no justification to interfere with the finding recorded in this behalf by the Drug Controller and affirmed by the High Court, the same being essentially a finding of fact based on material placed before them 8. It was then urged by Shri Sandhya in the alternative that since an application had been made on behalf of the appellant on April 15, 1974 already referred to above containing information that the appellant had decided to manufacture Santopar brand name instead of Santonin and Calomel tablets or any brand name with a prayer that the said product may be considered on the appellants manufacturing item it fulfilled requirement of making an application for endorsement and even if no order was passed thereon it should be deemed that endorsement as prayed for had been granted. We find it difficult to agree with this submission either. The question as to whether as endorsement of making an addition in the licence should or should not be granted apparently requires an application of mind and an order making such endorsement is needed. Even in the case of the appellant the Licensing Authority had passed on order on January 25, 1975 specifically granting the appellants application made for adding six more drugs in its licence, after considering the merits of the application 9. We also do not find any substance in the submission made by Shri Sandhya that the High Court committed an error in holding that no appeal lay to the State Government against the order passed by the Drug Controller on December 22, 1984. The finding by the Drug Controller that no licence had ever been granted to the appellant to manufacture Santopar tablets recorded in the order dated December 22, 1984 passed by him in the inquiry made in compliance with the direction of the High Court could not obviously be treated as an order either refusing to grant licence or to renew it. Since an appeal lay to the State Government only against an order either refusing to grant a licence or to renew it the High Court, in our opinion, cannot be said to have committed any mistake in taking the view that the appeal filed by the appellant against the said order of the Drug Controller dated December 22, 1984 was not maintainable. On the writ petition filed by respondent 2 being allowed by the High Court the reliefs prayed for by the appellant in its writ petition could not obviously be granted
### Response:
0
### Explanation:
9. We also do not find any substance in the submission made by Shri Sandhya that the High Court committed an error in holding that no appeal lay to the State Government against the order passed by the Drug Controller on December 22, 1984. The finding by the Drug Controller that no licence had ever been granted to the appellant to manufacture Santopar tablets recorded in the order dated December 22, 1984 passed by him in the inquiry made in compliance with the direction of the High Court could not obviously be treated as an order either refusing to grant licence or to renew it. Since an appeal lay to the State Government only against an order either refusing to grant a licence or to renew it the High Court, in our opinion, cannot be said to have committed any mistake in taking the view that the appeal filed by the appellant against the said order of the Drug Controller dated December 22, 1984 was not maintainable. On the writ petition filed by respondent 2 being allowed by the High Court the reliefs prayed for by the appellant in its writ petition could not obviously be granted6. It has also held that nothing was pointed out by counsel for the appellant to indicate that the findings of the Drug Controller were perverse or unsustainable. It has further been held by the High Court that the findings of the Drug Controller in his order dated December 22, 1984 that no such licence as claimed by the appellant for manufacture of Santopar was granted in its favour, could not obviously be treated as an order whereby either the licence of the appellant had been cancelled or its renewal had been refused. That being so, the appeal filed by the appellant before the Health Minister against the order of the Drug Controller dated December 22, 1984 was not maintainable inasmuch as RuleA of the Rules which contained the necessary provision for appeal to the State Government contemplated an appeal only against an order of the Licensing Authority refusing to grant or renew a licence. It was held that since right to file an appeal was a creature of statute and no appeal had been provided for against an order such as the order dated December 22, 1984 passed by the Drug Controller in the inquiry held in pursuance of a direction of the High Court that no licence at all had been granted to the appellant to manufacture Santopar tablets, the order passed by the Health Minister was obviously without jurisdiction and consequently the order of the Health Minister dated October 15, 1985 and the subsequent order dated November 11, 1985 were liable to be quashed and as a necessary corollary the writ petition filed by the appellant deserved to be dismissedSuffice it to say, so far as this submission in concerned, that the said certificate does not appear to have been produced during the course of inquiry before the Drug Controller. The order of the Drug Controller is completely silent about it and nothing has been brought to our notice to indicate that the said certificate was indeed produced before the Drug Controller. So far as the writ petition filed by the appellant which has been decided by the judgment appealed against is concerned, on a specific question being put by us to him Shri Sandhya stated that the said certificate was not produced in the said writ petition. This being the position we are not inclined to take into consideration the said certificate particularly in the absence of any affidavit by Shri Y. K. Sinha vouchsafing the genuineness of the said certificate. On merits we find no justification to interfere with the finding recorded in this behalf by the Drug Controller and affirmed by the High Court, the same being essentially a finding of fact based on material placed before themWe find it difficult to agree with this submission either. The question as to whether as endorsement of making an addition in the licence should or should not be granted apparently requires an application of mind and an order making such endorsement is needed. Even in the case of the appellant the Licensing Authority had passed on order on January 25, 1975 specifically granting the appellants application made for adding six more drugs in its licence, after considering the merits of the application9. We also do not find any substance in the submission made by Shri Sandhya that the High Court committed an error in holding that no appeal lay to the State Government against the order passed by the Drug Controller on December 22, 1984. The finding by the Drug Controller that no licence had ever been granted to the appellant to manufacture Santopar tablets recorded in the order dated December 22, 1984 passed by him in the inquiry made in compliance with the direction of the High Court could not obviously be treated as an order either refusing to grant licence or to renew it. Since an appeal lay to the State Government only against an order either refusing to grant a licence or to renew it the High Court, in our opinion, cannot be said to have committed any mistake in taking the view that the appeal filed by the appellant against the said order of the Drug Controller dated December 22, 1984 was not maintainable. On the writ petition filed by respondent 2 being allowed by the High Court the reliefs prayed for by the appellant in its writ petition could not obviously be granted
|
URMILA DEVI Vs. BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. | the judgment in the case of Bhadurmal vs. Bizaatunnisa Begum AIR 1964 AP 365 wherein an issue with regard to maintainability of cross-objection in an appeal preferred under Sections 47 to 49 of Hyderabad Jagirdars Debt Settlement Act, 1952 was considered. It also relied on the judgment in the case of Inayatullah Khan vs. Diwanchand Mahajan AIR 1959 MP 58 , wherein maintainability of cross objection in an election appeal under Section 116A of the Representation of the People Act, 1951 was upheld. It further relied on the judgment of the Calcutta High Court in the case of Ramasray Singh & Ors. vs. Bibhisan Sinha AIR 1950 Cal 372, upholding the right of the respondent to file cross-objection in an appeal contemplated under Section 38 of Bengal Money-Lenders Act, 1940. 20. It further relied on certain observations of this Court in the case of Baru Ram vs. Prasanni AIR 1959 SC 93 : 1959 SCR 1403 This Court did not agree with the contrary view taken by the learned two-judge Bench of this Court in the case of Superintending Engineer & Ors. vs. B. Subba Reddy (1999) 4 SCC 423 . However, holding so, this Court held that since the right to appeal under Section 39 of the Arbitration Act, 1940 was only restricted to clauses (i) to (vi) of sub-section (1) thereof, the cross-objection also must conform to the said requirement. In other words, it was held that a cross-objection would be maintainable only if the subject-matter thereof falls in any of the category carved out under clauses (i) to (vi) of sub-section (1) of Section 39 of the Arbitration Act, 1940. 21. This Court further found that the entire Order XLI rule 22 CPC would apply to a cross-objection including the provisions of sub-rule (4) thereof. It was held, that if the original appeal is found to be incompetent or not maintainable if it is filed against an order not falling under any of the clauses (i) to (vi) of sub-Section (1) of Section 39, then the cross objection shall also fail on that ground and cannot be adjudicated upon on merits. It could, thus, be seen that the view taken by the Court is that the cross- objection would be tenable only if appeal is validly tenable. 22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation. 23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act. 24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal. 25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC. 26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits. 27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law. | 1[ds]22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law. | 1 | 5,087 | 694 | ### 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 judgment in the case of Bhadurmal vs. Bizaatunnisa Begum AIR 1964 AP 365 wherein an issue with regard to maintainability of cross-objection in an appeal preferred under Sections 47 to 49 of Hyderabad Jagirdars Debt Settlement Act, 1952 was considered. It also relied on the judgment in the case of Inayatullah Khan vs. Diwanchand Mahajan AIR 1959 MP 58 , wherein maintainability of cross objection in an election appeal under Section 116A of the Representation of the People Act, 1951 was upheld. It further relied on the judgment of the Calcutta High Court in the case of Ramasray Singh & Ors. vs. Bibhisan Sinha AIR 1950 Cal 372, upholding the right of the respondent to file cross-objection in an appeal contemplated under Section 38 of Bengal Money-Lenders Act, 1940. 20. It further relied on certain observations of this Court in the case of Baru Ram vs. Prasanni AIR 1959 SC 93 : 1959 SCR 1403 This Court did not agree with the contrary view taken by the learned two-judge Bench of this Court in the case of Superintending Engineer & Ors. vs. B. Subba Reddy (1999) 4 SCC 423 . However, holding so, this Court held that since the right to appeal under Section 39 of the Arbitration Act, 1940 was only restricted to clauses (i) to (vi) of sub-section (1) thereof, the cross-objection also must conform to the said requirement. In other words, it was held that a cross-objection would be maintainable only if the subject-matter thereof falls in any of the category carved out under clauses (i) to (vi) of sub-section (1) of Section 39 of the Arbitration Act, 1940. 21. This Court further found that the entire Order XLI rule 22 CPC would apply to a cross-objection including the provisions of sub-rule (4) thereof. It was held, that if the original appeal is found to be incompetent or not maintainable if it is filed against an order not falling under any of the clauses (i) to (vi) of sub-Section (1) of Section 39, then the cross objection shall also fail on that ground and cannot be adjudicated upon on merits. It could, thus, be seen that the view taken by the Court is that the cross- objection would be tenable only if appeal is validly tenable. 22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation. 23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act. 24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal. 25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC. 26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits. 27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law.
### Response:
1
### Explanation:
22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law.
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Gur Pratap Singh Bedi Vs. State of Punjab and Another | Krishna Iyer J.1. The compulsory retirement of the appellant, by the first respondent, the State of Punjab, by Ext. A. dated January 11, 1974 was challenged before the High Court but rebuffed with merited brevity after the Court called for the reply of the respondents. The disappointed official has, by securing special leave under Art. 136, come up before this Court and urged in his appeal two week grounds which are too jejune to justify any course other than dismissal.2. The facts. - The appellant joined Government service as an Excise Officer in 1944 and spiraled up over the years from the rank of Sub-Inspector to that of Assistant Excise and Taxation Officer. Probably his record of service was not nullied but, in his later years in office since 1970 his record was a mixed one. Eventually when he was about to attain the age of 55. Government, exercising its power under R. 5.32 of the Punjab Civil Service Rules, gave three months notice of retirement on the termination of which, the order read :"You will be deemed to have retired from service, on the expiry of the aforesaid period."He completed the age of 55 on March 24, 1974 and the order was to take effect in April, that is to say, after he had completed the requisite age.3. The grounds. - Counsel for the appellant attacked the validity of the order Ext. A under two heads. He first contended that R. 5.32 of the relevant rules was quoted in the order but, in the counter affidavit of the State in this Court it was mentioned that the order was not passed under the rule. The second ground pressed was one of mala fides of the second respondent the Commissioner of Excise, at whose instance, according to the appellant, entries of bad record were made in his service sheets.4. We may examine the first ground briefly. True that the State Government has shown reminiscence in denying that the main order was passed under R. 5.32. On a closer and comprehensive study of the papers to is apparent what was meant was that Government passed the order under R. 5.32(c) and not under R. 5.32(b), This carelessness cannot certainly found to argument to invalidate the order. It is perfectly plain that there are two courses for Government to compulsorily retire an officer. The first one under R. 5.32(b) has to be involved when the officer "has not attained the age of 55 years. For exercising this power there are certain conditions mentioned in note to the said sub-rule. The other provision is R. 5.32(c) which applies when a Government employee "is retired by the appointing authority on or after he attains the age of 55 years." In this case only three months notice is called for and no other pre-conditions have to be fulfilled. However, which the notice is given under the age of 55 years is attained, the order shall take effect" from a date not earlier than the date on which the age 55 years is attained".5. The confusion which has encouraged the argument of the appellant stems from the counter-affidavit of the State and we do not permit ourselves to be misled by it. It is obvious that the order in question relies upon R. 5.32(c) although what is quoted is R. 5.32 simpliciter. The Officer was to have attained the age of 55 years before the three months period was to expire and so was perfectly in order to say that there is any blemish against the Government Servant relied upon by the State in retiring him. In those circumstances the order is good and is supportable on the strength of R. 5.32(c). We may mention that although R. 5.32(b) in the note attached to it expressly states that the right thunder will not are exercised except when it is in the public interest to dispense with the further services of Government employee, it is clear that all public power whether it be under R. 5.32(c) or under any other provision has to be exercised not for the private purpose of a higher official or even a minister. It has to be and shall be exercised only for further hence of public interest. The private appetite of the repository of a public power can never be satisfied without the order being castigated and voided as in excess of the legitimate purpose of the power. There is nothing to suggest that in the present case any such mischief has been perpetrated.6. The second point is equally devoid of force. We have been taken through the record and counsel has been unsuccessful in making out a case of mala fides on the part of the second respondent. Indeed, in the High Court the latter had sworn an affidavit denying mala fides in the light of which the feeble material vaguely referred to for buildings up a case mala fides totally fails.7. The appeal, therefore, fails : It was mentioned at the bar that although two years had passed since retirement of the appellant some arrears of salary and his pension remain to be paid. It is an unfortunate declaration of duty on the part of the persons in charge to withhold payment of salary or fail to finalize pension papers expeditiously, particularly when an officer is retired and finds himself in sudden deprivation of his monthly resources. Any Government compassionate and welfare-oriented, will not leave its public servants on retirement in the wintry cold. We dare say that while it is not a matter which arises for decision, the State will examine without any delay the question of the payment of arises of salary, if any, and the finialisation and disbursement of the pensions to the appellant. | 0[ds]6. The second point is equally devoid of force. We have been taken through the record and counsel has been unsuccessful in making out a case of mala fides on the part of the second respondent. Indeed, in the High Court the latter had sworn an affidavit denying mala fides in the light of which the feeble material vaguely referred to for buildings up a case mala fides totally fails.7. The appeal, therefore, fails : It was mentioned at the bar that although two years had passed since retirement of the appellant some arrears of salary and his pension remain to be paid. It is an unfortunate declaration of duty on the part of the persons in charge to withhold payment of salary or fail to finalize pension papers expeditiously, particularly when an officer is retired and finds himself in sudden deprivation of his monthly resources. Any Government compassionate andwill not leave its public servants on retirement in the wintry cold. We dare say that while it is not a matter which arises for decision, the State will examine without any delay the question of the payment of arises of salary, if any, and the finialisation and disbursement of the pensions to the appellant. | 0 | 1,063 | 223 | ### 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:
Krishna Iyer J.1. The compulsory retirement of the appellant, by the first respondent, the State of Punjab, by Ext. A. dated January 11, 1974 was challenged before the High Court but rebuffed with merited brevity after the Court called for the reply of the respondents. The disappointed official has, by securing special leave under Art. 136, come up before this Court and urged in his appeal two week grounds which are too jejune to justify any course other than dismissal.2. The facts. - The appellant joined Government service as an Excise Officer in 1944 and spiraled up over the years from the rank of Sub-Inspector to that of Assistant Excise and Taxation Officer. Probably his record of service was not nullied but, in his later years in office since 1970 his record was a mixed one. Eventually when he was about to attain the age of 55. Government, exercising its power under R. 5.32 of the Punjab Civil Service Rules, gave three months notice of retirement on the termination of which, the order read :"You will be deemed to have retired from service, on the expiry of the aforesaid period."He completed the age of 55 on March 24, 1974 and the order was to take effect in April, that is to say, after he had completed the requisite age.3. The grounds. - Counsel for the appellant attacked the validity of the order Ext. A under two heads. He first contended that R. 5.32 of the relevant rules was quoted in the order but, in the counter affidavit of the State in this Court it was mentioned that the order was not passed under the rule. The second ground pressed was one of mala fides of the second respondent the Commissioner of Excise, at whose instance, according to the appellant, entries of bad record were made in his service sheets.4. We may examine the first ground briefly. True that the State Government has shown reminiscence in denying that the main order was passed under R. 5.32. On a closer and comprehensive study of the papers to is apparent what was meant was that Government passed the order under R. 5.32(c) and not under R. 5.32(b), This carelessness cannot certainly found to argument to invalidate the order. It is perfectly plain that there are two courses for Government to compulsorily retire an officer. The first one under R. 5.32(b) has to be involved when the officer "has not attained the age of 55 years. For exercising this power there are certain conditions mentioned in note to the said sub-rule. The other provision is R. 5.32(c) which applies when a Government employee "is retired by the appointing authority on or after he attains the age of 55 years." In this case only three months notice is called for and no other pre-conditions have to be fulfilled. However, which the notice is given under the age of 55 years is attained, the order shall take effect" from a date not earlier than the date on which the age 55 years is attained".5. The confusion which has encouraged the argument of the appellant stems from the counter-affidavit of the State and we do not permit ourselves to be misled by it. It is obvious that the order in question relies upon R. 5.32(c) although what is quoted is R. 5.32 simpliciter. The Officer was to have attained the age of 55 years before the three months period was to expire and so was perfectly in order to say that there is any blemish against the Government Servant relied upon by the State in retiring him. In those circumstances the order is good and is supportable on the strength of R. 5.32(c). We may mention that although R. 5.32(b) in the note attached to it expressly states that the right thunder will not are exercised except when it is in the public interest to dispense with the further services of Government employee, it is clear that all public power whether it be under R. 5.32(c) or under any other provision has to be exercised not for the private purpose of a higher official or even a minister. It has to be and shall be exercised only for further hence of public interest. The private appetite of the repository of a public power can never be satisfied without the order being castigated and voided as in excess of the legitimate purpose of the power. There is nothing to suggest that in the present case any such mischief has been perpetrated.6. The second point is equally devoid of force. We have been taken through the record and counsel has been unsuccessful in making out a case of mala fides on the part of the second respondent. Indeed, in the High Court the latter had sworn an affidavit denying mala fides in the light of which the feeble material vaguely referred to for buildings up a case mala fides totally fails.7. The appeal, therefore, fails : It was mentioned at the bar that although two years had passed since retirement of the appellant some arrears of salary and his pension remain to be paid. It is an unfortunate declaration of duty on the part of the persons in charge to withhold payment of salary or fail to finalize pension papers expeditiously, particularly when an officer is retired and finds himself in sudden deprivation of his monthly resources. Any Government compassionate and welfare-oriented, will not leave its public servants on retirement in the wintry cold. We dare say that while it is not a matter which arises for decision, the State will examine without any delay the question of the payment of arises of salary, if any, and the finialisation and disbursement of the pensions to the appellant.
### Response:
0
### Explanation:
6. The second point is equally devoid of force. We have been taken through the record and counsel has been unsuccessful in making out a case of mala fides on the part of the second respondent. Indeed, in the High Court the latter had sworn an affidavit denying mala fides in the light of which the feeble material vaguely referred to for buildings up a case mala fides totally fails.7. The appeal, therefore, fails : It was mentioned at the bar that although two years had passed since retirement of the appellant some arrears of salary and his pension remain to be paid. It is an unfortunate declaration of duty on the part of the persons in charge to withhold payment of salary or fail to finalize pension papers expeditiously, particularly when an officer is retired and finds himself in sudden deprivation of his monthly resources. Any Government compassionate andwill not leave its public servants on retirement in the wintry cold. We dare say that while it is not a matter which arises for decision, the State will examine without any delay the question of the payment of arises of salary, if any, and the finialisation and disbursement of the pensions to the appellant.
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Bombay Gas Co. Ltd Vs. Shridhar Bhau Parab | raising a question of law subsequently. It, therefore, held that it was open to it to consider the question whether the respondent was governed by the Factories Act. It then went on to consider that question and held that the respondent was governed by the Factories Act and directed payment of a certain amount as delayed and deducted wages and also awarded a small compensation.6. In the present appeal before us the learned Attorney-General has relied on the award of 1953; but his contention is some what different from what was urged before the Authority. He contends that as the award of 1953 is still in force and has not been terminated under S. 19(6) of the Industrial Disputes Act, the application before the Authority was not maintainable and the Authority had no jurisdiction to decide it. It is further contended that in any case the decision of the Authority that the respondent was governed by S. 59of the Factories Act is incorrect.7. The first question therefore is whether the Authority had jurisdiction to entertain and decide the matter in view of the fact that the award of 1953 is still in force and has not been terminated. The question whether these workmen should get overtime wages in the same way as workers governed by the Factories Act was considered in the reference which resulted in the award of 1953. If these workmen had been governed by S. 59 of the Factories Act, there would have been no difficulty and the tribunal would have given an award as desired in their favour. But before the tribunal it was conceded that these workmen were not covered by S. 59 of the Factories Act and the claim for the same overtime wages as those payable to workers under the Factories Act was based on the ground that there was no reason for any distinction between the two sets of workmen. The tribunal considered the matter and naturally held on the basis of the concession made before it that these workmen were not covered by the Factories Act. It then considered the demand on merit and rejected it except that dearness allowance was also ordered to be paid in addition to extra basic wages for work done on Sundays falling within the meter reading period of these workmen at the end of the month. In effect therefore the decision of the tribunal was that these workmen were not covered by the Factories Act and were only entitled to a certain concession which it granted them. That award is still in force as it has not been terminated under S. 19(6) of the Industrial Dispute Act. So long therefore as that award remains in force it must be held that these workmen, including the respondent are not governed by the Factories Act and are not entitled to the benefits thereof and can only claim what the tribunal awarded them in 1953. It cannot be disputed that the tribunal had the jurisdiction to decide the question referred to it and though in the present case its decision that these workmen were not governed by the Factories Act was based on a concession it could have come to same decision even without the concession. In these circumstances so long as the award of 1953 remains in force we cannot see how these workmen can go to the Authority and say that part of their overtime wages has been delayed or deducted when they have all along been paid in accordance with the award of 1953, which in effect is the contract governing the matter. It would be different if the conditions of service of these workmen had changed since the award of 1953, for in that event it may be that on a change of conditions of service a case may be made out for reconsideration of the question whether these workmen were entitled to the benefits of the Factories Act. But there is nothing on the record to show that there has been any change in the conditions of service since that award. Learned counsel for the respondent told us that there was some change in the conditions of service of these workmen at the end of 1956 or the beginning of 1957 and since then they were required to attend the Factory. As to that we say nothing because the record is silent on the point. But even if it be so, this change in the conditions of service cannot affect the present claim which is for a period from November 1955 to October 1956. So far therefore as the present claim is concerned the award which negatived the claim of these workmen (including the respondent) stands as a bar and we cannot see how in the face of that award the respondent can ask the Authority to over look that award which has not yet been terminated and hold that he is governed by the Factories Act. So long therefore as the award stands and so long as there is no proof that there has been a change in the conditions of service after the award necessitating reconsideration of the matter, the claim of the respondent for delayed or deducted wages when he has all along been paid in accordance with that award cannot be entertained and decided by the Authority. If this were permissible it would mean that the Authority under the Payment of Wages Act would be practically sitting in appeal on awards of industrial tribunals and upsetting them. This it cannot do so long as an award of an industrial tribunal which had jurisdiction to decide the matter remains in force. We are therefore of opinion that the appeal must be allowed on the ground that the Authority had no jurisdiction to entertain the application and decide it. It is therefore not necessary to consider the other point raised by the learned Attorney-General, namely, whether the respondent was in fact a worker at the relevant time under the Factories Act. | 1[ds]e first question therefore is whether the Authority had jurisdiction to entertain and decide the matter in view of the fact that the award of 1953 is still in force and has not been terminated.The question whether these workmen should get overtime wages in the same way as workers governed by the Factories Act was considered in the reference which resulted in the award of 1953. If these workmen had been governed by S. 59 of the Factories Act, there would have been no difficulty and the tribunal would have given an award as desired in their favour. But before the tribunal it was conceded that these workmen were not covered by S. 59 of the Factories Act and the claim for the same overtime wages as those payable to workers under the Factories Act was based on the ground that there was no reason for any distinction between the two sets of workmen. The tribunal considered the matter and naturally held on the basis of the concession made before it that these workmen were not covered by the Factories Act. It then considered the demand on merit and rejected it except that dearness allowance was also ordered to be paid in addition to extra basic wages for work done on Sundays falling within the meter reading period of these workmen at the end of the month. In effect therefore the decision of the tribunal was that these workmen were not covered by the Factories Act and were only entitled to a certain concession which it granted them. That award is still in force as it has not been terminated under S. 19(6) of the Industrial Dispute Act. So long therefore as that award remains in force it must be held that these workmen, including the respondent are not governed by the Factories Act and are not entitled to the benefits thereof and can only claim what the tribunal awarded them in 1953. It cannot be disputed that the tribunal had the jurisdiction to decide the question referred to it and though in the present case its decision that these workmen were not governed by the Factories Act was based on a concession it could have come to same decision even without the concession. In these circumstances so long as the award of 1953 remains in force we cannot see how these workmen can go to the Authority and say that part of their overtime wages has been delayed or deducted when they have all along been paid in accordance with the award of 1953, which in effect is the contract governing the matter. It would be different if the conditions of service of these workmen had changed since the award of 1953, for in that event it may be that on a change of conditions of service a case may be made out for reconsideration of the question whether these workmen were entitled to the benefits of the Factories Act. But there is nothing on the record to show that there has been any change in the conditions of service since that award. Learned counsel for the respondent told us that there was some change in the conditions of service of these workmen at the end of 1956 or the beginning of 1957 and since then they were required to attend the Factory. As to that we say nothing because the record is silent on the point. But even if it be so, this change in the conditions of service cannot affect the present claim which is for a period from November 1955 to October 1956. So far therefore as the present claim is concerned the award which negatived the claim of these workmen (including the respondent) stands as a bar and we cannot see how in the face of that award the respondent can ask the Authority to over look that award which has not yet been terminated and hold that he is governed by the Factories Act. So long therefore as the award stands and so long as there is no proof that there has been a change in the conditions of service after the award necessitating reconsideration of the matter, the claim of the respondent for delayed or deducted wages when he has all along been paid in accordance with that award cannot be entertained and decided by the Authority. If this were permissible it would mean that the Authority under the Payment of Wages Act would be practically sitting in appeal on awards of industrial tribunals and upsetting them. This it cannot do so long as an award of an industrial tribunal which had jurisdiction to decide the matter remains in force. We are therefore of opinion that the appeal must be allowed on the ground that the Authority had no jurisdiction to entertain the application and decide it. It is therefore not necessary to consider the other point raised by the learnednamely, whether the respondent was in fact a worker at the relevant time under the Factories Act. | 1 | 1,721 | 877 | ### 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:
raising a question of law subsequently. It, therefore, held that it was open to it to consider the question whether the respondent was governed by the Factories Act. It then went on to consider that question and held that the respondent was governed by the Factories Act and directed payment of a certain amount as delayed and deducted wages and also awarded a small compensation.6. In the present appeal before us the learned Attorney-General has relied on the award of 1953; but his contention is some what different from what was urged before the Authority. He contends that as the award of 1953 is still in force and has not been terminated under S. 19(6) of the Industrial Disputes Act, the application before the Authority was not maintainable and the Authority had no jurisdiction to decide it. It is further contended that in any case the decision of the Authority that the respondent was governed by S. 59of the Factories Act is incorrect.7. The first question therefore is whether the Authority had jurisdiction to entertain and decide the matter in view of the fact that the award of 1953 is still in force and has not been terminated. The question whether these workmen should get overtime wages in the same way as workers governed by the Factories Act was considered in the reference which resulted in the award of 1953. If these workmen had been governed by S. 59 of the Factories Act, there would have been no difficulty and the tribunal would have given an award as desired in their favour. But before the tribunal it was conceded that these workmen were not covered by S. 59 of the Factories Act and the claim for the same overtime wages as those payable to workers under the Factories Act was based on the ground that there was no reason for any distinction between the two sets of workmen. The tribunal considered the matter and naturally held on the basis of the concession made before it that these workmen were not covered by the Factories Act. It then considered the demand on merit and rejected it except that dearness allowance was also ordered to be paid in addition to extra basic wages for work done on Sundays falling within the meter reading period of these workmen at the end of the month. In effect therefore the decision of the tribunal was that these workmen were not covered by the Factories Act and were only entitled to a certain concession which it granted them. That award is still in force as it has not been terminated under S. 19(6) of the Industrial Dispute Act. So long therefore as that award remains in force it must be held that these workmen, including the respondent are not governed by the Factories Act and are not entitled to the benefits thereof and can only claim what the tribunal awarded them in 1953. It cannot be disputed that the tribunal had the jurisdiction to decide the question referred to it and though in the present case its decision that these workmen were not governed by the Factories Act was based on a concession it could have come to same decision even without the concession. In these circumstances so long as the award of 1953 remains in force we cannot see how these workmen can go to the Authority and say that part of their overtime wages has been delayed or deducted when they have all along been paid in accordance with the award of 1953, which in effect is the contract governing the matter. It would be different if the conditions of service of these workmen had changed since the award of 1953, for in that event it may be that on a change of conditions of service a case may be made out for reconsideration of the question whether these workmen were entitled to the benefits of the Factories Act. But there is nothing on the record to show that there has been any change in the conditions of service since that award. Learned counsel for the respondent told us that there was some change in the conditions of service of these workmen at the end of 1956 or the beginning of 1957 and since then they were required to attend the Factory. As to that we say nothing because the record is silent on the point. But even if it be so, this change in the conditions of service cannot affect the present claim which is for a period from November 1955 to October 1956. So far therefore as the present claim is concerned the award which negatived the claim of these workmen (including the respondent) stands as a bar and we cannot see how in the face of that award the respondent can ask the Authority to over look that award which has not yet been terminated and hold that he is governed by the Factories Act. So long therefore as the award stands and so long as there is no proof that there has been a change in the conditions of service after the award necessitating reconsideration of the matter, the claim of the respondent for delayed or deducted wages when he has all along been paid in accordance with that award cannot be entertained and decided by the Authority. If this were permissible it would mean that the Authority under the Payment of Wages Act would be practically sitting in appeal on awards of industrial tribunals and upsetting them. This it cannot do so long as an award of an industrial tribunal which had jurisdiction to decide the matter remains in force. We are therefore of opinion that the appeal must be allowed on the ground that the Authority had no jurisdiction to entertain the application and decide it. It is therefore not necessary to consider the other point raised by the learned Attorney-General, namely, whether the respondent was in fact a worker at the relevant time under the Factories Act.
### Response:
1
### Explanation:
e first question therefore is whether the Authority had jurisdiction to entertain and decide the matter in view of the fact that the award of 1953 is still in force and has not been terminated.The question whether these workmen should get overtime wages in the same way as workers governed by the Factories Act was considered in the reference which resulted in the award of 1953. If these workmen had been governed by S. 59 of the Factories Act, there would have been no difficulty and the tribunal would have given an award as desired in their favour. But before the tribunal it was conceded that these workmen were not covered by S. 59 of the Factories Act and the claim for the same overtime wages as those payable to workers under the Factories Act was based on the ground that there was no reason for any distinction between the two sets of workmen. The tribunal considered the matter and naturally held on the basis of the concession made before it that these workmen were not covered by the Factories Act. It then considered the demand on merit and rejected it except that dearness allowance was also ordered to be paid in addition to extra basic wages for work done on Sundays falling within the meter reading period of these workmen at the end of the month. In effect therefore the decision of the tribunal was that these workmen were not covered by the Factories Act and were only entitled to a certain concession which it granted them. That award is still in force as it has not been terminated under S. 19(6) of the Industrial Dispute Act. So long therefore as that award remains in force it must be held that these workmen, including the respondent are not governed by the Factories Act and are not entitled to the benefits thereof and can only claim what the tribunal awarded them in 1953. It cannot be disputed that the tribunal had the jurisdiction to decide the question referred to it and though in the present case its decision that these workmen were not governed by the Factories Act was based on a concession it could have come to same decision even without the concession. In these circumstances so long as the award of 1953 remains in force we cannot see how these workmen can go to the Authority and say that part of their overtime wages has been delayed or deducted when they have all along been paid in accordance with the award of 1953, which in effect is the contract governing the matter. It would be different if the conditions of service of these workmen had changed since the award of 1953, for in that event it may be that on a change of conditions of service a case may be made out for reconsideration of the question whether these workmen were entitled to the benefits of the Factories Act. But there is nothing on the record to show that there has been any change in the conditions of service since that award. Learned counsel for the respondent told us that there was some change in the conditions of service of these workmen at the end of 1956 or the beginning of 1957 and since then they were required to attend the Factory. As to that we say nothing because the record is silent on the point. But even if it be so, this change in the conditions of service cannot affect the present claim which is for a period from November 1955 to October 1956. So far therefore as the present claim is concerned the award which negatived the claim of these workmen (including the respondent) stands as a bar and we cannot see how in the face of that award the respondent can ask the Authority to over look that award which has not yet been terminated and hold that he is governed by the Factories Act. So long therefore as the award stands and so long as there is no proof that there has been a change in the conditions of service after the award necessitating reconsideration of the matter, the claim of the respondent for delayed or deducted wages when he has all along been paid in accordance with that award cannot be entertained and decided by the Authority. If this were permissible it would mean that the Authority under the Payment of Wages Act would be practically sitting in appeal on awards of industrial tribunals and upsetting them. This it cannot do so long as an award of an industrial tribunal which had jurisdiction to decide the matter remains in force. We are therefore of opinion that the appeal must be allowed on the ground that the Authority had no jurisdiction to entertain the application and decide it. It is therefore not necessary to consider the other point raised by the learnednamely, whether the respondent was in fact a worker at the relevant time under the Factories Act.
|
Life Insurnce Corporation Of India Vs. Vishwanath Verma | issued by the Life Insurance Corporation of India may be cited as an example, where agreement to pay specified amount if death occurs before expiration of one year and to renew and extend the insurance during successive years if required premiums were paid was held to be a contract of insurance for the term of one year only, with provisions for renewal for successive years (vi) Advance insurance, i. e., insurance providing for the payment to insured of a lump sum immediately for consideration of his agreeing to make certain periodical payments to insurer for a specified period or for the life of insured if his life should terminate before the end of that period. Examples of this kind of insurance may be found in contracts to furnish funds for the building of a house, to be repaid by monthly or quarterly instalments. which shall cases on death (vii) Joint-life insurance i. e., insurance on the joint-life of husband and wife, insurance money payable if death should occur to either of them (viii) Annuity insurance, i. e., insurance whereby insurer agrees to pay certain fixed sum as annuity by monthly payment either at the expiration of the specified period or earlier if death should occur to the insured 17. The Life Insurance Corporation of India undertakes various kinds of life insurance, of which mention may be made of - (1) Limited payment life insurance; (2) Endowment insurance; (3) Joint-life insurance; (4) Multi-purpose insurance;(5) Childrens deferred insurance; (6) Two-year temporary insurance; (7) Whole life insurance; (8) Double endowment insurance; (9) Triple benefit insurance; (10) Anticipated endowment insurance; (11) Convertible whole life insurance; (12) Special whole life insurance; (13) Annuity insurance including single premium to immediate or deferred annuity insurance and including single premium to immediate or deferred annuity insurance and educational annuity insurance; (14) Fixed-term marriage endowment insurance 18. We are unable to support the finding of the High Court. This scheme run by the Jabalpur Municipal Corporation is against the interest of the employees themselves since the payments under the scheme, whether on retirement or death, are not guaranteed either by the Jabalpur Municipal Corporation or by the Madhya Pradesh State Government19. Section 44 makes Life Insurance Corporation Act inapplicable in certain cases. Clause (f) of the said section will also not come to the rescue of the Jabalpur Municipal Corporation. That is evident from the following " (f) any scheme in existence on the appointed day or any scheme framed after the appointed day with the approval of the Central Government whereby, in consideration of certain compulsory deductions made by the Government from the salaries of its employees as part of the conditions of service, the payment of money is assured by Government on the death of the employee concerned or on the happening of any contingency dependent on his life;" * This is not a scheme run with the approval of the Central Government 20. The scheme may be similar to the one run by the Government of Madhya Pradesh but what requires to be carefully noted, is the scheme of the State Government will be eligible to exemption under Section 44(f) of the Act. Such an exemption is not available to the scheme of the Jabalpur Municipal Corporation 21. What remains now to be considered is whether the State Government could exercise its jurisdiction under Section 421 of the Madhya Pradesh Municipal Corporation Act, 1956. That section runs as follows "421. Power of Government to suspend any resolution or order. - (1) If, the Government is of opinion that the execution of any resolution or order of the Corporation or of any other authority or officer subordinate thereto or the doing of any act which is about to be done or is being done by or on behalf of the Corporation, is not in conformity with law or with the rules or bye-laws made thereunder, or is likely to lead to a breach of the peace or to cause injury or annoyance to public or to any class or body of persons or is likely to cause waste of or damage to Municipal funds, the Government may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act (2) A copy of such order of the Government shall be sent to the Corporation by the Government (3) On receipt of copy of the order as aforesaid, the Corporation may, if it is of opinion that the resolution, order or act is not in contravention or excess of the powers conferred by any law for the time being in force, or the execution of the resolution or the doing of the act is not likely to cause waste of or damage to the Municipal funds, make a representation to the Government against the said order (4) The Government may, after considering the said representation, either cancel, modify or confirm the order passed by it under Section 1 or take such other action in respect of the matter as may in the opinion of the Government be just or expedient having regard to all the circumstances of the case." * 22. The High Court is of the view that the scheme does not fall within the ambit of the above section. No question of municipal funds arises in this case as the scheme is wholly run on contributions made by the employees and not on the funds of the Jabalpur Municipal Corporation. Therefore, the State Government has no jurisdiction to cancel the Resolution23. A careful reading of sub-section (1) of Section 421 shows that if the doing an act which is not in conformity with law, certainly it could prohibit the doing of such an act. We have already found that the scheme is in violation of the Life Insurance Corporation Act, particularly Section 30. Therefore, the State Government is well empowered to invoke the power under Section 421. The exercise of such a power cannot be found fault with | 1[ds]It is clear the life insurance business in the country was run by a large number of private insurance companies. They were not managing the affairs honestly. As a result, the savings of a large number of policyholders were neither safe nor secure. It was in this background, with a view to provide security to policyholders and insurers the savings were employed inactivities and the life insurance business was nationalised in 1956 by establishing the Life Insurance Corporation of India16. As the Statement of Objects and Reasons clearly points out all the contracts for assurance executed by the Corporation are guaranteed by the Central Government. That is also evident from Section 37 of the Act. If, therefore, under Section 30 Life Insurance Corporation is to have the exclusive privilege of carrying on life insurance business in India, certainly it will be illegal on the part of the Jabalpur Municipal Corporation to run the said scheme. Unfortunately, the High Court has taken a narrow view as to the scope of life insurance. The High Court failed to note that there is a large variation of life insurance contracts built up by a combination in various ways of contracts. There may be insurance contracts providing for the payment of premium in the event of death or again there may be endowment contracts providing for payment in the event of survival of the assured for a particular term. Therefore, life insurance has a wide concept in modern days. Life insurance is designated by various names according to the nature of the terms and conditions of the different forms of contracts or policies. They may be(i) Endowment insurance, i. e., a contract to pay a fixed sum to insured if he survives for a specified period, or, if he dies within such period, to some other person nominated or indicated. Under this head includes childs endowment or deferred life insurance. Considerable difficulties have arisen with regard to the latter type of insurance as normally a person has no insurable interest in the life of his child and such a policy would, therefore, be illegal but when the policy is in the form now commonly current, the proposer will be regarded as holding the policy in trust for theWe are unable to support the finding of the High Court. This scheme run by the Jabalpur Municipal Corporation is against the interest of the employees themselves since the payments under the scheme, whether on retirement or death, are not guaranteed either by the Jabalpur Municipal Corporation or by the Madhya Pradesh State Government19. Section 44 makes Life Insurance Corporation Act inapplicable in certain cases. Clause (f) of the said section will also not come to the rescue of the Jabalpur Municipal Corporation.The scheme may be similar to the one run by the Government of Madhya Pradesh but what requires to be carefully noted, is the scheme of the State Government will be eligible to exemption under Section 44(f) of the Act. Such an exemption is not available to the scheme of the Jabalpur MunicipalThe High Court is of the view that the scheme does not fall within the ambit of the above section. No question of municipal funds arises in this case as the scheme is wholly run on contributions made by the employees and not on the funds of the Jabalpur Municipal Corporation. Therefore, the State Government has no jurisdiction to cancel the Resolution23. A careful reading of(1) of Section 421 shows that if the doing an act which is not in conformity with law, certainly it could prohibit the doing of such an act. We have already found that the scheme is in violation of the Life Insurance Corporation Act, particularly Section 30. Therefore, the State Government is well empowered to invoke the power under Section 421. The exercise of such a power cannot be found fault with | 1 | 4,318 | 706 | ### 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:
issued by the Life Insurance Corporation of India may be cited as an example, where agreement to pay specified amount if death occurs before expiration of one year and to renew and extend the insurance during successive years if required premiums were paid was held to be a contract of insurance for the term of one year only, with provisions for renewal for successive years (vi) Advance insurance, i. e., insurance providing for the payment to insured of a lump sum immediately for consideration of his agreeing to make certain periodical payments to insurer for a specified period or for the life of insured if his life should terminate before the end of that period. Examples of this kind of insurance may be found in contracts to furnish funds for the building of a house, to be repaid by monthly or quarterly instalments. which shall cases on death (vii) Joint-life insurance i. e., insurance on the joint-life of husband and wife, insurance money payable if death should occur to either of them (viii) Annuity insurance, i. e., insurance whereby insurer agrees to pay certain fixed sum as annuity by monthly payment either at the expiration of the specified period or earlier if death should occur to the insured 17. The Life Insurance Corporation of India undertakes various kinds of life insurance, of which mention may be made of - (1) Limited payment life insurance; (2) Endowment insurance; (3) Joint-life insurance; (4) Multi-purpose insurance;(5) Childrens deferred insurance; (6) Two-year temporary insurance; (7) Whole life insurance; (8) Double endowment insurance; (9) Triple benefit insurance; (10) Anticipated endowment insurance; (11) Convertible whole life insurance; (12) Special whole life insurance; (13) Annuity insurance including single premium to immediate or deferred annuity insurance and including single premium to immediate or deferred annuity insurance and educational annuity insurance; (14) Fixed-term marriage endowment insurance 18. We are unable to support the finding of the High Court. This scheme run by the Jabalpur Municipal Corporation is against the interest of the employees themselves since the payments under the scheme, whether on retirement or death, are not guaranteed either by the Jabalpur Municipal Corporation or by the Madhya Pradesh State Government19. Section 44 makes Life Insurance Corporation Act inapplicable in certain cases. Clause (f) of the said section will also not come to the rescue of the Jabalpur Municipal Corporation. That is evident from the following " (f) any scheme in existence on the appointed day or any scheme framed after the appointed day with the approval of the Central Government whereby, in consideration of certain compulsory deductions made by the Government from the salaries of its employees as part of the conditions of service, the payment of money is assured by Government on the death of the employee concerned or on the happening of any contingency dependent on his life;" * This is not a scheme run with the approval of the Central Government 20. The scheme may be similar to the one run by the Government of Madhya Pradesh but what requires to be carefully noted, is the scheme of the State Government will be eligible to exemption under Section 44(f) of the Act. Such an exemption is not available to the scheme of the Jabalpur Municipal Corporation 21. What remains now to be considered is whether the State Government could exercise its jurisdiction under Section 421 of the Madhya Pradesh Municipal Corporation Act, 1956. That section runs as follows "421. Power of Government to suspend any resolution or order. - (1) If, the Government is of opinion that the execution of any resolution or order of the Corporation or of any other authority or officer subordinate thereto or the doing of any act which is about to be done or is being done by or on behalf of the Corporation, is not in conformity with law or with the rules or bye-laws made thereunder, or is likely to lead to a breach of the peace or to cause injury or annoyance to public or to any class or body of persons or is likely to cause waste of or damage to Municipal funds, the Government may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act (2) A copy of such order of the Government shall be sent to the Corporation by the Government (3) On receipt of copy of the order as aforesaid, the Corporation may, if it is of opinion that the resolution, order or act is not in contravention or excess of the powers conferred by any law for the time being in force, or the execution of the resolution or the doing of the act is not likely to cause waste of or damage to the Municipal funds, make a representation to the Government against the said order (4) The Government may, after considering the said representation, either cancel, modify or confirm the order passed by it under Section 1 or take such other action in respect of the matter as may in the opinion of the Government be just or expedient having regard to all the circumstances of the case." * 22. The High Court is of the view that the scheme does not fall within the ambit of the above section. No question of municipal funds arises in this case as the scheme is wholly run on contributions made by the employees and not on the funds of the Jabalpur Municipal Corporation. Therefore, the State Government has no jurisdiction to cancel the Resolution23. A careful reading of sub-section (1) of Section 421 shows that if the doing an act which is not in conformity with law, certainly it could prohibit the doing of such an act. We have already found that the scheme is in violation of the Life Insurance Corporation Act, particularly Section 30. Therefore, the State Government is well empowered to invoke the power under Section 421. The exercise of such a power cannot be found fault with
### Response:
1
### Explanation:
It is clear the life insurance business in the country was run by a large number of private insurance companies. They were not managing the affairs honestly. As a result, the savings of a large number of policyholders were neither safe nor secure. It was in this background, with a view to provide security to policyholders and insurers the savings were employed inactivities and the life insurance business was nationalised in 1956 by establishing the Life Insurance Corporation of India16. As the Statement of Objects and Reasons clearly points out all the contracts for assurance executed by the Corporation are guaranteed by the Central Government. That is also evident from Section 37 of the Act. If, therefore, under Section 30 Life Insurance Corporation is to have the exclusive privilege of carrying on life insurance business in India, certainly it will be illegal on the part of the Jabalpur Municipal Corporation to run the said scheme. Unfortunately, the High Court has taken a narrow view as to the scope of life insurance. The High Court failed to note that there is a large variation of life insurance contracts built up by a combination in various ways of contracts. There may be insurance contracts providing for the payment of premium in the event of death or again there may be endowment contracts providing for payment in the event of survival of the assured for a particular term. Therefore, life insurance has a wide concept in modern days. Life insurance is designated by various names according to the nature of the terms and conditions of the different forms of contracts or policies. They may be(i) Endowment insurance, i. e., a contract to pay a fixed sum to insured if he survives for a specified period, or, if he dies within such period, to some other person nominated or indicated. Under this head includes childs endowment or deferred life insurance. Considerable difficulties have arisen with regard to the latter type of insurance as normally a person has no insurable interest in the life of his child and such a policy would, therefore, be illegal but when the policy is in the form now commonly current, the proposer will be regarded as holding the policy in trust for theWe are unable to support the finding of the High Court. This scheme run by the Jabalpur Municipal Corporation is against the interest of the employees themselves since the payments under the scheme, whether on retirement or death, are not guaranteed either by the Jabalpur Municipal Corporation or by the Madhya Pradesh State Government19. Section 44 makes Life Insurance Corporation Act inapplicable in certain cases. Clause (f) of the said section will also not come to the rescue of the Jabalpur Municipal Corporation.The scheme may be similar to the one run by the Government of Madhya Pradesh but what requires to be carefully noted, is the scheme of the State Government will be eligible to exemption under Section 44(f) of the Act. Such an exemption is not available to the scheme of the Jabalpur MunicipalThe High Court is of the view that the scheme does not fall within the ambit of the above section. No question of municipal funds arises in this case as the scheme is wholly run on contributions made by the employees and not on the funds of the Jabalpur Municipal Corporation. Therefore, the State Government has no jurisdiction to cancel the Resolution23. A careful reading of(1) of Section 421 shows that if the doing an act which is not in conformity with law, certainly it could prohibit the doing of such an act. We have already found that the scheme is in violation of the Life Insurance Corporation Act, particularly Section 30. Therefore, the State Government is well empowered to invoke the power under Section 421. The exercise of such a power cannot be found fault with
|
CANTONMENT BOARD,MEERUT Vs. AFZAL | date of the alleged constructions. It was pleaded that date of construction was not mentioned in the notice, as such, notice was barred by limitation. Another ground before the High Court was that notices were issued in a casual manner and inspite of submitting the reply to the show cause notices, the primary authority has not considered the replies and passed order, and even appellate authority has passed stereo type orders without giving any opportunity and fixing the date for hearing. First two grounds raised by the respondents – writ petitioners were not accepted but however High Court has held that reply filed by the respondents – original petitioners was not considered and no reasons were assigned for rejecting objections. Further, it is also held that the appellate authority has passed orders, which are more or less identical, and passed in a pre-determined manner without giving any opportunity of hearing. While quashing the impugned orders, High Court by impugned order dated 19.12.2013 left open to the appellants to proceed afresh in the light of observations made in the judgment.7. We have heard the learned counsel Ms. Rekha Pandey appearing for the appellants and also learned counsels appearing for the respondents in this group of cases.8. In these appeals, it is contended by learned counsel for the appellants that when constructions are made unauthorisedly without obtaining permission from the competent authority, it is always open for the . authorities to order for demolition of such constructions, which are raised illegally. Further it is submitted that inspite of giving several opportunities, respondents – original petitioners have not appeared before the appellate authority, as such, appellate authority has considered the matter on merits and passed the impugned order. It is further submitted that even the primary authority has issued notice under Section 185 of the 1924 Act after giving an opportunity by way of show cause notice. It is submitted that inspite of giving opportunity at the primary stage and the appellate stage, the High Court erroneously recorded the finding that orders are passed without giving opportunity and quashed the impugned orders in the writ petitions.9. On the other hand learned counsel appearing for the respondents have pleaded that either primary authority or appellate authority have not considered the objections raised by the appellants and impugned orders are passed. It is submitted that inspite of filing objections to the show cause notices, the Cantonment Executive Officer has not referred to such objections and issued notices under Section 185 of the 1924 Act for demolition. When appeals are preferred by availing the statutory remedy, as contemplated under the Act, even the appellate authority has not given an opportunity by fixing the date of hearing and passed the impugned stereo type orders rejecting the appeals preferred by the respondents. It is further submitted that there is no valid delegation to Cantonment Executive Officer at all and the impugned notices are issued without any jurisdiction.10. Having heard learned counsel for the parties, we have perused the impugned order passed by the High Court and other materials placed on record.11. At the outset, it is to be noticed that aggrieved by the common order passed by the High Court, Cantonment Board and others have filed appeals and there are no appeals filed by the respondents herein aggrieved by any of the findings recorded in the common impugned order. The jurisdiction questioned by the respondents and the authority of the appellants in issuing notice under Section 185 of the 1924 Act is rejected by the High Court. Similarly further plea of not taking action within a period of 12 months from the date of construction is also rejected by recording reasons. We do not find any error on such findings recorded by the High Court, more particularly in absence of any appeals preferred by the respondents – original petitioners. At the same time, we are of the view, valid and cogent reasons are recorded by the High Court for quashing the notices issued under Section 185 of the 1924 Act and orders by the appellate authority. Apart from the reasons assigned in the impugned order we have also verified the other material placed on record. So far as Afzal who is respondent in Civil Appeal No. 3814 of 2019 is concerned, show cause notice dated 22.08.2006 is issued alleging that he has constructed the shop no.53- 54 at Ghosi Mohalla, B.I. Bazar, Meerut Cantt., but same is not even referred to in the final notice issued on 02.09.2006. It is the case of the respondents that objections were filed, and their objections were also not considered. Having issued the show cause notice, the primary authority ought to have referred to such notice and objections, if any, to such notice, while issuing the final notice on 02.09.2006. It is clear that notices are issued mechanically and in a casual manner. Even the appellate authority, relying on the survey report dated 10.08.2006, has held that the respondent in Civil Appeal No.3814 of 2019 has raised unauthorised constructions on the first floor of the shop without taking any permission of the competent authority. Further, it is stated that such survey/inspection report is not furnished to the respondents at any point of time though such report is relied on for rejecting the appeals preferred by the respondents.12. While quashing the notices in the impugned order in the writ petitions filed before the High Court, High Court has left it open to the appellants to issue fresh notice and to pass appropriate orders by following procedure contemplated under law. In that view of the matter, while it is always open to the appellants to initiate fresh proceedings by issuing fresh show cause notices on the allegations made against the respondents, but at the same time having regard to reasons recorded in the impugned order passed by the High Court, we do not find any error in the order passed by the High Court so as to interfere with the same in these appeals. | 0[ds]11. At the outset, it is to be noticed that aggrieved by the common order passed by the High Court, Cantonment Board and others have filed appeals and there are no appeals filed by the respondents herein aggrieved by any of the findings recorded in the common impugned order. The jurisdiction questioned by the respondents and the authority of the appellants in issuing notice under Section 185 of the 1924 Act is rejected by the High Court. Similarly further plea of not taking action within a period of 12 months from the date of construction is also rejected by recording reasons. We do not find any error on such findings recorded by the High Court, more particularly in absence of any appeals preferred by the respondents – original petitioners. At the same time, we are of the view, valid and cogent reasons are recorded by the High Court for quashing the notices issued under Section 185 of the 1924 Act and orders by the appellate authority. Apart from the reasons assigned in the impugned order we have also verified the other material placed on record. So far as Afzal who is respondent in Civil Appeal No. 3814 of 2019 is concerned, show cause notice dated 22.08.2006 is issued alleging that he has constructed the shop no.53- 54 at Ghosi Mohalla, B.I. Bazar, Meerut Cantt., but same is not even referred to in the final notice issued on 02.09.2006. It is the case of the respondents that objections were filed, and their objections were also not considered. Having issued the show cause notice, the primary authority ought to have referred to such notice and objections, if any, to such notice, while issuing the final notice on 02.09.2006. It is clear that notices are issued mechanically and in a casual manner. Even the appellate authority, relying on the survey report dated 10.08.2006, has held that the respondent in Civil Appeal No.3814 of 2019 has raised unauthorised constructions on the first floor of the shop without taking any permission of the competent authority. Further, it is stated that such survey/inspection report is not furnished to the respondents at any point of time though such report is relied on for rejecting the appeals preferred by the respondents.12. While quashing the notices in the impugned order in the writ petitions filed before the High Court, High Court has left it open to the appellants to issue fresh notice and to pass appropriate orders by following procedure contemplated under law. In that view of the matter, while it is always open to the appellants to initiate fresh proceedings by issuing fresh show cause notices on the allegations made against the respondents, but at the same time having regard to reasons recorded in the impugned order passed by the High Court, we do not find any error in the order passed by the High Court so as to interfere with the same in these appeals. | 0 | 1,704 | 530 | ### Instruction:
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date of the alleged constructions. It was pleaded that date of construction was not mentioned in the notice, as such, notice was barred by limitation. Another ground before the High Court was that notices were issued in a casual manner and inspite of submitting the reply to the show cause notices, the primary authority has not considered the replies and passed order, and even appellate authority has passed stereo type orders without giving any opportunity and fixing the date for hearing. First two grounds raised by the respondents – writ petitioners were not accepted but however High Court has held that reply filed by the respondents – original petitioners was not considered and no reasons were assigned for rejecting objections. Further, it is also held that the appellate authority has passed orders, which are more or less identical, and passed in a pre-determined manner without giving any opportunity of hearing. While quashing the impugned orders, High Court by impugned order dated 19.12.2013 left open to the appellants to proceed afresh in the light of observations made in the judgment.7. We have heard the learned counsel Ms. Rekha Pandey appearing for the appellants and also learned counsels appearing for the respondents in this group of cases.8. In these appeals, it is contended by learned counsel for the appellants that when constructions are made unauthorisedly without obtaining permission from the competent authority, it is always open for the . authorities to order for demolition of such constructions, which are raised illegally. Further it is submitted that inspite of giving several opportunities, respondents – original petitioners have not appeared before the appellate authority, as such, appellate authority has considered the matter on merits and passed the impugned order. It is further submitted that even the primary authority has issued notice under Section 185 of the 1924 Act after giving an opportunity by way of show cause notice. It is submitted that inspite of giving opportunity at the primary stage and the appellate stage, the High Court erroneously recorded the finding that orders are passed without giving opportunity and quashed the impugned orders in the writ petitions.9. On the other hand learned counsel appearing for the respondents have pleaded that either primary authority or appellate authority have not considered the objections raised by the appellants and impugned orders are passed. It is submitted that inspite of filing objections to the show cause notices, the Cantonment Executive Officer has not referred to such objections and issued notices under Section 185 of the 1924 Act for demolition. When appeals are preferred by availing the statutory remedy, as contemplated under the Act, even the appellate authority has not given an opportunity by fixing the date of hearing and passed the impugned stereo type orders rejecting the appeals preferred by the respondents. It is further submitted that there is no valid delegation to Cantonment Executive Officer at all and the impugned notices are issued without any jurisdiction.10. Having heard learned counsel for the parties, we have perused the impugned order passed by the High Court and other materials placed on record.11. At the outset, it is to be noticed that aggrieved by the common order passed by the High Court, Cantonment Board and others have filed appeals and there are no appeals filed by the respondents herein aggrieved by any of the findings recorded in the common impugned order. The jurisdiction questioned by the respondents and the authority of the appellants in issuing notice under Section 185 of the 1924 Act is rejected by the High Court. Similarly further plea of not taking action within a period of 12 months from the date of construction is also rejected by recording reasons. We do not find any error on such findings recorded by the High Court, more particularly in absence of any appeals preferred by the respondents – original petitioners. At the same time, we are of the view, valid and cogent reasons are recorded by the High Court for quashing the notices issued under Section 185 of the 1924 Act and orders by the appellate authority. Apart from the reasons assigned in the impugned order we have also verified the other material placed on record. So far as Afzal who is respondent in Civil Appeal No. 3814 of 2019 is concerned, show cause notice dated 22.08.2006 is issued alleging that he has constructed the shop no.53- 54 at Ghosi Mohalla, B.I. Bazar, Meerut Cantt., but same is not even referred to in the final notice issued on 02.09.2006. It is the case of the respondents that objections were filed, and their objections were also not considered. Having issued the show cause notice, the primary authority ought to have referred to such notice and objections, if any, to such notice, while issuing the final notice on 02.09.2006. It is clear that notices are issued mechanically and in a casual manner. Even the appellate authority, relying on the survey report dated 10.08.2006, has held that the respondent in Civil Appeal No.3814 of 2019 has raised unauthorised constructions on the first floor of the shop without taking any permission of the competent authority. Further, it is stated that such survey/inspection report is not furnished to the respondents at any point of time though such report is relied on for rejecting the appeals preferred by the respondents.12. While quashing the notices in the impugned order in the writ petitions filed before the High Court, High Court has left it open to the appellants to issue fresh notice and to pass appropriate orders by following procedure contemplated under law. In that view of the matter, while it is always open to the appellants to initiate fresh proceedings by issuing fresh show cause notices on the allegations made against the respondents, but at the same time having regard to reasons recorded in the impugned order passed by the High Court, we do not find any error in the order passed by the High Court so as to interfere with the same in these appeals.
### Response:
0
### Explanation:
11. At the outset, it is to be noticed that aggrieved by the common order passed by the High Court, Cantonment Board and others have filed appeals and there are no appeals filed by the respondents herein aggrieved by any of the findings recorded in the common impugned order. The jurisdiction questioned by the respondents and the authority of the appellants in issuing notice under Section 185 of the 1924 Act is rejected by the High Court. Similarly further plea of not taking action within a period of 12 months from the date of construction is also rejected by recording reasons. We do not find any error on such findings recorded by the High Court, more particularly in absence of any appeals preferred by the respondents – original petitioners. At the same time, we are of the view, valid and cogent reasons are recorded by the High Court for quashing the notices issued under Section 185 of the 1924 Act and orders by the appellate authority. Apart from the reasons assigned in the impugned order we have also verified the other material placed on record. So far as Afzal who is respondent in Civil Appeal No. 3814 of 2019 is concerned, show cause notice dated 22.08.2006 is issued alleging that he has constructed the shop no.53- 54 at Ghosi Mohalla, B.I. Bazar, Meerut Cantt., but same is not even referred to in the final notice issued on 02.09.2006. It is the case of the respondents that objections were filed, and their objections were also not considered. Having issued the show cause notice, the primary authority ought to have referred to such notice and objections, if any, to such notice, while issuing the final notice on 02.09.2006. It is clear that notices are issued mechanically and in a casual manner. Even the appellate authority, relying on the survey report dated 10.08.2006, has held that the respondent in Civil Appeal No.3814 of 2019 has raised unauthorised constructions on the first floor of the shop without taking any permission of the competent authority. Further, it is stated that such survey/inspection report is not furnished to the respondents at any point of time though such report is relied on for rejecting the appeals preferred by the respondents.12. While quashing the notices in the impugned order in the writ petitions filed before the High Court, High Court has left it open to the appellants to issue fresh notice and to pass appropriate orders by following procedure contemplated under law. In that view of the matter, while it is always open to the appellants to initiate fresh proceedings by issuing fresh show cause notices on the allegations made against the respondents, but at the same time having regard to reasons recorded in the impugned order passed by the High Court, we do not find any error in the order passed by the High Court so as to interfere with the same in these appeals.
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State of Andhra Pradesh Vs. Transport Corporation of India Limited | 1. The only question for decision in this appeal by special leave is the correctness of the view taken by the High Court that the land held by a company has to be treated as the land held by individual shareholders and the same has to be divided among the shareholders for determining the surplus area under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short "the Act"). There is no dispute that a company is a "person" as defined in Section 3(o) of the Act and it is required to file the declaration according to Section 8 of the Act. That being so, for every purpose under the Act it is the company which has to be treated as the "person" and not the individual shareholders thereof. The view taken by the High Court that the individual shareholders and not the company itself are to be treated as holders of the land and division of the land has to be made between them is, therefore, incorrect for the purpose of determining the surplus land under the Act. The computation has to be made treating the company as a "person" and not its individual shareholders. | 1[ds]There is no dispute that a company is a "person" as defined in Section 3(o) of the Act and it is required to file the declaration according to Section 8 of the Act. That being so, for every purpose under the Act it is the company which has to be treated as the "person" and not the individual shareholders thereof. The view taken by the High Court that the individual shareholders and not the company itself are to be treated as holders of the land and division of the land has to be made between them is, therefore, incorrect for the purpose of determining the surplus land under the Act. The computation has to be made treating the company as a "person" and not its individual shareholders. | 1 | 224 | 147 | ### Instruction:
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1. The only question for decision in this appeal by special leave is the correctness of the view taken by the High Court that the land held by a company has to be treated as the land held by individual shareholders and the same has to be divided among the shareholders for determining the surplus area under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short "the Act"). There is no dispute that a company is a "person" as defined in Section 3(o) of the Act and it is required to file the declaration according to Section 8 of the Act. That being so, for every purpose under the Act it is the company which has to be treated as the "person" and not the individual shareholders thereof. The view taken by the High Court that the individual shareholders and not the company itself are to be treated as holders of the land and division of the land has to be made between them is, therefore, incorrect for the purpose of determining the surplus land under the Act. The computation has to be made treating the company as a "person" and not its individual shareholders.
### Response:
1
### Explanation:
There is no dispute that a company is a "person" as defined in Section 3(o) of the Act and it is required to file the declaration according to Section 8 of the Act. That being so, for every purpose under the Act it is the company which has to be treated as the "person" and not the individual shareholders thereof. The view taken by the High Court that the individual shareholders and not the company itself are to be treated as holders of the land and division of the land has to be made between them is, therefore, incorrect for the purpose of determining the surplus land under the Act. The computation has to be made treating the company as a "person" and not its individual shareholders.
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Uttar Pradesh Public Service Commission Vs. Surendra Kumar and Ors | R. Subhash Reddy, J.1. We have heard Sh. Rajiv Yadav, learned Counsel for Appellant and Sh. Alok Singh, learned Counsel for Respondents.2. This appeal is filed by the Uttar Pradesh Public Service Commission, aggrieved by the judgment and order dated 18.05.2018 passed by the High Court of Allahabad in Writ Petition No. 10180 of 2014. Necessary facts in brief, for disposal of this appeal are as under:3. U.P. Subordinate Service Selection Commission had initiated the process for selection of 178 posts of Sub Deputy Inspector of Schools. The said Commission advertised by issuing advertisement dated 04.08.2006 in various newspapers for selecting the candidates.4. After initiating the process of selection, U.P. Subordinate Service Selection Commision was dissolved by the order of the State Government, and the said process was entrusted to the Appellant, U.P. Public Service Commission. After completing the selection process, the results were declared on 06.05.2010 and recommendations were made by the Appellant Commission to State Government in respect of selected candidates by various letters in following manner:5. Altogether recommendations were made to fill up 176 vacancies. As evident from the counter affidavit, filed before the High Court, two posts were not filled, in view of directions issued by the High Court in Writ Petition No. 32960 of 2010. After receipt of recommendation for 176 candidates, the State Government issued appointment letters to them, but 7 out of them did not join. Therefore, their candidature was cancelled by order dated 18.04.2013.6. By letter dated 30.04.2013, Director of Education (Basic), requested the Appellant-Commission to send the names of 7 candidates in order of merit for appointment. The said request has been turned down by the Appellant-Commission vide letter dated 23.07.2013, stating that recommendation was mainly forwarded by the Commission on 12.08.2010 and the wait-list is to be operated within a period of one year, and the request for 7 more persons has been sent after 2 years 11 months.7. Referring to G. Os dated 29.08.1992, 31.01.1994 and 15.11.1999, it is stated that wait-list can be operated only for a period of one year and as the said period is expired, therefore, request from the Director of Education (Basic) for sending 7 more names was not accepted.8. The first Respondent herein, has filed Writ Petition before the High Court of Allahabad, for quashing of the communication dated 23.07.2013 issued by the Appellant-Commission with a further direction to the Appellant to forward additional names from the wait-list prepared for the post of Sub Deputy Inspector of Schools.9. The High Court, by judgment and order dated 18.05.2018, allowed the Writ Petition by quashing the communication dated 23.07.2013 and issued further direction to send the names of requisite number of candidates to Director of Education (Basic).10. In this appeal, it is the case of the Appellant-Commission that, for substantial number of vacancies recommendations were made vide letter dated 12.08.2010 and the life of wait-list is only one year, and such period has to be computed from the initial recommendation dated 12.08.2010. It is contended that High Court has committed error by computing the period of one year from the last recommendation made, vide letter dated 28.08.2012.11. On the other hand, it is contended by the learned Counsel Sh. Alok Singh, appearing for the Respondent/original Petitioner that the requisition was made for making selections for 178 number of posts and in the recommendation made vide letter dated 12.08.2010 only 156 names are recommended and thereafter further recommendations were made. As such, the period of one year is to be computed from the last recommendation but not from 12.08.2010. In support of his case, learned Counsel also relied on judgment of this Court dated 16.02.2004 rendered in C.A. No. 1035 of 2004 (Sheo Shyam and Ors. v. State of U.P. and Ors.).12. Having heard the learned Counsels on both sides, we have perused the order dated 18.05.2018 passed by the High Court and other material placed on record. For the purpose of operating wait-list, Government of Uttar Pradesh has issued instructions from time to time. It is clear from the various Government Orders that wait-list period is valid only for a period of one year. Though requisition is made for making selection for 178 number of posts, but Appellant-Commission, after declaring results of the examination, has made initial recommendation for substantive number of posts, i.e., 156 posts vide letter dated 12.08.2010. It appears that the said list is prepared by including candidates who have submitted all the requisite documents within the period prescribed. Further recommendations were also made, but there is no reason for not computing the period of one year from 12.08.2010. When recommendations were made for substantive number of posts on 12.08.2010, we are of the view that period of one year for operating wait-list is to be computed from 12.08.2010 but not from the last recommendation made for one post, vide letter dated 28.08.2012. The reason for restricting 156 names in the initial recommendation vide letter dated 12.08.2010, is explained in paragraph 11 of the counter affidavit filed before the High Court.13. We have also perused the judgment of this Court in Civil Appeal No. 1035 of 2004 dated 16.02.2004, relied on by the learned Counsel for the Respondent No. 1 but same would not render any assistance in support of his case having regard to fact situation in the said case. Office Memorandum dated 14.01.1999 which was interpreted, was categorical to the effect that period of one year is to be reckoned from last date of taking names from the waiting list. As such, it cannot be applied to the facts of the case at hand. | 1[ds]12. Having heard the learned Counsels on both sides, we have perused the order dated 18.05.2018 passed by the High Court and other material placed on record. For the purpose of operating wait-list, Government of Uttar Pradesh has issued instructions from time to time. It is clear from the various Government Orders that wait-list period is valid only for a period of one year. Though requisition is made for making selection for 178 number of posts, but Appellant-Commission, after declaring results of the examination, has made initial recommendation for substantive number of posts, i.e., 156 posts vide letter dated 12.08.2010. It appears that the said list is prepared by including candidates who have submitted all the requisite documents within the period prescribed. Further recommendations were also made, but there is no reason for not computing the period of one year from 12.08.2010. When recommendations were made for substantive number of posts on 12.08.2010, we are of the view that period of one year for operating wait-list is to be computed from 12.08.2010 but not from the last recommendation made for one post, vide letter dated 28.08.2012. The reason for restricting 156 names in the initial recommendation vide letter dated 12.08.2010, is explained in paragraph 11 of the counter affidavit filed before the High Court13. We have also perused the judgment of this Court in Civil Appeal No. 1035 of 2004 dated 16.02.2004, relied on by the learned Counsel for the Respondent No. 1 but same would not render any assistance in support of his case having regard to fact situation in the said case. Office Memorandum dated 14.01.1999 which was interpreted, was categorical to the effect that period of one year is to be reckoned from last date of taking names from the waiting list. As such, it cannot be applied to the facts of the case at hand. | 1 | 1,041 | 342 | ### Instruction:
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R. Subhash Reddy, J.1. We have heard Sh. Rajiv Yadav, learned Counsel for Appellant and Sh. Alok Singh, learned Counsel for Respondents.2. This appeal is filed by the Uttar Pradesh Public Service Commission, aggrieved by the judgment and order dated 18.05.2018 passed by the High Court of Allahabad in Writ Petition No. 10180 of 2014. Necessary facts in brief, for disposal of this appeal are as under:3. U.P. Subordinate Service Selection Commission had initiated the process for selection of 178 posts of Sub Deputy Inspector of Schools. The said Commission advertised by issuing advertisement dated 04.08.2006 in various newspapers for selecting the candidates.4. After initiating the process of selection, U.P. Subordinate Service Selection Commision was dissolved by the order of the State Government, and the said process was entrusted to the Appellant, U.P. Public Service Commission. After completing the selection process, the results were declared on 06.05.2010 and recommendations were made by the Appellant Commission to State Government in respect of selected candidates by various letters in following manner:5. Altogether recommendations were made to fill up 176 vacancies. As evident from the counter affidavit, filed before the High Court, two posts were not filled, in view of directions issued by the High Court in Writ Petition No. 32960 of 2010. After receipt of recommendation for 176 candidates, the State Government issued appointment letters to them, but 7 out of them did not join. Therefore, their candidature was cancelled by order dated 18.04.2013.6. By letter dated 30.04.2013, Director of Education (Basic), requested the Appellant-Commission to send the names of 7 candidates in order of merit for appointment. The said request has been turned down by the Appellant-Commission vide letter dated 23.07.2013, stating that recommendation was mainly forwarded by the Commission on 12.08.2010 and the wait-list is to be operated within a period of one year, and the request for 7 more persons has been sent after 2 years 11 months.7. Referring to G. Os dated 29.08.1992, 31.01.1994 and 15.11.1999, it is stated that wait-list can be operated only for a period of one year and as the said period is expired, therefore, request from the Director of Education (Basic) for sending 7 more names was not accepted.8. The first Respondent herein, has filed Writ Petition before the High Court of Allahabad, for quashing of the communication dated 23.07.2013 issued by the Appellant-Commission with a further direction to the Appellant to forward additional names from the wait-list prepared for the post of Sub Deputy Inspector of Schools.9. The High Court, by judgment and order dated 18.05.2018, allowed the Writ Petition by quashing the communication dated 23.07.2013 and issued further direction to send the names of requisite number of candidates to Director of Education (Basic).10. In this appeal, it is the case of the Appellant-Commission that, for substantial number of vacancies recommendations were made vide letter dated 12.08.2010 and the life of wait-list is only one year, and such period has to be computed from the initial recommendation dated 12.08.2010. It is contended that High Court has committed error by computing the period of one year from the last recommendation made, vide letter dated 28.08.2012.11. On the other hand, it is contended by the learned Counsel Sh. Alok Singh, appearing for the Respondent/original Petitioner that the requisition was made for making selections for 178 number of posts and in the recommendation made vide letter dated 12.08.2010 only 156 names are recommended and thereafter further recommendations were made. As such, the period of one year is to be computed from the last recommendation but not from 12.08.2010. In support of his case, learned Counsel also relied on judgment of this Court dated 16.02.2004 rendered in C.A. No. 1035 of 2004 (Sheo Shyam and Ors. v. State of U.P. and Ors.).12. Having heard the learned Counsels on both sides, we have perused the order dated 18.05.2018 passed by the High Court and other material placed on record. For the purpose of operating wait-list, Government of Uttar Pradesh has issued instructions from time to time. It is clear from the various Government Orders that wait-list period is valid only for a period of one year. Though requisition is made for making selection for 178 number of posts, but Appellant-Commission, after declaring results of the examination, has made initial recommendation for substantive number of posts, i.e., 156 posts vide letter dated 12.08.2010. It appears that the said list is prepared by including candidates who have submitted all the requisite documents within the period prescribed. Further recommendations were also made, but there is no reason for not computing the period of one year from 12.08.2010. When recommendations were made for substantive number of posts on 12.08.2010, we are of the view that period of one year for operating wait-list is to be computed from 12.08.2010 but not from the last recommendation made for one post, vide letter dated 28.08.2012. The reason for restricting 156 names in the initial recommendation vide letter dated 12.08.2010, is explained in paragraph 11 of the counter affidavit filed before the High Court.13. We have also perused the judgment of this Court in Civil Appeal No. 1035 of 2004 dated 16.02.2004, relied on by the learned Counsel for the Respondent No. 1 but same would not render any assistance in support of his case having regard to fact situation in the said case. Office Memorandum dated 14.01.1999 which was interpreted, was categorical to the effect that period of one year is to be reckoned from last date of taking names from the waiting list. As such, it cannot be applied to the facts of the case at hand.
### Response:
1
### Explanation:
12. Having heard the learned Counsels on both sides, we have perused the order dated 18.05.2018 passed by the High Court and other material placed on record. For the purpose of operating wait-list, Government of Uttar Pradesh has issued instructions from time to time. It is clear from the various Government Orders that wait-list period is valid only for a period of one year. Though requisition is made for making selection for 178 number of posts, but Appellant-Commission, after declaring results of the examination, has made initial recommendation for substantive number of posts, i.e., 156 posts vide letter dated 12.08.2010. It appears that the said list is prepared by including candidates who have submitted all the requisite documents within the period prescribed. Further recommendations were also made, but there is no reason for not computing the period of one year from 12.08.2010. When recommendations were made for substantive number of posts on 12.08.2010, we are of the view that period of one year for operating wait-list is to be computed from 12.08.2010 but not from the last recommendation made for one post, vide letter dated 28.08.2012. The reason for restricting 156 names in the initial recommendation vide letter dated 12.08.2010, is explained in paragraph 11 of the counter affidavit filed before the High Court13. We have also perused the judgment of this Court in Civil Appeal No. 1035 of 2004 dated 16.02.2004, relied on by the learned Counsel for the Respondent No. 1 but same would not render any assistance in support of his case having regard to fact situation in the said case. Office Memorandum dated 14.01.1999 which was interpreted, was categorical to the effect that period of one year is to be reckoned from last date of taking names from the waiting list. As such, it cannot be applied to the facts of the case at hand.
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United Commercial Bank Vs. Bank of India and Others | on a different footing. The letters conveyed a request to " negotiate the sight drafts for payment ".Thus, the payment of Rs. 36, 52, 960 against the first lot of 20 documents was " under reserve " and was also covered by the letter of guarantee or indemnity.57. As regards the second lot of 27 documents, the payment of Rs. 49, 31, 496 the appellant was not prepared to pay even " under reserve " because the Bihar Corporation had refused to accept the consignments on the ground not only of discrepancies but also because the mustard oil was not fit for human consumption. There was no question of the appellant paying this large sum of money except against the letter of guarantee or indemnity executed by the Bank of India. It was represented by the Bank of India that it had made arrangements for the due payment of the bills of exchange. When the bills of exchange were dishonoured on being presented on August 3, 1978, the amount of Rs. 49, 31, 496 became immediately repayable on demand.58. There still remains the question whether the court should interfere with an order of this nature. The courts powers under art. 136 of the Constitution are untrammelled, but they are subject to self-ordained restrictions. The court does not, as a matter of rule, interfere with inter-locutory orders, save under very exceptional circumstances.59. The grant of a temporary injunction by the High Court under O.39, rr. 1 and 2, CPC, appears to be wholly unwarranted. For reasons already stated, the appellant was well within its rights in making a recall of the amount of Rs. 85, 84, 456 paid " under reserve " and/or in terms of the letter of guarantee or indemnity. We fail to appreciate any justification for the grant of a temporary injunction to the plaintiffs, the effect of which virtually is to restrain a transaction between a banker and a banker. The courts view with disfavour the grant of such temporary injunction.60. In the instant case, the High Court has assumed that the plaintiffs had a prima facie case. It has not touched upon the question where the balance of convenience lay, nor has it dealt with the question whether or not the plaintiffs would be put to irreparable loss if there was no injunction granted. In dealing with the prima facie case, the High Court assumes that the appellant was in breach. There is no basis for this assumption at all. The High Court in this case has pre-judged the whole issue by holding that the appellant could not unilaterally impose the condition of payment " under reserve ", nor was it justified in holding that the documents were " clean ". The question whether the appellant was in breach is an issue to be tried in the suit. The question whether the documents were " clean " or " unclean " is a vexed question on which no opinion could be expressed at this stage. It is also premature at this stage to assume that there was no " due presentation " of the bills of exchange and their refusal.61. No injunction could be granted under O. 39, rr. 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether, in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom ? In view of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs.62. Even if there was a serious question to be tried, the High Court had to consider the balance of convenience. We have no doubt that there is no reason to prevent the appellant from recalling the amount of Rs. 85, 84, 456. The fact remains that the payment of Rs. 36, 52, 960 against the first lot of 20 documents made by the appellant to the Bank of India was a payment under reserve while that of Rs. 49, 31, 496 was also made under reserve as well as against the letter of guarantee or indemnity executed by it (the Bank of India). A payment " under reserve " is understood in banking transactions to mean that the recipient of money may not deem it as his own but must be prepared to return it on demand. The balance of convenience clearly lies in allowing the normal banking transactions to go forward. Furthermore, the plaintiffs have failed to establish that they would be put to an irreparable loss unless an interim injunction was granted.63. It was, however, tried to be impressed upon us that the balance of convenience lay in granting the injunction since the appellant would not be put to any loss because it had furnished the letter of guarantee against 100 per cent. margin, i.e., on deposit being made by the Bihar Corporation of Rs. 85, 84, 456 for meeting the payment to be made under the credit. It was also said that the effect of recalling Rs. 85, 84, 456 from the Bank of India will result in the plaintiffs facing a serious credit-freeze, as the Bank of India will, on its turn, recall the amount from the plaintiffs. We are afraid, these considerations cannot prevail. For all these reasons, we are constrained to hold that there was no justification for the High Court to grant a temporary injunction under O.39, rr. 1 and 2 of the CPC, 1908.64. | 1[ds]The relevant authorities uniformly lay down in dealing with commercial letters of credit that the documents tendered by the seller must comply with the terms of the letter of credit, and that the banker owes a duty to the buyer to ensure that the buyers instructions relative to the documents against which the letter of credit is to be honoured are compliedrelevant authorities uniformly lay down in dealing with commercial letters of credit that the documents tendered by the seller must comply with the terms of the letter of credit, and that the banker owes a duty to the buyer to ensure that the buyers instructions relative to the documents against which the letter of credit is to be honoured are compliedthe light of these principles, the rule is well established that a bank issuing or confirming a letter of credit is not concerned with the underlying contract between the buyer and seller. Duties of a bank under a letter of credit are created by the document itself, but in any case it has the power and is subject to the limitations which are given or imposed by it, in the absence of the appropriate provisions in the letter ofis somewhat unfortunate that the High Court should have granted a temporary injunction as it has done in this case, to restrain the appellant from making a recall of the amount of Rs. 85, 84, 456 from the Bank of India in terms of the letter of guarantee or indemnity executed by it. The courts usually refrain from granting injunction to restrain the performance of the contractual obligations arising out of a letter of credit or a bank guarantee between one bank and another. If such temporary injunctions were to be granted in a transaction between a banker and a banker, restraining a bank from recalling the amount due when payment is made under reserve to another bank or in terms of the letter of guarantee or credit executed by it, the whole banking system in the country wouldview of the bankers obligation under an irrevocable letter of credit to pay, his buyer-customer cannot instruct him not tois only in exceptional cases that the courts will interfere with the machinery of irrevocable obligations assumed by banks. They are the life blood of international commerce. Such obligations are regarded as collateral to the underlying rights and obligations between the merchants at either end of the banking chain. Except possibly in clear cases of fraud of which the banks have notice, the courts will leave the merchants to settle their disputes under the contracts by litigation or arbitration as available to them or as stipulated in the contracts. The courts are not concerned with their difficulties to enforce such claims ; these are risks which the merchants take. In this case the plaintiffs took the risk of the unconditional wording of the guarantees. The machinery and commitments of banks are on a different level. They must be allowed to be honoured, free from interference by the courts. Otherwise, trust in international commerce could be irreparablyis clear from the letters addressed by the appellant to the Bank of India on June 23, 27 and 28, 1978, that the payment of Rs. 36, 52, 960 by three cheques for Rs. 7, 29, 872, Rs. 12, 78, 536 and Rs. 16, 43, 833 were payments made under reserve. Admittedly, when these amounts were paid by the appellant to the Bank of India, the railway receipts were not clean because they contained the description " Sizola Brand Pure Mustard Oil Unrefined ". The appellant had taken the precaution of saying " Please note that the payment is made to you under reserve owing to the following discrepancies ". There was a foot-note added :" Please note that this payment is made to you subject to repayment on demand of the bill amount, without loss of exchange to ourselves plus interest and other charges incurred by us, and/or by our principals, if the documents are not acceptable to the openers or buyers in view of the discrepancies whatsoever ".It was also added :" Please also note that this reserve will remain in force until released by us in writing ".Acceptance of these amounts by the Bank of India on behalf of the plaintiffs was upon these terms. The Bank of India and the plaintiffs were thus fully aware that the appellant was not prepared to pay except " under reserve ". The plaintiffs in their letters addressed to the appellant dated June 22 and 23, 1978, had added in ink the post-script :" In case of discrepancies, pay to our bankers, Bank of India ". These letters were in respect of 11 out of 20 documents ; it is not suggested that others stand on a different footing. The letters conveyed a request to " negotiate the sight drafts for payment ".Thus, the payment of Rs. 36, 52, 960 against the first lot of 20 documents was " under reserve " and was also covered by the letter of guarantee orregards the second lot of 27 documents, the payment of Rs. 49, 31, 496 the appellant was not prepared to pay even " under reserve " because the Bihar Corporation had refused to accept the consignments on the ground not only of discrepancies but also because the mustard oil was not fit for human consumption. There was no question of the appellant paying this large sum of money except against the letter of guarantee or indemnity executed by the Bank of India. It was represented by the Bank of India that it had made arrangements for the due payment of the bills of exchange. When the bills of exchange were dishonoured on being presented on August 3, 1978, the amount of Rs. 49, 31, 496 became immediately repayable onstill remains the question whether the court should interfere with an order of this nature. The courts powers under art. 136 of the Constitution are untrammelled, but they are subject to self-ordained restrictions. The court does not, as a matter of rule, interfere with inter-locutory orders, save under very exceptionalgrant of a temporary injunction by the High Court under O.39, rr. 1 and 2,CPC, appears to be wholly unwarranted. For reasons already stated, the appellant was well within its rights in making a recall of the amount of Rs. 85, 84, 456 paid " under reserve " and/or in terms of the letter of guarantee or indemnity. We fail to appreciate any justification for the grant of a temporary injunction to the plaintiffs, the effect of which virtually is to restrain a transaction between a banker and a banker. The courts view with disfavour the grant of such temporarythe instant case, the High Court has assumed that the plaintiffs had a prima facie case. It has not touched upon the question where the balance of convenience lay, nor has it dealt with the question whether or not the plaintiffs would be put to irreparable loss if there was no injunction granted. In dealing with the prima facie case, the High Court assumes that the appellant was in breach. There is no basis for this assumption at all. The High Court in this case has pre-judged the whole issue by holding that the appellant could not unilaterally impose the condition of payment " under reserve ", nor was it justified in holding that the documents were " clean ". The question whether the appellant was in breach is an issue to be tried in the suit. The question whether the documents were " clean " or " unclean " is a vexed question on which no opinion could be expressed at this stage. It is also premature at this stage to assume that there was no " due presentation " of the bills of exchange and theirinjunction could be granted under O. 39, rr. 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether, in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom ? In view of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by theif there was a serious question to be tried, the High Court had to consider the balance of convenience. We have no doubt that there is no reason to prevent the appellant from recalling the amount of Rs. 85, 84, 456. The fact remains that the payment of Rs. 36, 52, 960 against the first lot of 20 documents made by the appellant to the Bank of India was a payment under reserve while that of Rs. 49, 31, 496 was also made under reserve as well as against the letter of guarantee or indemnity executed by it (the Bank of India). A payment " under reserve " is understood in banking transactions to mean that the recipient of money may not deem it as his own but must be prepared to return it on demand. The balance of convenience clearly lies in allowing the normal banking transactions to go forward. Furthermore, the plaintiffs have failed to establish that they would be put to an irreparable loss unless an interim injunction waswas, however, tried to be impressed upon us that the balance of convenience lay in granting the injunction since the appellant would not be put to any loss because it had furnished the letter of guarantee against 100 per cent. margin, i.e., on deposit being made by the Bihar Corporation of Rs. 85, 84, 456 for meeting the payment to be made under the credit. It was also said that the effect of recalling Rs. 85, 84, 456 from the Bank of India will result in the plaintiffs facing a serious credit-freeze, as the Bank of India will, on its turn, recall the amount from the plaintiffs. We are afraid, these considerations cannot prevail. For all these reasons, we are constrained to hold that there was no justification for the High Court to grant a temporary injunction under O.39, rr. 1 and 2 of the | 1 | 11,080 | 1,943 | ### Instruction:
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on a different footing. The letters conveyed a request to " negotiate the sight drafts for payment ".Thus, the payment of Rs. 36, 52, 960 against the first lot of 20 documents was " under reserve " and was also covered by the letter of guarantee or indemnity.57. As regards the second lot of 27 documents, the payment of Rs. 49, 31, 496 the appellant was not prepared to pay even " under reserve " because the Bihar Corporation had refused to accept the consignments on the ground not only of discrepancies but also because the mustard oil was not fit for human consumption. There was no question of the appellant paying this large sum of money except against the letter of guarantee or indemnity executed by the Bank of India. It was represented by the Bank of India that it had made arrangements for the due payment of the bills of exchange. When the bills of exchange were dishonoured on being presented on August 3, 1978, the amount of Rs. 49, 31, 496 became immediately repayable on demand.58. There still remains the question whether the court should interfere with an order of this nature. The courts powers under art. 136 of the Constitution are untrammelled, but they are subject to self-ordained restrictions. The court does not, as a matter of rule, interfere with inter-locutory orders, save under very exceptional circumstances.59. The grant of a temporary injunction by the High Court under O.39, rr. 1 and 2, CPC, appears to be wholly unwarranted. For reasons already stated, the appellant was well within its rights in making a recall of the amount of Rs. 85, 84, 456 paid " under reserve " and/or in terms of the letter of guarantee or indemnity. We fail to appreciate any justification for the grant of a temporary injunction to the plaintiffs, the effect of which virtually is to restrain a transaction between a banker and a banker. The courts view with disfavour the grant of such temporary injunction.60. In the instant case, the High Court has assumed that the plaintiffs had a prima facie case. It has not touched upon the question where the balance of convenience lay, nor has it dealt with the question whether or not the plaintiffs would be put to irreparable loss if there was no injunction granted. In dealing with the prima facie case, the High Court assumes that the appellant was in breach. There is no basis for this assumption at all. The High Court in this case has pre-judged the whole issue by holding that the appellant could not unilaterally impose the condition of payment " under reserve ", nor was it justified in holding that the documents were " clean ". The question whether the appellant was in breach is an issue to be tried in the suit. The question whether the documents were " clean " or " unclean " is a vexed question on which no opinion could be expressed at this stage. It is also premature at this stage to assume that there was no " due presentation " of the bills of exchange and their refusal.61. No injunction could be granted under O. 39, rr. 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether, in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom ? In view of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs.62. Even if there was a serious question to be tried, the High Court had to consider the balance of convenience. We have no doubt that there is no reason to prevent the appellant from recalling the amount of Rs. 85, 84, 456. The fact remains that the payment of Rs. 36, 52, 960 against the first lot of 20 documents made by the appellant to the Bank of India was a payment under reserve while that of Rs. 49, 31, 496 was also made under reserve as well as against the letter of guarantee or indemnity executed by it (the Bank of India). A payment " under reserve " is understood in banking transactions to mean that the recipient of money may not deem it as his own but must be prepared to return it on demand. The balance of convenience clearly lies in allowing the normal banking transactions to go forward. Furthermore, the plaintiffs have failed to establish that they would be put to an irreparable loss unless an interim injunction was granted.63. It was, however, tried to be impressed upon us that the balance of convenience lay in granting the injunction since the appellant would not be put to any loss because it had furnished the letter of guarantee against 100 per cent. margin, i.e., on deposit being made by the Bihar Corporation of Rs. 85, 84, 456 for meeting the payment to be made under the credit. It was also said that the effect of recalling Rs. 85, 84, 456 from the Bank of India will result in the plaintiffs facing a serious credit-freeze, as the Bank of India will, on its turn, recall the amount from the plaintiffs. We are afraid, these considerations cannot prevail. For all these reasons, we are constrained to hold that there was no justification for the High Court to grant a temporary injunction under O.39, rr. 1 and 2 of the CPC, 1908.64.
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bankers, Bank of India ". These letters were in respect of 11 out of 20 documents ; it is not suggested that others stand on a different footing. The letters conveyed a request to " negotiate the sight drafts for payment ".Thus, the payment of Rs. 36, 52, 960 against the first lot of 20 documents was " under reserve " and was also covered by the letter of guarantee orregards the second lot of 27 documents, the payment of Rs. 49, 31, 496 the appellant was not prepared to pay even " under reserve " because the Bihar Corporation had refused to accept the consignments on the ground not only of discrepancies but also because the mustard oil was not fit for human consumption. There was no question of the appellant paying this large sum of money except against the letter of guarantee or indemnity executed by the Bank of India. It was represented by the Bank of India that it had made arrangements for the due payment of the bills of exchange. When the bills of exchange were dishonoured on being presented on August 3, 1978, the amount of Rs. 49, 31, 496 became immediately repayable onstill remains the question whether the court should interfere with an order of this nature. The courts powers under art. 136 of the Constitution are untrammelled, but they are subject to self-ordained restrictions. The court does not, as a matter of rule, interfere with inter-locutory orders, save under very exceptionalgrant of a temporary injunction by the High Court under O.39, rr. 1 and 2,CPC, appears to be wholly unwarranted. For reasons already stated, the appellant was well within its rights in making a recall of the amount of Rs. 85, 84, 456 paid " under reserve " and/or in terms of the letter of guarantee or indemnity. We fail to appreciate any justification for the grant of a temporary injunction to the plaintiffs, the effect of which virtually is to restrain a transaction between a banker and a banker. The courts view with disfavour the grant of such temporarythe instant case, the High Court has assumed that the plaintiffs had a prima facie case. It has not touched upon the question where the balance of convenience lay, nor has it dealt with the question whether or not the plaintiffs would be put to irreparable loss if there was no injunction granted. In dealing with the prima facie case, the High Court assumes that the appellant was in breach. There is no basis for this assumption at all. The High Court in this case has pre-judged the whole issue by holding that the appellant could not unilaterally impose the condition of payment " under reserve ", nor was it justified in holding that the documents were " clean ". The question whether the appellant was in breach is an issue to be tried in the suit. The question whether the documents were " clean " or " unclean " is a vexed question on which no opinion could be expressed at this stage. It is also premature at this stage to assume that there was no " due presentation " of the bills of exchange and theirinjunction could be granted under O. 39, rr. 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether, in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom ? In view of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by theif there was a serious question to be tried, the High Court had to consider the balance of convenience. We have no doubt that there is no reason to prevent the appellant from recalling the amount of Rs. 85, 84, 456. The fact remains that the payment of Rs. 36, 52, 960 against the first lot of 20 documents made by the appellant to the Bank of India was a payment under reserve while that of Rs. 49, 31, 496 was also made under reserve as well as against the letter of guarantee or indemnity executed by it (the Bank of India). A payment " under reserve " is understood in banking transactions to mean that the recipient of money may not deem it as his own but must be prepared to return it on demand. The balance of convenience clearly lies in allowing the normal banking transactions to go forward. Furthermore, the plaintiffs have failed to establish that they would be put to an irreparable loss unless an interim injunction waswas, however, tried to be impressed upon us that the balance of convenience lay in granting the injunction since the appellant would not be put to any loss because it had furnished the letter of guarantee against 100 per cent. margin, i.e., on deposit being made by the Bihar Corporation of Rs. 85, 84, 456 for meeting the payment to be made under the credit. It was also said that the effect of recalling Rs. 85, 84, 456 from the Bank of India will result in the plaintiffs facing a serious credit-freeze, as the Bank of India will, on its turn, recall the amount from the plaintiffs. We are afraid, these considerations cannot prevail. For all these reasons, we are constrained to hold that there was no justification for the High Court to grant a temporary injunction under O.39, rr. 1 and 2 of the
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A.K. Kaul & Another Vs. Union of India & Another | India, 1982(2) SCR 365, has observed that the following classes of documents are protected from disclosure :- "(i) Cabinet minutes, minutes of discussions between heads of departments, high level inter-departmental communications and dispatches from ambassadors abroad. (ii) Papers brought into existence for the purpose of preparing a submission to cabinet. (iii) Documents which relate to the framing of the Government policy at a high level. (iv) Notes and minutes made by the respective officers on the relevant files, information expressed or reports made and gist of official decisions reached. (v) Documents concerned with policy making within departments including minutes and the like by junior officials and correspondence with outside bodies. 36. The Tribunal, after examining the records produced before it, has observed that the records contained cabinet minutes, papers brought into existence for the purpose of preparing submission to the cabinet, notes made by the respective officers, information expressed and the gist of official decisions. Having regard to the fact that the appellants were working in a highly sensitive organisation entrusted with the delicate job of gathering, collecting and analysing intelligence necessary to maintain the unity, integrity and sovereignty of the country and that secrecy is the essence of the organisation and exposure may tend to demolish the organisation and aggravate the hazards in gathering information and dry up the sources that provide essential and sensitive information needed to protect public interest, the Tribunal has held that it will not be in public interest to permit disclosure of such documents. The Tribunal has, therefore, upheld the claim of privilege. We do not find any ground to take a different view in the matter. 37. After looking into the records the Tribunal has recorded the finding that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the materials relied upon for the satisfaction of the President have nothing to do with the activities of the appellants in relation to IBEA and that the impugned orders have not been passed in violation of the interim order passed by this Court in W.P.O. No.s 1119 of 1980 and that there is no substance in the appellants case that the orders of dismissal are not bona fide and had been passed to victimise the appellants for promoting and participating in the activities of IBEA. The learned Additional Solicitor General has submitted that the Tribunal has not committed any error in adopting this course and has placed reliance on the decision of the Court in Jamaat-e-Islamdi Hind v. Union of India, 1995(1) SCC 428. 38. In Jumaat-e-Islamdi Hind (supra) a notification had been issued by the Government of India under Section 3 of the Unlawful Activities (Prevention) Act, 1967 declaring that the Jamaat-e-Islamdi Hind was an unlawful Association. The said notification was referred for adjudication to the Tribunal constituted under the said Act. Before the Tribunal the only material produced by the Central Government was a resume prepared on the basis of some intelligence reports and the affidavits of two officers who spoke only on the basis of the records and not from personal knowledge. The Tribunal held that there was sufficient cause for declaring the Association to be unlawful and confirmed the notification. On behalf of the appellant it was urged that the only material produced at the inquiry does not constitute legal evidence for the purpose in as much as it was, at best, hearsay and that too without disclosing the source from which it emanates to give an opportunity to the appellant to effectively rebut the same. On the other hand, on behalf of the respondent it was submitted that the requirement of natural justice in such a situation was satisfied by mere disclosure of information without disclosing the source of the information. This Court, while holding that the minimum requirement of natural justice must be satisfied to make the adjudication meaningful, observed that the said requirement of natural justice in a case of this kind had to be tailored to safeguard public interest which must always out weigh every lesser interest. It was said : "It is obvious that the unlawful activities of an association may quite often be clandestine in nature and, therefore, the source of evidence of the unlawful activities may require continued confidentiality in public interest. In such a situation, disclosure of the source of such information, and, may be, also full particulars thereof, is likely to be against the public interest. ..............However, the non-disclosure of sensitive information and evidence to the association and its office-bearers, whenever justified in public interest, does not necessarily imply its non-disclosure to the Tribunal as well. [P. 447] 39. These observations in Jamaat-e-Islamdi Hind (supra) lend support to the view that in a case where the material is of such a nature that it requires continued confidentiality in public interest it would be permissible for the court or tribunal to look into the same while permitting the non-disclosure to the other party to the adjudication. It cannot, therefore, be said that the Tribunal, in the present case, was in error in looking into the record for the purpose of determining whether the satisfaction has been vitiated for any of the reasons mentioned by the appellants. 40. The learned counsel for the appellants have invited our attention to the averments contained in C.M. No. 8494 of 1980 filed on behalf of the respondent in W.P. No. 1117-19 of 1980 in this Court in support of their submission that the impugned orders of dismissal have been passed on the basis of the activities referred to in para 6 of the said application. This submission has to be rejected in view of the finding recorded by the Tribunal that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the said materials have nothing to do with the activities of the appellant in relation to IBEA. | 0[ds]In the light of the provisions contained in Article 74(2) and Article 163(3) it was submitted before the Court that leaving aside the advice given by the Ministers to the President or the Governor, the Government is bound to disclose at least the materials upon which the advice of Council of Ministers was based so that the court can examine whether the satisfaction of the President or the Governor, as the case may be, was arrived at mala fide or is based on wholly extraneous or irrelevant grounds so that such satisfaction would in law amount to no satisfaction at all and that if the Government does not voluntarily disclose such materials it can be compelled by the Court to do so11. It would thus appear that in Tulsiram Patel (supra) though the question whether the satisfaction of the President or the Governor under Article 311(2) is amenable to judicial review and the Government can be required to disclose the materials upon which the advice of the Council of Ministers was based so as to enable the court to exercise the power of judicial review has been left open, the Court, after considering the said material, has recorded the finding that the satisfaction of the Governor was neither recorded mala fide nor was it based on any extraneous or irrelevant ground12. It is, therefore, necessary to deal with this question in the instant case. We may, in this context, point out that a distinction has to be made between judicial review and justifiability of a particular action. In a written constitution the powers of the various organs of the State are limited by the provisions of the Constitution. The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions of the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touch stone of the Constitution in order to ensure that the authority exercising the power conferred by the Constitution does not transgress the limitations placed by the Constitution on exercise of that power. This power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justifiability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciableWe do not think so. Article 19(2) of the Constitution permits the State of impose, by law, reasonable restrictions in the interests of the security of the State on the exercise of the right to freedom of speech and expression conferred by sub-clause (a) of clause (1) of Article 19. The validity of the law imposing such restrictions under Article 19(2) is open to judicial review on the ground that the restrictions are not reasonable or they are not in the interests of the security of the State. The Court is required to adjudicate on the question whether a particular restriction on the right to freedom of speech and expression is reasonable in the interests of the security of the State and for that purpose the Court takes into consideration the interests of the security of the State and the need of the restrictions for protecting those interests. If the Courts are competent to adjudicate on matters relating to the security of the State in respect of restrictions on the right to freedom of speech and expression under Article 19(2) there appears to be no reason why the Courts should not be competent to go into the question whether the satisfaction of the President or the Governor for passing an order under Article 311(2)(c) is based on considerations having a bearing on the interests of the security of the State. While examining the validity of a law imposing restrictions on the right to freedom of speech and expression this Court has emphasised the distinction between security of the State and maintenance of public order and has observed that only serious and aggravated forms of public order which are calculated to en-danger the security of the State would fall within the ambit of clause (2) of Article 19. (See : Romesh Thapper v. The State of Madras, 1950 SCR 594, at p. 601). So also in Tulsiram Patel (supra) the Court has pointed out the distinction between the expressions `security of the State, `public order and `law and order and has stated that situations which affected public order are graver than those which affect law and order and situations which affect security of the State are graver than those which affect public order. The President or the Governor while exercising the power under Article 311(2)(c) has to bear in mind this distinction between situations which affect the security of the State and the situations which affect public order or law and order ran for the purpose of arriving at his satisfaction for the purpose of passing an order under Article 311(2)(c) the President or the Governor can take into consideration only those circumstances which have a bearing on the interests of the security of the State and not on situations having a bearing on law and order of public order. The satisfaction of the President or the Governor would be vitiated if it is based on circumstances having no bearing on the security of the State. If an order passed under Article 311(2)(c) is assailed before a court of law on the ground that the satisfaction of the President or the Governor is not based on circumstances which have a bearing on the security of the State the Court can examine the circumstances on which the satisfaction of the President or the Governor is based and if it finds that the said circumstances have no bearing on the security of the State the court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations31. We are, therefore, of the opinion that an order passed under clause (c) of the second proviso to Article 311(2) is subject to judicial review and its validity can be examined by the court on the ground that the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds within the limits laid down in S.R. Bommai (supra)32. In order that the Court is able to exercise this power of judicial review effectively it must have the necessary material before it to determine whether the satisfaction of the President or the Governor, as the case may be has been arrived at in accordance with the law and is not vitiated by mala fides or extraneous or irrelevant factors. This brings us to the question whether the Government is obligated to place such material before the Court. It is no doubt true that unlike clause (b) of the second proviso to Article 311 (2) which requires the authority to record in writing the reason for its satisfaction that it is not reasonably practicable to hold such inquiry, clause (c) of the second proviso does not prescribe for the recording of reasons for the satisfaction. But the absence of such a requirement to record reason for the satisfaction does not dispense with the obligation on the part of the concerned government to satisfy the court or the Tribunal if an order passed under clause (c) of the second proviso to Article 311(2) is challenged before such court or tribunal that the satisfaction was arrived at after taking into account relevant facts and circumstances and was not vitiated by mala fides and was not based on extraneous or irrelevant considerations. In the absence of the said circumstances being placed before the court or the Tribunal it may be possible for the concerned employee to establish his case that the satisfaction was vitiated by mala fides or was based on extraneous or irrelevant considerations. While exercising the power under Article 311 (2)(c) the President or the Governor acts in accordance with the advice tendered by the Council of MinistersArticle 74(2) and Article 163(3) which preclude the court from inquiring into the question whether any, and if so, what advice was tendered by the Ministers to the President or the Governor enable the concerned Government to withhold from the court the advice that was tendered by the Ministers to the President or the Governor. But, as laid down in S.R. Bommai (supra), the said provisions do not permit the Government to withhold production in the Court of the material on which the advice of the Ministers was based. This is, however, subject to the claim of privilege under Sections 123 and 124 of the Evidence Act in respect of a particular document or record. The said claim of privilege will have to be considered by the court or tribunal on its own merit. But the upholding of such claim for privilege would not stand in the way of the concerned Government being required to disclose the nature of the activities of the employee on the basis of which the satisfaction of the President or the Governor was arrived at for the purpose of passing an order under clause (c) of the second proviso to Article 311(2) so that the court or tribunal may be able to determine whether the said activities could be regarded as having a reasonable nexus with the interest of the security of the State. In the absence of any indication about the nature of the activities it would not be possible for the court of tribunal to determine whether the satisfaction was arrived at on the basis of relevant considerations. The nature of activities in which employee is said to have indulged in must be distinguished from the material which supports his having indulged in such activities. The non-disclosure of such material would be permissible if the claim of privilege is upheld. The said claim of privilege would not extend to the disclosure of the nature of the activities because such disclosure would not involve disclosure of any information connecting the employee with such activities or the source of such information33. In our opinion, therefore, in a case where the validity of an order passed under clause (c) of the second proviso to Article 311(2) is assailed before a court or a Tribunal it is open to the court or the Tribunal to examine whether the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds and for that purpose the Government is obliged to place before the court or tribunal the relevant material on the basis of which the satisfaction was arrived at subject to a claim of privilege under Sections 123 and 124 of the Evidence Act to withhold production of a particular document or record. Even in cases where such a privilege is claimed the Government concerned must disclose before the Court or Tribunal the nature of the activities in which the Government employee is said to have indulged in36. The Tribunal, after examining the records produced before it, has observed that the records contained cabinet minutes, papers brought into existence for the purpose of preparing submission to the cabinet, notes made by the respective officers, information expressed and the gist of official decisions. Having regard to the fact that the appellants were working in a highly sensitive organisation entrusted with the delicate job of gathering, collecting and analysing intelligence necessary to maintain the unity, integrity and sovereignty of the country and that secrecy is the essence of the organisation and exposure may tend to demolish the organisation and aggravate the hazards in gathering information and dry up the sources that provide essential and sensitive information needed to protect public interest, the Tribunal has held that it will not be in public interest to permit disclosure of such documents. The Tribunal has, therefore, upheld the claim of privilege. We do not find any ground to take a different view in the matter37. After looking into the records the Tribunal has recorded the finding that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the materials relied upon for the satisfaction of the President have nothing to do with the activities of the appellants in relation to IBEA and that the impugned orders have not been passed in violation of the interim order passed by this Court in W.P.O. No.s 1119 of 1980 and that there is no substance in the appellants case that the orders of dismissal are not bona fide and had been passed to victimise the appellants for promoting and participating in the activities of IBEA. The learned Additional Solicitor General has submitted that the Tribunal has not committed any error in adopting this course and has placed reliance on the decision of the Court in Jamaat-e-Islamdi Hind v. Union of India, 1995(1) SCC 42838. In Jumaat-e-Islamdi Hind (supra) a notification had been issued by the Government of India under Section 3 ofthe Unlawful Activities (Prevention) Act, 1967 declaring that the Jamaat-e-Islamdi Hind was an unlawful Association. The said notification was referred for adjudication to the Tribunal constituted under the said Act. Before the Tribunal the only material produced by the Central Government was a resume prepared on the basis of some intelligence reports and the affidavits of two officers who spoke only on the basis of the records and not from personal knowledge. The Tribunal held that there was sufficient cause for declaring the Association to be unlawful and confirmed the notificationThis Court, while holding that the minimum requirement of natural justice must be satisfied to make the adjudication meaningful, observed that the said requirement of natural justice in a case of this kind had to be tailored to safeguard public interest which must always out weigh every lesser interest39. These observations in Jamaat-e-Islamdi Hind (supra) lend support to the view that in a case where the material is of such a nature that it requires continued confidentiality in public interest it would be permissible for the court or tribunal to look into the same while permitting the non-disclosure to the other party to the adjudication. It cannot, therefore, be said that the Tribunal, in the present case, was in error in looking into the record for the purpose of determining whether the satisfaction has been vitiated for any of the reasons mentioned by the appellants40. The learned counsel for the appellants have invited our attention to the averments contained in C.M. No. 8494 of 1980 filed on behalf of the respondent in W.P. No. 1117-19 of 1980 in this Court in support of their submission that the impugned orders of dismissal have been passed on the basis of the activities referred to in para 6 of the said application. This submission has to be rejected in view of the finding recorded by the Tribunal that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the said materials have nothing to do with the activities of the appellant in relation to IBEA. | 0 | 10,700 | 2,872 | ### 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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India, 1982(2) SCR 365, has observed that the following classes of documents are protected from disclosure :- "(i) Cabinet minutes, minutes of discussions between heads of departments, high level inter-departmental communications and dispatches from ambassadors abroad. (ii) Papers brought into existence for the purpose of preparing a submission to cabinet. (iii) Documents which relate to the framing of the Government policy at a high level. (iv) Notes and minutes made by the respective officers on the relevant files, information expressed or reports made and gist of official decisions reached. (v) Documents concerned with policy making within departments including minutes and the like by junior officials and correspondence with outside bodies. 36. The Tribunal, after examining the records produced before it, has observed that the records contained cabinet minutes, papers brought into existence for the purpose of preparing submission to the cabinet, notes made by the respective officers, information expressed and the gist of official decisions. Having regard to the fact that the appellants were working in a highly sensitive organisation entrusted with the delicate job of gathering, collecting and analysing intelligence necessary to maintain the unity, integrity and sovereignty of the country and that secrecy is the essence of the organisation and exposure may tend to demolish the organisation and aggravate the hazards in gathering information and dry up the sources that provide essential and sensitive information needed to protect public interest, the Tribunal has held that it will not be in public interest to permit disclosure of such documents. The Tribunal has, therefore, upheld the claim of privilege. We do not find any ground to take a different view in the matter. 37. After looking into the records the Tribunal has recorded the finding that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the materials relied upon for the satisfaction of the President have nothing to do with the activities of the appellants in relation to IBEA and that the impugned orders have not been passed in violation of the interim order passed by this Court in W.P.O. No.s 1119 of 1980 and that there is no substance in the appellants case that the orders of dismissal are not bona fide and had been passed to victimise the appellants for promoting and participating in the activities of IBEA. The learned Additional Solicitor General has submitted that the Tribunal has not committed any error in adopting this course and has placed reliance on the decision of the Court in Jamaat-e-Islamdi Hind v. Union of India, 1995(1) SCC 428. 38. In Jumaat-e-Islamdi Hind (supra) a notification had been issued by the Government of India under Section 3 of the Unlawful Activities (Prevention) Act, 1967 declaring that the Jamaat-e-Islamdi Hind was an unlawful Association. The said notification was referred for adjudication to the Tribunal constituted under the said Act. Before the Tribunal the only material produced by the Central Government was a resume prepared on the basis of some intelligence reports and the affidavits of two officers who spoke only on the basis of the records and not from personal knowledge. The Tribunal held that there was sufficient cause for declaring the Association to be unlawful and confirmed the notification. On behalf of the appellant it was urged that the only material produced at the inquiry does not constitute legal evidence for the purpose in as much as it was, at best, hearsay and that too without disclosing the source from which it emanates to give an opportunity to the appellant to effectively rebut the same. On the other hand, on behalf of the respondent it was submitted that the requirement of natural justice in such a situation was satisfied by mere disclosure of information without disclosing the source of the information. This Court, while holding that the minimum requirement of natural justice must be satisfied to make the adjudication meaningful, observed that the said requirement of natural justice in a case of this kind had to be tailored to safeguard public interest which must always out weigh every lesser interest. It was said : "It is obvious that the unlawful activities of an association may quite often be clandestine in nature and, therefore, the source of evidence of the unlawful activities may require continued confidentiality in public interest. In such a situation, disclosure of the source of such information, and, may be, also full particulars thereof, is likely to be against the public interest. ..............However, the non-disclosure of sensitive information and evidence to the association and its office-bearers, whenever justified in public interest, does not necessarily imply its non-disclosure to the Tribunal as well. [P. 447] 39. These observations in Jamaat-e-Islamdi Hind (supra) lend support to the view that in a case where the material is of such a nature that it requires continued confidentiality in public interest it would be permissible for the court or tribunal to look into the same while permitting the non-disclosure to the other party to the adjudication. It cannot, therefore, be said that the Tribunal, in the present case, was in error in looking into the record for the purpose of determining whether the satisfaction has been vitiated for any of the reasons mentioned by the appellants. 40. The learned counsel for the appellants have invited our attention to the averments contained in C.M. No. 8494 of 1980 filed on behalf of the respondent in W.P. No. 1117-19 of 1980 in this Court in support of their submission that the impugned orders of dismissal have been passed on the basis of the activities referred to in para 6 of the said application. This submission has to be rejected in view of the finding recorded by the Tribunal that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the said materials have nothing to do with the activities of the appellant in relation to IBEA.
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to Article 311(2) so that the court or tribunal may be able to determine whether the said activities could be regarded as having a reasonable nexus with the interest of the security of the State. In the absence of any indication about the nature of the activities it would not be possible for the court of tribunal to determine whether the satisfaction was arrived at on the basis of relevant considerations. The nature of activities in which employee is said to have indulged in must be distinguished from the material which supports his having indulged in such activities. The non-disclosure of such material would be permissible if the claim of privilege is upheld. The said claim of privilege would not extend to the disclosure of the nature of the activities because such disclosure would not involve disclosure of any information connecting the employee with such activities or the source of such information33. In our opinion, therefore, in a case where the validity of an order passed under clause (c) of the second proviso to Article 311(2) is assailed before a court or a Tribunal it is open to the court or the Tribunal to examine whether the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds and for that purpose the Government is obliged to place before the court or tribunal the relevant material on the basis of which the satisfaction was arrived at subject to a claim of privilege under Sections 123 and 124 of the Evidence Act to withhold production of a particular document or record. Even in cases where such a privilege is claimed the Government concerned must disclose before the Court or Tribunal the nature of the activities in which the Government employee is said to have indulged in36. The Tribunal, after examining the records produced before it, has observed that the records contained cabinet minutes, papers brought into existence for the purpose of preparing submission to the cabinet, notes made by the respective officers, information expressed and the gist of official decisions. Having regard to the fact that the appellants were working in a highly sensitive organisation entrusted with the delicate job of gathering, collecting and analysing intelligence necessary to maintain the unity, integrity and sovereignty of the country and that secrecy is the essence of the organisation and exposure may tend to demolish the organisation and aggravate the hazards in gathering information and dry up the sources that provide essential and sensitive information needed to protect public interest, the Tribunal has held that it will not be in public interest to permit disclosure of such documents. The Tribunal has, therefore, upheld the claim of privilege. We do not find any ground to take a different view in the matter37. After looking into the records the Tribunal has recorded the finding that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the materials relied upon for the satisfaction of the President have nothing to do with the activities of the appellants in relation to IBEA and that the impugned orders have not been passed in violation of the interim order passed by this Court in W.P.O. No.s 1119 of 1980 and that there is no substance in the appellants case that the orders of dismissal are not bona fide and had been passed to victimise the appellants for promoting and participating in the activities of IBEA. The learned Additional Solicitor General has submitted that the Tribunal has not committed any error in adopting this course and has placed reliance on the decision of the Court in Jamaat-e-Islamdi Hind v. Union of India, 1995(1) SCC 42838. In Jumaat-e-Islamdi Hind (supra) a notification had been issued by the Government of India under Section 3 ofthe Unlawful Activities (Prevention) Act, 1967 declaring that the Jamaat-e-Islamdi Hind was an unlawful Association. The said notification was referred for adjudication to the Tribunal constituted under the said Act. Before the Tribunal the only material produced by the Central Government was a resume prepared on the basis of some intelligence reports and the affidavits of two officers who spoke only on the basis of the records and not from personal knowledge. The Tribunal held that there was sufficient cause for declaring the Association to be unlawful and confirmed the notificationThis Court, while holding that the minimum requirement of natural justice must be satisfied to make the adjudication meaningful, observed that the said requirement of natural justice in a case of this kind had to be tailored to safeguard public interest which must always out weigh every lesser interest39. These observations in Jamaat-e-Islamdi Hind (supra) lend support to the view that in a case where the material is of such a nature that it requires continued confidentiality in public interest it would be permissible for the court or tribunal to look into the same while permitting the non-disclosure to the other party to the adjudication. It cannot, therefore, be said that the Tribunal, in the present case, was in error in looking into the record for the purpose of determining whether the satisfaction has been vitiated for any of the reasons mentioned by the appellants40. The learned counsel for the appellants have invited our attention to the averments contained in C.M. No. 8494 of 1980 filed on behalf of the respondent in W.P. No. 1117-19 of 1980 in this Court in support of their submission that the impugned orders of dismissal have been passed on the basis of the activities referred to in para 6 of the said application. This submission has to be rejected in view of the finding recorded by the Tribunal that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the said materials have nothing to do with the activities of the appellant in relation to IBEA.
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TULSA DEVI NIROLA AND OTHERS Vs. RADHA NIROLA AND OTHERS | second marriage of respondent no.1 with the deceased, during the subsistence of the first therefore does not stand invalidated. The deceased had nominated the respondent alone under Rule 38 of the Pension Rules for receipt of the family pension. The deceased consciously did not nominate appellant no.1 for receipt of family pension or for equal share in the same in view of the partition deed where he equitably balanced the interest of both his wives. The column for family pension contained provision for more than one name, but the deceased consciously did not nominate appellant no.1. Rule 40(6) does not vest a statutory right in appellant no.1 to demand equal share in the family pension. It is conditional in nature, only if the employee nominates more than one wife for purposes of family pension. The deceased did not nominate the appellant, therefore she has no claim for family pension. The other appellants having become major have no claim for family pension. Reliance was placed on Vidhyadhari & Ors. vs. Sukhrana Bai & Ors., (2008) 2 SCC 238 , in support of the submission that the nomination in favour of the respondent to the exclusion of the appellant was valid. 5. The respective submissions on behalf of the parties and the relevant rules cited before us have been duly considered by us. 6. The deceased solemnized his second marriage with respondent no.1 on 09.05.1987. On that date the Hindu Marriage Act had not been brought into force in the State of Sikkim. Rule 27 of 1963 Rules reads as follows: 27. Nothing contained in this Rule shall effect the validity of any marriage not solemnized under its provisions; nor shall this Rule be, deemed directly or indirectly to affect the validity of any mode of contracting marriage. No material has been placed by the appellants that the second marriage was solemnized under 1963 Rules, and therefore, we have no hesitation in holding that it does not invalidate the second marriage of the deceased with respondent no.1. 7. The deceased was keen to ensure that in future disputes do not arise between his two wives and their progeny. He therefore, executed a settlement deed on 30.06.2008 between his two wives, both with regard to his movable and immovable properties. It is not the case of appellant no.1 that the settlement deed has not been acted upon or that she has not received her due share as provided therein. Having accepted and acted upon the deed it is not open to the appellant no.1 to now renegade from the same. 8. Family pension undoubtedly is not part of the estate of the deceased and will be regulated by the Pension Rules which confer a statuary right in the beneficiary eligible to the same. In Violet Issaac (supra), the family pension was sought to be paid to the brother of the deceased by virtue of nomination to the exclusion of the wife. The Rules did not provide for nomination but designated the person entitled to receive the family pension. It has therefore no application to the facts of the present case. 9. Rule 35 (5) provides that for the purpose of Rules 36, 37 and 38, family in relation to a government servant means wife or wives, including judicially separated wife. Rule 38 provides for nomination to be made by the government servant in Form 1 or 2 or 3 conferring on one or more persons, the right to receive death come retirement gratuity that may be due to him. In view of the partition deed the deceased while filling his nomination in the prescribed Form under Rule 38 mentioned the name of respondent no.1 only as the sole beneficiary of family pension. We are of the considered opinion that Rule 40(6) is conditional in nature and does not vest an automatic statutory right in appellant no.1 to equal share in the family pension. The family pension would be payable to more than one wife only if the government servant had made a nomination to that effect and which option was open to him under the Pension Rules. 40. Family Pension- (6) (a) (i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares…. 10. The Pension Rules therefore recognize the nomination of a wife or wives for the purpose of family pension. True, the family pension did not constitute a part of the estate of the deceased. If the settlement deed had not been executed and acted upon different considerations may have arisen. The right to family pension in more than one wife being conditional in nature and not absolute, in view of nomination in favour of respondent no.1 alone, appellant no 1 in the facts of the case can also be said to have waived her statutory right to pension in lieu of benefits received by her under the settlement deed. The deceased resided exclusively with respondent no.1 and occasionally visited appellant no.1. The deceased was exclusively taken care of by respondent no.1 during his illness including the expenditure incurred on his treatment. In view of the statutory rules, it is not possible to accept the argument that respondent no.1 was nominated only for purpose of receipt of the family pension and per force was required to share it equally with appellant no.1. 11. In Vidhyadhari (supra), this Court accepted the claim of the second wife to receive inter alia pension based on nomination since, like the present case, the deceased was residing with the second wife to the exclusion of the first. The grant of succession certificate to the second wife was held valid. However, to balance equities, this Court granted 1/5 th share to the first wife in the properties. We may have also considered the balancing the equities if the deceased had not executed a settlement deed with regard to his movable and immovable properties and which was accepted and acted upon by the appellant no.1. | 0[ds]No material has been placed by the appellants that the second marriage was solemnized under 1963 Rules, and therefore, we have no hesitation in holding that it does not invalidate the second marriage of the deceased with respondent no.17. The deceased was keen to ensure that in future disputes do not arise between his two wives and their progeny. He therefore, executed a settlement deed on 30.06.2008 between his two wives, both with regard to his movable and immovable properties. It is not the case of appellant no.1 that the settlement deed has not been acted upon or that she has not received her due share as provided therein. Having accepted and acted upon the deed it is not open to the appellant no.1 to now renegade from the same8. Family pension undoubtedly is not part of the estate of the deceased and will be regulated by the Pension Rules which confer a statuary right in the beneficiary eligible to the same. In Violet Issaac (supra), the family pension was sought to be paid to the brother of the deceased by virtue of nomination to the exclusion of the wife. The Rules did not provide for nomination but designated the person entitled to receive the family pension. It has therefore no application to the facts of the present caseIn view of the partition deed the deceased while filling his nomination in the prescribed Form under Rule 38 mentioned the name of respondent no.1 only as the sole beneficiary of family pension. We are of the considered opinion that Rule 40(6) is conditional in nature and does not vest an automatic statutory right in appellant no.1 to equal share in the family pension. The family pension would be payable to more than one wife only if the government servant had made a nomination to that effect and which option was open to him under the Pension Rules10. The Pension Rules therefore recognize the nomination of a wife or wives for the purpose of family pension. True, the family pension did not constitute a part of the estate of the deceased. If the settlement deed had not been executed and acted upon different considerations may have arisen. The right to family pension in more than one wife being conditional in nature and not absolute, in view of nomination in favour of respondent no.1 alone, appellant no 1 in the facts of the case can also be said to have waived her statutory right to pension in lieu of benefits received by her under the settlement deed. The deceased resided exclusively with respondent no.1 and occasionally visited appellant no.1. The deceased was exclusively taken care of by respondent no.1 during his illness including the expenditure incurred on his treatment. In view of the statutory rules, it is not possible to accept the argument that respondent no.1 was nominated only for purpose of receipt of the family pension and per force was required to share it equally with appellant no.111. In Vidhyadhari (supra), this Court accepted the claim of the second wife to receive inter alia pension based on nomination since, like the present case, the deceased was residing with the second wife to the exclusion of the first. The grant of succession certificate to the second wife was held valid. However, to balance equities, this Court granted 1/5 th share to the first wife in the properties. We may have also considered the balancing the equities if the deceased had not executed a settlement deed with regard to his movable and immovable properties and which was accepted and acted upon by the appellant no.1. | 0 | 1,665 | 648 | ### 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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second marriage of respondent no.1 with the deceased, during the subsistence of the first therefore does not stand invalidated. The deceased had nominated the respondent alone under Rule 38 of the Pension Rules for receipt of the family pension. The deceased consciously did not nominate appellant no.1 for receipt of family pension or for equal share in the same in view of the partition deed where he equitably balanced the interest of both his wives. The column for family pension contained provision for more than one name, but the deceased consciously did not nominate appellant no.1. Rule 40(6) does not vest a statutory right in appellant no.1 to demand equal share in the family pension. It is conditional in nature, only if the employee nominates more than one wife for purposes of family pension. The deceased did not nominate the appellant, therefore she has no claim for family pension. The other appellants having become major have no claim for family pension. Reliance was placed on Vidhyadhari & Ors. vs. Sukhrana Bai & Ors., (2008) 2 SCC 238 , in support of the submission that the nomination in favour of the respondent to the exclusion of the appellant was valid. 5. The respective submissions on behalf of the parties and the relevant rules cited before us have been duly considered by us. 6. The deceased solemnized his second marriage with respondent no.1 on 09.05.1987. On that date the Hindu Marriage Act had not been brought into force in the State of Sikkim. Rule 27 of 1963 Rules reads as follows: 27. Nothing contained in this Rule shall effect the validity of any marriage not solemnized under its provisions; nor shall this Rule be, deemed directly or indirectly to affect the validity of any mode of contracting marriage. No material has been placed by the appellants that the second marriage was solemnized under 1963 Rules, and therefore, we have no hesitation in holding that it does not invalidate the second marriage of the deceased with respondent no.1. 7. The deceased was keen to ensure that in future disputes do not arise between his two wives and their progeny. He therefore, executed a settlement deed on 30.06.2008 between his two wives, both with regard to his movable and immovable properties. It is not the case of appellant no.1 that the settlement deed has not been acted upon or that she has not received her due share as provided therein. Having accepted and acted upon the deed it is not open to the appellant no.1 to now renegade from the same. 8. Family pension undoubtedly is not part of the estate of the deceased and will be regulated by the Pension Rules which confer a statuary right in the beneficiary eligible to the same. In Violet Issaac (supra), the family pension was sought to be paid to the brother of the deceased by virtue of nomination to the exclusion of the wife. The Rules did not provide for nomination but designated the person entitled to receive the family pension. It has therefore no application to the facts of the present case. 9. Rule 35 (5) provides that for the purpose of Rules 36, 37 and 38, family in relation to a government servant means wife or wives, including judicially separated wife. Rule 38 provides for nomination to be made by the government servant in Form 1 or 2 or 3 conferring on one or more persons, the right to receive death come retirement gratuity that may be due to him. In view of the partition deed the deceased while filling his nomination in the prescribed Form under Rule 38 mentioned the name of respondent no.1 only as the sole beneficiary of family pension. We are of the considered opinion that Rule 40(6) is conditional in nature and does not vest an automatic statutory right in appellant no.1 to equal share in the family pension. The family pension would be payable to more than one wife only if the government servant had made a nomination to that effect and which option was open to him under the Pension Rules. 40. Family Pension- (6) (a) (i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares…. 10. The Pension Rules therefore recognize the nomination of a wife or wives for the purpose of family pension. True, the family pension did not constitute a part of the estate of the deceased. If the settlement deed had not been executed and acted upon different considerations may have arisen. The right to family pension in more than one wife being conditional in nature and not absolute, in view of nomination in favour of respondent no.1 alone, appellant no 1 in the facts of the case can also be said to have waived her statutory right to pension in lieu of benefits received by her under the settlement deed. The deceased resided exclusively with respondent no.1 and occasionally visited appellant no.1. The deceased was exclusively taken care of by respondent no.1 during his illness including the expenditure incurred on his treatment. In view of the statutory rules, it is not possible to accept the argument that respondent no.1 was nominated only for purpose of receipt of the family pension and per force was required to share it equally with appellant no.1. 11. In Vidhyadhari (supra), this Court accepted the claim of the second wife to receive inter alia pension based on nomination since, like the present case, the deceased was residing with the second wife to the exclusion of the first. The grant of succession certificate to the second wife was held valid. However, to balance equities, this Court granted 1/5 th share to the first wife in the properties. We may have also considered the balancing the equities if the deceased had not executed a settlement deed with regard to his movable and immovable properties and which was accepted and acted upon by the appellant no.1.
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No material has been placed by the appellants that the second marriage was solemnized under 1963 Rules, and therefore, we have no hesitation in holding that it does not invalidate the second marriage of the deceased with respondent no.17. The deceased was keen to ensure that in future disputes do not arise between his two wives and their progeny. He therefore, executed a settlement deed on 30.06.2008 between his two wives, both with regard to his movable and immovable properties. It is not the case of appellant no.1 that the settlement deed has not been acted upon or that she has not received her due share as provided therein. Having accepted and acted upon the deed it is not open to the appellant no.1 to now renegade from the same8. Family pension undoubtedly is not part of the estate of the deceased and will be regulated by the Pension Rules which confer a statuary right in the beneficiary eligible to the same. In Violet Issaac (supra), the family pension was sought to be paid to the brother of the deceased by virtue of nomination to the exclusion of the wife. The Rules did not provide for nomination but designated the person entitled to receive the family pension. It has therefore no application to the facts of the present caseIn view of the partition deed the deceased while filling his nomination in the prescribed Form under Rule 38 mentioned the name of respondent no.1 only as the sole beneficiary of family pension. We are of the considered opinion that Rule 40(6) is conditional in nature and does not vest an automatic statutory right in appellant no.1 to equal share in the family pension. The family pension would be payable to more than one wife only if the government servant had made a nomination to that effect and which option was open to him under the Pension Rules10. The Pension Rules therefore recognize the nomination of a wife or wives for the purpose of family pension. True, the family pension did not constitute a part of the estate of the deceased. If the settlement deed had not been executed and acted upon different considerations may have arisen. The right to family pension in more than one wife being conditional in nature and not absolute, in view of nomination in favour of respondent no.1 alone, appellant no 1 in the facts of the case can also be said to have waived her statutory right to pension in lieu of benefits received by her under the settlement deed. The deceased resided exclusively with respondent no.1 and occasionally visited appellant no.1. The deceased was exclusively taken care of by respondent no.1 during his illness including the expenditure incurred on his treatment. In view of the statutory rules, it is not possible to accept the argument that respondent no.1 was nominated only for purpose of receipt of the family pension and per force was required to share it equally with appellant no.111. In Vidhyadhari (supra), this Court accepted the claim of the second wife to receive inter alia pension based on nomination since, like the present case, the deceased was residing with the second wife to the exclusion of the first. The grant of succession certificate to the second wife was held valid. However, to balance equities, this Court granted 1/5 th share to the first wife in the properties. We may have also considered the balancing the equities if the deceased had not executed a settlement deed with regard to his movable and immovable properties and which was accepted and acted upon by the appellant no.1.
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R. POORNIMA & ORS. Vs. UNION OF INDIA & ORS. | that Article 217(2)(b) cannot be restricted to mean only those practising as advocates on the date of consideration. 38. But the above argument loses sight of the fact that Article 217(2)(b) relates to the stream of advocates. When it comes to such a stream, Explanation (aa) comes into play. Therefore, the reference to the discussions in the Drafting Committee is of no relevance. 39. As a matter of fact, the present Explanation (a) was inserted only by the Constitution (44 th Amendment) Act, 1978 with effect from 20.06.1979. What was Explanation (a) till then, became Explanation (aa) by the same Amendment. Therefore, the benefit of the present Explanation (a) was not even available to judicial officers until 20.06.1979. 40. Reliance is placed by the learned counsel for the petitioners upon the decision of this Court in Mahesh Chandra Gupta vs. Union of India (2009) 8 SCC 273 , and the decision of the Delhi High court in D.K. Sharma vs Union of India 2011 SCC Online Del 1773 in support of his contention that the entitlement to practise as an advocate was sufficient to satisfy the criteria under Article 217(2) and that the provision does not contemplate actual practice. 41. But both those decisions arose out of a challenge to the appointment of members of the Income Tax Appellate Tribunal as Judges of the High courts. These decisions cannot apply to the case of a person holding a judicial office. Mahesh Chandra Gupta (supra) was a case where the appointment of a Member of the Income Tax Appellate Tribunal as an Additional Judge of the Allahabad High Court was under challenge. As seen from Para 38 of the Report, what fell for consideration of this Court in the said case was whether actual practise as against the right to practise is a pre-requisite constitutional requirement of the eligibility criteria under Article 217(2)(b). Sub-clause (b) of Clause (2) of Article 217 prescribes the number of years a person should have been an Advocate to become eligible for consideration. Therefore, if the petitioners want to be considered from the category as advocates, irrespective of their present status as judicial officers, they can always do so, provided they do not stand in the queue intended for judicial officers. The case of the petitioners, as on date falls under Article 217(2)(a) and not Article 217(2)(b). Hence, Mahesh Chandra Gupta (supra) will not come to their rescue. The judgment of the Delhi High court in D.K. Sharma followed the ratio in Mahesh Chandra Gupta. 42. It is relevant to note that the expression judicial office appearing in Article 217(2)(a) was interpreted in Shri Kumar Padma Prasad vs. Union of India (1992) 2 SCC 428 ) only to mean a judicial office belonging to the judicial service defined in Article 236(b). Therefore, the case of a Member of Income Tax Appellate Tribunal could not have fallen within the ambit of Article 217(2)(a). This is why the decision in Mahesh Chandra Gupta (supra) was rendered in the context of Article 217(2)(b) and not Article 217(2)(a). 43. The words has held and the words has been appear repeatedly in sub-clauses (a) and (b) as well as Explanation (a) and (aa) under Article 217(2). In relation to a person from the category of judicial service, sub-clause (a) uses the words has held. But in relation to a person from the category of advocate, sub-clause (b) uses the words has been. This is quite relevant for the reason that even in Explanation (a) and (aa) the words has held always preceded the words judicial office and the words has been always preceded the word advocate. 44. In common parlance, the words has held stand in contra distinction to the words is holding or has been holding. 45. On the other hand the words has been do not have any such connotation. The Cambridge Dictionary states that the words has been are in present perfect continuous form. The Dictionary saysthat we may use the present perfect continuous, either to talk about a finished activity in the recent past or to talk about a single activity that began at a point in the past and is still continuing. Keeping this in mind, Explanation (a) confers the benefit of clubbing to a limited extent, to a person who has held a Judicial Office. To be eligible for the limited benefit so conferred, a person should have been an Advocate after he has held any judicial office. There is no confusion either in the language of Article 217(2) or in our mind. 46. The argument that it will be discriminatory to allow the benefit of clubbing only to a person who held a judicial office and later became an advocate, does not appeal to us. In fact, Article 217(2) does not guarantee any one with the right to be appointed as a judge of the High Court. In a way, a person holding a judicial office is better placed, as he is assured of a career progression (though in a limited sense) after being placed in something like a conveyor belt. There is no such assurance for an advocate. Therefore, the argument based upon Article 14 does not impress us. 47. It was also contended that a few persons whose names are mentioned in Paragraph 16 of the Writ Petition, got appointed to the High Court without completing 10 years of service as District Judges. But we do not know whether they got so appointed by clubbing the number of years of practise at the Bar. The factual situation that prevailed in those cases is not available. In any case a majority of those whose names are mentioned in Para 16 of the Writ Petition, got appointed to the High Court before Constitution (44 th Amendment) Act, 1978. Therefore, we do know what was done in those cases. 48. Therefore, in fine, we are of the considered view that the claim of the writ petitioners is wholly untenable and the writ petition is misconceived. | 0[ds]12. At the outset, we shall point out that the ratio laid down in P. Ramakrishnam Raju has no application to the issue on hand. The said decision was rendered in the context of advocates elevated to the benches of the High Courts, not being appropriately compensated in terms of pensionary benefits, when they retire after less than 7 years/10 years/14 years of service. We cannot apply the same ratio while considering the eligibility of a person for appointment as a Judge of the High Court.13. The reliance placed by the Writ Petitioners in Ground P of the Writ Petition on the reference made in Dheeraj Mor is of no use to them anymore. This is for the simple reason that by a judgment dated 19.02.2020, a 3-member bench of this Court has answered the reference, in a way that will negate the argument of the Petitioners.14. In Dheeraj Mor, three categories of persons came up with a claim for appointment to the post of District Judges by way of direct recruitment. They were,(i)those who had 7 years of practice as an advocate, but were serving in a judicial office on the date of application/appointment, (ii)those who had completed 7 years of service as Judicial Officers, but did not have 7 years of practice at the Bar, and (iii) those who wanted the number of years of practice as Advocate to be clubbed along with the number of years of service as a Judicial Officer, for the purpose of arriving at the eligibility criteria. After taking note of the diverse views expressed by different benches of this Court in earlier cases, a Division Bench of this Court passed an order on 23.01.2018 directing the matter to be placed before a larger bench.15. The Petitioners herein filed the present Writ Petition in September 2019. On the date on which the Petitioners filed the Writ Petition and on the date on which the Writ Petition came up for hearing, namely 06.12.2019, the reference in Dheeraj Mor was still pending. The question was therefore at large on the date when this court ordered notice in the present writ petition.16. But subsequently, the reference has been answered by a three- member bench of this court on 19.02.2020. The principles laid down by the three member bench, are as follows:(i) For the purpose of Article 233(2), an advocate has to be continuing in practice for not less than 7 years as on the cut-off date and also at the time of appointment as District Judge. Members of Judicial Service having 7 years experience of practice before they joined the service or those having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge, and(ii) The decision in Vijay Kumar Mishra vs. High Court of Judicature at Patna (2016) 9 SCC 313 upholding the eligibility of a Judicial Officer to apply for the post of District Judge by way of direct recruitment, does not lay down the law correctly and hence, overruled.17. Therefore, for the purpose of Article 233, it is not permissible anymore, for people to hop-on and hop-off between the two independent streams of recruitment, in the light of the law laid down in Dheeraj Mor. Hence the reliance placed by the Petitioners in their pleadings, on the reference pending at that time in Dheeraj Mor, has become irrelevant.18. Though Dheeraj Mor was concerned with Article 233 of the Constitution, an analogy was drawn by S. Ravindra Bhat, J. in Paragraph 34 of his separate but concurring opinion in Dheeraj Mor, to Article 217 with which we are concerned in the present case. Paragraph 34 of the said opinion reads as follows:34. This view is fortified by Article 217 (2), which spells out two sources from which appointments can be resorted to for the position of judge of a High Court: firstly, member of a judicial service of a State [Article 217 (a)] and an advocate with ten years experience [Article 217 (b)]. For the Supreme Court, Article 124 (3) (a) enables consideration of a person with five years experience as a High Court judge; Article 124(3)(b) enables consideration of an advocate with ten years experience at the bar in any High Court; Article 124(3)(c) enables consideration of a distinguished jurist. Significantly, advocates with stipulated experience at the bar are entitled, by express provisions of the Constitution [Articles 233 (2), Article 217 (b) and Article 124 (3) (b)] to be considered for appointment to the District Courts, High Courts and the Supreme Court, respectively. However, members of the judicial service can be considered only for appointment (by promotion) as District Judges, and as High Court judges, respectively. Members of the judicial service cannot be considered for appointment to the Supreme Court. Likewise, academics or distinguished jurists, with neither practise at the Bar, nor any experience in the judicial service, can be considered for appointment as District Judge, or as High Court judge.19. Therefore, the very foundation upon which the Petitioners have built their case, at least in their pleadings, is now gone.21. It is clear from the language of Article 217 that clause (1) merely prescribes the method of appointment and the age up to which an appointee can hold office. Clause (2) does two things. First it stipulates the qualification for appointment under the 2 sub-clauses (a) and (b). Then it stipulates the method of reckoning such qualification, under the 2 limbs of the Explanation.22. Actually, clause (2) of Article 217 has 2 parts, the first of which is in sub-clauses (a) and (b) and the second in Explanation (a) and (aa). The first indicates in plain terms, that to be qualified for appointment, a person (i) must be a citizen of India and (ii) must have either held a judicial office for 10 years or been an Advocate of a high court for 10 years.23. Suppose there was no Explanation under clause (2) of Article 217, then there would have been no scope for any argument, other than to accept blindly, that the qualification stipulated in clause (2) of Article 217, can be acquired by an individual from 2 separate sources, namely (i) from the Bar or (ii) from the judicial service, as defined in clause (b) of Article 236. This is for the reason that Sub-clauses (a) and (b) are actually in the alternative, as can be seen from the use of the word or in between. The word or in English grammar, according to Merriam-webster dictionary, is a coordinating conjunction. While the word and, which is also a conjunction, will denote something to be taken cumulatively, the word or will denote something to be taken alternatively. This is so far as the first part of clause (2) is concerned. As stated earlier, the first part of clause (2) is in sub-clauses (a) and (b).24. The second part of clause (2) of Article 217, which has taken shape in the form of an Explanation, merely explains the manner in which the periods indicated in sub-clauses (a) and (b) are to be construed. Interestingly, the Explanation under clause (2) of Article 217 also has 2 parts, one going with sub-clause (a) and another going with sub-clause (b).25. Explanation (a) goes with sub-clause (a) and Explanation (aa) goes with sub-clause (b). This is because, Explanation (a) permits the addition, to the number of years of service of a Judicial Officer, some other period also, namely (i) the period during which a person has been an advocate of a High Court, or (ii) the period during which a person has held the office of a member of a Tribunal. Similarly, Explanation (aa) permits the addition, to the number of years during which a person has been an advocate of a High court, some other period, namely the period during which he has held any judicial office or the office of a member of a Tribunal.26. According to Explanation (a), the period of service rendered by a person in a judicial office has to be computed by taking into account the period during which he has been an advocate of a high court.27. But the condition for such addition of some other period, under Explanation (a) is that such other period should have followed and not preceded the judicial service. This is made clear by the use of the words after he has held any judicial office.. We do not know of any rule of interpretation which permits the word after to be interpreted to mean and include before.29. The telescoping of Explanation (a) and (aa) into sub-clauses (a) and (b) of clause (2) of Article 217 would show that a person may acquire the eligibility as indicated in Article 217(2)-(i) either exclusively from the Bar [as provided in clause (b)](ii) or exclusively from the judicial service [as provided in clause (a)](iii) or from a cocktail of both [as provided in Explanation (a) and (aa)]30. But what is important to note is that Article 217(2) merely prescribes the eligibility criteria and the method of computation of the same. If a person is found to have satisfied the eligibility criteria, then he must take his place in one of the queues. There are 2 separate queues, one from judicial service and another from the Bar. One cannot stand in one queue by virtue of his status on the date of consideration of his name for elevation and at the same time keep a towel in the other queue, so that he can claim to be within the zone of consideration from either of the two or from a combination of both.31. The queue to which a person is assigned, depends upon his status on the date of consideration. If a person is an advocate on the date of consideration, he can take his place only in the queue meant for members of the Bar. Similarly, if a person is a judicial officer on the date of consideration, he shall take his chance only in the queue meant for service candidates.32. Hopping on and hopping off from one queue to the other, is not permissible. Today, if any of the petitioners cease to be Judicial Officers and become Advocates, they may be eligible to be considered against the quota intended for the Bar. But while continuing as Judicial Officers, they cannot seek to invoke Explanation (a) as it applies only to those who have become advocates after having held a judicial office.The petitioners successfully claimed and gained seniority over and above the contesting respondents, on the ground that they were directly recruited to the post of District Judges, before the contesting respondents got promoted as District Judges. In other words, for the purpose of seniority, the petitioners went solely by the date of recruitment to the cadre of District Judges and not (i) by the total length of service in a judicial office or (ii) by a combination of the number of years of practice at the bar and the number of years of judicial service. But for the purpose of determining the eligibility, they want to go by the total period of practice as an Advocate and the period of service in a judicial office. If clubbing is permitted, it should be permitted even for the contesting respondents, which if done, would upset even the seniority of the petitioners.34. Though Mr. Rakesh Dwivedi, learned Senior Counsel submitted that his clients cannot have any objection to the benefit of clubbing being granted even to the contesting respondents, we think it is an argument of convenience. For filling up the vacancies under the service quota, the collegiums of the High courts consider the ACRs and the judgments of the judicial officers, in the ratio of 1:3 or 1:5 or so. To undertake this exercise, the High courts maintain seniority lists of judicial officers. If there are 3 vacancies to be filled up, the profile of 9 or 15 senior-most officers are considered. If the argument of the petitioners is accepted and the contesting respondents are also granted the benefit of clubbing, they will be far seniors to the petitioners in terms of the total number of years of service both at the bar and in service. In such an event, the petitioners will not come anywhere near the zone of consideration (within the first 9 or 15). In every State, hundreds of judicial officers will satisfy the qualifying criteria, if the argument of the petitioners is accepted. Take for instance a case where a person is appointed as a District Judge after 10 years of practice at the Bar. If the contention of the petitioners is accepted, even such a person will be eligible from day one of his appointment as District Judge. Since all such persons cannot be considered for the limited number of vacancies, a seniority list is maintained and a particular number of officers are taken in the zone of consideration, depending upon the number of vacancies sought to be filled up under the quota. The cache in the argument of the petitioners is that for the purpose of seniority, they do not want any two services to be clubbed, but for the purpose of eligibility, they want even the practice at the Bar to be clubbed. This is nothing but a self- serving argument.35. As pointed out earlier, the petitioners were appointed in February 2011. They will be completing 10 years of service in a judicial office by February 2021. This is why, when this court ordered notice in this writ petition on 06.12.2019, they have agreed to delete prayer A and confine themselves to prayer B, which is just for returning the list of names recommended by the collegium of the Madras High court. Perhaps the petitioners have gained an impression that if the list of names already recommended is returned and the matter is taken up afresh after February 2021, they would have by then become eligible in terms of sub-clause (a) of clause (2) of Article 217 and at that time they can claim the benefit of seniority over and above the contesting respondents.37. On the basis of the above it is contended that Article 217(2)(b) cannot be restricted to mean only those practising as advocates on the date of consideration.38. But the above argument loses sight of the fact that Article 217(2)(b) relates to the stream of advocates. When it comes to such a stream, Explanation (aa) comes into play. Therefore, the reference to the discussions in the Drafting Committee is of no relevance.39. As a matter of fact, the present Explanation (a) was inserted only by the Constitution (44 th Amendment) Act, 1978 with effect from 20.06.1979. What was Explanation (a) till then, became Explanation (aa) by the same Amendment. Therefore, the benefit of the present Explanation (a) was not even available to judicial officers until 20.06.1979.40. Reliance is placed by the learned counsel for the petitioners upon the decision of this Court in Mahesh Chandra Gupta vs. Union of India (2009) 8 SCC 273 , and the decision of the Delhi High court in D.K. Sharma vs Union of India 2011 SCC Online Del 1773 in support of his contention that the entitlement to practise as an advocate was sufficient to satisfy the criteria under Article 217(2) and that the provision does not contemplate actual practice.41. But both those decisions arose out of a challenge to the appointment of members of the Income Tax Appellate Tribunal as Judges of the High courts. These decisions cannot apply to the case of a person holding a judicial office. Mahesh Chandra Gupta (supra) was a case where the appointment of a Member of the Income Tax Appellate Tribunal as an Additional Judge of the Allahabad High Court was under challenge. As seen from Para 38 of the Report, what fell for consideration of this Court in the said case was whether actual practise as against the right to practise is a pre-requisite constitutional requirement of the eligibility criteria under Article 217(2)(b). Sub-clause (b) of Clause (2) of Article 217 prescribes the number of years a person should have been an Advocate to become eligible for consideration. Therefore, if the petitioners want to be considered from the category as advocates, irrespective of their present status as judicial officers, they can always do so, provided they do not stand in the queue intended for judicial officers. The case of the petitioners, as on date falls under Article 217(2)(a) and not Article 217(2)(b). Hence, Mahesh Chandra Gupta (supra) will not come to their rescue. The judgment of the Delhi High court in D.K. Sharma followed the ratio in Mahesh Chandra Gupta.42. It is relevant to note that the expression judicial office appearing in Article 217(2)(a) was interpreted in Shri Kumar Padma Prasad vs. Union of India (1992) 2 SCC 428 ) only to mean a judicial office belonging to the judicial service defined in Article 236(b). Therefore, the case of a Member of Income Tax Appellate Tribunal could not have fallen within the ambit of Article 217(2)(a). This is why the decision in Mahesh Chandra Gupta (supra) was rendered in the context of Article 217(2)(b) and not Article 217(2)(a).43. The words has held and the words has been appear repeatedly in sub-clauses (a) and (b) as well as Explanation (a) and (aa) under Article 217(2). In relation to a person from the category of judicial service, sub-clause (a) uses the words has held. But in relation to a person from the category of advocate, sub-clause (b) uses the words has been. This is quite relevant for the reason that even in Explanation (a) and (aa) the words has held always preceded the words judicial office and the words has been always preceded the word advocate.Keeping this in mind, Explanation (a) confers the benefit of clubbing to a limited extent, to a person who has held a Judicial Office. To be eligible for the limited benefit so conferred, a person should have been an Advocate after he has held any judicial office. There is no confusion either in the language of Article 217(2) or in our mind.46. The argument that it will be discriminatory to allow the benefit of clubbing only to a person who held a judicial office and later became an advocate, does not appeal to us. In fact, Article 217(2) does not guarantee any one with the right to be appointed as a judge of the High Court. In a way, a person holding a judicial office is better placed, as he is assured of a career progression (though in a limited sense) after being placed in something like a conveyor belt. There is no such assurance for an advocate. Therefore, the argument based upon Article 14 does not impress us.47. It was also contended that a few persons whose names are mentioned in Paragraph 16 of the Writ Petition, got appointed to the High Court without completing 10 years of service as District Judges. But we do not know whether they got so appointed by clubbing the number of years of practise at the Bar. The factual situation that prevailed in those cases is not available. In any case a majority of those whose names are mentioned in Para 16 of the Writ Petition, got appointed to the High Court before Constitution (44 th Amendment) Act, 1978. Therefore, we do know what was done in those cases.48. Therefore, in fine, we are of the considered view that the claim of the writ petitioners is wholly untenable and the writ petition is misconceived. | 0 | 6,182 | 3,856 | ### Instruction:
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that Article 217(2)(b) cannot be restricted to mean only those practising as advocates on the date of consideration. 38. But the above argument loses sight of the fact that Article 217(2)(b) relates to the stream of advocates. When it comes to such a stream, Explanation (aa) comes into play. Therefore, the reference to the discussions in the Drafting Committee is of no relevance. 39. As a matter of fact, the present Explanation (a) was inserted only by the Constitution (44 th Amendment) Act, 1978 with effect from 20.06.1979. What was Explanation (a) till then, became Explanation (aa) by the same Amendment. Therefore, the benefit of the present Explanation (a) was not even available to judicial officers until 20.06.1979. 40. Reliance is placed by the learned counsel for the petitioners upon the decision of this Court in Mahesh Chandra Gupta vs. Union of India (2009) 8 SCC 273 , and the decision of the Delhi High court in D.K. Sharma vs Union of India 2011 SCC Online Del 1773 in support of his contention that the entitlement to practise as an advocate was sufficient to satisfy the criteria under Article 217(2) and that the provision does not contemplate actual practice. 41. But both those decisions arose out of a challenge to the appointment of members of the Income Tax Appellate Tribunal as Judges of the High courts. These decisions cannot apply to the case of a person holding a judicial office. Mahesh Chandra Gupta (supra) was a case where the appointment of a Member of the Income Tax Appellate Tribunal as an Additional Judge of the Allahabad High Court was under challenge. As seen from Para 38 of the Report, what fell for consideration of this Court in the said case was whether actual practise as against the right to practise is a pre-requisite constitutional requirement of the eligibility criteria under Article 217(2)(b). Sub-clause (b) of Clause (2) of Article 217 prescribes the number of years a person should have been an Advocate to become eligible for consideration. Therefore, if the petitioners want to be considered from the category as advocates, irrespective of their present status as judicial officers, they can always do so, provided they do not stand in the queue intended for judicial officers. The case of the petitioners, as on date falls under Article 217(2)(a) and not Article 217(2)(b). Hence, Mahesh Chandra Gupta (supra) will not come to their rescue. The judgment of the Delhi High court in D.K. Sharma followed the ratio in Mahesh Chandra Gupta. 42. It is relevant to note that the expression judicial office appearing in Article 217(2)(a) was interpreted in Shri Kumar Padma Prasad vs. Union of India (1992) 2 SCC 428 ) only to mean a judicial office belonging to the judicial service defined in Article 236(b). Therefore, the case of a Member of Income Tax Appellate Tribunal could not have fallen within the ambit of Article 217(2)(a). This is why the decision in Mahesh Chandra Gupta (supra) was rendered in the context of Article 217(2)(b) and not Article 217(2)(a). 43. The words has held and the words has been appear repeatedly in sub-clauses (a) and (b) as well as Explanation (a) and (aa) under Article 217(2). In relation to a person from the category of judicial service, sub-clause (a) uses the words has held. But in relation to a person from the category of advocate, sub-clause (b) uses the words has been. This is quite relevant for the reason that even in Explanation (a) and (aa) the words has held always preceded the words judicial office and the words has been always preceded the word advocate. 44. In common parlance, the words has held stand in contra distinction to the words is holding or has been holding. 45. On the other hand the words has been do not have any such connotation. The Cambridge Dictionary states that the words has been are in present perfect continuous form. The Dictionary saysthat we may use the present perfect continuous, either to talk about a finished activity in the recent past or to talk about a single activity that began at a point in the past and is still continuing. Keeping this in mind, Explanation (a) confers the benefit of clubbing to a limited extent, to a person who has held a Judicial Office. To be eligible for the limited benefit so conferred, a person should have been an Advocate after he has held any judicial office. There is no confusion either in the language of Article 217(2) or in our mind. 46. The argument that it will be discriminatory to allow the benefit of clubbing only to a person who held a judicial office and later became an advocate, does not appeal to us. In fact, Article 217(2) does not guarantee any one with the right to be appointed as a judge of the High Court. In a way, a person holding a judicial office is better placed, as he is assured of a career progression (though in a limited sense) after being placed in something like a conveyor belt. There is no such assurance for an advocate. Therefore, the argument based upon Article 14 does not impress us. 47. It was also contended that a few persons whose names are mentioned in Paragraph 16 of the Writ Petition, got appointed to the High Court without completing 10 years of service as District Judges. But we do not know whether they got so appointed by clubbing the number of years of practise at the Bar. The factual situation that prevailed in those cases is not available. In any case a majority of those whose names are mentioned in Para 16 of the Writ Petition, got appointed to the High Court before Constitution (44 th Amendment) Act, 1978. Therefore, we do know what was done in those cases. 48. Therefore, in fine, we are of the considered view that the claim of the writ petitioners is wholly untenable and the writ petition is misconceived.
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delete prayer A and confine themselves to prayer B, which is just for returning the list of names recommended by the collegium of the Madras High court. Perhaps the petitioners have gained an impression that if the list of names already recommended is returned and the matter is taken up afresh after February 2021, they would have by then become eligible in terms of sub-clause (a) of clause (2) of Article 217 and at that time they can claim the benefit of seniority over and above the contesting respondents.37. On the basis of the above it is contended that Article 217(2)(b) cannot be restricted to mean only those practising as advocates on the date of consideration.38. But the above argument loses sight of the fact that Article 217(2)(b) relates to the stream of advocates. When it comes to such a stream, Explanation (aa) comes into play. Therefore, the reference to the discussions in the Drafting Committee is of no relevance.39. As a matter of fact, the present Explanation (a) was inserted only by the Constitution (44 th Amendment) Act, 1978 with effect from 20.06.1979. What was Explanation (a) till then, became Explanation (aa) by the same Amendment. Therefore, the benefit of the present Explanation (a) was not even available to judicial officers until 20.06.1979.40. Reliance is placed by the learned counsel for the petitioners upon the decision of this Court in Mahesh Chandra Gupta vs. Union of India (2009) 8 SCC 273 , and the decision of the Delhi High court in D.K. Sharma vs Union of India 2011 SCC Online Del 1773 in support of his contention that the entitlement to practise as an advocate was sufficient to satisfy the criteria under Article 217(2) and that the provision does not contemplate actual practice.41. But both those decisions arose out of a challenge to the appointment of members of the Income Tax Appellate Tribunal as Judges of the High courts. These decisions cannot apply to the case of a person holding a judicial office. Mahesh Chandra Gupta (supra) was a case where the appointment of a Member of the Income Tax Appellate Tribunal as an Additional Judge of the Allahabad High Court was under challenge. As seen from Para 38 of the Report, what fell for consideration of this Court in the said case was whether actual practise as against the right to practise is a pre-requisite constitutional requirement of the eligibility criteria under Article 217(2)(b). Sub-clause (b) of Clause (2) of Article 217 prescribes the number of years a person should have been an Advocate to become eligible for consideration. Therefore, if the petitioners want to be considered from the category as advocates, irrespective of their present status as judicial officers, they can always do so, provided they do not stand in the queue intended for judicial officers. The case of the petitioners, as on date falls under Article 217(2)(a) and not Article 217(2)(b). Hence, Mahesh Chandra Gupta (supra) will not come to their rescue. The judgment of the Delhi High court in D.K. Sharma followed the ratio in Mahesh Chandra Gupta.42. It is relevant to note that the expression judicial office appearing in Article 217(2)(a) was interpreted in Shri Kumar Padma Prasad vs. Union of India (1992) 2 SCC 428 ) only to mean a judicial office belonging to the judicial service defined in Article 236(b). Therefore, the case of a Member of Income Tax Appellate Tribunal could not have fallen within the ambit of Article 217(2)(a). This is why the decision in Mahesh Chandra Gupta (supra) was rendered in the context of Article 217(2)(b) and not Article 217(2)(a).43. The words has held and the words has been appear repeatedly in sub-clauses (a) and (b) as well as Explanation (a) and (aa) under Article 217(2). In relation to a person from the category of judicial service, sub-clause (a) uses the words has held. But in relation to a person from the category of advocate, sub-clause (b) uses the words has been. This is quite relevant for the reason that even in Explanation (a) and (aa) the words has held always preceded the words judicial office and the words has been always preceded the word advocate.Keeping this in mind, Explanation (a) confers the benefit of clubbing to a limited extent, to a person who has held a Judicial Office. To be eligible for the limited benefit so conferred, a person should have been an Advocate after he has held any judicial office. There is no confusion either in the language of Article 217(2) or in our mind.46. The argument that it will be discriminatory to allow the benefit of clubbing only to a person who held a judicial office and later became an advocate, does not appeal to us. In fact, Article 217(2) does not guarantee any one with the right to be appointed as a judge of the High Court. In a way, a person holding a judicial office is better placed, as he is assured of a career progression (though in a limited sense) after being placed in something like a conveyor belt. There is no such assurance for an advocate. Therefore, the argument based upon Article 14 does not impress us.47. It was also contended that a few persons whose names are mentioned in Paragraph 16 of the Writ Petition, got appointed to the High Court without completing 10 years of service as District Judges. But we do not know whether they got so appointed by clubbing the number of years of practise at the Bar. The factual situation that prevailed in those cases is not available. In any case a majority of those whose names are mentioned in Para 16 of the Writ Petition, got appointed to the High Court before Constitution (44 th Amendment) Act, 1978. Therefore, we do know what was done in those cases.48. Therefore, in fine, we are of the considered view that the claim of the writ petitioners is wholly untenable and the writ petition is misconceived.
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Commnr.Of Central Excise, Mumbai-Iv Vs. M/S.Damnet Chemicals Pvt.Ltd., Etc | company. Mere fact that both the registered offices are situated in the same premises and the manufacturing unit of the respondent-company is situated in the industrial gala owned by the BBL would not make both the companies are related to each other. There is no mutuality of interest between both the companies.27. BBL admittedly does not hold any shares in respondent-company nor the respondent-company owns any shares in BBL. One of the Directors in both the companies appears to be common. The respondent-company was incorporated in 1983 and at that time Mr. N.J. Danani was only an employee of BBL and became its Director in June, 1988 and was one out of seven Directors. It is required to appreciate that the respondent first started manufacturing CRC 2-26 in the year 1984. The manufacture of CRC Acryform was started after September, 1986 but well before Mr. N.J. Danani became Director of BBL.28 There is no evidence on record in support of the allegation that the transactions between the respondent-company and BBL were not on a principle to principal basis. The Commissioner found that the transaction between both the companies was not a simple relationship between manufacturer and seller, because respondent-company manufactured the product but did not mention its name on the product or carton, but mentioned that the product was marketed by BBL and put the logo of BBL thereon and that BBL did not pay any consideration to the respondent-company in that regard. This is totally contradictory to the evidence available on record as held by the Tribunal. The name of the manufacturer is also mentioned on the product. There is no evidence to arrive at any conclusion that there was a hidden flow back of money between both the companies. The respondent did not take any loan or advances from BBL. The appellant did not produce any evidence to show that BBL has an interest in the respondent-companys business. The appellant however, placed much reliance upon the finding of the Commissioner which is as follows: "The respondent had a list price beyond which BBL could not sell and the arrangement between the parties was that BBL would be billed at 60% of the list price and that the difference in the prices would recover the cost incurred by BBL for providing security services, and for expenses incurred by respondent for putting the logo and the name of BBL as also the cost of printing the leaflets, advertisement material provided to BBL." 29. The Tribunal after elaborate consideration of the matter and upon appreciation of the evidence found that BBL was a bulk buyer of the product manufactured by the respondent-assessee and there is nothing wrong in giving 40% discount. It was a normal trade practice. This Court in Metal Box India Ltd. Vs. Collector of Central Excise, Madras [1995 (75) ELT 449 (SC)] held that: "If a special trade discount is given to such a customer who is a buyer of 90% of goods, it would amount to a normal trade practice. At any rate it would not be an impermissible trade practice. In fact such type of concessions are usually given by manufacturers whose goods are lifted by whole-buyers whose availability avoids lot of marketing and advertising costs for the manufacturer and also ensures a guaranteed quantity of sales year after year. In order to keep such a wholesale monopolistic buyer attached to it, if under such circumstances by way of business expediency, the manufacturer offers him a special trade discount, it cannot be said that it is not in accordance with normal practice of wholesale trade." 30. There is no evidence available on record that the respondent-assessee received something further from BBL other than the price charged. There is no evidence to suggest that the profit made by the BBL had flown into the respondent-company. BBL obviously is a distributor and not a relative within the meaning of Section 4 (a) and 4 (3) (b) of the Act.31. This Court in Union of India Vs. Atic Industries [1984 (17) ELT 323 (SC)] held that: "For treating the customer as a related person, the first part of the definition of related person as given in Section 4 (4) (c) requires that the person who is sought to be branded as a related person must be a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other. Thus, it is not enough that the assessee has an interest directly or indirectly in the business of the person alleged to be a related person nor is it enough that the person alleged to be a related person has any interest directly or indirectly in the business of the assessee. It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest direct or indirect in the business of each other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct while the interest of the latter in the business of the former may be indirect, but that would not make any difference so long as each has got some interest direct or indirect in the business of the other. In cases, where 50% share of the manufacturing company is held by7 the customer company, the customer company can be said to be having interest in the manufacturing company as a shareholder but for this reason, it cannot be said that the manufacturing company has any interest direct or indirect, in the business carried on by one of its shareholders even though the shareholding of such shareholders may be 50%. In the absence of mutuality of interest in the business of each other, the customer company holding shares in the manufacturing company cannot be treated to be a related person." (Emphasis supplied) | 1[ds]13. The material available on record suggests that CRC 2-26 mainly contains petroleum base oil 25%, mineral oil 72% and rust preventives 3%. It is the case of the respondent-assessee that these ingredients are blended together with a stirrer until thoroughly mixed. This blended lubricating oil is sold and used as a penetrating lubricating oil by many industries including government owned for the purposes of lubricating the ball and roller bearings, circuit breakers, connectors, switches, push buttons etc. The petroleum base oil undisputedly is also mineral oil has lubricating properties and is the most important ingredient in CRC 2-26. Its main function is lubrication. It is explained that when it is sprayed on moving parts, the product forms a thin film on the surface and this film lubricates the parts. The film forming property is called lubricity. As corrosion and rust increases friction amongst moving surfaces, a small percentage of proprietary rust preventives is also added so as to keep the surface rust free as far as possible for effective lubrication by the film. The certificates issued by various industrial concerns including the government industries are part of record. Their genuineness is not put in issue. The test report on CRC 2-26 carried out by Prof. M.C. Dwivedi, Professor of IIT categorically states that CRC 2-26 is a blended lubricant and that the lubricating oil used in the formulation conforms with the requirements of the Bureau of Indian Standards requirements. The Department did not controvert the expert opinion given by the Professor.14. Be that as it may, the Department itself drew samples on the said products on more than one occasion i.e. in 1984, 1990 and 1993. The Deputy Chief Chemist has given the test reports and communicated the same vide letter dated 3.5.1985 stating that the sample which forms of a liquid is composed of mineral oil and small amount of additives; 1990 analysis has been communicated vide letter dated 15.4.1991 stating that the sample is composed of mineral oils and additives, the percentage of mineral oil is more than 70% and the result of 1993 analysis was communicated vide letter dated 10.1.1994 specifically stating that it is a product primarily used as lubricant though it has anticorrosive properties also. It is well settled and needs no restatement at our hands that the test reports given by the Chemical Examiner are binding upon the Department in the absence of any other acceptable evidence produced by it in rebuttal. In the present case, the Department has neither produced any evidence to rebut the reports of the Chemical Examiner nor impeached the findings of the test reports.15. Much reliance was sought to be placed by the Department on the label affixed on the container which says that "CRC 2-26 is a precision blended multi purpose lubricating oil that prevents malfunction due to the deteriorating effects of moisture and corrosion, extends operational life, claims, protects metal, reduces downtime and maintenance." Under the heading Directions, it is mentioned that CRC 2-26 is to be used to clean, lubricate, protect precision mechanism. We fail to appreciate as to how this information contained in the label supports the plea of the Department. It is true that the product in some measures contains anti-corrosive properties. The HSN explanatory notes specifically declares that oils classified under the head remain classifiable if various substances have been added to render them suitable for particular uses, provided the product contains by weight 70% or more of petroleum oil or oils obtained from bituminous minerals as the base and that they are not covered by a clear specific heading. There is no dispute whatsoever the product in question to be a preparation containing 70% or more of mineral oil apart from 20% petroleum oil. The product is predominantly a blended lubricating oil. Negligible percentage of rust preventives does not make the product in question to be a rust preventive one. The plea of the Department that the product is not a lubricating oil is untenable. There is no material or evidence in support of the said plea. The findings recorded by the Tribunal based on material and evidence available on record in our considered opinion do not suffer from any error requiring our interference in exercise of our appellate jurisdiction.ISSUE NO.2: Whether the respondent is entitled to the benefit of Notification No. 175/86 in respect of the product CRC Acryform?16. The contention of the Department in this regard mainly was that labels CRC Acryform carried the logos "B" of BBL and CRC of CRC Chemicals Europe, who admittedly are not entitled to the benefit of notification. It was submitted, in the circumstances CRC Acryform is not entitled to the benefit of Notification No. 175/86. There is no dispute that the respondent-assessee has been using the trademark CRC Acryform as its own ever since 1987. It had applied to the Trademarks Registrar for registering the trademark as early as in the year 1992. The Trademark Registrar has registered CRC Acryform as respondents trademark on 14.10.1992 with retrospective effect from the date of use in the year 1987. It is true the registration of the trademark on 14.10.1992 after the commencement of lis between the parties by itself may not be binding on the Department but its evidentiary value cannot be altogether ignored. So far as the CRC Chemicals Europe is concerned it had given an affidavit and a certificate specifically stating that they do not manufacture and have not manufactured or sold any product under the name and style "Acryform" or "CRC Acryform" either in India or abroad and they have not claimed any title, right or ownership in the aforesaid names. This affidavit has been ignored altogether by the Commissioner on the ground that it was procured by the respondent-assessee and it was a false document. There is no evidence made available by the Department that the same trade name or brand name is used by some other company apart from the respondent-assessee. There is also no evidence available on record indicating any connection between the CRC Acryform and CRC Chemicals Europe. In the absence of any specific statement in the show cause notice to this effect burden in this regard cannot be cast on the respondent-assessee. Admittedly the use of the logo was discontinued from 1990 and the same was informed to the Department. So far as the CRC Acryform is concerned it bears the mark CRC Acryform which is registered and shown in the trademark certificate. We are also not impressed by the submission made on behalf of the Department that CRC Chemicals Europe could not have permitted the manufacture of the product and supply the concentrate without having title to the trademark for the simple reason that the licence agreement referred to and relied upon by the Department merely permits the respondent-assessee to manufacture CRC Acryform from the concentrate supplied by CRC Chemicals Europe. The Commissioner mis-interpreted the clause in the agreement relating to the product CRC 2-26 and made it applicable to CRC Acryform. The licence agreement dated 30.9.1986 is nothing but extension to the license agreement dated 1.10.1983 for CRC 2-26 of course in addition permitting the manufacturer of CRC Acryform to label it as such. It is nowhere mentioned in the original license agreement and in the subsequent agreement dated 30.9.1986 that CRC Acryform is a trademark or brand name of CRC Chemicals Europe. The Tribunal upon appreciation of the evidence available on record came to the correct conclusion that respondent-assessee continues to be a small- scale industry and entitles to the benefit of Notification No. 175/86 in respect of CRC Acryform. We find no error in the conclusion so arrived at by the Tribunal.ISSUE No. 3: Whether there was any willful misstatement or suppression of facts with intent to evade duty with regard to the products CRC 2-26 and CRC Acryform or about the relationship between the respondent and BBL so as to enable the Department to invoke the proviso to Section 11A(1) of the Act, in the show cause notice dated 12.2.1993 and whether the demand raised in the said show cause notice is substantially time-barred?17. The classification lists filed by the assessee from time to time categorically mention in the column relating to the process of manufacture as "blending of various anti-corrosive chemicals and solvents with mineral turpentine". It is mentioned that the product is a blended lubricating oil manufactured by blending mineral turpentine oil with anti-corrosive in a base of corrosive oil. The stand taken by the assessee is consistent as is evident from the letter dated 20.3.1985 addressed to the Superintendent of Central Excise that they were the manufacturers of CRC 2-26 which was a blended lubricant comprising of various anticorrosive oils and mineral turpentine oil and that the same was fully exempted under Notification No. 120/84. The required information was supplied to the Superintendent of Central Excise when he visited the factory of the respondent-assessee. Samples were again drawn in 1990 and 1993 to determine whether the product was not a lubricating oil. We have already referred to the analysis of the Deputy Chief Chemist who opined that the samples contained mineral oil which was more than 70% and additives. The chemical test reports so obtained by the Department were never put in issue. No dispute has been raised in this regard. The declarations furnished by the respondent-assessee were totally inconformity with what has been stated in the test reports of the Deputy Chief Chemist. It is true that the exemption under Notification No. 120/84 was applicable to lubricating oil and greases which had a primary and permanent function of lubrication and not for the product having a primary function of anti-corrosive protection. But the evidence available on record reveals that the quantum of rust preventives in CRC 2-26 is only 3% whereas mineral oil is 70%. The evidence of the people in the trade, testimonials given by them including various government bodies reveal that the product CRC 2-26 is primarily used as a lubricating oil. The test reports of the Deputy Chief Chemist coupled with the evidence referred to hereinabove lead to one and only one irresistible conclusion that the product was primarily used for the lubricating purposes. No evidence has been produced by the Department to rebut the voluminous evidence made available by the respondent-assessee.18. In the circumstances, we find it difficult to hold that there has been conscious or deliberate withholding of information by the assessee. There has been no willful misstatement much less any deliberate and willful suppression of facts. It is settled law that in order to invoke the proviso to Section 11A(1) a mere misstatement could not be enough. The requirement in law is that such misstatement or suppression of facts must be willful. We do not propose to burden this judgment with various authoritative pronouncements except to refer the judgment of this Court in Anand Nishikawa Co. Ltd. Vs. CCE [2005 (188) ELT 149 ;We find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression."(emphasis supplied)19. It is clear from the material available on record that the Excise Authorities had inspected the manufacture process, collected the necessary information and details from the respondent-assessee and even collected the samples and sent to chemical analysis. The Authorities were aware of the tests and analysis reports of the products manufactured by the respondent-assessee. The relevant facts were very much within the knowledge of the Department Authorities. The Department did not make any attempt to lead any evidence that there was any willful misstatement or suppression of facts with intent to evade payment of duty.20. For the reasons aforesaid, we are of the view that the Tribunal did not commit any error in holding that the extended period of limitation was not available to the Department for initiating the recovery proceedings under Section 11A (1) of the Act.21. So far as CRC Acryform is concerned, the allegation was that the respondent-assessee did not mention about the license agreement in the classification lists. But the fact remains the copies of the labels on the product which were furnished to the Department at the time of filing declarations and classification lists contain information that CRC Acryform was manufactured under the license of CRC Chemicals Europe. The Department had even taken samples of CRC 2-26 which had contained labels of the aforesaid product. This Court in O.K. Play (India) Ltd. vs. Commissioner of Central Excise, Delhi-III, Gurgaon [2005 (188) ELT 300 (SC)] while dealing with the effect of approval of the classification listsclassification lists were duly approved by the department from time to time. All the facts were known to the department, whose officers had visited the factory of the assessee on at least 12 occasions. In the circumstances, we do not find any infirmity in the reasoning given by the Tribunal in coming to the conclusion that there was no willful suppression on the part of the assessee enabling the department to invoke the extended period of limitation under the proviso to Section 11A (1) of the 1944 Act.The same principle is reiterated in Commissioner of Central Excise, Jamshedpur Vs. Dabur India Ltd. [2005 (182) ELT 308 (SC)].23. On the facts of the case, we hold that non-mentioning of the license agreement in the classification lists does not lead to the conclusion that there has been willful suppression of facts with intent to evade duty. The demand in respect of CRC Acryform is, therefore, totally time barred.ISSUE NO. 4: Whether the Department can impose any penalty?24. The only ground for levying the penalty is that the respondent-assessee had suppressed the facts and had evaded the payment of duty. In view of our conclusion that there has been no suppression whatsoever, the question of imposition of penalty does not arise. The duty demanded by invoking the extended period of limitation itself is untenable and unsustainable for the aforesaid reasons. In such view of the matter no elaborate discussion on this aspect is necessary.ISSUE NO. 5: Whether the respondent was a fagade or dummy of BBL and/or whether the respondent and BBL are related persons within the meaning of Section 4 (a) and 4 (3) (b) of the Act?25. The Department in the show cause notice dated 12.2.1993 alleged that: (i) the assessee-respondent is a dummy/facade of BBL; (ii) the assessee-respondent and BBL are related persons. The assessee in response to show cause inter alia contended that it is a wholly independent and separate company incorporated under the Companies Act, 1956 as early as on 21.5.1983 having two directors, namely Mr. N.J. Danani and his wife. A manufacturing unit was registered as a small-scale unit. It has no borrowings or loans from BBL or any other manufacturing unit. The machineries required for the purposes of manufacturing the products are purchased and owned by the respondent-company. The required raw materials and packing materials for manufacturing and packing the products were always purchased from its own resources and BBL in no manner exercises any supervision or control over the affairs of the respondent-company.26. It is no doubt true that the registered office of BBL and the respondent-company was located in the same premises. The BBL owns the industrial gala in which respondents factory exists for which the respondent-company pays market rent for its operation. The BBL before entering into a lease agreement on each occasion obtained a valuation report from an independent Valuer for the purposes of fixing the quantum of rent. The BBL entered into a lease agreement with the respondent-company under the Board Resolution of the company. Mere fact that both the registered offices are situated in the same premises and the manufacturing unit of the respondent-company is situated in the industrial gala owned by the BBL would not make both the companies are related to each other. There is no mutuality of interest between both the companies.27. BBL admittedly does not hold any shares in respondent-company nor the respondent-company owns any shares in BBL. One of the Directors in both the companies appears to be common. The respondent-company was incorporated in 1983 and at that time Mr. N.J. Danani was only an employee of BBL and became its Director in June, 1988 and was one out of seven Directors. It is required to appreciate that the respondent first started manufacturing CRC 2-26 in the year 1984. The manufacture of CRC Acryform was started after September, 1986 but well before Mr. N.J. Danani became Director of BBL.28 There is no evidence on record in support of the allegation that the transactions between the respondent-company and BBL were not on a principle to principal basis. The Commissioner found that the transaction between both the companies was not a simple relationship between manufacturer and seller, because respondent-company manufactured the product but did not mention its name on the product or carton, but mentioned that the product was marketed by BBL and put the logo of BBL thereon and that BBL did not pay any consideration to the respondent-company in that regard. This is totally contradictory to the evidence available on record as held by the Tribunal. The name of the manufacturer is also mentioned on the product. There is no evidence to arrive at any conclusion that there was a hidden flow back of money between both the companies. The respondent did not take any loan or advances from BBL. The appellant did not produce any evidence to show that BBL has an interest in the respondent-companys business. The appellant however, placed much reliance upon the finding of the Commissioner which is asrespondent had a list price beyond which BBL could not sell and the arrangement between the parties was that BBL would be billed at 60% of the list price and that the difference in the prices would recover the cost incurred by BBL for providing security services, and for expenses incurred by respondent for putting the logo and the name of BBL as also the cost of printing the leaflets, advertisement material provided to BBL.The Tribunal after elaborate consideration of the matter and upon appreciation of the evidence found that BBL was a bulk buyer of the product manufactured by the respondent-assessee and there is nothing wrong in giving 40% discount. It was a normal trade practice. This Court in Metal Box India Ltd. Vs. Collector of Central Excise, Madras [1995 (75) ELT 449 (SC)] helda special trade discount is given to such a customer who is a buyer of 90% of goods, it would amount to a normal trade practice. At any rate it would not be an impermissible trade practice. In fact such type of concessions are usually given by manufacturers whose goods are lifted by whole-buyers whose availability avoids lot of marketing and advertising costs for the manufacturer and also ensures a guaranteed quantity of sales year after year. In order to keep such a wholesale monopolistic buyer attached to it, if under such circumstances by way of business expediency, the manufacturer offers him a special trade discount, it cannot be said that it is not in accordance with normal practice of wholesale trade.There is no evidence available on record that the respondent-assessee received something further from BBL other than the price charged. There is no evidence to suggest that the profit made by the BBL had flown into the respondent-company. BBL obviously is a distributor and not a relative within the meaning of Section 4 (a) and 4 (3) (b) of the Act.31. This Court in Union of India Vs. Atic Industries [1984 (17) ELT 323 (SC)] heldtreating the customer as a related person, the first part of the definition of related person as given in Section 4 (4) (c) requires that the person who is sought to be branded as a related person must be a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other. Thus, it is not enough that the assessee has an interest directly or indirectly in the business of the person alleged to be a related person nor is it enough that the person alleged to be a related person has any interest directly or indirectly in the business of the assessee. It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest direct or indirect in the business of each other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct while the interest of the latter in the business of the former may be indirect, but that would not make any difference so long as each has got some interest direct or indirect in the business of the other. In cases, where 50% share of the manufacturing company is held by7 the customer company, the customer company can be said to be having interest in the manufacturing company as a shareholder but for this reason, it cannot be said that the manufacturing company has any interest direct or indirect, in the business carried on by one of its shareholders even though the shareholding of such shareholders may be 50%. In the absence of mutuality of interest in the business of each other, the customer company holding shares in the manufacturing company cannot be treated to be a related person." | 1 | 5,084 | 3,962 | ### Instruction:
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company. Mere fact that both the registered offices are situated in the same premises and the manufacturing unit of the respondent-company is situated in the industrial gala owned by the BBL would not make both the companies are related to each other. There is no mutuality of interest between both the companies.27. BBL admittedly does not hold any shares in respondent-company nor the respondent-company owns any shares in BBL. One of the Directors in both the companies appears to be common. The respondent-company was incorporated in 1983 and at that time Mr. N.J. Danani was only an employee of BBL and became its Director in June, 1988 and was one out of seven Directors. It is required to appreciate that the respondent first started manufacturing CRC 2-26 in the year 1984. The manufacture of CRC Acryform was started after September, 1986 but well before Mr. N.J. Danani became Director of BBL.28 There is no evidence on record in support of the allegation that the transactions between the respondent-company and BBL were not on a principle to principal basis. The Commissioner found that the transaction between both the companies was not a simple relationship between manufacturer and seller, because respondent-company manufactured the product but did not mention its name on the product or carton, but mentioned that the product was marketed by BBL and put the logo of BBL thereon and that BBL did not pay any consideration to the respondent-company in that regard. This is totally contradictory to the evidence available on record as held by the Tribunal. The name of the manufacturer is also mentioned on the product. There is no evidence to arrive at any conclusion that there was a hidden flow back of money between both the companies. The respondent did not take any loan or advances from BBL. The appellant did not produce any evidence to show that BBL has an interest in the respondent-companys business. The appellant however, placed much reliance upon the finding of the Commissioner which is as follows: "The respondent had a list price beyond which BBL could not sell and the arrangement between the parties was that BBL would be billed at 60% of the list price and that the difference in the prices would recover the cost incurred by BBL for providing security services, and for expenses incurred by respondent for putting the logo and the name of BBL as also the cost of printing the leaflets, advertisement material provided to BBL." 29. The Tribunal after elaborate consideration of the matter and upon appreciation of the evidence found that BBL was a bulk buyer of the product manufactured by the respondent-assessee and there is nothing wrong in giving 40% discount. It was a normal trade practice. This Court in Metal Box India Ltd. Vs. Collector of Central Excise, Madras [1995 (75) ELT 449 (SC)] held that: "If a special trade discount is given to such a customer who is a buyer of 90% of goods, it would amount to a normal trade practice. At any rate it would not be an impermissible trade practice. In fact such type of concessions are usually given by manufacturers whose goods are lifted by whole-buyers whose availability avoids lot of marketing and advertising costs for the manufacturer and also ensures a guaranteed quantity of sales year after year. In order to keep such a wholesale monopolistic buyer attached to it, if under such circumstances by way of business expediency, the manufacturer offers him a special trade discount, it cannot be said that it is not in accordance with normal practice of wholesale trade." 30. There is no evidence available on record that the respondent-assessee received something further from BBL other than the price charged. There is no evidence to suggest that the profit made by the BBL had flown into the respondent-company. BBL obviously is a distributor and not a relative within the meaning of Section 4 (a) and 4 (3) (b) of the Act.31. This Court in Union of India Vs. Atic Industries [1984 (17) ELT 323 (SC)] held that: "For treating the customer as a related person, the first part of the definition of related person as given in Section 4 (4) (c) requires that the person who is sought to be branded as a related person must be a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other. Thus, it is not enough that the assessee has an interest directly or indirectly in the business of the person alleged to be a related person nor is it enough that the person alleged to be a related person has any interest directly or indirectly in the business of the assessee. It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest direct or indirect in the business of each other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct while the interest of the latter in the business of the former may be indirect, but that would not make any difference so long as each has got some interest direct or indirect in the business of the other. In cases, where 50% share of the manufacturing company is held by7 the customer company, the customer company can be said to be having interest in the manufacturing company as a shareholder but for this reason, it cannot be said that the manufacturing company has any interest direct or indirect, in the business carried on by one of its shareholders even though the shareholding of such shareholders may be 50%. In the absence of mutuality of interest in the business of each other, the customer company holding shares in the manufacturing company cannot be treated to be a related person." (Emphasis supplied)
### Response:
1
### Explanation:
BBL entered into a lease agreement with the respondent-company under the Board Resolution of the company. Mere fact that both the registered offices are situated in the same premises and the manufacturing unit of the respondent-company is situated in the industrial gala owned by the BBL would not make both the companies are related to each other. There is no mutuality of interest between both the companies.27. BBL admittedly does not hold any shares in respondent-company nor the respondent-company owns any shares in BBL. One of the Directors in both the companies appears to be common. The respondent-company was incorporated in 1983 and at that time Mr. N.J. Danani was only an employee of BBL and became its Director in June, 1988 and was one out of seven Directors. It is required to appreciate that the respondent first started manufacturing CRC 2-26 in the year 1984. The manufacture of CRC Acryform was started after September, 1986 but well before Mr. N.J. Danani became Director of BBL.28 There is no evidence on record in support of the allegation that the transactions between the respondent-company and BBL were not on a principle to principal basis. The Commissioner found that the transaction between both the companies was not a simple relationship between manufacturer and seller, because respondent-company manufactured the product but did not mention its name on the product or carton, but mentioned that the product was marketed by BBL and put the logo of BBL thereon and that BBL did not pay any consideration to the respondent-company in that regard. This is totally contradictory to the evidence available on record as held by the Tribunal. The name of the manufacturer is also mentioned on the product. There is no evidence to arrive at any conclusion that there was a hidden flow back of money between both the companies. The respondent did not take any loan or advances from BBL. The appellant did not produce any evidence to show that BBL has an interest in the respondent-companys business. The appellant however, placed much reliance upon the finding of the Commissioner which is asrespondent had a list price beyond which BBL could not sell and the arrangement between the parties was that BBL would be billed at 60% of the list price and that the difference in the prices would recover the cost incurred by BBL for providing security services, and for expenses incurred by respondent for putting the logo and the name of BBL as also the cost of printing the leaflets, advertisement material provided to BBL.The Tribunal after elaborate consideration of the matter and upon appreciation of the evidence found that BBL was a bulk buyer of the product manufactured by the respondent-assessee and there is nothing wrong in giving 40% discount. It was a normal trade practice. This Court in Metal Box India Ltd. Vs. Collector of Central Excise, Madras [1995 (75) ELT 449 (SC)] helda special trade discount is given to such a customer who is a buyer of 90% of goods, it would amount to a normal trade practice. At any rate it would not be an impermissible trade practice. In fact such type of concessions are usually given by manufacturers whose goods are lifted by whole-buyers whose availability avoids lot of marketing and advertising costs for the manufacturer and also ensures a guaranteed quantity of sales year after year. In order to keep such a wholesale monopolistic buyer attached to it, if under such circumstances by way of business expediency, the manufacturer offers him a special trade discount, it cannot be said that it is not in accordance with normal practice of wholesale trade.There is no evidence available on record that the respondent-assessee received something further from BBL other than the price charged. There is no evidence to suggest that the profit made by the BBL had flown into the respondent-company. BBL obviously is a distributor and not a relative within the meaning of Section 4 (a) and 4 (3) (b) of the Act.31. This Court in Union of India Vs. Atic Industries [1984 (17) ELT 323 (SC)] heldtreating the customer as a related person, the first part of the definition of related person as given in Section 4 (4) (c) requires that the person who is sought to be branded as a related person must be a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other. Thus, it is not enough that the assessee has an interest directly or indirectly in the business of the person alleged to be a related person nor is it enough that the person alleged to be a related person has any interest directly or indirectly in the business of the assessee. It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest direct or indirect in the business of each other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct while the interest of the latter in the business of the former may be indirect, but that would not make any difference so long as each has got some interest direct or indirect in the business of the other. In cases, where 50% share of the manufacturing company is held by7 the customer company, the customer company can be said to be having interest in the manufacturing company as a shareholder but for this reason, it cannot be said that the manufacturing company has any interest direct or indirect, in the business carried on by one of its shareholders even though the shareholding of such shareholders may be 50%. In the absence of mutuality of interest in the business of each other, the customer company holding shares in the manufacturing company cannot be treated to be a related person."
|
Kuil Fireworks Industries Vs. Collection of Central Excise | a warehouse and the appellant was allowed to remove the goods without payment of any duty. It was not disputed that the remaining goods were also stored in a private warehouse and the appellant had filed bills of entry and complied with all the required formalities for debonding and clearance of the goods on January 28, 1988 and that the appellant was entitled to an order cancelling the licence of the private warehouse enabling it to remove the goods. On these facts this Court observed : Had the customs authorities passed order in accordance with law the same result would have followed as had been done on December 17, 1987 ........ There is no valid reason as to why the same procedure should not have been followed in respect of the remaining goods in respect of which the bills of entry were filed on January 28, 1988 for debonding and clearance of goods. Merely because the officer failed to discharge his duties by making illegal demand for deposit of redemption fine, the appellant could not be held liable to pay duty. The appellant is, therefore, entitled to the delivery of goods without paying any duty as on January 28, 1988 no duty was payable on the goods. (p. 124) (Supp SCC) : (at Pp. 168-69 of AIR). 3. The submission of Shri Murlidhar is that the principle laid down in the aforesaid decision of this Court in Priyanka Overseas Pvt. Ltd. v. Union of India, (1991 AIR SCW 150) (supra) is applicable in the facts of this case because the goods had been wrongly and illegally detained by the customs authorities on September 2, 1987 and by the time the goods were released for clearance on the basis of the interim order passed by the High Court on September 29, 1987, the exemption from duty under notification No. 167/86 had been withdrawn by notification No. 222/87, dated December 17, 1987. He has urged that the appellant cannot be made to suffer on account of illegal act of the excise authorities and that the principle laid down in Wallace Flour Mills Company (1989 (4) SCC 592 ) (supra) and Vazir Sultan Tobacco Co. Ltd. (1996 AIR SCW 1353) (supra) will have no application in the facts of this case. 4. Shri K. N. Bhat, the learned Additional Solicitor General, does not dispute that in view of the decision Priyanka Overseas Pvt. Ltd. (supra) the appellant could not be made to suffer on account of an illegal act of detention of the goods by the excise authorities and the principle of Wallace Flour Mills Company (supra) and Vazir Sultan Tobacco Co. Ltd. (supra) will have no application in this case. The learned Additional Solicitor General has, however, urged that even on September 2, 1987 the appellant was not entitled to claim exemption from duty in respect of goods which were detained since there was use of power in the manufacture of the goods. In this connection, the learned Additional Solicitor (General) has placed reliance on the decision of this Court in Standard Fireworks Industries v. Collector of Central Excise, (1987 (28) ELT 56 : AIR 1987 SC 829 ). 5. We are unable to accept the said contention of the learned Additional Solicitor General for the reason that the Assistant Collector of Central Excise had issued a show cause notice dated November 29, 1987 demanding central excise duty of Rupees 11,94,122.94 on the fireworks cleared from the factory of the appellant for the period from August 1, 1981 to September 16, 1987 on the ground that certain operations were carried on with the aid of power outside the premises of the factory by outsiders and hence exemption under notification No. 167/88, dated March 1, 1986 could not be available. In their reply to the said show cause notice the appellant stated that they had not used power in any of the processes in the manufacture of the fireworks in their factories or outside their premises and it was claimed that the chemicals used for such manufacture were hand pounded. By order dated December 18, 1990, the Assistant Collector held that it is incredible and highly improbable that flour mills which are run by power should undertake hand pounding and that the flour mills had undertaken the grinding of chemicals only by using power. It was also held that paper tubes, paper cones were also made by use of power and, therefore, the appellant was not entitled to exemption under notification No. 167/86, dated March 1, 1986. The said order of the Assistant Collector was set aside in appeal by the Collector (Appeals) by order dated August 29, 1991. The Collector (Appeals) held :- Although it alleged that appellants purchased paper tubes from Standard Paper Containers, Sivakasi and made paper tubes through Paper Tubes Works, Sivakasi, no evidence confirming the above allegation was cited either in the show cause notice or in the original order. The appellants denied making any tubes through Paper Tubes Works, Sivakasi. In the absence of any evidence to the appellants version has to be accepted. The conclusion that the Flour Mills run by power would not have undertake hand pounding and ignoring the bills produced stating that they have been carefully managed will not prove the departmental case since it is based on presumption and suspicion. In view of the foregoing there is no evidence at all in the available records to the effect that power had been used in or in relation to the manufacture of fireworks by the appellants rendering them ineligible for exemption under notification No. 167/86, dated March 1, 1986. 6. The said order of the Collector (Appeals) was not challenged by the department and has become final. In view of the order of the Collector (Appeals) dated August 29, 1991, it cannot be said that in respect of goods which were detained on the basis of order dated September 2, 1987 exemption was not available under notification No. 167/86, dated March 1, 1986. | 1[ds]5. We are unable to accept the said contention of the learned Additional Solicitor General for the reason that the Assistant Collector of Central Excise had issued a show cause notice dated November 29, 1987 demanding central excise duty of Rupees 11,94,122.94 on the fireworks cleared from the factory of the appellant for the period from August 1, 1981 to September 16, 1987 on the ground that certain operations were carried on with the aid of power outside the premises of the factory by outsiders and hence exemption under notification No. 167/88, dated March 1, 1986 could not be available. In their reply to the said show cause notice the appellant stated that they had not used power in any of the processes in the manufacture of the fireworks in their factories or outside their premises and it was claimed that the chemicals used for such manufacture were hand pounded. By order dated December 18, 1990, the Assistant Collector held that it is incredible and highly improbable that flour mills which are run by power should undertake hand pounding and that the flour mills had undertaken the grinding of chemicals only by using power. It was also held that paper tubes, paper cones were also made by use of power and, therefore, the appellant was not entitled to exemption under notification No. 167/86, dated March 1, 1986.6. The said order of the Collector (Appeals) was not challenged by the department and has become final. In view of the order of the Collector (Appeals) dated August 29, 1991, it cannot be said that in respect of goods which were detained on the basis of order dated September 2, 1987 exemption was not available under notification No. 167/86, dated March 1, 1986. | 1 | 2,278 | 326 | ### 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:
a warehouse and the appellant was allowed to remove the goods without payment of any duty. It was not disputed that the remaining goods were also stored in a private warehouse and the appellant had filed bills of entry and complied with all the required formalities for debonding and clearance of the goods on January 28, 1988 and that the appellant was entitled to an order cancelling the licence of the private warehouse enabling it to remove the goods. On these facts this Court observed : Had the customs authorities passed order in accordance with law the same result would have followed as had been done on December 17, 1987 ........ There is no valid reason as to why the same procedure should not have been followed in respect of the remaining goods in respect of which the bills of entry were filed on January 28, 1988 for debonding and clearance of goods. Merely because the officer failed to discharge his duties by making illegal demand for deposit of redemption fine, the appellant could not be held liable to pay duty. The appellant is, therefore, entitled to the delivery of goods without paying any duty as on January 28, 1988 no duty was payable on the goods. (p. 124) (Supp SCC) : (at Pp. 168-69 of AIR). 3. The submission of Shri Murlidhar is that the principle laid down in the aforesaid decision of this Court in Priyanka Overseas Pvt. Ltd. v. Union of India, (1991 AIR SCW 150) (supra) is applicable in the facts of this case because the goods had been wrongly and illegally detained by the customs authorities on September 2, 1987 and by the time the goods were released for clearance on the basis of the interim order passed by the High Court on September 29, 1987, the exemption from duty under notification No. 167/86 had been withdrawn by notification No. 222/87, dated December 17, 1987. He has urged that the appellant cannot be made to suffer on account of illegal act of the excise authorities and that the principle laid down in Wallace Flour Mills Company (1989 (4) SCC 592 ) (supra) and Vazir Sultan Tobacco Co. Ltd. (1996 AIR SCW 1353) (supra) will have no application in the facts of this case. 4. Shri K. N. Bhat, the learned Additional Solicitor General, does not dispute that in view of the decision Priyanka Overseas Pvt. Ltd. (supra) the appellant could not be made to suffer on account of an illegal act of detention of the goods by the excise authorities and the principle of Wallace Flour Mills Company (supra) and Vazir Sultan Tobacco Co. Ltd. (supra) will have no application in this case. The learned Additional Solicitor General has, however, urged that even on September 2, 1987 the appellant was not entitled to claim exemption from duty in respect of goods which were detained since there was use of power in the manufacture of the goods. In this connection, the learned Additional Solicitor (General) has placed reliance on the decision of this Court in Standard Fireworks Industries v. Collector of Central Excise, (1987 (28) ELT 56 : AIR 1987 SC 829 ). 5. We are unable to accept the said contention of the learned Additional Solicitor General for the reason that the Assistant Collector of Central Excise had issued a show cause notice dated November 29, 1987 demanding central excise duty of Rupees 11,94,122.94 on the fireworks cleared from the factory of the appellant for the period from August 1, 1981 to September 16, 1987 on the ground that certain operations were carried on with the aid of power outside the premises of the factory by outsiders and hence exemption under notification No. 167/88, dated March 1, 1986 could not be available. In their reply to the said show cause notice the appellant stated that they had not used power in any of the processes in the manufacture of the fireworks in their factories or outside their premises and it was claimed that the chemicals used for such manufacture were hand pounded. By order dated December 18, 1990, the Assistant Collector held that it is incredible and highly improbable that flour mills which are run by power should undertake hand pounding and that the flour mills had undertaken the grinding of chemicals only by using power. It was also held that paper tubes, paper cones were also made by use of power and, therefore, the appellant was not entitled to exemption under notification No. 167/86, dated March 1, 1986. The said order of the Assistant Collector was set aside in appeal by the Collector (Appeals) by order dated August 29, 1991. The Collector (Appeals) held :- Although it alleged that appellants purchased paper tubes from Standard Paper Containers, Sivakasi and made paper tubes through Paper Tubes Works, Sivakasi, no evidence confirming the above allegation was cited either in the show cause notice or in the original order. The appellants denied making any tubes through Paper Tubes Works, Sivakasi. In the absence of any evidence to the appellants version has to be accepted. The conclusion that the Flour Mills run by power would not have undertake hand pounding and ignoring the bills produced stating that they have been carefully managed will not prove the departmental case since it is based on presumption and suspicion. In view of the foregoing there is no evidence at all in the available records to the effect that power had been used in or in relation to the manufacture of fireworks by the appellants rendering them ineligible for exemption under notification No. 167/86, dated March 1, 1986. 6. The said order of the Collector (Appeals) was not challenged by the department and has become final. In view of the order of the Collector (Appeals) dated August 29, 1991, it cannot be said that in respect of goods which were detained on the basis of order dated September 2, 1987 exemption was not available under notification No. 167/86, dated March 1, 1986.
### Response:
1
### Explanation:
5. We are unable to accept the said contention of the learned Additional Solicitor General for the reason that the Assistant Collector of Central Excise had issued a show cause notice dated November 29, 1987 demanding central excise duty of Rupees 11,94,122.94 on the fireworks cleared from the factory of the appellant for the period from August 1, 1981 to September 16, 1987 on the ground that certain operations were carried on with the aid of power outside the premises of the factory by outsiders and hence exemption under notification No. 167/88, dated March 1, 1986 could not be available. In their reply to the said show cause notice the appellant stated that they had not used power in any of the processes in the manufacture of the fireworks in their factories or outside their premises and it was claimed that the chemicals used for such manufacture were hand pounded. By order dated December 18, 1990, the Assistant Collector held that it is incredible and highly improbable that flour mills which are run by power should undertake hand pounding and that the flour mills had undertaken the grinding of chemicals only by using power. It was also held that paper tubes, paper cones were also made by use of power and, therefore, the appellant was not entitled to exemption under notification No. 167/86, dated March 1, 1986.6. The said order of the Collector (Appeals) was not challenged by the department and has become final. In view of the order of the Collector (Appeals) dated August 29, 1991, it cannot be said that in respect of goods which were detained on the basis of order dated September 2, 1987 exemption was not available under notification No. 167/86, dated March 1, 1986.
|
State of Uttar Pradesh Vs. Bhoop Singh Verma | applicable to temporary government servants. In the second place, it is said, if the order is attributed to the complaint against the respondent concerning his conduct relating to Smt. Phoolmati it was open to the Deputy Inspector General of Police to take the circumstances of the case into account for the purpose of considering the suitability of the respondent for continuing in service. Learned counsel for the respondent points out that an enquiry had been originally instituted against the respondent which had resulted in an order terminating his services and, he urges, after the order of the High Court quashing his discharge on the ground of violation of Article 311(2) of the Constitution it was obligatory on the superior authority, in case it proposed to terminate the respondents services, to institute a proper and complete departmental enquiry, providing an opportunity to the respondent to lead evidence and be heard in his defence, and only thereafter could it make an order against the respondent.4. We are of the opinion that the appellant is right on both counts. Considered as an order made without reference to the earlier proceeding against the respondent, the impugned order cannot be regard ed as one of punishment. After the original order of discharge was quashed by the High Court, the respondent was reinstated in service. He was even allowed an increment to his salary. The Deputy Inspector General of Police made the impugned order subsequently terminating his services on the ground that they were no longer required. The services were terminated on payment of one months salary in lieu of notice under the "general rules for termination of service of temporary government servants". The Deputy Inspector General of Police was examined as a witness in the suit, and throughout he maintained that he terminated the respondents services because they were not required any more and that in making the order he did not intend to punish the respondent. The evidence also discloses that no personal motive had influenced the order. It was open to the superior authority to terminate the respondents services on the ground on which it did so.Assuming, however, that the impugned order was made in the background of the allegations against the respondent concerning his behaviour with Smt. Phoolmati, we see no reason in law why a departmental enquiry should be necessary before the respondents services could be terminated. It appears from the material before us that it was merely a preliminary enquiry which was made by the Superintendent of Police into the allegations made against the respondents conduct concerning the woman. No departmental enquiry by way of disciplinary proceedings was instituted, no charge was framed, and the formal procedure characterising a disciplinary proceeding was never adopted.5. The Deputy Inspector General of Police passed the original order dated July 13, 1957 discharging the respondent from the police force on the ground that he had behaved in a reprehensible manner, was not likely to make a useful police officer and was unfit for further retention in a disciplined force. The original order plainly attached a stigma to the respondents record of service, and it is because of the specific grounds set forth in the termination order that the High Court considered the respondent entitled to the benefit of Article 311 (2) of the Constitution, and quashed the order. Now the order having been quashed, the position reverts to what it was when the Deputy Inspector General of Police received the report of the Superintendent of Police on the Preliminary enquiry made by him. There was nothing to prevent the Deputy Inspector General from deciding that instead of instituting disciplinary proceedings against the government servant he should consider whether the government servant was suitable for retention in service. The case law on the point has been considered elaborately by one of us (Jaswant Singh, J.) in State of U.P. v. Ram Chandra Trivedi(1) and reference has been made in this behalf to Champaklal Chimanlal Sh ah v. The Union of India(2), Jagdish Mitter v. Union of India(3) and State of Punjab &Anr. v. Shri Sukh Raj Bahadur(4). It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman, the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order. In this connection what has been stated by this Court in Union of India &Ors. v. R. S. Dhaba.(5) State of Bihar &Ors. v. Shive Bhikshuk Mishra(6) and R. S. Sial v. The State of U.P. &Ors.(7) appears relevant. That it was not intended to take punitive action against the respondent for his misbehaviour with Smt. Phoolmati is evident from the circumstance that thereafter the respondent was allowed an increment to his salary and was regarded as in service for all purposes. The High Court, it seems to us, did not have regard to all the facts and circumstance s of the case, and appears to have assumed that the respondents services were terminated as a measure of punishment. The High Court relied on The State of Bihar v. Gopi Kishore Prasad(1) and Madan Gopal v. The State of Punjab(2). Both cases are distinguishable. In the former, the government servant was discharged from service because he was found to be corrupt and the order terminating his services branded him a dishonest and incompetent officer. In the latter, the government servant had been served with a charge-sheet that he had demanded and received illegal gratification and the Court found that the proceeding, consequent to which the termination order was made, was intended for the purpose of taking punitive action.We are satisfied that the considerations which prevailed with the High Court in reaching its findings on the application of Article 311 (2) of the Constitution and the bona fides of the superior authority in making the impugned order are not warranted in law and on the material before us.6. | 1[ds].Assuming, however, that the impugned order was made in the background of the allegations against the respondent concerning his behaviour with Smt. Phoolmati, we see no reason in law why a departmental enquiry should be necessary before the respondents services could be terminated. It appears from the material before us that it was merely a preliminary enquiry which was made by the Superintendent of Police into the allegations made against the respondents conduct concerning the woman. No departmental enquiry by way of disciplinary proceedings was instituted, no charge was framed, and the formal procedure characterising a disciplinary proceeding was neverHigh Court, it seems to us, did not have regard to all the facts and circumstance s of the case, and appears to have assumed that the respondents services were terminated as a measure of punishment. The High Court relied on The State of Bihar v. Gopi Kishore Prasad(1) and Madan Gopal v. The State of Punjab(2). Both cases are distinguishable. In the former, the government servant was discharged from service because he was found to be corrupt and the order terminating his services branded him a dishonest and incompetent officer. In the latter, the government servant had been served with a charge-sheet that he had demanded and received illegal gratification and the Court found that the proceeding, consequent to which the termination order was made, was intended for the purpose of taking punitive action.We are satisfied that the considerations which prevailed with the High Court in reaching its findings on the application of Article 311 (2) of the Constitution and the bona fides of the superior authority in making the impugned order are not warranted in law and on the material before us. | 1 | 1,644 | 315 | ### 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:
applicable to temporary government servants. In the second place, it is said, if the order is attributed to the complaint against the respondent concerning his conduct relating to Smt. Phoolmati it was open to the Deputy Inspector General of Police to take the circumstances of the case into account for the purpose of considering the suitability of the respondent for continuing in service. Learned counsel for the respondent points out that an enquiry had been originally instituted against the respondent which had resulted in an order terminating his services and, he urges, after the order of the High Court quashing his discharge on the ground of violation of Article 311(2) of the Constitution it was obligatory on the superior authority, in case it proposed to terminate the respondents services, to institute a proper and complete departmental enquiry, providing an opportunity to the respondent to lead evidence and be heard in his defence, and only thereafter could it make an order against the respondent.4. We are of the opinion that the appellant is right on both counts. Considered as an order made without reference to the earlier proceeding against the respondent, the impugned order cannot be regard ed as one of punishment. After the original order of discharge was quashed by the High Court, the respondent was reinstated in service. He was even allowed an increment to his salary. The Deputy Inspector General of Police made the impugned order subsequently terminating his services on the ground that they were no longer required. The services were terminated on payment of one months salary in lieu of notice under the "general rules for termination of service of temporary government servants". The Deputy Inspector General of Police was examined as a witness in the suit, and throughout he maintained that he terminated the respondents services because they were not required any more and that in making the order he did not intend to punish the respondent. The evidence also discloses that no personal motive had influenced the order. It was open to the superior authority to terminate the respondents services on the ground on which it did so.Assuming, however, that the impugned order was made in the background of the allegations against the respondent concerning his behaviour with Smt. Phoolmati, we see no reason in law why a departmental enquiry should be necessary before the respondents services could be terminated. It appears from the material before us that it was merely a preliminary enquiry which was made by the Superintendent of Police into the allegations made against the respondents conduct concerning the woman. No departmental enquiry by way of disciplinary proceedings was instituted, no charge was framed, and the formal procedure characterising a disciplinary proceeding was never adopted.5. The Deputy Inspector General of Police passed the original order dated July 13, 1957 discharging the respondent from the police force on the ground that he had behaved in a reprehensible manner, was not likely to make a useful police officer and was unfit for further retention in a disciplined force. The original order plainly attached a stigma to the respondents record of service, and it is because of the specific grounds set forth in the termination order that the High Court considered the respondent entitled to the benefit of Article 311 (2) of the Constitution, and quashed the order. Now the order having been quashed, the position reverts to what it was when the Deputy Inspector General of Police received the report of the Superintendent of Police on the Preliminary enquiry made by him. There was nothing to prevent the Deputy Inspector General from deciding that instead of instituting disciplinary proceedings against the government servant he should consider whether the government servant was suitable for retention in service. The case law on the point has been considered elaborately by one of us (Jaswant Singh, J.) in State of U.P. v. Ram Chandra Trivedi(1) and reference has been made in this behalf to Champaklal Chimanlal Sh ah v. The Union of India(2), Jagdish Mitter v. Union of India(3) and State of Punjab &Anr. v. Shri Sukh Raj Bahadur(4). It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman, the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order. In this connection what has been stated by this Court in Union of India &Ors. v. R. S. Dhaba.(5) State of Bihar &Ors. v. Shive Bhikshuk Mishra(6) and R. S. Sial v. The State of U.P. &Ors.(7) appears relevant. That it was not intended to take punitive action against the respondent for his misbehaviour with Smt. Phoolmati is evident from the circumstance that thereafter the respondent was allowed an increment to his salary and was regarded as in service for all purposes. The High Court, it seems to us, did not have regard to all the facts and circumstance s of the case, and appears to have assumed that the respondents services were terminated as a measure of punishment. The High Court relied on The State of Bihar v. Gopi Kishore Prasad(1) and Madan Gopal v. The State of Punjab(2). Both cases are distinguishable. In the former, the government servant was discharged from service because he was found to be corrupt and the order terminating his services branded him a dishonest and incompetent officer. In the latter, the government servant had been served with a charge-sheet that he had demanded and received illegal gratification and the Court found that the proceeding, consequent to which the termination order was made, was intended for the purpose of taking punitive action.We are satisfied that the considerations which prevailed with the High Court in reaching its findings on the application of Article 311 (2) of the Constitution and the bona fides of the superior authority in making the impugned order are not warranted in law and on the material before us.6.
### Response:
1
### Explanation:
.Assuming, however, that the impugned order was made in the background of the allegations against the respondent concerning his behaviour with Smt. Phoolmati, we see no reason in law why a departmental enquiry should be necessary before the respondents services could be terminated. It appears from the material before us that it was merely a preliminary enquiry which was made by the Superintendent of Police into the allegations made against the respondents conduct concerning the woman. No departmental enquiry by way of disciplinary proceedings was instituted, no charge was framed, and the formal procedure characterising a disciplinary proceeding was neverHigh Court, it seems to us, did not have regard to all the facts and circumstance s of the case, and appears to have assumed that the respondents services were terminated as a measure of punishment. The High Court relied on The State of Bihar v. Gopi Kishore Prasad(1) and Madan Gopal v. The State of Punjab(2). Both cases are distinguishable. In the former, the government servant was discharged from service because he was found to be corrupt and the order terminating his services branded him a dishonest and incompetent officer. In the latter, the government servant had been served with a charge-sheet that he had demanded and received illegal gratification and the Court found that the proceeding, consequent to which the termination order was made, was intended for the purpose of taking punitive action.We are satisfied that the considerations which prevailed with the High Court in reaching its findings on the application of Article 311 (2) of the Constitution and the bona fides of the superior authority in making the impugned order are not warranted in law and on the material before us.
|
Satnam Overseas (Export) Vs. State Of Haryana | rules 9 and 49 of the Central Excise Rules, 1944 were amended retrospectively from the date of framing of the rules in 1944. After referring to the cases of Rai Ramakrishna and Jawaharmal (supra), it was observed that the Court might have to consider the question as to whether excessive retrospective operation prescribed by a taxing statute amounted to contravention of the citizens fundamental rights and in dealing with such a question the court might have to take into account all the relevant and surrounding facts and circumstances in relation to the taxation and in that connection the test of the length of time covered by the retrospective operation cannot, by itself, necessarily be a decisive test. By examination of the merits of the case it was held that the retrospective effect given to the said provisions was subject to section 11A of the Act and was, therefore, not excessive and arbitrary. (55) In State of Tamil Nadu v. Arooran Sugars Ltd.2, the same principle is reiterated and it is added that in special situation this Court has held that such excessive retrospectivity was violative of Article 14 of the Constitution. (56) In the instant case, having regard to the provisions of section 40 of the Haryana Act, the authorities can not revise the assessment for period beyond five years. Further, even though section 15A was given retrospectivity with effect from May 27, 1971, it would hardly be effective between 27/05/1971 and 1/04/1991 when the benefit of exemption under section 9 (1)(b) ceased to exist, as such none of the contentions that giving section 15A retrospectivity of 21 years could be harsh, arbitrary and illegal would be devoid of merit. (57) No relief was available in regard to penultimate purchase of paddy which was converted into rice and exported. This position obtained till clause (ca) of section 15 of the CST Act was inserted by Act 33 of 199 6/09/1996. The said clause (ca) provides, where a tax on sale or purchase of paddy is leviable under a state law and the rice procured out of such paddy is exported out of India, then for the purposes of sub-section (3) of section 5 of the CST Act, the paddy and rice have to be treated as a single commodity. What is, however, contended in clause (ca) is only declaratory and, therefore, retrospective. We do not so think. A declaratory Act is defined in "Craies on statute law thus: "For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Act are usually held to be retrospective." (sixth edition page 59) (58) It cannot be said to be clarificatory for, it neither supplies an obvious omission in the CST Act nor purports to explain any provision of that Act. It confers a new benefit hitherto not available. It is not given retrospective effect expressly. There is also nothing to imply that it has retrospective operation. However, had it been declaratory or curative, it would have been treated as retrospective. (See. Shri Chaman Singh and Anr. v. Srimathi Jaikaur). (59) We do not also find any force in the contention of Mr. Chidambaram that in not granting refund of purchase tax only in regard to three goods - paddy, cotton and oil seeds - there is violation of Article 14 of the Constitution. It is a settled proposition of law that in the matter of taxation, the legislature has greater latitude to give effect to its policy of raising revenue and for that purpose selecting the goods for taxing. The classification of goods based on the policy of taxing some goods and leaving others outside the net of taxation cannot be assailed as violative of Article 14 of the Constitution. (See: M/s. Steelworth Ltd. v. State of Assam and Gopal Narain v. State of Uttar Pradesh andAnr.) (60) The observations of Krishna lyer, J. in Murthy Match Works, etc. etc. v. The Asstt. Collector of Central Excise, etc. which are approved by a constitution bench in Ganga Sugar Corporation Ltd. v. State of Uttar Pradesh and Ors. are worth quoting: "It is well established that the modern state, in exercising its sovereign powers of taxation, has to deal with complex factors relating to the objects to be taxed, the quantum to be levied, the condition subject to which the levy has to be made, the social and economic policies which the tax is designed to sub-serve, and what not. In the famous words of Holmes, J., in Bain Peanut Co. v. Finson (1930)282 US 499): We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Granting relief, whether of refund or otherwise, stands on the same footing. To sum up: (1) In the specified circumstances in which charge of purchase tax on the raw material is imposed, clause (b) of sub-section (1) of section 9 of the Haryana Act and the exemptions provided therein would apply; the law declared by this Court in Murli Manohar and Co.; Hotel Balaji and K.B. Handicrafts (supra) holds the field; (2) while section 9 remained on the statute till 1/04/1991, retrospective amendments of sections 2(p), 6, 15 and 15A of the Haryana Act would make no difference in regard to levy of purchase tax on paddy; (3) adjustment of purchase tax paid on paddy (raw material) is permissible under section 15A of the Haryana Act during the relevant period; (4) by virtue of section 15 A of the Haryana . Act, denial of refund of purchase tax, if any, paid by a dealer is not illegal much less unconstitutional; and (5) mere similarity between section 9(1) (b) of the Haryana Act and section 4B of the Punjab Act would not relieve a dealer of the liability to pay purchase tax on paddy as the scope of charging sections under the said Acts are different. (6) | 1[ds](39) Though section 4-B of the Punjab Act is not in his dem term in is with section 9 (1) (b) of the Haryana Act, however, they are in pan mater/a. It is not the similarity of the said provisions alone that would determine the liability of a dealer to pay purchase tax on paddy under the said Acts. It is the ambit of charging sections in those Acts, which will be determinative. Section 6 of the Haryana Act, as pointed out above, did not charge purchase tax on paddy before 14/10/1990 and in the circumstances mentioned in section 9 (1) (b) imposed purchase tax but provided for its exemption in specifiedIt is true that section 15A does not permit refund of purchase tax paid on paddy, cotton and oil seeds by an assessee though such a relief is available in regard to other goods. In the light of the above discussion, the challenge to section 15A on the ground of violation of section 15 (c) of the CST Act or Article 286 (1)(b) of the Constitution cannot be sustained because the only relief that is granted by section 15(c) is reduction of tax leviable on the sale of rice procured from out of paddy, where tax has been levied on sale or purchase of such paddy inside the state. This relief is incorporated by the Haryana Act in clause (iii) of the proviso to sub-section (1) of section 15. Even clause (b) of sub-Article (1) of Article 286 does not provide for exemption of tax on the purchase of paddy. There is no other provision either in Article 286 or in the CST Act which bars a state from levying tax on the sale or purchase of paddy which is not exported out of the territory of India. Section 15A proceeds on the premise that purchase tax is payable, inter alia, on paddy. From the above discussion, it is clear that before the omission of section 9 from the Haryana Act, no purchase tax was payable on paddy under section 6 of the Act, therefore, during the aforesaid period, the assessee cannot complain of the denial of the benefit of adjustment and refund of purchase tax on the basis of section 15A of the Haryana Act. The position would, however, be different after 1/04/1991, when section 9 was omitted from the Act. | 1 | 13,659 | 456 | ### 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:
rules 9 and 49 of the Central Excise Rules, 1944 were amended retrospectively from the date of framing of the rules in 1944. After referring to the cases of Rai Ramakrishna and Jawaharmal (supra), it was observed that the Court might have to consider the question as to whether excessive retrospective operation prescribed by a taxing statute amounted to contravention of the citizens fundamental rights and in dealing with such a question the court might have to take into account all the relevant and surrounding facts and circumstances in relation to the taxation and in that connection the test of the length of time covered by the retrospective operation cannot, by itself, necessarily be a decisive test. By examination of the merits of the case it was held that the retrospective effect given to the said provisions was subject to section 11A of the Act and was, therefore, not excessive and arbitrary. (55) In State of Tamil Nadu v. Arooran Sugars Ltd.2, the same principle is reiterated and it is added that in special situation this Court has held that such excessive retrospectivity was violative of Article 14 of the Constitution. (56) In the instant case, having regard to the provisions of section 40 of the Haryana Act, the authorities can not revise the assessment for period beyond five years. Further, even though section 15A was given retrospectivity with effect from May 27, 1971, it would hardly be effective between 27/05/1971 and 1/04/1991 when the benefit of exemption under section 9 (1)(b) ceased to exist, as such none of the contentions that giving section 15A retrospectivity of 21 years could be harsh, arbitrary and illegal would be devoid of merit. (57) No relief was available in regard to penultimate purchase of paddy which was converted into rice and exported. This position obtained till clause (ca) of section 15 of the CST Act was inserted by Act 33 of 199 6/09/1996. The said clause (ca) provides, where a tax on sale or purchase of paddy is leviable under a state law and the rice procured out of such paddy is exported out of India, then for the purposes of sub-section (3) of section 5 of the CST Act, the paddy and rice have to be treated as a single commodity. What is, however, contended in clause (ca) is only declaratory and, therefore, retrospective. We do not so think. A declaratory Act is defined in "Craies on statute law thus: "For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Act are usually held to be retrospective." (sixth edition page 59) (58) It cannot be said to be clarificatory for, it neither supplies an obvious omission in the CST Act nor purports to explain any provision of that Act. It confers a new benefit hitherto not available. It is not given retrospective effect expressly. There is also nothing to imply that it has retrospective operation. However, had it been declaratory or curative, it would have been treated as retrospective. (See. Shri Chaman Singh and Anr. v. Srimathi Jaikaur). (59) We do not also find any force in the contention of Mr. Chidambaram that in not granting refund of purchase tax only in regard to three goods - paddy, cotton and oil seeds - there is violation of Article 14 of the Constitution. It is a settled proposition of law that in the matter of taxation, the legislature has greater latitude to give effect to its policy of raising revenue and for that purpose selecting the goods for taxing. The classification of goods based on the policy of taxing some goods and leaving others outside the net of taxation cannot be assailed as violative of Article 14 of the Constitution. (See: M/s. Steelworth Ltd. v. State of Assam and Gopal Narain v. State of Uttar Pradesh andAnr.) (60) The observations of Krishna lyer, J. in Murthy Match Works, etc. etc. v. The Asstt. Collector of Central Excise, etc. which are approved by a constitution bench in Ganga Sugar Corporation Ltd. v. State of Uttar Pradesh and Ors. are worth quoting: "It is well established that the modern state, in exercising its sovereign powers of taxation, has to deal with complex factors relating to the objects to be taxed, the quantum to be levied, the condition subject to which the levy has to be made, the social and economic policies which the tax is designed to sub-serve, and what not. In the famous words of Holmes, J., in Bain Peanut Co. v. Finson (1930)282 US 499): We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Granting relief, whether of refund or otherwise, stands on the same footing. To sum up: (1) In the specified circumstances in which charge of purchase tax on the raw material is imposed, clause (b) of sub-section (1) of section 9 of the Haryana Act and the exemptions provided therein would apply; the law declared by this Court in Murli Manohar and Co.; Hotel Balaji and K.B. Handicrafts (supra) holds the field; (2) while section 9 remained on the statute till 1/04/1991, retrospective amendments of sections 2(p), 6, 15 and 15A of the Haryana Act would make no difference in regard to levy of purchase tax on paddy; (3) adjustment of purchase tax paid on paddy (raw material) is permissible under section 15A of the Haryana Act during the relevant period; (4) by virtue of section 15 A of the Haryana . Act, denial of refund of purchase tax, if any, paid by a dealer is not illegal much less unconstitutional; and (5) mere similarity between section 9(1) (b) of the Haryana Act and section 4B of the Punjab Act would not relieve a dealer of the liability to pay purchase tax on paddy as the scope of charging sections under the said Acts are different. (6)
### Response:
1
### Explanation:
(39) Though section 4-B of the Punjab Act is not in his dem term in is with section 9 (1) (b) of the Haryana Act, however, they are in pan mater/a. It is not the similarity of the said provisions alone that would determine the liability of a dealer to pay purchase tax on paddy under the said Acts. It is the ambit of charging sections in those Acts, which will be determinative. Section 6 of the Haryana Act, as pointed out above, did not charge purchase tax on paddy before 14/10/1990 and in the circumstances mentioned in section 9 (1) (b) imposed purchase tax but provided for its exemption in specifiedIt is true that section 15A does not permit refund of purchase tax paid on paddy, cotton and oil seeds by an assessee though such a relief is available in regard to other goods. In the light of the above discussion, the challenge to section 15A on the ground of violation of section 15 (c) of the CST Act or Article 286 (1)(b) of the Constitution cannot be sustained because the only relief that is granted by section 15(c) is reduction of tax leviable on the sale of rice procured from out of paddy, where tax has been levied on sale or purchase of such paddy inside the state. This relief is incorporated by the Haryana Act in clause (iii) of the proviso to sub-section (1) of section 15. Even clause (b) of sub-Article (1) of Article 286 does not provide for exemption of tax on the purchase of paddy. There is no other provision either in Article 286 or in the CST Act which bars a state from levying tax on the sale or purchase of paddy which is not exported out of the territory of India. Section 15A proceeds on the premise that purchase tax is payable, inter alia, on paddy. From the above discussion, it is clear that before the omission of section 9 from the Haryana Act, no purchase tax was payable on paddy under section 6 of the Act, therefore, during the aforesaid period, the assessee cannot complain of the denial of the benefit of adjustment and refund of purchase tax on the basis of section 15A of the Haryana Act. The position would, however, be different after 1/04/1991, when section 9 was omitted from the Act.
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Narinder Mohan Arya Vs. United India Insurance Co. Ltd. | at all, besides drawing the attention of the Chairman-cum Managing Director to the subsequent event namely the judgment and decree passed by the civil court. The said authority again did not apply its mind while passing his order dated 31st March, 1981. When such a contention was raised, it was obligatory on the part of the Chairman-cum-Managing Director while exercising its statutory jurisdiction to show that he had applied his mind to the contentions raised. Such application of mind on his part is not apparent from the order. The departmental proceedings are quasi criminal in nature. 41. Under certain circumstances, a decision of a civil court is also binding upon the criminal court although, converse is not true. [See M/s Karamchand Ganga Pershad & Anr. V. Union of India & Ors. [AIR 1971 SC 1244 ]. However, it is also true that the standard of proof in a criminal case and civil case is different. 42. We may notice that in Capt. M. Paul Anthony V. Bharat Gold Mines Ltd. & Anr. [1993 (3) SCC 679] this Court observed: Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. 43. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points point that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate V. Akhil Bharatiya Chah Mazdoor Sangh & Anr. [2004 (8) SCC 200] and Manager, Reserve Bank of India Bangalore V. S. Mani & Ors. [2005 (5) SCC 100] . Each case is therefore, required to be considered on its own facts. 44. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, Reserve Bank of India Bangalore (supra) this Court observed: The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out. 45. In that case also, in view of the admissions made by the Management witness, it was found that tribunals findings were based on no evidence and, thus, irrational. This Court also noticed that the circumstances relied upon by the tribunal were wholly irrelevant stating: The circumstances relied upon, in our opinion, are wholly irrelevant for the purpose of considering as to whether the respondents have completed 240 days of service or not. A party to the lis may or may not succeed in its defence. A party to the lis may be filing representations or raising demands, but filing of such representations or raising of demands cannot be treated as circumstances to prove their case. 46. The Judgment and order of the learned Single Judge suffers from several infirmities. He had observed that the disadvantages of an employer as such acts are committed in secrecy and in conspiracy with the person affected by the accident. No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipso dixit on his part cannot be a substitute of evidence. 47. The findings of the learned Single Judge to the effect that it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same error. 48. The matter may be considered from another angle. The order of the disciplinary authority, in view of the statutory provisions, merged with the order of the appellate authority as also that of the Chairman-cum-Managing Director as the appellate proceedings are in continuation of the original proceedings and, thus, the doctrine of merger shall apply. [See Kunhayammed & Ors. V. State of Kerala & Anr. [(2000) 6 SCC 359] . 49. A revisional jurisdiction as is well known involves exercise of appellate jurisdiction. [See Shankar Ramchandra Abhyankar V. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 and Nalakath Sainuddin v. Koorikadan Sulaiman, (2002) 6 SCC 1]. 50. Mr. Bali, learned counsel appearing on behalf of the appellant raised a contention that the disciplinary proceedings was vitiated as the authorities acted mala fide and with a biased attitude. We do not find any substance therein. 51. | 1[ds]The Judgment and order of the learned Single Judge suffers from several infirmities. He had observed that the disadvantages of an employer as such acts are committed in secrecy and in conspiracy with the person affected by the accident. No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipso dixit on his part cannot be a substitute of evidenceThe findings of the learned Single Judge to the effect that it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same errorThe matter may be considered from another angle. The order of the disciplinary authority, in view of the statutory provisions, merged with the order of the appellate authority as also that of the Chairman-cum-Managing Director as the appellate proceedings are in continuation of the original proceedings and, thus, the doctrine of merger shall apply.26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence27. We may notice that this Court in Ramendra Kishore Biswas V. State of Tripura & Ors. [1999 (1) SCC 472] was clearly of the opinion that a civil suit challenging the legality of a disciplinary proceeding and consequent order of punishment is maintainable. Even this Court in its order dated 29.7.1994 said so29. It is also of some interest to note that the first respondent itself, in the civil suit filed by the firm relied upon a copy of the report of the Enquiry Officer. The first respondent, therefore, itself invited comments as regard the existence of sufficiency of evidence/acceptability thereof and, thus, it may not now be open to them to contend that the report of the Enquiry Officer was sacrosanct30. We have referred to the fact of the matter in some details as also the scope of judicial review only for the purpose of pointing out that neither the learned Single Judge nor the Division Bench of the High court considered the question on merit at all. They referred to certain principles of law but failed to explain as to how they apply in the instant case in the light of the contentions raised before it. Other contentions raised in the writ petition also were not considered by the High Court43. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points point that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate V. Akhil Bharatiya Chah Mazdoor Sangh & Anr. [2004 (8) SCC 200] and Manager, Reserve Bank of India Bangalore V. S. Mani & Ors. [2005 (5) SCC 100] . Each case is therefore, required to be considered on its own facts44. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, Reserve Bank of India Bangalore (supra) this Court observed:The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out45. In that case also, in view of the admissions made by the Management witness, it was found that tribunals findings were based on no evidence and, thus, irrationalThe Judgment and order of the learned Single Judge suffers from several infirmities. He had observed that the disadvantages of an employer as such acts are committed in secrecy and in conspiracy with the person affected by the accident. No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipso dixit on his part cannot be a substitute of evidenceThe findings of the learned Single Judge to the effect that it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same errorThe matter may be considered from another angle. The order of the disciplinary authority, in view of the statutory provisions, merged with the order of the appellate authority as also that of theg Director as the appellate proceedings are in continuation of the original proceedings and, thus, the doctrine of merger shall apply49. A revisional jurisdiction as is well known involves exercise of appellate jurisdiction. [See Shankar Ramchandra Abhyankar V. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 and Nalakath Sainuddin v. Koorikadan Sulaiman, (2002) 6 SCC 1]Mr. Bali, learned counsel appearing on behalf of the appellant raised a contention that the disciplinary proceedings was vitiated as the authorities acted mala fide and with a biased attitude. We do not find any substance therein. | 1 | 6,976 | 1,370 | ### 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:
at all, besides drawing the attention of the Chairman-cum Managing Director to the subsequent event namely the judgment and decree passed by the civil court. The said authority again did not apply its mind while passing his order dated 31st March, 1981. When such a contention was raised, it was obligatory on the part of the Chairman-cum-Managing Director while exercising its statutory jurisdiction to show that he had applied his mind to the contentions raised. Such application of mind on his part is not apparent from the order. The departmental proceedings are quasi criminal in nature. 41. Under certain circumstances, a decision of a civil court is also binding upon the criminal court although, converse is not true. [See M/s Karamchand Ganga Pershad & Anr. V. Union of India & Ors. [AIR 1971 SC 1244 ]. However, it is also true that the standard of proof in a criminal case and civil case is different. 42. We may notice that in Capt. M. Paul Anthony V. Bharat Gold Mines Ltd. & Anr. [1993 (3) SCC 679] this Court observed: Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. 43. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points point that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate V. Akhil Bharatiya Chah Mazdoor Sangh & Anr. [2004 (8) SCC 200] and Manager, Reserve Bank of India Bangalore V. S. Mani & Ors. [2005 (5) SCC 100] . Each case is therefore, required to be considered on its own facts. 44. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, Reserve Bank of India Bangalore (supra) this Court observed: The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out. 45. In that case also, in view of the admissions made by the Management witness, it was found that tribunals findings were based on no evidence and, thus, irrational. This Court also noticed that the circumstances relied upon by the tribunal were wholly irrelevant stating: The circumstances relied upon, in our opinion, are wholly irrelevant for the purpose of considering as to whether the respondents have completed 240 days of service or not. A party to the lis may or may not succeed in its defence. A party to the lis may be filing representations or raising demands, but filing of such representations or raising of demands cannot be treated as circumstances to prove their case. 46. The Judgment and order of the learned Single Judge suffers from several infirmities. He had observed that the disadvantages of an employer as such acts are committed in secrecy and in conspiracy with the person affected by the accident. No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipso dixit on his part cannot be a substitute of evidence. 47. The findings of the learned Single Judge to the effect that it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same error. 48. The matter may be considered from another angle. The order of the disciplinary authority, in view of the statutory provisions, merged with the order of the appellate authority as also that of the Chairman-cum-Managing Director as the appellate proceedings are in continuation of the original proceedings and, thus, the doctrine of merger shall apply. [See Kunhayammed & Ors. V. State of Kerala & Anr. [(2000) 6 SCC 359] . 49. A revisional jurisdiction as is well known involves exercise of appellate jurisdiction. [See Shankar Ramchandra Abhyankar V. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 and Nalakath Sainuddin v. Koorikadan Sulaiman, (2002) 6 SCC 1]. 50. Mr. Bali, learned counsel appearing on behalf of the appellant raised a contention that the disciplinary proceedings was vitiated as the authorities acted mala fide and with a biased attitude. We do not find any substance therein. 51.
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by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same errorThe matter may be considered from another angle. The order of the disciplinary authority, in view of the statutory provisions, merged with the order of the appellate authority as also that of the Chairman-cum-Managing Director as the appellate proceedings are in continuation of the original proceedings and, thus, the doctrine of merger shall apply.26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence27. We may notice that this Court in Ramendra Kishore Biswas V. State of Tripura & Ors. [1999 (1) SCC 472] was clearly of the opinion that a civil suit challenging the legality of a disciplinary proceeding and consequent order of punishment is maintainable. Even this Court in its order dated 29.7.1994 said so29. It is also of some interest to note that the first respondent itself, in the civil suit filed by the firm relied upon a copy of the report of the Enquiry Officer. The first respondent, therefore, itself invited comments as regard the existence of sufficiency of evidence/acceptability thereof and, thus, it may not now be open to them to contend that the report of the Enquiry Officer was sacrosanct30. We have referred to the fact of the matter in some details as also the scope of judicial review only for the purpose of pointing out that neither the learned Single Judge nor the Division Bench of the High court considered the question on merit at all. They referred to certain principles of law but failed to explain as to how they apply in the instant case in the light of the contentions raised before it. Other contentions raised in the writ petition also were not considered by the High Court43. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points point that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate V. Akhil Bharatiya Chah Mazdoor Sangh & Anr. [2004 (8) SCC 200] and Manager, Reserve Bank of India Bangalore V. S. Mani & Ors. [2005 (5) SCC 100] . Each case is therefore, required to be considered on its own facts44. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, Reserve Bank of India Bangalore (supra) this Court observed:The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out45. In that case also, in view of the admissions made by the Management witness, it was found that tribunals findings were based on no evidence and, thus, irrationalThe Judgment and order of the learned Single Judge suffers from several infirmities. He had observed that the disadvantages of an employer as such acts are committed in secrecy and in conspiracy with the person affected by the accident. No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipso dixit on his part cannot be a substitute of evidenceThe findings of the learned Single Judge to the effect that it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same errorThe matter may be considered from another angle. The order of the disciplinary authority, in view of the statutory provisions, merged with the order of the appellate authority as also that of theg Director as the appellate proceedings are in continuation of the original proceedings and, thus, the doctrine of merger shall apply49. A revisional jurisdiction as is well known involves exercise of appellate jurisdiction. [See Shankar Ramchandra Abhyankar V. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 and Nalakath Sainuddin v. Koorikadan Sulaiman, (2002) 6 SCC 1]Mr. Bali, learned counsel appearing on behalf of the appellant raised a contention that the disciplinary proceedings was vitiated as the authorities acted mala fide and with a biased attitude. We do not find any substance therein.
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BRIJ RAJ OBEROI Vs. THE SECRETARY, TOURISM AND CIVIL AVIATION DEPARTMENT & ANR | same would have to be accepted. However, if the quantum of rent or the period of lease could not be mutually agreed upon, the same would necessarily have to be referred to arbitration by an Arbitrator to be appointed by the Chief Justice of the Sikkim High Court. 17. In Vidya Drolia & Ors. v. Durga Trading Corporation (2021) 2 SCC 1, a three- Judge Bench of this Court held :- 151. ....Broad or narrow interpretations of an arbitration agreement can, to a great extent, effect coverage of a retroactive arbitration agreement. Pro-arbitration broad interpretation, normally applied to international instruments, and commercial transactions is based upon the approach that the arbitration clause should be considered as per the true contractual language and what it says, but in case of doubt as to whether related or close disputes in the course of parties business relationship is covered by the clause, the assumption is that such disputes are encompassed by the agreement. The restrictive interpretation approach on the other hand states that in case of doubt the disputes shall not be treated as covered by the clause. Narrow approach is based on the reason that the arbitration should be viewed as an exception to the court or judicial system. The third approach is to avoid either broad or restrictive interpretation and instead the intention of the parties as to scope of the clause is understood by considering the strict language and circumstance of the case in hand. Terms like all, any, in respect of, arising out of, etc. can expand the scope and ambit of the arbitration clause. Connected and incidental matters, unless the arbitration clause suggests to the contrary, would normally be covered. 152. Which approach as to interpretation of an arbitration agreement should be adopted in a particular case would depend upon various factors including the language, the parties, nature of relationship, the factual background in which the arbitration agreement was entered, etc. In case of pure commercial disputes, more appropriate principle of interpretation would be the one of liberal construction as there is a presumption in favour of one-stop adjudication. 153. Accordingly, we hold that the expression existence of an arbitration agreement in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the Arbitral Tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability. xxx xxx xxx 154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act. 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. 18. In the considered opinion of this Court, the Division Bench fell in error in rejecting the application of the Appellant under Section 11(6) of the 1996 Act for appointment of an Arbitrator. The dispute arising out of non-renewal of the lease is clearly arbitrable. As observed above, the deed of lease provided That the initial terms of the lease under this deed shall be a period of twenty four years from 01.06.1997 to 31.05.2021 (First day of June one thousand nine hundred and ninety seven to thirty first day of May two thousand and twenty one) and shall be renewable for such acceptance of the lessees offer in terms of clause 4(xiii) hereinafter. 19. Clause 4(xiii) provides that the Appellant-lessee shall, in the last year of the lease tenure and not later than six months prior to the expiry of the present lease, communicate in writing to the lessor, his terms and conditions for the renewal of the present lease and if the same is accepted by the lessor, then the present lease may be renewed for such further period and on such rent as may be mutually agreed. The arbitration clause cannot be rendered otiose by refusal of the Respondent State to renew the lease. The Respondent State may have formulated a policy for encouraging self-employment of local youth who are duly qualified and competent to run the hotel. Such policy decision cannot impact an existing agreement with a renewal clause. All disputes between the parties to the lease with regard to renewal and/or non-renewal, the period of renewal and the quantum of rent would have be decided by the Arbitrator, as observed above. The issue of arbitrability of the dipsute over non-renewal of the lease is within the realm of the Arbitral Tribunal/Arbitrator. | 1[ds]14. In our considered opinion, the Division Bench fell in error in arriving at the finding that the arbitration clause could only be invoked if the proposal for renewal was accepted by the lessor, but there was dispute with regard to the period of renewal or there was dispute with regard to the quantum of rent proposed to be paid by the lessee to the lessor.15. It is well settled that clauses in a lease deed cannot be read and construed in isolation. The lease deed is to be construed as a whole. Clause 4(xiii) has to be read with Clause 3 which clearly provides that the initial term of the lease under the deed shall be a period of 24 years from 1st June 1997 to 31st May 2021 and shall be renewable for such acceptance of the lessees offer in terms of Clause 4(xiii). Clause 4(xiii) has wrongly been printed as Clause 4(xii). It is not in dispute that it is to be read as Clause 4(xiii) and all concerned have proceeded on the basis that the offer is to be in terms of Clause 4(xiii).16. Prima facie, the parties to the lease deed have used the expression shall which connotes a command. If the lessee offered its terms for renewal or extension of the lease within the time stipulated in the lease, prima facie the same would have to be accepted. However, if the quantum of rent or the period of lease could not be mutually agreed upon, the same would necessarily have to be referred to arbitration by an Arbitrator to be appointed by the Chief Justice of the Sikkim High Court.17. In Vidya Drolia & Ors. v. Durga Trading Corporation (2021) 2 SCC 1, a three- Judge Bench of this Court held :-151. ....Broad or narrow interpretations of an arbitration agreement can, to a great extent, effect coverage of a retroactive arbitration agreement. Pro-arbitration broad interpretation, normally applied to international instruments, and commercial transactions is based upon the approach that the arbitration clause should be considered as per the true contractual language and what it says, but in case of doubt as to whether related or close disputes in the course of parties business relationship is covered by the clause, the assumption is that such disputes are encompassed by the agreement. The restrictive interpretation approach on the other hand states that in case of doubt the disputes shall not be treated as covered by the clause. Narrow approach is based on the reason that the arbitration should be viewed as an exception to the court or judicial system. The third approach is to avoid either broad or restrictive interpretation and instead the intention of the parties as to scope of the clause is understood by considering the strict language and circumstance of the case in hand. Terms like all, any, in respect of, arising out of, etc. can expand the scope and ambit of the arbitration clause. Connected and incidental matters, unless the arbitration clause suggests to the contrary, would normally be covered.152. Which approach as to interpretation of an arbitration agreement should be adopted in a particular case would depend upon various factors including the language, the parties, nature of relationship, the factual background in which the arbitration agreement was entered, etc. In case of pure commercial disputes, more appropriate principle of interpretation would be the one of liberal construction as there is a presumption in favour of one-stop adjudication.153. Accordingly, we hold that the expression existence of an arbitration agreement in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the Arbitral Tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability.xxx xxx xxx154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.18. In the considered opinion of this Court, the Division Bench fell in error in rejecting the application of the Appellant under Section 11(6) of the 1996 Act for appointment of an Arbitrator. The dispute arising out of non-renewal of the lease is clearly arbitrable. As observed above, the deed of lease provided That the initial terms of the lease under this deed shall be a period of twenty four years from 01.06.1997 to 31.05.2021 (First day of June one thousand nine hundred and ninety seven to thirty first day of May two thousand and twenty one) and shall be renewable for such acceptance of the lessees offer in terms of clause 4(xiii) hereinafter.19. Clause 4(xiii) provides that the Appellant-lessee shall, in the last year of the lease tenure and not later than six months prior to the expiry of the present lease, communicate in writing to the lessor, his terms and conditions for the renewal of the present lease and if the same is accepted by the lessor, then the present lease may be renewed for such further period and on such rent as may be mutually agreed. The arbitration clause cannot be rendered otiose by refusal of the Respondent State to renew the lease. The Respondent State may have formulated a policy for encouraging self-employment of local youth who are duly qualified and competent to run the hotel. Such policy decision cannot impact an existing agreement with a renewal clause. All disputes between the parties to the lease with regard to renewal and/or non-renewal, the period of renewal and the quantum of rent would have be decided by the Arbitrator, as observed above. The issue of arbitrability of the dipsute over non-renewal of the lease is within the realm of the Arbitral Tribunal/Arbitrator. | 1 | 3,914 | 1,368 | ### 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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same would have to be accepted. However, if the quantum of rent or the period of lease could not be mutually agreed upon, the same would necessarily have to be referred to arbitration by an Arbitrator to be appointed by the Chief Justice of the Sikkim High Court. 17. In Vidya Drolia & Ors. v. Durga Trading Corporation (2021) 2 SCC 1, a three- Judge Bench of this Court held :- 151. ....Broad or narrow interpretations of an arbitration agreement can, to a great extent, effect coverage of a retroactive arbitration agreement. Pro-arbitration broad interpretation, normally applied to international instruments, and commercial transactions is based upon the approach that the arbitration clause should be considered as per the true contractual language and what it says, but in case of doubt as to whether related or close disputes in the course of parties business relationship is covered by the clause, the assumption is that such disputes are encompassed by the agreement. The restrictive interpretation approach on the other hand states that in case of doubt the disputes shall not be treated as covered by the clause. Narrow approach is based on the reason that the arbitration should be viewed as an exception to the court or judicial system. The third approach is to avoid either broad or restrictive interpretation and instead the intention of the parties as to scope of the clause is understood by considering the strict language and circumstance of the case in hand. Terms like all, any, in respect of, arising out of, etc. can expand the scope and ambit of the arbitration clause. Connected and incidental matters, unless the arbitration clause suggests to the contrary, would normally be covered. 152. Which approach as to interpretation of an arbitration agreement should be adopted in a particular case would depend upon various factors including the language, the parties, nature of relationship, the factual background in which the arbitration agreement was entered, etc. In case of pure commercial disputes, more appropriate principle of interpretation would be the one of liberal construction as there is a presumption in favour of one-stop adjudication. 153. Accordingly, we hold that the expression existence of an arbitration agreement in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the Arbitral Tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability. xxx xxx xxx 154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act. 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. 18. In the considered opinion of this Court, the Division Bench fell in error in rejecting the application of the Appellant under Section 11(6) of the 1996 Act for appointment of an Arbitrator. The dispute arising out of non-renewal of the lease is clearly arbitrable. As observed above, the deed of lease provided That the initial terms of the lease under this deed shall be a period of twenty four years from 01.06.1997 to 31.05.2021 (First day of June one thousand nine hundred and ninety seven to thirty first day of May two thousand and twenty one) and shall be renewable for such acceptance of the lessees offer in terms of clause 4(xiii) hereinafter. 19. Clause 4(xiii) provides that the Appellant-lessee shall, in the last year of the lease tenure and not later than six months prior to the expiry of the present lease, communicate in writing to the lessor, his terms and conditions for the renewal of the present lease and if the same is accepted by the lessor, then the present lease may be renewed for such further period and on such rent as may be mutually agreed. The arbitration clause cannot be rendered otiose by refusal of the Respondent State to renew the lease. The Respondent State may have formulated a policy for encouraging self-employment of local youth who are duly qualified and competent to run the hotel. Such policy decision cannot impact an existing agreement with a renewal clause. All disputes between the parties to the lease with regard to renewal and/or non-renewal, the period of renewal and the quantum of rent would have be decided by the Arbitrator, as observed above. The issue of arbitrability of the dipsute over non-renewal of the lease is within the realm of the Arbitral Tribunal/Arbitrator.
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time stipulated in the lease, prima facie the same would have to be accepted. However, if the quantum of rent or the period of lease could not be mutually agreed upon, the same would necessarily have to be referred to arbitration by an Arbitrator to be appointed by the Chief Justice of the Sikkim High Court.17. In Vidya Drolia & Ors. v. Durga Trading Corporation (2021) 2 SCC 1, a three- Judge Bench of this Court held :-151. ....Broad or narrow interpretations of an arbitration agreement can, to a great extent, effect coverage of a retroactive arbitration agreement. Pro-arbitration broad interpretation, normally applied to international instruments, and commercial transactions is based upon the approach that the arbitration clause should be considered as per the true contractual language and what it says, but in case of doubt as to whether related or close disputes in the course of parties business relationship is covered by the clause, the assumption is that such disputes are encompassed by the agreement. The restrictive interpretation approach on the other hand states that in case of doubt the disputes shall not be treated as covered by the clause. Narrow approach is based on the reason that the arbitration should be viewed as an exception to the court or judicial system. The third approach is to avoid either broad or restrictive interpretation and instead the intention of the parties as to scope of the clause is understood by considering the strict language and circumstance of the case in hand. Terms like all, any, in respect of, arising out of, etc. can expand the scope and ambit of the arbitration clause. Connected and incidental matters, unless the arbitration clause suggests to the contrary, would normally be covered.152. Which approach as to interpretation of an arbitration agreement should be adopted in a particular case would depend upon various factors including the language, the parties, nature of relationship, the factual background in which the arbitration agreement was entered, etc. In case of pure commercial disputes, more appropriate principle of interpretation would be the one of liberal construction as there is a presumption in favour of one-stop adjudication.153. Accordingly, we hold that the expression existence of an arbitration agreement in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the Arbitral Tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability.xxx xxx xxx154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.18. In the considered opinion of this Court, the Division Bench fell in error in rejecting the application of the Appellant under Section 11(6) of the 1996 Act for appointment of an Arbitrator. The dispute arising out of non-renewal of the lease is clearly arbitrable. As observed above, the deed of lease provided That the initial terms of the lease under this deed shall be a period of twenty four years from 01.06.1997 to 31.05.2021 (First day of June one thousand nine hundred and ninety seven to thirty first day of May two thousand and twenty one) and shall be renewable for such acceptance of the lessees offer in terms of clause 4(xiii) hereinafter.19. Clause 4(xiii) provides that the Appellant-lessee shall, in the last year of the lease tenure and not later than six months prior to the expiry of the present lease, communicate in writing to the lessor, his terms and conditions for the renewal of the present lease and if the same is accepted by the lessor, then the present lease may be renewed for such further period and on such rent as may be mutually agreed. The arbitration clause cannot be rendered otiose by refusal of the Respondent State to renew the lease. The Respondent State may have formulated a policy for encouraging self-employment of local youth who are duly qualified and competent to run the hotel. Such policy decision cannot impact an existing agreement with a renewal clause. All disputes between the parties to the lease with regard to renewal and/or non-renewal, the period of renewal and the quantum of rent would have be decided by the Arbitrator, as observed above. The issue of arbitrability of the dipsute over non-renewal of the lease is within the realm of the Arbitral Tribunal/Arbitrator.
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