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Grand View Estates Private Limited Vs. Vishwanath Namdeo Patil & Others | viz (1) that after selling the assets of the Company and distributing the assets for paying off liabilities, the Company may still have surplus amount or in the alternative the liabilities would outweigh the amount realized by the sale of assets in which case even though both, workers and secured creditors had priority would have to accordingly rateably get their share out of assets and whatever remains would be distributed ratably amongst the other creditors. Therefore, in our view, the Official Liquidator would have to then consider whether there would be any surplus of assets over liabilities to see whether paripasu benefit could be given to the workers and take it to its logical conclusion. The Official Liquidator in such a case therefore would have to consider the last order of actual winding up of the Company as the order from the date of which the workers dues would have to be calculated. In our view, such purposive interpretation or purposes & objectives approach could harmonize the intention of the legislature in giving paripasu benefit to workers alongwith the secured creditors.39. In the present case the facts which are undisputed are as under:-The Appellants before this Court are not only the secured creditors but also the majority shareholders. The Appellant No.1 held from earlier 22.70% of the shares and is part of the Shahpoorji Pallonji Group, which is in turn part of the Tata Group which owned the Mill in liquidation. The Appellant No.2 is also a part of the Shahpoorji Palonji Group and engaged in real estate development construction and infrastructure business. It acquired 29.29% of the shares in 2010 after the Order of winding up, thus giving the Appellants together 52% of the equity shares of the Company. Similarly, after the order of winding up, in 2006 and 2007 the debts of the only two secured creditors, IDBI and Bank of Baroda, were assigned to the Appellant No.2, as also the debts of 70 out of the 146 unsecured creditors. Given the extent of the immovable assets yet to be sold, which include 48 acres of prime land in the heart of Mumbai City, after the sale of these assets there will be a surplus even after payment is made from the proceeds to the workmen and creditors. In this situation as per section 475 of the Companies Act, 1956, any surplus shall be distributed amongst the contributors. Once the winding up order is passed the shareholders as also the ex-directors become contributories (S.427 & S. 428 of the Companies Act, 1956). Thus any surplus in this matter will be distributed to the Appellants in their capacity as shareholders. If the date of calculation of dues is taken as the date of winding up, in matters where there is surplus like the present, the workmen will get a larger amount than they would if the cut-off date is taken as the appointment of the Provisional Liquidator. The dues of the secured creditor in the present matter grew at a phenomenal rate even after the de facto closure of the factory/ BIFR recommendation etc due to the fact that their decree from the DRT has grant in 2003 an amount, as of 13/01/2003, of Rs 27,46,04,358.24 (Rs 22,14,17,645/- + Rs 5,31,86,713.24) with future interest @ 16% p.a with quarterly rests. Given this staggering rate of interest, by 2011 this amount had grown to Rs 193,85,74,592/-. (report of Official Liquidator dated 12/07/2011, paras 46(ii) & 57(E).40. Since the immovable property of Svadeshi Mills admittedly has not been sold and it has a land of almost about 50 acres in the heart of the City which is a prime residential and commercial area, the Official Liquidator would receive substantial amount (approximately Rs 1000 crores) to say the least by sale of these assets. The Grandview Estates Private Limited which is a majority shareholder of the Company and whose SLP is pending in the Apex Court, if it is permitted to develop this property it would make substantial profit by developing the said land since it is a developer and builder and earn profit and also get its dues as per the decree passed by DRT wherein they are entitled to get the decretal amount with compound interest. Taking into consideration these facts, in our view, the legislative intention therefore would be taken to its logical conclusion. Therefore, it will have to be held that the date of the last order of the winding up of the Company would be the date from which the workers dues would be calculated and not the earlier date on which much emphasis is laid by the learned Senior Counsel appearing on behalf of the Appellants. In the facts and circumstances of this case therefore issue No. (a) framed in para 20 above is held to be in the affirmative. Issue Nos. (b) to (d) in the facts of the present case will have to be answered in the negative. The question framed in para 2, viz. :Whether, in an adjudication proceedings before the Official Liquidator, dues of the workers are to be calculated from the date of actual winding up of the Company by the Company Court or whether they should be calculated from the date of appointment of the Provisional Liquidator with full powers to sell the assets or from the date on which there is cessation of work on account of various valid legal reasonstherefore, will have to be held as under:Depends on the facts and circumstances of each case.41. In view of this it will not be necessary to go into the question as to whether permission has to be obtained by the Company or the Official Liquidator under Section 25-O(6) in order to stop the claim of the workers. We are, therefore, of the view that it is not necessary to interfere with the judgment and order passed by the learned Single Judge, though the reasons given by us are slightly different from the reasons given by the learned Single Judge. | 0[ds]31. In our view, to some extent, there is a substance in the submission made by the learned Senior Counsel appearing on behalf of the Appellants that the date under section 445(3) cannot be the last date from which there would be cessation ofrelationship. In Carne and Another vs. Debono (1988) 1 W.L.R. 1107) in the facts of that case, it was observed by the Court of Appeal ascan now turn to the main point which the purchaser himself urged. It is clear on the masters finding that time was of the essence for the completion of the contract on 5 February. That being so, it is surprising to find no completion statement and no attempt to agree the sum due on completion until 10 minutes past 10 on that morning, apart from a telephone communication the previous day. What is more, in the respects that I have mentioned, the completion statement was wholly defective. What had proceeded in an extremely dilatory matter had suddenly become the most urgent procedure that I personally have come across; viz. No completion statement being provided until the very morning of the crucial day. The purchaser asks what was he to do : his solicitors were in funds but what had been asked from them was the payment of a sum which, on the face of the completion statement, was the wrong sum: The purchaser submitted , in effect, that the vendors were in breach of contract in that they failed to send in good time a completion statement specifying the right amount due. He also relied on special condition 12(h) which deems any notice given by other parties under the agreement to have been served on the expiration of 48 hours after it had been posted. Applying that to the faxed completion statement, he said it had to be deemed not to have been received until two days after the crucial date of 5 February.In our view, therefore, if the other dates are not applicable in the facts and circumstances of the case then, in that case, the date of winding up would be the date on which the relationship ofwould come to an end and from that date workmen would be entitled to get their legal dues. Therefore, there cannot be anyformula which can be arrived at by holding that the date under section 445(3) would be the only cut off date from which workers dues are to be calculated and in a given case, it is possible to hold that earlier date could be the cut off date for calculating the workers dues. To that extent, we disagree with the view taken by the learned Single Judge that date under section 445(3) would be the only date from which workers dues can be calculated.In our view, as we have pointed out hereinabove, while calculating the cut off date the facts in each case have to be taken into consideration. The Amendment Act of 1985 which amended various provisions of winding up proceedings is a beneficial piece of legislation which was brought about to give equal priority to the workers who had contributed to accumulation of capital and revenue of the Company. The Parliament amended the Act and held that the workers dues had a pari passu charge over the secured creditors dues. The import of the said amendment was to give equal status to workers as that of secured creditors. In a winding up proceedings, there could be two possible results viz (1) that after selling the assets of the Company and distributing the assets for paying off liabilities, the Company may still have surplus amount or in the alternative the liabilities would outweigh the amount realized by the sale of assets in which case even though both, workers and secured creditors had priority would have to accordingly rateably get their share out of assets and whatever remains would be distributed ratably amongst the other creditors. Therefore, in our view, the Official Liquidator would have to then consider whether there would be any surplus of assets over liabilities to see whether paripasu benefit could be given to the workers and take it to its logical conclusion. The Official Liquidator in such a case therefore would have to consider the last order of actual winding up of the Company as the order from the date of which the workers dues would have to be calculated. In our view, such purposive interpretation or purposesobjectives approach could harmonize the intention of the legislature in giving paripasu benefit to workers alongwith the secured creditors.In view of this it will not be necessary to go into the question as to whether permission has to be obtained by the Company or the Official Liquidator under Sectionin order to stop the claim of the workers. We are, therefore, of the view that it is not necessary to interfere with the judgment and order passed by the learned Single Judge, though the reasons given by us are slightly different from the reasons given by the learned Single Judge. | 0 | 7,171 | 915 | ### Instruction:
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viz (1) that after selling the assets of the Company and distributing the assets for paying off liabilities, the Company may still have surplus amount or in the alternative the liabilities would outweigh the amount realized by the sale of assets in which case even though both, workers and secured creditors had priority would have to accordingly rateably get their share out of assets and whatever remains would be distributed ratably amongst the other creditors. Therefore, in our view, the Official Liquidator would have to then consider whether there would be any surplus of assets over liabilities to see whether paripasu benefit could be given to the workers and take it to its logical conclusion. The Official Liquidator in such a case therefore would have to consider the last order of actual winding up of the Company as the order from the date of which the workers dues would have to be calculated. In our view, such purposive interpretation or purposes & objectives approach could harmonize the intention of the legislature in giving paripasu benefit to workers alongwith the secured creditors.39. In the present case the facts which are undisputed are as under:-The Appellants before this Court are not only the secured creditors but also the majority shareholders. The Appellant No.1 held from earlier 22.70% of the shares and is part of the Shahpoorji Pallonji Group, which is in turn part of the Tata Group which owned the Mill in liquidation. The Appellant No.2 is also a part of the Shahpoorji Palonji Group and engaged in real estate development construction and infrastructure business. It acquired 29.29% of the shares in 2010 after the Order of winding up, thus giving the Appellants together 52% of the equity shares of the Company. Similarly, after the order of winding up, in 2006 and 2007 the debts of the only two secured creditors, IDBI and Bank of Baroda, were assigned to the Appellant No.2, as also the debts of 70 out of the 146 unsecured creditors. Given the extent of the immovable assets yet to be sold, which include 48 acres of prime land in the heart of Mumbai City, after the sale of these assets there will be a surplus even after payment is made from the proceeds to the workmen and creditors. In this situation as per section 475 of the Companies Act, 1956, any surplus shall be distributed amongst the contributors. Once the winding up order is passed the shareholders as also the ex-directors become contributories (S.427 & S. 428 of the Companies Act, 1956). Thus any surplus in this matter will be distributed to the Appellants in their capacity as shareholders. If the date of calculation of dues is taken as the date of winding up, in matters where there is surplus like the present, the workmen will get a larger amount than they would if the cut-off date is taken as the appointment of the Provisional Liquidator. The dues of the secured creditor in the present matter grew at a phenomenal rate even after the de facto closure of the factory/ BIFR recommendation etc due to the fact that their decree from the DRT has grant in 2003 an amount, as of 13/01/2003, of Rs 27,46,04,358.24 (Rs 22,14,17,645/- + Rs 5,31,86,713.24) with future interest @ 16% p.a with quarterly rests. Given this staggering rate of interest, by 2011 this amount had grown to Rs 193,85,74,592/-. (report of Official Liquidator dated 12/07/2011, paras 46(ii) & 57(E).40. Since the immovable property of Svadeshi Mills admittedly has not been sold and it has a land of almost about 50 acres in the heart of the City which is a prime residential and commercial area, the Official Liquidator would receive substantial amount (approximately Rs 1000 crores) to say the least by sale of these assets. The Grandview Estates Private Limited which is a majority shareholder of the Company and whose SLP is pending in the Apex Court, if it is permitted to develop this property it would make substantial profit by developing the said land since it is a developer and builder and earn profit and also get its dues as per the decree passed by DRT wherein they are entitled to get the decretal amount with compound interest. Taking into consideration these facts, in our view, the legislative intention therefore would be taken to its logical conclusion. Therefore, it will have to be held that the date of the last order of the winding up of the Company would be the date from which the workers dues would be calculated and not the earlier date on which much emphasis is laid by the learned Senior Counsel appearing on behalf of the Appellants. In the facts and circumstances of this case therefore issue No. (a) framed in para 20 above is held to be in the affirmative. Issue Nos. (b) to (d) in the facts of the present case will have to be answered in the negative. The question framed in para 2, viz. :Whether, in an adjudication proceedings before the Official Liquidator, dues of the workers are to be calculated from the date of actual winding up of the Company by the Company Court or whether they should be calculated from the date of appointment of the Provisional Liquidator with full powers to sell the assets or from the date on which there is cessation of work on account of various valid legal reasonstherefore, will have to be held as under:Depends on the facts and circumstances of each case.41. In view of this it will not be necessary to go into the question as to whether permission has to be obtained by the Company or the Official Liquidator under Section 25-O(6) in order to stop the claim of the workers. We are, therefore, of the view that it is not necessary to interfere with the judgment and order passed by the learned Single Judge, though the reasons given by us are slightly different from the reasons given by the learned Single Judge.
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31. In our view, to some extent, there is a substance in the submission made by the learned Senior Counsel appearing on behalf of the Appellants that the date under section 445(3) cannot be the last date from which there would be cessation ofrelationship. In Carne and Another vs. Debono (1988) 1 W.L.R. 1107) in the facts of that case, it was observed by the Court of Appeal ascan now turn to the main point which the purchaser himself urged. It is clear on the masters finding that time was of the essence for the completion of the contract on 5 February. That being so, it is surprising to find no completion statement and no attempt to agree the sum due on completion until 10 minutes past 10 on that morning, apart from a telephone communication the previous day. What is more, in the respects that I have mentioned, the completion statement was wholly defective. What had proceeded in an extremely dilatory matter had suddenly become the most urgent procedure that I personally have come across; viz. No completion statement being provided until the very morning of the crucial day. The purchaser asks what was he to do : his solicitors were in funds but what had been asked from them was the payment of a sum which, on the face of the completion statement, was the wrong sum: The purchaser submitted , in effect, that the vendors were in breach of contract in that they failed to send in good time a completion statement specifying the right amount due. He also relied on special condition 12(h) which deems any notice given by other parties under the agreement to have been served on the expiration of 48 hours after it had been posted. Applying that to the faxed completion statement, he said it had to be deemed not to have been received until two days after the crucial date of 5 February.In our view, therefore, if the other dates are not applicable in the facts and circumstances of the case then, in that case, the date of winding up would be the date on which the relationship ofwould come to an end and from that date workmen would be entitled to get their legal dues. Therefore, there cannot be anyformula which can be arrived at by holding that the date under section 445(3) would be the only cut off date from which workers dues are to be calculated and in a given case, it is possible to hold that earlier date could be the cut off date for calculating the workers dues. To that extent, we disagree with the view taken by the learned Single Judge that date under section 445(3) would be the only date from which workers dues can be calculated.In our view, as we have pointed out hereinabove, while calculating the cut off date the facts in each case have to be taken into consideration. The Amendment Act of 1985 which amended various provisions of winding up proceedings is a beneficial piece of legislation which was brought about to give equal priority to the workers who had contributed to accumulation of capital and revenue of the Company. The Parliament amended the Act and held that the workers dues had a pari passu charge over the secured creditors dues. The import of the said amendment was to give equal status to workers as that of secured creditors. In a winding up proceedings, there could be two possible results viz (1) that after selling the assets of the Company and distributing the assets for paying off liabilities, the Company may still have surplus amount or in the alternative the liabilities would outweigh the amount realized by the sale of assets in which case even though both, workers and secured creditors had priority would have to accordingly rateably get their share out of assets and whatever remains would be distributed ratably amongst the other creditors. Therefore, in our view, the Official Liquidator would have to then consider whether there would be any surplus of assets over liabilities to see whether paripasu benefit could be given to the workers and take it to its logical conclusion. The Official Liquidator in such a case therefore would have to consider the last order of actual winding up of the Company as the order from the date of which the workers dues would have to be calculated. In our view, such purposive interpretation or purposesobjectives approach could harmonize the intention of the legislature in giving paripasu benefit to workers alongwith the secured creditors.In view of this it will not be necessary to go into the question as to whether permission has to be obtained by the Company or the Official Liquidator under Sectionin order to stop the claim of the workers. We are, therefore, of the view that it is not necessary to interfere with the judgment and order passed by the learned Single Judge, though the reasons given by us are slightly different from the reasons given by the learned Single Judge.
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Association Of Leasing & Finanl.Ser.Cos Vs. Union Of India | of Seventh Schedule to the Constitution. 38. According to Mr. Arvind Datar and Mr. K. Parasaran, learned counsel appearing on behalf of some of the appellants, once the subject matter of hire-purchase and leasing is constitutionally characterized as a sale (deemed sale) by the Constitution (Forty-sixth Amendment) Act, the said subject matter can be taxed only under Entry 54, List II and it cannot be taxed under Entry 97, List I. According to the learned counsel, the object behind enactment of the Constitution (Forty-sixth Amendment) Act was to reserve the exclusive competence to tax hire-purchase transactions with the State Legislature and exclude the Parliament from the legislative sphere. In support of the above contentions, learned counsel placed reliance on para 44 of the judgment of this Court in the case of Bharat Sanchar Nigam Limited (supra), the relevant portion of which is quoted hereinbelow: "44. Of all the different kinds of composite transactions, the drafters of the Forty-Sixth Amendment chose three specifications, a works contract, a hire- purchase contract and a catering contract to bring them within the fiction of a deemed sale. Of these three, the first and third involve a kind of service and sale at the same time." 39. Emphasizing the underlined words, the learned counsel contended that a hire-purchase does not involve a sale and service at the same time and, therefore, service tax cannot be levied on the interest/ finance charges which is sought to be done in the present case. In our view, the judgment in Bharat Sanchar Nigam Limiteds case has no application to the present case. As stated above, what is challenged in this case is the service tax imposed by Section 66 of the Finance Act, 1994 (as amended) on the value of taxable services referred to in Section 65(105)(zm) read with Section 65(12) of the said Act, insofar as it relates to financial leasing services including equipment leasing and hire-purchase as beyond the legislative competence of Parliament by virtue of Article 366(29A) of the Constitution. In short, legislative competence of the Parliament to impose service tax on financial leasing services including equipment leasing and hire-purchase is the subject matter of challenge. Legislative competence was not the issue before this Court in the Bharat Sanchar Nigam Limiteds case. In that case, the principal question which arose for determination was in respect of the nature of the transaction by which mobile phone connections are enjoyed. The question was whether such connections constituted a sale or a service or both. If it was a sale then the States were legislatively competent to levy sales tax on the transaction under Entry 54, List II of the Seventh Schedule to the Constitution. If it was service then the Central Government alone had the legislative competence to levy service tax under Entry 97, List I and if the nature of the transaction partook of the character of both sale and service, then the moot question would be whether both the legislative authorities could levy their separate taxes together or only one of them. It was held that the subject transaction was a service and, thus, the Parliament had legislative competence to levy service tax under Entry 97, List I. In para 88 of the said judgment, this Court observed that "No one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow the State to entrench upon the Union List and tax services by including the cost of such service in the value of the goods". The principle of law in para 88 squarely applies to the present case. As stated above, we are concerned with "financial leasing services" which are sought to be taxed under Section 65(12)(a)(i). The taxable event is indicated in Section 65(105)(zm). As stated above, the impugned provision operates qua an activity of funding/financing of equipment/ asset under equipment leasing under which a lessee is free to select, order, take delivery and maintain the asset. The lessor (NBFC) arranges the finances. It accepts the invoice from the vendor (supplier) and pays him. Thus, the lessor (NBFC) renders financial services to its customer(s) and what is taxed under the impugned provision is the income, by way of finance/ interest charges in addition to management fees/ documentation charges, which is earned by the financier (lessor). The taxable event is the service which is rendered by the finance company to its customer(s). The value of taxable service under Section 67 is income by way of interest/finance charges (measure of tax) which is not determinative of the character of the levy. Thus, Section 67 of the Finance Act, 1994 seeks to tax financial services rendered by the appellant(s) with reference to the income which the appellant(s) earns by way of interest/ finance charges. In the circumstances and for the reasons given hereinabove, the question of splitting up of transactions, as contended on behalf of the appellant(s), does not arise. As held hereinabove, equipment leasing and hire-purchase finance constitute long term financing activity. Such an activity was not the subject matter of the discussion in the Bharat Sanchar Nigam Limiteds case. The service tax in the present case is neither on the material nor on sale. It is on the activity of financing/funding of equipment/asset within the meaning of the words "financial leasing services" in Section 65(12)(a)(i). Lastly, we may state that this Court has on three different occasions upheld the levy of service with reference to Entry 97 of List I in the face of challenges to the competence of the Parliament based on the entries in List II and on all the three occasions, this Court has held that the levy of service tax falls within Entry 97 of List I. The decisions are in the case of T.N. Kalayana Mandapam Association (supra), Gujarat Ambuja Cements Ltd. (supra) and All-India Federation of Tax Practitioners (supra). | 0[ds]The service taximposed by Section 66on the value of taxable services referred to in Section 65insofar as it relates to financial leasing services including equipment leasing and hire-purchase is within the legislative competence of the Parliament under Entry 97, List I of the Seventh Schedule to thethis connection, as and by way of illustration we need to give an illustration which brings out the distinction between a "finance lease" and "operating lease". A finance lease transfers all the risks and rewards incidental to ownership, even though the title may or may not be eventually transferred to the lessee. In the case of "finance lease" the lessee could use the asset for its entire economic life and thereby acquires risks and rewards incidental to the ownership of such assets. In substance, finance lease is a financial loan from the lessor to the lessee. On the other hand an operating lease is a lease other than the finance lease. Accounting of a "finance lease" is underwhich as stated above, is mandatory for NBFCs. It is a completely different regime. According to Chitty on Contract, aagreement is a vehicle of instalment credit. It is an agreement under which an owner lets chattels out on hire and further agrees that the hirer may either return the goods and terminate the hiring or elect to purchase the goods when the payments for hire have reached a sum equal to the amount of the purchase price stated in the agreement or upon payment of a stated sum. The essence of the transaction is bailment of goods by the owner to the hirer and the agreement by which the hirer has the option to return the goods at some time or the other [See para 36.242, 36.243]. Further, in the bailment termed "hire" the bailee receives both possession of the chattel and the right to use it in return for remuneration to be paid to the bailor [See para 32.045]. Further, under the head "equipment leasing", it is explained that it is a form offinancing. In a finance lease, it is the lessee who selects the equipment to be supplied by the dealer or the manufacturer, but the lessor [finance company] provides the funds, acquires the title to the equipment and allows the lessee to use it for its expected life. During the period of the lease the risk and rewards of ownership are transferred to the lessee who bears the risks of loss, destruction and depreciation or malfunctioning. The bailment which underlies finance leasing is only a device to provide the finance company with a security interest [its reversionary right]. If the lease is terminated prematurely, the lessor is entitled to recoup its capital investment [less the realizable value of the equipment at the time] and its expected finance charges [less an allowance to reflect the return of the capital] [parais in this background that we have considered the question whether the power to tax indivisible contracts of works should be conferred on the States. It is in the above background that the Law Commission in fact observes "Supreme Court with respect appears to have adopted an unusually restricted interpretation of the word "sale"". It is true that the word "sale" is not defined in the Constitution but is well recognized canon of construction that the words used in the three legislative Lists should receive the widest interpretation and not to the narrow definition of the word "sale" contained in the Sale of Goods Act for the purpose of interpreting that expression in Entry 54, List II. That is the principal juridical ground on which we have expressed our preference for the transfer of power to tax such contracts to the State Legislatures. That, the Commission would prefer restoration of the power to State legislature [See pages 19 and 20]. Thus, to restore the power to levy sales tax on such contracts, the Commission suggested the third out of the threealternatives:(i) amending State List Entry 54;(ii) adding a fresh Entry in the State List;(iii) inserting in Article 366 a wide definition of "sale" so as to include works contract.27. It is the third alternative that brought in Article 366(29A) vide the ConstitutionAmendment) Act, 1982 (page 21). Even in the context ofcontracts the same alternative is opted for by the Commission. However, two observations of the Commission may be noticed. The first is in para 25, page 32. It reads aseffect of the judgment in K.L. Johars case is to reduce the tax base on which sales tax is payable. A tax onwithout sale can be levied on the full value of thetransaction by the Union under the residuary powerentry 97 of Union List.To the same effect is the observation of the Commission at pagepower to taxwithin the State also vests in the Union under Union List, entry 97.Thus, before the Constitutionase transaction could have been taxed by Union under Entry 97, List I but as a matter of policy Parliament brought in Article 366 (29A) as recommended by the Commission. The point to be noted is that reliance on the report [though it helps our above reasoning on some of the aspects] placed by the appellant (s) only shows that service tax was not in the mind of Parliament when the ConstitutionAmendment) Act stood enacted. It was not even in the mind of the Law Commission. That, as stated above, only on the principal juridical ground that the word "sale" in Entry 54, List II should have been read widely, the Commission suggested that Article 366 be amended so thatpower to taxsuch contracts remains with the State Legislature as originally intended. In fact at page 20, the Commission states "before the judgment of the Supreme Court in Gannon Dunkerleys case, the word "sale" was usually regarded as including works contract and works contract was regarded as falling in Entry 54, List II and that taxes were in fact being levied and recovered by the States".Scope of Article 366(29A)30. If one examines Article 366(29A) carefully, one finds that clause (29A) provides for an inclusive definition and has two limbs. The first limb says that the tax on sale or purchase of goods includes a tax on transactions specified in(a) to (f). The second limb provides that such transfer, delivery or supply of goods referred to in the first limb shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and purchase of those goods by the person to whom such transfer, delivery or supply is made. Now, in K.L. Johars case, this Court held that the States can taxtransactions resulting in sale but only to the extent to which tax is levied on the sale price. This led the Parliament to say, in the Statement of Objects and Reasons to the ConstitutionAmendment) Act, "though practically the purchaser in atransaction gets the goods on the date of entering into thecontract, it has been held by the Supreme Court in K.L. Johars case that there is a sale only when the purchaser exercises the option to purchase which is at a later date and therefore only the depreciated value of the goods involved in such transaction at the time the option is exercised becomes assessable to sales tax which position has resulted in avoidance of tax in various ways." Thus, we find from the Statement of Objects and Reasons that the concept of "deemed sale" is brought in by the ConstitutionAmendment) Act only in the context of imposition of sales tax and that the words "transfer, delivery or supply" of goods is referred to in the second limb of Article 366(29A) to broaden the tax base and that as indicated in the Report of Law Commission prior to the judgment of this Court in Gannon Dunkerleys case, works contract was always taxed by the States as part of the word "sale" in Entry 48/54 of List II. The object behind enactment of Article 366(29A) is to tax the composite price so that the full value of theprice is taxed and to avoid the judgment in K.L. Johars case whose implication was to narrow the tax base resulting in seepage of sales tax revenue. It is in that sense "splitting" of the contract needs to be understood. Thus, it cannot be said that Parliament divested itself of the power to levy service tax vide enactment of the ConstitutionAmendment) Act. Even in the Report of the Law Commission, it has been observed that "if atransaction results in a sale,is undoubtedly leviable by the States. No doubt, it is difficult to determine the "sale price" for the purpose of the sales tax law but this has no bearing on the question of legislative competence" (page 26). Thus, reliance placed by the appellant(s) on the expression "splitting up" in K.L. Johars case is misconceived because the "splitting up" referred to in K.L. Johars case was, as stated above, in regard to valuation and not in regard to legislative competence.For answering the above, we need to keep in mind the doctrine of "pith and substance" and the rule of interpretation of legislative entries. These have to be applied to what is stated hereinabove in the earlier part of our judgment in which we have dealt with the concept of "banking and other financial services" and the nature and character of "service tax" as a tax on activities. We may reiterate that Equipment Leasing andFinance are activities of long term financing and they fall within the ambit of "banking and other financial services". As stated above, a financial lease is a lease that transfers substantially all risks and rewards incident to ownership. In the said lease, the lessor (NBFC) merely finances the equipment/ asset which the lessee is free to select, order, take delivery and maintain. The lessor (NBFC) arranges the funding. It accepts the invoice from the vendor (supplier) and pays him. The income which the lessor earns is by way of finance/ interest charges in addition to the management fees or documentation charges, etc. It is this income which constitutes the measure of tax for the purposes of calculating the value of taxable services under Section 67 of the Finance Act, 1994. Thus, a financial lease would come within "financial leasing services" in terms of Section 65(12)(a)(i). There are different types of financial leases, namely, afinancial lease, a leverage lease and an operating lease. In the present case, there is no adjudication of the matter. The appellant(s) approached the High Court directly without proper adjudication by the competent authority under the Finance Act, 1994. Even in the matter of allocation between the principal and finance/ interest charges, adjudication under the Act was warranted which has not been done. One must also bear in mind that Article 366(29A) is essentially sales tax specific. It was brought in to expand the tax base which stood narrowed down because of certain judgments of this Court. That is the reason for bringing in the concept of "deemed sale" under which tax could be imposed on mere "delivery" on[See clause (c)] which expression is also there in the second limb of the said article.Now coming to the main point whether the whole field is covered by Entry 54 and that the levy of service tax is incompetent, it is important to note the language of Entry 97, List I and Article 248 except for the word "other" in Entry 97. This is because when one reads Entry 97 of List I with Article 246(1) it confers exclusive power first, to make laws in respect of matters specified in Entries 1 to 96 in List I and, secondly, it confers the residuary power of making laws by Entry 97. Article 248 does not provide for any express powers of Parliament but only for its residuary power. Article 248 adds nothing to the power conferred by Article 246(1) read with Entry 97, List I. In the context of an exhaustive enumeration of subjects of legislation what does the conferment of residuary power mean? Entry 97, List I which confers residuary powers on Parliament provides "any other matter not enumerated in List II and List III including any tax not mentioned in either of those lists". The word "other" is important. It means "any subject of legislation other than the subject mentioned in EntriesLastly, we must keep in mind a clear distinction between the subject and measure of tax. [See Goodricke Group Ltd. v. State of West Bengal, (1995) Suppl 1 SCC 707] 37. Applying the above decisions to the present case, on examination of the impugned legislation in its entirety, we are of the view that the impugned levy relates to or is with respect to the particular topic of "banking and other financial services" which includes within it one of the several enumerated services, viz., financial leasing services. These include long time financing by banks and other financial institutions (including NBFCs). These are services rendered to their customers which comes within the meaning of the expression "taxable services" as defined in Section 65(105)(zm). The taxable event under the impugned law is the rendition of service. The impugned tax is not on material or sale. It is on activity/ service rendered by the service provider to its customer. Equipment Leasing/finance are long term financing activities undertaken as their business by NBFCs. As far as the taxable value in case of financial leasing including equipment leasing andis concerned, the amount received as principal is not the consideration for services rendered. Such amount is credited to the capital account of the lessor/service provider. It is the interest/ finance charge which is treated as income or revenue and which is credited to the revenue account. Such interest or finance charges together with the lease management fee/ processing fee/ documentation charges are treated as considerations for the services rendered and accordingly they constitute the value of taxable services on which service tax is made payable. In fact, the Government has given exemption from payment of service tax to financial leasing services including equipment leasing andon that portion of taxable value comprising of 90% of the amount representing as interest, i.e., the difference between the instalment paid towards repayment of the lease amount and the principal amount in such instalments paid (See Notification No. 4/2006Service Tax dated 1.3.2006). In other words, service tax is leviable only on 10% of the interest portion. (See also Circular F.No.dated 9.7.2001 in which it has been clarified that service tax, in the case of financial leasing including equipment leasing andwill be leviable only on the lease management fees/ processing fees/ documentation charges recovered at the time of entering into the agreement and on the finance/ interest charges recovered in equated monthly instalments and not on the principal amount). Merely because for valuation purposes inter alia "finance/ interest charges" are taken into account and merely because service tax is imposed on financial services with reference to "hiring/ interest" charges, the impugned tax does not cease to be service tax and nor does it become tax onleasing transactions under Article 366(29A) read with Entry 54, List II. Thus, while State Legislature is competent to impose tax on "sale" by legislation relatable to Entry 54 of List II of Seventh Schedule, tax on the aspect of the "services", vendor not being relatable to any entry in the State List, would be within the legislative competence of the Parliament under Article 248 read with Entry 97 of List I of Seventh Schedule to theour view, the judgment in Bharat Sanchar Nigam Limiteds case has no application to the present case. As stated above, what is challenged in this case is the service taximposed by Section 66of the Finance Act, 1994 (as amended)on the value of taxable services referred to in Sectionread with Section 65(12) of the said Act, insofar as it relates to financial leasing services including equipment leasing andas beyond the legislative competence of Parliament by virtue of Article 366(29A) of the Constitution. In short, legislative competence of the Parliament to impose service tax on financial leasing services including equipment leasing andis the subject matter of challenge. Legislative competence was not the issue before this Court in the Bharat Sanchar Nigam Limiteds case. In that case, the principal question which arose for determination was in respect of the nature of the transaction by which mobile phone connections are enjoyed. The question was whether such connections constituted a sale or a service or both. If it was a sale then the States were legislatively competent to levy sales tax on the transaction under Entry 54, List II of the Seventh Schedule to the Constitution. If it was service then the Central Government alone had the legislative competence to levy service tax under Entry 97, List I and if the nature of the transaction partook of the character of both sale and service, then the moot question would be whether both the legislative authorities could levy their separate taxes together or only one of them. It was held that the subject transaction was a service and, thus, the Parliament had legislative competence to levy service tax under Entry 97, List I. In para 88 of the said judgment, this Court observed that "No one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow the State to entrench upon the Union List and tax services by including the cost of such service in the value of the goods". The principle of law in para 88 squarely applies to the present case. As stated above, we are concerned with "financial leasing services" which are sought to be taxed under Section 65(12)(a)(i). The taxable event is indicated in Section 65(105)(zm). As stated above, the impugned provision operates qua an activity of funding/financing of equipment/ asset under equipment leasing under which a lessee is free to select, order, take delivery and maintain the asset. The lessor (NBFC) arranges the finances. It accepts the invoice from the vendor (supplier) and pays him. Thus, the lessor (NBFC) renders financial services to its customer(s) and what is taxed under the impugned provision is the income, by way of finance/ interest charges in addition to management fees/ documentation charges, which is earned by the financier (lessor). The taxable event is the service which is rendered by the finance company to its customer(s). The value of taxable service under Section 67 is income by way of interest/finance charges (measure of tax) which is not determinative of the character of the levy. Thus, Section 67 of the Finance Act, 1994 seeks to tax financial services rendered by the appellant(s) with reference to the income which the appellant(s) earns by way of interest/ finance charges. In the circumstances and for the reasons given hereinabove, the question of splitting up of transactions, as contended on behalf of the appellant(s), does not arise. As held hereinabove, equipment leasing andfinance constitute long term financing activity. Such an activity was not the subject matter of the discussion in the Bharat Sanchar Nigam Limiteds case.The service taxin the present case is neither on the material nor on sale. It is on the activity of financing/funding of equipment/asset within the meaning of the words "financial leasing services" in Section 65(12)(a)(i). Lastly, we may state that this Court has on three different occasions upheld the levy of service with reference to Entry 97 of List I in the face of challenges to the competence of the Parliament based on the entries in List II and on all the three occasions, this Court has held that the levy of service tax falls within Entry 97 of List I. The decisions are in the case of T.N. Kalayana Mandapam Association (supra), Gujarat Ambuja Cements Ltd. (supra) andFederation of Tax Practitioners (supra). | 0 | 12,364 | 3,830 | ### Instruction:
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of Seventh Schedule to the Constitution. 38. According to Mr. Arvind Datar and Mr. K. Parasaran, learned counsel appearing on behalf of some of the appellants, once the subject matter of hire-purchase and leasing is constitutionally characterized as a sale (deemed sale) by the Constitution (Forty-sixth Amendment) Act, the said subject matter can be taxed only under Entry 54, List II and it cannot be taxed under Entry 97, List I. According to the learned counsel, the object behind enactment of the Constitution (Forty-sixth Amendment) Act was to reserve the exclusive competence to tax hire-purchase transactions with the State Legislature and exclude the Parliament from the legislative sphere. In support of the above contentions, learned counsel placed reliance on para 44 of the judgment of this Court in the case of Bharat Sanchar Nigam Limited (supra), the relevant portion of which is quoted hereinbelow: "44. Of all the different kinds of composite transactions, the drafters of the Forty-Sixth Amendment chose three specifications, a works contract, a hire- purchase contract and a catering contract to bring them within the fiction of a deemed sale. Of these three, the first and third involve a kind of service and sale at the same time." 39. Emphasizing the underlined words, the learned counsel contended that a hire-purchase does not involve a sale and service at the same time and, therefore, service tax cannot be levied on the interest/ finance charges which is sought to be done in the present case. In our view, the judgment in Bharat Sanchar Nigam Limiteds case has no application to the present case. As stated above, what is challenged in this case is the service tax imposed by Section 66 of the Finance Act, 1994 (as amended) on the value of taxable services referred to in Section 65(105)(zm) read with Section 65(12) of the said Act, insofar as it relates to financial leasing services including equipment leasing and hire-purchase as beyond the legislative competence of Parliament by virtue of Article 366(29A) of the Constitution. In short, legislative competence of the Parliament to impose service tax on financial leasing services including equipment leasing and hire-purchase is the subject matter of challenge. Legislative competence was not the issue before this Court in the Bharat Sanchar Nigam Limiteds case. In that case, the principal question which arose for determination was in respect of the nature of the transaction by which mobile phone connections are enjoyed. The question was whether such connections constituted a sale or a service or both. If it was a sale then the States were legislatively competent to levy sales tax on the transaction under Entry 54, List II of the Seventh Schedule to the Constitution. If it was service then the Central Government alone had the legislative competence to levy service tax under Entry 97, List I and if the nature of the transaction partook of the character of both sale and service, then the moot question would be whether both the legislative authorities could levy their separate taxes together or only one of them. It was held that the subject transaction was a service and, thus, the Parliament had legislative competence to levy service tax under Entry 97, List I. In para 88 of the said judgment, this Court observed that "No one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow the State to entrench upon the Union List and tax services by including the cost of such service in the value of the goods". The principle of law in para 88 squarely applies to the present case. As stated above, we are concerned with "financial leasing services" which are sought to be taxed under Section 65(12)(a)(i). The taxable event is indicated in Section 65(105)(zm). As stated above, the impugned provision operates qua an activity of funding/financing of equipment/ asset under equipment leasing under which a lessee is free to select, order, take delivery and maintain the asset. The lessor (NBFC) arranges the finances. It accepts the invoice from the vendor (supplier) and pays him. Thus, the lessor (NBFC) renders financial services to its customer(s) and what is taxed under the impugned provision is the income, by way of finance/ interest charges in addition to management fees/ documentation charges, which is earned by the financier (lessor). The taxable event is the service which is rendered by the finance company to its customer(s). The value of taxable service under Section 67 is income by way of interest/finance charges (measure of tax) which is not determinative of the character of the levy. Thus, Section 67 of the Finance Act, 1994 seeks to tax financial services rendered by the appellant(s) with reference to the income which the appellant(s) earns by way of interest/ finance charges. In the circumstances and for the reasons given hereinabove, the question of splitting up of transactions, as contended on behalf of the appellant(s), does not arise. As held hereinabove, equipment leasing and hire-purchase finance constitute long term financing activity. Such an activity was not the subject matter of the discussion in the Bharat Sanchar Nigam Limiteds case. The service tax in the present case is neither on the material nor on sale. It is on the activity of financing/funding of equipment/asset within the meaning of the words "financial leasing services" in Section 65(12)(a)(i). Lastly, we may state that this Court has on three different occasions upheld the levy of service with reference to Entry 97 of List I in the face of challenges to the competence of the Parliament based on the entries in List II and on all the three occasions, this Court has held that the levy of service tax falls within Entry 97 of List I. The decisions are in the case of T.N. Kalayana Mandapam Association (supra), Gujarat Ambuja Cements Ltd. (supra) and All-India Federation of Tax Practitioners (supra).
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is made payable. In fact, the Government has given exemption from payment of service tax to financial leasing services including equipment leasing andon that portion of taxable value comprising of 90% of the amount representing as interest, i.e., the difference between the instalment paid towards repayment of the lease amount and the principal amount in such instalments paid (See Notification No. 4/2006Service Tax dated 1.3.2006). In other words, service tax is leviable only on 10% of the interest portion. (See also Circular F.No.dated 9.7.2001 in which it has been clarified that service tax, in the case of financial leasing including equipment leasing andwill be leviable only on the lease management fees/ processing fees/ documentation charges recovered at the time of entering into the agreement and on the finance/ interest charges recovered in equated monthly instalments and not on the principal amount). Merely because for valuation purposes inter alia "finance/ interest charges" are taken into account and merely because service tax is imposed on financial services with reference to "hiring/ interest" charges, the impugned tax does not cease to be service tax and nor does it become tax onleasing transactions under Article 366(29A) read with Entry 54, List II. Thus, while State Legislature is competent to impose tax on "sale" by legislation relatable to Entry 54 of List II of Seventh Schedule, tax on the aspect of the "services", vendor not being relatable to any entry in the State List, would be within the legislative competence of the Parliament under Article 248 read with Entry 97 of List I of Seventh Schedule to theour view, the judgment in Bharat Sanchar Nigam Limiteds case has no application to the present case. As stated above, what is challenged in this case is the service taximposed by Section 66of the Finance Act, 1994 (as amended)on the value of taxable services referred to in Sectionread with Section 65(12) of the said Act, insofar as it relates to financial leasing services including equipment leasing andas beyond the legislative competence of Parliament by virtue of Article 366(29A) of the Constitution. In short, legislative competence of the Parliament to impose service tax on financial leasing services including equipment leasing andis the subject matter of challenge. Legislative competence was not the issue before this Court in the Bharat Sanchar Nigam Limiteds case. In that case, the principal question which arose for determination was in respect of the nature of the transaction by which mobile phone connections are enjoyed. The question was whether such connections constituted a sale or a service or both. If it was a sale then the States were legislatively competent to levy sales tax on the transaction under Entry 54, List II of the Seventh Schedule to the Constitution. If it was service then the Central Government alone had the legislative competence to levy service tax under Entry 97, List I and if the nature of the transaction partook of the character of both sale and service, then the moot question would be whether both the legislative authorities could levy their separate taxes together or only one of them. It was held that the subject transaction was a service and, thus, the Parliament had legislative competence to levy service tax under Entry 97, List I. In para 88 of the said judgment, this Court observed that "No one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow the State to entrench upon the Union List and tax services by including the cost of such service in the value of the goods". The principle of law in para 88 squarely applies to the present case. As stated above, we are concerned with "financial leasing services" which are sought to be taxed under Section 65(12)(a)(i). The taxable event is indicated in Section 65(105)(zm). As stated above, the impugned provision operates qua an activity of funding/financing of equipment/ asset under equipment leasing under which a lessee is free to select, order, take delivery and maintain the asset. The lessor (NBFC) arranges the finances. It accepts the invoice from the vendor (supplier) and pays him. Thus, the lessor (NBFC) renders financial services to its customer(s) and what is taxed under the impugned provision is the income, by way of finance/ interest charges in addition to management fees/ documentation charges, which is earned by the financier (lessor). The taxable event is the service which is rendered by the finance company to its customer(s). The value of taxable service under Section 67 is income by way of interest/finance charges (measure of tax) which is not determinative of the character of the levy. Thus, Section 67 of the Finance Act, 1994 seeks to tax financial services rendered by the appellant(s) with reference to the income which the appellant(s) earns by way of interest/ finance charges. In the circumstances and for the reasons given hereinabove, the question of splitting up of transactions, as contended on behalf of the appellant(s), does not arise. As held hereinabove, equipment leasing andfinance constitute long term financing activity. Such an activity was not the subject matter of the discussion in the Bharat Sanchar Nigam Limiteds case.The service taxin the present case is neither on the material nor on sale. It is on the activity of financing/funding of equipment/asset within the meaning of the words "financial leasing services" in Section 65(12)(a)(i). Lastly, we may state that this Court has on three different occasions upheld the levy of service with reference to Entry 97 of List I in the face of challenges to the competence of the Parliament based on the entries in List II and on all the three occasions, this Court has held that the levy of service tax falls within Entry 97 of List I. The decisions are in the case of T.N. Kalayana Mandapam Association (supra), Gujarat Ambuja Cements Ltd. (supra) andFederation of Tax Practitioners (supra).
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Gujarat Urja Vikash Nigam Ltd Vs. Essar Power Ltd | taken as set aside by the latter. This is because the proper fulfillment of the Primary is the business of the Accessory also as the latter operates solely for the sake of the former. Consequently if, in consideration of its own qualification it were to deprive the Primary of its natural accomplishment then there would be a disruption of that action (the Primary) for the sake of which it was meant to operate. Though in such a case the proper fulfillment of the Primary with all its accompaniments would mean the deprival of the Accessory of its own natural accompaniment, yet, as the fact of the Accessory being equipped with all its accompaniments is not so very necessary (as that of the primary), there would be nothing incongruous in the said deprival". See Ganganath Jhas English translation of the Tantravartika, Vol.3 page 1141." 50. In our opinion the gunapradhan axiom applies to this case. Section 174 is the pradhan whereas Section 175 is the guna (or subordinate). If we read Section 175 in isolation then of course we would have to agree to Mr. Narimans submission that Section 11 of the Arbitration and Conciliation Act, 1996 applies. But we cannot read Section 175 in isolation, we have to read it along with Section 174, and reading them together, we have to adjust Section 175 (the guna or subordinate) to make it in accordance with Section 174 (the pradhan or principal). For doing so we will have to add the following words at the end of Section 175 "except where there is a conflict, express or implied, between a provision in this Act and any other law, in which case the former will prevail. 51. No doubt ordinarily the literal rule of interpretation should be followed, and hence the Court should neither add nor delete words in a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd. 52. In the chapter on ‘Exceptional Construction in his book on ‘Interpretation of Statutes Maxwell writes: "Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what the words signify, and that the modifications thus made are mere corrections of careless language and really give the true intention." 53. Thus, in S.S. Kalra vs. Union of India 1991(2) SCC 87, this Court has observed that sometimes courts can supply words which have been accidentally omitted. 54. In G.P. Singhs ‘Principles of Statutory Interpretation Ninth Edition, 2004 at pages 71-74 several decisions of this Court and foreign Courts have been referred to where the Court has added words to a statute (though cautioning that normally this should not be done). 55. Hence we have to add the aforementioned words at the end of Section 175 otherwise there will be an irreconciliable conflict between Section 174 and Section 175. 56. In our opinion the principle laid down in Section 174 of the Electricity Act, 2003 is the principal or primary whereas the principle laid down in Section 175 is the accessory or subordinate to the principal. Hence Section 174 will prevail over Section 175 in matters where there is any conflict (but no further).57. In our opinion Section 174 and Section 175 of the Electricity Act, 2003 can be read harmoniously by utilizing the Samanjasya, Badha and Gunapradhana principles of Mimansa. This can be done by holding that when there is any express or implied conflict between the provisions of the Electricity Act, 2003 and any other Act then the provisions of the Electricity Act, 2003 will prevail, but when there is no conflict, express or implied, both the Acts are to be read together.58. In the present case we have already noted that there an implied conflict between Section 86(1)(f) of the Electricity Act, 2003 and Section 11 of the Arbitration and Conciliation Act, 1996 since under Section 86(1)(f) the dispute between licensees and generating companies is to be decided by the State Commission or the arbitrator nominated by it, whereas under Section 11 of the Arbitrary and Conciliation Act, 1996, the Court can refer such disputes to an arbitrator appointed by it. Hence on harmonious construction of the provisions of the Electricity Act, 2003 and the Arbitration and Conciliation Act, 1996 we are of the opinion that whenever there is a dispute between a licensee and the generating companies only the State Commission or Central Commission (as the case may be) or arbitrator (or arbitrators) nominated by it can resolve such a dispute, whereas all other disputes (unless there is some other provision in the Electricity Act, 2003) would be decided in accordance with Section 11 of the Arbitration and Conciliation Act, 1996. This is also evident from Section 158 of the Electricity Act, 2003. However, except for Section 11 all other provisions of the Arbitration and Conciliation Act, 1996 will apply to arbitrations under Section 86(1)(f) of the Electricity Act, 2003 (unless there is a conflicting provision in the Electricity Act, 2003, in which case such provision will prevail.)59. In the present case, it is true that there is a provision for arbitration in the agreement between the parties dtd. 30.5.1996. Had the Electricity Act, 2003 not been enacted, there could be no doubt that the arbitration would have to be done in accordance with the Arbitration and Conciliation Act, 1996. However, | 1[ds]25. In our opinion, the submission of Mr. K.K. Venugopal has to be accepted.26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word ‘and in Section 86(1)(f) between the words generating companies and ‘to refer any dispute for arbitration means ‘or. It is well settled that sometimes ‘and can mean ‘or and sometimes ‘or can mean ‘and (vide G.P. Singhs ‘Principle of Statutory Interpretation 9th Edition, 2004 page 404.)27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word ‘and between the words ‘generating companies and the words ‘refer any dispute means ‘or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some Arbitrator. Hence the word ‘and in Section 86(1)(f) means ‘or.28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation.29. This is also evident from Section 158 of the Electricity Act, 2003 which has been quoted above. We may clarify that the agreement dated 30.5.1996 is not a part of the licence of the licensee. An agreement is something prior to the issuance of a licence. Hence any provision for arbitration in the agreement cannot be deemed to be a provision for arbitration in the licence. Hence also it is the State Commission which alone has power to arbitrate/adjudicate the dispute either itself or by appointing an arbitrator.It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner, vide Chandra Kishore Jha vs. Mahavir Prasad, AIR 1999 SC 3558 (para 12), Dhananjaya Reddy vs. State of Karnataka, AIR 2001 SC 1512 (para 22), etc. Section 86(1)(f) provides a special manner of making references to an arbitrator in disputes between a licensee and a generating company. Hence by implication all other methods are barred.In our opinion to resolve this conflict the Mimansa principles of Interpretation would of great utility.In our opinion the principle laid down in Section 174 of the Electricity Act, 2003 is the principal or primary whereas the principle laid down in Section 175 is the accessory or subordinate to the principal. Hence Section 174 will prevail over Section 175 in matters where there is any conflict (but no further).57. In our opinion Section 174 and Section 175 of the Electricity Act, 2003 can be read harmoniously by utilizing the Samanjasya, Badha and Gunapradhana principles of Mimansa. This can be done by holding that when there is any express or implied conflict between the provisions of the Electricity Act, 2003 and any other Act then the provisions of the Electricity Act, 2003 will prevail, but when there is no conflict, express or implied, both the Acts are to be read together.58. In the present case we have already noted that there an implied conflict between Section 86(1)(f) of the Electricity Act, 2003 and Section 11 of the Arbitration and Conciliation Act, 1996 since under Section 86(1)(f) the dispute between licensees and generating companies is to be decided by the State Commission or the arbitrator nominated by it, whereas under Section 11 of the Arbitrary and Conciliation Act, 1996, the Court can refer such disputes to an arbitrator appointed by it. Hence on harmonious construction of the provisions of the Electricity Act, 2003 and the Arbitration and Conciliation Act, 1996 we are of the opinion that whenever there is a dispute between a licensee and the generating companies only the State Commission or Central Commission (as the case may be) or arbitrator (or arbitrators) nominated by it can resolve such a dispute, whereas all other disputes (unless there is some other provision in the Electricity Act, 2003) would be decided in accordance with Section 11 of the Arbitration and Conciliation Act, 1996. This is also evident from Section 158 of the Electricity Act, 2003. However, except for Section 11 all other provisions of the Arbitration and Conciliation Act, 1996 will apply to arbitrations under Section 86(1)(f) of the Electricity Act, 2003 (unless there is a conflicting provision in the Electricity Act, 2003, in which case such provision will prevail.)59. In the present case, it is true that there is a provision for arbitration in the agreement between the parties dtd. 30.5.1996. Had the Electricity Act, 2003 not been enacted, there could be no doubt that the arbitration would have to be done in accordance with the Arbitration and Conciliation Act, | 1 | 7,486 | 1,035 | ### Instruction:
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taken as set aside by the latter. This is because the proper fulfillment of the Primary is the business of the Accessory also as the latter operates solely for the sake of the former. Consequently if, in consideration of its own qualification it were to deprive the Primary of its natural accomplishment then there would be a disruption of that action (the Primary) for the sake of which it was meant to operate. Though in such a case the proper fulfillment of the Primary with all its accompaniments would mean the deprival of the Accessory of its own natural accompaniment, yet, as the fact of the Accessory being equipped with all its accompaniments is not so very necessary (as that of the primary), there would be nothing incongruous in the said deprival". See Ganganath Jhas English translation of the Tantravartika, Vol.3 page 1141." 50. In our opinion the gunapradhan axiom applies to this case. Section 174 is the pradhan whereas Section 175 is the guna (or subordinate). If we read Section 175 in isolation then of course we would have to agree to Mr. Narimans submission that Section 11 of the Arbitration and Conciliation Act, 1996 applies. But we cannot read Section 175 in isolation, we have to read it along with Section 174, and reading them together, we have to adjust Section 175 (the guna or subordinate) to make it in accordance with Section 174 (the pradhan or principal). For doing so we will have to add the following words at the end of Section 175 "except where there is a conflict, express or implied, between a provision in this Act and any other law, in which case the former will prevail. 51. No doubt ordinarily the literal rule of interpretation should be followed, and hence the Court should neither add nor delete words in a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd. 52. In the chapter on ‘Exceptional Construction in his book on ‘Interpretation of Statutes Maxwell writes: "Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what the words signify, and that the modifications thus made are mere corrections of careless language and really give the true intention." 53. Thus, in S.S. Kalra vs. Union of India 1991(2) SCC 87, this Court has observed that sometimes courts can supply words which have been accidentally omitted. 54. In G.P. Singhs ‘Principles of Statutory Interpretation Ninth Edition, 2004 at pages 71-74 several decisions of this Court and foreign Courts have been referred to where the Court has added words to a statute (though cautioning that normally this should not be done). 55. Hence we have to add the aforementioned words at the end of Section 175 otherwise there will be an irreconciliable conflict between Section 174 and Section 175. 56. In our opinion the principle laid down in Section 174 of the Electricity Act, 2003 is the principal or primary whereas the principle laid down in Section 175 is the accessory or subordinate to the principal. Hence Section 174 will prevail over Section 175 in matters where there is any conflict (but no further).57. In our opinion Section 174 and Section 175 of the Electricity Act, 2003 can be read harmoniously by utilizing the Samanjasya, Badha and Gunapradhana principles of Mimansa. This can be done by holding that when there is any express or implied conflict between the provisions of the Electricity Act, 2003 and any other Act then the provisions of the Electricity Act, 2003 will prevail, but when there is no conflict, express or implied, both the Acts are to be read together.58. In the present case we have already noted that there an implied conflict between Section 86(1)(f) of the Electricity Act, 2003 and Section 11 of the Arbitration and Conciliation Act, 1996 since under Section 86(1)(f) the dispute between licensees and generating companies is to be decided by the State Commission or the arbitrator nominated by it, whereas under Section 11 of the Arbitrary and Conciliation Act, 1996, the Court can refer such disputes to an arbitrator appointed by it. Hence on harmonious construction of the provisions of the Electricity Act, 2003 and the Arbitration and Conciliation Act, 1996 we are of the opinion that whenever there is a dispute between a licensee and the generating companies only the State Commission or Central Commission (as the case may be) or arbitrator (or arbitrators) nominated by it can resolve such a dispute, whereas all other disputes (unless there is some other provision in the Electricity Act, 2003) would be decided in accordance with Section 11 of the Arbitration and Conciliation Act, 1996. This is also evident from Section 158 of the Electricity Act, 2003. However, except for Section 11 all other provisions of the Arbitration and Conciliation Act, 1996 will apply to arbitrations under Section 86(1)(f) of the Electricity Act, 2003 (unless there is a conflicting provision in the Electricity Act, 2003, in which case such provision will prevail.)59. In the present case, it is true that there is a provision for arbitration in the agreement between the parties dtd. 30.5.1996. Had the Electricity Act, 2003 not been enacted, there could be no doubt that the arbitration would have to be done in accordance with the Arbitration and Conciliation Act, 1996. However,
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25. In our opinion, the submission of Mr. K.K. Venugopal has to be accepted.26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word ‘and in Section 86(1)(f) between the words generating companies and ‘to refer any dispute for arbitration means ‘or. It is well settled that sometimes ‘and can mean ‘or and sometimes ‘or can mean ‘and (vide G.P. Singhs ‘Principle of Statutory Interpretation 9th Edition, 2004 page 404.)27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word ‘and between the words ‘generating companies and the words ‘refer any dispute means ‘or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some Arbitrator. Hence the word ‘and in Section 86(1)(f) means ‘or.28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation.29. This is also evident from Section 158 of the Electricity Act, 2003 which has been quoted above. We may clarify that the agreement dated 30.5.1996 is not a part of the licence of the licensee. An agreement is something prior to the issuance of a licence. Hence any provision for arbitration in the agreement cannot be deemed to be a provision for arbitration in the licence. Hence also it is the State Commission which alone has power to arbitrate/adjudicate the dispute either itself or by appointing an arbitrator.It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner, vide Chandra Kishore Jha vs. Mahavir Prasad, AIR 1999 SC 3558 (para 12), Dhananjaya Reddy vs. State of Karnataka, AIR 2001 SC 1512 (para 22), etc. Section 86(1)(f) provides a special manner of making references to an arbitrator in disputes between a licensee and a generating company. Hence by implication all other methods are barred.In our opinion to resolve this conflict the Mimansa principles of Interpretation would of great utility.In our opinion the principle laid down in Section 174 of the Electricity Act, 2003 is the principal or primary whereas the principle laid down in Section 175 is the accessory or subordinate to the principal. Hence Section 174 will prevail over Section 175 in matters where there is any conflict (but no further).57. In our opinion Section 174 and Section 175 of the Electricity Act, 2003 can be read harmoniously by utilizing the Samanjasya, Badha and Gunapradhana principles of Mimansa. This can be done by holding that when there is any express or implied conflict between the provisions of the Electricity Act, 2003 and any other Act then the provisions of the Electricity Act, 2003 will prevail, but when there is no conflict, express or implied, both the Acts are to be read together.58. In the present case we have already noted that there an implied conflict between Section 86(1)(f) of the Electricity Act, 2003 and Section 11 of the Arbitration and Conciliation Act, 1996 since under Section 86(1)(f) the dispute between licensees and generating companies is to be decided by the State Commission or the arbitrator nominated by it, whereas under Section 11 of the Arbitrary and Conciliation Act, 1996, the Court can refer such disputes to an arbitrator appointed by it. Hence on harmonious construction of the provisions of the Electricity Act, 2003 and the Arbitration and Conciliation Act, 1996 we are of the opinion that whenever there is a dispute between a licensee and the generating companies only the State Commission or Central Commission (as the case may be) or arbitrator (or arbitrators) nominated by it can resolve such a dispute, whereas all other disputes (unless there is some other provision in the Electricity Act, 2003) would be decided in accordance with Section 11 of the Arbitration and Conciliation Act, 1996. This is also evident from Section 158 of the Electricity Act, 2003. However, except for Section 11 all other provisions of the Arbitration and Conciliation Act, 1996 will apply to arbitrations under Section 86(1)(f) of the Electricity Act, 2003 (unless there is a conflicting provision in the Electricity Act, 2003, in which case such provision will prevail.)59. In the present case, it is true that there is a provision for arbitration in the agreement between the parties dtd. 30.5.1996. Had the Electricity Act, 2003 not been enacted, there could be no doubt that the arbitration would have to be done in accordance with the Arbitration and Conciliation Act,
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Siemens Ltd Vs. Siemens Employees Union | its propriety. If a scheme for such reorganization results in surplusage of employees no employer is expected to carry the burden of such economic dead weight and retrenchment has to be accepted as inevitable, however unfortunate it is... (para 14, page 1341 of the report) 32. In the instant case no malafide has been alleged against the appellant-company. Nor it is anybodys case that as a result of reorganization of its working pattern by introducing the scheme of promotion any person is either retrenched or is rendered surplus. 33. In the given situation, this Court cannot appreciate how by introducing the scheme of promotion to which the workers overwhelmingly responded on their own can it be said that the management has indulged in unfair labour practice. 34. Similarly, in the case of Hindustan Lever Ltd. v. Ram Mohan Ray and others reported in 1973 (4) SCC 141 , another three-Judge Bench of this Court held that nationalization and standardization of work by the management by itself would not fall under item 10 of Schedule IV of Industrial Disputes Act unless it is likely to lead to retrenchment of workers. Relying on the decision in Parry (supra) this Court held in Hindustan Liver (supra) that since the reorganization has not brought about any change adversely affecting the workers and there has been no retrenchment, similar principles are applicable here. 35. Mr. K.K. Venugopal, learned Senior Counsel appearing for the union in support of his submission relied on a decision of this Court in the case of Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay reported in 1985 (3) SCC 371. In that case the question which was considered by this Court was where an employee was performing multifarious duties and the issue is whether he is a workman or not the test to be applied is what was the primary, basic or dominant nature of the duties for which the workman was employed. This Court came to the conclusion that when the primary and basic duties of an employee are clerical but certain stray assignments are given to him to create confusion, the Court may remove the gloss to find out the reality. 36. In Arkal Govind Raj (supra) the aforesaid question arose out of the termination of service of the appellant Govind Raj as his termination led to an industrial dispute. In that dispute numerous primary objections were raised by Ciba Geigy and one of them was that Govind Raj was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. In that context, this Court, after analyzing the evidence, came to a finding that Govind Raj was a workman within the meaning of the Act and held that neither the Labour Court nor the High Court came to a correct finding. With that finding this Court remanded the matter to the Labour Court for deciding the dispute in accordance with its judgment. The said decision has no bearing on the issues with which we are concerned in this case. It is well known that the ratio of a decision has to be appreciated in its context. Going by that principle, we do not find that the decision in Arkal Govind Raj (supra) is of any assistance to the respondents. 37. Mr. Venugopal also relied on the commentary of K.D. Srivastava on Law Relating to Trade Unions and Unfair Labour Practices in India (Fourth Edition). The learned counsel relied on a decision of the Allahabad High Court in the case of L.H. Sugar Factories and Oil Mills (P) Ltd., v. State of U.P., (1961) 1 LLJ 686 (HC All). Some of the observations made in the said judgment which have been quoted in the commentary of K.D. Srivastava are as follows:- ...If an employer deliberately uses his power of promoting employees in a manner calculated to sow discord among his workmen, or to undermine the strength of their union, he is guilty of unfair labour practice. (page 402) 38. In the instant case no malafide has been alleged by the union against the appellant-company in the matter of reorganization of its work. It is also nobodys case that as a result of the reorganization of the work any attempt is made by the appellant- company to create discord amongst the workmen so as to undermine the strength of the union. Apart from that the facts in the case of L.H. Sugar Factories (supra) are totally different. In L.H. Sugar Factories (supra) the company wrongfully deprived ten workers of their promotion to the post of driver-cum-assistant fitter while preferring eleven other workmen over them. This led to an industrial dispute. Therefore, those observations of Allahabad High Court in a totally different fact situation are not attracted in the present case to make out a case of unfair labour practice. We fail to appreciate the relevance of the aforesaid decision to the facts of the present case. 39. At the same time it is not the case of the respondent-union that its recognition is in any way being withdrawn or tinkered with. Nor is it the case of the respondent-union that it is losing its power of collective bargaining. It may be that the number of workmen is reduced to some extent pursuant to a promotional scheme to which the workmen readily responded. But no union can insist that all the workmen must remain workmen perpetually otherwise it would be an unfair labour practice. Workmen have a right to get promotion and improve their lot if the management offers them with a bona fide chance to do so. In fact if the order of the High Court is upheld, the same will go against the interest of erstwhile workmen of the appellant-company who have responded to the scheme of promotion. 40. For the reasons aforesaid, we are of the view that the High court failed to have a correct perspective of the questions involved in this case and obviously came to an erroneous finding. 41. | 1[ds]It is true that this Court normally does not upset a concurrent finding but there is no such inflexible rule. The jurisdiction of this Court under Article 136 is a special jurisdiction. This is clear from the text of the Article itself which starts with a non-obstante clause. This is a jurisdiction conferring residual power on this Court to do justice and is to be exercised solely on discretion to be used by this Court to advance the cause of justice. This Article does not confer any right of appeal on any litigant. But it simply clothes this Court with discretion which is to be exercised in an appropriate case for ends of justice. Therefore, there can be no hard and fast rule in the exercise of this jurisdiction. Just because the findings which are assailed in a special leave petition are concurrent cannot debar this Court from exercising its jurisdiction if the demands of justice require its interference. In a case where the Court finds that the concurrent finding is based on patently erroneous appreciation of basic issues involved in an adjudication, the Court may interfere. In the instant case the Court proposes to interfere with the concurrent finding for the reasons discussed hereinbelow28. Admittedly, the finding of unfair labour practice against the appellant-company by the High Court and the Labour Court is based on the premise that the appellant-company acted in breach of clause 7 of the agreement. It is well known that an industrial settlement is entered into between the management and labour for maintaining industrial peace and harmony. Therefore, any attempt by either the management or the workmen to violate such a settlement may lead to industrial unrest and amounts to an unfair labour practice. Here the charge of unfair labour practice against the appellant-company is that it has violated item 9 of Schedule IV of the Maharashtra Act. Item 9 has been set out hereinabove and the purport of item 9 is that any failure to implement an award or settlement or agreement would be an unfair labour practice. In the instant case while considering clause 7 of the said settlement the Courts have not taken into consideration clause 12. Both clauses 7 and 12 have been set out hereinabove. If a harmonious reading is made of clauses 7 and 12 it will be clear that clause 7 cannot be given an interpretation which makes clause 12 totally redundant. Clause 7 contains a prohibition against the employees or officers or members of the staff of the appellant- company from doing normal production work. But that cannot be read in such a manner as to nullify the purport of clause 12 which reserves the promotional employment potential of existing workmen. So in the instant case if by way of rearrangement of work, the management of the appellant-company gives promotional opportunity to the existing worker that does not bring about any violation of clause 7 of the said settlement rather such a rearrangement of work will be in terms of clause 12. At the same time if some of job of executive officers are the same as is done by the existing worker that does not bring about such a violation of clause 7 as to constitute unfair labour practice. | 1 | 5,138 | 577 | ### Instruction:
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its propriety. If a scheme for such reorganization results in surplusage of employees no employer is expected to carry the burden of such economic dead weight and retrenchment has to be accepted as inevitable, however unfortunate it is... (para 14, page 1341 of the report) 32. In the instant case no malafide has been alleged against the appellant-company. Nor it is anybodys case that as a result of reorganization of its working pattern by introducing the scheme of promotion any person is either retrenched or is rendered surplus. 33. In the given situation, this Court cannot appreciate how by introducing the scheme of promotion to which the workers overwhelmingly responded on their own can it be said that the management has indulged in unfair labour practice. 34. Similarly, in the case of Hindustan Lever Ltd. v. Ram Mohan Ray and others reported in 1973 (4) SCC 141 , another three-Judge Bench of this Court held that nationalization and standardization of work by the management by itself would not fall under item 10 of Schedule IV of Industrial Disputes Act unless it is likely to lead to retrenchment of workers. Relying on the decision in Parry (supra) this Court held in Hindustan Liver (supra) that since the reorganization has not brought about any change adversely affecting the workers and there has been no retrenchment, similar principles are applicable here. 35. Mr. K.K. Venugopal, learned Senior Counsel appearing for the union in support of his submission relied on a decision of this Court in the case of Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay reported in 1985 (3) SCC 371. In that case the question which was considered by this Court was where an employee was performing multifarious duties and the issue is whether he is a workman or not the test to be applied is what was the primary, basic or dominant nature of the duties for which the workman was employed. This Court came to the conclusion that when the primary and basic duties of an employee are clerical but certain stray assignments are given to him to create confusion, the Court may remove the gloss to find out the reality. 36. In Arkal Govind Raj (supra) the aforesaid question arose out of the termination of service of the appellant Govind Raj as his termination led to an industrial dispute. In that dispute numerous primary objections were raised by Ciba Geigy and one of them was that Govind Raj was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. In that context, this Court, after analyzing the evidence, came to a finding that Govind Raj was a workman within the meaning of the Act and held that neither the Labour Court nor the High Court came to a correct finding. With that finding this Court remanded the matter to the Labour Court for deciding the dispute in accordance with its judgment. The said decision has no bearing on the issues with which we are concerned in this case. It is well known that the ratio of a decision has to be appreciated in its context. Going by that principle, we do not find that the decision in Arkal Govind Raj (supra) is of any assistance to the respondents. 37. Mr. Venugopal also relied on the commentary of K.D. Srivastava on Law Relating to Trade Unions and Unfair Labour Practices in India (Fourth Edition). The learned counsel relied on a decision of the Allahabad High Court in the case of L.H. Sugar Factories and Oil Mills (P) Ltd., v. State of U.P., (1961) 1 LLJ 686 (HC All). Some of the observations made in the said judgment which have been quoted in the commentary of K.D. Srivastava are as follows:- ...If an employer deliberately uses his power of promoting employees in a manner calculated to sow discord among his workmen, or to undermine the strength of their union, he is guilty of unfair labour practice. (page 402) 38. In the instant case no malafide has been alleged by the union against the appellant-company in the matter of reorganization of its work. It is also nobodys case that as a result of the reorganization of the work any attempt is made by the appellant- company to create discord amongst the workmen so as to undermine the strength of the union. Apart from that the facts in the case of L.H. Sugar Factories (supra) are totally different. In L.H. Sugar Factories (supra) the company wrongfully deprived ten workers of their promotion to the post of driver-cum-assistant fitter while preferring eleven other workmen over them. This led to an industrial dispute. Therefore, those observations of Allahabad High Court in a totally different fact situation are not attracted in the present case to make out a case of unfair labour practice. We fail to appreciate the relevance of the aforesaid decision to the facts of the present case. 39. At the same time it is not the case of the respondent-union that its recognition is in any way being withdrawn or tinkered with. Nor is it the case of the respondent-union that it is losing its power of collective bargaining. It may be that the number of workmen is reduced to some extent pursuant to a promotional scheme to which the workmen readily responded. But no union can insist that all the workmen must remain workmen perpetually otherwise it would be an unfair labour practice. Workmen have a right to get promotion and improve their lot if the management offers them with a bona fide chance to do so. In fact if the order of the High Court is upheld, the same will go against the interest of erstwhile workmen of the appellant-company who have responded to the scheme of promotion. 40. For the reasons aforesaid, we are of the view that the High court failed to have a correct perspective of the questions involved in this case and obviously came to an erroneous finding. 41.
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It is true that this Court normally does not upset a concurrent finding but there is no such inflexible rule. The jurisdiction of this Court under Article 136 is a special jurisdiction. This is clear from the text of the Article itself which starts with a non-obstante clause. This is a jurisdiction conferring residual power on this Court to do justice and is to be exercised solely on discretion to be used by this Court to advance the cause of justice. This Article does not confer any right of appeal on any litigant. But it simply clothes this Court with discretion which is to be exercised in an appropriate case for ends of justice. Therefore, there can be no hard and fast rule in the exercise of this jurisdiction. Just because the findings which are assailed in a special leave petition are concurrent cannot debar this Court from exercising its jurisdiction if the demands of justice require its interference. In a case where the Court finds that the concurrent finding is based on patently erroneous appreciation of basic issues involved in an adjudication, the Court may interfere. In the instant case the Court proposes to interfere with the concurrent finding for the reasons discussed hereinbelow28. Admittedly, the finding of unfair labour practice against the appellant-company by the High Court and the Labour Court is based on the premise that the appellant-company acted in breach of clause 7 of the agreement. It is well known that an industrial settlement is entered into between the management and labour for maintaining industrial peace and harmony. Therefore, any attempt by either the management or the workmen to violate such a settlement may lead to industrial unrest and amounts to an unfair labour practice. Here the charge of unfair labour practice against the appellant-company is that it has violated item 9 of Schedule IV of the Maharashtra Act. Item 9 has been set out hereinabove and the purport of item 9 is that any failure to implement an award or settlement or agreement would be an unfair labour practice. In the instant case while considering clause 7 of the said settlement the Courts have not taken into consideration clause 12. Both clauses 7 and 12 have been set out hereinabove. If a harmonious reading is made of clauses 7 and 12 it will be clear that clause 7 cannot be given an interpretation which makes clause 12 totally redundant. Clause 7 contains a prohibition against the employees or officers or members of the staff of the appellant- company from doing normal production work. But that cannot be read in such a manner as to nullify the purport of clause 12 which reserves the promotional employment potential of existing workmen. So in the instant case if by way of rearrangement of work, the management of the appellant-company gives promotional opportunity to the existing worker that does not bring about any violation of clause 7 of the said settlement rather such a rearrangement of work will be in terms of clause 12. At the same time if some of job of executive officers are the same as is done by the existing worker that does not bring about such a violation of clause 7 as to constitute unfair labour practice.
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Anita Sharma & Ors Vs. The New India Assurance Co. Ltd. & Anr | being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Courts observation [as set out in Parmeshwari (supra) and reiterated in Mangla Ram (supra)] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the respondents by the Tribunal. xxx 32. The High Court has not held that the respondents were successful in challenging the witnesses version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondents case, without any proper reasoning. (emphasis supplied) 22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimants version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz (2013) 10 SCC 646 wherein this Court reiterated that: 7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] ) (emphasis supplied) 23. The observation of the High Court that the author of the FIR (as per its judgment, the owner-cum-driver) had not been examined as a witness, and hence adverse inference ought to be drawn against the appellant-claimants, is wholly misconceived and misdirected. Not only is the owner-cum-driver not the author of the FIR, but instead he is one of the contesting respondents in the Claim Petition who, along with insurance company, is an interested party with a pecuniary stake in the result of the case. If the owner-cum-driver of the car were setting up a defence plea that the accident was a result of not his but the truck drivers carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault. The High Court, therefore, ought not to have shifted the burden of proof. 24. Further, little reliance can be placed on the contents of the FIR (Exh.-1) , and it is liable to be discarded for more than one reasons. First, the author of the FIR, that is, Praveen Kumar Aggarwal does not claim to have witnessed the accident himself. His version is hearsay and cannot be relied upon. Second, it appears from the illegible part of the FIR that the informant had some closeness with the owner-cumdriver of the car and there is thus a strong possibility that his version was influenced or at the behest of Sanjeev Kapoor. Third, the FIR was lodged two days after the accident, on 27.03.2009. The FIR recites that some of the injured including Sandeep Sharma were referred to BHU, Varanasi for treatment, even though as per the medical report this took place only on 26.03.2009, the day after the accident. Therefore the belated FIR appears to be an afterthought attempt to absolve Sanjeev Kapoor from his criminal or civil liabilities. Contrarily, the statement of AW-3 does not suffer from any evil of suspicion and is worthy of reliance. The Tribunal rightly relied upon his statement and decided issue No. 1 in favour of the claimants. The reasoning given by the High Court to disbelieve Ritesh Pandey AW-3, on the other hand, cannot sustain and is liable to be overturned. We hold accordingly. 25. Adverting to the claimants appeal for enhancement of compensation, we are of the view that no effective argument could be raised on their behalf as to how the compensation assessed by the Tribunal was inadequate, except that in view of the authoritative pronouncement of this Court in National Insurance Co Ltd v. Pranay Sethi (2017) 16 SCC 680 . , the claimants are entitled to an increase of 40% towards annual dependency on account of future prospects given the undisputed age of the deceased. Their appeal to that extent deserves to be allowed. CONCLUSION: | 1[ds]11. At the outset, it may be mentioned that some material facts which have a direct bearing on the fate of this case, have escaped notice of the High Court. The FIR was not registered by Sanjeev Kapoor (owner-cum-driver of the car) as assumed by the High Court. Instead, as a matter of fact, the FIR No. 120/09 (Exh 1) was registered on the basis of information furnished by one, Pradeep Kumar Aggarwal, son of Bal Krishan Das Aggarwal – a resident of District Varanasi. The contents of this report reveal that Sanjeev Kapoor was travelling in the Wagon R Car No. UP-65-AA-7100 along with three other occupants. While returning from Ghazipur to Varanasi, a truck which was being driven rashly and at a fast speed, struck against the car and then sped away towards Ghazipur. The number of the truck could not be noticed as it was dark. The car was badly damaged. Various people gathered at the spot who took out the injured from the car. It is specifically mentioned that all the injured were taken to the hospital for treatment where Rahul Singh @ Chotu Singh passed-away whereas Sandeep Sharma was referred to BHU Varanasi for treatment. The FIR was lodged on 27.03.2009 and a slightly illegible part thereof indicates that Sanjeev Kapoor and the informant were known to each other. The informant himself had not witnessed the accident and apparently lodged the FIR based on hearsay information.12. Importantly, the owner-cum-driver though denied responsibility of the accident through his written statement but chose not to enter the witness box in his defence. The insurance company, on the other hand, relied upon the contents of the FIR and the Investigation Report to aver that the accident took place due to rash and negligent driving of the truck driver alone. But we find that the investigation report (Exh. 2) dated 05.05.2009 merely recites that the registration number of the offending truck could not be ascertained despite best efforts.13. At this juncture, we may refer to the statement of Ritesh Pandey (AW-3). This witness is a resident of Ghazipur in Uttar Pradesh. He is neither related to the deceased nor was he remotely connected to the family of the deceased. He hailed from a different State and lived in a faraway place. There is nothing to suggest that the witness had any business dealings with the deceased or his family. He has deposed that he was travelling in his own car on the date of the incident on the same route when the owner-cum-driver of the Wagon R car carelessly overtook him at a very high speed. He has further deposed that a truck coming from the opposite side collided with the car. Various persons gathered at the place of accident and four persons trapped inside the car were taken out, three of whom were unconscious and the fourth was its driver - Sanjeev Kapoor. The witness has further deposed that he took all the four injured persons to the District Hospital, Ghazipur where some of them were referred to Institute of Medical Sciences and S.S. Hospital, BHU, Varanasi.14. Most importantly, the only question asked to this witness in cross-examination is whether the truck could be spotted and whether he was able to note the registration number of the truck. The witness has candidly admitted that he could not see the registration number of the truck. No other question was asked to this witness in the crossexamination. While the Tribunal believed Ritesh Pandey (AW-3) and accepted the claim petition in part, the High Court, for the reasons which are already briefly noticed, has disbelieved him on the premise that the deceased was brought to the hospital by SI Sah Mohammed and not by Ritesh Pandey (AW-3). The entire case, thus, effectively hinges upon the trustworthiness of the statement of this witness.15. It is not in dispute that the accident took place near Ghazipur and that numerous people had assembled at the spot. Some bystander would obviously have informed the police also. While the contents of the FIR as well as the statement of Ritesh Pandey (AW-3) leave no room to doubt that the injured were taken to the Hospital by private persons (and not by the police), it is quite natural that the police would also have reached the Government hospital at Ghazipur and, therefore, it was mentioned that Sandeep Sharma was brought-in by SI Sah Mohammed.16. It is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital. The statement of AW-3, therefore, acquires significance as, according to him, he brought the injured in his car to the hospital. Ritesh Pandey (AW-3) acted as a good samaritan and a responsible citizen, and the High Court ought not to have disbelieved his testimony based merely on a conjecture. It is necessary to reiterate the independence and benevolence of AW-3. Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.17. It is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR. The High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police. Further, as the police had themselves reached the hospital upon having received information about the accident, there was perhaps no occasion for AW-3 to lodge a report once again to the police at a later stage either.18. Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellantclaimants hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State. Close to the facts of the case in hand, this Court in Parmeshwari v. Amir Chand (2011) 11 SCC 635 , viewed that:12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctors chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.19. The failure of the respondents to cross examine the solitary eyewitness or confront him with their version, despite adequate opportunity, must lead to an inference of tacit admission on their part. They did not even suggest the witness that he was siding with the claimants. The High Court has failed to appreciate the legal effect of this absence of cross-examination of a crucial witness.22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimants version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz (2013) 10 SCC 646 wherein this Court reiterated that:7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] )23. The observation of the High Court that the author of the FIR (as per its judgment, the owner-cum-driver) had not been examined as a witness, and hence adverse inference ought to be drawn against the appellant-claimants, is wholly misconceived and misdirected. Not only is the owner-cum-driver not the author of the FIR, but instead he is one of the contesting respondents in the Claim Petition who, along with insurance company, is an interested party with a pecuniary stake in the result of the case. If the owner-cum-driver of the car were setting up a defence plea that the accident was a result of not his but the truck drivers carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault. The High Court, therefore, ought not to have shifted the burden of proof.24. Further, little reliance can be placed on the contents of the FIR (Exh.-1) , and it is liable to be discarded for more than one reasons. First, the author of the FIR, that is, Praveen Kumar Aggarwal does not claim to have witnessed the accident himself. His version is hearsay and cannot be relied upon. Second, it appears from the illegible part of the FIR that the informant had some closeness with the owner-cumdriver of the car and there is thus a strong possibility that his version was influenced or at the behest of Sanjeev Kapoor. Third, the FIR was lodged two days after the accident, on 27.03.2009. The FIR recites that some of the injured including Sandeep Sharma were referred to BHU, Varanasi for treatment, even though as per the medical report this took place only on 26.03.2009, the day after the accident. Therefore the belated FIR appears to be an afterthought attempt to absolve Sanjeev Kapoor from his criminal or civil liabilities. Contrarily, the statement of AW-3 does not suffer from any evil of suspicion and is worthy of reliance. The Tribunal rightly relied upon his statement and decided issue No. 1 in favour of the claimants. The reasoning given by the High Court to disbelieve Ritesh Pandey AW-3, on the other hand, cannot sustain and is liable to be overturned. We hold accordingly.25. Adverting to the claimants appeal for enhancement of compensation, we are of the view that no effective argument could be raised on their behalf as to how the compensation assessed by the Tribunal was inadequate, except that in view of the authoritative pronouncement of this Court in National Insurance Co Ltd v. Pranay Sethi (2017) 16 SCC 680 . , the claimants are entitled to an increase of 40% towards annual dependency on account of future prospects given the undisputed age of the deceased. Their appeal to that extent deserves to be allowed. | 1 | 3,932 | 2,248 | ### Instruction:
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being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Courts observation [as set out in Parmeshwari (supra) and reiterated in Mangla Ram (supra)] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the respondents by the Tribunal. xxx 32. The High Court has not held that the respondents were successful in challenging the witnesses version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondents case, without any proper reasoning. (emphasis supplied) 22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimants version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz (2013) 10 SCC 646 wherein this Court reiterated that: 7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] ) (emphasis supplied) 23. The observation of the High Court that the author of the FIR (as per its judgment, the owner-cum-driver) had not been examined as a witness, and hence adverse inference ought to be drawn against the appellant-claimants, is wholly misconceived and misdirected. Not only is the owner-cum-driver not the author of the FIR, but instead he is one of the contesting respondents in the Claim Petition who, along with insurance company, is an interested party with a pecuniary stake in the result of the case. If the owner-cum-driver of the car were setting up a defence plea that the accident was a result of not his but the truck drivers carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault. The High Court, therefore, ought not to have shifted the burden of proof. 24. Further, little reliance can be placed on the contents of the FIR (Exh.-1) , and it is liable to be discarded for more than one reasons. First, the author of the FIR, that is, Praveen Kumar Aggarwal does not claim to have witnessed the accident himself. His version is hearsay and cannot be relied upon. Second, it appears from the illegible part of the FIR that the informant had some closeness with the owner-cumdriver of the car and there is thus a strong possibility that his version was influenced or at the behest of Sanjeev Kapoor. Third, the FIR was lodged two days after the accident, on 27.03.2009. The FIR recites that some of the injured including Sandeep Sharma were referred to BHU, Varanasi for treatment, even though as per the medical report this took place only on 26.03.2009, the day after the accident. Therefore the belated FIR appears to be an afterthought attempt to absolve Sanjeev Kapoor from his criminal or civil liabilities. Contrarily, the statement of AW-3 does not suffer from any evil of suspicion and is worthy of reliance. The Tribunal rightly relied upon his statement and decided issue No. 1 in favour of the claimants. The reasoning given by the High Court to disbelieve Ritesh Pandey AW-3, on the other hand, cannot sustain and is liable to be overturned. We hold accordingly. 25. Adverting to the claimants appeal for enhancement of compensation, we are of the view that no effective argument could be raised on their behalf as to how the compensation assessed by the Tribunal was inadequate, except that in view of the authoritative pronouncement of this Court in National Insurance Co Ltd v. Pranay Sethi (2017) 16 SCC 680 . , the claimants are entitled to an increase of 40% towards annual dependency on account of future prospects given the undisputed age of the deceased. Their appeal to that extent deserves to be allowed. CONCLUSION:
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an altogether different State. Close to the facts of the case in hand, this Court in Parmeshwari v. Amir Chand (2011) 11 SCC 635 , viewed that:12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctors chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.19. The failure of the respondents to cross examine the solitary eyewitness or confront him with their version, despite adequate opportunity, must lead to an inference of tacit admission on their part. They did not even suggest the witness that he was siding with the claimants. The High Court has failed to appreciate the legal effect of this absence of cross-examination of a crucial witness.22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimants version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz (2013) 10 SCC 646 wherein this Court reiterated that:7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] )23. The observation of the High Court that the author of the FIR (as per its judgment, the owner-cum-driver) had not been examined as a witness, and hence adverse inference ought to be drawn against the appellant-claimants, is wholly misconceived and misdirected. Not only is the owner-cum-driver not the author of the FIR, but instead he is one of the contesting respondents in the Claim Petition who, along with insurance company, is an interested party with a pecuniary stake in the result of the case. If the owner-cum-driver of the car were setting up a defence plea that the accident was a result of not his but the truck drivers carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault. The High Court, therefore, ought not to have shifted the burden of proof.24. Further, little reliance can be placed on the contents of the FIR (Exh.-1) , and it is liable to be discarded for more than one reasons. First, the author of the FIR, that is, Praveen Kumar Aggarwal does not claim to have witnessed the accident himself. His version is hearsay and cannot be relied upon. Second, it appears from the illegible part of the FIR that the informant had some closeness with the owner-cumdriver of the car and there is thus a strong possibility that his version was influenced or at the behest of Sanjeev Kapoor. Third, the FIR was lodged two days after the accident, on 27.03.2009. The FIR recites that some of the injured including Sandeep Sharma were referred to BHU, Varanasi for treatment, even though as per the medical report this took place only on 26.03.2009, the day after the accident. Therefore the belated FIR appears to be an afterthought attempt to absolve Sanjeev Kapoor from his criminal or civil liabilities. Contrarily, the statement of AW-3 does not suffer from any evil of suspicion and is worthy of reliance. The Tribunal rightly relied upon his statement and decided issue No. 1 in favour of the claimants. The reasoning given by the High Court to disbelieve Ritesh Pandey AW-3, on the other hand, cannot sustain and is liable to be overturned. We hold accordingly.25. Adverting to the claimants appeal for enhancement of compensation, we are of the view that no effective argument could be raised on their behalf as to how the compensation assessed by the Tribunal was inadequate, except that in view of the authoritative pronouncement of this Court in National Insurance Co Ltd v. Pranay Sethi (2017) 16 SCC 680 . , the claimants are entitled to an increase of 40% towards annual dependency on account of future prospects given the undisputed age of the deceased. Their appeal to that extent deserves to be allowed.
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UNITED INDIA INSURANCE CO.LTD Vs. HYUNDAI ENGINEERING AND CONSTRUCTION CO. LTD | a suit, has got to be commenced within three months from the date of such rejection; otherwise, all benefits under the policy stand forfeited. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or wilful neglect of the claimant or on any other ground disclosed or undisclosed. But as soon as there is a rejection of the claim and not the raising of a dispute as to the amount of any loss or damage, the only remedy open to the claimant is to commence a legal proceeding, namely, a suit, for establishment of the company?s liability. It may well be that after the liability of the company is established in such a suit, for determination of the quantum of the loss or damage reference to arbitration will have to be resorted to in accordance with clause 18. But the arbitration clause, restricted as it is by the use of the words ‘if any difference arises as to the amount of any loss or damage?, cannot take within its sweep a dispute as to the liability of the company when it refuses to pay any damage at all.? (emphasis supplied) Again in paragraph 22, after analysing the relevant judicial precedents, the Court concluded as follows: ?22. The two lines of cases clearly bear out the two distinct situations in law. A clause like the one in Scott v. Avery bars any action or suit if commenced for determination of a dispute covered by the arbitration clause. But if on the other hand a dispute cropped up at the very outset which cannot be referred to arbitration as being not covered by the clause, then Scott v. Avery clause is rendered inoperative and cannot be pleaded as a bar to the maintainability of the legal action or suit for determination of the dispute which was outside the arbitration clause.? (Emphasis supplied) 12. From the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by a three-Judge Bench in Oriental Insurance Company Limited (supra), is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy. The liability should be unequivocally admitted by the insurer. That is the pre- condition and sine qua non for triggering the arbitration clause. To put it differently, an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy. That has been expressly predicated in the opening part of clause 7 as well as the second paragraph of the same clause. In the opening part, it is stated that the ?(liability being otherwise admitted)?. This is reinforced and re-stated in the second paragraph in the following words: ?It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein before provided, if the Company has disputed or not accepted liability under or in respect of this Policy.? Thus understood, there can be no arbitration in cases where the insurance company disputes or does not accept the liability under or in respect of the policy. 13. The core issue is whether the communication sent on 21 st April, 2011 falls in the excepted category of repudiation and denial of liability in toto or has the effect of acceptance of liability by the insurer under or in respect of the policy and limited to disputation of quantum. The High Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy and in reference to the dictum in Duro Felguera (supra) held that no other enquiry can be made by the Court in that regard. This is misreading of the said decision and the amended provision and, in particular, mis- application of the three-Judge Bench decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and in Oriental Insurance Company Ltd. (supra).14. Reverting to the communication dated 21 st April, 2011, we have no hesitation in taking the view that the appellants completely denied their liability and repudiated the claim of the JV (respondent Nos.1 & 2) for the reasons mentioned in the communication. The reasons are specific. No plea was raised by the respondents that the policy or the said clause 7 was void. The appellants repudiated the claim of the JV and denied their liability in toto under or in respect of the subject policy. It was not a plea to dispute the quantum to be paid under the policy, which alone could be referred to arbitration in terms of clause 7. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if not non-existent. It is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category and non-arbitrable matter within the meaning of the opening part of clause 7 and as re-stated in the second paragraph of the same clause.15. In view of the above, it must be held that the dispute in question is non-arbitrable and respondent Nos.1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos.1 & 2 about the final repudiation expressed by the appellants vide communication dated 17 th April, 2017 will be of no avail. However, whether that factum can be taken as the cause of action for institution of the suit is a matter which can be debated in those proceedings. We may not be understood to have expressed any opinion either way in that regard. | 1[ds]11. The other decision heavily relied upon by the High Court and also by the respondents in Duro Felguera (supra), will be of no avail. Firstly, because it is aBench decision and also because the Court was not called upon to consider the question which arises in the present case, in reference to clause 7 of the subject Insurance Policy. The exposition in this decision is a general observation about the effect of the amended provision and not specific to the issue under consideration. The issue under consideration has been directly dealt with by aBench of this Court in Oriental Insurance Company Limited (supra), following the exposition in Vulcan Insurance Co. Ltd. Vs. Maharaj Singh and Anr., which, again, is aBench decision having construed clause similar to the subject clause 7 of the InsuranceFrom the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by aBench in Oriental Insurance Company Limited (supra), is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy. The liability should be unequivocally admitted by the insurer. That is the precondition and sine qua non for triggering the arbitration clause. To put it differently, an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy. That has been expressly predicated in the opening part of clause 7 as well as the second paragraph of the same clause. In the opening part, it is stated that the ?(liability being otherwise admitted)?. This is reinforced andin the second paragraph in the followingis clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein before provided, if the Company has disputed or not accepted liability under or in respect of thisunderstood, there can be no arbitration in cases where the insurance company disputes or does not accept the liability under or in respect of theHigh Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy and in reference to the dictum in Duro Felguera (supra) held that no other enquiry can be made by the Court in that regard. This is misreading of the said decision and the amended provision and, in particular, misapplication of theBench decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and in Oriental Insurance Company Ltd. (supra).14. Reverting to the communication dated 21 st April, 2011, we have no hesitation in taking the view that the appellants completely denied their liability and repudiated the claim of the JV (respondent Nos.1 & 2) for the reasons mentioned in the communication. The reasons are specific. No plea was raised by the respondents that the policy or the said clause 7 was void. The appellants repudiated the claim of the JV and denied their liability in toto under or in respect of the subject policy. It was not a plea to dispute the quantum to be paid under the policy, which alone could be referred to arbitration in terms of clause 7. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if notIt is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category andmatter within the meaning of the opening part of clause 7 and asin the second paragraph of the same clause.15. In view of the above, it must be held that the dispute in question isand respondent Nos.1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos.1 & 2 about the final repudiation expressed by the appellants vide communication dated 17 th April, 2017 will be of no avail. However, whether that factum can be taken as the cause of action for institution of the suit is a matter which can be debated in those proceedings. We may not be understood to have expressed any opinion either way in that regard. | 1 | 4,638 | 809 | ### Instruction:
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a suit, has got to be commenced within three months from the date of such rejection; otherwise, all benefits under the policy stand forfeited. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or wilful neglect of the claimant or on any other ground disclosed or undisclosed. But as soon as there is a rejection of the claim and not the raising of a dispute as to the amount of any loss or damage, the only remedy open to the claimant is to commence a legal proceeding, namely, a suit, for establishment of the company?s liability. It may well be that after the liability of the company is established in such a suit, for determination of the quantum of the loss or damage reference to arbitration will have to be resorted to in accordance with clause 18. But the arbitration clause, restricted as it is by the use of the words ‘if any difference arises as to the amount of any loss or damage?, cannot take within its sweep a dispute as to the liability of the company when it refuses to pay any damage at all.? (emphasis supplied) Again in paragraph 22, after analysing the relevant judicial precedents, the Court concluded as follows: ?22. The two lines of cases clearly bear out the two distinct situations in law. A clause like the one in Scott v. Avery bars any action or suit if commenced for determination of a dispute covered by the arbitration clause. But if on the other hand a dispute cropped up at the very outset which cannot be referred to arbitration as being not covered by the clause, then Scott v. Avery clause is rendered inoperative and cannot be pleaded as a bar to the maintainability of the legal action or suit for determination of the dispute which was outside the arbitration clause.? (Emphasis supplied) 12. From the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by a three-Judge Bench in Oriental Insurance Company Limited (supra), is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy. The liability should be unequivocally admitted by the insurer. That is the pre- condition and sine qua non for triggering the arbitration clause. To put it differently, an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy. That has been expressly predicated in the opening part of clause 7 as well as the second paragraph of the same clause. In the opening part, it is stated that the ?(liability being otherwise admitted)?. This is reinforced and re-stated in the second paragraph in the following words: ?It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein before provided, if the Company has disputed or not accepted liability under or in respect of this Policy.? Thus understood, there can be no arbitration in cases where the insurance company disputes or does not accept the liability under or in respect of the policy. 13. The core issue is whether the communication sent on 21 st April, 2011 falls in the excepted category of repudiation and denial of liability in toto or has the effect of acceptance of liability by the insurer under or in respect of the policy and limited to disputation of quantum. The High Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy and in reference to the dictum in Duro Felguera (supra) held that no other enquiry can be made by the Court in that regard. This is misreading of the said decision and the amended provision and, in particular, mis- application of the three-Judge Bench decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and in Oriental Insurance Company Ltd. (supra).14. Reverting to the communication dated 21 st April, 2011, we have no hesitation in taking the view that the appellants completely denied their liability and repudiated the claim of the JV (respondent Nos.1 & 2) for the reasons mentioned in the communication. The reasons are specific. No plea was raised by the respondents that the policy or the said clause 7 was void. The appellants repudiated the claim of the JV and denied their liability in toto under or in respect of the subject policy. It was not a plea to dispute the quantum to be paid under the policy, which alone could be referred to arbitration in terms of clause 7. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if not non-existent. It is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category and non-arbitrable matter within the meaning of the opening part of clause 7 and as re-stated in the second paragraph of the same clause.15. In view of the above, it must be held that the dispute in question is non-arbitrable and respondent Nos.1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos.1 & 2 about the final repudiation expressed by the appellants vide communication dated 17 th April, 2017 will be of no avail. However, whether that factum can be taken as the cause of action for institution of the suit is a matter which can be debated in those proceedings. We may not be understood to have expressed any opinion either way in that regard.
### Response:
1
### Explanation:
11. The other decision heavily relied upon by the High Court and also by the respondents in Duro Felguera (supra), will be of no avail. Firstly, because it is aBench decision and also because the Court was not called upon to consider the question which arises in the present case, in reference to clause 7 of the subject Insurance Policy. The exposition in this decision is a general observation about the effect of the amended provision and not specific to the issue under consideration. The issue under consideration has been directly dealt with by aBench of this Court in Oriental Insurance Company Limited (supra), following the exposition in Vulcan Insurance Co. Ltd. Vs. Maharaj Singh and Anr., which, again, is aBench decision having construed clause similar to the subject clause 7 of the InsuranceFrom the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by aBench in Oriental Insurance Company Limited (supra), is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy. The liability should be unequivocally admitted by the insurer. That is the precondition and sine qua non for triggering the arbitration clause. To put it differently, an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy. That has been expressly predicated in the opening part of clause 7 as well as the second paragraph of the same clause. In the opening part, it is stated that the ?(liability being otherwise admitted)?. This is reinforced andin the second paragraph in the followingis clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein before provided, if the Company has disputed or not accepted liability under or in respect of thisunderstood, there can be no arbitration in cases where the insurance company disputes or does not accept the liability under or in respect of theHigh Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy and in reference to the dictum in Duro Felguera (supra) held that no other enquiry can be made by the Court in that regard. This is misreading of the said decision and the amended provision and, in particular, misapplication of theBench decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and in Oriental Insurance Company Ltd. (supra).14. Reverting to the communication dated 21 st April, 2011, we have no hesitation in taking the view that the appellants completely denied their liability and repudiated the claim of the JV (respondent Nos.1 & 2) for the reasons mentioned in the communication. The reasons are specific. No plea was raised by the respondents that the policy or the said clause 7 was void. The appellants repudiated the claim of the JV and denied their liability in toto under or in respect of the subject policy. It was not a plea to dispute the quantum to be paid under the policy, which alone could be referred to arbitration in terms of clause 7. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if notIt is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category andmatter within the meaning of the opening part of clause 7 and asin the second paragraph of the same clause.15. In view of the above, it must be held that the dispute in question isand respondent Nos.1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos.1 & 2 about the final repudiation expressed by the appellants vide communication dated 17 th April, 2017 will be of no avail. However, whether that factum can be taken as the cause of action for institution of the suit is a matter which can be debated in those proceedings. We may not be understood to have expressed any opinion either way in that regard.
|
Patna Electric Supply Company, Limited Vs. Their Workmen | Wanchoo, J.1. This is an appeal by special leave against the award of the industrial tribunal, Patna, and the only point raised before us is with respect to scales of wages fixed by the tribunal. The main contention raised on behalf of the appellant is that as the last adjudication on the question of wage-scales was in 1956 and there had been no change in circumstances since then there was no reason for an upward revision of the wage- scales in 1962. Further, it is urged that the wage-scales fixed are much higher than the wage-scales prevalent in similar electric supply concerns in the State of Bihar. In this connexion reliance has been placed for the purpose of comparison on the wage-scales prevalent in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board. It may be added that there is no dispute as to the financial capacity of the appellant to bear the burden of the wage scales awarded by the tribunal.2. We are of opinion that there is no force in either of the two contentions raised on behalf of the appellant. It is true that the last adjudication in connexion with wage-scales was made in 1956. Even so it appears that the wage-structure, the revision of which was demanded by the workmen, was substantially fixed as far back as 1948 by means of an agreement. Thereafter a reference was made in March 1952 for the revision of these pay-scales. The tribunal, however, then decided that no case had been made out for a general revision of wages. All that it did was to rationalize certain scales of pay and made adjustments therein in view of certain anomalies. The matter was then taken to the Labour Appellate Tribunal in appeal by the workmen; but the appeal also failed except for certain minor modifications. It will thus be seen that basically the wage-structure of which revision was sought by the reference out of which the present appeal has arisen was fixed in 1948. It is clear therefore that by 1961 there has been a change in circumstances to warrant an upward revision of the wage-structure, for it is undoubted that the cost of living has arisen appreciably since 1943. The appellants contention that the wage-structure should not have been revised because there had been no change in circumstances must therefore fail.The next contention that the wage-structure fixed is very high and out of line with the wage-structure in comparable concerns is also devoid of merit. In particular, the appellant wants to compare the wage-structure prevalent in the Jharia Electric Supply Company, Ltd., and under the Bihar State 6 Electricity Board. It may be conceded that generally the wage-structure awarded by the tribunal is higher than the wage-structure prevalent in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board. But we are of opinion that the appellant stands in a class by itself and therefore the provision of a wage-structure somewhat higher than in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board cannot be open to any objection. Patna is the capital city of the State of Bihar and it is well-known that there is no other city in Bihar which can stand comparison with it. Further the Bihar State Electricity Board controls electric supply in muffasil towns and these towns cannot be compared with the capital city.3. We cannot therefore see any reasonable objection to the Patna wage-scales being a little higher than those prevalent under the Bihar State Electricity Board. As for the Jharia Electric Supply Company, Ltd., it appears to be a much smaller concern and therefore not comparable. It may also be noted that the dearness allowance in the appellant concern is a fixed amount and does not go up and down with the rise in the index of cost of living. Further the tribunal has not increased the dearness allowance in view of the higher scales awarded by it. In these circumstances, we are of opinion that no case has been made out for interference with decision of the tribunal. We may add that the workmen wanted to rely on pay-scales applicable to workmen in oil companies through agreements concluded in different centres at Madras, Bombay, Calcutta, Delhi and Karachi.4. The tribunal has rightly rejected these scales for purposes of comparison and has evolved scales after taking into account the conditions prevailing in Bihar and also keeping in view the premier position of Patna in the State of Bihar.5. | 0[ds]We are of opinion that there is no force in either of the two contentions raised on behalf of the appellant. It is true that the last adjudication in connexion withwas made in 1956. Even so it appears that thethe revision of which was demanded by the workmen, was substantially fixed as far back as 1948 by means of an agreement. Thereafter a reference was made in March 1952 for the revision of theseThe tribunal, however, then decided that no case had been made out for a general revision of wages. All that it did was to rationalize certain scales of pay and made adjustments therein in view of certain anomalies. The matter was then taken to the Labour Appellate Tribunal in appeal by the workmen; but the appeal also failed except for certain minor modifications. It will thus be seen that basically theof which revision was sought by the reference out of which the present appeal has arisen was fixed in 1948. It is clear therefore that by 1961 there has been a change in circumstances to warrant an upward revision of thefor it is undoubted that the cost of living has arisen appreciably since 1943. The appellants contention that theshould not have been revised because there had been no change in circumstances must therefore fail.The next contention that thefixed is very high and out of line with thein comparable concerns is also devoid of merit. In particular, the appellant wants to compare theprevalent in the Jharia Electric Supply Company, Ltd., and under the Bihar State 6 Electricity Board. It may be conceded that generally theawarded by the tribunal is higher than thet in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board.But we are of opinion that the appellant stands in a class by itself and therefore the provision of asomewhat higher than in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board cannot be open to any objection. Patna is the capital city of the State of Bihar and it isthat there is no other city in Bihar which can stand comparison with it. Further the Bihar State Electricity Board controls electric supply in muffasil towns and these towns cannot be compared with the capital city.We cannot therefore see any reasonable objection to the Patnabeing a little higher than those prevalent under the Bihar State Electricity Board. As for the Jharia Electric Supply Company, Ltd., it appears to be a much smaller concern and therefore not comparable. It may also be noted that the dearness allowance in the appellant concern is a fixed amount and does not go up and down with the rise in the index of cost of living. Further the tribunal has not increased the dearness allowance in view of the higher scales awarded by it. In these circumstances, we are of opinion that no case has been made out for interference with decision of the tribunal. We may add that the workmen wanted to rely onapplicable to workmen in oil companies through agreements concluded in different centres at Madras, Bombay, Calcutta, Delhi and Karachi.The tribunal has rightly rejected these scales for purposes of comparison and has evolved scales after taking into account the conditions prevailing in Bihar and also keeping in view the premier position of Patna in the State of Bihar. | 0 | 812 | 599 | ### 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:
Wanchoo, J.1. This is an appeal by special leave against the award of the industrial tribunal, Patna, and the only point raised before us is with respect to scales of wages fixed by the tribunal. The main contention raised on behalf of the appellant is that as the last adjudication on the question of wage-scales was in 1956 and there had been no change in circumstances since then there was no reason for an upward revision of the wage- scales in 1962. Further, it is urged that the wage-scales fixed are much higher than the wage-scales prevalent in similar electric supply concerns in the State of Bihar. In this connexion reliance has been placed for the purpose of comparison on the wage-scales prevalent in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board. It may be added that there is no dispute as to the financial capacity of the appellant to bear the burden of the wage scales awarded by the tribunal.2. We are of opinion that there is no force in either of the two contentions raised on behalf of the appellant. It is true that the last adjudication in connexion with wage-scales was made in 1956. Even so it appears that the wage-structure, the revision of which was demanded by the workmen, was substantially fixed as far back as 1948 by means of an agreement. Thereafter a reference was made in March 1952 for the revision of these pay-scales. The tribunal, however, then decided that no case had been made out for a general revision of wages. All that it did was to rationalize certain scales of pay and made adjustments therein in view of certain anomalies. The matter was then taken to the Labour Appellate Tribunal in appeal by the workmen; but the appeal also failed except for certain minor modifications. It will thus be seen that basically the wage-structure of which revision was sought by the reference out of which the present appeal has arisen was fixed in 1948. It is clear therefore that by 1961 there has been a change in circumstances to warrant an upward revision of the wage-structure, for it is undoubted that the cost of living has arisen appreciably since 1943. The appellants contention that the wage-structure should not have been revised because there had been no change in circumstances must therefore fail.The next contention that the wage-structure fixed is very high and out of line with the wage-structure in comparable concerns is also devoid of merit. In particular, the appellant wants to compare the wage-structure prevalent in the Jharia Electric Supply Company, Ltd., and under the Bihar State 6 Electricity Board. It may be conceded that generally the wage-structure awarded by the tribunal is higher than the wage-structure prevalent in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board. But we are of opinion that the appellant stands in a class by itself and therefore the provision of a wage-structure somewhat higher than in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board cannot be open to any objection. Patna is the capital city of the State of Bihar and it is well-known that there is no other city in Bihar which can stand comparison with it. Further the Bihar State Electricity Board controls electric supply in muffasil towns and these towns cannot be compared with the capital city.3. We cannot therefore see any reasonable objection to the Patna wage-scales being a little higher than those prevalent under the Bihar State Electricity Board. As for the Jharia Electric Supply Company, Ltd., it appears to be a much smaller concern and therefore not comparable. It may also be noted that the dearness allowance in the appellant concern is a fixed amount and does not go up and down with the rise in the index of cost of living. Further the tribunal has not increased the dearness allowance in view of the higher scales awarded by it. In these circumstances, we are of opinion that no case has been made out for interference with decision of the tribunal. We may add that the workmen wanted to rely on pay-scales applicable to workmen in oil companies through agreements concluded in different centres at Madras, Bombay, Calcutta, Delhi and Karachi.4. The tribunal has rightly rejected these scales for purposes of comparison and has evolved scales after taking into account the conditions prevailing in Bihar and also keeping in view the premier position of Patna in the State of Bihar.5.
### Response:
0
### Explanation:
We are of opinion that there is no force in either of the two contentions raised on behalf of the appellant. It is true that the last adjudication in connexion withwas made in 1956. Even so it appears that thethe revision of which was demanded by the workmen, was substantially fixed as far back as 1948 by means of an agreement. Thereafter a reference was made in March 1952 for the revision of theseThe tribunal, however, then decided that no case had been made out for a general revision of wages. All that it did was to rationalize certain scales of pay and made adjustments therein in view of certain anomalies. The matter was then taken to the Labour Appellate Tribunal in appeal by the workmen; but the appeal also failed except for certain minor modifications. It will thus be seen that basically theof which revision was sought by the reference out of which the present appeal has arisen was fixed in 1948. It is clear therefore that by 1961 there has been a change in circumstances to warrant an upward revision of thefor it is undoubted that the cost of living has arisen appreciably since 1943. The appellants contention that theshould not have been revised because there had been no change in circumstances must therefore fail.The next contention that thefixed is very high and out of line with thein comparable concerns is also devoid of merit. In particular, the appellant wants to compare theprevalent in the Jharia Electric Supply Company, Ltd., and under the Bihar State 6 Electricity Board. It may be conceded that generally theawarded by the tribunal is higher than thet in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board.But we are of opinion that the appellant stands in a class by itself and therefore the provision of asomewhat higher than in the Jharia Electric Supply Company, Ltd., and under the Bihar State Electricity Board cannot be open to any objection. Patna is the capital city of the State of Bihar and it isthat there is no other city in Bihar which can stand comparison with it. Further the Bihar State Electricity Board controls electric supply in muffasil towns and these towns cannot be compared with the capital city.We cannot therefore see any reasonable objection to the Patnabeing a little higher than those prevalent under the Bihar State Electricity Board. As for the Jharia Electric Supply Company, Ltd., it appears to be a much smaller concern and therefore not comparable. It may also be noted that the dearness allowance in the appellant concern is a fixed amount and does not go up and down with the rise in the index of cost of living. Further the tribunal has not increased the dearness allowance in view of the higher scales awarded by it. In these circumstances, we are of opinion that no case has been made out for interference with decision of the tribunal. We may add that the workmen wanted to rely onapplicable to workmen in oil companies through agreements concluded in different centres at Madras, Bombay, Calcutta, Delhi and Karachi.The tribunal has rightly rejected these scales for purposes of comparison and has evolved scales after taking into account the conditions prevailing in Bihar and also keeping in view the premier position of Patna in the State of Bihar.
|
Income-Tax Officer, Award, Sitapur Vs. Murlidhar Bhagwandas, Lakhimpur Kheri | 1959 Mad 328 ) in 1963-47 ITR 16 (Mad) and held that the word "finding" in the proviso to S. 34(3) must be given a wide significance so as to include not only findings necessary for the disposal of the appeal but also findings which are incidental to it and would include its conclusion as to whether the income in question in the appeal was not received during the year to which the appeal relates. Upon this view the High Court held that if in pursuance of such a finding, the Income-tax Officer proceeds to investigate afresh as to in which year the income was received, the action of the Income-tax" Officer would still be the result of or the logical consequence of the finding arrived at for the purpose of the disposal of the appeal and the proviso to S. 34(3) would apply to such a case. The view taken by the High Court is in our judgment correct.24. Thus in our view upon a construction of the relevant provision we have no doubt that the notice was not in contravention of the provisions of S. 34 of the Income-tax Act and could not be quashed on that ground.25. The question then remains whether the second proviso below S. 34 (3) is bad as offending Art. 14 of the Constitution. In support of this contention reliance is placed by Mr. Bishan Narain for the respondent on the decisions of this Court in Suraj Mall Mohta and Co. v. A. V. Viswanatha Sastri, 1955-1 SCR 448 : (AIR 1954 SC 545 ) and 1963-49 ITR (SC) 1: (AIR 1963 SC 1356 ), In the first case it was held that both S. 34 of the Income-tax Act and sub-s. (4) of S. 5 of the Taxation on Income (Investigation Commission) Act, 1947, deal with all persons who have similar characteristics and similar properties, that the procedure prescribed in the latter Act is substantially more prejudicial and more drastic to the assessee than the procedure under the former Act and that therefore, sub-s. (4) of S. 5 of the former Act in so far as it affects the persons proceeded against thereunder is void as offending the provisions of Art. 14 of the Constitution. On the analogy of this case learned counsel contends that the second proviso to S. 34(3) enabling a notice to issue only to an assessee in respect of escaped income without limit of time on the ground that an Appellate Authority has made a finding or direction in the proceeding before it makes a discrimination against such an assessee because it does not lift the bar of limitation with regard to other assessees, similarly situate, but with regard to whom no finding has been made or direction given by an Appellate Authority. No doubt, persons whose income have escaped assessment, and the fact that they have escaped assessment has not been discovered till after the lapse of eight year from the year in which they could have been assessed to tax on such income can be placed in one class. But surely it does not follow that even in that class there can be no further classification. The legislature in enacting the particular provision has made a further or a sub-classification by putting under one head those whose assessments have come up for scrutiny before an Appellate Authority and with respect to whose escaped assessment a judicial finding or direction is made by the Appellate Authority and under another head other assessees whose escaped income was not detected by the Appellate Authority and with respect to which no judicial finding or direction was, therefore made by such authority. There is a real difference between the two categories of assessees. Prima facie there is reasonable basis for the sub-classification and the grounds on which it is made, that is, discovery by a higher Income-tax Authority and a judicial finding of direction made with respect to the fact by it. These grounds have a rational relationship with the object which was intended to be achieved by the law, that is, to detect and bring to assessment the escaped income.(See for example A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, ((S) AIR 1956 SC 246 ) where a further classification of war profiteers into those who had evaded substantial amount of income-tax and those whose evasion was not of a substantial amount was upheld.) We can find nothing in the decision upon which reliance is placed which runs counter to our view. On the other hand we find ample support from the decision in Balaji v. Income-tax Officer, Special Investigation Circle, Akola, (AIR 1962 SC 123 ) where it has been pointed out that the two tests of permissible classification under Art. 14 (a) are that the classification must be founded on an intelligible differentia and (b) that the differentia must be reasonably connected with the object of the legislation, and that where they are satisfied by a statute, it does not violate Art. 14 of the Constitution. As regards the other decision relied upon, it is sufficient to point out that the majority of the learned judges have only struck down that part of the proviso which enables a notice to issue "to any person" on the ground that it is violative of Art. 14.The precise question which we have before us does not appear to have been the subject of decision in the case. We are, therefore, unable to accept the contention of learned counsel.26. For the foregoing reasons we allow the appeal and quash the writ of certiorari issued by the High Court. It may be mentioned that in the absence of a stay of proceedings by the High Court the Income-tax Officer has actually made an assessment in pursuance of the impugned notice. That assessment will stand unless it is modified or annulled in any proceeding permitted by law. Costs of the appeal and the petition before the High Court will be borne by the respondent. | 0[ds]It may, therefore, be held on a construction of the provisions of S. 31. that the jurisdiction of the Appellate Assistant Commissioner is strictly confined to the assessment orders of a particular year under appeal. Section 33, inter alia, deals with an appeal to the Tribunal against of the order of the Appellate Assistant Commissioner under S. 31: and S. 33B confers power of revision on the Commissioner against an order of the Income-tax Officer. The jurisdiction of the Appellate Tribunal or the Revisional Tribunal, as the provisions indicate, is confined only to the subject-matter which is under appeal or revision. The jurisdiction of the High Court or the Supreme Court under S. 66 or S. 66B, as the case may be, is far more limited and it is confined only to the questions referred to them. Obviously the questions referred by the Tribunal cannot exceed its jurisdiction. It is, therefore, manifest that assessment or re-assessment made under the said sections or pursuant to the orders or directions made thereunder must necessarily relate to the assessment of the year under review, revision or appeal, as the case may be. It is important to remember that the proviso does not confer any fresh power upon the Income-tax Officer to make assessments in respect of escaped incomes without any time limit. It only lifts the ban of limitation in respect of certain assessments made under certain provisions of the Act and the lifting of the ban cannot be so construed as to increase the jurisdiction of the Tribunals under the relevant section. The lifting of the ban was only to give effect to the orders that may be made by the appellate, revisional or reviewing tribunal within the scope of its jurisdiction. If the intention was to remove the period of limitation in respect of any assessment against any person, the proviso would not have been added as a proviso to sub-s. (3) of S. 34 which deals with completion of an assessment, but would have been added to sub-s. (1) thereof.In the result, we hold that the said proviso would not save the time limit prescribed under sub-s. (1) of S. 34 of the Act in respect of an escaped assessment of a year other than that which is the subject-matter of the appeal or the revision, as the case may be. It follows that the notice under S. 34 (1) (a) of the Act issued in the present case was clearly barred by limitation. | 0 | 9,757 | 459 | ### 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:
1959 Mad 328 ) in 1963-47 ITR 16 (Mad) and held that the word "finding" in the proviso to S. 34(3) must be given a wide significance so as to include not only findings necessary for the disposal of the appeal but also findings which are incidental to it and would include its conclusion as to whether the income in question in the appeal was not received during the year to which the appeal relates. Upon this view the High Court held that if in pursuance of such a finding, the Income-tax Officer proceeds to investigate afresh as to in which year the income was received, the action of the Income-tax" Officer would still be the result of or the logical consequence of the finding arrived at for the purpose of the disposal of the appeal and the proviso to S. 34(3) would apply to such a case. The view taken by the High Court is in our judgment correct.24. Thus in our view upon a construction of the relevant provision we have no doubt that the notice was not in contravention of the provisions of S. 34 of the Income-tax Act and could not be quashed on that ground.25. The question then remains whether the second proviso below S. 34 (3) is bad as offending Art. 14 of the Constitution. In support of this contention reliance is placed by Mr. Bishan Narain for the respondent on the decisions of this Court in Suraj Mall Mohta and Co. v. A. V. Viswanatha Sastri, 1955-1 SCR 448 : (AIR 1954 SC 545 ) and 1963-49 ITR (SC) 1: (AIR 1963 SC 1356 ), In the first case it was held that both S. 34 of the Income-tax Act and sub-s. (4) of S. 5 of the Taxation on Income (Investigation Commission) Act, 1947, deal with all persons who have similar characteristics and similar properties, that the procedure prescribed in the latter Act is substantially more prejudicial and more drastic to the assessee than the procedure under the former Act and that therefore, sub-s. (4) of S. 5 of the former Act in so far as it affects the persons proceeded against thereunder is void as offending the provisions of Art. 14 of the Constitution. On the analogy of this case learned counsel contends that the second proviso to S. 34(3) enabling a notice to issue only to an assessee in respect of escaped income without limit of time on the ground that an Appellate Authority has made a finding or direction in the proceeding before it makes a discrimination against such an assessee because it does not lift the bar of limitation with regard to other assessees, similarly situate, but with regard to whom no finding has been made or direction given by an Appellate Authority. No doubt, persons whose income have escaped assessment, and the fact that they have escaped assessment has not been discovered till after the lapse of eight year from the year in which they could have been assessed to tax on such income can be placed in one class. But surely it does not follow that even in that class there can be no further classification. The legislature in enacting the particular provision has made a further or a sub-classification by putting under one head those whose assessments have come up for scrutiny before an Appellate Authority and with respect to whose escaped assessment a judicial finding or direction is made by the Appellate Authority and under another head other assessees whose escaped income was not detected by the Appellate Authority and with respect to which no judicial finding or direction was, therefore made by such authority. There is a real difference between the two categories of assessees. Prima facie there is reasonable basis for the sub-classification and the grounds on which it is made, that is, discovery by a higher Income-tax Authority and a judicial finding of direction made with respect to the fact by it. These grounds have a rational relationship with the object which was intended to be achieved by the law, that is, to detect and bring to assessment the escaped income.(See for example A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, ((S) AIR 1956 SC 246 ) where a further classification of war profiteers into those who had evaded substantial amount of income-tax and those whose evasion was not of a substantial amount was upheld.) We can find nothing in the decision upon which reliance is placed which runs counter to our view. On the other hand we find ample support from the decision in Balaji v. Income-tax Officer, Special Investigation Circle, Akola, (AIR 1962 SC 123 ) where it has been pointed out that the two tests of permissible classification under Art. 14 (a) are that the classification must be founded on an intelligible differentia and (b) that the differentia must be reasonably connected with the object of the legislation, and that where they are satisfied by a statute, it does not violate Art. 14 of the Constitution. As regards the other decision relied upon, it is sufficient to point out that the majority of the learned judges have only struck down that part of the proviso which enables a notice to issue "to any person" on the ground that it is violative of Art. 14.The precise question which we have before us does not appear to have been the subject of decision in the case. We are, therefore, unable to accept the contention of learned counsel.26. For the foregoing reasons we allow the appeal and quash the writ of certiorari issued by the High Court. It may be mentioned that in the absence of a stay of proceedings by the High Court the Income-tax Officer has actually made an assessment in pursuance of the impugned notice. That assessment will stand unless it is modified or annulled in any proceeding permitted by law. Costs of the appeal and the petition before the High Court will be borne by the respondent.
### Response:
0
### Explanation:
It may, therefore, be held on a construction of the provisions of S. 31. that the jurisdiction of the Appellate Assistant Commissioner is strictly confined to the assessment orders of a particular year under appeal. Section 33, inter alia, deals with an appeal to the Tribunal against of the order of the Appellate Assistant Commissioner under S. 31: and S. 33B confers power of revision on the Commissioner against an order of the Income-tax Officer. The jurisdiction of the Appellate Tribunal or the Revisional Tribunal, as the provisions indicate, is confined only to the subject-matter which is under appeal or revision. The jurisdiction of the High Court or the Supreme Court under S. 66 or S. 66B, as the case may be, is far more limited and it is confined only to the questions referred to them. Obviously the questions referred by the Tribunal cannot exceed its jurisdiction. It is, therefore, manifest that assessment or re-assessment made under the said sections or pursuant to the orders or directions made thereunder must necessarily relate to the assessment of the year under review, revision or appeal, as the case may be. It is important to remember that the proviso does not confer any fresh power upon the Income-tax Officer to make assessments in respect of escaped incomes without any time limit. It only lifts the ban of limitation in respect of certain assessments made under certain provisions of the Act and the lifting of the ban cannot be so construed as to increase the jurisdiction of the Tribunals under the relevant section. The lifting of the ban was only to give effect to the orders that may be made by the appellate, revisional or reviewing tribunal within the scope of its jurisdiction. If the intention was to remove the period of limitation in respect of any assessment against any person, the proviso would not have been added as a proviso to sub-s. (3) of S. 34 which deals with completion of an assessment, but would have been added to sub-s. (1) thereof.In the result, we hold that the said proviso would not save the time limit prescribed under sub-s. (1) of S. 34 of the Act in respect of an escaped assessment of a year other than that which is the subject-matter of the appeal or the revision, as the case may be. It follows that the notice under S. 34 (1) (a) of the Act issued in the present case was clearly barred by limitation.
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Prabhu Narayan Vs. A. K. Srivastava | been verified as having been made on information and knowledge of the petitioner is not a requisite prescribed under Rule 94-A of the Conduct of Election Rules, 1961 which are applicable to the filing of an election petition.The affidavit in support of an election petition need not itself disclose the sources of information. The election petition under Section 83 (1) (b) itself must contain all the particulars that are necessary and in the affidavit in support of the petition the petitioner is required to say which of the allegations made in various paragraphs of the petition are true to his knowledge and which of them are true to his information. If any source of information has not been set out and the respondent can not answer them. Without particulars, he can always apply for better particulars. If the petition and the affidavit conform to the provisions of the Act and the Rules made thereunder, it cannot be said that because the sources of the information have not been given, the allegations made in the petition have to be ignored."This accords with the view which we have taken. Furthermore, according to Section 86 of the Representation of the People Act only petitions which do not comply with the provisions of Section 81 or Section 82 or Section 117 are liable to be dismissed. We, therefore, overrule the preliminary objection.7. With respect to these five documents there is no dispute that they fall within the mischief of Section 123 (4) and it is therefore unnecessary to set out the contents of these pamphlets, nor was it seriously contended except in the case of Ex. P-8 that they were not circulated. The only question is whether the circulation was made by the respondent or with his consent. In considering this question it is important to bear in mind that all the persons who admit that they printed these pamphlets are workers of the respondent. We will deal with the evidence in due course. It is necessary to go into the question of the printing of these pamphlets because evidence regarding it will have a bearing on their distribution either by the respondent or by his supporters with his consent. Though as many as 67 witnesses were examined and 28 of them with regard to publication, the learned trial Judge has rejected all of them.Where the question of publication and distribution is a matter to be decided on the basis of oral evidence, it is easy to dispose of them by saying that it is of persons interested in the appellant. That is why a discussion of the question regarding the printing should provide a satisfactory method of assuring oneself as to whether the distribution was made as alleged by the appellant. (The Judgment here discussed the evidence in Paras 8 to 28. The Judgment then proceeded:)29. After a thorough and anxious examination of the evidence in this case we have come to the conclusion that the people who got printed Exs. P-3, P-4, P-5, P-6 and P-8 are close supporters of the respondent. They have no special grievance against the appellant, certainly not enough to make them go to the extent of having them printed of their own. Two of them, Vijay Kumar Agarwal and Suman are mere boys of 14 and 15. They have merely been made use of by somebody and that somebody in the proved circumstances of this case could only be the respondent. We are not able to accept the evidence of Vijay Kumar Agarwal that he got the pamphlets at 11.30.p.m. on the night of the 10th March and he distributed them to a few people.Nor are we able to accept the evidence of Suman that though he gave the matter for printing on the 10th he got the pamphlets only on the 11th and so he did not distribute them. We find the evidence of P.Ws. 66 and 67 that it was given for printing on the 9th more acceptable. We are unable to accept the assertion of Ramesh Chand Jain that he got Ex. P-8 printed in order to hand it over to the Chief Minister when he was due to arrive at Damoh on the 28th of February but that he destroyed them because the Chief Minister did not turn up. All these pamphlets have been printed with a definite purpose that is of harming the chances of the appellant in the election and thereby aiding the respondent. The plan and the direction could have come only from one source that is the respondent. He has made use of his supporters, two of them young boys of 14 and 15, to get the pamphlets printed in their names so that they could take the responsibility and he may disown the responsibility for them.30. We have discussed the evidence of only non-Congress witnesses and we can see no reason to reject them. We do not agree with the learned Judge who rejected wholesale every bit of evidence adduced on behalf of the respondent. Whether the evidence of P.Ws. 66 and 67 about the part played by the respondent with regard to the pamphlets printed in the Chhabi Printing Press and of Kailash Chand Nakra with regard to the pamphlets printed in the Kailash Press are correct or not, we are convinced beyond reasonable doubt that the respondent is the guiding brain and hand behind all of them. He and his supporters must have planned all these things together. He has made his witnesses admit just enough so that a red herring might be drawn across the trail and blame may attach to them and not to him. The fact that he is an advocate or that it is the third election in which he is standing is no guarantee against his being responsible for this.31. Then there is the question of two meetings dated 4-3-1972 and 3-3-1972. We do not think it necessary to examine this branch of the case in view of the earlier findings. | 1[ds]is obvious that when Section 123 (4) speaks of publication it means distribution. Mere printing of the pamphlets would not fall under Section 123 (4). Therefore the failure to give particulars of the printing cannot lead to the dismissal of the petition. Nor could evidence regarding it be shut out. The proviso to Section 83 (1) lays down that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It does not say that the allegation of corrupt practice and particulars thereof should be given in the affidavit. The election petition contains the allegation of corrupt practices and particulars thereof.That this is the intention of the Legislature is also clear from a perusal of Form 25, which is the one prescribed under Rule 94A of the Conduct of Elections Rules. The affidavit filed in support of the election petition is in accordance with that form.5.Reliance was placed on behalf of the respondent on the decision of this Court in Virendra Kumar v. Jagjivan (1972 (1) SCC 826 ) = (AIR 1974 SC 1957 ). | 1 | 2,118 | 222 | ### 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:
been verified as having been made on information and knowledge of the petitioner is not a requisite prescribed under Rule 94-A of the Conduct of Election Rules, 1961 which are applicable to the filing of an election petition.The affidavit in support of an election petition need not itself disclose the sources of information. The election petition under Section 83 (1) (b) itself must contain all the particulars that are necessary and in the affidavit in support of the petition the petitioner is required to say which of the allegations made in various paragraphs of the petition are true to his knowledge and which of them are true to his information. If any source of information has not been set out and the respondent can not answer them. Without particulars, he can always apply for better particulars. If the petition and the affidavit conform to the provisions of the Act and the Rules made thereunder, it cannot be said that because the sources of the information have not been given, the allegations made in the petition have to be ignored."This accords with the view which we have taken. Furthermore, according to Section 86 of the Representation of the People Act only petitions which do not comply with the provisions of Section 81 or Section 82 or Section 117 are liable to be dismissed. We, therefore, overrule the preliminary objection.7. With respect to these five documents there is no dispute that they fall within the mischief of Section 123 (4) and it is therefore unnecessary to set out the contents of these pamphlets, nor was it seriously contended except in the case of Ex. P-8 that they were not circulated. The only question is whether the circulation was made by the respondent or with his consent. In considering this question it is important to bear in mind that all the persons who admit that they printed these pamphlets are workers of the respondent. We will deal with the evidence in due course. It is necessary to go into the question of the printing of these pamphlets because evidence regarding it will have a bearing on their distribution either by the respondent or by his supporters with his consent. Though as many as 67 witnesses were examined and 28 of them with regard to publication, the learned trial Judge has rejected all of them.Where the question of publication and distribution is a matter to be decided on the basis of oral evidence, it is easy to dispose of them by saying that it is of persons interested in the appellant. That is why a discussion of the question regarding the printing should provide a satisfactory method of assuring oneself as to whether the distribution was made as alleged by the appellant. (The Judgment here discussed the evidence in Paras 8 to 28. The Judgment then proceeded:)29. After a thorough and anxious examination of the evidence in this case we have come to the conclusion that the people who got printed Exs. P-3, P-4, P-5, P-6 and P-8 are close supporters of the respondent. They have no special grievance against the appellant, certainly not enough to make them go to the extent of having them printed of their own. Two of them, Vijay Kumar Agarwal and Suman are mere boys of 14 and 15. They have merely been made use of by somebody and that somebody in the proved circumstances of this case could only be the respondent. We are not able to accept the evidence of Vijay Kumar Agarwal that he got the pamphlets at 11.30.p.m. on the night of the 10th March and he distributed them to a few people.Nor are we able to accept the evidence of Suman that though he gave the matter for printing on the 10th he got the pamphlets only on the 11th and so he did not distribute them. We find the evidence of P.Ws. 66 and 67 that it was given for printing on the 9th more acceptable. We are unable to accept the assertion of Ramesh Chand Jain that he got Ex. P-8 printed in order to hand it over to the Chief Minister when he was due to arrive at Damoh on the 28th of February but that he destroyed them because the Chief Minister did not turn up. All these pamphlets have been printed with a definite purpose that is of harming the chances of the appellant in the election and thereby aiding the respondent. The plan and the direction could have come only from one source that is the respondent. He has made use of his supporters, two of them young boys of 14 and 15, to get the pamphlets printed in their names so that they could take the responsibility and he may disown the responsibility for them.30. We have discussed the evidence of only non-Congress witnesses and we can see no reason to reject them. We do not agree with the learned Judge who rejected wholesale every bit of evidence adduced on behalf of the respondent. Whether the evidence of P.Ws. 66 and 67 about the part played by the respondent with regard to the pamphlets printed in the Chhabi Printing Press and of Kailash Chand Nakra with regard to the pamphlets printed in the Kailash Press are correct or not, we are convinced beyond reasonable doubt that the respondent is the guiding brain and hand behind all of them. He and his supporters must have planned all these things together. He has made his witnesses admit just enough so that a red herring might be drawn across the trail and blame may attach to them and not to him. The fact that he is an advocate or that it is the third election in which he is standing is no guarantee against his being responsible for this.31. Then there is the question of two meetings dated 4-3-1972 and 3-3-1972. We do not think it necessary to examine this branch of the case in view of the earlier findings.
### Response:
1
### Explanation:
is obvious that when Section 123 (4) speaks of publication it means distribution. Mere printing of the pamphlets would not fall under Section 123 (4). Therefore the failure to give particulars of the printing cannot lead to the dismissal of the petition. Nor could evidence regarding it be shut out. The proviso to Section 83 (1) lays down that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It does not say that the allegation of corrupt practice and particulars thereof should be given in the affidavit. The election petition contains the allegation of corrupt practices and particulars thereof.That this is the intention of the Legislature is also clear from a perusal of Form 25, which is the one prescribed under Rule 94A of the Conduct of Elections Rules. The affidavit filed in support of the election petition is in accordance with that form.5.Reliance was placed on behalf of the respondent on the decision of this Court in Virendra Kumar v. Jagjivan (1972 (1) SCC 826 ) = (AIR 1974 SC 1957 ).
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UTTAR PRADESH JAL VIDYUT (S)NIGAM LIMITED & ORS Vs. BALBIR SINGH | granted by Allahabad High Court permitting the appellants to file a fresh writ petition before the appropriate court dated 24.04.2014, will not make the writ petition tenable before the High Court of Uttarakhand and that too when a challenge is given to the impugned award before the Uttarakhand High Court after 19 years of its pendency. The learned Single Judge has also observed that even the institution of the writ petition before the High Court of Uttarakhand challenging the award passed by the Labour Court, Dehradun dated 31.05.1997 would be suffering from the principles of laches. 3.2 None of the aforesaid grounds are tenable at law. It cannot be disputed that after the creation of the State of Uttarakhand the jurisdiction over judgment and award passed by the Labour Court, Dehradun would vest with the High Court of Uttarakhand and not with the High Court of Allahabad. Therefore, the writ petition pending before the High Court of Allahabad challenging the judgment and award passed by the Labour Court, Dehradun was as such required to be transferred by the Chief Justice of the High Court of Allahabad to the High Court of Uttarakhand in exercise of power under Section 35 of the Act. For whatever reason the said writ petition was not transferred. That does not mean that despite the above, jurisdiction of the High Court of Allahabad against the judgment and award passed by the Labour Court, Dehradun would continue. Therefore subsequently when the writ petition came up before the High Court of Allahabad and having realized and observed that the jurisdiction against the judgment and award passed by the Labour Court, Dehradun would vest with the High Court of Uttarakhand, the High Court of Allahabad rightly permitted the appellants to withdraw the said writ petition pending before it with the liberty to the appellants to file fresh writ petition before the appropriate court. In the present case, the appropriate court would be the High Court of Uttarakhand only. Therefore as such no error was committed by the High Court of Allahabad permitting the appellants to withdraw the writ petition pending before it with the liberty to file a fresh writ petition before the court having jurisdiction. The aforesaid cannot be said to be adoring himself with the powers of the Chief Justice of Allahabad High Court. The judicial order passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition pending before the Allahabad High Court with the liberty to file fresh writ petition before the appropriate court cannot be said to be contrary to the provisions contained under Sub-Section (2) of Section 35 of the Act as observed by the learned Single Judge in the impugned order. The order under Sub-Section (2) of Section 35 of the Act by the Chief Justice of the Allahabad High Court for transfer of pending matters before the Allahabad High Court to the High Court of Uttarakhand is an administrative order. If that power was not exercised and subsequently it was found that proceedings which were required to be transferred in exercise of power Sub-Section (2) of Section 35 of the Act, has not been transferred, it does not preclude the High Court of Allahabad to pass a judicial order and that too permitting the appellants to withdraw the writ petition pending before it and to file it before an appropriate court. As such the High Court in such a situation would be absolutely justified in permitting to withdraw the writ petition pending before it with liberty to file it before an appropriate court having jurisdiction, on the creation of the new State – State of Uttarakhand. 3.3 The another reason which is assigned by the High Court while passing the impugned order is that if the writ petition is filed before it – the High Court of Uttarakhand challenging the judgment and award of the Labour Court, Dehradun dated 31.05.1997, it would be suffering from the principles of laches. The aforesaid reason is absolutely unsustainable. The High Court has not appreciated that the writ petition before the High Court was filed immediately which remained pending before the High Court of Allahabad for about 14 years and thereafter after the appellants withdrew the writ petition from the Allahabad High Court immediately the writ petition was filed before the High Court of Uttarakhand. Therefore there was no delay at all on the part of the appellants in challenging the award passed by the Labour Court, Dehradun. Therefore in such a situation there was no question of any delay and laches. 4. Even otherwise once a judicial order was passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before the appropriate court (the High Court of Uttarakhand) and thereafter when the appellants preferred the writ petition before the High Court of Uttarakhand, the learned Single Judge of the High Court of Uttarakhand is not at all justified in making comments upon the judicial order passed by the Coordinate Bench of the Allahabad High Court. The Single Judge of the High Court of Uttarakhand was not acting as an appellate court against the judicial order passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before an appropriate court. Judicial discipline/propriety demand to respect the order passed by the Coordinate Bench and more particularly the judicial order passed by the Coordinate Bench of the High Court, in the present case the Allahabad High Court which as such was not under challenge before it. Therefore the observations made by the High Court of Uttarakhand in the impugned order on the judicial order passed by the learned Single Judge of Allahabad High Court dated 24.04.2014 permitting the appellants to withdraw the writ petition pending before it with liberty to file fresh writ petition before the appropriate court (the High Court of Uttarakhand) is absolutely unwarranted and is unsustainable. | 1[ds]3. Having heard the learned counsel appearing for the respective parties and considering the impugned order passed by the High Court of Uttarakhand, we are of the opinion that the impugned order passed by the High Court dismissing the writ petition without entering into the merits of the case is unsustainable.3.1 It cannot be disputed that as such on the creation of the State of Uttarakhand, the jurisdiction over the Labour Court, Dehradun would only vest with the High Court of Uttarakhand. It also cannot be disputed that therefore as such the writ petition pending before the High Court of Allahabad challenging the judgment and award passed by the Presiding Officer, Labour Court, Dehradun was required to be transferred to the High Court of Uttarakhand by the Chief Justice of the High Court of Allahabad in exercise of power under Sub-Section (2) of Section 35 of the Act.3.2 None of the aforesaid grounds are tenable at law. It cannot be disputed that after the creation of the State of Uttarakhand the jurisdiction over judgment and award passed by the Labour Court, Dehradun would vest with the High Court of Uttarakhand and not with the High Court of Allahabad. Therefore, the writ petition pending before the High Court of Allahabad challenging the judgment and award passed by the Labour Court, Dehradun was as such required to be transferred by the Chief Justice of the High Court of Allahabad to the High Court of Uttarakhand in exercise of power under Section 35 of the Act. For whatever reason the said writ petition was not transferred. That does not mean that despite the above, jurisdiction of the High Court of Allahabad against the judgment and award passed by the Labour Court, Dehradun would continue. Therefore subsequently when the writ petition came up before the High Court of Allahabad and having realized and observed that the jurisdiction against the judgment and award passed by the Labour Court, Dehradun would vest with the High Court of Uttarakhand, the High Court of Allahabad rightly permitted the appellants to withdraw the said writ petition pending before it with the liberty to the appellants to file fresh writ petition before the appropriate court. In the present case, the appropriate court would be the High Court of Uttarakhand only. Therefore as such no error was committed by the High Court of Allahabad permitting the appellants to withdraw the writ petition pending before it with the liberty to file a fresh writ petition before the court having jurisdiction. The aforesaid cannot be said to be adoring himself with the powers of the Chief Justice of Allahabad High Court. The judicial order passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition pending before the Allahabad High Court with the liberty to file fresh writ petition before the appropriate court cannot be said to be contrary to the provisions contained under Sub-Section (2) of Section 35 of the Act as observed by the learned Single Judge in the impugned order. The order under Sub-Section (2) of Section 35 of the Act by the Chief Justice of the Allahabad High Court for transfer of pending matters before the Allahabad High Court to the High Court of Uttarakhand is an administrative order. If that power was not exercised and subsequently it was found that proceedings which were required to be transferred in exercise of power Sub-Section (2) of Section 35 of the Act, has not been transferred, it does not preclude the High Court of Allahabad to pass a judicial order and that too permitting the appellants to withdraw the writ petition pending before it and to file it before an appropriate court. As such the High Court in such a situation would be absolutely justified in permitting to withdraw the writ petition pending before it with liberty to file it before an appropriate court having jurisdiction, on the creation of the new State – State of Uttarakhand.3.3 The another reason which is assigned by the High Court while passing the impugned order is that if the writ petition is filed before it – the High Court of Uttarakhand challenging the judgment and award of the Labour Court, Dehradun dated 31.05.1997, it would be suffering from the principles of laches. The aforesaid reason is absolutely unsustainable. The High Court has not appreciated that the writ petition before the High Court was filed immediately which remained pending before the High Court of Allahabad for about 14 years and thereafter after the appellants withdrew the writ petition from the Allahabad High Court immediately the writ petition was filed before the High Court of Uttarakhand. Therefore there was no delay at all on the part of the appellants in challenging the award passed by the Labour Court, Dehradun. Therefore in such a situation there was no question of any delay and laches.4. Even otherwise once a judicial order was passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before the appropriate court (the High Court of Uttarakhand) and thereafter when the appellants preferred the writ petition before the High Court of Uttarakhand, the learned Single Judge of the High Court of Uttarakhand is not at all justified in making comments upon the judicial order passed by the Coordinate Bench of the Allahabad High Court. The Single Judge of the High Court of Uttarakhand was not acting as an appellate court against the judicial order passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before an appropriate court. Judicial discipline/propriety demand to respect the order passed by the Coordinate Bench and more particularly the judicial order passed by the Coordinate Bench of the High Court, in the present case the Allahabad High Court which as such was not under challenge before it. Therefore the observations made by the High Court of Uttarakhand in the impugned order on the judicial order passed by the learned Single Judge of Allahabad High Court dated 24.04.2014 permitting the appellants to withdraw the writ petition pending before it with liberty to file fresh writ petition before the appropriate court (the High Court of Uttarakhand) is absolutely unwarranted and is unsustainable. | 1 | 2,718 | 1,114 | ### 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:
granted by Allahabad High Court permitting the appellants to file a fresh writ petition before the appropriate court dated 24.04.2014, will not make the writ petition tenable before the High Court of Uttarakhand and that too when a challenge is given to the impugned award before the Uttarakhand High Court after 19 years of its pendency. The learned Single Judge has also observed that even the institution of the writ petition before the High Court of Uttarakhand challenging the award passed by the Labour Court, Dehradun dated 31.05.1997 would be suffering from the principles of laches. 3.2 None of the aforesaid grounds are tenable at law. It cannot be disputed that after the creation of the State of Uttarakhand the jurisdiction over judgment and award passed by the Labour Court, Dehradun would vest with the High Court of Uttarakhand and not with the High Court of Allahabad. Therefore, the writ petition pending before the High Court of Allahabad challenging the judgment and award passed by the Labour Court, Dehradun was as such required to be transferred by the Chief Justice of the High Court of Allahabad to the High Court of Uttarakhand in exercise of power under Section 35 of the Act. For whatever reason the said writ petition was not transferred. That does not mean that despite the above, jurisdiction of the High Court of Allahabad against the judgment and award passed by the Labour Court, Dehradun would continue. Therefore subsequently when the writ petition came up before the High Court of Allahabad and having realized and observed that the jurisdiction against the judgment and award passed by the Labour Court, Dehradun would vest with the High Court of Uttarakhand, the High Court of Allahabad rightly permitted the appellants to withdraw the said writ petition pending before it with the liberty to the appellants to file fresh writ petition before the appropriate court. In the present case, the appropriate court would be the High Court of Uttarakhand only. Therefore as such no error was committed by the High Court of Allahabad permitting the appellants to withdraw the writ petition pending before it with the liberty to file a fresh writ petition before the court having jurisdiction. The aforesaid cannot be said to be adoring himself with the powers of the Chief Justice of Allahabad High Court. The judicial order passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition pending before the Allahabad High Court with the liberty to file fresh writ petition before the appropriate court cannot be said to be contrary to the provisions contained under Sub-Section (2) of Section 35 of the Act as observed by the learned Single Judge in the impugned order. The order under Sub-Section (2) of Section 35 of the Act by the Chief Justice of the Allahabad High Court for transfer of pending matters before the Allahabad High Court to the High Court of Uttarakhand is an administrative order. If that power was not exercised and subsequently it was found that proceedings which were required to be transferred in exercise of power Sub-Section (2) of Section 35 of the Act, has not been transferred, it does not preclude the High Court of Allahabad to pass a judicial order and that too permitting the appellants to withdraw the writ petition pending before it and to file it before an appropriate court. As such the High Court in such a situation would be absolutely justified in permitting to withdraw the writ petition pending before it with liberty to file it before an appropriate court having jurisdiction, on the creation of the new State – State of Uttarakhand. 3.3 The another reason which is assigned by the High Court while passing the impugned order is that if the writ petition is filed before it – the High Court of Uttarakhand challenging the judgment and award of the Labour Court, Dehradun dated 31.05.1997, it would be suffering from the principles of laches. The aforesaid reason is absolutely unsustainable. The High Court has not appreciated that the writ petition before the High Court was filed immediately which remained pending before the High Court of Allahabad for about 14 years and thereafter after the appellants withdrew the writ petition from the Allahabad High Court immediately the writ petition was filed before the High Court of Uttarakhand. Therefore there was no delay at all on the part of the appellants in challenging the award passed by the Labour Court, Dehradun. Therefore in such a situation there was no question of any delay and laches. 4. Even otherwise once a judicial order was passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before the appropriate court (the High Court of Uttarakhand) and thereafter when the appellants preferred the writ petition before the High Court of Uttarakhand, the learned Single Judge of the High Court of Uttarakhand is not at all justified in making comments upon the judicial order passed by the Coordinate Bench of the Allahabad High Court. The Single Judge of the High Court of Uttarakhand was not acting as an appellate court against the judicial order passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before an appropriate court. Judicial discipline/propriety demand to respect the order passed by the Coordinate Bench and more particularly the judicial order passed by the Coordinate Bench of the High Court, in the present case the Allahabad High Court which as such was not under challenge before it. Therefore the observations made by the High Court of Uttarakhand in the impugned order on the judicial order passed by the learned Single Judge of Allahabad High Court dated 24.04.2014 permitting the appellants to withdraw the writ petition pending before it with liberty to file fresh writ petition before the appropriate court (the High Court of Uttarakhand) is absolutely unwarranted and is unsustainable.
### Response:
1
### Explanation:
is unsustainable.3.1 It cannot be disputed that as such on the creation of the State of Uttarakhand, the jurisdiction over the Labour Court, Dehradun would only vest with the High Court of Uttarakhand. It also cannot be disputed that therefore as such the writ petition pending before the High Court of Allahabad challenging the judgment and award passed by the Presiding Officer, Labour Court, Dehradun was required to be transferred to the High Court of Uttarakhand by the Chief Justice of the High Court of Allahabad in exercise of power under Sub-Section (2) of Section 35 of the Act.3.2 None of the aforesaid grounds are tenable at law. It cannot be disputed that after the creation of the State of Uttarakhand the jurisdiction over judgment and award passed by the Labour Court, Dehradun would vest with the High Court of Uttarakhand and not with the High Court of Allahabad. Therefore, the writ petition pending before the High Court of Allahabad challenging the judgment and award passed by the Labour Court, Dehradun was as such required to be transferred by the Chief Justice of the High Court of Allahabad to the High Court of Uttarakhand in exercise of power under Section 35 of the Act. For whatever reason the said writ petition was not transferred. That does not mean that despite the above, jurisdiction of the High Court of Allahabad against the judgment and award passed by the Labour Court, Dehradun would continue. Therefore subsequently when the writ petition came up before the High Court of Allahabad and having realized and observed that the jurisdiction against the judgment and award passed by the Labour Court, Dehradun would vest with the High Court of Uttarakhand, the High Court of Allahabad rightly permitted the appellants to withdraw the said writ petition pending before it with the liberty to the appellants to file fresh writ petition before the appropriate court. In the present case, the appropriate court would be the High Court of Uttarakhand only. Therefore as such no error was committed by the High Court of Allahabad permitting the appellants to withdraw the writ petition pending before it with the liberty to file a fresh writ petition before the court having jurisdiction. The aforesaid cannot be said to be adoring himself with the powers of the Chief Justice of Allahabad High Court. The judicial order passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition pending before the Allahabad High Court with the liberty to file fresh writ petition before the appropriate court cannot be said to be contrary to the provisions contained under Sub-Section (2) of Section 35 of the Act as observed by the learned Single Judge in the impugned order. The order under Sub-Section (2) of Section 35 of the Act by the Chief Justice of the Allahabad High Court for transfer of pending matters before the Allahabad High Court to the High Court of Uttarakhand is an administrative order. If that power was not exercised and subsequently it was found that proceedings which were required to be transferred in exercise of power Sub-Section (2) of Section 35 of the Act, has not been transferred, it does not preclude the High Court of Allahabad to pass a judicial order and that too permitting the appellants to withdraw the writ petition pending before it and to file it before an appropriate court. As such the High Court in such a situation would be absolutely justified in permitting to withdraw the writ petition pending before it with liberty to file it before an appropriate court having jurisdiction, on the creation of the new State – State of Uttarakhand.3.3 The another reason which is assigned by the High Court while passing the impugned order is that if the writ petition is filed before it – the High Court of Uttarakhand challenging the judgment and award of the Labour Court, Dehradun dated 31.05.1997, it would be suffering from the principles of laches. The aforesaid reason is absolutely unsustainable. The High Court has not appreciated that the writ petition before the High Court was filed immediately which remained pending before the High Court of Allahabad for about 14 years and thereafter after the appellants withdrew the writ petition from the Allahabad High Court immediately the writ petition was filed before the High Court of Uttarakhand. Therefore there was no delay at all on the part of the appellants in challenging the award passed by the Labour Court, Dehradun. Therefore in such a situation there was no question of any delay and laches.4. Even otherwise once a judicial order was passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before the appropriate court (the High Court of Uttarakhand) and thereafter when the appellants preferred the writ petition before the High Court of Uttarakhand, the learned Single Judge of the High Court of Uttarakhand is not at all justified in making comments upon the judicial order passed by the Coordinate Bench of the Allahabad High Court. The Single Judge of the High Court of Uttarakhand was not acting as an appellate court against the judicial order passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before an appropriate court. Judicial discipline/propriety demand to respect the order passed by the Coordinate Bench and more particularly the judicial order passed by the Coordinate Bench of the High Court, in the present case the Allahabad High Court which as such was not under challenge before it. Therefore the observations made by the High Court of Uttarakhand in the impugned order on the judicial order passed by the learned Single Judge of Allahabad High Court dated 24.04.2014 permitting the appellants to withdraw the writ petition pending before it with liberty to file fresh writ petition before the appropriate court (the High Court of Uttarakhand) is absolutely unwarranted and is unsustainable.
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BSES Ltd Vs. Fenner India Ltd. and Anr | if they were not extended, thus under petitioners threat of encashment of the bank guarantees, and in the hope of amicably settling the issue with the petitioner, the first respondent (sic) felt compelled to extend the bank guarantees. In our view, this is an unsatisfactory explanation in the circumstances of the case and in any event, this explanation neither establishes egregious fraud by the Appellant nor creates a situation of irretrievable injury. 22. The Fourth Bank Guarantee Finally, Mr. Sorabjee tried to intervene in the fourth bank guarantee (No.291/99 dated 23.3.2000) and contended that this was the only bank guarantee intended to secure due and faithful performance of the contract. He further urged that the performance had been duly satisfied and, therefore, there was no warrant for calling this bank guarantee. Mr. Sorabjee turned to a certificate issued by M/s Godavari Sugar Mills Ltd. (dated 18.3.2003) to contend that there had been due and satisfactory performance of the contract. We are, however, not impressed with Mr. Sorabjees argument because the evidence on record is precisely to the contrary. In fact, the certificate, in terms, says that there was a technical defect found: for which correction will be done by Fenner representative (sic) as assured by him. After completion of all those points further tests can be carried out. 23. Accordingly, we are prima facie not satisfied that performance had been duly and satisfactorily certified. Under the terms of the wrap-around agreement, the Appellant was entitled to encash all or any of the bank guarantees for breach of the First Respondents obligations under any one of the contracts. In our view, it is the case of the Appellant that there was no satisfactory performance of the contract, as a result of which, the Appellant was justified in encashing the concerned bank guarantee. Indeed, as per the terms of the bank guarantee itself, the Appellant is the best judge to decide as to when and for what reason the bank guarantees should be encashed. Further, it is no function of the Second Respondent-Bank, nor of this Court, to enquire as to whether due performance had actually happened when, under the terms of the guarantee, the Second Respondent-Bank was obliged to make payment when the guarantee was called in, irrespective of any contractual dispute between the Appellant and the First Respondent. Indeed, in similar circumstances, this Court in General Electric Technical Services Company Inc. v. Punj Sons (P) Ltd., held: the Bank must honour the bank guarantee free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases that is to say in case of fraud or in case of irretrievable injustice, the court should interfere. The nature of the fraud that the courts talk about is fraud of an egregious nature as to vitiate the entire underlying transaction. It is fraud of the beneficiary, not the fraud of somebody else. 24. This was also a case where, after having recovered certain amount from the running bills, a call was made on the bank guarantee in respect of the full guaranteed amount. In an observation with direct relevance for the present case, this Court pointed out that the bank was not concerned with the outstanding amount payable under the running bills: The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee. The liability of the Bank remained intact irrespective of the recovery of mobilisation advance or the non-payment under the running bills. The failure on the part of - (the Beneficiary) - to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the bank under the guarantee. 25. Irretrievable Injury As we have stated repeatedly, the First Respondent can succeed only if the case can be brought under the two accepted exceptions to the general rule against intervention. Evidently, there is no egregious fraud so as to fall within the first exception. Hence, only one more point remains: whether encashment of the guarantees will create special equities (in particular, irretrievable injury) in favour of the First Respondent? We are not satisfied on facts that such is the present situation. 26. There is no dispute that arbitral proceedings are pending. In fact, we were shown that one of the disputes referred to arbitration is whether the bank guarantees are null and void. Further, one of the substantive prayers in the arbitration made on behalf of the First Respondent, is to make an award declaring the four bank guarantees unenforceable, illegal, void and liable to be discharged. Further, there is also a prayer for permanent injunction to restrain the Appellant from encashing the bank guarantees. Therefore, since this prayer is already pending before the Arbitral Tribunal, we see no situation of irretrievable injustice if, at the present moment, the Appellant is allowed to encash the bank guarantees. For justice can always be rendered to the First Respondent, if he succeeds before the Arbitrators. Nor do we see any special equity in favour of the First Respondent, when there is in fact a dispute that performance was prima facie not satisfactory, which enabled the Appellant to encash all or any of the four bank guarantees. 27. The Final Findings In this view of the matter, we see no merit in the stand taken by the First Respondent. In our judgment, the Madras High Court erred in interfering with the bank guarantees and in granting injunction as sought for. In the result, the impugned judgment of the High Court is set aside and the judgment of the learned District Judge, Madurai is affirmed, except with regard to the maintenance of status quo directed on the encashment of guarantees. It is made clear that the Appellant is entitled to encash the bank guarantees and the Second Respondent-Bank shall be free to honour its guarantees, subject to adjustment in the arbitral proceedings. 28. | 1[ds]There is no dispute that arbitral proceedings are pending. In fact, we were shown that one of the disputes referred to arbitration is whether the bank guarantees are null and void. Further, one of the substantive prayers in the arbitration made on behalf of the First Respondent, is to make an award declaring the four bank guarantees unenforceable, illegal, void and liable to be discharged. Further, there is also a prayer for permanent injunction to restrain the Appellant from encashing the bank guarantees. Therefore, since this prayer is already pending before the Arbitral Tribunal, we see no situation of irretrievable injustice if, at the present moment, the Appellant is allowed to encash the bank guarantees. For justice can always be rendered to the First Respondent, if he succeeds before the Arbitrators. Nor do we see any special equity in favour of the First Respondent, when there is in fact a dispute that performance was prima facie not satisfactory, which enabled the Appellant to encash all or any of the four bank guarantees27. The Final Findings In this view of the matter, we see no merit in the stand taken by the First Respondent. In our judgment, the Madras High Court erred in interfering with the bank guarantees and in granting injunction as sought for. In the result, the impugned judgment of the High Court is set aside and the judgment of the learned District Judge, Madurai is affirmed, except with regard to the maintenance of status quo directed on the encashment of guarantees. It is made clear that the Appellant is entitled to encash the bank guarantees and the Second Respondent-Bank shall be free to honour its guarantees, subject to adjustment in the arbitral proceedings. | 1 | 4,399 | 319 | ### Instruction:
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if they were not extended, thus under petitioners threat of encashment of the bank guarantees, and in the hope of amicably settling the issue with the petitioner, the first respondent (sic) felt compelled to extend the bank guarantees. In our view, this is an unsatisfactory explanation in the circumstances of the case and in any event, this explanation neither establishes egregious fraud by the Appellant nor creates a situation of irretrievable injury. 22. The Fourth Bank Guarantee Finally, Mr. Sorabjee tried to intervene in the fourth bank guarantee (No.291/99 dated 23.3.2000) and contended that this was the only bank guarantee intended to secure due and faithful performance of the contract. He further urged that the performance had been duly satisfied and, therefore, there was no warrant for calling this bank guarantee. Mr. Sorabjee turned to a certificate issued by M/s Godavari Sugar Mills Ltd. (dated 18.3.2003) to contend that there had been due and satisfactory performance of the contract. We are, however, not impressed with Mr. Sorabjees argument because the evidence on record is precisely to the contrary. In fact, the certificate, in terms, says that there was a technical defect found: for which correction will be done by Fenner representative (sic) as assured by him. After completion of all those points further tests can be carried out. 23. Accordingly, we are prima facie not satisfied that performance had been duly and satisfactorily certified. Under the terms of the wrap-around agreement, the Appellant was entitled to encash all or any of the bank guarantees for breach of the First Respondents obligations under any one of the contracts. In our view, it is the case of the Appellant that there was no satisfactory performance of the contract, as a result of which, the Appellant was justified in encashing the concerned bank guarantee. Indeed, as per the terms of the bank guarantee itself, the Appellant is the best judge to decide as to when and for what reason the bank guarantees should be encashed. Further, it is no function of the Second Respondent-Bank, nor of this Court, to enquire as to whether due performance had actually happened when, under the terms of the guarantee, the Second Respondent-Bank was obliged to make payment when the guarantee was called in, irrespective of any contractual dispute between the Appellant and the First Respondent. Indeed, in similar circumstances, this Court in General Electric Technical Services Company Inc. v. Punj Sons (P) Ltd., held: the Bank must honour the bank guarantee free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases that is to say in case of fraud or in case of irretrievable injustice, the court should interfere. The nature of the fraud that the courts talk about is fraud of an egregious nature as to vitiate the entire underlying transaction. It is fraud of the beneficiary, not the fraud of somebody else. 24. This was also a case where, after having recovered certain amount from the running bills, a call was made on the bank guarantee in respect of the full guaranteed amount. In an observation with direct relevance for the present case, this Court pointed out that the bank was not concerned with the outstanding amount payable under the running bills: The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee. The liability of the Bank remained intact irrespective of the recovery of mobilisation advance or the non-payment under the running bills. The failure on the part of - (the Beneficiary) - to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the bank under the guarantee. 25. Irretrievable Injury As we have stated repeatedly, the First Respondent can succeed only if the case can be brought under the two accepted exceptions to the general rule against intervention. Evidently, there is no egregious fraud so as to fall within the first exception. Hence, only one more point remains: whether encashment of the guarantees will create special equities (in particular, irretrievable injury) in favour of the First Respondent? We are not satisfied on facts that such is the present situation. 26. There is no dispute that arbitral proceedings are pending. In fact, we were shown that one of the disputes referred to arbitration is whether the bank guarantees are null and void. Further, one of the substantive prayers in the arbitration made on behalf of the First Respondent, is to make an award declaring the four bank guarantees unenforceable, illegal, void and liable to be discharged. Further, there is also a prayer for permanent injunction to restrain the Appellant from encashing the bank guarantees. Therefore, since this prayer is already pending before the Arbitral Tribunal, we see no situation of irretrievable injustice if, at the present moment, the Appellant is allowed to encash the bank guarantees. For justice can always be rendered to the First Respondent, if he succeeds before the Arbitrators. Nor do we see any special equity in favour of the First Respondent, when there is in fact a dispute that performance was prima facie not satisfactory, which enabled the Appellant to encash all or any of the four bank guarantees. 27. The Final Findings In this view of the matter, we see no merit in the stand taken by the First Respondent. In our judgment, the Madras High Court erred in interfering with the bank guarantees and in granting injunction as sought for. In the result, the impugned judgment of the High Court is set aside and the judgment of the learned District Judge, Madurai is affirmed, except with regard to the maintenance of status quo directed on the encashment of guarantees. It is made clear that the Appellant is entitled to encash the bank guarantees and the Second Respondent-Bank shall be free to honour its guarantees, subject to adjustment in the arbitral proceedings. 28.
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There is no dispute that arbitral proceedings are pending. In fact, we were shown that one of the disputes referred to arbitration is whether the bank guarantees are null and void. Further, one of the substantive prayers in the arbitration made on behalf of the First Respondent, is to make an award declaring the four bank guarantees unenforceable, illegal, void and liable to be discharged. Further, there is also a prayer for permanent injunction to restrain the Appellant from encashing the bank guarantees. Therefore, since this prayer is already pending before the Arbitral Tribunal, we see no situation of irretrievable injustice if, at the present moment, the Appellant is allowed to encash the bank guarantees. For justice can always be rendered to the First Respondent, if he succeeds before the Arbitrators. Nor do we see any special equity in favour of the First Respondent, when there is in fact a dispute that performance was prima facie not satisfactory, which enabled the Appellant to encash all or any of the four bank guarantees27. The Final Findings In this view of the matter, we see no merit in the stand taken by the First Respondent. In our judgment, the Madras High Court erred in interfering with the bank guarantees and in granting injunction as sought for. In the result, the impugned judgment of the High Court is set aside and the judgment of the learned District Judge, Madurai is affirmed, except with regard to the maintenance of status quo directed on the encashment of guarantees. It is made clear that the Appellant is entitled to encash the bank guarantees and the Second Respondent-Bank shall be free to honour its guarantees, subject to adjustment in the arbitral proceedings.
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Swami Motor Transport (P) Ltd.And Another Vs. Sri Sankaraswamigal Muttand Another(And Connected Appeals) | if this construction be given to Art. 19 (1) (f), Art. 31 (1) would become otiose. We do not see how it becomes an unnecessary provision. Article 31 (1) is couched in a negative form. It says that no person shall be deprived of his property save by authority of law. In effect it declares a fundamental right against deprivation of property by executive action, but it does not either expressly or by necessary implication take the law out of the limitations implicit in Art. 19 (1) (f) of tine Constitution. The law in Article 31 (1) must be a valid law and to be a valid law It must stand the test of other fundamental rights. All the other points urged in support of the contention have been considered by this Court in Kavalappara Kotharathil Kochuni v. States of Madras and Kerala, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), where it was held that a law depriving a person of his property must be a valid law and, therefore, it should not infringe Art. 19 of the Constitution. We have no reason to differ from the view expressed therein. Indeed that view has been followed in the later decisions. We, therefore, hold that a law depriving a person of his property would be bad unless it amounts to reasonable restriction in the interest of the general public or for the protection of the interests of Scheduled Tribes. 30. We now come to the last question, namely, whether the 1960 Act deprived the appellants of their right in property. To state it differently, the question is whether a tenant of a non- residential building in Tanjore had acquired a right of property under the 1955 Act and whether he was deprived of that right or otherwise restricted in the enjoyment thereof by the 1960 Act. The 1955 Act, as we have already noticed, conferred two rights on such a tenant, namely, (i) every tenant on ejectment would be entitled to be paid as compensation the value of any building erected by him, and (ii) such a tenant against whom a suit in ejectment has been instituted has an option to apply to the court for an order directing the landlord to sell the land to him for a price to be fixed by the court. We are not concerned here with the rights conferred under S. 3 of the Act, for the simple reason that neither of the appellants claimed a right there-under. Both of them have taken proceedings only under S. 9 of the Act and they have approached the High Court for a writ of mandamus that the petition should be disposed of under the provisions of S.9 of the Act. This Courts opinion on the question of the constitutional validity of the Act in so far as it deprived the appellants of their right under S. 3 of the principal Act is not called for: that will have to be decided in an appropriate case., The question that falls to be considered is whether the second right, namely, the right of a tenant to apply to the court for an order directing the landlord to sell the land to him for a price to be fixed by it, under S. 9 of the principal Act is a right to property. The law of India does not recognize equitable estates. No authority has been cited in support of the contention that a statutory right to purchase land is, or confers, an interest or a right in property. The fact that the right is created not by contract but by a statute cannot make a difference in the content or the incidents of the right: that depends upon the nature and the scope of the right conferred. The right conferred is a right to purchase land.If such a right conferred under a contract is not a right of property, the fact that such a right stems from a statute cannot obviously expand its content or make it any the less a non- proprietary right. In our view, a statutory right to apply for the purchase of land is not a right of property. It is settled law that a contract to purchase a property does not create an interest in immovable property. Different consideration may arise when a statutory sale has been effected and title passed to a tenant: that was the basis of the judgement of this Court in Jayvantsinghji v. State of Gujarat, AIR 1962 SC 821 , on which Mr. Viswanatha Sastry relied. But we are not concerned here with such a situation. it is said that the appellants have acquired a right under the 1955 Act to hold and enjoy the buildings erected by them by exercising their right to purchase the site of the said buildings and that the impugned Act indirectly deprived them of their right to hold the said buildings. This argument mixes up two concepts, namely, (i) the scope and content of the right, and (ii) the effect and consequences of the deprivation of that right on the other properties of the appellants. Section 9 of the principal Act, extended by the 1955 Act, only confers a right in respect of the land and not of the superstructure. If that Act held the field, the appellants could have purchased the land, but by reason of the 1960 Act they could no longer do so. Neither the 1955 Act conferred any right as to the super structure under S. 9 of the principal Act nor did the 1960 Act take that right away. If this distinction between the land and the superstructure is borne in mind the untenability of the argument would become obvious. The 1960 Act does not in any way affect the appellants fundamental right. Therefore, their prayer that the District Munsiff should be directed to proceed with the disposal of the applications filed by them under S. 9 of the principal Act could not be granted. | 0[ds]8. Before we consider the arguments, it would be convenient to notice the scope of the relevant provisions of the principal Act, Act XIX of 1955 and Act XIII of 1960. The principal Act, as amended by Act XIX of 1955, was enacted, as its preamble shows, to give protection to certain classes of tenants who in municipal towns and adjoining areas in the State of Madras have constructed buildings on others lands in the hope that they would not be evicted so long as they paid a fair rent for the land. The gist of the relevant provisions of the principal Act, as amended by Act XIX of 1955 may be stated thus The Act applies to any building,, whether it is residential or nonresidential. Every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by him and also the value of trees which may have been planted by him; in a suit for ejectment the court shall ascertain the amount of compensation payable by the landlord to the tenant and the decree shall direct that the landlord shall be put in possession of the land only on payment of the said amount in court within the prescribed time; if the landlord is unable or unwilling to pay the compensation within the prescribed time, he may apply for fixing a reasonable rent for the occupation of the land by the tenant; a tenant, who is entitled to compensation and against whom a suit for ejectment has been instituted, may apply for an order that the landlord may be directed to sell the land to him for a price to be fixed by the court, and thereupon the court shall fix the price in the manner prescribed in S. 9 and direct the said amount to be paid to the landlord by the tenant within a particular time and in default his application shall stand dismissed. Nothing contained in the Act shall affect any stipulation made by the tenant in writing registered as to the erection of buildings, in so far as they relate to buildings erected after the date of the contract: the provisions of the Act apply to suits for ejectment which are ending and in which decrees for ejectment have been passed but have not been executed before the coming into force of the Act : vide Ss. 2 (1),, 3, 4, 6, 9 and 12 of the Act. It is, therefore clear that under the principal Act tenants in the Madras City acquired valuable rights which they did not have before the said Act was passed. Prior to the principal Act a tenant of a land over which he had put up buildings for residential orl purposes was liable to be evicted in accordance with law and his only right was to remove the superstructure put up by him on the land before delivering vacant possession. But after the principal Act, a tenant similarly situated has an option to claim either compensation for the superstructure put up by him or to apply to the court to have the land sold to him for a consideration to be fixed by it11. The result of this amending Act in respect of nonresidential buildings in places other than the City of Madras and the other specified municipal towns is that all proceedings pending in courts in respect of those buildings abated and the rights acquired by tenants under the 1955 Act in respect of the said buildings are extinguished. The rights, so far relevant to the present enquiry, which the tenants had acquired under the 1955 Act were: (i) they were entitled on ejectment to be paid as compensation the value of the buildings erected by them or by their predecessors in interest, (ii) the court before issuing a decree for eviction should ascertain the amount due to a tenant and the decree for eviction should be made conditional on the payment of the decree amount, (iii) in suits where decree for ejectment had been passed before the 1955 Act came into force, a tenant could file an application for ascertainment of the compensation due in execution and for a fresh decree to be passed in accordance with S. 4 of the principal Act, and (iv) he had also a right, at his option, to apply within the prescribed time to the court for an order directing the landlord to sell the land to him for a price fixed by the court, whether a decree for ejectment had or had not been passed. The tenants ofl buildings in places other than the City of Madras and the specified municipal towns lost the said rights after the 1960 Act came into forceThe population of a town is not a relevant circumstance though its density may be: the pressure on the buildings or on the sites suitable for building purposes does not depend solely upon population without reference to the area available for building purpose, so the argument proceeds20. These passages disclose not only the legislative objects but also the political pressures for certain amendments. But we are not concerned with the political aspects of the legislation but only with its objects. The special treatment given to the City of Madras and the other specified towns is based upon the fact that there are a number of small business establishments in Madras and other specified towns implying thereby that there are not so many such establishments in other towns. The correspondence between the Government of India and the Government of Madras throws light on this question27. Though this Court has not finally expressed its opinion on the question raised, It has pointed out that it has proceeded all through on the basis that Art. 19 (1) applies equally to concrete as well as abstract rights of property. In Chiranjit Lal Chowdhary v. Union of India, 1950 SCR 869 : (AIR 1951 SC 41 ), Mukherjee, J. as he then was, held that the right to hold property under Art. 19 (1) (f) meant the right to possess as well as enjoy all the benefits which were ordinarily attached to ownership of property. Jagannadhadas, J. in 1954 SCR 587 : (AIR 1954 SC (92) dealing with this point observed at pp.9 (of SCR): (at p. 117, of AIR)29. It is said that if this construction be given to Art. 19 (1) (f), Art. 31 (1) would become otiose. We do not see how it becomes an unnecessary provision. Article 31 (1) is couched in a negative form. It says that no person shall be deprived of his property save by authority of law. In effect it declares a fundamental right against deprivation of property by executive action, but it does not either expressly or by necessary implication take the law out of the limitations implicit in Art. 19 (1) (f) of tine Constitution. The law in Article 31 (1) must be a valid law and to be a valid law It must stand the test of other fundamental rights. All the other points urged in support of the contention have been considered by this Court in Kavalappara Kotharathil Kochuni v. States of Madras and Kerala, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), where it was held that a law depriving a person of his property must be a valid law and, therefore, it should not infringe Art. 19 of the Constitution. We have no reason to differ from the view expressed therein. Indeed that view has been followed in the later decisions. We, therefore, hold that a law depriving a person of his property would be bad unless it amounts to reasonable restriction in the interest of the general public or for the protection of the interests of Scheduled Tribes30. We now come to the last question, namely, whether the 1960 Act deprived the appellants of their right in property. To state it differently, the question is whether a tenant of a nonresidential building in Tanjore had acquired a right of property under the 1955 Act and whether he was deprived of that right or otherwise restricted in the enjoyment thereof by the 1960 Act. The 1955 Act, as we have already noticed, conferred two rights on such a tenant, namely, (i) every tenant on ejectment would be entitled to be paid as compensation the value of any building erected by him, and (ii) such a tenant against whom a suit in ejectment has been instituted has an option to apply to the court for an order directing the landlord to sell the land to him for a price to be fixed by the court. We are not concerned here with the rights conferred under S. 3 of the Act, for the simple reason that neither of the appellants claimed a right. Both of them have taken proceedings only under S. 9 of the Act and they have approached the High Court for a writ of mandamus that the petition should be disposed of under the provisions of S.9 of the ActThe law of India does not recognize equitable estates. No authority has been cited in support of the contention that a statutory right to purchase land is, or confers, an interest or a right in property. The fact that the right is created not by contract but by a statute cannot make a difference in the content or the incidents of the right: that depends upon the nature and the scope of the right conferred. The right conferred is a right to purchase land.If such a right conferred under a contract is not a right of property, the fact that such a right stems from a statute cannot obviously expand its content or make it any the less a nonproprietary right. In our view, a statutory right to apply for the purchase of land is not a right of property. It is settled law that a contract to purchase a property does not create an interest in immovable property. Different consideration may arise when a statutory sale has been effected and title passed to a tenant: that was the basis of the judgement of this Court in Jayvantsinghji v. State of Gujarat, AIR 1962 SC 821 , on which Mr. Viswanatha Sastry relied. But we are not concerned here with such a situation. it is said that the appellants have acquired a right under the 1955 Act to hold and enjoy the buildings erected by them by exercising their right to purchase the site of the said buildings and that the impugned Act indirectly deprived them of their right to hold the said buildings. This argument mixes up two concepts, namely, (i) the scope and content of the right, and (ii) the effect and consequences of the deprivation of that right on the other properties of the appellants. Section 9 of the principal Act, extended by the 1955 Act, only confers a right in respect of the land and not of the superstructure. If that Act held the field, the appellants could have purchased the land, but by reason of the 1960 Act they could no longer do so. Neither the 1955 Act conferred any right as to the super structure under S. 9 of the principal Act nor did the 1960 Act take that right away. If this distinction between the land and the superstructure is borne in mind the untenability of the argument would become obvious. The 1960 Act does not in any way affect the appellants fundamental right. Therefore, their prayer that the District Munsiff should be directed to proceed with the disposal of the applications filed by them under S. 9 of the principal Act could not be granted. | 0 | 8,572 | 2,147 | ### Instruction:
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if this construction be given to Art. 19 (1) (f), Art. 31 (1) would become otiose. We do not see how it becomes an unnecessary provision. Article 31 (1) is couched in a negative form. It says that no person shall be deprived of his property save by authority of law. In effect it declares a fundamental right against deprivation of property by executive action, but it does not either expressly or by necessary implication take the law out of the limitations implicit in Art. 19 (1) (f) of tine Constitution. The law in Article 31 (1) must be a valid law and to be a valid law It must stand the test of other fundamental rights. All the other points urged in support of the contention have been considered by this Court in Kavalappara Kotharathil Kochuni v. States of Madras and Kerala, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), where it was held that a law depriving a person of his property must be a valid law and, therefore, it should not infringe Art. 19 of the Constitution. We have no reason to differ from the view expressed therein. Indeed that view has been followed in the later decisions. We, therefore, hold that a law depriving a person of his property would be bad unless it amounts to reasonable restriction in the interest of the general public or for the protection of the interests of Scheduled Tribes. 30. We now come to the last question, namely, whether the 1960 Act deprived the appellants of their right in property. To state it differently, the question is whether a tenant of a non- residential building in Tanjore had acquired a right of property under the 1955 Act and whether he was deprived of that right or otherwise restricted in the enjoyment thereof by the 1960 Act. The 1955 Act, as we have already noticed, conferred two rights on such a tenant, namely, (i) every tenant on ejectment would be entitled to be paid as compensation the value of any building erected by him, and (ii) such a tenant against whom a suit in ejectment has been instituted has an option to apply to the court for an order directing the landlord to sell the land to him for a price to be fixed by the court. We are not concerned here with the rights conferred under S. 3 of the Act, for the simple reason that neither of the appellants claimed a right there-under. Both of them have taken proceedings only under S. 9 of the Act and they have approached the High Court for a writ of mandamus that the petition should be disposed of under the provisions of S.9 of the Act. This Courts opinion on the question of the constitutional validity of the Act in so far as it deprived the appellants of their right under S. 3 of the principal Act is not called for: that will have to be decided in an appropriate case., The question that falls to be considered is whether the second right, namely, the right of a tenant to apply to the court for an order directing the landlord to sell the land to him for a price to be fixed by it, under S. 9 of the principal Act is a right to property. The law of India does not recognize equitable estates. No authority has been cited in support of the contention that a statutory right to purchase land is, or confers, an interest or a right in property. The fact that the right is created not by contract but by a statute cannot make a difference in the content or the incidents of the right: that depends upon the nature and the scope of the right conferred. The right conferred is a right to purchase land.If such a right conferred under a contract is not a right of property, the fact that such a right stems from a statute cannot obviously expand its content or make it any the less a non- proprietary right. In our view, a statutory right to apply for the purchase of land is not a right of property. It is settled law that a contract to purchase a property does not create an interest in immovable property. Different consideration may arise when a statutory sale has been effected and title passed to a tenant: that was the basis of the judgement of this Court in Jayvantsinghji v. State of Gujarat, AIR 1962 SC 821 , on which Mr. Viswanatha Sastry relied. But we are not concerned here with such a situation. it is said that the appellants have acquired a right under the 1955 Act to hold and enjoy the buildings erected by them by exercising their right to purchase the site of the said buildings and that the impugned Act indirectly deprived them of their right to hold the said buildings. This argument mixes up two concepts, namely, (i) the scope and content of the right, and (ii) the effect and consequences of the deprivation of that right on the other properties of the appellants. Section 9 of the principal Act, extended by the 1955 Act, only confers a right in respect of the land and not of the superstructure. If that Act held the field, the appellants could have purchased the land, but by reason of the 1960 Act they could no longer do so. Neither the 1955 Act conferred any right as to the super structure under S. 9 of the principal Act nor did the 1960 Act take that right away. If this distinction between the land and the superstructure is borne in mind the untenability of the argument would become obvious. The 1960 Act does not in any way affect the appellants fundamental right. Therefore, their prayer that the District Munsiff should be directed to proceed with the disposal of the applications filed by them under S. 9 of the principal Act could not be granted.
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that Art. 19 (1) applies equally to concrete as well as abstract rights of property. In Chiranjit Lal Chowdhary v. Union of India, 1950 SCR 869 : (AIR 1951 SC 41 ), Mukherjee, J. as he then was, held that the right to hold property under Art. 19 (1) (f) meant the right to possess as well as enjoy all the benefits which were ordinarily attached to ownership of property. Jagannadhadas, J. in 1954 SCR 587 : (AIR 1954 SC (92) dealing with this point observed at pp.9 (of SCR): (at p. 117, of AIR)29. It is said that if this construction be given to Art. 19 (1) (f), Art. 31 (1) would become otiose. We do not see how it becomes an unnecessary provision. Article 31 (1) is couched in a negative form. It says that no person shall be deprived of his property save by authority of law. In effect it declares a fundamental right against deprivation of property by executive action, but it does not either expressly or by necessary implication take the law out of the limitations implicit in Art. 19 (1) (f) of tine Constitution. The law in Article 31 (1) must be a valid law and to be a valid law It must stand the test of other fundamental rights. All the other points urged in support of the contention have been considered by this Court in Kavalappara Kotharathil Kochuni v. States of Madras and Kerala, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ), where it was held that a law depriving a person of his property must be a valid law and, therefore, it should not infringe Art. 19 of the Constitution. We have no reason to differ from the view expressed therein. Indeed that view has been followed in the later decisions. We, therefore, hold that a law depriving a person of his property would be bad unless it amounts to reasonable restriction in the interest of the general public or for the protection of the interests of Scheduled Tribes30. We now come to the last question, namely, whether the 1960 Act deprived the appellants of their right in property. To state it differently, the question is whether a tenant of a nonresidential building in Tanjore had acquired a right of property under the 1955 Act and whether he was deprived of that right or otherwise restricted in the enjoyment thereof by the 1960 Act. The 1955 Act, as we have already noticed, conferred two rights on such a tenant, namely, (i) every tenant on ejectment would be entitled to be paid as compensation the value of any building erected by him, and (ii) such a tenant against whom a suit in ejectment has been instituted has an option to apply to the court for an order directing the landlord to sell the land to him for a price to be fixed by the court. We are not concerned here with the rights conferred under S. 3 of the Act, for the simple reason that neither of the appellants claimed a right. Both of them have taken proceedings only under S. 9 of the Act and they have approached the High Court for a writ of mandamus that the petition should be disposed of under the provisions of S.9 of the ActThe law of India does not recognize equitable estates. No authority has been cited in support of the contention that a statutory right to purchase land is, or confers, an interest or a right in property. The fact that the right is created not by contract but by a statute cannot make a difference in the content or the incidents of the right: that depends upon the nature and the scope of the right conferred. The right conferred is a right to purchase land.If such a right conferred under a contract is not a right of property, the fact that such a right stems from a statute cannot obviously expand its content or make it any the less a nonproprietary right. In our view, a statutory right to apply for the purchase of land is not a right of property. It is settled law that a contract to purchase a property does not create an interest in immovable property. Different consideration may arise when a statutory sale has been effected and title passed to a tenant: that was the basis of the judgement of this Court in Jayvantsinghji v. State of Gujarat, AIR 1962 SC 821 , on which Mr. Viswanatha Sastry relied. But we are not concerned here with such a situation. it is said that the appellants have acquired a right under the 1955 Act to hold and enjoy the buildings erected by them by exercising their right to purchase the site of the said buildings and that the impugned Act indirectly deprived them of their right to hold the said buildings. This argument mixes up two concepts, namely, (i) the scope and content of the right, and (ii) the effect and consequences of the deprivation of that right on the other properties of the appellants. Section 9 of the principal Act, extended by the 1955 Act, only confers a right in respect of the land and not of the superstructure. If that Act held the field, the appellants could have purchased the land, but by reason of the 1960 Act they could no longer do so. Neither the 1955 Act conferred any right as to the super structure under S. 9 of the principal Act nor did the 1960 Act take that right away. If this distinction between the land and the superstructure is borne in mind the untenability of the argument would become obvious. The 1960 Act does not in any way affect the appellants fundamental right. Therefore, their prayer that the District Munsiff should be directed to proceed with the disposal of the applications filed by them under S. 9 of the principal Act could not be granted.
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Emkay Global Financial Services Ltd Vs. Girdhar Sondhi | court. This requirement to furnish proof has led to inconsistent practices in some High Courts, where they have insisted on Section 34 proceedings being conducted in the manner as a regular civil suit. This is despite the Supreme Court ruling in Fiza Developers & Inter-Trade P. Ltd. v. AMCI (I) Pvt. Ltd. and Anr. that proceedings Under Section 34 should not be conducted in the same manner as civil suits, with framing of issues Under Rule 1 of Order 14 of the Code of Civil Procedure. In light of this, the Committee is of the view that a suitable amendment may be made to Section 34(2)(a) to ensure that proceedings Under Section 34 are conducted expeditiously. Recommendation: An amendment may be made to Section 34(2)(a) of the Arbitration and Conciliation Act, 1996, substituting the words furnishes proof that with the words establishes on the basis of the arbitral tribunals record that. 19. We have been informed that the Arbitration and Conciliation (Amendment) Bill of 2018, being Bill No. 100 of 2018, contains an amendment to Section 34(2)(a) of the principal Act, which reads as follows: In Section 34 of the principal Act, in Sub-section (2), in Clause (a), for the words furnishes proof that, the words establishes on the basis of the record of the arbitral tribunal that shall be substituted. 20. One more recent development in the law of arbitration needs to be adverted to. After the decision in Fiza Developers (supra), Section 34 was amended by Act 3 of 2016, by which Sub-sections (5) and (6) were added to the principal Act with effect from 23.10.2015. Section 34(5) and 34 reads as under: 34. Application for setting aside arbitral award.-- xxx xxx xxx (5) An application under this Section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. (6) An application under this Section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in Sub-section (5) is served upon the other party. 21. In a recent judgment of this Bench in The State of Bihar and Ors. v. Bihar Rajya Bhumi Vikas Bank Samiti, SLP (Civil) No. 4475 of 2017 (decided on 30.07.2018), this Court, after holding that the period of one year mentioned in the aforesaid Sub-section is directory, went on to hold: 27. We are of the opinion that the view propounded by the High Courts of Bombay and Calcutta represents the correct state of the law. However, we may add that it shall be the endeavour of every Court in which a Section 34 application is filed, to stick to the time limit of one year from the date of service of notice to the opposite party by the applicant, or by the Court, as the case may be. In case the Court issues notice after the period mentioned in Section 34(3) has elapsed, every Court shall endeavour to dispose of the Section 34 application within a period of one year from the date of filing of the said application, similar to what has been provided in Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. This will give effect to the object sought to be achieved by adding Section 13(6) by the 2015 Amendment Act. 28. We may also add that in cases covered by Section 10 read with Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within six months, as stipulated. Appeals which are not so covered will also be disposed of as expeditiously as possible, preferably within one year from the date on which the appeal is filed...... 22. It will thus be seen that speedy resolution of arbitral disputes has been the reason for enacting the 1996 Act, and continues to be the reason for adding amendments to the said Act to strengthen the aforesaid object. Quite obviously, if issues are to be framed and oral evidence taken in a summary proceeding Under Section 34, this object will be defeated. It is also on the cards that if Bill No. 100 of 2018 is passed, then evidence at the stage of a Section 34 application will be dispensed with altogether. Given the current state of the law, we are of the view that the two early Delhi High Court judgments, cited by us hereinabove, correctly reflect the position in law as to furnishing proof Under Section 34(2)(a). So does the Calcutta High Court judgment (supra). We may hasten to add that if the procedure followed by the Punjab and Haryana High Court judgment (supra) is to be adhered to, the time limit of one year would only be observed in most cases in the breach. We therefore overrule the said decision. We are constrained to observe that Fiza Developers (supra) was a step in the right direction as its ultimate ratio is that issues need not be struck at the stage of hearing a Section 34 application, which is a summary procedure. However, this judgment must now be read in the light of the amendment made in Section 34(5) and 34(6). So read, we clarify the legal position by stating that an application for setting aside an arbitral award will not ordinarily require anything beyond the record that was before the Arbitrator. However, if there are matters not contained in such record, and are relevant to the determination of issues arising Under Section 34, they may be brought to the notice of the Court by way of affidavits filed by both parties. Cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both parties. | 1[ds]9. The effect of an exclusive jurisdiction Clause was dealt with by this Court in several judgments, the most recent of which is the judgment contained in Indus Mobile Distribution Pvt. Ltd. (supra). In this case, the arbitration was to be conducted at Mumbai and was subject to the exclusive jurisdiction of courts of Mumbai only. After referring to the definition of Court contained in Section 2(1)(e) of the Act, and Section 20 and 31(4) of the Act, this Court referred to the judgment of five learned Judges in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 , in which, the concept of juridical seat which has been evolved by the courts in England, has now taken root in our jurisdiction. After referring to several judgments and a Law Commission Report, this Court held:19. A conspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai courts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in courts, a reference to seat is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have jurisdictionthat is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Sections 16 to 21 of Code of Civil Procedure be attracted. In arbitration law however, as has been held above, the moment seat is determined, the fact that the seat is at Mumbai would vest Mumbai courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties.20. It is well settled that where more than one court has jurisdiction, it is open for the parties to exclude all other courts. For an exhaustive analysis of the case law, see Swastik Gases (P) Ltd. v. Indian Oil Corporation Ltd. [Swastik Gases (P) Ltd. v. Indian Oil Corporation Ltd., (2013) 9 SCC 32 : (2013) 4 SCC (Civ) 157]. This was followed in a recent judgment in B.E. Simoese Von Staraburg Niedenthal v. Chhattisgarh Investment Ltd. [B.E. Simoese Von Staraburg Niedenthal v. Chhattisgarh Investment Ltd., (2015) 12 SCC 225 : (2016) 1 SCC (Civ) 427]. Having regard to the above, it is clear that Mumbai courts alone have jurisdiction to the exclusion of all other courts in the country, as the juridical seat of arbitration is at Mumbai. This being the case, the impugned judgment [Datawind Innovations (P) Ltd. v. Indus Mobile Distribution (P) Ltd.,] is set aside. The injunction confirmed by the impugned judgment will continue for a period of four weeks from the date of pronouncement of this judgment, so that the Respondents may take necessary steps Under Section 9 in the Mumbai Court. The appeals are disposed of accordingly.10. Following this judgment, it is clear that once courts in Mumbai have exclusive jurisdiction thanks to the agreement dated 03.07.2008, read with the National Stock Exchange bye-laws, it is clear that it is the Mumbai courts and the Mumbai courts alone, before which a Section 34 application can be filed. The arbitration that was conducted at Delhi was only at a convenient venue earmarked by the National Stock Exchange, which is evident on a reading of bye-law 4(a)(iv) read with (xiv) contained in Chapter XI.22. It will thus be seen that speedy resolution of arbitral disputes has been the reason for enacting the 1996 Act, and continues to be the reason for adding amendments to the said Act to strengthen the aforesaid object. Quite obviously, if issues are to be framed and oral evidence taken in a summary proceeding Under Section 34, this object will be defeated. It is also on the cards that if Bill No. 100 of 2018 is passed, then evidence at the stage of a Section 34 application will be dispensed with altogether. Given the current state of the law, we are of the view that the two early Delhi High Court judgments, cited by us hereinabove, correctly reflect the position in law as to furnishing proof Under Section 34(2)(a). So does the Calcutta High Court judgment (supra). We may hasten to add that if the procedure followed by the Punjab and Haryana High Court judgment (supra) is to be adhered to, the time limit of one year would only be observed in most cases in the breach. We therefore overrule the said decision. We are constrained to observe that Fiza Developers (supra) was a step in the right direction as its ultimate ratio is that issues need not be struck at the stage of hearing a Section 34 application, which is a summary procedure. However, this judgment must now be read in the light of the amendment made in Section 34(5) and 34(6). So read, we clarify the legal position by stating that an application for setting aside an arbitral award will not ordinarily require anything beyond the record that was before the Arbitrator. However, if there are matters not contained in such record, and are relevant to the determination of issues arising Under Section 34, they may be brought to the notice of the Court by way of affidavits filed by both parties. Cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both parties.In an early Delhi High Court judgment, Sandeep Kumar v. Dr. Ashok Hans, (2004) 3 Arb LR 306 a learned Single Judge of the Delhi High Court specifically held that there is no requirement under the provisions of Section 34 for parties to lead evidence. The record of the Arbitrator was held to be sufficient in order to furnish proof of whether the grounds Under Section 34 had been made out.13. Again, a learned single Judge of the Delhi High Court in Sial Bioenergie v. SBEC Systems, AIR 2005 Del 95 stated:5. In my view the whole purpose of the 1996 Act would be completely defeated by granting permission to the applicant/JD to lead oral evidence at the stage of objections raised against an arbitral award. The 1996 Act requires expeditious disposal of the objections and the minimal interference by the Court as is evident from the Statement of Objects and Reasons of the Act which reads as follows:-4. The main objectives of the Bill are as under:-(ii) To make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration.xxx xxx xxxxxx xxx xxx(v) to minimize the supervisory role of courts in the arbitral process.6. At the stage of the objections which are any way limited in scope due to the provisions of the Act to permit oral evidence would completely defeat the objects underlying the 1996 Act. The process of oral evidence would prolong the process of hearing objections and cannot be countenanced.7. Furthermore the Supreme Court in FCI v. Indian Council for Arbitration, 2003 (6) SCC 564 had summarized the ethos underlying the Act as follows:-The legislative intent underlying the 1996 Act is to minimize the supervisory role of the Courts in the arbitral process and nominate/appoint the arbitrator without wasting time leaving all contentious issues to be urged and agitated before the arbitral tribunal itself.8. Accordingly, I see no merit in these applications and the prayer made therein is rejected.16. The Calcutta High Court in WEB Techniques and Net Solutions Pvt. Ltd. v. M/s. Gati Ltd. and Anr., 2012 SCC OnLine Cal 4271 [C.O. No. 1532 of 2010 (decided on 02.05.2012)] after referring to Fiza Developers (supra), held that oral evidence is not required under a Section 34 application when the record before the Arbitrator would show whether the Petitioners had received notice relating to his appointment.15. A Punjab and Haryana High Court judgment in M/s. Punjab State Industrial Development Corporation v. Mr. Sunil K. Kansal, [CR No. 4216 of 2011 (decided on 11.10.2012)] after referring to our judgment in Fiza Developers (supra) held:30. In view of the above, we answer the question of law framed as follows:(i) The issues, as required Under Order XIV Rule 1 of the Code as in the regular suit, are not required to be mandatorily framed by the Court. However, it is open to the Court to frame questions which may arise for adjudication.(ii) The Court while dealing with the objections Under Section 34 of the Act is not bound to grant opportunities to the parties to lead evidence as in the regular civil suit. The jurisdiction of the Court being more akin to the appellate jurisdiction;(iii) The proceedings before the Court Under Section 34 of the Act are summary in nature. Even if some questions of fact or mixed questions of law and/or facts are to be decided, the court while permitting the parties to furnish affidavits in evidence, can summon the witness for cross-examination, if desired by the other party. Such procedure is keeping in view the principles of natural justice, fair play and equity.14. We now come to a judgment of this Court in Fiza Developers & Inter-Trade Pvt. Ltd. v. AMCI (India) Pvt. Ltd. and Anr., (2009) 17 SCC 796. In this case, the question that was posed by the Court was whether issues as contemplated Under Order XIV Rule 1 of the Code of Civil Procedure, 1908 should be framed in applications Under Section 34 of the Arbitration and Conciliation Act, 1996. This Court held:14. In a summary proceeding, the Respondent is given an opportunity to file his objections or written statement. Thereafter, the court will permit the parties to file affidavits in proof of their respective stands, and if necessary permit cross-examination by the other side, before hearing arguments. Framing of issues in such proceedings is not necessary. We hasten to add that when it is said issues are not necessary, it does not mean that evidence is not necessary.xxx xxx xxx17. The scheme and provisions of the Act disclose two significant aspects relating to courts vis-à-vis arbitration. The first is that there should be minimal interference by courts in matters relating to arbitration. Second is the sense of urgency shown with reference to arbitration matters brought to court, requiring promptness in disposal.18. Section 5 of the Act provides that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I of the Act, no judicial authority shall intervene except where so provided in the Act.xxx xxx xxx21. We may therefore examine the question for consideration by bearing three factors in mind. The first is that the Act is a special enactment and Section 34 provides for a special remedy. The second is that an arbitration award can be set aside only upon one of the grounds mentioned in Sub-section (2) of Section 34 exists. The third is that proceedings Under Section 34 requires to be dealt with expeditiously.xxx xxx xxx24. In other words, an application Under Section 34 of the Act is a single issue proceeding, where the very fact that the application has been instituted under that particular provision declares the issue involved. Any further exercise to frame issues will only delay the proceedings. It is thus clear that issues need not be framed in applications Under Section 34 of the Act.xxx xxx xxx31. Applications Under Section 34 of the Act are summary proceedings with provision for objections by the Respondent-Defendant, followed by an opportunity to the applicant to prove the existence of any ground Under Section 34. The applicant is permitted to file affidavits of his witnesses in proof. A corresponding opportunity is given to the Respondent-Defendant to place his evidence by affidavit. Where the case so warrants, the court permits cross-examination of the persons swearing to the affidavit. Thereafter, the court hears arguments and/or receives written submissions and decides the matter. This is of course the routine procedure. The court may vary the said procedure, depending upon the facts of any particular case or the local rules. What is however clear is that framing of issues as contemplated Under Rule 1 of Order 14 of the Code is not an integral part of the process of a proceedings Under Section 34 of the Act.11. However, the matter does not rest here. The learned Single Judge went on to remand the matter for a full-dressed hearing on what he referred to as a disputed question of fact relating to jurisdiction. | 1 | 4,935 | 2,402 | ### 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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court. This requirement to furnish proof has led to inconsistent practices in some High Courts, where they have insisted on Section 34 proceedings being conducted in the manner as a regular civil suit. This is despite the Supreme Court ruling in Fiza Developers & Inter-Trade P. Ltd. v. AMCI (I) Pvt. Ltd. and Anr. that proceedings Under Section 34 should not be conducted in the same manner as civil suits, with framing of issues Under Rule 1 of Order 14 of the Code of Civil Procedure. In light of this, the Committee is of the view that a suitable amendment may be made to Section 34(2)(a) to ensure that proceedings Under Section 34 are conducted expeditiously. Recommendation: An amendment may be made to Section 34(2)(a) of the Arbitration and Conciliation Act, 1996, substituting the words furnishes proof that with the words establishes on the basis of the arbitral tribunals record that. 19. We have been informed that the Arbitration and Conciliation (Amendment) Bill of 2018, being Bill No. 100 of 2018, contains an amendment to Section 34(2)(a) of the principal Act, which reads as follows: In Section 34 of the principal Act, in Sub-section (2), in Clause (a), for the words furnishes proof that, the words establishes on the basis of the record of the arbitral tribunal that shall be substituted. 20. One more recent development in the law of arbitration needs to be adverted to. After the decision in Fiza Developers (supra), Section 34 was amended by Act 3 of 2016, by which Sub-sections (5) and (6) were added to the principal Act with effect from 23.10.2015. Section 34(5) and 34 reads as under: 34. Application for setting aside arbitral award.-- xxx xxx xxx (5) An application under this Section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. (6) An application under this Section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in Sub-section (5) is served upon the other party. 21. In a recent judgment of this Bench in The State of Bihar and Ors. v. Bihar Rajya Bhumi Vikas Bank Samiti, SLP (Civil) No. 4475 of 2017 (decided on 30.07.2018), this Court, after holding that the period of one year mentioned in the aforesaid Sub-section is directory, went on to hold: 27. We are of the opinion that the view propounded by the High Courts of Bombay and Calcutta represents the correct state of the law. However, we may add that it shall be the endeavour of every Court in which a Section 34 application is filed, to stick to the time limit of one year from the date of service of notice to the opposite party by the applicant, or by the Court, as the case may be. In case the Court issues notice after the period mentioned in Section 34(3) has elapsed, every Court shall endeavour to dispose of the Section 34 application within a period of one year from the date of filing of the said application, similar to what has been provided in Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. This will give effect to the object sought to be achieved by adding Section 13(6) by the 2015 Amendment Act. 28. We may also add that in cases covered by Section 10 read with Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within six months, as stipulated. Appeals which are not so covered will also be disposed of as expeditiously as possible, preferably within one year from the date on which the appeal is filed...... 22. It will thus be seen that speedy resolution of arbitral disputes has been the reason for enacting the 1996 Act, and continues to be the reason for adding amendments to the said Act to strengthen the aforesaid object. Quite obviously, if issues are to be framed and oral evidence taken in a summary proceeding Under Section 34, this object will be defeated. It is also on the cards that if Bill No. 100 of 2018 is passed, then evidence at the stage of a Section 34 application will be dispensed with altogether. Given the current state of the law, we are of the view that the two early Delhi High Court judgments, cited by us hereinabove, correctly reflect the position in law as to furnishing proof Under Section 34(2)(a). So does the Calcutta High Court judgment (supra). We may hasten to add that if the procedure followed by the Punjab and Haryana High Court judgment (supra) is to be adhered to, the time limit of one year would only be observed in most cases in the breach. We therefore overrule the said decision. We are constrained to observe that Fiza Developers (supra) was a step in the right direction as its ultimate ratio is that issues need not be struck at the stage of hearing a Section 34 application, which is a summary procedure. However, this judgment must now be read in the light of the amendment made in Section 34(5) and 34(6). So read, we clarify the legal position by stating that an application for setting aside an arbitral award will not ordinarily require anything beyond the record that was before the Arbitrator. However, if there are matters not contained in such record, and are relevant to the determination of issues arising Under Section 34, they may be brought to the notice of the Court by way of affidavits filed by both parties. Cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both parties.
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of meeting the needs of the specific arbitration.xxx xxx xxxxxx xxx xxx(v) to minimize the supervisory role of courts in the arbitral process.6. At the stage of the objections which are any way limited in scope due to the provisions of the Act to permit oral evidence would completely defeat the objects underlying the 1996 Act. The process of oral evidence would prolong the process of hearing objections and cannot be countenanced.7. Furthermore the Supreme Court in FCI v. Indian Council for Arbitration, 2003 (6) SCC 564 had summarized the ethos underlying the Act as follows:-The legislative intent underlying the 1996 Act is to minimize the supervisory role of the Courts in the arbitral process and nominate/appoint the arbitrator without wasting time leaving all contentious issues to be urged and agitated before the arbitral tribunal itself.8. Accordingly, I see no merit in these applications and the prayer made therein is rejected.16. The Calcutta High Court in WEB Techniques and Net Solutions Pvt. Ltd. v. M/s. Gati Ltd. and Anr., 2012 SCC OnLine Cal 4271 [C.O. No. 1532 of 2010 (decided on 02.05.2012)] after referring to Fiza Developers (supra), held that oral evidence is not required under a Section 34 application when the record before the Arbitrator would show whether the Petitioners had received notice relating to his appointment.15. A Punjab and Haryana High Court judgment in M/s. Punjab State Industrial Development Corporation v. Mr. Sunil K. Kansal, [CR No. 4216 of 2011 (decided on 11.10.2012)] after referring to our judgment in Fiza Developers (supra) held:30. In view of the above, we answer the question of law framed as follows:(i) The issues, as required Under Order XIV Rule 1 of the Code as in the regular suit, are not required to be mandatorily framed by the Court. However, it is open to the Court to frame questions which may arise for adjudication.(ii) The Court while dealing with the objections Under Section 34 of the Act is not bound to grant opportunities to the parties to lead evidence as in the regular civil suit. The jurisdiction of the Court being more akin to the appellate jurisdiction;(iii) The proceedings before the Court Under Section 34 of the Act are summary in nature. Even if some questions of fact or mixed questions of law and/or facts are to be decided, the court while permitting the parties to furnish affidavits in evidence, can summon the witness for cross-examination, if desired by the other party. Such procedure is keeping in view the principles of natural justice, fair play and equity.14. We now come to a judgment of this Court in Fiza Developers & Inter-Trade Pvt. Ltd. v. AMCI (India) Pvt. Ltd. and Anr., (2009) 17 SCC 796. In this case, the question that was posed by the Court was whether issues as contemplated Under Order XIV Rule 1 of the Code of Civil Procedure, 1908 should be framed in applications Under Section 34 of the Arbitration and Conciliation Act, 1996. This Court held:14. In a summary proceeding, the Respondent is given an opportunity to file his objections or written statement. Thereafter, the court will permit the parties to file affidavits in proof of their respective stands, and if necessary permit cross-examination by the other side, before hearing arguments. Framing of issues in such proceedings is not necessary. We hasten to add that when it is said issues are not necessary, it does not mean that evidence is not necessary.xxx xxx xxx17. The scheme and provisions of the Act disclose two significant aspects relating to courts vis-à-vis arbitration. The first is that there should be minimal interference by courts in matters relating to arbitration. Second is the sense of urgency shown with reference to arbitration matters brought to court, requiring promptness in disposal.18. Section 5 of the Act provides that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I of the Act, no judicial authority shall intervene except where so provided in the Act.xxx xxx xxx21. We may therefore examine the question for consideration by bearing three factors in mind. The first is that the Act is a special enactment and Section 34 provides for a special remedy. The second is that an arbitration award can be set aside only upon one of the grounds mentioned in Sub-section (2) of Section 34 exists. The third is that proceedings Under Section 34 requires to be dealt with expeditiously.xxx xxx xxx24. In other words, an application Under Section 34 of the Act is a single issue proceeding, where the very fact that the application has been instituted under that particular provision declares the issue involved. Any further exercise to frame issues will only delay the proceedings. It is thus clear that issues need not be framed in applications Under Section 34 of the Act.xxx xxx xxx31. Applications Under Section 34 of the Act are summary proceedings with provision for objections by the Respondent-Defendant, followed by an opportunity to the applicant to prove the existence of any ground Under Section 34. The applicant is permitted to file affidavits of his witnesses in proof. A corresponding opportunity is given to the Respondent-Defendant to place his evidence by affidavit. Where the case so warrants, the court permits cross-examination of the persons swearing to the affidavit. Thereafter, the court hears arguments and/or receives written submissions and decides the matter. This is of course the routine procedure. The court may vary the said procedure, depending upon the facts of any particular case or the local rules. What is however clear is that framing of issues as contemplated Under Rule 1 of Order 14 of the Code is not an integral part of the process of a proceedings Under Section 34 of the Act.11. However, the matter does not rest here. The learned Single Judge went on to remand the matter for a full-dressed hearing on what he referred to as a disputed question of fact relating to jurisdiction.
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G. Bassi Reddy Vs. International Crops Research Instt. & Anr | it would not serve to make the body a State". 26. The facts which have been narrated earlier clearly show that ICRISAT does not fulfil any of these tests. It was not set up by the Government and it gives its services voluntarily to a large number of countries besides India. It is not controlled by not is it accountable to the Government. The Indian Governments financial contribution to ICRISAT is minimal. Its participation in ICRISATs administration is limited to 3 out of 15 members. It cannot therefore be said that ICRISAT is a State of other authority as defined in Article 12 of the Constitution.27. It is true that a writ under Article 226 also lies against a person for any other purpose". The power of the High Court to issue such a writ to "any person" can only mean the power to issue such a writ to any person to whom, according to well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words "and for any other purpose" must mean "for any other purpose for which any of the writs mentioned would, according to well established principles issue [Carlshad M.W. Mfg. Co. V. H.M. Jagtiani AIR 1952 Cal 315 at 318]28. A writ under Article 226 can lie against a person if it is a statutory body or performs a public function or discharges a public or statutory duty (Praga Tools Corporation vs. C.A. Imanual, (1969) 1 SCC 585 ; Andi Mukta Sadguru Trust vs. V.R. Rudani, (1989) 2 SCC 691 , 698; VST Ind. Ltd. vs. VST Ind. Workers Union & Another (2001) 1 SCC 298 ). ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that the ICRISAT owes a duty to the Indian public to provide research and training facilities. In Praga Tools Corporation vs. C.V. Imanual AIR 1960 SC 1306, this Court construed Article 226 to hold that the High Court could issue a writ of mandamus "to secure the performance on the duty or statutory duty" in the performance of which the one who applies for it has a sufficient legal interest". The Court also held that : "... an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute (See Sohan Lal vs. Union of India, 1957 SCR 738 ). 29. We are therefore of the view that the High Court was right in its conclusion that the writ petition of the appellant was not maintainable against ICRISAT.30. The second relief sought in the writ petition is against the Union of India. The prayer is that the Union should take action to fulfil clause 6 of the March agreement. The prayer is unsustainable as in substance the relief claimed is against ICRISAT. Furthermore it is doubtful whether the agreement between the Indian Government and ICRISAT is specifically enforceable as such in domestic Courts, particularly when the agreement does not form part of any domestic legislation. The case of Dadu vs. State of Maharashtra relied upon by the appellant has no bearing on the issues which arise for consideration in the case before us. In that case, the Constitutional validity of Section 32A of the Narcotics Drugs and Psychotropic Substances Act, 1985 which prohibited appellate Courts from suspending sentence despite the appeal being admitted, was questioned. The impugned section clearly ran contrary to the provisions of the Criminal Procedure Code which allowed the appellate courts discretionary powers to suspend sentences. One of the arguments raised by the Respondent State to justify this apparent contradiction was that the section had been enacted in discharge of the Government of Indias international obligations under the United Nations Convention Against Illicit Trafficking in Narcotics and Psychotropic, 1988. The Court held that the Convention clearly and unambiguously showed that the Convention was made subject to "constitutional principles and the basic concept of its legal system prevalent in the polity of the member country". The States argument was rejected as it was found as a fact that there was no international agreement which obliged countries notwithstanding the constitutional principles and basic concept of its legal system, to put a blanket ban on the power of the Court to suspend the sentence awarded to a criminal under the Act. There was no conflict between the Governments international obligation and the domestic law. In the present case there is no question of any conflict. What is sought for on the other hand is an enforcement of a clause in an international agreement.31. In any event, it could not be said that the Personnel Policy Statement framed by ICRISAT dealing with internal discipline was not in terms of clause 6 (2) of the March agreement. It has not been shown how these guidelines (which were in fact followed in the appellants case) deviated from or did not approximate to the established disciplinary procedures followed by other private concerns in the country. 32. In these circumstances, we | 0[ds]25. A writ under Article 226 lies only when the petitioner establishes that his or her fundamental right or some other legal right has been infringed (Calcutta Gas Co. vs. State of W.B., AIR 1962 SC 1044 , 1047-1048). The claim as made by the appellant in his writ petition is founded on Articles 14 and 16. The claim would not be maintainable against ICRISAT unless ICRISAT were a State or authority within the meaning of Article 12. The tests for determining whether an organization is either, has been recently considered by a Constitution Bench of this Court in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and others (2002) 5 SCC 111 at p.134 in which wequestion in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State".The facts which have been narrated earlier clearly show that ICRISAT does not fulfil any of these tests. It was not set up by the Government and it gives its services voluntarily to a large number of countries besides India. It is not controlled by not is it accountable to the Government. The Indian Governments financial contribution to ICRISAT is minimal. Its participation in ICRISATs administration is limited to 3 out of 15 members. It cannot therefore be said that ICRISAT is a State of other authority as defined in Article 12 of the Constitution.27. It is true that a writ under Article 226 also lies against a person for any other purpose". The power of the High Court to issue such a writ to "any person" can only mean the power to issue such a writ to any person to whom, according to well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words "and for any other purpose" must mean "for any other purpose for which any of the writs mentioned would, according to well established principles issue [Carlshad M.W. Mfg. Co. V. H.M. Jagtiani AIR 1952 Cal 315 at 318]28. A writ under Article 226 can lie against a person if it is a statutory body or performs a public function or discharges a public or statutory duty (Praga Tools Corporation vs. C.A. Imanual, (1969) 1 SCC 585 ; Andi Mukta Sadguru Trust vs. V.R. Rudani, (1989) 2 SCC 691 , 698; VST Ind. Ltd. vs. VST Ind. Workers Union & Another (2001) 1 SCC 298 ). ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that the ICRISAT owes a duty to the Indian public to provide research and training facilities.We are therefore of the view that the High Court was right in its conclusion that the writ petition of the appellant was not maintainable against ICRISAT.30. The second relief sought in the writ petition is against the Union of India. The prayer is that the Union should take action to fulfil clause 6 of the March agreement. The prayer is unsustainable as in substance the relief claimed is against ICRISAT. Furthermore it is doubtful whether the agreement between the Indian Government and ICRISAT is specifically enforceable as such in domestic Courts, particularly when the agreement does not form part of any domesticwas no conflict between the Governments international obligation and the domestic law. In the present case there is no question of any conflict. What is sought for on the other hand is an enforcement of a clause in an international agreement.31. In any event, it could not be said that the Personnel Policy Statement framed by ICRISAT dealing with internal discipline was not in terms of clause 6 (2) of the March agreement. It has not been shown how these guidelines (which were in fact followed in the appellants case) deviated from or did not approximate to the established disciplinary procedures followed by other private concerns in the | 0 | 5,007 | 932 | ### Instruction:
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it would not serve to make the body a State". 26. The facts which have been narrated earlier clearly show that ICRISAT does not fulfil any of these tests. It was not set up by the Government and it gives its services voluntarily to a large number of countries besides India. It is not controlled by not is it accountable to the Government. The Indian Governments financial contribution to ICRISAT is minimal. Its participation in ICRISATs administration is limited to 3 out of 15 members. It cannot therefore be said that ICRISAT is a State of other authority as defined in Article 12 of the Constitution.27. It is true that a writ under Article 226 also lies against a person for any other purpose". The power of the High Court to issue such a writ to "any person" can only mean the power to issue such a writ to any person to whom, according to well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words "and for any other purpose" must mean "for any other purpose for which any of the writs mentioned would, according to well established principles issue [Carlshad M.W. Mfg. Co. V. H.M. Jagtiani AIR 1952 Cal 315 at 318]28. A writ under Article 226 can lie against a person if it is a statutory body or performs a public function or discharges a public or statutory duty (Praga Tools Corporation vs. C.A. Imanual, (1969) 1 SCC 585 ; Andi Mukta Sadguru Trust vs. V.R. Rudani, (1989) 2 SCC 691 , 698; VST Ind. Ltd. vs. VST Ind. Workers Union & Another (2001) 1 SCC 298 ). ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that the ICRISAT owes a duty to the Indian public to provide research and training facilities. In Praga Tools Corporation vs. C.V. Imanual AIR 1960 SC 1306, this Court construed Article 226 to hold that the High Court could issue a writ of mandamus "to secure the performance on the duty or statutory duty" in the performance of which the one who applies for it has a sufficient legal interest". The Court also held that : "... an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute (See Sohan Lal vs. Union of India, 1957 SCR 738 ). 29. We are therefore of the view that the High Court was right in its conclusion that the writ petition of the appellant was not maintainable against ICRISAT.30. The second relief sought in the writ petition is against the Union of India. The prayer is that the Union should take action to fulfil clause 6 of the March agreement. The prayer is unsustainable as in substance the relief claimed is against ICRISAT. Furthermore it is doubtful whether the agreement between the Indian Government and ICRISAT is specifically enforceable as such in domestic Courts, particularly when the agreement does not form part of any domestic legislation. The case of Dadu vs. State of Maharashtra relied upon by the appellant has no bearing on the issues which arise for consideration in the case before us. In that case, the Constitutional validity of Section 32A of the Narcotics Drugs and Psychotropic Substances Act, 1985 which prohibited appellate Courts from suspending sentence despite the appeal being admitted, was questioned. The impugned section clearly ran contrary to the provisions of the Criminal Procedure Code which allowed the appellate courts discretionary powers to suspend sentences. One of the arguments raised by the Respondent State to justify this apparent contradiction was that the section had been enacted in discharge of the Government of Indias international obligations under the United Nations Convention Against Illicit Trafficking in Narcotics and Psychotropic, 1988. The Court held that the Convention clearly and unambiguously showed that the Convention was made subject to "constitutional principles and the basic concept of its legal system prevalent in the polity of the member country". The States argument was rejected as it was found as a fact that there was no international agreement which obliged countries notwithstanding the constitutional principles and basic concept of its legal system, to put a blanket ban on the power of the Court to suspend the sentence awarded to a criminal under the Act. There was no conflict between the Governments international obligation and the domestic law. In the present case there is no question of any conflict. What is sought for on the other hand is an enforcement of a clause in an international agreement.31. In any event, it could not be said that the Personnel Policy Statement framed by ICRISAT dealing with internal discipline was not in terms of clause 6 (2) of the March agreement. It has not been shown how these guidelines (which were in fact followed in the appellants case) deviated from or did not approximate to the established disciplinary procedures followed by other private concerns in the country. 32. In these circumstances, we
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25. A writ under Article 226 lies only when the petitioner establishes that his or her fundamental right or some other legal right has been infringed (Calcutta Gas Co. vs. State of W.B., AIR 1962 SC 1044 , 1047-1048). The claim as made by the appellant in his writ petition is founded on Articles 14 and 16. The claim would not be maintainable against ICRISAT unless ICRISAT were a State or authority within the meaning of Article 12. The tests for determining whether an organization is either, has been recently considered by a Constitution Bench of this Court in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and others (2002) 5 SCC 111 at p.134 in which wequestion in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State".The facts which have been narrated earlier clearly show that ICRISAT does not fulfil any of these tests. It was not set up by the Government and it gives its services voluntarily to a large number of countries besides India. It is not controlled by not is it accountable to the Government. The Indian Governments financial contribution to ICRISAT is minimal. Its participation in ICRISATs administration is limited to 3 out of 15 members. It cannot therefore be said that ICRISAT is a State of other authority as defined in Article 12 of the Constitution.27. It is true that a writ under Article 226 also lies against a person for any other purpose". The power of the High Court to issue such a writ to "any person" can only mean the power to issue such a writ to any person to whom, according to well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words "and for any other purpose" must mean "for any other purpose for which any of the writs mentioned would, according to well established principles issue [Carlshad M.W. Mfg. Co. V. H.M. Jagtiani AIR 1952 Cal 315 at 318]28. A writ under Article 226 can lie against a person if it is a statutory body or performs a public function or discharges a public or statutory duty (Praga Tools Corporation vs. C.A. Imanual, (1969) 1 SCC 585 ; Andi Mukta Sadguru Trust vs. V.R. Rudani, (1989) 2 SCC 691 , 698; VST Ind. Ltd. vs. VST Ind. Workers Union & Another (2001) 1 SCC 298 ). ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that the ICRISAT owes a duty to the Indian public to provide research and training facilities.We are therefore of the view that the High Court was right in its conclusion that the writ petition of the appellant was not maintainable against ICRISAT.30. The second relief sought in the writ petition is against the Union of India. The prayer is that the Union should take action to fulfil clause 6 of the March agreement. The prayer is unsustainable as in substance the relief claimed is against ICRISAT. Furthermore it is doubtful whether the agreement between the Indian Government and ICRISAT is specifically enforceable as such in domestic Courts, particularly when the agreement does not form part of any domesticwas no conflict between the Governments international obligation and the domestic law. In the present case there is no question of any conflict. What is sought for on the other hand is an enforcement of a clause in an international agreement.31. In any event, it could not be said that the Personnel Policy Statement framed by ICRISAT dealing with internal discipline was not in terms of clause 6 (2) of the March agreement. It has not been shown how these guidelines (which were in fact followed in the appellants case) deviated from or did not approximate to the established disciplinary procedures followed by other private concerns in the
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Gram Sabha, Besahani Vs. Ram Raj Singh & Ors | grove-holder of land referred to in Section 212 or being an intermediary brought such land under his own cultivation or planted a grove thereon on or after the eighth day of August, 1946, he shall pass an order for ejectment of the person from the land on payment of such compensation as may be prescribed.(7) Where an order for ejectment has been passed under this section, the party against whom the order has been passed may institute a suit to establish the right claimed by it but subject to the results of such suit the order passed under sub-section (4) or (6) shall be conclusive."The language of S. 212-A (6) makes it clear that the order under that provision must be an order for ejectment of the person in possession of the land on payment of such compensation as may be prescribed. This means that an order under that provision must first direct payment of compensation to the person in possession and the direction for ejectment of the person in possession must be made effective only thereafter, i. e., after the compensation has been paid. The order to be made under this provision of law must, therefore, contain as a condition precedent to ejectment the payment of compensation. If no payment of compensation is ordered, the order made would not be an order under this provision of law. In the present case, admittedly no compensation was ordered to be paid in the order purporting to have been passed under S 212-A (6) of the Act, so that that order cannot be treated as an order under this provision of law The order not being under this provision the dispossession of the plaintiffs/respondents in pursuance of that order was clearly illegal and the plaintiffs, respondents had the right to institute the suit for obtaining possession under S. 209 of the Act.3. It is true that, in accordance with Entry at Sl. No. 32-B of Appendix III read with Rule 338 of the U. P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the Rules"), a suit to establish a right claimed in accordance with S. 212-A (7) of the Act has to be instituted within six months. In pursuance of that right claimed, possession can also be claimed; and, if the suit for establishing the right fails, the right to obtain possession would also become time-barred. Consequently, under S. 189 (c) of the Act, the person concorned, who fails to institute the suit within this period of limitation in accordance with S. 212-A (7) of the Act, would have his interest in the land extinguished. This provision, however, will only apply to cases where a valid order has been made under S. 212-A of the Act and the person concerned has been dispossessed in pursuance of such an order. In the present case, we have held that the order, in pursuance of which the respondents were dispossessed was not a valid order under S. 212-A (6) of the Act and cannot be held to be an order under that provision of law, so that the respondents in this case must be deemed to have been deprived of possession- otherwise than in accordance with law. In such a case, a suit clearly lay against the appellant under S. 209 of the Act and such a suit could be instituted within six years from the date that unlawful possession was taken by the appellant in accordance with Entry at Sl. No. 30 of Appendix III read with R. 338 of the Rules. The present suit was admittedly brought within this period of limitation and was, therefore, not time-barred. The High Court was, therefore, right in holding that the claim of the plaintiffs/respondents could not be defeated on this ground.4. The second point urged on behalf of the appellant, however, appears to us to have great force and must be accepted. It was urged that, so far as plot No. 330/3 is concerned, there was a finding of fact recorded by the trial Court, which was upheld by the first appellate Court, that the plaintiffs/ respondents never acquired any tenancy or Sirdari rights in this fend, so that. irrespective of the validity of the order under S. 212-A (6) of the Act. the plaintiffs/respondents suit for possession of this plot had to be dismissed.The High Court in decreeing the suit, clearly ignore, this aspect The dismissal of the suit by the trial Court which was upheld by the first appellate Court in respect of this plot No 330/3 was therefore, not liable to he set aside even on the view taken by the High Court and to that extent it has to be upheld.5. With regard to the remaining four plots in which the respondents were claiming Bhumidari rights, the error committed by the High Court is that on the finding recorded by that Court there should have been an order of remand to determine other questions raised in the suit in respect of those plots. One of the questions raised, which formed part of issue No 2 and was never decided by the civil Court to which that issue was referred, was that the respondents had never acquired Bhumidari rights at all in these plots. That question should have been remitted for a fresh decision when the High Court held that the civil Court was wrong in holding that the Bhumidari rights if possessed by the respondents in these plots, had been extinguished under S. 189 of the Act in view of the failure of the respondents to institute the suit within the period of limitation applicable to a suit under S. 212-A (7) of the Act. Further, in respect of these plots, other issues which were not decided by the Revenue Court also required decision before the suit in respect of them could be completely disposed of. Consequently it is now necessary to remand the suit to the trial Court for a fresh trial for the purposes indicated above. | 1[ds]The language of S. 212-A (6) makes it clear that the order under that provision must be an order for ejectment of the person in possession of the land on payment of such compensation as may be prescribed. This means that an order under that provision must first direct payment of compensation to the person in possession and the direction for ejectment of the person in possession must be made effective only thereafter, i. e., after the compensation has been paid. The order to be made under this provision of law must, therefore, contain as a condition precedent to ejectment the payment of compensation. If no payment of compensation is ordered, the order made would not be an order under this provision of law. In the present case, admittedly no compensation was ordered to be paid in the order purporting to have been passed under S 212-A (6) of the Act, so that that order cannot be treated as an order under this provision of law The order not being under this provision the dispossession of the plaintiffs/respondents in pursuance of that order was clearly illegal and the plaintiffs, respondents had the right to institute the suit for obtaining possession under S. 209 of the Act.3. It is true that, in accordance with Entry at Sl. No. 32-B of Appendix III read with Rule 338 of the U. P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the Rules"), a suit to establish a right claimed in accordance with S. 212-A (7) of the Act has to be instituted within six months. In pursuance of that right claimed, possession can also be claimed; and, if the suit for establishing the right fails, the right to obtain possession would also become time-barred. Consequently, under S. 189 (c) of the Act, the person concorned, who fails to institute the suit within this period of limitation in accordance with S. 212-A (7) of the Act, would have his interest in the land extinguished. This provision, however, will only apply to cases where a valid order has been made under S. 212-A of the Act and the person concerned has been dispossessed in pursuance of such an order. In the present case, we have held that the order, in pursuance of which the respondents were dispossessed was not a valid order under S. 212-A (6) of the Act and cannot be held to be an order under that provision of law, so that the respondents in this case must be deemed to have been deprived of possession- otherwise than in accordance with law. In such a case, a suit clearly lay against the appellant under S. 209 of the Act and such a suit could be instituted within six years from the date that unlawful possession was taken by the appellant in accordance with Entry at Sl. No. 30 of Appendix III read with R. 338 of the Rules. The present suit was admittedly brought within this period of limitation and was, therefore, not time-barred. The High Court was, therefore, right in holding that the claim of the plaintiffs/respondents could not be defeated on this ground.With regard to the remaining four plots in which the respondents were claiming Bhumidari rights, the error committed by the High Court is that on the finding recorded by that Court there should have been an order of remand to determine other questions raised in the suit in respect of those plots. One of the questions raised, which formed part of issue No 2 and was never decided by the civil Court to which that issue was referred, was that the respondents had never acquired Bhumidari rights at all in these plots. That question should have been remitted for a fresh decision when the High Court held that the civil Court was wrong in holding that the Bhumidari rights if possessed by the respondents in these plots, had been extinguished under S. 189 of the Act in view of the failure of the respondents to institute the suit within the period of limitation applicable to a suit under S. 212-A (7) of the Act. Further, in respect of these plots, other issues which were not decided by the Revenue Court also required decision before the suit in respect of them could be completely disposed of. Consequently it is now necessary to remand the suit to the trial Court for a fresh trial for the purposes indicated above. | 1 | 2,174 | 820 | ### Instruction:
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grove-holder of land referred to in Section 212 or being an intermediary brought such land under his own cultivation or planted a grove thereon on or after the eighth day of August, 1946, he shall pass an order for ejectment of the person from the land on payment of such compensation as may be prescribed.(7) Where an order for ejectment has been passed under this section, the party against whom the order has been passed may institute a suit to establish the right claimed by it but subject to the results of such suit the order passed under sub-section (4) or (6) shall be conclusive."The language of S. 212-A (6) makes it clear that the order under that provision must be an order for ejectment of the person in possession of the land on payment of such compensation as may be prescribed. This means that an order under that provision must first direct payment of compensation to the person in possession and the direction for ejectment of the person in possession must be made effective only thereafter, i. e., after the compensation has been paid. The order to be made under this provision of law must, therefore, contain as a condition precedent to ejectment the payment of compensation. If no payment of compensation is ordered, the order made would not be an order under this provision of law. In the present case, admittedly no compensation was ordered to be paid in the order purporting to have been passed under S 212-A (6) of the Act, so that that order cannot be treated as an order under this provision of law The order not being under this provision the dispossession of the plaintiffs/respondents in pursuance of that order was clearly illegal and the plaintiffs, respondents had the right to institute the suit for obtaining possession under S. 209 of the Act.3. It is true that, in accordance with Entry at Sl. No. 32-B of Appendix III read with Rule 338 of the U. P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the Rules"), a suit to establish a right claimed in accordance with S. 212-A (7) of the Act has to be instituted within six months. In pursuance of that right claimed, possession can also be claimed; and, if the suit for establishing the right fails, the right to obtain possession would also become time-barred. Consequently, under S. 189 (c) of the Act, the person concorned, who fails to institute the suit within this period of limitation in accordance with S. 212-A (7) of the Act, would have his interest in the land extinguished. This provision, however, will only apply to cases where a valid order has been made under S. 212-A of the Act and the person concerned has been dispossessed in pursuance of such an order. In the present case, we have held that the order, in pursuance of which the respondents were dispossessed was not a valid order under S. 212-A (6) of the Act and cannot be held to be an order under that provision of law, so that the respondents in this case must be deemed to have been deprived of possession- otherwise than in accordance with law. In such a case, a suit clearly lay against the appellant under S. 209 of the Act and such a suit could be instituted within six years from the date that unlawful possession was taken by the appellant in accordance with Entry at Sl. No. 30 of Appendix III read with R. 338 of the Rules. The present suit was admittedly brought within this period of limitation and was, therefore, not time-barred. The High Court was, therefore, right in holding that the claim of the plaintiffs/respondents could not be defeated on this ground.4. The second point urged on behalf of the appellant, however, appears to us to have great force and must be accepted. It was urged that, so far as plot No. 330/3 is concerned, there was a finding of fact recorded by the trial Court, which was upheld by the first appellate Court, that the plaintiffs/ respondents never acquired any tenancy or Sirdari rights in this fend, so that. irrespective of the validity of the order under S. 212-A (6) of the Act. the plaintiffs/respondents suit for possession of this plot had to be dismissed.The High Court in decreeing the suit, clearly ignore, this aspect The dismissal of the suit by the trial Court which was upheld by the first appellate Court in respect of this plot No 330/3 was therefore, not liable to he set aside even on the view taken by the High Court and to that extent it has to be upheld.5. With regard to the remaining four plots in which the respondents were claiming Bhumidari rights, the error committed by the High Court is that on the finding recorded by that Court there should have been an order of remand to determine other questions raised in the suit in respect of those plots. One of the questions raised, which formed part of issue No 2 and was never decided by the civil Court to which that issue was referred, was that the respondents had never acquired Bhumidari rights at all in these plots. That question should have been remitted for a fresh decision when the High Court held that the civil Court was wrong in holding that the Bhumidari rights if possessed by the respondents in these plots, had been extinguished under S. 189 of the Act in view of the failure of the respondents to institute the suit within the period of limitation applicable to a suit under S. 212-A (7) of the Act. Further, in respect of these plots, other issues which were not decided by the Revenue Court also required decision before the suit in respect of them could be completely disposed of. Consequently it is now necessary to remand the suit to the trial Court for a fresh trial for the purposes indicated above.
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The language of S. 212-A (6) makes it clear that the order under that provision must be an order for ejectment of the person in possession of the land on payment of such compensation as may be prescribed. This means that an order under that provision must first direct payment of compensation to the person in possession and the direction for ejectment of the person in possession must be made effective only thereafter, i. e., after the compensation has been paid. The order to be made under this provision of law must, therefore, contain as a condition precedent to ejectment the payment of compensation. If no payment of compensation is ordered, the order made would not be an order under this provision of law. In the present case, admittedly no compensation was ordered to be paid in the order purporting to have been passed under S 212-A (6) of the Act, so that that order cannot be treated as an order under this provision of law The order not being under this provision the dispossession of the plaintiffs/respondents in pursuance of that order was clearly illegal and the plaintiffs, respondents had the right to institute the suit for obtaining possession under S. 209 of the Act.3. It is true that, in accordance with Entry at Sl. No. 32-B of Appendix III read with Rule 338 of the U. P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the Rules"), a suit to establish a right claimed in accordance with S. 212-A (7) of the Act has to be instituted within six months. In pursuance of that right claimed, possession can also be claimed; and, if the suit for establishing the right fails, the right to obtain possession would also become time-barred. Consequently, under S. 189 (c) of the Act, the person concorned, who fails to institute the suit within this period of limitation in accordance with S. 212-A (7) of the Act, would have his interest in the land extinguished. This provision, however, will only apply to cases where a valid order has been made under S. 212-A of the Act and the person concerned has been dispossessed in pursuance of such an order. In the present case, we have held that the order, in pursuance of which the respondents were dispossessed was not a valid order under S. 212-A (6) of the Act and cannot be held to be an order under that provision of law, so that the respondents in this case must be deemed to have been deprived of possession- otherwise than in accordance with law. In such a case, a suit clearly lay against the appellant under S. 209 of the Act and such a suit could be instituted within six years from the date that unlawful possession was taken by the appellant in accordance with Entry at Sl. No. 30 of Appendix III read with R. 338 of the Rules. The present suit was admittedly brought within this period of limitation and was, therefore, not time-barred. The High Court was, therefore, right in holding that the claim of the plaintiffs/respondents could not be defeated on this ground.With regard to the remaining four plots in which the respondents were claiming Bhumidari rights, the error committed by the High Court is that on the finding recorded by that Court there should have been an order of remand to determine other questions raised in the suit in respect of those plots. One of the questions raised, which formed part of issue No 2 and was never decided by the civil Court to which that issue was referred, was that the respondents had never acquired Bhumidari rights at all in these plots. That question should have been remitted for a fresh decision when the High Court held that the civil Court was wrong in holding that the Bhumidari rights if possessed by the respondents in these plots, had been extinguished under S. 189 of the Act in view of the failure of the respondents to institute the suit within the period of limitation applicable to a suit under S. 212-A (7) of the Act. Further, in respect of these plots, other issues which were not decided by the Revenue Court also required decision before the suit in respect of them could be completely disposed of. Consequently it is now necessary to remand the suit to the trial Court for a fresh trial for the purposes indicated above.
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P. Dasa Muni Reddy Vs. P. Appa Rao | advantage of the benefit. On that reasoning, this Court set aside the judgment of the High Court and restored the decree of the trial Court dismissing the suit in Lachoo Mals case (supra). Lachoo Mals case (supra) has no application to the present case which raises the question as to whether the appellant has waived the jurisdiction of the Court to entertain the suit for eviction of the respondent.11. In the present case the issue in the suit under appeal as framed in the trial Court was whether the appellant became estopped from pleading that the Rent Control Act could not apply to the building. The concurrent finding of the trial Court and the First Appellate Court is that the building was constructed in the year 1958. The Act would not apply to the month of August, 1957. The Civil Court and not the Rent Controller would have jurisdiction in respect of such buildings. The First Appellate Court held that the appellant sought eviction before the Rent Controller on the ground that there was default in payment of rent. The date of construction of the building was not in question before the Rent Controller. The First Appellate Court came to the conclusion that the appellants suit was barred neither by res judicata nor by any principle of estoppel.12. It is indisputable that the Rent Controller could have no jurisdiction in respect of the building in question becaue of the date of construction of the building. The decree in the suit before the Rent Controller cannot be pleaded as res judicata because the Rent Controller would have no jurisdiction to try and decide not only a particular matter in the suit but also the subsequent suit in which the issue is raised. (See Gokul Mandar v. Pudmanund, (1902) 29 Ind App 196 (PC) ). Section 44 of the Evidence Act also supports the appellant to shows that the judgment in the suit before the Rent Controller is delivered by a Court not competent to deliver it. Want of jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. If there is want of jurisdiction the whole proceeding is coram non judice. The absence of a condition necessarily to found the jurisdiction to make an order or give a decision deprives the order or decision of any conclusive effect. (See Halsburys Laws of England, 3rd Ed. Vol.15 para 384).13. Abandonment of right is much more than waiver, acquiescence or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the responent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of Courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature.It implies a meeting of the minds. It is a nature of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not ones as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent.14. Just as the courts normally do not permit contracting out of the Acts so there can be no contracting in.A status of control of premises under the Rent Control Acts cannot be acquired either by estoppel or by res judicata. The principle is that neither estoppel nor res judicata can give the court jurisdiction under the Acts which those Acts say it is not to have. The Rent Control Acts operate in rem. These Acts give a status to the house from which certain legal consequences follow:15. In the present case, the building in question is beyond doubt outside the protection of Rent Control Acts. The foundation of the doctrine of estoppel is that the representation must be of existing facts and not of mere intention (See Dawsons Bank Ltd. v. Nippon M. K. Kaisha 62 Ind App 100 = (AIR 1935 PC 79 ). There must be a statement of fact and not a mere promise to do some thing in future.16. The appellant proved that the appellant made a mistake of fact in regard to the building being outside the mischief of the Act.The appellant instituted the suit before the Rent Controller in mistake about the underlying and fundamental fact that the building was outside the ambit of the Act. The Civil Court has jurisdiction in the subsequent suit which is the subject of this appeal. The appellant is not disentitled to any relief on the grounds of res judicata or estoppel or waiver. As one cannot confer jurisdiction by consent similarly one cannot by agreement waive exclusive jurisdiction of courts. The Civil Court and not the Rent Control Court possesses jurisdiction over the building in question. | 1[ds]The concurrent finding of the trial Court and the First Appellate Court is that the building was constructed in the year 1958. The Act would not apply to the month of August, 1957. The Civil Court and not the Rent Controller would have jurisdiction in respect of such buildings. The First Appellate Court held that the appellant sought eviction before the Rent Controller on the ground that there was default in payment of rent. The date of construction of the building was not in question before the Rent Controller. The First Appellate Court came to the conclusion that the appellants suit was barred neither by res judicata nor by any principle of estoppel.12. It is indisputable that the Rent Controller could have no jurisdiction in respect of the building in question becaue of the date of construction of the building. The decree in the suit before the Rent Controller cannot be pleaded as res judicata because the Rent Controller would have no jurisdiction to try and decide not only a particular matter in the suit but also the subsequent suit in which the issue is44 of the EvidenceIn the present case, the building in question is beyond doubt outside the protection of Rent Control Acts. The foundation of the doctrine of estoppel is that the representation must be of existing facts and not of mereThe appellant proved that the appellant made a mistake of fact in regard to the building being outside the mischief of the Act.The appellant instituted the suit before the Rent Controller in mistake about the underlying and fundamental fact that the building was outside the ambit of the Act. The Civil Court has jurisdiction in the subsequent suit which is the subject of this appeal. The appellant is not disentitled to any relief on the grounds of res judicata or estoppel or waiver. As one cannot confer jurisdiction by consent similarly one cannot by agreement waive exclusive jurisdiction of courts. The Civil Court and not the Rent Control Court possesses jurisdiction over the building in question. | 1 | 1,995 | 362 | ### Instruction:
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advantage of the benefit. On that reasoning, this Court set aside the judgment of the High Court and restored the decree of the trial Court dismissing the suit in Lachoo Mals case (supra). Lachoo Mals case (supra) has no application to the present case which raises the question as to whether the appellant has waived the jurisdiction of the Court to entertain the suit for eviction of the respondent.11. In the present case the issue in the suit under appeal as framed in the trial Court was whether the appellant became estopped from pleading that the Rent Control Act could not apply to the building. The concurrent finding of the trial Court and the First Appellate Court is that the building was constructed in the year 1958. The Act would not apply to the month of August, 1957. The Civil Court and not the Rent Controller would have jurisdiction in respect of such buildings. The First Appellate Court held that the appellant sought eviction before the Rent Controller on the ground that there was default in payment of rent. The date of construction of the building was not in question before the Rent Controller. The First Appellate Court came to the conclusion that the appellants suit was barred neither by res judicata nor by any principle of estoppel.12. It is indisputable that the Rent Controller could have no jurisdiction in respect of the building in question becaue of the date of construction of the building. The decree in the suit before the Rent Controller cannot be pleaded as res judicata because the Rent Controller would have no jurisdiction to try and decide not only a particular matter in the suit but also the subsequent suit in which the issue is raised. (See Gokul Mandar v. Pudmanund, (1902) 29 Ind App 196 (PC) ). Section 44 of the Evidence Act also supports the appellant to shows that the judgment in the suit before the Rent Controller is delivered by a Court not competent to deliver it. Want of jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. If there is want of jurisdiction the whole proceeding is coram non judice. The absence of a condition necessarily to found the jurisdiction to make an order or give a decision deprives the order or decision of any conclusive effect. (See Halsburys Laws of England, 3rd Ed. Vol.15 para 384).13. Abandonment of right is much more than waiver, acquiescence or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the responent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of Courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature.It implies a meeting of the minds. It is a nature of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not ones as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent.14. Just as the courts normally do not permit contracting out of the Acts so there can be no contracting in.A status of control of premises under the Rent Control Acts cannot be acquired either by estoppel or by res judicata. The principle is that neither estoppel nor res judicata can give the court jurisdiction under the Acts which those Acts say it is not to have. The Rent Control Acts operate in rem. These Acts give a status to the house from which certain legal consequences follow:15. In the present case, the building in question is beyond doubt outside the protection of Rent Control Acts. The foundation of the doctrine of estoppel is that the representation must be of existing facts and not of mere intention (See Dawsons Bank Ltd. v. Nippon M. K. Kaisha 62 Ind App 100 = (AIR 1935 PC 79 ). There must be a statement of fact and not a mere promise to do some thing in future.16. The appellant proved that the appellant made a mistake of fact in regard to the building being outside the mischief of the Act.The appellant instituted the suit before the Rent Controller in mistake about the underlying and fundamental fact that the building was outside the ambit of the Act. The Civil Court has jurisdiction in the subsequent suit which is the subject of this appeal. The appellant is not disentitled to any relief on the grounds of res judicata or estoppel or waiver. As one cannot confer jurisdiction by consent similarly one cannot by agreement waive exclusive jurisdiction of courts. The Civil Court and not the Rent Control Court possesses jurisdiction over the building in question.
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### Explanation:
The concurrent finding of the trial Court and the First Appellate Court is that the building was constructed in the year 1958. The Act would not apply to the month of August, 1957. The Civil Court and not the Rent Controller would have jurisdiction in respect of such buildings. The First Appellate Court held that the appellant sought eviction before the Rent Controller on the ground that there was default in payment of rent. The date of construction of the building was not in question before the Rent Controller. The First Appellate Court came to the conclusion that the appellants suit was barred neither by res judicata nor by any principle of estoppel.12. It is indisputable that the Rent Controller could have no jurisdiction in respect of the building in question becaue of the date of construction of the building. The decree in the suit before the Rent Controller cannot be pleaded as res judicata because the Rent Controller would have no jurisdiction to try and decide not only a particular matter in the suit but also the subsequent suit in which the issue is44 of the EvidenceIn the present case, the building in question is beyond doubt outside the protection of Rent Control Acts. The foundation of the doctrine of estoppel is that the representation must be of existing facts and not of mereThe appellant proved that the appellant made a mistake of fact in regard to the building being outside the mischief of the Act.The appellant instituted the suit before the Rent Controller in mistake about the underlying and fundamental fact that the building was outside the ambit of the Act. The Civil Court has jurisdiction in the subsequent suit which is the subject of this appeal. The appellant is not disentitled to any relief on the grounds of res judicata or estoppel or waiver. As one cannot confer jurisdiction by consent similarly one cannot by agreement waive exclusive jurisdiction of courts. The Civil Court and not the Rent Control Court possesses jurisdiction over the building in question.
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RAM CHANDRA SINGH Vs. RAJARAM | by the authority concerned. 8. It is also noticed that in the oral evidence, the appellant had stated that he had seen the photocopy of the driving licence of Shivgyani and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle. In his cross-examination by the insurer, the appellant stated thus: ……I have not sold the vehicle. Driver Shiv Gyani was working with me from February 2012. He was permanent resident of District – Fatehpur. I never got verified the driving licence of Shiv Gyani. ……… This was not in my knowledge that he has no driving licence. This is incorrect to say that I provided my vehicle to him to drive despite I was aware that he has bogus licence. I am aware of this that licence is issued on the address one resides. ……………This is incorrect to say that I am giving false evidence to save my skin. 9. The Tribunal while answering issue No.3, however, made no attempt to analyse the pleadings and evidence on record to ascertain whether the appellant (owner) was aware of the fake driving licence possessed by the driver (respondent No.6). The Tribunal merely adverted to the investigation and verification report and found that the stated driving licence was invalid. The High Court also made no attempt to enquire into the relevant aspect, as has been consistently expounded by this Court and restated in PEPSU Road Transport Corporation (supra). Even in the case of Premkumari (supra), the Court after considering the judicial precedents opined as follows: It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive. 10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru and Ors. , and then to the three-Judge Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh & Ors. . Paragraphs 99-101 of Swaran Singh (supra) have been extracted, which read thus: 99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case. 100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case. 101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. The Court then went on to advert to a two-Judge Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, before dealing with the facts of the case before it 11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer. 12. As aforementioned, in the present case, neither the Tribunal nor the High Court has bothered to analyse the pleadings and evidence adduced by the parties on the crucial matter. Be that as it may, in this appeal, the limited grievance of the appellant-owner of the vehicle is about unjustly absolving the insurer merely on the finding that the driving licence of the driver (respondent No.6) was fake. No other aspect has been raised by the appellant nor do we intend to analyse or consider the same. 13. We, therefore, deem it appropriate to relegate the parties before the High Court for fresh consideration of the appeal filed by the appellant (owner) only on the question of liability of the owner or of the insurer (respondent No.7) to pay the compensation amount. 14. We make it clear that the High Court shall not examine any other issue in the remand proceedings. For, the compensation amount, as determined and directed by the Tribunal, has already been made over to the claimants. | 1[ds]7. We have perused the entire pleadings and the evidence on record as also the judgments of the Tribunal and the High Court. It is noticed that the insurer had taken a specific plea in the written statement filed before the Tribunal, that the driving licence of the driver was not a valid licence. In the alternative, it was asserted that the owner of the vehicle must produce the driving licence so that it can be verified from the licencing authority. Additionally, the insurer placed on record an investigation report, verification report and photocopy of the driving licence to establish the fact that the driving licence relied upon by the owner and the driver was fake and not valid. For, it was authenticated that no such driving licence was issued by the authority concerned8. It is also noticed that in the oral evidence, the appellant had stated that he had seen the photocopy of the driving licence of Shivgyani and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle. In hisn by the insurer, the appellant stated thus:……I have not sold the vehicle. Driver Shiv Gyani was working with me from February 2012. He was permanent resident of District – Fatehpur. I never got verified the driving licence of Shiv Gyani. ……… This was not in my knowledge that he has no driving licence. This is incorrect to say that I provided my vehicle to him to drive despite I was aware that he has bogus licence. I am aware of this that licence is issued on the address one resides. ……………This is incorrect to say that I am giving false evidence to save my skin9. The Tribunal while answering issue No.3, however, made no attempt to analyse the pleadings and evidence on record to ascertain whether the appellant (owner) was aware of the fake driving licence possessed by the driver (respondent No.6). The Tribunal merely adverted to the investigation and verification report and found that the stated driving licence was invalid. The High Court also made no attempt to enquire into the relevant aspect, as has been consistently expounded by this Court and restated in PEPSU Road Transport Corporation (supra). Even in the case of Premkumari (supra), the Court after considering the judicial precedents opined as follows:It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru and Ors., and then to thee Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh &1 of Swaran Singh (supra) have been extracted, which read thus:99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driverThe Court then went on to advert to ae Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut,before dealing with the facts of the case before it11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer12. As aforementioned, in the present case, neither the Tribunal nor the High Court has bothered to analyse the pleadings and evidence adduced by the parties on the crucial matter. Be that as it may, in this appeal, the limited grievance of ther of the vehicle is about unjustly absolving the insurer merely on the finding that the driving licence of the driver (respondent No.6) was fake. No other aspect has been raised by the appellant nor do we intend to analyse or consider the same13. We, therefore, deem it appropriate to relegate the parties before the High Court for fresh consideration of the appeal filed by the appellant (owner) only on the question of liability of the owner or of the insurer (respondent No.7) to pay the compensation amount14. We make it clear that the High Court shall not examine any other issue in the remand proceedings. For, the compensation amount, as determined and directed by the Tribunal, has already been made over to the claimants. | 1 | 1,858 | 1,237 | ### Instruction:
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by the authority concerned. 8. It is also noticed that in the oral evidence, the appellant had stated that he had seen the photocopy of the driving licence of Shivgyani and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle. In his cross-examination by the insurer, the appellant stated thus: ……I have not sold the vehicle. Driver Shiv Gyani was working with me from February 2012. He was permanent resident of District – Fatehpur. I never got verified the driving licence of Shiv Gyani. ……… This was not in my knowledge that he has no driving licence. This is incorrect to say that I provided my vehicle to him to drive despite I was aware that he has bogus licence. I am aware of this that licence is issued on the address one resides. ……………This is incorrect to say that I am giving false evidence to save my skin. 9. The Tribunal while answering issue No.3, however, made no attempt to analyse the pleadings and evidence on record to ascertain whether the appellant (owner) was aware of the fake driving licence possessed by the driver (respondent No.6). The Tribunal merely adverted to the investigation and verification report and found that the stated driving licence was invalid. The High Court also made no attempt to enquire into the relevant aspect, as has been consistently expounded by this Court and restated in PEPSU Road Transport Corporation (supra). Even in the case of Premkumari (supra), the Court after considering the judicial precedents opined as follows: It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive. 10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru and Ors. , and then to the three-Judge Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh & Ors. . Paragraphs 99-101 of Swaran Singh (supra) have been extracted, which read thus: 99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case. 100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case. 101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. The Court then went on to advert to a two-Judge Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, before dealing with the facts of the case before it 11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer. 12. As aforementioned, in the present case, neither the Tribunal nor the High Court has bothered to analyse the pleadings and evidence adduced by the parties on the crucial matter. Be that as it may, in this appeal, the limited grievance of the appellant-owner of the vehicle is about unjustly absolving the insurer merely on the finding that the driving licence of the driver (respondent No.6) was fake. No other aspect has been raised by the appellant nor do we intend to analyse or consider the same. 13. We, therefore, deem it appropriate to relegate the parties before the High Court for fresh consideration of the appeal filed by the appellant (owner) only on the question of liability of the owner or of the insurer (respondent No.7) to pay the compensation amount. 14. We make it clear that the High Court shall not examine any other issue in the remand proceedings. For, the compensation amount, as determined and directed by the Tribunal, has already been made over to the claimants.
### Response:
1
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upon by the owner and the driver was fake and not valid. For, it was authenticated that no such driving licence was issued by the authority concerned8. It is also noticed that in the oral evidence, the appellant had stated that he had seen the photocopy of the driving licence of Shivgyani and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle. In hisn by the insurer, the appellant stated thus:……I have not sold the vehicle. Driver Shiv Gyani was working with me from February 2012. He was permanent resident of District – Fatehpur. I never got verified the driving licence of Shiv Gyani. ……… This was not in my knowledge that he has no driving licence. This is incorrect to say that I provided my vehicle to him to drive despite I was aware that he has bogus licence. I am aware of this that licence is issued on the address one resides. ……………This is incorrect to say that I am giving false evidence to save my skin9. The Tribunal while answering issue No.3, however, made no attempt to analyse the pleadings and evidence on record to ascertain whether the appellant (owner) was aware of the fake driving licence possessed by the driver (respondent No.6). The Tribunal merely adverted to the investigation and verification report and found that the stated driving licence was invalid. The High Court also made no attempt to enquire into the relevant aspect, as has been consistently expounded by this Court and restated in PEPSU Road Transport Corporation (supra). Even in the case of Premkumari (supra), the Court after considering the judicial precedents opined as follows:It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru and Ors., and then to thee Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh &1 of Swaran Singh (supra) have been extracted, which read thus:99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driverThe Court then went on to advert to ae Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut,before dealing with the facts of the case before it11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer12. As aforementioned, in the present case, neither the Tribunal nor the High Court has bothered to analyse the pleadings and evidence adduced by the parties on the crucial matter. Be that as it may, in this appeal, the limited grievance of ther of the vehicle is about unjustly absolving the insurer merely on the finding that the driving licence of the driver (respondent No.6) was fake. No other aspect has been raised by the appellant nor do we intend to analyse or consider the same13. We, therefore, deem it appropriate to relegate the parties before the High Court for fresh consideration of the appeal filed by the appellant (owner) only on the question of liability of the owner or of the insurer (respondent No.7) to pay the compensation amount14. We make it clear that the High Court shall not examine any other issue in the remand proceedings. For, the compensation amount, as determined and directed by the Tribunal, has already been made over to the claimants.
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United India Insurance Company Limited & Another Vs. Manubhai Dharmasinhbhai Gajera & Others | appellant was, therefore, permissible. APPLICATION OF LAW 57. Keeping in view the aforementioned legal principles, we may notice the fact of each case. 58. The insurer in SLP (C) No.9877entered into a contract of mediclaim insurance in 1990 for a sum of Rs.90,000/- from 1992 to 2002. He had been making payments of the premiums regularly. His policy had been renewed every year. It was also renewed for the period 4.10.2001 to 3.10.2002. The insureds wife, son and daughter-in-law have also entered into such policy since 1992. Their policies had also been renewed from time to time without any change in terms.59. On or about 9.9.2002, Respondent No.1 handed over a cheque for a sum of Rs.6,377/- by way of renewal of insurance policy. As no action thereon was taken, a reminder was sent. A legal notice was also issued. The legal notice was refused to be accepted by the Divisional Manager. In response thereto, only on 30.9.2002, the appellant stated that the policy would be renewed by loading of 300% premium. A sum of Rs.18,982 was deposited. A receipt acknowledging the sum of Rs.6,377/- was also issued. Despite issuance of the said sum, the policy was not renewed. Strangely enough, only on October 3, 2002, the appellant stated that the said policy could be renewed subject to exclusion of the diseases specified therein. It was in the aforementioned situation, the writ petition was filed.60. In SLP (C) No.10205 of 2004, the second respondent, who is a practicing consultant neurologist and physician since 1961, had taken mediclaim insurance for himself his wife and his family members since 1992-1993. He was diagnosed with Hypogamglobulinemias in August-September 1999. Despite the same, the policy was renewed. By a letter dated 26.7.2002, appellant informed him that his mediclaim policy which was to expire on 13.8.2002 would be renewed subject to the exclusion of the disease Septioemia with Hypogamglobulinemias and was advised that the next premium will be accepted after loading of 100% with 5% excess for each and every claim. It is at that juncture, the writ petition was filed.61. Respondent No.3 in SLP (C) No.10205 of 2004 had taken a mediclaim policy and accident insurance policy in 1988. By a letter dated 15.1.2002, the mediclaim policy for the year 2002-2003 was refused to be renewed and he was asked to renew his policy in another company. The policy was cancelled.62. We have noticed the judgment of the Gujarat High Court in each of these cases.63. First Respondent in SLP (C) No.1534 of 2006 approached the Delhi High Court when the joint mediclaim policy was refused to be renewed. His claim of Rs. 2,19,660/- which he had incurred for undergoing a bye-pass surgery in January 2003 was refused to be paid. He had obtained mediclaim policy in April, 1995. The same had been renewed. He had undergone Angioplasty in July 1998 and again in June 2001. He had undergone a bye-pass surgery in December 2002. Respondent No.1 tendered premium for renewal of the policy in April, 2003 which was declined on the ground of `high claim ratio in the last three years. 64. Each of the aforementioned cases clearly shows that the action on the part of the authorities of the appellant was highly arbitrary. Respondents though were not entitled to automatic renewal, but indisputably, they were entitled to be treated fairly. We have noticed hereinbefore some of the clauses contained in the prospectus as also the insurance policy. When a policy is cancelled, the conditions precedents therefor must be fulfilled. Some reasons therefor must be assigned. When an exclusion clause is resorted to, the terms thereof must be given effect to. What was necessary is a pre-existing disease when the cover was inspected for the first time. Only because the insured had started suffering from a disease, the same would not mean that the said disease shall be excluded. If the insured had made some claim in each year, the insurance company should not refuse to renew insurance policies only for that reason. The words `incepts for the first time as contained in clause 4.1 as also the words `continuous and without break if the renewal premium is paid in time, must be kept in mind as also the reasons for cancellation as contained in clause 7(1)(n) thereof.65. Renewal of a medi-claim policy subject to just exceptions should ordinarily be made. But the same does not mean that the renewal is automatic. Keeping in view the terms and conditions of the prospectus and the insurance policy, the parties are not required to go into all the formalities. The very fact that the policy contemplates terms for renewal, subject of course to payment of requisite premium, the same cannot be placed at par with a case of first contract.66. Having regard to the fact situation obtaining in each case, we are not inclined to exercise our discretionary jurisdiction under Article 136 of the Constitution of India. Before parting with this case, however, we would like to observe that keeping in view the role played by the insurance companies, it is essential that the Regulatory Authority must lay down clear guidelines by way of regulations or otherwise. No doubt, the regulations would be applicable to all the players in the field. The duties and functions of the Regulatory Authority, however, are to see that the service provider must render their services keeping in view the nature thereof. It will be appropriate if the Central Government or the General Insurance Companies also issue requisite circulars.67. Appellants before us being subsidiaries to General Insurance Corporation cannot ignore the statutory provisions. They are bound by the directions issued by the Central Government.68. We would request the IRDA to consider the matter in depth and undertake a scrutiny of such claims so that in the event it is found that the insurance companies are taking recourse to arbitrary methodologies in the matter of entering into contracts of insurance or renewal thereof, appropriate steps in that behalf may be taken. | 0[ds]42. A bare perusal of the said decision would show that the same was rendered in the context of contracts entered into between the State and its citizens pursuant to public auction of tenders or by negotiation. Respondents therein sought to get new term incorporated in the Contract on the specious plea of fairness. The said place was rightly rejected. The fact, however, remains that the ratio in Issac is not applicable to the fact of the present case not because the duty to act fairly on the part of a State has no application in the field of a contract but the same would not apply for the purpose of alterations or modifications of a term of contract.43. Existence of the jurisdiction of the Superior Court of India upon invoking Article 14 of the Constitution as also Section 23 of the Indian Contract Act to strike down a clause in the contract which the court feels to be unconscionable having regard to the equal bargaining power of the parties is not in question but the said provisions would have no application for the purpose of modifications, alterations or additions of a term in the contract. There cannot furthermore be any doubt whatsoever that each case must be considered on its own facts which would obviously lead to the conclusion that by reason thereof the Court shall not read into the contract an automatic renewal clause in a contract of insurance if there does not exist any.44. This brings us to the question of reading the prospectus into the contract of insurance. We do not find that the prospectus and contract of insurance speak on different terms. They seek to attain the same object. Clause 11 and 13 of the prospectus and clauses 5, 9 and other clauses lead to one conclusion that the policy is subject to renewal which is dependent upon the mutual consent of the parties. It is also evident that both the parties have the rights to cancel the insurance policy. If it is to be held otherwise, logical corollary would be that even the insured would not be at liberty not to discontinue the insurance policy. But herein we are not concerned with such a question.We are referring to the aforementioned provisions only with a view to show that whereas attempts are being made to strengthen the control over the insurance sector by creating new forums which would easily be accessible to the service recipient, the insurance companies having regard to the new policy of the Central Government, in general and under Section 24A of the 1972 Act in particular should not be allowed to make all attempts to frustrate the same. Whereas on the one hand we cannot forget the new market economy and the Foreign Direct Investment, we also cannot shut our eyes to the ground realities. There is a huge gap between the high sounded wants of the Government and the realities on the ground. It is essential that while on the one hand, the insurance companies are not put to undue burden keeping in view the changes in the statute as also the policy decisions of the Central Government, they cannot also be permitted to act wholly arbitrarily and unreasonably. They cannot be permitted to create a social condition, which would negate all human rights. We although would not place medicare and old age being the facets of human rights with abject poverty, but then the gap between the object on the statutes and the action on the part of the players on the field must be taken care of.Each of the aforementioned cases clearly shows that the action on the part of the authorities of the appellant was highly arbitrary. Respondents though were not entitled to automatic renewal, but indisputably, they were entitled to be treated fairly. We have noticed hereinbefore some of the clauses contained in the prospectus as also the insurance policy. When a policy is cancelled, the conditions precedents therefor must be fulfilled. Some reasons therefor must be assigned. When an exclusion clause is resorted to, the terms thereof must be given effect to. What was necessary is a pre-existing disease when the cover was inspected for the first time. Only because the insured had started suffering from a disease, the same would not mean that the said disease shall be excluded. If the insured had made some claim in each year, the insurance company should not refuse to renew insurance policies only for that reason. The words `incepts for the first time as contained in clause 4.1 as also the words `continuous and without break if the renewal premium is paid in time, must be kept in mind as also the reasons for cancellation as contained in clause 7(1)(n) thereof.65. Renewal of a medi-claim policy subject to just exceptions should ordinarily be made. But the same does not mean that the renewal is automatic. Keeping in view the terms and conditions of the prospectus and the insurance policy, the parties are not required to go into all the formalities. The very fact that the policy contemplates terms for renewal, subject of course to payment of requisite premium, the same cannot be placed at par with a case of first contract.66. Having regard to the fact situation obtaining in each case, we are not inclined to exercise our discretionary jurisdiction under Article 136 of the Constitution of India. Before parting with this case, however, we would like to observe that keeping in view the role played by the insurance companies, it is essential that the Regulatory Authority must lay down clear guidelines by way of regulations or otherwise. No doubt, the regulations would be applicable to all the players in the field. The duties and functions of the Regulatory Authority, however, are to see that the service provider must render their services keeping in view the nature thereof. It will be appropriate if the Central Government or the General Insurance Companies also issue requisite circulars.67. Appellants before us being subsidiaries to General Insurance Corporation cannot ignore the statutory provisions. They are bound by the directions issued by the Central Government.68. We would request the IRDA to consider the matter in depth and undertake a scrutiny of such claims so that in the event it is found that the insurance companies are taking recourse to arbitrary methodologies in the matter of entering into contracts of insurance or renewal thereof, appropriate steps in that behalf may be taken. | 0 | 11,725 | 1,168 | ### 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:
appellant was, therefore, permissible. APPLICATION OF LAW 57. Keeping in view the aforementioned legal principles, we may notice the fact of each case. 58. The insurer in SLP (C) No.9877entered into a contract of mediclaim insurance in 1990 for a sum of Rs.90,000/- from 1992 to 2002. He had been making payments of the premiums regularly. His policy had been renewed every year. It was also renewed for the period 4.10.2001 to 3.10.2002. The insureds wife, son and daughter-in-law have also entered into such policy since 1992. Their policies had also been renewed from time to time without any change in terms.59. On or about 9.9.2002, Respondent No.1 handed over a cheque for a sum of Rs.6,377/- by way of renewal of insurance policy. As no action thereon was taken, a reminder was sent. A legal notice was also issued. The legal notice was refused to be accepted by the Divisional Manager. In response thereto, only on 30.9.2002, the appellant stated that the policy would be renewed by loading of 300% premium. A sum of Rs.18,982 was deposited. A receipt acknowledging the sum of Rs.6,377/- was also issued. Despite issuance of the said sum, the policy was not renewed. Strangely enough, only on October 3, 2002, the appellant stated that the said policy could be renewed subject to exclusion of the diseases specified therein. It was in the aforementioned situation, the writ petition was filed.60. In SLP (C) No.10205 of 2004, the second respondent, who is a practicing consultant neurologist and physician since 1961, had taken mediclaim insurance for himself his wife and his family members since 1992-1993. He was diagnosed with Hypogamglobulinemias in August-September 1999. Despite the same, the policy was renewed. By a letter dated 26.7.2002, appellant informed him that his mediclaim policy which was to expire on 13.8.2002 would be renewed subject to the exclusion of the disease Septioemia with Hypogamglobulinemias and was advised that the next premium will be accepted after loading of 100% with 5% excess for each and every claim. It is at that juncture, the writ petition was filed.61. Respondent No.3 in SLP (C) No.10205 of 2004 had taken a mediclaim policy and accident insurance policy in 1988. By a letter dated 15.1.2002, the mediclaim policy for the year 2002-2003 was refused to be renewed and he was asked to renew his policy in another company. The policy was cancelled.62. We have noticed the judgment of the Gujarat High Court in each of these cases.63. First Respondent in SLP (C) No.1534 of 2006 approached the Delhi High Court when the joint mediclaim policy was refused to be renewed. His claim of Rs. 2,19,660/- which he had incurred for undergoing a bye-pass surgery in January 2003 was refused to be paid. He had obtained mediclaim policy in April, 1995. The same had been renewed. He had undergone Angioplasty in July 1998 and again in June 2001. He had undergone a bye-pass surgery in December 2002. Respondent No.1 tendered premium for renewal of the policy in April, 2003 which was declined on the ground of `high claim ratio in the last three years. 64. Each of the aforementioned cases clearly shows that the action on the part of the authorities of the appellant was highly arbitrary. Respondents though were not entitled to automatic renewal, but indisputably, they were entitled to be treated fairly. We have noticed hereinbefore some of the clauses contained in the prospectus as also the insurance policy. When a policy is cancelled, the conditions precedents therefor must be fulfilled. Some reasons therefor must be assigned. When an exclusion clause is resorted to, the terms thereof must be given effect to. What was necessary is a pre-existing disease when the cover was inspected for the first time. Only because the insured had started suffering from a disease, the same would not mean that the said disease shall be excluded. If the insured had made some claim in each year, the insurance company should not refuse to renew insurance policies only for that reason. The words `incepts for the first time as contained in clause 4.1 as also the words `continuous and without break if the renewal premium is paid in time, must be kept in mind as also the reasons for cancellation as contained in clause 7(1)(n) thereof.65. Renewal of a medi-claim policy subject to just exceptions should ordinarily be made. But the same does not mean that the renewal is automatic. Keeping in view the terms and conditions of the prospectus and the insurance policy, the parties are not required to go into all the formalities. The very fact that the policy contemplates terms for renewal, subject of course to payment of requisite premium, the same cannot be placed at par with a case of first contract.66. Having regard to the fact situation obtaining in each case, we are not inclined to exercise our discretionary jurisdiction under Article 136 of the Constitution of India. Before parting with this case, however, we would like to observe that keeping in view the role played by the insurance companies, it is essential that the Regulatory Authority must lay down clear guidelines by way of regulations or otherwise. No doubt, the regulations would be applicable to all the players in the field. The duties and functions of the Regulatory Authority, however, are to see that the service provider must render their services keeping in view the nature thereof. It will be appropriate if the Central Government or the General Insurance Companies also issue requisite circulars.67. Appellants before us being subsidiaries to General Insurance Corporation cannot ignore the statutory provisions. They are bound by the directions issued by the Central Government.68. We would request the IRDA to consider the matter in depth and undertake a scrutiny of such claims so that in the event it is found that the insurance companies are taking recourse to arbitrary methodologies in the matter of entering into contracts of insurance or renewal thereof, appropriate steps in that behalf may be taken.
### Response:
0
### Explanation:
not because the duty to act fairly on the part of a State has no application in the field of a contract but the same would not apply for the purpose of alterations or modifications of a term of contract.43. Existence of the jurisdiction of the Superior Court of India upon invoking Article 14 of the Constitution as also Section 23 of the Indian Contract Act to strike down a clause in the contract which the court feels to be unconscionable having regard to the equal bargaining power of the parties is not in question but the said provisions would have no application for the purpose of modifications, alterations or additions of a term in the contract. There cannot furthermore be any doubt whatsoever that each case must be considered on its own facts which would obviously lead to the conclusion that by reason thereof the Court shall not read into the contract an automatic renewal clause in a contract of insurance if there does not exist any.44. This brings us to the question of reading the prospectus into the contract of insurance. We do not find that the prospectus and contract of insurance speak on different terms. They seek to attain the same object. Clause 11 and 13 of the prospectus and clauses 5, 9 and other clauses lead to one conclusion that the policy is subject to renewal which is dependent upon the mutual consent of the parties. It is also evident that both the parties have the rights to cancel the insurance policy. If it is to be held otherwise, logical corollary would be that even the insured would not be at liberty not to discontinue the insurance policy. But herein we are not concerned with such a question.We are referring to the aforementioned provisions only with a view to show that whereas attempts are being made to strengthen the control over the insurance sector by creating new forums which would easily be accessible to the service recipient, the insurance companies having regard to the new policy of the Central Government, in general and under Section 24A of the 1972 Act in particular should not be allowed to make all attempts to frustrate the same. Whereas on the one hand we cannot forget the new market economy and the Foreign Direct Investment, we also cannot shut our eyes to the ground realities. There is a huge gap between the high sounded wants of the Government and the realities on the ground. It is essential that while on the one hand, the insurance companies are not put to undue burden keeping in view the changes in the statute as also the policy decisions of the Central Government, they cannot also be permitted to act wholly arbitrarily and unreasonably. They cannot be permitted to create a social condition, which would negate all human rights. We although would not place medicare and old age being the facets of human rights with abject poverty, but then the gap between the object on the statutes and the action on the part of the players on the field must be taken care of.Each of the aforementioned cases clearly shows that the action on the part of the authorities of the appellant was highly arbitrary. Respondents though were not entitled to automatic renewal, but indisputably, they were entitled to be treated fairly. We have noticed hereinbefore some of the clauses contained in the prospectus as also the insurance policy. When a policy is cancelled, the conditions precedents therefor must be fulfilled. Some reasons therefor must be assigned. When an exclusion clause is resorted to, the terms thereof must be given effect to. What was necessary is a pre-existing disease when the cover was inspected for the first time. Only because the insured had started suffering from a disease, the same would not mean that the said disease shall be excluded. If the insured had made some claim in each year, the insurance company should not refuse to renew insurance policies only for that reason. The words `incepts for the first time as contained in clause 4.1 as also the words `continuous and without break if the renewal premium is paid in time, must be kept in mind as also the reasons for cancellation as contained in clause 7(1)(n) thereof.65. Renewal of a medi-claim policy subject to just exceptions should ordinarily be made. But the same does not mean that the renewal is automatic. Keeping in view the terms and conditions of the prospectus and the insurance policy, the parties are not required to go into all the formalities. The very fact that the policy contemplates terms for renewal, subject of course to payment of requisite premium, the same cannot be placed at par with a case of first contract.66. Having regard to the fact situation obtaining in each case, we are not inclined to exercise our discretionary jurisdiction under Article 136 of the Constitution of India. Before parting with this case, however, we would like to observe that keeping in view the role played by the insurance companies, it is essential that the Regulatory Authority must lay down clear guidelines by way of regulations or otherwise. No doubt, the regulations would be applicable to all the players in the field. The duties and functions of the Regulatory Authority, however, are to see that the service provider must render their services keeping in view the nature thereof. It will be appropriate if the Central Government or the General Insurance Companies also issue requisite circulars.67. Appellants before us being subsidiaries to General Insurance Corporation cannot ignore the statutory provisions. They are bound by the directions issued by the Central Government.68. We would request the IRDA to consider the matter in depth and undertake a scrutiny of such claims so that in the event it is found that the insurance companies are taking recourse to arbitrary methodologies in the matter of entering into contracts of insurance or renewal thereof, appropriate steps in that behalf may be taken.
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M/S GEO MILLER & CO.PVT.LTD Vs. CHAIRMAN, RAJASTHAN VIDYUT UTPADAN NIGAM LTD | It is relevant to note that the findings in Hari Shankar Singhania were made in the specific context of a family settlement. This Court specifically observed that such a settlement is to be treated differently from a formal commercial settlement, and that efforts should be made to promote family settlements without the obstruction of technicalities of limitation, etc. Hence this Court was not dealing with a mercantile dispute such as in the present case. In Shree Ram Mills Ltd (supra), this Court found that the parties were continuously at loggerheads over joint development of certain land. They had entered into a Memorandum of Understanding to settle their dispute, however the respondent cancelled this Memorandum; hence the dispute was referred to arbitration under Section 11(6) of the 1996 Act. This Court, upon considering the complete history of negotiation between the parties which was placed before it, on the facts of that case, concluded that the claim would not be barred by limitation as there was a continuing cause of action between the parties. Having perused through the relevant precedents, we agree that on a certain set of facts and circumstances, the period during which the parties were bona fide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation for reference to arbitration under the 1996 Act. However, in such cases the entire negotiation history between the parties must be specifically pleaded and placed on the record. The Court upon careful consideration of such history must find out what was the breaking point at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This breaking point would then be treated as the date on which the cause of action arises, for the purpose of limitation. The threshold for determining when such a point arises will be lower in the case of commercial disputes, where the partys primary interest is in securing the payment due to them, than in family disputes where it may be said that the parties have a greater stake in settling the dispute amicably, and therefore delaying formal adjudication of the claim. Moreover, in a commercial dispute, while mere failure to pay may not give rise to a cause of action, once the applicant has asserted their claim and the respondent fails to respond to such claim, such failure will be treated as a denial of the applicants claim giving rise to a dispute, and therefore the cause of action for reference to arbitration. It does not lie to the applicant to plead that waited for an unreasonably long period to refer the dispute to arbitration merely on account of the respondents failure to settle their claim and because they were writing representations and reminders to the respondent in the meanwhile. 11. We are of the considered opinion that the decisions in Hari Shankar Singhania and Shree Ram Mills Ltd. (supra) will not be applicable to the appellants case as in these cases the entire negotiation history of the parties had been made available to this Court. In the present case, the appellant company vaguely stated before this Court that it was involved in negotiation with the respondents in the 14 years preceding the application dated 4.10.1997 before the Settlement Committee. However it did not place on record any evidence to show when it had first made a representation to the respondent in respect of the outstanding amounts, and what was the history of their negotiation with the respondents such that it was only in 1997 that they thought of approaching the Settlement Committee. Further, they have not brought anything on record to show that they were required to proceed before the Settlement Committee before requesting the appointment of an arbitrator. The arbitration clause does not stipulate any such requirement. We therefore find that the appellant companys case has a certain element of mala fide in so far as it has made detailed submissions in respect of its communications with the respondents subsequent to 4.10.1997, but has remained conspicuously silent on the specific actions taken to recover the payments due prior to that date. Under Section 114(g) of the Indian Evidence Act, 1872 this Court can presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Hence, in the absence of specific pleadings and evidence placed on record by the appellant with respect to the parties negotiation history, this Court cannot accept the appellants contention that it was only after the respondents letter dated 18.12.1999 that the appellant could have contemplated arbitration in relation to the outstanding amounts. Even if we were to include the time spent proceeding before the Settlement Committee, the limitation period, at the latest, would have started running from 4.10.1997 which is when the appellant made a representation to the Settlement Committee and the Committee failed to respond to the same. It is further relevant to note that even the respondents letter dated 18.12.1999 does not completely repudiate the appellants claims but requests the submission of certain documents for verification. Hence it was not so radical a departure from the prevailing situation at that time so as to give a finding that the appellant could not have contemplated arbitration prior to the aforesaid letter. We also find it pertinent to add that the appellants own default in sleeping over his right for 14 years will not constitute a case of undue hardship justifying extension of time under Section 43(3) of the 1996 Act or show sufficient cause for condonation of delay under Section 5 of the Limitation Act. The appellant should have approached the Court for appointment of an arbitrator under Section 8(2) of the 1940 Act within the appropriate limitation period. We agree with the High Courts observation that the entire dispute seems concocted so as to pursue a monetary claim against the respondents, taking advantage of the provisions of the 1996 Act. | 0[ds]It is settled law that the date of commencement of arbitration proceedings for the purpose of deciding which Act applies, upon a conjoint reading of Sections 21 and Section 85(2)(a) of the 1996 Act, shall be regarded as the date on which notice was served to the other party requesting appointment of an arbitrator (See Milkfood Ltd. v. GMC Ice Cream (P) Ltd, (2004) 7 SCC 288 ; Shettys Constructions Co. Pvt. Ltd. v. Konkan Railway Construction and Another, (1998) 5 SCC 599 )Though strictly speaking the 1996 Act came into force from 22.8.1996, for all practical purposes it is deemed to have been effective from 25.1.1996, which is when the Arbitration and Conciliation Ordinance, 1996 came into force. Hence if the date of notice was prior to 25.1.1996, the 1940 Act will apply. If the date of notice was on or after 25.1.1996, the 1996 Act will apply to the arbitral proceedings though the arbitration clause contemplated proceedings under the 1940 Act (See Fuerst Day Lawson Ltd v. Jindal Exports Ltd., (2001) 6 SCC 356 : O.P. Malhotra on The Law and Practice of Arbitration, Justice Indu Malhotra ed., 3 rd . edn, 2014 at page 1915). In Milkfood Ltd (supra) as well, the arbitration agreement was governed by the provisions of the 1940 Act. The appellant sent a notice to the respondent for appointment of an arbitrator on 14.9.1995. Hence this Court held that the 1940 Act would applyIn the present case, since notice was served to the respondent in 2002, the provisions of the 1996 Act will be deemed to apply to the present Arbitration Applications filed by the appellantWe also find the decision in Panchu Gopal Bose (supra) relevant for the purpose of this case. This was a case similar to the present set of facts, where the petitioner sent bills to the respondent in 1979, but payment was not made. After an interval of a decade, he sent a notice to the respondent in 1989 for reference to arbitration. This Court in Panchu Gopal Bose observed that in mercantile references of this kind, it is implied that the arbitrator must decide the dispute according to the existing law of contract, and every defence which would have been open to the parties in a court of law, such as the plea of limitation, would be open to the parties for the arbitrators decision as well. Otherwise, as this Court observed:8…a claim for breach of contract containing a reference clause could be brought at any time, it might be 20 or 30 years after the cause of action had arisen, although the legislature has prescribed a limit of three years for the enforcement of such a claim in any application that might be made to the law courts…This Court further held as follows:11. Therefore, the period of limitation for the commencement of arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Just as in the case of civil actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accruedTherefore in Panchu Gopal Bose this Court held that the claim is hopelessly barred by limitation as the petitioner by his own conduct had slept over his right for more than 10 years8. Undoubtedly, a different scheme has been evolved under the 1996 Act. However we find that the same principles continue to apply with respect to the applicability of the law of limitation to an application under Section 11(6) of the 1996 Act as laid down in the decisions dealing with judicial appointment of an arbitrator under Sections 8 and 20 of the 1940 ActOur finding is supported by the decision of a three¬Judge Bench of this Court in Grasim Industries (supra). In Grasim Industries, similar to the present case, the arbitration agreement provided for reference to be made under the 1940 Act. However the appellant raised their claim in 2002, attracting the application of the 1996 Act. This Court was therefore faced with the issue of whether an application for appointment of an arbitrator under the 1996 Act would be barred by limitation in respect of the appellants claim. This Court found that, in view of Section 28 of the Indian Contract Act, 1872, the parties in the arbitration agreement could not stipulate a restricted period for raising a claim. However, the limitation period for invocation of arbitration would be three years from the date of the cause of action under Article 137 of the Limitation Act, 1963. However in the facts of that case, this Court found that certain claims had arisen within the three year limitation period and hence, could be allowedApplying the aforementioned principles to the present case, we find ourselves in agreement with the finding of the High Court that the appellants cause of action in respect of Arbitration Applications Nos. 25/2003 and 27/2003, relating to the work orders dated 7.10.1979 and 4.4.1980 arose on 8.2.1983, which is when the final bill handed over to the respondent became due. Mere correspondence of the appellant by way of writing letters/reminders to the respondent subsequent to this date would not extend the time of limitation. Hence the maximum period during which this Court could have allowed the appellants application for appointment of an arbitrator is 3 years from the date on which cause of action arose i.e. 8.2.1986. Similarly, with respect to Arbitration Application Nos. 28/2003 relating to the work order dated 3.5.1985, the respondent has stated that final bill was handed over and became due on 10.8.1989. This has not been disputed by the appellant. Hence the limitation period ended on 10.8.1992Since the appellant served notice for appointment of arbitrator in 2002, and requested the appointment of an arbitrator before a Court only by the end of 2003, his claim is clearly barred by limitation9. The decisions relied upon by the appellant are inapplicable to the present facts and circumstances. At the outset, we observe that the decision in Sunder Kukreja (supra) is on a different set of facts. In that decision, the question before this Court was whether the arbitration clause in a partnership deed would continue to subsist in light of a subsequent retirement deed which the appellant denied executing, and whether the arbitrator appointed by the Court could examine the genuineness of the said retirement deed. Hence it is not relevant to the issue of limitationTurning to the other decisions, it is true that in Major (Retd.) Inder Singh Rekhi (supra), this Court observed that the existence of a dispute is essential for appointment of an arbitrator. A dispute arises when a claim is asserted by one party and denied by the other. The term dispute entails a positive element and mere inaction to pay does not lead to the inference that dispute exists. In that case, since the respondent failed to finalise the bills due to the applicant, this Court held that cause of action would be treated as arising not from the date on which the payment became due, but on the date when the applicant first wrote to the respondent requesting finalisation of the bills. However, the Court also expressly observed that a party cannot postpone the accrual of cause of action by writing reminders or sending remindersIn the present case, the appellant has not disputed the High Courts finding that the appellant itself had handed over the final bill to the respondent on 8.2.1983. Hence, the holding in Major (Retd.) Inder Singh Rekhi (supra) will not apply, as in that case, the applicants claim was delayed on account of the respondents failure to finalize the bills. Therefore the right to apply in the present case accrued from the date on which the final bill was raised (See Union of India v. Momin Construction Company, (1997) 9 SCC 97 )Having perused through the relevant precedents, we agree that on a certain set of facts and circumstances, the period during which the parties were bona fide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation for reference to arbitration under the 1996 Act. However, in such cases the entire negotiation history between the parties must be specifically pleaded and placed on the record. The Court upon careful consideration of such history must find out what was the breaking point at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This breaking point would then be treated as the date on which the cause of action arises, for the purpose of limitation. The threshold for determining when such a point arises will be lower in the case of commercial disputes, where the partys primary interest is in securing the payment due to them, than in family disputes where it may be said that the parties have a greater stake in settling the dispute amicably, and therefore delaying formal adjudication of the claimMoreover, in a commercial dispute, while mere failure to pay may not give rise to a cause of action, once the applicant has asserted their claim and the respondent fails to respond to such claim, such failure will be treated as a denial of the applicants claim giving rise to a dispute, and therefore the cause of action for reference to arbitration. It does not lie to the applicant to plead that waited for an unreasonably long period to refer the dispute to arbitration merely on account of the respondents failure to settle their claim and because they were writing representations and reminders to the respondent in the meanwhile11. We are of the considered opinion that the decisions in Hari Shankar Singhania and Shree Ram Mills Ltd. (supra) will not be applicable to the appellants case as in these cases the entire negotiation history of the parties had been made available to this Court. In the present case, the appellant company vaguely stated before this Court that it was involved in negotiation with the respondents in the 14 years preceding the application dated 4.10.1997 before the Settlement Committee. However it did not place on record any evidence to show when it had first made a representation to the respondent in respect of the outstanding amounts, and what was the history of their negotiation with the respondents such that it was only in 1997 that they thought of approaching the Settlement Committee. Further, they have not brought anything on record to show that they were required to proceed before the Settlement Committee before requesting the appointment of an arbitrator. The arbitration clause does not stipulate any such requirementWe therefore find that the appellant companys case has a certain element of mala fide in so far as it has made detailed submissions in respect of its communications with the respondents subsequent to 4.10.1997, but has remained conspicuously silent on the specific actions taken to recover the payments due prior to that date. Under Section 114(g) of the Indian Evidence Act, 1872 this Court can presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds itHence, in the absence of specific pleadings and evidence placed on record by the appellant with respect to the parties negotiation history, this Court cannot accept the appellants contention that it was only after the respondents letter dated 18.12.1999 that the appellant could have contemplated arbitration in relation to the outstanding amounts. Even if we were to include the time spent proceeding before the Settlement Committee, the limitation period, at the latest, would have started running from 4.10.1997 which is when the appellant made a representation to the Settlement Committee and the Committee failed to respond to the sameIt is further relevant to note that even the respondents letter dated 18.12.1999 does not completely repudiate the appellants claims but requests the submission of certain documents for verification. Hence it was not so radical a departure from the prevailing situation at that time so as to give a finding that the appellant could not have contemplated arbitration prior to the aforesaid letterWe also find it pertinent to add that the appellants own default in sleeping over his right for 14 years will not constitute a case of undue hardship justifying extension of time under Section 43(3) of the 1996 Act or show sufficient cause for condonation of delay under Section 5 of the Limitation Act. The appellant should have approached the Court for appointment of an arbitrator under Section 8(2) of the 1940 Act within the appropriate limitation period. We agree with the High Courts observation that the entire dispute seems concocted so as to pursue a monetary claim against the respondents, taking advantage of the provisions of the 1996 Act. | 0 | 4,545 | 2,373 | ### Instruction:
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It is relevant to note that the findings in Hari Shankar Singhania were made in the specific context of a family settlement. This Court specifically observed that such a settlement is to be treated differently from a formal commercial settlement, and that efforts should be made to promote family settlements without the obstruction of technicalities of limitation, etc. Hence this Court was not dealing with a mercantile dispute such as in the present case. In Shree Ram Mills Ltd (supra), this Court found that the parties were continuously at loggerheads over joint development of certain land. They had entered into a Memorandum of Understanding to settle their dispute, however the respondent cancelled this Memorandum; hence the dispute was referred to arbitration under Section 11(6) of the 1996 Act. This Court, upon considering the complete history of negotiation between the parties which was placed before it, on the facts of that case, concluded that the claim would not be barred by limitation as there was a continuing cause of action between the parties. Having perused through the relevant precedents, we agree that on a certain set of facts and circumstances, the period during which the parties were bona fide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation for reference to arbitration under the 1996 Act. However, in such cases the entire negotiation history between the parties must be specifically pleaded and placed on the record. The Court upon careful consideration of such history must find out what was the breaking point at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This breaking point would then be treated as the date on which the cause of action arises, for the purpose of limitation. The threshold for determining when such a point arises will be lower in the case of commercial disputes, where the partys primary interest is in securing the payment due to them, than in family disputes where it may be said that the parties have a greater stake in settling the dispute amicably, and therefore delaying formal adjudication of the claim. Moreover, in a commercial dispute, while mere failure to pay may not give rise to a cause of action, once the applicant has asserted their claim and the respondent fails to respond to such claim, such failure will be treated as a denial of the applicants claim giving rise to a dispute, and therefore the cause of action for reference to arbitration. It does not lie to the applicant to plead that waited for an unreasonably long period to refer the dispute to arbitration merely on account of the respondents failure to settle their claim and because they were writing representations and reminders to the respondent in the meanwhile. 11. We are of the considered opinion that the decisions in Hari Shankar Singhania and Shree Ram Mills Ltd. (supra) will not be applicable to the appellants case as in these cases the entire negotiation history of the parties had been made available to this Court. In the present case, the appellant company vaguely stated before this Court that it was involved in negotiation with the respondents in the 14 years preceding the application dated 4.10.1997 before the Settlement Committee. However it did not place on record any evidence to show when it had first made a representation to the respondent in respect of the outstanding amounts, and what was the history of their negotiation with the respondents such that it was only in 1997 that they thought of approaching the Settlement Committee. Further, they have not brought anything on record to show that they were required to proceed before the Settlement Committee before requesting the appointment of an arbitrator. The arbitration clause does not stipulate any such requirement. We therefore find that the appellant companys case has a certain element of mala fide in so far as it has made detailed submissions in respect of its communications with the respondents subsequent to 4.10.1997, but has remained conspicuously silent on the specific actions taken to recover the payments due prior to that date. Under Section 114(g) of the Indian Evidence Act, 1872 this Court can presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Hence, in the absence of specific pleadings and evidence placed on record by the appellant with respect to the parties negotiation history, this Court cannot accept the appellants contention that it was only after the respondents letter dated 18.12.1999 that the appellant could have contemplated arbitration in relation to the outstanding amounts. Even if we were to include the time spent proceeding before the Settlement Committee, the limitation period, at the latest, would have started running from 4.10.1997 which is when the appellant made a representation to the Settlement Committee and the Committee failed to respond to the same. It is further relevant to note that even the respondents letter dated 18.12.1999 does not completely repudiate the appellants claims but requests the submission of certain documents for verification. Hence it was not so radical a departure from the prevailing situation at that time so as to give a finding that the appellant could not have contemplated arbitration prior to the aforesaid letter. We also find it pertinent to add that the appellants own default in sleeping over his right for 14 years will not constitute a case of undue hardship justifying extension of time under Section 43(3) of the 1996 Act or show sufficient cause for condonation of delay under Section 5 of the Limitation Act. The appellant should have approached the Court for appointment of an arbitrator under Section 8(2) of the 1940 Act within the appropriate limitation period. We agree with the High Courts observation that the entire dispute seems concocted so as to pursue a monetary claim against the respondents, taking advantage of the provisions of the 1996 Act.
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pay does not lead to the inference that dispute exists. In that case, since the respondent failed to finalise the bills due to the applicant, this Court held that cause of action would be treated as arising not from the date on which the payment became due, but on the date when the applicant first wrote to the respondent requesting finalisation of the bills. However, the Court also expressly observed that a party cannot postpone the accrual of cause of action by writing reminders or sending remindersIn the present case, the appellant has not disputed the High Courts finding that the appellant itself had handed over the final bill to the respondent on 8.2.1983. Hence, the holding in Major (Retd.) Inder Singh Rekhi (supra) will not apply, as in that case, the applicants claim was delayed on account of the respondents failure to finalize the bills. Therefore the right to apply in the present case accrued from the date on which the final bill was raised (See Union of India v. Momin Construction Company, (1997) 9 SCC 97 )Having perused through the relevant precedents, we agree that on a certain set of facts and circumstances, the period during which the parties were bona fide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation for reference to arbitration under the 1996 Act. However, in such cases the entire negotiation history between the parties must be specifically pleaded and placed on the record. The Court upon careful consideration of such history must find out what was the breaking point at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This breaking point would then be treated as the date on which the cause of action arises, for the purpose of limitation. The threshold for determining when such a point arises will be lower in the case of commercial disputes, where the partys primary interest is in securing the payment due to them, than in family disputes where it may be said that the parties have a greater stake in settling the dispute amicably, and therefore delaying formal adjudication of the claimMoreover, in a commercial dispute, while mere failure to pay may not give rise to a cause of action, once the applicant has asserted their claim and the respondent fails to respond to such claim, such failure will be treated as a denial of the applicants claim giving rise to a dispute, and therefore the cause of action for reference to arbitration. It does not lie to the applicant to plead that waited for an unreasonably long period to refer the dispute to arbitration merely on account of the respondents failure to settle their claim and because they were writing representations and reminders to the respondent in the meanwhile11. We are of the considered opinion that the decisions in Hari Shankar Singhania and Shree Ram Mills Ltd. (supra) will not be applicable to the appellants case as in these cases the entire negotiation history of the parties had been made available to this Court. In the present case, the appellant company vaguely stated before this Court that it was involved in negotiation with the respondents in the 14 years preceding the application dated 4.10.1997 before the Settlement Committee. However it did not place on record any evidence to show when it had first made a representation to the respondent in respect of the outstanding amounts, and what was the history of their negotiation with the respondents such that it was only in 1997 that they thought of approaching the Settlement Committee. Further, they have not brought anything on record to show that they were required to proceed before the Settlement Committee before requesting the appointment of an arbitrator. The arbitration clause does not stipulate any such requirementWe therefore find that the appellant companys case has a certain element of mala fide in so far as it has made detailed submissions in respect of its communications with the respondents subsequent to 4.10.1997, but has remained conspicuously silent on the specific actions taken to recover the payments due prior to that date. Under Section 114(g) of the Indian Evidence Act, 1872 this Court can presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds itHence, in the absence of specific pleadings and evidence placed on record by the appellant with respect to the parties negotiation history, this Court cannot accept the appellants contention that it was only after the respondents letter dated 18.12.1999 that the appellant could have contemplated arbitration in relation to the outstanding amounts. Even if we were to include the time spent proceeding before the Settlement Committee, the limitation period, at the latest, would have started running from 4.10.1997 which is when the appellant made a representation to the Settlement Committee and the Committee failed to respond to the sameIt is further relevant to note that even the respondents letter dated 18.12.1999 does not completely repudiate the appellants claims but requests the submission of certain documents for verification. Hence it was not so radical a departure from the prevailing situation at that time so as to give a finding that the appellant could not have contemplated arbitration prior to the aforesaid letterWe also find it pertinent to add that the appellants own default in sleeping over his right for 14 years will not constitute a case of undue hardship justifying extension of time under Section 43(3) of the 1996 Act or show sufficient cause for condonation of delay under Section 5 of the Limitation Act. The appellant should have approached the Court for appointment of an arbitrator under Section 8(2) of the 1940 Act within the appropriate limitation period. We agree with the High Courts observation that the entire dispute seems concocted so as to pursue a monetary claim against the respondents, taking advantage of the provisions of the 1996 Act.
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Prs Permacel Private Limited Vs. Johnson & Johnson Employees Union (Permacel Division) & Others | of caution here that if a worker or the union pleads/furnishes even a slightest explanation for delay in submitting his/its request to the appropriate Government for reference of his/its dispute to a Labour Court or the Industrial Tribunal then the appropriate government shall leave the determination of the question of belatedness to the labour Court or the Industrial Tribunal. It will then be the province of the Labour Court or the Industrial Tribunal to decide the question of reasonable delay in filing the application after taking into consideration the relevant material placed before it. Now we come to the individual cases.""37. It is a social welfare legislation and, in view of the above enunciated principle of law essentially should receive an interpretation which would help in achieving the object of the statute that is protecting the workman against exploitation and prolonged litigation.""38. It will be appropriate to conclude that the dimensions of the powers vested in the appropriate Government under Section 10(1)(c) of the Act are wide which require proper application of mind in consonance with the above enunciated principles but in no way the appropriate Government could usurp or abdicate to itself the powers of determination which are exclusively vested on the Labour Court/Tribunal. Long delays by itself may not be sufficient to deny the reference requested for by the workman unless it is so seriously prejudicial to the other party as to permit the workman to take undue advantage of his own conduct or the dispute is so belated and stale that in the eyes of law it has extinguished or lost its substance."13. The reliance is placed upon the case of National Engineering Company Ltd. by the learned counsel appearing for the petitioner does not really forward the case of the petitioner. The High Court has the jurisdiction to entertain a writ petition but this jurisdiction normally would not be used where the matter can appropriately be adjudicated upon by the Labour or Industrial Courts as the case may be. There is no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and Johnson & Johnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite production target.14. What is the effect of the orders passed by the courts, in previous litigation, can safely be considered by the Labour Court while adjudicating the reference made to it by the appropriate Government vide order dated 22nd June, 2007. The dispute referred has two facets. Firstly, with regard to the alleged lock out being illegal and secondly, the rights of the workmen to perform their duties without insisting upon the alleged undertaking as a condition precedent for performance of substitutes and resultantly, the wages and salaries which the workmen are entitled to. The reference made by the Government is so wide that the parties can safely adduced appropriate evidence to substantiate their respective trends, determination of which without such evidence is hardly possible. The exercise of jurisdiction by the appropriate Government, the parties could not have been asked to produce documentary and oral evidence. The controversies raised in the present writ petition are of such nature that it will not be just and fair to pronounce upon them without affording opportunities to the parties to lead evidence. In fact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. The petitioner-company has also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India.In fact, in Wyeth Employees Union v. M/s. Araine Orgachem Pvt.Ltd. And others, 2007 (1) CLR 315 , this court had directed the appropriate Government to consider making of a reference which it had felt on the ground that the workmen having taken the benefit of the various documents their existed no relationship of employer-employees between the parties. The workmen had taken up the ground of fraud and they were coerced into signing the scheme. It was held that the Government has to form an opinion as to the existence of employer-employee relationship and whether the dispute exists or is apprehended. Thus, the jurisdiction of the appropriate Government has limited scope. Of course, it is not to be exercised in a mechanical manner. In the case of National Organic Chemical Industries Ltd. (supra), in somewhat similar circumstances the court had dismissed the writ petition and directed that the matter may proceed before the appropriate Industrial/Labour Court which was further directed to determine the questions and controversies raised before it in accordance with law. In some cases, the Industrial Court, while answering the reference made to it by the appropriate Government under section 10, may have to decide ancillary questions and there will be no legal impediment in doing so. | 0[ds]Despite giving such undertaking, the petitioner has not acted fairly. It is admitted that the demand letter was submitted to the Commissioner on 11.12.2006 as no conciliation was possible despite negotiations and keeping in view the stand of the company firstly, the matter remained under Personal Management Advisory Services which culminated into issuance of letter dated 11.2.2008 vide which the Assistant Commissioner of Labour refused to admit the matter in conciliation in regard to settlement between theregard to plea of fraud, they were granted liberty to take steps which they are entitled to. If the matter is before the Conciliation Officer, the Conciliation officer is bound to proceed in accordance with law. They have stated that they will continue to work as if the Petitioner is their employer as they have done continuously since 10th August 1999 but without prejudice to their plea in the other proceedings that they were and continue to be the employees of JohnsonJohnson Limited, as according to them, the transaction that took place was not legal. There are other legal proceedings pending between the parties before the appropriateis no ambiguity in the order of reference and the Industrial Court/Labour Court has to adjudicate the matter on merits and it will not be appropriate for this Court to examine the question of preliminary objection as regard to maintainability of reference before the Industrial Court particularly in facts and circumstances of the present case. Even when two fora are available, the Courts can certainly say which is the more appropriate forum to effectively get it adjudicated. There has to be, in reality, a relationship between employer and the complainants where they plead unfair labour practice.In the present Writ Petition, neither we are expected nor do we propose to deal with the merits of the various contentions raised in this Petition which are directly pending before the competent forum. The short question that we need to consider is whether the order of reference dated 22nd June 2007 suffers from such a legal error that it is palpably without jurisdiction or is legallyis no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and JohnsonJohnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite productionfact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. Thehas also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India. | 0 | 6,645 | 658 | ### Instruction:
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of caution here that if a worker or the union pleads/furnishes even a slightest explanation for delay in submitting his/its request to the appropriate Government for reference of his/its dispute to a Labour Court or the Industrial Tribunal then the appropriate government shall leave the determination of the question of belatedness to the labour Court or the Industrial Tribunal. It will then be the province of the Labour Court or the Industrial Tribunal to decide the question of reasonable delay in filing the application after taking into consideration the relevant material placed before it. Now we come to the individual cases.""37. It is a social welfare legislation and, in view of the above enunciated principle of law essentially should receive an interpretation which would help in achieving the object of the statute that is protecting the workman against exploitation and prolonged litigation.""38. It will be appropriate to conclude that the dimensions of the powers vested in the appropriate Government under Section 10(1)(c) of the Act are wide which require proper application of mind in consonance with the above enunciated principles but in no way the appropriate Government could usurp or abdicate to itself the powers of determination which are exclusively vested on the Labour Court/Tribunal. Long delays by itself may not be sufficient to deny the reference requested for by the workman unless it is so seriously prejudicial to the other party as to permit the workman to take undue advantage of his own conduct or the dispute is so belated and stale that in the eyes of law it has extinguished or lost its substance."13. The reliance is placed upon the case of National Engineering Company Ltd. by the learned counsel appearing for the petitioner does not really forward the case of the petitioner. The High Court has the jurisdiction to entertain a writ petition but this jurisdiction normally would not be used where the matter can appropriately be adjudicated upon by the Labour or Industrial Courts as the case may be. There is no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and Johnson & Johnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite production target.14. What is the effect of the orders passed by the courts, in previous litigation, can safely be considered by the Labour Court while adjudicating the reference made to it by the appropriate Government vide order dated 22nd June, 2007. The dispute referred has two facets. Firstly, with regard to the alleged lock out being illegal and secondly, the rights of the workmen to perform their duties without insisting upon the alleged undertaking as a condition precedent for performance of substitutes and resultantly, the wages and salaries which the workmen are entitled to. The reference made by the Government is so wide that the parties can safely adduced appropriate evidence to substantiate their respective trends, determination of which without such evidence is hardly possible. The exercise of jurisdiction by the appropriate Government, the parties could not have been asked to produce documentary and oral evidence. The controversies raised in the present writ petition are of such nature that it will not be just and fair to pronounce upon them without affording opportunities to the parties to lead evidence. In fact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. The petitioner-company has also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India.In fact, in Wyeth Employees Union v. M/s. Araine Orgachem Pvt.Ltd. And others, 2007 (1) CLR 315 , this court had directed the appropriate Government to consider making of a reference which it had felt on the ground that the workmen having taken the benefit of the various documents their existed no relationship of employer-employees between the parties. The workmen had taken up the ground of fraud and they were coerced into signing the scheme. It was held that the Government has to form an opinion as to the existence of employer-employee relationship and whether the dispute exists or is apprehended. Thus, the jurisdiction of the appropriate Government has limited scope. Of course, it is not to be exercised in a mechanical manner. In the case of National Organic Chemical Industries Ltd. (supra), in somewhat similar circumstances the court had dismissed the writ petition and directed that the matter may proceed before the appropriate Industrial/Labour Court which was further directed to determine the questions and controversies raised before it in accordance with law. In some cases, the Industrial Court, while answering the reference made to it by the appropriate Government under section 10, may have to decide ancillary questions and there will be no legal impediment in doing so.
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Despite giving such undertaking, the petitioner has not acted fairly. It is admitted that the demand letter was submitted to the Commissioner on 11.12.2006 as no conciliation was possible despite negotiations and keeping in view the stand of the company firstly, the matter remained under Personal Management Advisory Services which culminated into issuance of letter dated 11.2.2008 vide which the Assistant Commissioner of Labour refused to admit the matter in conciliation in regard to settlement between theregard to plea of fraud, they were granted liberty to take steps which they are entitled to. If the matter is before the Conciliation Officer, the Conciliation officer is bound to proceed in accordance with law. They have stated that they will continue to work as if the Petitioner is their employer as they have done continuously since 10th August 1999 but without prejudice to their plea in the other proceedings that they were and continue to be the employees of JohnsonJohnson Limited, as according to them, the transaction that took place was not legal. There are other legal proceedings pending between the parties before the appropriateis no ambiguity in the order of reference and the Industrial Court/Labour Court has to adjudicate the matter on merits and it will not be appropriate for this Court to examine the question of preliminary objection as regard to maintainability of reference before the Industrial Court particularly in facts and circumstances of the present case. Even when two fora are available, the Courts can certainly say which is the more appropriate forum to effectively get it adjudicated. There has to be, in reality, a relationship between employer and the complainants where they plead unfair labour practice.In the present Writ Petition, neither we are expected nor do we propose to deal with the merits of the various contentions raised in this Petition which are directly pending before the competent forum. The short question that we need to consider is whether the order of reference dated 22nd June 2007 suffers from such a legal error that it is palpably without jurisdiction or is legallyis no dispute to the fact that failure report has already been submitted to the appropriate Government and the appropriate Government has made a reference in exercise of its power under section 10 of the Act. There are certain facts which would take away the jurisdiction for making a reference but even on those facts, the parties are not ad idem. According to the workmen, they have accepted the present petitioner as their employer, of course, subject to determination of their complaint by the appropriate forum as regards to the transfer of the unit and JohnsonJohnson being their employer. As far as giving of any undertaking is concerned, the record shows that the workmen objected to the format of the undertaking whereafter they gave an undertaking, which according to them, needs all the necessary requirements including working with discipline and achieving the requisite productionfact, it is nobodys case that no dispute raised between the parties. The main emphasis of the petitioner is that the workmen are not clearly stating as to whose employees they are. According to the workmen, they have accepted in the present matters that they are employees of the petitioner subject to their objections pending before different fora. Thehas also issued notice to the workmen as they are employees, of course, with some other reservation. So ex facie, it is not a case where there is not even an iota of documents on record to indicate existence of such nature but as we have already noticed that it is not for this court to travel into such controversies in exercise of its powers under Article 226 of the Constitution of India.
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Reynold Rajamani & Anr Vs. Union Of India & Anr | fostered by a recognition of the need for the individual happiness of the adult parties directly involved. But although the grounds for divorce have been liberalised, they nevertheless continue to form an exception to the general principle favouring the continuation of the marital tie. In our opinion, when a legislative provision specifies the grounds on which divorce may be granted they constitute the only conditions on which the court has jurisdiction to grant divorce. If grounds need to be added to those already specifically set forth in the legislation, that is the business of the legislature and not of the courts. It is another matter that in construing the language in which the grounds are incorporated the courts should give a liberal construction to it. Indeed, we think that the courts must give the fullest amplitude of meaning to such a provision. But it must be a meaning which the language of the section is capable of holding. It cannot be extended by adding new grounds not enumerated in the section. 5. When therefore Section 10 of the Indian Divorce Act specifically sets forth the grounds on which a marriage may be dissolved, additional grounds cannot be included by the judicial construction of some other section unless that section plainly intends so. That, to our mind, Section 7 does not. We may point out that in M. Barnard v. G.H. Barnard (AIR 1928 Cal 657 : 32 CWN 742) the Calcutta High Court repelled a similar contention and held that Section 7 could not be construed so as to import into Indian Divorce Jurisprudence any fresh ground for relief other than those set forth in Section 10 and that the only grounds on which a marriage may be dissolved are those set forth in Section 10 of the Act.... The Punjab High Court in Miss Shireen Mall v. John James Taylor (AIR 1952 Punj 277) has also taken the view that the grounds set forth in Section 10 of the Indian Divorce Act cannot be enlarged by reference to Section 7 of the Act. So also has a Special Bench of the Madras High Court in T.M. Bashiam v. M. Victor (AIR 1970 Mad 12 : 82 Mad LW 422) and a Single Judge of that Court in A. George Cornelius v. Elizabeth Dopti Samadanam (AIR 1970 Mad 240 : 83 Mad LW 63 : (1970) 2 Mad LJ 351) . 6. Miss Thomas appeals to us to adopt a policy of social engineering and to give to Section 7 the content which has been enacted in Section 28 of the Special Marriage Act, 1954 and Section 13-B of the Hindu Marriage Act, 1955, both of which provide for divorce by mutual consent. It is possible to say that the law relating to Hindu marriages and to marriages governed by the Special Marriage Act presents a more advanced stage of development in this area than the Indian Divorce Act. However, whether a provision for divorce by mutual consent should be included in the Indian Divorce Act is a matter of legislative policy. The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there. 7. Reference is made by Miss Thomas to Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 which empowers the court to dissolve a Muslim marriage on any ground other than those already enumerated in the section which is recognised as valid for the dissolution of marriages under Muslim law. No such provision is contained in Section 10 of the Indian Divorce Act. 8. Learned counsel of the appellants has referred us to B. Iswarayya v. Swarnam Iswarayya (AIR 1931 PC 234 : 133 IC 716 : 58 IA 350) and George Swamidass Joseph v. Miss Harriett Sundari Edward (AIR 1955 Mad 341 : (1955) 2 Mad LJ 43 : ILR 1955 Mad 688). Nothing said in those cases helps the appellants. The first case was concerned with the question whether an appellate court can increase the amount of alimony payable by the husband to the wife without an appeal by her. And the second deals with the question whether the Indian courts can make a decree nisi for nullity absolute within a shorter period than that specifically mentioned in the Indian Divorce Act. 9. We are not satisfied that Section 7 of the Indian Divorce Act can be read to include the provisions of Section 1(2)(d) of the Matrimonial Causes Act, 1973. This contention of the appellants must fail. 10. Learned counsel for the appellants then points out that a Christian marriage can be registered under the Special Marriage Act, 1954 and that there is no reason why a marriage registered under the Indian Christian Marriage Act should not enjoy an advantage which is available to a marriage registered under the Special Marriage Act. Reliance is placed on the constitutional prohibition against discrimination embodied in Article 14 of the Constitution. Assuming that the marriage in this case could have been registered under the Special Marriage Act, 1954, inasmuch as it was solemnised in 1967 it was open to the parties to avail of that Act instead of having resort to the Indian Christian Marriage Act, 1872. In the circumstances, it is not open to the appellants to complain of the disadvantage now suffered by them. 11. It is also urged by the appellants that the Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce on the ground now pleaded. We have examined the matter carefully and we do not see how that jurisdiction can be construed to include a ground which is not specifically set forth in Section 10 of the Indian Divorce Act. 12. We are not satisfied that this appeal can succeed. It is for Parliament to consider whether the Indian Divorce Act, 1869 should be amended so as to include a provision for divorce by mutual consent. | 0[ds]In deference to Miss Thomas vehement submissions and having regard to the importance of the question we heard her at length but we indicated that the point raised by her did not carry conviction, and we reserved judgment in order to give a fully reasoned order. Shortly thereafter, Miss Thomas put in an application asserting that she had information that the Government of India was proposing to amend the matrimonial law in relation to the Christian community in India and praying that in the circumstances judgment may not be delivered for some time. There has, however, been no change in the law since, and it is appropriate, we think, that judgment should be pronounced now without further delay3. The main contention raised by Miss Thomas is that the appellants are entitled to the benefit of Section 7 of the Indian Divorce Act and therefore, by reason of that provision, to rely on Section 1(2)(d) of the Matrimonial Causes Act, 1973. There is no doubt that if the provisions of Section 1(2)(d) of the English statute can be read in Section 7 of the Indian Divorce Act and the appellants can establish that the conditions set forth in Section 1(2)(d) are made out the appellants will be entitled to claim a decree of divorce. But we are not satisfied that Secion 1(2)(d) of the English statute can be read in Section 7 of the Indian Divorce Act6. Miss Thomas appeals to us to adopt a policy of social engineering and to give to Section 7 the content which has been enacted in Section 28 ofthe Special Marriage Act, 1954 and Section 13-B ofthe Hindu Marriage Act, 1955, both of which provide for divorce by mutual consent. It is possible to say that the law relating to Hindu marriages and to marriages governed by the Special Marriage Act presents a more advanced stage of development in this area than the Indian Divorce Act. However, whether a provision for divorce by mutual consent should be included in the Indian Divorce Act is a matter of legislative policy. The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there9. We are not satisfied that Section 7 of the Indian Divorce Act can be read to include the provisions of Section 1(2)(d) of the Matrimonial Causes Act, 1973. This contention of the appellants must failArticle 14 of the Constitution10. Learned counsel for the appellants then points out that a Christian marriage can be registered underthe Special Marriage Act, 1954 and that there is no reason why a marriage registered under the Indian Christian Marriage Act should not enjoy an advantage which is available to a marriage registered under the Special Marriage Act. Reliance is placed on the constitutional prohibition against discrimination embodied inArticle 14 of the. Assuming that the marriage in this case could have been registered underthe Special Marriage Act, 1954, inasmuch as it was solemnised in 1967 it was open to the parties to avail of that Act instead of having resort tothe Indian Christian Marriage Act, 1872. In the circumstances, it is not open to the appellants to complain of the disadvantage now suffered by them11. It is also urged by the appellants that the Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce on the ground now pleaded. We have examined the matter carefully and we do not see how that jurisdiction can be construed to include a ground which is not specifically set forth in Section 10 of the Indian Divorce Act12. We are not satisfied that this appeal can succeedIt is for Parliament to consider whetherthe Indian Divorce Act, 1869should be amended so as to include a provision for divorce by mutual | 0 | 2,510 | 712 | ### 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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fostered by a recognition of the need for the individual happiness of the adult parties directly involved. But although the grounds for divorce have been liberalised, they nevertheless continue to form an exception to the general principle favouring the continuation of the marital tie. In our opinion, when a legislative provision specifies the grounds on which divorce may be granted they constitute the only conditions on which the court has jurisdiction to grant divorce. If grounds need to be added to those already specifically set forth in the legislation, that is the business of the legislature and not of the courts. It is another matter that in construing the language in which the grounds are incorporated the courts should give a liberal construction to it. Indeed, we think that the courts must give the fullest amplitude of meaning to such a provision. But it must be a meaning which the language of the section is capable of holding. It cannot be extended by adding new grounds not enumerated in the section. 5. When therefore Section 10 of the Indian Divorce Act specifically sets forth the grounds on which a marriage may be dissolved, additional grounds cannot be included by the judicial construction of some other section unless that section plainly intends so. That, to our mind, Section 7 does not. We may point out that in M. Barnard v. G.H. Barnard (AIR 1928 Cal 657 : 32 CWN 742) the Calcutta High Court repelled a similar contention and held that Section 7 could not be construed so as to import into Indian Divorce Jurisprudence any fresh ground for relief other than those set forth in Section 10 and that the only grounds on which a marriage may be dissolved are those set forth in Section 10 of the Act.... The Punjab High Court in Miss Shireen Mall v. John James Taylor (AIR 1952 Punj 277) has also taken the view that the grounds set forth in Section 10 of the Indian Divorce Act cannot be enlarged by reference to Section 7 of the Act. So also has a Special Bench of the Madras High Court in T.M. Bashiam v. M. Victor (AIR 1970 Mad 12 : 82 Mad LW 422) and a Single Judge of that Court in A. George Cornelius v. Elizabeth Dopti Samadanam (AIR 1970 Mad 240 : 83 Mad LW 63 : (1970) 2 Mad LJ 351) . 6. Miss Thomas appeals to us to adopt a policy of social engineering and to give to Section 7 the content which has been enacted in Section 28 of the Special Marriage Act, 1954 and Section 13-B of the Hindu Marriage Act, 1955, both of which provide for divorce by mutual consent. It is possible to say that the law relating to Hindu marriages and to marriages governed by the Special Marriage Act presents a more advanced stage of development in this area than the Indian Divorce Act. However, whether a provision for divorce by mutual consent should be included in the Indian Divorce Act is a matter of legislative policy. The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there. 7. Reference is made by Miss Thomas to Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 which empowers the court to dissolve a Muslim marriage on any ground other than those already enumerated in the section which is recognised as valid for the dissolution of marriages under Muslim law. No such provision is contained in Section 10 of the Indian Divorce Act. 8. Learned counsel of the appellants has referred us to B. Iswarayya v. Swarnam Iswarayya (AIR 1931 PC 234 : 133 IC 716 : 58 IA 350) and George Swamidass Joseph v. Miss Harriett Sundari Edward (AIR 1955 Mad 341 : (1955) 2 Mad LJ 43 : ILR 1955 Mad 688). Nothing said in those cases helps the appellants. The first case was concerned with the question whether an appellate court can increase the amount of alimony payable by the husband to the wife without an appeal by her. And the second deals with the question whether the Indian courts can make a decree nisi for nullity absolute within a shorter period than that specifically mentioned in the Indian Divorce Act. 9. We are not satisfied that Section 7 of the Indian Divorce Act can be read to include the provisions of Section 1(2)(d) of the Matrimonial Causes Act, 1973. This contention of the appellants must fail. 10. Learned counsel for the appellants then points out that a Christian marriage can be registered under the Special Marriage Act, 1954 and that there is no reason why a marriage registered under the Indian Christian Marriage Act should not enjoy an advantage which is available to a marriage registered under the Special Marriage Act. Reliance is placed on the constitutional prohibition against discrimination embodied in Article 14 of the Constitution. Assuming that the marriage in this case could have been registered under the Special Marriage Act, 1954, inasmuch as it was solemnised in 1967 it was open to the parties to avail of that Act instead of having resort to the Indian Christian Marriage Act, 1872. In the circumstances, it is not open to the appellants to complain of the disadvantage now suffered by them. 11. It is also urged by the appellants that the Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce on the ground now pleaded. We have examined the matter carefully and we do not see how that jurisdiction can be construed to include a ground which is not specifically set forth in Section 10 of the Indian Divorce Act. 12. We are not satisfied that this appeal can succeed. It is for Parliament to consider whether the Indian Divorce Act, 1869 should be amended so as to include a provision for divorce by mutual consent.
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In deference to Miss Thomas vehement submissions and having regard to the importance of the question we heard her at length but we indicated that the point raised by her did not carry conviction, and we reserved judgment in order to give a fully reasoned order. Shortly thereafter, Miss Thomas put in an application asserting that she had information that the Government of India was proposing to amend the matrimonial law in relation to the Christian community in India and praying that in the circumstances judgment may not be delivered for some time. There has, however, been no change in the law since, and it is appropriate, we think, that judgment should be pronounced now without further delay3. The main contention raised by Miss Thomas is that the appellants are entitled to the benefit of Section 7 of the Indian Divorce Act and therefore, by reason of that provision, to rely on Section 1(2)(d) of the Matrimonial Causes Act, 1973. There is no doubt that if the provisions of Section 1(2)(d) of the English statute can be read in Section 7 of the Indian Divorce Act and the appellants can establish that the conditions set forth in Section 1(2)(d) are made out the appellants will be entitled to claim a decree of divorce. But we are not satisfied that Secion 1(2)(d) of the English statute can be read in Section 7 of the Indian Divorce Act6. Miss Thomas appeals to us to adopt a policy of social engineering and to give to Section 7 the content which has been enacted in Section 28 ofthe Special Marriage Act, 1954 and Section 13-B ofthe Hindu Marriage Act, 1955, both of which provide for divorce by mutual consent. It is possible to say that the law relating to Hindu marriages and to marriages governed by the Special Marriage Act presents a more advanced stage of development in this area than the Indian Divorce Act. However, whether a provision for divorce by mutual consent should be included in the Indian Divorce Act is a matter of legislative policy. The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there9. We are not satisfied that Section 7 of the Indian Divorce Act can be read to include the provisions of Section 1(2)(d) of the Matrimonial Causes Act, 1973. This contention of the appellants must failArticle 14 of the Constitution10. Learned counsel for the appellants then points out that a Christian marriage can be registered underthe Special Marriage Act, 1954 and that there is no reason why a marriage registered under the Indian Christian Marriage Act should not enjoy an advantage which is available to a marriage registered under the Special Marriage Act. Reliance is placed on the constitutional prohibition against discrimination embodied inArticle 14 of the. Assuming that the marriage in this case could have been registered underthe Special Marriage Act, 1954, inasmuch as it was solemnised in 1967 it was open to the parties to avail of that Act instead of having resort tothe Indian Christian Marriage Act, 1872. In the circumstances, it is not open to the appellants to complain of the disadvantage now suffered by them11. It is also urged by the appellants that the Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce on the ground now pleaded. We have examined the matter carefully and we do not see how that jurisdiction can be construed to include a ground which is not specifically set forth in Section 10 of the Indian Divorce Act12. We are not satisfied that this appeal can succeedIt is for Parliament to consider whetherthe Indian Divorce Act, 1869should be amended so as to include a provision for divorce by mutual
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Ramagya Prasad Gupta and Others and Braham Prasad Gupta and Others Vs. Shri Murli Prasad | appeal defendants 19 to 14 would not be necessary parties. There are two ways of looking at it would it be possible for defendants 12 to 14 to file a separate suit against Parasnath or the sub-share in the partnership ? could Murli Prasad, whose claim to the whole of the subject matter of the suit had been negatived, have filed an appeal without making defendants 12 to 14 parties to the appeal ? The answer could only be in the negative. Having successfully claimed relief against Parasnath in the partnership suit and obtained it from the court, the decision would be final between them and defendants 12 to 14 would not be able to claim the same relief against Parasnath in a separate suit. Similarly Murli Prasad who was a co-defendant with defendants 12 to 14 could not have obtained relief without filing an appeal to which defendants 12 to 14 were made parties. Therefore it is quite clear that though in theory it may be possible to contend that, as a matter of law, defendants 12 to 14 including Jagdish Narain need not have been made parties in the partnership suit the very fact that their claim to relief against Parasnath in the partnership suit has been granted with a view to make a complete adjudication between the parties to the suit would make defendants 12 to 14 necessary parties in any appeal filed by a party aggrieved by the decision of the Trial Court. In fact they were made co-respondents in Appeal No. 161/1959 to the High Court filed by Murli Prasad and even in the present appeals. That was on the basis that they were necessary parties to the appeal in view of the Trial Courts decree which gave them a substantial share in the subject matter of the partition suit. For the purpose of the appeals (Civil Appeal 1711/67 and the Civil Appeal 1985/68 arising out of Parasnaths Civil Suit 68/1954) we must proceed on the footing that Jagdish Narain (Original Defendant No. 13) had been declared to have a share in the partnership assets in his own rights.22. And now the question is whether the appellants who, in these appeals, have asked for the restoration of the decree of the Trial Court can be permitted to proceed with these appeals without deceased Jagdish Narain being represented. We think that the law on the point is quite clear; it was held as far back as in 1887 that suit brought for partnership accounts after a necessary party-defendant has been omitted, is liable to be dismissed. See : Ramdoyal vs. Junmenjoy Coondoo. The above decision was followed in Amir Chand vs. Raoji Bhai with the observation that no dissent had ever been expressed from the above decision. It was held that a suit for accounts cannot be maintained between some of the partners of the firm but every partner must be made a party. The same consideration applies to an appeal arising out of a suit for dissolution of partnership and accounts. See : Raj Chunder Sen vs. Gangadas Seal & others. In that case A sued his partners, B, C, D & F for dissolution and for accounts of the partnership. A decree was passed in the suit by which it was ordered that a sum of Rs. 9, 000/- should be contributed by A, B & C and that out of that sum Rs. 1.740/- should be paid to D and the rest to F. A appealed from the decree making B, C, D & F party-respondents. B and C also appealed from the decree making A, D & F party-respondents. Pending the appeal D died. No application was made by the appellants in either appeal to bring on the record the legal heirs of D within the period of limitation. It was held that the appeal was not competent for as the suit was for partnership accounts, it was not one in which the appellants could proceed in the absence of the legal representatives of D. Their Lordships observed that in the absence of the legal representatives of one of the partners the court had no option and the appeals were perfectly idle. This decision of the Privy Council along with several others of High Courts in this country were followed in Kunj Behari Lal vs. Ajodhia Prasad wherein the head note is as follows :"Where in an appeal arising out of a suit for accounts and partition of partnership property, which cannot be determined in the absence of all the parties interested, some of the respondents die and their legal representatives are not brought on the record within limitation and the right to sue does not survive against those respondents alone whose names are already on the record, the appeal fails in toto."Having regard to the clear position of law in this respect the failure to bring on record the heirs or legal representatives of deceased Jagdish Narain - one of the sharers in the subject matter of the suit must inevitably lead to the dismissal of the appeals. That brings the case squarely in the second test referred to in the decision of this Court in Nathu Rams case referred to above.23. In all such cases even the first test would be satisfied. There is a High Court decree which says that neither deceased Jagdish Narain nor anybody else was entitled to share in the subject matter as against Murli Prasad who is held to be sole proprietor of the business. If the present appellants were to succeed it would lead to the Courts coming to a decision that the deceased Jagdish Narain was entitled to a share in the subject matter of the suit as against Murli Prasad and the other alleged partners - a decision which would be in conflict with the decision of the High Court and will be contradictory to it has become final with respect to the subject matter between Murli Prasad and the deceased respondent. | 0[ds]14. In order to make the statement of relevant facts complete we may also refer to certain other proceedings though the question now involved does not arise in those proceeding. When Civil Suit No. 68/1954 was pending, Murli Prasad filed a suit for a declaration that he was the sole proprietor of the concern and the others could not claim any legal interest. That suit was suit No. 94/1956. Since the suit involved the same issue as in Civil No. 68/1954, that suit was heard along with suit No. 68/1954. Since the Trial Court held that the partnership was legal it decreed suit No. 68/1954 and dismissed Murli Prasad suit No. 94/1956. Murli Prasad, therefore, had to file two appeals one from the Order passed in suit No. 68/1954 and the other from the Ordered dismissal of suit No. 94/1956. The appeal to the High Court from suit No. 68/1954 was Civil Suit 161/1959 already referred to and the appeal from suit No. 94/1956 was Civil Appeal No. 160/1959. Since the High Court accepted Murli Prasads contention, the trial courts decree in Suit No. 68/1954, had to be set aside and Murli Prasads suit for declaration, Suit No. 94/1956, that he was the full owner decreed. From the latter decree two appeals have been filed one by Ramagya Prasad and the other by Brahamdeo Prasad. Civil Appeal 1711/1967 is by Ramagya Prasad and Civil Appeal No. 1985/68 is by Brahamdeo Prasad. We are not concerned with these two appeals at this stage because Jagdish Narain had not been made a party to the Original Suit filed by Murli Prasad nor had he applied to be made a party. Consequently Jagdish Narain does not and did not figure in the appeals from the decree passed in Suit No. 94/1956.It was contended on behalf of the appellants that there is no bar to proceeding with the appeals inspite of the legal heirs of deceased Jagdish Narain not having been brought on record. ln the first place, it was contended that though Jagdish Narain is dead he is fully represented because he was a member of the joint family of which Parasnath was the Manager and since Parasnath is a respondent in these appeals it was not necessary to bring the personal heirs of Jagdish Narain on record. Secondly it was contended that Jagdish Narain was not himself a partner in the partnership and since a stranger to the partnership is not entitled to join a party to the suit his omission in appeal is not fatal.Admittedly Jagdish Narain was not a party to the partnership deed of 1950 and whatever interest he had as a member of the joint family of which Parasnath was the Manager he could look up only to Parasnath for his interest. It may be that he was permitted to be made a defendant in the suit. He was merely a proper party to the suit and not a necessary party and since he was not a necessary part to the suit, it was submitted, he cannot claim to be a necessary party to the appeal.20. We do not think that there is any substance in either of the two contention. So far as the first contention is concerned it is true that Parasnath represented the joint family when the partnership had come into existence but much water had flown under the bridge thereafter. Jagdish Narain and his two brothers Kuldip and Kedar had applied to be made parties to the suit on the ground that they had separated not only amongst themselves but also from Parasnath. There was an award dt.and on the basis of the award a compromise decree was passed onThe suit had been filed in 1954 and at the time of the suit, Parasnath, the plaintiff in the suit, was no longer the karta of the family and could not represent the interest either of Jagdish Narain or his two brothers Kuldip and Kedar. As a matter of fact, as already shown in the narrative of facts, they raised a serious contest to the suit of Parasnath on the ground of conflict of interest and the Trial Court had held in their favour. Parasnath did not appeal against the decree and even in the present appeals the share of Jagdish Narain and his two brothers as awarded by the Trial Court is not challenged. In fact they have asked that the decree in favour of Murli Prasad given by the High Court be set aside and the decree of the Trial Court be restored. Under these circumstance, it will be wrong to say that in the present appeals the interest of deceased Jagdish Narain is fully represented by Parasnath or anybody else.21. As to the second contention that Jagdish Narain was not a necessary party to the suit and, therefore, to this appeal, it is enough to say that such a contention is no longer permissible. Jagdish Narain and his two brothers contested the suit filed by Parasnath for dissolution and rendition of accounts. Initially they were not made parties but they applied to the court and were made parties as defendants 12 to 14. Parasnath did not admit, in the first instance, that defendants 12 to 14 had any interest in the subject matter of the suit. He claimed that he had supplied his own funds to the partnership and had, therefore, become a sharer in the partnership to the extent of 1 anna. At the hearing, however he agreed that the other members of the family, namely, defendants Nos. 12 to 14 were together equally entitled with him to a share. There was, however, a second point of contest and that had to be decided on the merits. Parasnath had alleged that a 3 pies share out of his 1 anna share had been sold in public auction and purchased by Thakur Prasad, defendant No. 10 and hence Thakur Prasad was entitled to a 3 pies share. Defendants 12 to 14 challenged this sale alleging the sale was nominal in favour of Thakur Prasad and that, as a matter of fact, the 3 pies share which was sold in auction had been purchased on behalf of the joint family itself. This plea was accepted by the Trial Court which negatived the case of Parasnath and Thakur Prasad that the latter was entitled to a 3 pies share of 1 anna of Parasnaths 1 anna share. The whole share of 1 anna of Parasnath in the partnership was divided between Parasnath, the plaintiff, and defendants 12 to 14 half and half. From this finding after consent, Parasnath did not appeal at all Therefore, the decree passed by the Trial Court as to the share of Parasnath, on the one hand, and defendants 12 to 14 including Jagdish Narain, on the other, became final and in these circumstances it would be impossible to say these Jagdish Narain was just proper party to the suit. Indeed if Jagdish Narain and his two brothers (defendants 12 to 14) had not applied to the court to be made party, defendants there could be no doubt at all that Parasnath would have been entitled to claim the full one anna share in the partnership suit and it would have been open to defendants 12 or 14 to make their claim against Parasnath in an independent Suit proceeding. But when in the suit defendants 12 to 14 were made parties and after contest between them and Parasnath their share has been awarded to them as against Parasnath it would be idle to say that for the purposes of the appeal defendants 19 to 14 would not be necessary parties. There are two ways of looking at it would it be possible for defendants 12 to 14 to file a separate suit against Parasnath or thein the partnership ? could Murli Prasad, whose claim to the whole of the subject matter of the suit had been negatived, have filed an appeal without making defendants 12 to 14 parties to the appeal ? The answer could only be in the negative. Having successfully claimed relief against Parasnath in the partnership suit and obtained it from the court, the decision would be final between them and defendants 12 to 14 would not be able to claim the same relief against Parasnath in a separate suit. Similarly Murli Prasad who was awith defendants 12 to 14 could not have obtained relief without filing an appeal to which defendants 12 to 14 were made parties. Therefore it is quite clear that though in theory it may be possible to contend that, as a matter of law, defendants 12 to 14 including Jagdish Narain need not have been made parties in the partnership suit the very fact that their claim to relief against Parasnath in the partnership suit has been granted with a view to make a complete adjudication between the parties to the suit would make defendants 12 to 14 necessary parties in any appeal filed by a party aggrieved by the decision of the Trial Court. In fact they were madein Appeal No. 161/1959 to the High Court filed by Murli Prasad and even in the present appeals. That was on the basis that they were necessary parties to the appeal in view of the Trial Courts decree which gave them a substantial share in the subject matter of the partition suit. For the purpose of the appeals (Civil Appeal 1711/67 and the Civil Appeal 1985/68 arising out of Parasnaths Civil Suit 68/1954) we must proceed on the footing that Jagdish Narain (Original Defendant No. 13) had been declared to have a share in the partnership assets in his own rights.22. And now thequestion is whether the appellants who, in these appeals, have asked for the restoration of the decree of the Trial Court can be permitted to proceed with these appeals without deceased Jagdish Narain being represented.We think that the law on the point is quite clear; it was held as far back as in 1887 that suit brought for partnership accounts after a necessaryhas been omitted, is liable to be dismissed. See : Ramdoyal vs. Junmenjoyregard to the clear position of law in this respect the failure to bring on record the heirs or legal representatives of deceased Jagdish Narainone of the sharers in the subject matter of the suit must inevitably lead to the dismissal of the appeals. That brings the case squarely in the second test referred to in the decision of this Court in Nathu Rams case referred to above.23. In all such cases even the first test would be satisfied. There is a High Court decree which says that neither deceased Jagdish Narain nor anybody else was entitled to share in the subject matter as against Murli Prasad who is held to be sole proprietor of the business. If the present appellants were to succeed it would lead to the Courts coming to a decision that the deceased Jagdish Narain was entitled to a share in the subject matter of the suit as against Murli Prasad and the other alleged partnersa decision which would be in conflict with the decision of the High Court and will be contradictory to it has become final with respect to the subject matter between Murli Prasad and the deceased respondent.24. In view of the position discussed above it must be held that the appeals cannot be proceeded with and must be dismissed. No order as to costs. | 0 | 4,743 | 2,051 | ### Instruction:
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appeal defendants 19 to 14 would not be necessary parties. There are two ways of looking at it would it be possible for defendants 12 to 14 to file a separate suit against Parasnath or the sub-share in the partnership ? could Murli Prasad, whose claim to the whole of the subject matter of the suit had been negatived, have filed an appeal without making defendants 12 to 14 parties to the appeal ? The answer could only be in the negative. Having successfully claimed relief against Parasnath in the partnership suit and obtained it from the court, the decision would be final between them and defendants 12 to 14 would not be able to claim the same relief against Parasnath in a separate suit. Similarly Murli Prasad who was a co-defendant with defendants 12 to 14 could not have obtained relief without filing an appeal to which defendants 12 to 14 were made parties. Therefore it is quite clear that though in theory it may be possible to contend that, as a matter of law, defendants 12 to 14 including Jagdish Narain need not have been made parties in the partnership suit the very fact that their claim to relief against Parasnath in the partnership suit has been granted with a view to make a complete adjudication between the parties to the suit would make defendants 12 to 14 necessary parties in any appeal filed by a party aggrieved by the decision of the Trial Court. In fact they were made co-respondents in Appeal No. 161/1959 to the High Court filed by Murli Prasad and even in the present appeals. That was on the basis that they were necessary parties to the appeal in view of the Trial Courts decree which gave them a substantial share in the subject matter of the partition suit. For the purpose of the appeals (Civil Appeal 1711/67 and the Civil Appeal 1985/68 arising out of Parasnaths Civil Suit 68/1954) we must proceed on the footing that Jagdish Narain (Original Defendant No. 13) had been declared to have a share in the partnership assets in his own rights.22. And now the question is whether the appellants who, in these appeals, have asked for the restoration of the decree of the Trial Court can be permitted to proceed with these appeals without deceased Jagdish Narain being represented. We think that the law on the point is quite clear; it was held as far back as in 1887 that suit brought for partnership accounts after a necessary party-defendant has been omitted, is liable to be dismissed. See : Ramdoyal vs. Junmenjoy Coondoo. The above decision was followed in Amir Chand vs. Raoji Bhai with the observation that no dissent had ever been expressed from the above decision. It was held that a suit for accounts cannot be maintained between some of the partners of the firm but every partner must be made a party. The same consideration applies to an appeal arising out of a suit for dissolution of partnership and accounts. See : Raj Chunder Sen vs. Gangadas Seal & others. In that case A sued his partners, B, C, D & F for dissolution and for accounts of the partnership. A decree was passed in the suit by which it was ordered that a sum of Rs. 9, 000/- should be contributed by A, B & C and that out of that sum Rs. 1.740/- should be paid to D and the rest to F. A appealed from the decree making B, C, D & F party-respondents. B and C also appealed from the decree making A, D & F party-respondents. Pending the appeal D died. No application was made by the appellants in either appeal to bring on the record the legal heirs of D within the period of limitation. It was held that the appeal was not competent for as the suit was for partnership accounts, it was not one in which the appellants could proceed in the absence of the legal representatives of D. Their Lordships observed that in the absence of the legal representatives of one of the partners the court had no option and the appeals were perfectly idle. This decision of the Privy Council along with several others of High Courts in this country were followed in Kunj Behari Lal vs. Ajodhia Prasad wherein the head note is as follows :"Where in an appeal arising out of a suit for accounts and partition of partnership property, which cannot be determined in the absence of all the parties interested, some of the respondents die and their legal representatives are not brought on the record within limitation and the right to sue does not survive against those respondents alone whose names are already on the record, the appeal fails in toto."Having regard to the clear position of law in this respect the failure to bring on record the heirs or legal representatives of deceased Jagdish Narain - one of the sharers in the subject matter of the suit must inevitably lead to the dismissal of the appeals. That brings the case squarely in the second test referred to in the decision of this Court in Nathu Rams case referred to above.23. In all such cases even the first test would be satisfied. There is a High Court decree which says that neither deceased Jagdish Narain nor anybody else was entitled to share in the subject matter as against Murli Prasad who is held to be sole proprietor of the business. If the present appellants were to succeed it would lead to the Courts coming to a decision that the deceased Jagdish Narain was entitled to a share in the subject matter of the suit as against Murli Prasad and the other alleged partners - a decision which would be in conflict with the decision of the High Court and will be contradictory to it has become final with respect to the subject matter between Murli Prasad and the deceased respondent.
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agreed that the other members of the family, namely, defendants Nos. 12 to 14 were together equally entitled with him to a share. There was, however, a second point of contest and that had to be decided on the merits. Parasnath had alleged that a 3 pies share out of his 1 anna share had been sold in public auction and purchased by Thakur Prasad, defendant No. 10 and hence Thakur Prasad was entitled to a 3 pies share. Defendants 12 to 14 challenged this sale alleging the sale was nominal in favour of Thakur Prasad and that, as a matter of fact, the 3 pies share which was sold in auction had been purchased on behalf of the joint family itself. This plea was accepted by the Trial Court which negatived the case of Parasnath and Thakur Prasad that the latter was entitled to a 3 pies share of 1 anna of Parasnaths 1 anna share. The whole share of 1 anna of Parasnath in the partnership was divided between Parasnath, the plaintiff, and defendants 12 to 14 half and half. From this finding after consent, Parasnath did not appeal at all Therefore, the decree passed by the Trial Court as to the share of Parasnath, on the one hand, and defendants 12 to 14 including Jagdish Narain, on the other, became final and in these circumstances it would be impossible to say these Jagdish Narain was just proper party to the suit. Indeed if Jagdish Narain and his two brothers (defendants 12 to 14) had not applied to the court to be made party, defendants there could be no doubt at all that Parasnath would have been entitled to claim the full one anna share in the partnership suit and it would have been open to defendants 12 or 14 to make their claim against Parasnath in an independent Suit proceeding. But when in the suit defendants 12 to 14 were made parties and after contest between them and Parasnath their share has been awarded to them as against Parasnath it would be idle to say that for the purposes of the appeal defendants 19 to 14 would not be necessary parties. There are two ways of looking at it would it be possible for defendants 12 to 14 to file a separate suit against Parasnath or thein the partnership ? could Murli Prasad, whose claim to the whole of the subject matter of the suit had been negatived, have filed an appeal without making defendants 12 to 14 parties to the appeal ? The answer could only be in the negative. Having successfully claimed relief against Parasnath in the partnership suit and obtained it from the court, the decision would be final between them and defendants 12 to 14 would not be able to claim the same relief against Parasnath in a separate suit. Similarly Murli Prasad who was awith defendants 12 to 14 could not have obtained relief without filing an appeal to which defendants 12 to 14 were made parties. Therefore it is quite clear that though in theory it may be possible to contend that, as a matter of law, defendants 12 to 14 including Jagdish Narain need not have been made parties in the partnership suit the very fact that their claim to relief against Parasnath in the partnership suit has been granted with a view to make a complete adjudication between the parties to the suit would make defendants 12 to 14 necessary parties in any appeal filed by a party aggrieved by the decision of the Trial Court. In fact they were madein Appeal No. 161/1959 to the High Court filed by Murli Prasad and even in the present appeals. That was on the basis that they were necessary parties to the appeal in view of the Trial Courts decree which gave them a substantial share in the subject matter of the partition suit. For the purpose of the appeals (Civil Appeal 1711/67 and the Civil Appeal 1985/68 arising out of Parasnaths Civil Suit 68/1954) we must proceed on the footing that Jagdish Narain (Original Defendant No. 13) had been declared to have a share in the partnership assets in his own rights.22. And now thequestion is whether the appellants who, in these appeals, have asked for the restoration of the decree of the Trial Court can be permitted to proceed with these appeals without deceased Jagdish Narain being represented.We think that the law on the point is quite clear; it was held as far back as in 1887 that suit brought for partnership accounts after a necessaryhas been omitted, is liable to be dismissed. See : Ramdoyal vs. Junmenjoyregard to the clear position of law in this respect the failure to bring on record the heirs or legal representatives of deceased Jagdish Narainone of the sharers in the subject matter of the suit must inevitably lead to the dismissal of the appeals. That brings the case squarely in the second test referred to in the decision of this Court in Nathu Rams case referred to above.23. In all such cases even the first test would be satisfied. There is a High Court decree which says that neither deceased Jagdish Narain nor anybody else was entitled to share in the subject matter as against Murli Prasad who is held to be sole proprietor of the business. If the present appellants were to succeed it would lead to the Courts coming to a decision that the deceased Jagdish Narain was entitled to a share in the subject matter of the suit as against Murli Prasad and the other alleged partnersa decision which would be in conflict with the decision of the High Court and will be contradictory to it has become final with respect to the subject matter between Murli Prasad and the deceased respondent.24. In view of the position discussed above it must be held that the appeals cannot be proceeded with and must be dismissed. No order as to costs.
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Godrej and Boyce Manufacturers Company Limited Vs. S. B. Potnis, Chief Commissioner of Income-Tax | contractual obligations. He also drew the attention of the court to the letter dated February 14, 1991, (exhibit c), addressed by the petitioners in response to the queries raised, in which the petitioners had given the names of various personnel who had been deputed to render technical services. He highlighted the fact that all of them were personnel who are carrying out technical work in the petitioners factory in india. ( 7 ) RELYING on the judgment of the Supreme Court in Continental Construction Ltd. v. CIT [1992] I95 ITR 81, learned counsel contends that the Supreme Court having taken the view that even professional service could, perhaps, amount to technical service within the meaning of section 80-O of the Act, the view of the agreement taken by the respondents is unduly narrow and runs counter to the law laid down by the Supreme Court in this judgment. ( 8 ) MR. Dwarkadas fairly admits that the Delhi High Court, in the judgment in J. K. (Bombay)Ltd. s case [1979] 118 ITR 312 , relied upon by the Departmental authorities, did take the view that rendering of managerial services did not amount to technical services, but draws a distinction that technical service rendered in that case was mere managing agency and not technical service requiring true expertise. Had the situation been one which called for technical expertise, probably the decision might have been different, submits learned counsel. He also contends that it is for this reason that the Delhi High Court had to slightly modify its view in a subsequent judgment, in Oberoi Hotels (India) Pvt. Ltd. v. CBDT [1982] 135 ITR 257 (Delhi ). In this case, the Oberoi Hotels had agreed to take over and manage a hotel in Kathmandu, Nepal, in all its various aspects. The Division Bench of the Delhi High Court went into the details of the agreement and concluded that, though the agreement did amount to an agreement for rendering managerial services, considering the expertise required in running a five star hotel, it could not be postulated that the "managerial services" rendered under the agreement in question would not amount to "technical services" within the meaning of section 80-O of the Act. In this view of the matter, the Delhi High Court directed the income-tax authorities to approve the agreement for the purpose of section 80-O of the Act.( 9 ) THOUGH Mr. Dwarkadas drew our attention to another judgment of the Calcutta High Court in the case of Simon Carves India Ltd. v. ITO [1986] 159 ITR 167 , we do not think that this judgment is of relevance and, therefore, refrain from discussing it. ( 10 ) FINALLY, Mr. Dwarkadas drew our attention to the decision of the Supreme Court in Bajaj tempo Ltd. v. CIT [1992] 196 ITR 188 , wherein the Supreme Court has highlighted that a provision in a taxing statute granting incentives for promotion of growth and development should be construed liberally; and since a provision for promoting economic growth has to be interpreted liberally, the restriction on it too has to be construed strictly so as to advance the objective of the provision and not to frustrate it. In the light of this principle adopted by the supreme Court for interpretation of provisions in a taxing statute intended to promote growth and development, the petitioners contend that the expression "technical services" used in section 80-O must also receive a liberal interpretation as the section is intended to promote economic growth, particularly where there is foreign participation which would bring in substantial foreign exchange earning. It we adopt a liberal interpretation, then there would be no difficulty in holding that the agreement for management services also would qualify for approval under section 80-O of the Act, according to the petitioners. ( 11 ) FOR the Department, Dr. Balasubramanian contended that the petitioners had themselves decided to bifurcate their contractual obligation into two categories. One was for supply of information with regard to technical matters which was signed separately and styled as "technical Assistance Agreement"; the Department had no objection to approving this and, rightly, this agreement has been approved under section 80-O. The other was with regard to managerial services, styled as "management Service Agreement", which is a pure and simple agreement to render managerial services of such nature which does not amount to "technical service" within the meaning of section 80-O of the Act. When Dr. Balasubramanians attention was pinpointed to the contractual obligation of the petitioners, even under the management service agreement, to provide fully qualified and experienced managers, engineers, technicians and production specialists, learned counsel had to concede that it was an agreement under which the services rendered were partly technical and partly other than technical. He submits that, in the absence of the illumination thrown upon section 80-O by the judgment of the Supreme Court in Continental Constructions case [1992] 195 ITR 81 , the Department took the view of rejecting the agreement in its entirety, and this court should not interfere therewith. ( 12 ) IN our view, it is not possible to postulate, as a general proposition of law, that all managerial services must necessarily be non-technical services it depends on the nature of the expertise required for rendering the managerial services. Ultimately, it would be a matter of evaluation of the factual details and a decision against the background of the factual matrix of each case. We are of the view that the Department, not having the benefit of the Supreme Courts judgment in Continentals case [1992] 195 ITR 81 , rejected the application made by the petitioners by taking a somewhat rigid view of the matter. However, now that Continentals case [1992] 195 ITR 81 has illuminated and elucidated the legal position, we are of the view that the matter must go back to the concerned respondents for a decision in accordance with the law as laid down by the Supreme Court in Continental Constructions case [1992] 195 ITR 81. | 1[ds]In the light of this principle adopted by the supreme Court for interpretation of provisions in a taxing statute intended to promote growth and development, the petitioners contend that the expression "technical services" used in sectionmust also receive a liberal interpretation as the section is intended to promote economic growth, particularly where there is foreign participation which would bring in substantial foreign exchange earning. It we adopt a liberal interpretation, then there would be no difficulty in holding that the agreement for management services also would qualify for approval under sectionof the Act, according to the petitioners.12 ) IN our view, it is not possible to postulate, as a general proposition of law, that all managerial services must necessarily beservices it depends on the nature of the expertise required for rendering the managerial services. Ultimately, it would be a matter of evaluation of the factual details and a decision against the background of the factual matrix of each case. We are of the view that the Department, not having the benefit of the Supreme Courts judgment in Continentals case [1992] 195 ITR 81 , rejected the application made by the petitioners by taking a somewhat rigid view of the matter. However, now that Continentals case [1992] 195 ITR 81 has illuminated and elucidated the legal position, we are of the view that the matter must go back to the concerned respondents for a decision in accordance with the law as laid down by the Supreme Court in Continental Constructions case [1992] 195 ITR 81. | 1 | 2,162 | 282 | ### 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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contractual obligations. He also drew the attention of the court to the letter dated February 14, 1991, (exhibit c), addressed by the petitioners in response to the queries raised, in which the petitioners had given the names of various personnel who had been deputed to render technical services. He highlighted the fact that all of them were personnel who are carrying out technical work in the petitioners factory in india. ( 7 ) RELYING on the judgment of the Supreme Court in Continental Construction Ltd. v. CIT [1992] I95 ITR 81, learned counsel contends that the Supreme Court having taken the view that even professional service could, perhaps, amount to technical service within the meaning of section 80-O of the Act, the view of the agreement taken by the respondents is unduly narrow and runs counter to the law laid down by the Supreme Court in this judgment. ( 8 ) MR. Dwarkadas fairly admits that the Delhi High Court, in the judgment in J. K. (Bombay)Ltd. s case [1979] 118 ITR 312 , relied upon by the Departmental authorities, did take the view that rendering of managerial services did not amount to technical services, but draws a distinction that technical service rendered in that case was mere managing agency and not technical service requiring true expertise. Had the situation been one which called for technical expertise, probably the decision might have been different, submits learned counsel. He also contends that it is for this reason that the Delhi High Court had to slightly modify its view in a subsequent judgment, in Oberoi Hotels (India) Pvt. Ltd. v. CBDT [1982] 135 ITR 257 (Delhi ). In this case, the Oberoi Hotels had agreed to take over and manage a hotel in Kathmandu, Nepal, in all its various aspects. The Division Bench of the Delhi High Court went into the details of the agreement and concluded that, though the agreement did amount to an agreement for rendering managerial services, considering the expertise required in running a five star hotel, it could not be postulated that the "managerial services" rendered under the agreement in question would not amount to "technical services" within the meaning of section 80-O of the Act. In this view of the matter, the Delhi High Court directed the income-tax authorities to approve the agreement for the purpose of section 80-O of the Act.( 9 ) THOUGH Mr. Dwarkadas drew our attention to another judgment of the Calcutta High Court in the case of Simon Carves India Ltd. v. ITO [1986] 159 ITR 167 , we do not think that this judgment is of relevance and, therefore, refrain from discussing it. ( 10 ) FINALLY, Mr. Dwarkadas drew our attention to the decision of the Supreme Court in Bajaj tempo Ltd. v. CIT [1992] 196 ITR 188 , wherein the Supreme Court has highlighted that a provision in a taxing statute granting incentives for promotion of growth and development should be construed liberally; and since a provision for promoting economic growth has to be interpreted liberally, the restriction on it too has to be construed strictly so as to advance the objective of the provision and not to frustrate it. In the light of this principle adopted by the supreme Court for interpretation of provisions in a taxing statute intended to promote growth and development, the petitioners contend that the expression "technical services" used in section 80-O must also receive a liberal interpretation as the section is intended to promote economic growth, particularly where there is foreign participation which would bring in substantial foreign exchange earning. It we adopt a liberal interpretation, then there would be no difficulty in holding that the agreement for management services also would qualify for approval under section 80-O of the Act, according to the petitioners. ( 11 ) FOR the Department, Dr. Balasubramanian contended that the petitioners had themselves decided to bifurcate their contractual obligation into two categories. One was for supply of information with regard to technical matters which was signed separately and styled as "technical Assistance Agreement"; the Department had no objection to approving this and, rightly, this agreement has been approved under section 80-O. The other was with regard to managerial services, styled as "management Service Agreement", which is a pure and simple agreement to render managerial services of such nature which does not amount to "technical service" within the meaning of section 80-O of the Act. When Dr. Balasubramanians attention was pinpointed to the contractual obligation of the petitioners, even under the management service agreement, to provide fully qualified and experienced managers, engineers, technicians and production specialists, learned counsel had to concede that it was an agreement under which the services rendered were partly technical and partly other than technical. He submits that, in the absence of the illumination thrown upon section 80-O by the judgment of the Supreme Court in Continental Constructions case [1992] 195 ITR 81 , the Department took the view of rejecting the agreement in its entirety, and this court should not interfere therewith. ( 12 ) IN our view, it is not possible to postulate, as a general proposition of law, that all managerial services must necessarily be non-technical services it depends on the nature of the expertise required for rendering the managerial services. Ultimately, it would be a matter of evaluation of the factual details and a decision against the background of the factual matrix of each case. We are of the view that the Department, not having the benefit of the Supreme Courts judgment in Continentals case [1992] 195 ITR 81 , rejected the application made by the petitioners by taking a somewhat rigid view of the matter. However, now that Continentals case [1992] 195 ITR 81 has illuminated and elucidated the legal position, we are of the view that the matter must go back to the concerned respondents for a decision in accordance with the law as laid down by the Supreme Court in Continental Constructions case [1992] 195 ITR 81.
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In the light of this principle adopted by the supreme Court for interpretation of provisions in a taxing statute intended to promote growth and development, the petitioners contend that the expression "technical services" used in sectionmust also receive a liberal interpretation as the section is intended to promote economic growth, particularly where there is foreign participation which would bring in substantial foreign exchange earning. It we adopt a liberal interpretation, then there would be no difficulty in holding that the agreement for management services also would qualify for approval under sectionof the Act, according to the petitioners.12 ) IN our view, it is not possible to postulate, as a general proposition of law, that all managerial services must necessarily beservices it depends on the nature of the expertise required for rendering the managerial services. Ultimately, it would be a matter of evaluation of the factual details and a decision against the background of the factual matrix of each case. We are of the view that the Department, not having the benefit of the Supreme Courts judgment in Continentals case [1992] 195 ITR 81 , rejected the application made by the petitioners by taking a somewhat rigid view of the matter. However, now that Continentals case [1992] 195 ITR 81 has illuminated and elucidated the legal position, we are of the view that the matter must go back to the concerned respondents for a decision in accordance with the law as laid down by the Supreme Court in Continental Constructions case [1992] 195 ITR 81.
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Mamoo Vs. Ramunni | tenant includes a kanomdar. S.13 provides that notwithstanding anything to the contrary contained in any law, custom, usage or contract or in any decree or order of court, every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in S.14 to 22 of the Act. The only question in this appeal is whether the contesting defendants are kanomdars and therefore tenants within the meaning of the Act.5. The contesting defendants claimed (1) that the rights granted by Mayan to Baithan under the deed (Ex. A-3) dated February 5, 1929 are kanom rights, and (2) the deed (Ex. B-2) dated February 27, 1941 operates as a valid assignment of the aforesaid kanom rights by Baithan to defendants 1 to 5.6. Mr. Viswanatha Sastry contended that the rights granted by Ex. A-3 were rights of a usufructuary mortgagee, and were not kanom rights. We think that this contention is not open to Mr. Viswanatha Sastry. In the High Court, the appellants expressly conceded that Ex. A-3 was a kanom within the meaning of the Kerala Agrarian Relations Act, 1960. The definition of kanom in S.2(22) of the Kerala Land Reforms Act, 1963 is for all practical purposes the same as the definition of kanom in S.2(18) of the Kerala Agrarian Relation Act, 1960. Having regard to the admissions made by the appellants in the High Court, it must be held that Ex. A-3 was a kanom within the meaning of the Kerala Land Reforms Act, 1963.7. Mr. Viswanatha Sastry next contended that Ex. B-2 is a deed of surrender and cannot be construed as a deed of assignment of the kanom rights in favour of defendants 1 to 5. Now, Ex. B-2 is styled release deed in respect of kanom right, and its operative part reads as follows:"Since I have this day received to satisfaction in ready cash the sum of Rs. 935 made up of the above balance purappad of Rs. 135 and the kanom amount of Rs. 800, and which you have paid to me, the entire rights, liabilities, and claims belonging to me under the aforesaid kanom deed No. 266 and marupat deed No. 267, have been surrendered to you."It may be noticed that the kanom deed No. 266 is Ex. A-3 and the marupat deed No. 267 is Ex. A-4.8. Exhibit B-2 was registered. It was executed for a consideration paid by defendants 1 to 5 to Baithan. It discloses an intention to transfer the kanom rights of Baithan to defendants 1 to 5; its operative words are capable of passing the title, and on its true construction, it operates as an assignment. Mr. Viswanatha Sastry suggested that Ex. B-2 was stamped as a release and not as an assignment. But the paper book does not disclose the amount of the stamp paid on it. Moreover, the nomenclature of the deed and the amount of the stamp paid on it, though relevant, are not conclusive on the question of construction.9. In Mussumat Oodey Koowur v. Mussumat Ladoo (1870) 13 M.I.A. 585, the Privy Council held that a petition admitting that the petitioner had no claim to a certain estate did not operate as a conveyance of her subsequently acquired title, the petition having been filed in a pending suit by a petitioner having no present interest in the estate with a view to avoid an objection as to want of parties, and without receiving any consideration for the transfer of her future title. This case is an authority for the proposition that a bare admission in a document that the executant has no interest in a property, made without any consideration cannot pass his subsequently acquired title to the property. In Jadu Nath Poddar v. Rup Lal Poddar (1906) ILR. 33 Cal. 967, 983, 984, Dharam Chand v. Mauji Sahu (1912) 16 C.L.J. 436, Marak Lall v. Magoo Lall (1915) 22 C. L. J. 380, & Mathuramohan Saha v. Ram Kumar Saha (1915) 20 C.W.N. 370, 378, Mookerjee, J. held that a deed of release or relinquishment could not operate as a conveyance and could at most be taken as an admission that the executant had no interest in the property. But those cases do not lay down a proposition of universal application that a deed styled a deed of release cannot operate as a conveyance. In Hemendra Nath Mukherji v. Kumar Nath Roy 12 C.W.N. 478, by a registered deed called a deed of disclaimer the executants relinquished all their right, title and interest and claim in the properties in favour of the releasee upon the condition that the releasee would discharge certain debts and the executants would be under no liability to pay those debts. Though the deed was stamped only as a release and not with ad valorem stamp, Maclean, C.J. held that on its true construction it was a transfer. We think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex. B-2 clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.10. In view of this finding, it must follow that the kanom rights under Ex. A-3 were duly vested in defendants 1 to 5, and they became the kanomdars, and consequently, they are protected from evictionunder the Kerala Land Reforms Act, 1963.11. In view of this conclusion, it is not necessary to consider whether Ex. A-8 operated as an assignment of Korans leasehold rights in respect of items 3, 4 and 5 of the suit properties in favour of Abubacker and whether Ex. A-10 operated as a sub-lease by Abubacker to Raman. | 0[ds]We think that this contention is not open to Mr. Viswanatha Sastry. In the High Court, the appellants expressly conceded that Ex.was a kanom within the meaning of the Kerala Agrarian Relations Act, 1960. The definition of kanom in S.2(22) of the Kerala Land Reforms Act, 1963 is for all practical purposes the same as the definition of kanom in S.2(18) of the Kerala Agrarian Relation Act, 1960. Having regard to the admissions made by the appellants in the High Court, it must be held that Ex.was a kanom within the meaning of the Kerala Land Reforms Act,the paper book does not disclose the amount of the stamp paid on it. Moreover, the nomenclature of the deed and the amount of the stamp paid on it, though relevant, are not conclusive on the question ofthink that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex.clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.was registered. It was executed for a consideration paid by defendants 1 to 5 to Baithan. It discloses an intention to transfer the kanom rights of Baithan to defendants 1 to 5; its operative words are capable of passing the title, and on its true construction, it operates as an assignment.think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex.clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.In view of this finding, it must follow that the kanom rights under Ex.were duly vested in defendants 1 to 5, and they became the kanomdars, and consequently, they are protected from evictionunder the Kerala Land Reforms Act, 1963.11. In view of this conclusion, it is not necessary to consider whether Ex.operated as an assignment of Korans leasehold rights in respect of items 3, 4 and 5 of the suit properties in favour of Abubacker and whether Ex.operated as aby Abubacker to Raman. | 0 | 2,205 | 491 | ### 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:
tenant includes a kanomdar. S.13 provides that notwithstanding anything to the contrary contained in any law, custom, usage or contract or in any decree or order of court, every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in S.14 to 22 of the Act. The only question in this appeal is whether the contesting defendants are kanomdars and therefore tenants within the meaning of the Act.5. The contesting defendants claimed (1) that the rights granted by Mayan to Baithan under the deed (Ex. A-3) dated February 5, 1929 are kanom rights, and (2) the deed (Ex. B-2) dated February 27, 1941 operates as a valid assignment of the aforesaid kanom rights by Baithan to defendants 1 to 5.6. Mr. Viswanatha Sastry contended that the rights granted by Ex. A-3 were rights of a usufructuary mortgagee, and were not kanom rights. We think that this contention is not open to Mr. Viswanatha Sastry. In the High Court, the appellants expressly conceded that Ex. A-3 was a kanom within the meaning of the Kerala Agrarian Relations Act, 1960. The definition of kanom in S.2(22) of the Kerala Land Reforms Act, 1963 is for all practical purposes the same as the definition of kanom in S.2(18) of the Kerala Agrarian Relation Act, 1960. Having regard to the admissions made by the appellants in the High Court, it must be held that Ex. A-3 was a kanom within the meaning of the Kerala Land Reforms Act, 1963.7. Mr. Viswanatha Sastry next contended that Ex. B-2 is a deed of surrender and cannot be construed as a deed of assignment of the kanom rights in favour of defendants 1 to 5. Now, Ex. B-2 is styled release deed in respect of kanom right, and its operative part reads as follows:"Since I have this day received to satisfaction in ready cash the sum of Rs. 935 made up of the above balance purappad of Rs. 135 and the kanom amount of Rs. 800, and which you have paid to me, the entire rights, liabilities, and claims belonging to me under the aforesaid kanom deed No. 266 and marupat deed No. 267, have been surrendered to you."It may be noticed that the kanom deed No. 266 is Ex. A-3 and the marupat deed No. 267 is Ex. A-4.8. Exhibit B-2 was registered. It was executed for a consideration paid by defendants 1 to 5 to Baithan. It discloses an intention to transfer the kanom rights of Baithan to defendants 1 to 5; its operative words are capable of passing the title, and on its true construction, it operates as an assignment. Mr. Viswanatha Sastry suggested that Ex. B-2 was stamped as a release and not as an assignment. But the paper book does not disclose the amount of the stamp paid on it. Moreover, the nomenclature of the deed and the amount of the stamp paid on it, though relevant, are not conclusive on the question of construction.9. In Mussumat Oodey Koowur v. Mussumat Ladoo (1870) 13 M.I.A. 585, the Privy Council held that a petition admitting that the petitioner had no claim to a certain estate did not operate as a conveyance of her subsequently acquired title, the petition having been filed in a pending suit by a petitioner having no present interest in the estate with a view to avoid an objection as to want of parties, and without receiving any consideration for the transfer of her future title. This case is an authority for the proposition that a bare admission in a document that the executant has no interest in a property, made without any consideration cannot pass his subsequently acquired title to the property. In Jadu Nath Poddar v. Rup Lal Poddar (1906) ILR. 33 Cal. 967, 983, 984, Dharam Chand v. Mauji Sahu (1912) 16 C.L.J. 436, Marak Lall v. Magoo Lall (1915) 22 C. L. J. 380, & Mathuramohan Saha v. Ram Kumar Saha (1915) 20 C.W.N. 370, 378, Mookerjee, J. held that a deed of release or relinquishment could not operate as a conveyance and could at most be taken as an admission that the executant had no interest in the property. But those cases do not lay down a proposition of universal application that a deed styled a deed of release cannot operate as a conveyance. In Hemendra Nath Mukherji v. Kumar Nath Roy 12 C.W.N. 478, by a registered deed called a deed of disclaimer the executants relinquished all their right, title and interest and claim in the properties in favour of the releasee upon the condition that the releasee would discharge certain debts and the executants would be under no liability to pay those debts. Though the deed was stamped only as a release and not with ad valorem stamp, Maclean, C.J. held that on its true construction it was a transfer. We think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex. B-2 clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.10. In view of this finding, it must follow that the kanom rights under Ex. A-3 were duly vested in defendants 1 to 5, and they became the kanomdars, and consequently, they are protected from evictionunder the Kerala Land Reforms Act, 1963.11. In view of this conclusion, it is not necessary to consider whether Ex. A-8 operated as an assignment of Korans leasehold rights in respect of items 3, 4 and 5 of the suit properties in favour of Abubacker and whether Ex. A-10 operated as a sub-lease by Abubacker to Raman.
### Response:
0
### Explanation:
We think that this contention is not open to Mr. Viswanatha Sastry. In the High Court, the appellants expressly conceded that Ex.was a kanom within the meaning of the Kerala Agrarian Relations Act, 1960. The definition of kanom in S.2(22) of the Kerala Land Reforms Act, 1963 is for all practical purposes the same as the definition of kanom in S.2(18) of the Kerala Agrarian Relation Act, 1960. Having regard to the admissions made by the appellants in the High Court, it must be held that Ex.was a kanom within the meaning of the Kerala Land Reforms Act,the paper book does not disclose the amount of the stamp paid on it. Moreover, the nomenclature of the deed and the amount of the stamp paid on it, though relevant, are not conclusive on the question ofthink that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex.clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.was registered. It was executed for a consideration paid by defendants 1 to 5 to Baithan. It discloses an intention to transfer the kanom rights of Baithan to defendants 1 to 5; its operative words are capable of passing the title, and on its true construction, it operates as an assignment.think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex.clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.In view of this finding, it must follow that the kanom rights under Ex.were duly vested in defendants 1 to 5, and they became the kanomdars, and consequently, they are protected from evictionunder the Kerala Land Reforms Act, 1963.11. In view of this conclusion, it is not necessary to consider whether Ex.operated as an assignment of Korans leasehold rights in respect of items 3, 4 and 5 of the suit properties in favour of Abubacker and whether Ex.operated as aby Abubacker to Raman.
|
STATE OF MADHYA PRADESH & ORS. Vs. AMIT SHRIVAS | that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766] 19. The conclusion to be drawn from the aforesaid is that attaining the status of permanent employee would entitle one only to a minimum of the pay-scale without any increments. It is this aspect which was sought to be emphasised by learned counsel for the respondent to contend that this would not apply, because in the present case, krammonati and increments were given. However, we may note that in the order dated 7.2.2002 granting the benefit of monetary krammonati to employees, including the respondents father, it was specified that the same would not affect the posts of such employees. 20. The moot point, thus, is that having been granted increments, could a person be said to have reached the status of a regular employee? In order to answer this question, we may note that while considering this aspect in the aforesaid judgment, it was specifically opined that even if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms. We say so, not with the objective of giving a licence to the appellants to withdraw any of the benefits, which are already granted, and we make this unequivocally clear. However, we cannot at the same time make a conclusion that the status acquired is that of a regular employee upon having achieved the status of a permanent employee in service. 21. Thus, the classification of the late father of the respondent as a permanent employee, and this distinction between a permanent status and a regular status appears to have been lost sight of in the impugned judgments. 22. We may also notice the reliance placed by learned counsel for the respondent on certain other cases where orders similar in nature were passed by the High Court and an SLP against one of these orders was dismissed, but then we have already observed that this will not give a right for perpetuating something which is not permissible in law. 23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank & Ors. v. Promila & Anr. (2020) 2 SCC 729 We may usefully refer to paras 3, 4, & 5 as under: 3. There has been some confusion as to the scheme applicable and, thus, this Court directed the scheme prevalent, on the date of the death, to be placed before this Court for consideration, as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412 , qua what would be the cut-off date for application of such scheme. 4. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away. 5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment. 24. We are, thus, unable to give any relief to the respondent, much as we would have liked under the circumstances, but are constrained by the legal position. The family of the late employee has already been paid the entitlement as per applicable policy. 25. We may, however, notice a subsequent development arising from certain additional documents placed on record pertaining to the amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In terms of this Circular, the compassionate grant amount was increased from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on 31.8.2016, through which, a decision was taken that the dependents of deceased employees drawing a salary from the work- charged/contingency fund would be entitled to compassionate appointment, but it was clarified vide Circular dated 21.3.2017 that pending cases before the date of the 31.8.2016 Circular would be decided only in terms of the amended Policy dated 29.9.2014. That being the position, this last Circular also does not come to the aid of the respondent as it would amount to making the policy retrospectively applicable, while the Circular says to the contrary. 26. We, however, are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017, the relevant portion of which reads as under: 2. In this regard, it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date, will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014, i.e., they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly. 27. The aforesaid Circular records that pending cases will be decided in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority, but a pending lis before this Court. | 0[ds]14. It is trite to say that there cannot be any inherent right to compassionate appointment but rather, it is a right based on certain criteria, especially to provide succor to a needy family. This has to be in terms of the applicable policy as existing on the date of demise, unless a subsequent policy is made applicable retrospectively. (State of Gujarat & Ors. v. Arvindkumar T. Tiwari & Anr., (2012) 9 SCC 545 )15. Insofar as providing succor is concerned, unfortunately, since the demise of the late father of the respondent, 11 years have passed and really speaking, the aspect of providing succor to the family immediately does not survive.It is not in question that the Policy prevailing was one dated 18.8.2008. Clause 12.1 clearly proscribes work- charge/contingency fund and daily wager employees from compassionate appointment.16. In our view, the aforesaid plea misses the point of distinction between a work-charged employee, a permanent employee and a regular employee. The late father of the respondent was undoubtedly a work- charged employee and it is nobodys case that he has not been paid out of work-charged/contingency fund. He attained the status of a permanent employee on account of having completed 15 years of service, which entitled him to certain benefits including pension and krammonati. This will, however, not ipso facto give him the status of a regular employee.18. We are not required to labour much on the aforesaid issue and really speaking this issue is no more res integra in view of the judgment of this Court in Ram Naresh Rawat v. Ashwini Ray & Ors., (2017) 3 SCC 436 which opined that a permanent classification does not amount to regularisation. The case dealt with the aforesaid Standing Orders and it has been observed in paras 24, 26 & 27 as under:24. It is, thus, somewhat puzzling as to whether the employee, on getting the designation of permanent employee can be treated as regular employee. This answer does not flow from the reading of the Standing Orders Act and Rules. In common parlance, normally, a person who is known as permanent employee would be treated as a regular employee but it does not appear to be exactly that kind of situation in the instant case when we find that merely after completing six months service an employee gets right to be treated as permanent employee. Moreover, this Court has, as would be noticed now, drawn a distinction between permanent employee and regular employee.xxxx xxxx xxxx xxxx xxxx26. From the aforesaid, it follows that though a permanent employee has right to receive pay in the graded pay-scale, at the same time, he would be getting only minimum of the said pay- scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the pay-scale27. In view of the aforesaid, we do not find any substance in the contentions raised by the petitioners in these contempt petitions. We are conscious of the fact that in some cases, on earlier occasions, the State Government while fixing the pay scale, granted increments as well. However, if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766] 19. The conclusion to be drawn from the aforesaid is that attaining the status of permanent employee would entitle one only to a minimum of the pay-scale without any increments. It is this aspect which was sought to be emphasised by learned counsel for the respondent to contend that this would not apply, because in the present case, krammonati and increments were given. However, we may note that in the order dated 7.2.2002 granting the benefit of monetary krammonati to employees, including the respondents father, it was specified that the same would not affect the posts of such employees.In order to answer this question, we may note that while considering this aspect in the aforesaid judgment, it was specifically opined that even if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms. We say so, not with the objective of giving a licence to the appellants to withdraw any of the benefits, which are already granted, and we make this unequivocally clear. However, we cannot at the same time make a conclusion that the status acquired is that of a regular employee upon having achieved the status of a permanent employee in service.21. Thus, the classification of the late father of the respondent as a permanent employee, and this distinction between a permanent status and a regular status appears to have been lost sight of in the impugned judgments.22. We may also notice the reliance placed by learned counsel for the respondent on certain other cases where orders similar in nature were passed by the High Court and an SLP against one of these orders was dismissed, but then we have already observed that this will not give a right for perpetuating something which is not permissible in law.23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank & Ors. v. Promila & Anr. (2020) 2 SCC 729 We may usefully refer to paras 3, 4, & 5 as under:3. There has been some confusion as to the scheme applicable and, thus, this Court directed the scheme prevalent, on the date of the death, to be placed before this Court for consideration, as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412 , qua what would be the cut-off date for application of such scheme4. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment.. We are, thus, unable to give any relief to the respondent, much as we would have liked under the circumstances, but are constrained by the legal position. The family of the late employee has already been paid the entitlement as per applicable policy25. We may, however, notice a subsequent development arising from certain additional documents placed on record pertaining to the amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In terms of this Circular, the compassionate grant amount was increased from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on 31.8.2016, through which, a decision was taken that the dependents of deceased employees drawing a salary from the work- charged/contingency fund would be entitled to compassionate appointment, but it was clarified vide Circular dated 21.3.2017 that pending cases before the date of the 31.8.2016 Circular would be decided only in terms of the amended Policy dated 29.9.2014. That being the position, this last Circular also does not come to the aid of the respondent as it would amount to making the policy retrospectively applicable, while the Circular says to the contrary26. We, however, are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017, the relevant portion of which reads as under:2. In this regard, it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date, will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014, i.e., they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly.. The aforesaid Circular records that pending cases will be decided in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority, but a pending lis before this Court. | 0 | 3,573 | 1,668 | ### 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:
that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766] 19. The conclusion to be drawn from the aforesaid is that attaining the status of permanent employee would entitle one only to a minimum of the pay-scale without any increments. It is this aspect which was sought to be emphasised by learned counsel for the respondent to contend that this would not apply, because in the present case, krammonati and increments were given. However, we may note that in the order dated 7.2.2002 granting the benefit of monetary krammonati to employees, including the respondents father, it was specified that the same would not affect the posts of such employees. 20. The moot point, thus, is that having been granted increments, could a person be said to have reached the status of a regular employee? In order to answer this question, we may note that while considering this aspect in the aforesaid judgment, it was specifically opined that even if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms. We say so, not with the objective of giving a licence to the appellants to withdraw any of the benefits, which are already granted, and we make this unequivocally clear. However, we cannot at the same time make a conclusion that the status acquired is that of a regular employee upon having achieved the status of a permanent employee in service. 21. Thus, the classification of the late father of the respondent as a permanent employee, and this distinction between a permanent status and a regular status appears to have been lost sight of in the impugned judgments. 22. We may also notice the reliance placed by learned counsel for the respondent on certain other cases where orders similar in nature were passed by the High Court and an SLP against one of these orders was dismissed, but then we have already observed that this will not give a right for perpetuating something which is not permissible in law. 23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank & Ors. v. Promila & Anr. (2020) 2 SCC 729 We may usefully refer to paras 3, 4, & 5 as under: 3. There has been some confusion as to the scheme applicable and, thus, this Court directed the scheme prevalent, on the date of the death, to be placed before this Court for consideration, as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412 , qua what would be the cut-off date for application of such scheme. 4. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away. 5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment. 24. We are, thus, unable to give any relief to the respondent, much as we would have liked under the circumstances, but are constrained by the legal position. The family of the late employee has already been paid the entitlement as per applicable policy. 25. We may, however, notice a subsequent development arising from certain additional documents placed on record pertaining to the amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In terms of this Circular, the compassionate grant amount was increased from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on 31.8.2016, through which, a decision was taken that the dependents of deceased employees drawing a salary from the work- charged/contingency fund would be entitled to compassionate appointment, but it was clarified vide Circular dated 21.3.2017 that pending cases before the date of the 31.8.2016 Circular would be decided only in terms of the amended Policy dated 29.9.2014. That being the position, this last Circular also does not come to the aid of the respondent as it would amount to making the policy retrospectively applicable, while the Circular says to the contrary. 26. We, however, are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017, the relevant portion of which reads as under: 2. In this regard, it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date, will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014, i.e., they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly. 27. The aforesaid Circular records that pending cases will be decided in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority, but a pending lis before this Court.
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while fixing the pay scale, granted increments as well. However, if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766] 19. The conclusion to be drawn from the aforesaid is that attaining the status of permanent employee would entitle one only to a minimum of the pay-scale without any increments. It is this aspect which was sought to be emphasised by learned counsel for the respondent to contend that this would not apply, because in the present case, krammonati and increments were given. However, we may note that in the order dated 7.2.2002 granting the benefit of monetary krammonati to employees, including the respondents father, it was specified that the same would not affect the posts of such employees.In order to answer this question, we may note that while considering this aspect in the aforesaid judgment, it was specifically opined that even if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms. We say so, not with the objective of giving a licence to the appellants to withdraw any of the benefits, which are already granted, and we make this unequivocally clear. However, we cannot at the same time make a conclusion that the status acquired is that of a regular employee upon having achieved the status of a permanent employee in service.21. Thus, the classification of the late father of the respondent as a permanent employee, and this distinction between a permanent status and a regular status appears to have been lost sight of in the impugned judgments.22. We may also notice the reliance placed by learned counsel for the respondent on certain other cases where orders similar in nature were passed by the High Court and an SLP against one of these orders was dismissed, but then we have already observed that this will not give a right for perpetuating something which is not permissible in law.23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank & Ors. v. Promila & Anr. (2020) 2 SCC 729 We may usefully refer to paras 3, 4, & 5 as under:3. There has been some confusion as to the scheme applicable and, thus, this Court directed the scheme prevalent, on the date of the death, to be placed before this Court for consideration, as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412 , qua what would be the cut-off date for application of such scheme4. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment.. We are, thus, unable to give any relief to the respondent, much as we would have liked under the circumstances, but are constrained by the legal position. The family of the late employee has already been paid the entitlement as per applicable policy25. We may, however, notice a subsequent development arising from certain additional documents placed on record pertaining to the amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In terms of this Circular, the compassionate grant amount was increased from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on 31.8.2016, through which, a decision was taken that the dependents of deceased employees drawing a salary from the work- charged/contingency fund would be entitled to compassionate appointment, but it was clarified vide Circular dated 21.3.2017 that pending cases before the date of the 31.8.2016 Circular would be decided only in terms of the amended Policy dated 29.9.2014. That being the position, this last Circular also does not come to the aid of the respondent as it would amount to making the policy retrospectively applicable, while the Circular says to the contrary26. We, however, are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017, the relevant portion of which reads as under:2. In this regard, it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date, will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014, i.e., they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly.. The aforesaid Circular records that pending cases will be decided in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority, but a pending lis before this Court.
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Godavari Parulekar Vs. State Of Bombay And Others | be read into the order and when that is done we have an order which specifies a shorter period, therefore S. 11-A(2) does not serve to extend her detention.(5) We are unable to accept this contention. The S. is clear and unless a shorter period is specified in the order, S. 11-A (2) applies. We cannot add the words "or must be deemed to have been specified by reason of the expiry of the earlier Act" into the S. We hold therefore, that S. 11-A (2) validly extended the period of detention till 1/4/1953.(6) The petitioners next point is based on Arts. 14 and 22 (7) (b) of the Constitution. It arises in this way. S. 3 (1) (a), Preventive Detention Act of 1950, classifies grounds of permissible detention into three categories. Article 22 (7)(b) empowers Parliament to prescribe the maximum period for which any person may "in any class or classes of cases" be detained. The petitioner argues that this permits only one maximum for each class and that if different maxima are provided for "equals" within a class it offends not only Art. 22 (7) (b) but also Art. 14 as interpreted by the decisions of this Court. She next argues that S. 11-A, now introduced by the second amending Act of 1952 (Act 61 of 1952), does just that and so is ultra vires. Her point is put as follows :(7) Sub-Section (1) of S. 11-A states that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under S. 11 shall be twelve months from the date of detention. But sub-s. (2) qualifies this by dividing detentions into two classes: (a) those in which the detention was confirmed before 30/9/1952 and (b) those in which the confirmation was after that date, and it provides that in the former case, unless a shorter period is specified in the order , the detention shall continue either till 1/4/1953 or for twelve months from the date of detention, Whichever expires later. This, she says, introduces a fresh classification which divides detentions into those before the Act and those after. That, she says, is ultra vires, first, because it introduces a discriminatory classification in the class to which she belongs under S. 3 of the Act and, second, because it entails discrimination even in the fresh class into which she has been thrown by the new sub-division made by the second amending Act of 1952.(8) As regards the first point, theratio decidendi in - Shamrao V. Parulekar v. District Magistrate, Thana Bombay, 1952 SCR 683 applies here. In that case, detentions were divided into those which had already been considered by an Advisory Board and those which had not. This was upheld. The dividing line here is different, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time to time.(9) The life of the Act of 1950, which was the principal Act, was extended till 1/10/l952 by S. 2 of the amending Act (Act 34 of 1952), and the effect of S. 3 was to prolong the life of all detentions in force on 14/3/1952. (Provided they had been confirmed before that date) for so long as the principal Act was in force. At that date this meant till 1/10/1952. But the second amending Act of 1952 extended the life of the principal Act till 31/12/l954. Therefore, in the absence of S. 11-A all those detentions would have been extended till that date. But S. 11-A modified that and put 1/4/1953 as the latest date for these old detentions. It, therefore, conferred a benefit and cannot be deemed unreasonable. Sub-Section (3) of S. 11-A shows that that was the object.(10) But the petitioner attacked the provisions on the ground of discrimination. She said that even assuming the new classification of detentions into those before and after 30/9/1952 to be good, S. 11-A is nevertheless discriminatory because it discriminates amongst those in her class, namely those whose detentions were made and confirmed before the 30th of September. She put it in this way.(11) Taking the case of her own detention, she pointed out that, if S, 11-A is good, it will continue till 1/4/1953, that is to say, her detention will have been for a period of 171/2 months from 16/10/1951 till 1/4/1953. On the other hand, a person detained after her on, say, 1/9/1952, would also be due for release on 1/4/1953 and so would have had only six months detention.(12) This, in our opinion, is not discrimination within the meaning of Art. 14. A maximum can be fixed, either by specifying a particular period, such as twelve months, or by setting outside limit, and it is inevitable in such a case that the length of detention will vary in each individual case. Those taken into detention at a later date are bound to be detained for a shorter time. Goverment is not bound to detain everybody for the same length of time. It, has a disceretion. Moreover, the appropriate Government has been left power to revoke or modify the detention order at any earlier time. This point was consider in - Shamrao V. Parulekar v. District Magistrate, Thana, Bombay, 1952 SCR 683, and was decided against the detenu.(13) The petitioner endeavoured to have her application reopened on the merits contending again that the grounds of detention are vague. She relies on - Shamrao V. Parulekar v. The State of Bombay, Petn. No. 86 of 1952; (1952 SCR 683), where another detenu was released by another Bench of this Court in circumstances which, according to her, are very similar. We are unable to allow this as her petition has already been rejected on the merits. She wall only allowed to appear on constitutional points. We understand that in the other petition this fact was not brought to the notice of the Court. | 0[ds]The S. is clear and unless a shorter period is specified in the order, S. 11-A (2) applies. We cannot add the words "or must be deemed to have been specified by reason of the expiry of the earlier Act" into the S. We hold therefore, that S. 11-A (2) validly extended the period of detention tillAs regards the first point, theratio decidendi in - Shamrao V. Parulekar v. District Magistrate, Thana Bombay, 1952 SCR 683 applies here. In that case, detentions were divided into those which had already been considered by an Advisory Board and those which had not. This was upheld. The dividing line here is different, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time toin the absence of S. 11-A all those detentions would have been extended till that date. But S. 11-A modified that and put 1/4/1953 as the latest date for these old detentions. It, therefore, conferred a benefit and cannot be deemed unreasonable. Sub-Section (3) of S. 11-A shows that that was theThis, in our opinion, is not discrimination within the meaning of Art. 14. A maximum can be fixed, either by specifying a particular period, such as twelve months, or by setting outside limit, and it is inevitable in such a case that the length of detention will vary in each individual case. Those taken into detention at a later date are bound to be detained for a shorter time.is not bound to detain everybody for the same length of time. It, has aMoreover, the appropriate Government has been left power to revoke or modify the detention order at any earlier time. This point was consider in - Shamrao V. Parulekar v. District Magistrate, Thana, Bombay, 1952 SCR 683, and was decided against theare unable to allow this as her petition has already been rejected on the merits. She wall only allowed to appear on constitutional points. We understand that in the other petition this fact was not brought to the notice of the Court. | 0 | 1,561 | 403 | ### Instruction:
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be read into the order and when that is done we have an order which specifies a shorter period, therefore S. 11-A(2) does not serve to extend her detention.(5) We are unable to accept this contention. The S. is clear and unless a shorter period is specified in the order, S. 11-A (2) applies. We cannot add the words "or must be deemed to have been specified by reason of the expiry of the earlier Act" into the S. We hold therefore, that S. 11-A (2) validly extended the period of detention till 1/4/1953.(6) The petitioners next point is based on Arts. 14 and 22 (7) (b) of the Constitution. It arises in this way. S. 3 (1) (a), Preventive Detention Act of 1950, classifies grounds of permissible detention into three categories. Article 22 (7)(b) empowers Parliament to prescribe the maximum period for which any person may "in any class or classes of cases" be detained. The petitioner argues that this permits only one maximum for each class and that if different maxima are provided for "equals" within a class it offends not only Art. 22 (7) (b) but also Art. 14 as interpreted by the decisions of this Court. She next argues that S. 11-A, now introduced by the second amending Act of 1952 (Act 61 of 1952), does just that and so is ultra vires. Her point is put as follows :(7) Sub-Section (1) of S. 11-A states that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under S. 11 shall be twelve months from the date of detention. But sub-s. (2) qualifies this by dividing detentions into two classes: (a) those in which the detention was confirmed before 30/9/1952 and (b) those in which the confirmation was after that date, and it provides that in the former case, unless a shorter period is specified in the order , the detention shall continue either till 1/4/1953 or for twelve months from the date of detention, Whichever expires later. This, she says, introduces a fresh classification which divides detentions into those before the Act and those after. That, she says, is ultra vires, first, because it introduces a discriminatory classification in the class to which she belongs under S. 3 of the Act and, second, because it entails discrimination even in the fresh class into which she has been thrown by the new sub-division made by the second amending Act of 1952.(8) As regards the first point, theratio decidendi in - Shamrao V. Parulekar v. District Magistrate, Thana Bombay, 1952 SCR 683 applies here. In that case, detentions were divided into those which had already been considered by an Advisory Board and those which had not. This was upheld. The dividing line here is different, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time to time.(9) The life of the Act of 1950, which was the principal Act, was extended till 1/10/l952 by S. 2 of the amending Act (Act 34 of 1952), and the effect of S. 3 was to prolong the life of all detentions in force on 14/3/1952. (Provided they had been confirmed before that date) for so long as the principal Act was in force. At that date this meant till 1/10/1952. But the second amending Act of 1952 extended the life of the principal Act till 31/12/l954. Therefore, in the absence of S. 11-A all those detentions would have been extended till that date. But S. 11-A modified that and put 1/4/1953 as the latest date for these old detentions. It, therefore, conferred a benefit and cannot be deemed unreasonable. Sub-Section (3) of S. 11-A shows that that was the object.(10) But the petitioner attacked the provisions on the ground of discrimination. She said that even assuming the new classification of detentions into those before and after 30/9/1952 to be good, S. 11-A is nevertheless discriminatory because it discriminates amongst those in her class, namely those whose detentions were made and confirmed before the 30th of September. She put it in this way.(11) Taking the case of her own detention, she pointed out that, if S, 11-A is good, it will continue till 1/4/1953, that is to say, her detention will have been for a period of 171/2 months from 16/10/1951 till 1/4/1953. On the other hand, a person detained after her on, say, 1/9/1952, would also be due for release on 1/4/1953 and so would have had only six months detention.(12) This, in our opinion, is not discrimination within the meaning of Art. 14. A maximum can be fixed, either by specifying a particular period, such as twelve months, or by setting outside limit, and it is inevitable in such a case that the length of detention will vary in each individual case. Those taken into detention at a later date are bound to be detained for a shorter time. Goverment is not bound to detain everybody for the same length of time. It, has a disceretion. Moreover, the appropriate Government has been left power to revoke or modify the detention order at any earlier time. This point was consider in - Shamrao V. Parulekar v. District Magistrate, Thana, Bombay, 1952 SCR 683, and was decided against the detenu.(13) The petitioner endeavoured to have her application reopened on the merits contending again that the grounds of detention are vague. She relies on - Shamrao V. Parulekar v. The State of Bombay, Petn. No. 86 of 1952; (1952 SCR 683), where another detenu was released by another Bench of this Court in circumstances which, according to her, are very similar. We are unable to allow this as her petition has already been rejected on the merits. She wall only allowed to appear on constitutional points. We understand that in the other petition this fact was not brought to the notice of the Court.
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The S. is clear and unless a shorter period is specified in the order, S. 11-A (2) applies. We cannot add the words "or must be deemed to have been specified by reason of the expiry of the earlier Act" into the S. We hold therefore, that S. 11-A (2) validly extended the period of detention tillAs regards the first point, theratio decidendi in - Shamrao V. Parulekar v. District Magistrate, Thana Bombay, 1952 SCR 683 applies here. In that case, detentions were divided into those which had already been considered by an Advisory Board and those which had not. This was upheld. The dividing line here is different, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time toin the absence of S. 11-A all those detentions would have been extended till that date. But S. 11-A modified that and put 1/4/1953 as the latest date for these old detentions. It, therefore, conferred a benefit and cannot be deemed unreasonable. Sub-Section (3) of S. 11-A shows that that was theThis, in our opinion, is not discrimination within the meaning of Art. 14. A maximum can be fixed, either by specifying a particular period, such as twelve months, or by setting outside limit, and it is inevitable in such a case that the length of detention will vary in each individual case. Those taken into detention at a later date are bound to be detained for a shorter time.is not bound to detain everybody for the same length of time. It, has aMoreover, the appropriate Government has been left power to revoke or modify the detention order at any earlier time. This point was consider in - Shamrao V. Parulekar v. District Magistrate, Thana, Bombay, 1952 SCR 683, and was decided against theare unable to allow this as her petition has already been rejected on the merits. She wall only allowed to appear on constitutional points. We understand that in the other petition this fact was not brought to the notice of the Court.
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R. MUTHUKUMAR & ORS Vs. THE CHAIRMAN AND MANAGING DIRECTOR TANGEDCO & ORS | service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma and Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. Before discussing the ratio of the judgment, it would be useful to extract the factual context from which the dispute arose: 9. The moot question which requires determination is as to whether in the given case, approach of the Tribunal and the High Court was correct in extending the benefit of earlier judgment of the Tribunal, which had attained finality as it was affirmed till the Supreme Court. Whereas the Appellants contend that the Respondents herein did not approach the Court in time and were fence-sitters and, therefore, not entitled to the benefit of the said judgment by approaching the judicial forum belatedly. They also plead some distinguishing features on the basis of which it is contended that the case of the Respondents herein is not at par with the matter which was dealt with by the Tribunal in which order dated June 22, 1987 were passed giving benefit to those candidates who had approached the Court at that time. 23. It is thus, evident that in Aravind Kumar Srivastava (supra) the previous orders of the tribunal and the court were based on merits adjudication, and not based on concession; certainly not based on compromise. It was in the background of such facts that denial of relief to similarly situated claims, was held to be unjustified. Most importantly, for the purpose of this case, the court carved out an exception: that subsequent litigants, wishing to benefit from orders made in others cases, had to approach the courts in time, without delay or laches. In the facts of this case, there is no question of any finality to the compromise order: it cannot be treated, by any stretch of the imagination, as an order in rem, or as a binding precedent. Also, the aggrieved appellants, and the contesting candidates (in TANGEDCOs appeal) did not approach the court in time. They woke up after the compromise order, claiming parity, and filed petitions in the court. Clearly, therefore, they cannot claim any benefit from the compromise order. 24. A principle, axiomatic in this countrys constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj & Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81, this court ruled that: 8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Other decisions have enunciated or applied this principle (Ref: Chandigarh Admn. v. Jagjit Singh (1995) 1 SCC 745, Anand Buttons Ltd. v State of Haryana (2005) 9 SCC 164, K.K. Bhalla v. State of M.P. (2006) 3 SCC 581 ; Fuljit Kaur v. State of Punjab (2010) 11 SCC 455, and Chaman Lal v. State of Punjab (2014) 15 SCC 715) . Recently, in The State of Odisha v. Anup Kumar Senapati 2019 SCC Online SC 1207 this court observed as follows: If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. | 0[ds]20. A feature that stares at the face of the record before this court, is that the Division Bench, in its compromise order, proceeded to accept the terms proposed by the parties. The court did not examine - at least its order does not disclose any such consideration - the merits of the case, and why such proposal was justified in the facts of the case. It is one thing for a public employer, to concede in the course of proceedings, to an argument, which it had hitherto clung to, but was untenable. Fairness demands that public bodies, as model employers, do not pursue untenable submissions. In such cases, a concession, which is based on law, and accords to a just interpretation of the concerned law and/or rules, is sustainable. However, it is altogether another thing for a public employer, whose conduct is questioned, and who has succeeded on the merits of the case before the lower forum (in this case, the single judge) to voluntarily agree, in an unreasoned manner, to a compromise. The harm and deleterious effect of such conduct is to prioritize the claim of those before the court, when it is apparent that a large body of others, waiting with a similar grievance (and some of whom probably have a better or legitimate claim on merits to be appointed) are not parties to the proceedings. In such cases, a compromise is not only unjustified, it is contrary to law and public interest.21. This court, many years ago, in C. Channabasavaiah v. State of Mysore 1965 (1) SCR 360 faced a somewhat analogous situation. In that case, the state government had appointed sixteen persons pursuant to a compromise, which invited a charge of unfairness by it, from others who did not secure such a benefit. The court held that:1. By a notification dated September 26, 1959, the Mysore Public Service Commission announced that a competitive examination would be held for direct recruitment for Class I and Class II posts relating to certain Administrative Services and numerous applicants including the petitioners themselves as candidates. On September 5, 1960, the Public Service Commission modified the earlier notification and instead of holding an examination announced that the selection would be made solely on the results of a viva voce test. The petitioners characterised this change as opposed to the Mysore Administrative Service Recruitment Rules, 1957 but during the hearing of these petitions this ground of attack was abandoned perhaps in view of what happened later.2. The Public Service Commission duly held the viva voce interviews and on July 29, 1961 they published a list of ninety-eight candidates who they announced were selected. After the announcement of the results the State Government sent for the consideration of the Commission a list of twenty-four candidates and as the Commission approved of them they were also appointed on March 7, 1962. In giving their concurrence the Commission purported to take power from a foot-note added to sub-rule (3) of r. 4 of the Mysore Public Service Commission (Functions) Rules, 1957. Sixteen candidates, who were not selected, filed petitions under Articles 14, 15 and16 of the Constitution in the High Court of Mysore. On November 26, 1962 there was a compromise and the Government undertook to appoint the petitioners before the High Court. Of these thirteen had attended the viva voce test but three had not been called for it. In this way there were three sets of appointments: the first of ninety-eight candidates, the second of twenty-four candidates and the third of sixteen candidates. There were in all 1,777 applicants who were called for the viva voce test. A very large number of the applicants was not called for the test and the High Court of Mysore in the petition of the three petitioners who had not been called for the viva voce test directed the Commission to call them and the Commission then called 203 candidates who were in the same category as the three petitioners in the High Court. It may be pointed out that at the first viva voce test eighty-eight candidates and at the second test ten candidates were selected, thus making the total number ninety-eight.3. Encouraged by what had happened to those who had petitioned to the High Court, the other candidates who had not succeeded applied for writs under Articles 14, 15 and 16 of the Constitution. Their petitions were summarily dismissed by the High Court.********* ********* ******9. Taking the case of the sixteen candidates first, it appears to us, that since most of these candidates had obtained fewer marks than some of the rejected candidates it is impossible to sustain their selection. To begin with it was wrong of the High Court to allow a compromise of this kind to be effected when it was patently obvious that three candidates had not attended the viva voce test at all and there was nothing before the High Court for comparing the remaining thirteen candidates with those who had failed in the selection. There were allegations of nepotism which had not been abandoned and find now that most of these candidates do not rank as high as some of the rejected candidates. In such a case the court should be slow to accept compromises unless it is made clear that what is being done dose not prejudice anybody else. To act otherwise opens the court itself to the charge that it did something just as bad as what was complained against. In our opinion, the appointment of these sixteen candidates cannot be accepted and the petitioners are entitled to claim that their marks should be compared with those obtained by the petitioners and the selection made on merit and merit alone. For this purpose, of course, the three candidates who were not called for the test would have to be called and marks given to them. Otherwise they cannot be considered at all.In a more recent judgment, Ahmedabad Municipal Corporation & Ors. v. Rajubhai Somabhai Bharwad & Ors. 2015 (7) SCC 663 the question was whether a sarpanch could enter into a compromise and agree to take back an employee. This court decisively held that such a compromise was not legal:17. The purpose of our referring to the same is that the parliament by the Constitutional amendment required the State Legislature to bring their State laws in conformity with Part IX of the Constitution, Power has been conferred on the Panchayats so that they are able to function as an institution of self-Government. The State Legislature has also been empowered to make provisions by which powers are given to the Gram Panchayats. Once responsibility is given they are to be carried out with sanguine responsibility. A Sarpanch, as we perceive in this case, by entering into a settlement has not only acted contrary to the provisions of the Act and but also the spirit of the responsibility cast on the local self-Government.18. In this context, we cannot be oblivious of a very significant facet. The Labour Court as we find in a single line order has accepted the settlement and has not made any endeavour to even find out whether the Sarpanch was authorised with any kind of resolution to enter into compromise/settlement by the village panchayat. He should have borne in mind that it is not the Sarpanch who was the employer; that much of scrutiny was required on the part of the Labour Court. It will not be a hyperbole if it is said that it is the bounden duty on the part of the presiding officer of the Labour Court to do so and we say so without any hesitation, for court has a sacred duty to scrutinize whether a valid compromise has been entered into or not. He has to be satisfied that the compromise is lawful.19. In view of the aforesaid analysis, we allow the appeals set aside the order passed by the learned Single Judge and that of the Labour Court and remit the matter to the Labour Court for fresh adjudication.22. The lynchpin of the appellants submission was their reliance on Aravind Kumar Srivastava (supra).In that case, this court after reviewing several cases cited by the parties, had summarized the correct approach in matters where concession- based orders could (or could not) be treated as precedent:23. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the Appellants as well as the Respondents, can be summed up as under:(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma and Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.Before discussing the ratio of the judgment, it would be useful to extract the factual context from which the dispute arose:9. The moot question which requires determination is as to whether in the given case, approach of the Tribunal and the High Court was correct in extending the benefit of earlier judgment of the Tribunal, which had attained finality as it was affirmed till the Supreme Court. Whereas the Appellants contend that the Respondents herein did not approach the Court in time and were fence-sitters and, therefore, not entitled to the benefit of the said judgment by approaching the judicial forum belatedly. They also plead some distinguishing features on the basis of which it is contended that the case of the Respondents herein is not at par with the matter which was dealt with by the Tribunal in which order dated June 22, 1987 were passed giving benefit to those candidates who had approached the Court at that time.23. It is thus, evident that in Aravind Kumar Srivastava (supra) the previous orders of the tribunal and the court were based on merits adjudication, and not based on concession; certainly not based on compromise. It was in the background of such facts that denial of relief to similarly situated claims, was held to be unjustified. Most importantly, for the purpose of this case, the court carved out an exception: that subsequent litigants, wishing to benefit from orders made in others cases, had to approach the courts in time, without delay or laches. In the facts of this case, there is no question of any finality to the compromise order: it cannot be treated, by any stretch of the imagination, as an order in rem, or as a binding precedent. Also, the aggrieved appellants, and the contesting candidates (in TANGEDCOs appeal) did not approach the court in time. They woke up after the compromise order, claiming parity, and filed petitions in the court. Clearly, therefore, they cannot claim any benefit from the compromise order.In Basawaraj & Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81, this court ruled that:8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated.Other decisions have enunciated or applied this principle (Ref: Chandigarh Admn. v. Jagjit Singh (1995) 1 SCC 745, Anand Buttons Ltd. v State of Haryana (2005) 9 SCC 164, K.K. Bhalla v. State of M.P. (2006) 3 SCC 581 ; Fuljit Kaur v. State of Punjab (2010) 11 SCC 455, and Chaman Lal v. State of Punjab (2014) 15 SCC 715) . Recently, in The State of Odisha v. Anup Kumar Senapati 2019 SCC Online SC 1207 this court observed as follows:If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. | 0 | 7,021 | 2,685 | ### 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:
service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma and Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. Before discussing the ratio of the judgment, it would be useful to extract the factual context from which the dispute arose: 9. The moot question which requires determination is as to whether in the given case, approach of the Tribunal and the High Court was correct in extending the benefit of earlier judgment of the Tribunal, which had attained finality as it was affirmed till the Supreme Court. Whereas the Appellants contend that the Respondents herein did not approach the Court in time and were fence-sitters and, therefore, not entitled to the benefit of the said judgment by approaching the judicial forum belatedly. They also plead some distinguishing features on the basis of which it is contended that the case of the Respondents herein is not at par with the matter which was dealt with by the Tribunal in which order dated June 22, 1987 were passed giving benefit to those candidates who had approached the Court at that time. 23. It is thus, evident that in Aravind Kumar Srivastava (supra) the previous orders of the tribunal and the court were based on merits adjudication, and not based on concession; certainly not based on compromise. It was in the background of such facts that denial of relief to similarly situated claims, was held to be unjustified. Most importantly, for the purpose of this case, the court carved out an exception: that subsequent litigants, wishing to benefit from orders made in others cases, had to approach the courts in time, without delay or laches. In the facts of this case, there is no question of any finality to the compromise order: it cannot be treated, by any stretch of the imagination, as an order in rem, or as a binding precedent. Also, the aggrieved appellants, and the contesting candidates (in TANGEDCOs appeal) did not approach the court in time. They woke up after the compromise order, claiming parity, and filed petitions in the court. Clearly, therefore, they cannot claim any benefit from the compromise order. 24. A principle, axiomatic in this countrys constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj & Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81, this court ruled that: 8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Other decisions have enunciated or applied this principle (Ref: Chandigarh Admn. v. Jagjit Singh (1995) 1 SCC 745, Anand Buttons Ltd. v State of Haryana (2005) 9 SCC 164, K.K. Bhalla v. State of M.P. (2006) 3 SCC 581 ; Fuljit Kaur v. State of Punjab (2010) 11 SCC 455, and Chaman Lal v. State of Punjab (2014) 15 SCC 715) . Recently, in The State of Odisha v. Anup Kumar Senapati 2019 SCC Online SC 1207 this court observed as follows: If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision.
### Response:
0
### Explanation:
summed up as under:(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma and Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.Before discussing the ratio of the judgment, it would be useful to extract the factual context from which the dispute arose:9. The moot question which requires determination is as to whether in the given case, approach of the Tribunal and the High Court was correct in extending the benefit of earlier judgment of the Tribunal, which had attained finality as it was affirmed till the Supreme Court. Whereas the Appellants contend that the Respondents herein did not approach the Court in time and were fence-sitters and, therefore, not entitled to the benefit of the said judgment by approaching the judicial forum belatedly. They also plead some distinguishing features on the basis of which it is contended that the case of the Respondents herein is not at par with the matter which was dealt with by the Tribunal in which order dated June 22, 1987 were passed giving benefit to those candidates who had approached the Court at that time.23. It is thus, evident that in Aravind Kumar Srivastava (supra) the previous orders of the tribunal and the court were based on merits adjudication, and not based on concession; certainly not based on compromise. It was in the background of such facts that denial of relief to similarly situated claims, was held to be unjustified. Most importantly, for the purpose of this case, the court carved out an exception: that subsequent litigants, wishing to benefit from orders made in others cases, had to approach the courts in time, without delay or laches. In the facts of this case, there is no question of any finality to the compromise order: it cannot be treated, by any stretch of the imagination, as an order in rem, or as a binding precedent. Also, the aggrieved appellants, and the contesting candidates (in TANGEDCOs appeal) did not approach the court in time. They woke up after the compromise order, claiming parity, and filed petitions in the court. Clearly, therefore, they cannot claim any benefit from the compromise order.In Basawaraj & Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81, this court ruled that:8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated.Other decisions have enunciated or applied this principle (Ref: Chandigarh Admn. v. Jagjit Singh (1995) 1 SCC 745, Anand Buttons Ltd. v State of Haryana (2005) 9 SCC 164, K.K. Bhalla v. State of M.P. (2006) 3 SCC 581 ; Fuljit Kaur v. State of Punjab (2010) 11 SCC 455, and Chaman Lal v. State of Punjab (2014) 15 SCC 715) . Recently, in The State of Odisha v. Anup Kumar Senapati 2019 SCC Online SC 1207 this court observed as follows:If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision.
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Khardah Co. Ltd Vs. Their Workmen | the appellant urged that Mahoboob was not present on the said date, and so, the story that his request for leave was not acceded to and he had to work is altogether false and the strike had really been instigated by Jadav. On this point, the Tribunal has made a categorical finding against the appellant and in doing so, it has relied upon the minutes of the Emergency Works Committee meeting held on October 3, 1960 at 3 P. M. with the Manager himself in the chair. These minutes show that when an enquiry was made as to why the strike had commenced, it was definitely reported to the Committee that Mahboob, who had gone on leave, had extended his leave and after the expiry of the extended leave, he reported on October 3, and pleaded that he was still unwell and should be given still further leave, but "nobody paid any heed to his prayer, and so presumably he had to resume duty. The minutes further show that the Labour Officer informed the members of the Committee that Mahboob had produced a certificate of fitness of September 22, 1960 and after discussion, it was unanimously decided to refer his case to the Mills Medical Officer on whose recommendation the leave should be considered. These minutes, therefore, clearly prove that Mahboob had gone to the Mill on October 3, had asked for further leave and his request for further leave was not granted. We ought to add that these minutes have been signed by the Joint Secretary on the employers side and the Joint Secretary on the employees side, and their correctness cannot be impeached. It is in the light of these statements that the plea made by the appellant before the Tribunal had to be considered by it.13. The plea specifically made was that Mahboob was absent on October 3, and, therefore, there was no question of his working on any machine. This plea would seem to suggest that Mahboob was absent from the Mill and that undoubtedly is not true. The learned Solicitor-General invited us to consider this plea in the light of the statement made by one of the witnesses in the domestic enquiry. This statement was that Mahboob and the witness had gone to the Labour Officer for extension of leave to Mahboob and the Labour Officer had granted leave. This statement would show that leave had been granted to Mahboob in the morning of 3rd October, but as we have already seen, the Labour Officer himself told the members of the Works Committee at 3 P. M. on the same day that leave had not been granted to Mahboob because he had produced a certificate of fitness dated September 22 and the Works Committee had resolved that Mahboobs case should be referred to the Mills Medical Officer on whose recommendation action should be taken. Thus, there can be no doubt that even if the plea made by the appellant is liberally construed and is read in the light of the statement made by one of the witnesses at the domestic enquiry, the Industrial Tribunal was right in holding that the stand taken by the appellant was wholly untrue and that Mahboob had not been given leave on 3rd October. That being, so, if the Industrial Tribunal took the view that the refusal of the management to give leave to Mahboob exasperated the workmen, we cannot hold that its conclusion is erroneous or that its propriety can be successfully challenged before us. The incident in regard to Mahboob forms the main background of the strike and the anxiety of the appellant was to show that Mahboob was not present on that date. Therefore, once the Industrial Tribunal came to the conclusion that the version given by the appellant was untrue, it naturally changed the complextion of the whole of the charge-sheet framed by the appellant against Jadav. That is why the Industrial Tribunal came to the conclusion that the conduct of the appellant in dismissing Jadav showed lack of good faith and appeared to have been inspired by the desire to victimise Jadav for his trade union activities.14. The learned Solicitor-General commented on the fact that the Tribunal had allowed the respondents to call for the register of trade unions after the arguments had been heard before it.. It appears that both the parties appeared before the Tribunal on January 19, 1961 when arguments were heard and the award was reserved. The Union then filed an application praying that the trade union record may be called for, and the Tribunal ordered that the record be called for. The grievance made by the learned Solicitor-General is that it is improper to have allowed additional evidence to be called for after the arguments had been heard. We do not think there is any force in this argument, because the only purpose for which the record was called for by the Union was to show that Jadav was the Organising Secretary to the Union. Since that fact was presumably disputed by the appellant in arguing the case before the Tribunal, the Union urged that the record kept by the Registrar of Trade Unions would show that the appellants plea was not well founded. If, in such circumstances, the Tribunal sent for the record to satisfy itself that the record showed that Jadav was the Organising Secretary of the Union, we do not think any serous grievance can be made by the appellant about the conduct of the Tribunal. It is perfectly true that in dealing with industrial matters, the Tribunal cannot allow evidence to be led by one party in the absence of the other, and should not accept the request of either party to admit evidence after the case has been fully argued unless both the parties agree. In the present case, however, what the Tribunal has done, is merely to send for authenticated record to see whether Jadav was the Organising Secretary of the Union or not. | 0[ds]There is no doubt that this Court has consistently refrained from interfering with the conclusion reached by the enquiry officer who conducts domestic enquiries against industrial employees unless one of the four tests laid down in the case of Indian Iron and Steel Co. Ltd. 1957-1 Lab LJ 260 : (AIR 1958 SC 130 ) is satisfied, because we have generally accepted the view that if the enquiry is fairly held and leads to the conclusion that the charge framed against the employee is proved, the Industrial Tribunal should not sit in appeal over the finding recorded at the said enquiry and should not interfere with the managements right to dismiss a workman who is found guilty ofwe would discourage the idea of recording statements of witnesses ex parate and then producing the witnesses before the employee concerned for cross-examination after serving him with such previously recorded statements even though the witnesses concerned make a general statement on the latter occasion that their statements already recorded correctly represent what they stated. In our opinion, unless there are compelling reasons to do so, the normal procedure should be followed and all evidence should be recorded in the presence of the workman who stands charged with the commission of acts constituting misconduct.Take the present case where, after the enquiry was held, the Manager who held the enquiry has not recorded any findings, and so, we do not know what reasons weighed in his mind and how he appreciated the evidence led beforeWe are not impressed by this argument. The whole object of holding an enquiry is to enable the enquiry officer to decide upon the merits of dispute before him, and so, it would be idle to contend that once evidence is recorded, all that the employer is expected to do is to pass an order of dismissal which impliedly indicates that the employer accepted the view that the charges framed against the employee had been proved. One of the tests which the Industrial Tribunal is entitled to apply in dealing with industrial disputes of this character is whether the conclusion of the enquiry officer was perverse or whether there was any basic error in the approach adopted by him. Now, such an enquiry would be impossible in the present case because we do not know how the enquiry officer approached the question and what conclusions he reached before he decided to dismiss Jadav. In our opinion, therefore, the failure of the Manager to record any findings after holding the enquiry constitutes a serious infirmity in the enquiry itself. The learned Solicitor-General suggested that we might consider the evidence ourselves and decide whether the dismissal of Jadav is justified or not. We are not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the conclusions reached at the end of such enquiries, that necessarily postulates that the enquire would be followed by a statement containing the conclusions of the enquiry officer. It may be that the enquiry officer need not writ a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusions and to indicate briefly his reasons for reaching the said conclusions, Unless such a course is adopted, it would be difficult for the Industrial Tribunal to decide whether the approach adopted by the enquiry officer was basically erroneous or whether his conclusions were perverse. Indeed, if the argument urged before us by the learned Solicitor-General is accepted, it is likely to impair substantially the value of such domestic enquiries. As we have already observed, we must insist on a proper enquiry being held, and that means that nothing should happen in the enquiry either when it is held or after it is concluded and before the order of dismissal is passed, which would expose the enquiry to the criticism that it was undertaken as an empty formality. Therefore, we are satisfied that the Industrial Tribunal was right in not attaching any importance to the enquiry held by the Manager in dealing with the merits of the dispute itself on the evidence adduced before it.In the present case, the Tribunal has come to the conclusion that the dismissal of Jadav was not effected in good faith and has been actuated by a desire to victimise him for his trade union activities. That is a conclusion of fact which cannot be said to be perverse, and so, it is not open to the appellant to challenge its correctness on the merits before us.12. There is one point to which we ought to refer before we part with this appeal. It appears that the main dispute between the parties was whether the strike on October 3, 1960 was spontaneous, or had been instigated byminutes show that when an enquiry was made as to why the strike had commenced, it was definitely reported to the Committee that Mahboob, who had gone on leave, had extended his leave and after the expiry of the extended leave, he reported on October 3, and pleaded that he was still unwell and should be given still further leave, but "nobody paid any heed to his prayer, and so presumably he had to resume duty. The minutes further show that the Labour Officer informed the members of the Committee that Mahboob had produced a certificate of fitness of September 22, 1960 and after discussion, it was unanimously decided to refer his case to the Mills Medical Officer on whose recommendation the leave should be considered. These minutes, therefore, clearly prove that Mahboob had gone to the Mill on October 3, had asked for further leave and his request for further leave was not granted. We ought to add that these minutes have been signed by the Joint Secretary on the employers side and the Joint Secretary on the employees side, and their correctness cannot be impeached. It is in the light of these statements that the plea made by the appellant before the Tribunal had to be considered by it.13. The plea specifically made was that Mahboob was absent on October 3, and, therefore, there was no question of his working on any machine. This plea would seem to suggest that Mahboob was absent from the Mill and that undoubtedly is notstatement would show that leave had been granted to Mahboob in the morning of 3rd October, but as we have already seen, the Labour Officer himself told the members of the Works Committee at 3 P. M. on the same day that leave had not been granted to Mahboob because he had produced a certificate of fitness dated September 22 and the Works Committee had resolved that Mahboobs case should be referred to the Mills Medical Officer on whose recommendation action should be taken. Thus, there can be no doubt that even if the plea made by the appellant is liberally construed and is read in the light of the statement made by one of the witnesses at the domestic enquiry, the Industrial Tribunal was right in holding that the stand taken by the appellant was wholly untrue and that Mahboob had not been given leave on 3rd October. That being, so, if the Industrial Tribunal took the view that the refusal of the management to give leave to Mahboob exasperated the workmen, we cannot hold that its conclusion is erroneous or that its propriety can be successfully challenged before us. The incident in regard to Mahboob forms the main background of the strike and the anxiety of the appellant was to show that Mahboob was not present on that date. Therefore, once the Industrial Tribunal came to the conclusion that the version given by the appellant was untrue, it naturally changed the complextion of the whole of the charge-sheet framed by the appellant against Jadav. That is why the Industrial Tribunal came to the conclusion that the conduct of the appellant in dismissing Jadav showed lack of good faith and appeared to have been inspired by the desire to victimise Jadav for his trade unionIt appears that both the parties appeared before the Tribunal on January 19, 1961 when arguments were heard and the award was reserved. The Union then filed an application praying that the trade union record may be called for, and the Tribunal ordered that the record be called for.We do not think there is any force in this argument, because the only purpose for which the record was called for by the Union was to show that Jadav was the Organising Secretary to the Union. Since that fact was presumably disputed by the appellant in arguing the case before the Tribunal, the Union urged that the record kept by the Registrar of Trade Unions would show that the appellants plea was not well founded. If, in such circumstances, the Tribunal sent for the record to satisfy itself that the record showed that Jadav was the Organising Secretary of the Union, we do not think any serous grievance can be made by the appellant about the conduct of the Tribunal. It is perfectly true that in dealing with industrial matters, the Tribunal cannot allow evidence to be led by one party in the absence of the other, and should not accept the request of either party to admit evidence after the case has been fully argued unless both the parties agree. In the present case, however, what the Tribunal has done, is merely to send for authenticated record to see whether Jadav was the Organising Secretary of the Union or not. | 0 | 4,037 | 1,712 | ### 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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the appellant urged that Mahoboob was not present on the said date, and so, the story that his request for leave was not acceded to and he had to work is altogether false and the strike had really been instigated by Jadav. On this point, the Tribunal has made a categorical finding against the appellant and in doing so, it has relied upon the minutes of the Emergency Works Committee meeting held on October 3, 1960 at 3 P. M. with the Manager himself in the chair. These minutes show that when an enquiry was made as to why the strike had commenced, it was definitely reported to the Committee that Mahboob, who had gone on leave, had extended his leave and after the expiry of the extended leave, he reported on October 3, and pleaded that he was still unwell and should be given still further leave, but "nobody paid any heed to his prayer, and so presumably he had to resume duty. The minutes further show that the Labour Officer informed the members of the Committee that Mahboob had produced a certificate of fitness of September 22, 1960 and after discussion, it was unanimously decided to refer his case to the Mills Medical Officer on whose recommendation the leave should be considered. These minutes, therefore, clearly prove that Mahboob had gone to the Mill on October 3, had asked for further leave and his request for further leave was not granted. We ought to add that these minutes have been signed by the Joint Secretary on the employers side and the Joint Secretary on the employees side, and their correctness cannot be impeached. It is in the light of these statements that the plea made by the appellant before the Tribunal had to be considered by it.13. The plea specifically made was that Mahboob was absent on October 3, and, therefore, there was no question of his working on any machine. This plea would seem to suggest that Mahboob was absent from the Mill and that undoubtedly is not true. The learned Solicitor-General invited us to consider this plea in the light of the statement made by one of the witnesses in the domestic enquiry. This statement was that Mahboob and the witness had gone to the Labour Officer for extension of leave to Mahboob and the Labour Officer had granted leave. This statement would show that leave had been granted to Mahboob in the morning of 3rd October, but as we have already seen, the Labour Officer himself told the members of the Works Committee at 3 P. M. on the same day that leave had not been granted to Mahboob because he had produced a certificate of fitness dated September 22 and the Works Committee had resolved that Mahboobs case should be referred to the Mills Medical Officer on whose recommendation action should be taken. Thus, there can be no doubt that even if the plea made by the appellant is liberally construed and is read in the light of the statement made by one of the witnesses at the domestic enquiry, the Industrial Tribunal was right in holding that the stand taken by the appellant was wholly untrue and that Mahboob had not been given leave on 3rd October. That being, so, if the Industrial Tribunal took the view that the refusal of the management to give leave to Mahboob exasperated the workmen, we cannot hold that its conclusion is erroneous or that its propriety can be successfully challenged before us. The incident in regard to Mahboob forms the main background of the strike and the anxiety of the appellant was to show that Mahboob was not present on that date. Therefore, once the Industrial Tribunal came to the conclusion that the version given by the appellant was untrue, it naturally changed the complextion of the whole of the charge-sheet framed by the appellant against Jadav. That is why the Industrial Tribunal came to the conclusion that the conduct of the appellant in dismissing Jadav showed lack of good faith and appeared to have been inspired by the desire to victimise Jadav for his trade union activities.14. The learned Solicitor-General commented on the fact that the Tribunal had allowed the respondents to call for the register of trade unions after the arguments had been heard before it.. It appears that both the parties appeared before the Tribunal on January 19, 1961 when arguments were heard and the award was reserved. The Union then filed an application praying that the trade union record may be called for, and the Tribunal ordered that the record be called for. The grievance made by the learned Solicitor-General is that it is improper to have allowed additional evidence to be called for after the arguments had been heard. We do not think there is any force in this argument, because the only purpose for which the record was called for by the Union was to show that Jadav was the Organising Secretary to the Union. Since that fact was presumably disputed by the appellant in arguing the case before the Tribunal, the Union urged that the record kept by the Registrar of Trade Unions would show that the appellants plea was not well founded. If, in such circumstances, the Tribunal sent for the record to satisfy itself that the record showed that Jadav was the Organising Secretary of the Union, we do not think any serous grievance can be made by the appellant about the conduct of the Tribunal. It is perfectly true that in dealing with industrial matters, the Tribunal cannot allow evidence to be led by one party in the absence of the other, and should not accept the request of either party to admit evidence after the case has been fully argued unless both the parties agree. In the present case, however, what the Tribunal has done, is merely to send for authenticated record to see whether Jadav was the Organising Secretary of the Union or not.
### Response:
0
### Explanation:
domestic enquiries. As we have already observed, we must insist on a proper enquiry being held, and that means that nothing should happen in the enquiry either when it is held or after it is concluded and before the order of dismissal is passed, which would expose the enquiry to the criticism that it was undertaken as an empty formality. Therefore, we are satisfied that the Industrial Tribunal was right in not attaching any importance to the enquiry held by the Manager in dealing with the merits of the dispute itself on the evidence adduced before it.In the present case, the Tribunal has come to the conclusion that the dismissal of Jadav was not effected in good faith and has been actuated by a desire to victimise him for his trade union activities. That is a conclusion of fact which cannot be said to be perverse, and so, it is not open to the appellant to challenge its correctness on the merits before us.12. There is one point to which we ought to refer before we part with this appeal. It appears that the main dispute between the parties was whether the strike on October 3, 1960 was spontaneous, or had been instigated byminutes show that when an enquiry was made as to why the strike had commenced, it was definitely reported to the Committee that Mahboob, who had gone on leave, had extended his leave and after the expiry of the extended leave, he reported on October 3, and pleaded that he was still unwell and should be given still further leave, but "nobody paid any heed to his prayer, and so presumably he had to resume duty. The minutes further show that the Labour Officer informed the members of the Committee that Mahboob had produced a certificate of fitness of September 22, 1960 and after discussion, it was unanimously decided to refer his case to the Mills Medical Officer on whose recommendation the leave should be considered. These minutes, therefore, clearly prove that Mahboob had gone to the Mill on October 3, had asked for further leave and his request for further leave was not granted. We ought to add that these minutes have been signed by the Joint Secretary on the employers side and the Joint Secretary on the employees side, and their correctness cannot be impeached. It is in the light of these statements that the plea made by the appellant before the Tribunal had to be considered by it.13. The plea specifically made was that Mahboob was absent on October 3, and, therefore, there was no question of his working on any machine. This plea would seem to suggest that Mahboob was absent from the Mill and that undoubtedly is notstatement would show that leave had been granted to Mahboob in the morning of 3rd October, but as we have already seen, the Labour Officer himself told the members of the Works Committee at 3 P. M. on the same day that leave had not been granted to Mahboob because he had produced a certificate of fitness dated September 22 and the Works Committee had resolved that Mahboobs case should be referred to the Mills Medical Officer on whose recommendation action should be taken. Thus, there can be no doubt that even if the plea made by the appellant is liberally construed and is read in the light of the statement made by one of the witnesses at the domestic enquiry, the Industrial Tribunal was right in holding that the stand taken by the appellant was wholly untrue and that Mahboob had not been given leave on 3rd October. That being, so, if the Industrial Tribunal took the view that the refusal of the management to give leave to Mahboob exasperated the workmen, we cannot hold that its conclusion is erroneous or that its propriety can be successfully challenged before us. The incident in regard to Mahboob forms the main background of the strike and the anxiety of the appellant was to show that Mahboob was not present on that date. Therefore, once the Industrial Tribunal came to the conclusion that the version given by the appellant was untrue, it naturally changed the complextion of the whole of the charge-sheet framed by the appellant against Jadav. That is why the Industrial Tribunal came to the conclusion that the conduct of the appellant in dismissing Jadav showed lack of good faith and appeared to have been inspired by the desire to victimise Jadav for his trade unionIt appears that both the parties appeared before the Tribunal on January 19, 1961 when arguments were heard and the award was reserved. The Union then filed an application praying that the trade union record may be called for, and the Tribunal ordered that the record be called for.We do not think there is any force in this argument, because the only purpose for which the record was called for by the Union was to show that Jadav was the Organising Secretary to the Union. Since that fact was presumably disputed by the appellant in arguing the case before the Tribunal, the Union urged that the record kept by the Registrar of Trade Unions would show that the appellants plea was not well founded. If, in such circumstances, the Tribunal sent for the record to satisfy itself that the record showed that Jadav was the Organising Secretary of the Union, we do not think any serous grievance can be made by the appellant about the conduct of the Tribunal. It is perfectly true that in dealing with industrial matters, the Tribunal cannot allow evidence to be led by one party in the absence of the other, and should not accept the request of either party to admit evidence after the case has been fully argued unless both the parties agree. In the present case, however, what the Tribunal has done, is merely to send for authenticated record to see whether Jadav was the Organising Secretary of the Union or not.
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Tarak Nath Chakraborty Vs. State of West Bengal | P. Jaganmohan Reddy, J.1. This petition under Article 32 challenges the validity of the detention under the West Bengal (Prevention of Violent Activities) Act, 1970 (hereinafter called the Act).2. The District Magistrate, Malda by an order dated May 26, 1971, directed the detention of the petitioner. Accordingly, he was arrested on May, 27, 1971, and served with the order of detention and the grounds thereof on the same day. He made a representation on July 1, 1971, after the case was already placed before the Board on June 26, 1971. This representation was considered and rejected by the Government on July 31, 1971. Thereafter the Advisory Board sent a report to the Government that in its opinion there was sufficient case for detention. The detention order and the continuance of detention was confirmed on August 25, 1971, by the State Government. It will appear from the above dates that all the mandatory provisions required to be complied with both under Clause 22(4) as well as the relevant provisions of the Act have been complied with. The only question for consideration is whether the grounds on which the petitioner has been detained are vague and irrelevant. We may examine these grounds which are as follow :(1) That on February 16, 1971, evening you with your associates threw three bombs to explode aiming at Bishnulal Ghosh Dastidar, a clerk of Irrigation Department at his quarters at Ramnagar Irrigation Colony under Englishbazar P.S. Dist. Malda. The missile missed the target hitting the staircase, verandah and Shri Ghosh Dastidar was narrowly escaped.(2) That on March 2, 1971, evening during prayer when the pupils, students and outsiders were in meditation at Ram Krishna Mission in Englishbazar town, Dist. Malda, you with your associates entered into the Asram office, destroyed photos of Sarda Ma and Swami Paramananda and also office articles. You also threw a bomb upon the altar of prayer exploded but luckily caused no damage or injury.3. The petitioner in his petition has stated in respect of the first ground that at the time he is alleged to have committed the act, for which he has been detained, he was in the house of his private tutor Sri Birendra Kumar Chakraborty. In respect of the second ground that on March 2, 1971, he had gone to the Ram Krishan Mission to throw a bomb, it is his case that from February 25, 1971, to March 10, 1971, he had been bed ridden with typhoid. If these facts are proved his detention cannot be justified but we are not under the Act called upon to examine the veracity or otherwise of the allegations. He could best place all the material in respect of his detention before the Advisory Board and it is for the Board to determine the sufficiency or otherwise of the justification for his detention. The Boards opinion is based on the material placed before it by the petitioner as well as by the State Government and the opinion expressed by them is arrived at after hearing the petitioner, if he so chooses to be heard. In any case the State of West Bengal in the affidavit by the Deputy Secretary has denied the allegations made by the petitioner and controverted that fact has that he was not present on the respective dates, which are mentioned in grounds 1 and 2. The grounds themselves are relevant to the prevention of disturbance of public order, and under the definition given in sub-section (2) if Section 3 of the Act the acts alleged against the detenu are covered by the expression prejudicial to the maintenance of public order. | 0[ds]3. The petitioner in his petition has stated in respect of the first ground that at the time he is alleged to have committed the act, for which he has been detained, he was in the house of his private tutor Sri Birendra Kumar Chakraborty. In respect of the second ground that on March 2, 1971, he had gone to the Ram Krishan Mission to throw a bomb, it is his case that from February 25, 1971, to March 10, 1971, he had been bed ridden with typhoid. If these facts are proved his detention cannot be justified but we are not under the Act called upon to examine the veracity or otherwise of the allegations. He could best place all the material in respect of his detention before the Advisory Board and it is for the Board to determine the sufficiency or otherwise of the justification for his detention. The Boards opinion is based on the material placed before it by the petitioner as well as by the State Government and the opinion expressed by them is arrived at after hearing the petitioner, if he so chooses to be heard. In any case the State of West Bengal in the affidavit by the Deputy Secretary has denied the allegations made by the petitioner and controverted that fact has that he was not present on the respective dates, which are mentioned in grounds 1 and 2. The grounds themselves are relevant to the prevention of disturbance of public order, and under the definition given in(2) if Section 3 of the Act the acts alleged against the detenu are covered by the expression prejudicial to the maintenance of public order. | 0 | 681 | 307 | ### 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:
P. Jaganmohan Reddy, J.1. This petition under Article 32 challenges the validity of the detention under the West Bengal (Prevention of Violent Activities) Act, 1970 (hereinafter called the Act).2. The District Magistrate, Malda by an order dated May 26, 1971, directed the detention of the petitioner. Accordingly, he was arrested on May, 27, 1971, and served with the order of detention and the grounds thereof on the same day. He made a representation on July 1, 1971, after the case was already placed before the Board on June 26, 1971. This representation was considered and rejected by the Government on July 31, 1971. Thereafter the Advisory Board sent a report to the Government that in its opinion there was sufficient case for detention. The detention order and the continuance of detention was confirmed on August 25, 1971, by the State Government. It will appear from the above dates that all the mandatory provisions required to be complied with both under Clause 22(4) as well as the relevant provisions of the Act have been complied with. The only question for consideration is whether the grounds on which the petitioner has been detained are vague and irrelevant. We may examine these grounds which are as follow :(1) That on February 16, 1971, evening you with your associates threw three bombs to explode aiming at Bishnulal Ghosh Dastidar, a clerk of Irrigation Department at his quarters at Ramnagar Irrigation Colony under Englishbazar P.S. Dist. Malda. The missile missed the target hitting the staircase, verandah and Shri Ghosh Dastidar was narrowly escaped.(2) That on March 2, 1971, evening during prayer when the pupils, students and outsiders were in meditation at Ram Krishna Mission in Englishbazar town, Dist. Malda, you with your associates entered into the Asram office, destroyed photos of Sarda Ma and Swami Paramananda and also office articles. You also threw a bomb upon the altar of prayer exploded but luckily caused no damage or injury.3. The petitioner in his petition has stated in respect of the first ground that at the time he is alleged to have committed the act, for which he has been detained, he was in the house of his private tutor Sri Birendra Kumar Chakraborty. In respect of the second ground that on March 2, 1971, he had gone to the Ram Krishan Mission to throw a bomb, it is his case that from February 25, 1971, to March 10, 1971, he had been bed ridden with typhoid. If these facts are proved his detention cannot be justified but we are not under the Act called upon to examine the veracity or otherwise of the allegations. He could best place all the material in respect of his detention before the Advisory Board and it is for the Board to determine the sufficiency or otherwise of the justification for his detention. The Boards opinion is based on the material placed before it by the petitioner as well as by the State Government and the opinion expressed by them is arrived at after hearing the petitioner, if he so chooses to be heard. In any case the State of West Bengal in the affidavit by the Deputy Secretary has denied the allegations made by the petitioner and controverted that fact has that he was not present on the respective dates, which are mentioned in grounds 1 and 2. The grounds themselves are relevant to the prevention of disturbance of public order, and under the definition given in sub-section (2) if Section 3 of the Act the acts alleged against the detenu are covered by the expression prejudicial to the maintenance of public order.
### Response:
0
### Explanation:
3. The petitioner in his petition has stated in respect of the first ground that at the time he is alleged to have committed the act, for which he has been detained, he was in the house of his private tutor Sri Birendra Kumar Chakraborty. In respect of the second ground that on March 2, 1971, he had gone to the Ram Krishan Mission to throw a bomb, it is his case that from February 25, 1971, to March 10, 1971, he had been bed ridden with typhoid. If these facts are proved his detention cannot be justified but we are not under the Act called upon to examine the veracity or otherwise of the allegations. He could best place all the material in respect of his detention before the Advisory Board and it is for the Board to determine the sufficiency or otherwise of the justification for his detention. The Boards opinion is based on the material placed before it by the petitioner as well as by the State Government and the opinion expressed by them is arrived at after hearing the petitioner, if he so chooses to be heard. In any case the State of West Bengal in the affidavit by the Deputy Secretary has denied the allegations made by the petitioner and controverted that fact has that he was not present on the respective dates, which are mentioned in grounds 1 and 2. The grounds themselves are relevant to the prevention of disturbance of public order, and under the definition given in(2) if Section 3 of the Act the acts alleged against the detenu are covered by the expression prejudicial to the maintenance of public order.
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U. P. Sunni Central Wakf Board Vs. Md. Alim & Ors | other property belonging to the establishment. After referring to the relevant provisions of the Act the learned Judge held that the general power of superintendence conferred on the committee constituted under Section 7 of Act 20 of 1863 became vested in the appellant board constituted under the Act. The continuance of the committee for the general supervision of waqfs was, therefore, inconsistent with the provisions of Section 19 of the Act and in such circumstances the corresponding provisions of Act 20 of 1863 stood repealed with the result that the committee appointed under Section 7 of that enactment could not discharge the general power of supervision and superintendence of waqfs to which the Act applied. However, in the opinion of the learned Judge there was no provision in the Act corresponding to Section 13 of Act 20 of 1863. That Section casts an additional responsibility on the committee in that it has to keep in its custody amounts regularly submitted by the trustee, manager or superintendent of the mosque or religious establishment. Clauses (g) and (i) of Section 19 (2) and Section 27 of the Act did not show any inconsistency with the provisions of Section 13 of Act 20 of 1863. It was consequently held that the committee constituted under Section 7 of Act 20 of 1863 could still continue to discharge some of the functions assigned to it and the District Judge was thus competent to entertain an application under Section 10 thereof and fill the vacancy among the members of the committee.6. We are unable to share the view of the High Court. On his own reasoning the learned Judge could not have come to the conclusion at which he arrived, namely, that although the power of general superintendence of the waqf in question vested in the appellant board and that the committee constituted under S. 7 of Act 20 of 1863 could not exercise those powers which were exercisable by the board a committee under the old Act could still function for the purpose of S. 13 of that Act inasmuch as such a committee would still have the custody of the accounts of the waqf.7. The Act has been enacted to provide for better governance, administration and supervision of certain classes of waqf in the State of U.P. Section 3 (5) defines the word "mutawalli" to mean:"a manager of a waqf and includes an amin, a sajjadanashin, a khadim, naib-mutawalli and a committee of management, and also includes any person who is for the time being in charge of, or administering "waqfs-" Section 10 provides for the establishment of Central Boards, Section 19 contains the functions of the Board Sub-s. (1) says that the Board shall do all things reasonable or necessary to ensure that the waqfs under its superintendence are properly maintained controlled and administered and the income thereof is duly appropriated to the purpose for which they were founded or for which they exist. The following clauses of sub-s. (2) may be noticed:"(g) to inspect or cause inspection of waqf properties, accounts or records or deeds and documents relating thereto;(h) to investigate into the nature and extent of waqf properties and call, from time to time, accounts and other returns and information from the mutawallis and give directions for the proper administration of waqfs.(i) to arrange for the auditing of accounts submitted or required to be submitted by the mutawallis.(k) to administer the Waqf Fund;(l) to keep regular accounts of the receipts and disbursement and submit the same to the State Government in the manner prescribed; "Section 48 relates to appointment of mutawallis and S. 49 to their duties. The mutawalli is bound to carry out all direction issued by the board and to furnish such returns and supply such information as may be required by the board or the sub-committee from time to time. The mutawalli has also to allow inspection of waqf property, accounts or records or deeds and documents relating thereto. Under S. 50 he has to prepare every year a budget for the next financial year and submit to the board before the first day of May in every year a full and true statement of accounts. Section 85 (1) provides that nothing in any other enactment which is inconsistent with the provisions of the Act shall apply to any waqf to which the Act applied.8. As has been stated before, it is not disputed that the waqf of the Durgah is governed by the provisions of the Act. The entire scheme of the Act shows that the control and supervision over the waqf is that of the board constituted under S. 10. It is the board that has full powers with regard to inspection of accounts, their auditing, administration of the waqf funds and all such matters. Sections 49 and 50 leave no room for doubt that accounts which would include books of account and all relevant records, deeds and documents have to be in Mutawallis custody and he is bound to produce them for inspection of the board whenever so desired. "Mutawalli", according to the definition, includes a committee of management. The Act appears to be self-contained and makes provisions for complete superintendence, administration and control of the waqfs over which the boards established under S. 10 have jurisdiction. It is barely possible to envisage the independent existence of a committee constituted under Act 20 of 1863 only for the purpose of having custody of the books of account particularly when the Act fully contemplates and provides for the maintenance custody etc. of accounts and account books by the mutawalli. It is common ground that the Act was passed with the approval of the President of India there is a clear inconsistency between its provisions and those of Act 20 of 1863 relating to committees, their functioning and control.9. We accordingly hold that the District Judge had no jurisdiction or power to fill in vacancies on the committee constituted under the provisions of Act 20 of 1863. | 1[ds]6. We are unable to share the view of the High Court. On his own reasoning the learned Judge could not have come to the conclusion at which he arrived, namely, that although the power of general superintendence of the waqf in question vested in the appellant board and that the committee constituted under S. 7 of Act 20 of 1863 could not exercise those powers which were exercisable by the board a committee under the old Act could still function for the purpose of S. 13 of that Act inasmuch as such a committee would still have the custody of the accounts of the waqf.As has been stated before, it is not disputed that the waqf of the Durgah is governed by the provisions of the Act. The entire scheme of the Act shows that the control and supervision over the waqf is that of the board constituted under S. 10. It is the board that has full powers with regard to inspection of accounts, their auditing, administration of the waqf funds and all such matters. Sections 49 and 50 leave no room for doubt that accounts which would include books of account and all relevant records, deeds and documents have to be in Mutawallis custody and he is bound to produce them for inspection of the board whenever so desired. "Mutawalli", according to the definition, includes a committee of management. The Act appears to be self-contained and makes provisions for complete superintendence, administration and control of the waqfs over which the boards established under S. 10 have jurisdiction. It is barely possible to envisage the independent existence of a committee constituted under Act 20 of 1863 only for the purpose of having custody of the books of account particularly when the Act fully contemplates and provides for the maintenance custody etc. of accounts and account books by the mutawalli. It is common ground that the Act was passed with the approval of the President of India there is a clear inconsistency between its provisions and those of Act 20 of 1863 relating to committees, their functioning and control.9. We accordingly hold that the District Judge had no jurisdiction or power to fill in vacancies on the committee constituted under the provisions of Act 20 of | 1 | 1,949 | 404 | ### 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:
other property belonging to the establishment. After referring to the relevant provisions of the Act the learned Judge held that the general power of superintendence conferred on the committee constituted under Section 7 of Act 20 of 1863 became vested in the appellant board constituted under the Act. The continuance of the committee for the general supervision of waqfs was, therefore, inconsistent with the provisions of Section 19 of the Act and in such circumstances the corresponding provisions of Act 20 of 1863 stood repealed with the result that the committee appointed under Section 7 of that enactment could not discharge the general power of supervision and superintendence of waqfs to which the Act applied. However, in the opinion of the learned Judge there was no provision in the Act corresponding to Section 13 of Act 20 of 1863. That Section casts an additional responsibility on the committee in that it has to keep in its custody amounts regularly submitted by the trustee, manager or superintendent of the mosque or religious establishment. Clauses (g) and (i) of Section 19 (2) and Section 27 of the Act did not show any inconsistency with the provisions of Section 13 of Act 20 of 1863. It was consequently held that the committee constituted under Section 7 of Act 20 of 1863 could still continue to discharge some of the functions assigned to it and the District Judge was thus competent to entertain an application under Section 10 thereof and fill the vacancy among the members of the committee.6. We are unable to share the view of the High Court. On his own reasoning the learned Judge could not have come to the conclusion at which he arrived, namely, that although the power of general superintendence of the waqf in question vested in the appellant board and that the committee constituted under S. 7 of Act 20 of 1863 could not exercise those powers which were exercisable by the board a committee under the old Act could still function for the purpose of S. 13 of that Act inasmuch as such a committee would still have the custody of the accounts of the waqf.7. The Act has been enacted to provide for better governance, administration and supervision of certain classes of waqf in the State of U.P. Section 3 (5) defines the word "mutawalli" to mean:"a manager of a waqf and includes an amin, a sajjadanashin, a khadim, naib-mutawalli and a committee of management, and also includes any person who is for the time being in charge of, or administering "waqfs-" Section 10 provides for the establishment of Central Boards, Section 19 contains the functions of the Board Sub-s. (1) says that the Board shall do all things reasonable or necessary to ensure that the waqfs under its superintendence are properly maintained controlled and administered and the income thereof is duly appropriated to the purpose for which they were founded or for which they exist. The following clauses of sub-s. (2) may be noticed:"(g) to inspect or cause inspection of waqf properties, accounts or records or deeds and documents relating thereto;(h) to investigate into the nature and extent of waqf properties and call, from time to time, accounts and other returns and information from the mutawallis and give directions for the proper administration of waqfs.(i) to arrange for the auditing of accounts submitted or required to be submitted by the mutawallis.(k) to administer the Waqf Fund;(l) to keep regular accounts of the receipts and disbursement and submit the same to the State Government in the manner prescribed; "Section 48 relates to appointment of mutawallis and S. 49 to their duties. The mutawalli is bound to carry out all direction issued by the board and to furnish such returns and supply such information as may be required by the board or the sub-committee from time to time. The mutawalli has also to allow inspection of waqf property, accounts or records or deeds and documents relating thereto. Under S. 50 he has to prepare every year a budget for the next financial year and submit to the board before the first day of May in every year a full and true statement of accounts. Section 85 (1) provides that nothing in any other enactment which is inconsistent with the provisions of the Act shall apply to any waqf to which the Act applied.8. As has been stated before, it is not disputed that the waqf of the Durgah is governed by the provisions of the Act. The entire scheme of the Act shows that the control and supervision over the waqf is that of the board constituted under S. 10. It is the board that has full powers with regard to inspection of accounts, their auditing, administration of the waqf funds and all such matters. Sections 49 and 50 leave no room for doubt that accounts which would include books of account and all relevant records, deeds and documents have to be in Mutawallis custody and he is bound to produce them for inspection of the board whenever so desired. "Mutawalli", according to the definition, includes a committee of management. The Act appears to be self-contained and makes provisions for complete superintendence, administration and control of the waqfs over which the boards established under S. 10 have jurisdiction. It is barely possible to envisage the independent existence of a committee constituted under Act 20 of 1863 only for the purpose of having custody of the books of account particularly when the Act fully contemplates and provides for the maintenance custody etc. of accounts and account books by the mutawalli. It is common ground that the Act was passed with the approval of the President of India there is a clear inconsistency between its provisions and those of Act 20 of 1863 relating to committees, their functioning and control.9. We accordingly hold that the District Judge had no jurisdiction or power to fill in vacancies on the committee constituted under the provisions of Act 20 of 1863.
### Response:
1
### Explanation:
6. We are unable to share the view of the High Court. On his own reasoning the learned Judge could not have come to the conclusion at which he arrived, namely, that although the power of general superintendence of the waqf in question vested in the appellant board and that the committee constituted under S. 7 of Act 20 of 1863 could not exercise those powers which were exercisable by the board a committee under the old Act could still function for the purpose of S. 13 of that Act inasmuch as such a committee would still have the custody of the accounts of the waqf.As has been stated before, it is not disputed that the waqf of the Durgah is governed by the provisions of the Act. The entire scheme of the Act shows that the control and supervision over the waqf is that of the board constituted under S. 10. It is the board that has full powers with regard to inspection of accounts, their auditing, administration of the waqf funds and all such matters. Sections 49 and 50 leave no room for doubt that accounts which would include books of account and all relevant records, deeds and documents have to be in Mutawallis custody and he is bound to produce them for inspection of the board whenever so desired. "Mutawalli", according to the definition, includes a committee of management. The Act appears to be self-contained and makes provisions for complete superintendence, administration and control of the waqfs over which the boards established under S. 10 have jurisdiction. It is barely possible to envisage the independent existence of a committee constituted under Act 20 of 1863 only for the purpose of having custody of the books of account particularly when the Act fully contemplates and provides for the maintenance custody etc. of accounts and account books by the mutawalli. It is common ground that the Act was passed with the approval of the President of India there is a clear inconsistency between its provisions and those of Act 20 of 1863 relating to committees, their functioning and control.9. We accordingly hold that the District Judge had no jurisdiction or power to fill in vacancies on the committee constituted under the provisions of Act 20 of
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Gurdial Singh Fijji Vs. State of Punjab and Others | Punjab by Shri Phuman Singh, Under Secretary in the services department, shows that after the adverse remarks were communicated to the appellant, he submitted a representation requesting that the remarks be expunged. That representation was referred by the Government to Shri Sewa Singh, retired District and Sessions Judge, who had made the particular remarks. Shri Sewa Singh desired that the reference which was made to him by the Government should be routed through the High Court. The Government then made a reference to the High Court of Punjab and Haryana requesting it to obtain the comments of Shri Sewa Singh. The High Court replied that it was not its practice to call for comments of District and Sessions Judges on the representation of an officer against whom adverse remarks were made. The High Court was once again requested by the Government that the Chief Justice and the Judges may communicate their views to the Government on the representation made by the appellant. As the High Court did not express its view, the Government asked the appellant to submit a detailed representation along with documentary evidence in order to show that the adverse entry was made mala fide as alleged by him. The appellant submitted his representation a gain on December 19, 1971, as desired by the Government. After a detailed examination of that representation, it was decided by the Government that since the comments of the Reporting Officer of the High Court on the representation made by the appellant were not available, which was necessary for the proper disposal of the representation, a suitable note may be placed on the appellants character roll alongwith the confidential report for the year 1966-67. An attested copy of that note is annexed to Shri Phuman Singhs affidavit as annexure 1. After setting out the facts and circumstances narrated above, that note says that in the absence of necessary comments of the authority concerned, it was not possible for the Government to take any decision on the merits of the representation made by the appellant.The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult t o support the non- issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him.9. We may also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select List because he was "not found suitable otherwise", that regulation 5 which deals with the preparation of a list of suitable officers provides by clause 7 that"if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession".10. While dealing with an identical provision in clause 5 of regulation 5 of the same Regulations as they stood then, this Court observed in Union of India v. Mohan Lal Capoor &Others(1) that "rubberstamp" reasons given for the supersession of each officer to the effect that the record of the officer concerned was not such as to justify his appointment "at this stage in preference to those selected", do not amount to "reasons for the proposed supersession" within the meaning of clause 5. "Reasons", according to Be g J. (with whom Mathew J. concurred) "are the links between the materials on which certain conclusions are based and the actual conclusions". The Court accordingly held that the mandatory provisions of regulation 5(5) were not complied with by the Selection Committee. That an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him. True, that it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for inclusion in the Select List. In the absence of any such reason, we are unable to agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the Select List.In matters of this nature, particularly when the Select Lists have to be prepared and reviewed from year to year, it becomes difficult to work out the logical consequences of holding that the case of any particular officer ought to be reconsidered. But, inevitably, for reasons mentioned above, the case of the appellant shall have to be considered afresh by the Selection Committee. How best to do it has to be left to its wise discretion in the matter of details, but in order to eliminate, in so far as one may, chance of yet another litigation we ought to indicate the broad frame-work within which the Committee should act and the preliminary steps which the Government must take in order to facilitate the Committees task.11. | 1[ds]The course adopted by the High Court has cause to the appellant an amount of injustice which has to be rectified. It is clear that the Chief Secretary, Punjab, did not grant integrity certificate in favour of the appellant because of the adverse report in his confidential roll for the year 1966-67. One of the reasons which evidently weighed with the Selection Committee in not putting the appellants name on the Select List was that the Chief Secretary had not issued the integrity certificate in his favour. Thus, the non- inclusion of appellants name in the Select List and the non-issuance of the integrity certificate are closely linked, whether or not there was another reason also for which the Selection Committee kept him out from the Selectprinciple is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult t o support the non- issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate tomay also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select List because he was "not found suitable otherwise", that regulation 5 which deals with the preparation of a list of suitable officers provides by clause 7 that"if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposedthat it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for inclusion in the Select List. In the absence of any such reason, we are unable to agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the Select List.In matters of this nature, particularly when the Select Lists have to be prepared and reviewed from year to year, it becomes difficult to work out the logical consequences of holding that the case of any particular officer ought to be reconsidered. But, inevitably, for reasons mentioned above, the case of the appellant shall have to be considered afresh by the Selection Committee. | 1 | 4,273 | 619 | ### 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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Punjab by Shri Phuman Singh, Under Secretary in the services department, shows that after the adverse remarks were communicated to the appellant, he submitted a representation requesting that the remarks be expunged. That representation was referred by the Government to Shri Sewa Singh, retired District and Sessions Judge, who had made the particular remarks. Shri Sewa Singh desired that the reference which was made to him by the Government should be routed through the High Court. The Government then made a reference to the High Court of Punjab and Haryana requesting it to obtain the comments of Shri Sewa Singh. The High Court replied that it was not its practice to call for comments of District and Sessions Judges on the representation of an officer against whom adverse remarks were made. The High Court was once again requested by the Government that the Chief Justice and the Judges may communicate their views to the Government on the representation made by the appellant. As the High Court did not express its view, the Government asked the appellant to submit a detailed representation along with documentary evidence in order to show that the adverse entry was made mala fide as alleged by him. The appellant submitted his representation a gain on December 19, 1971, as desired by the Government. After a detailed examination of that representation, it was decided by the Government that since the comments of the Reporting Officer of the High Court on the representation made by the appellant were not available, which was necessary for the proper disposal of the representation, a suitable note may be placed on the appellants character roll alongwith the confidential report for the year 1966-67. An attested copy of that note is annexed to Shri Phuman Singhs affidavit as annexure 1. After setting out the facts and circumstances narrated above, that note says that in the absence of necessary comments of the authority concerned, it was not possible for the Government to take any decision on the merits of the representation made by the appellant.The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult t o support the non- issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him.9. We may also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select List because he was "not found suitable otherwise", that regulation 5 which deals with the preparation of a list of suitable officers provides by clause 7 that"if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession".10. While dealing with an identical provision in clause 5 of regulation 5 of the same Regulations as they stood then, this Court observed in Union of India v. Mohan Lal Capoor &Others(1) that "rubberstamp" reasons given for the supersession of each officer to the effect that the record of the officer concerned was not such as to justify his appointment "at this stage in preference to those selected", do not amount to "reasons for the proposed supersession" within the meaning of clause 5. "Reasons", according to Be g J. (with whom Mathew J. concurred) "are the links between the materials on which certain conclusions are based and the actual conclusions". The Court accordingly held that the mandatory provisions of regulation 5(5) were not complied with by the Selection Committee. That an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him. True, that it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for inclusion in the Select List. In the absence of any such reason, we are unable to agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the Select List.In matters of this nature, particularly when the Select Lists have to be prepared and reviewed from year to year, it becomes difficult to work out the logical consequences of holding that the case of any particular officer ought to be reconsidered. But, inevitably, for reasons mentioned above, the case of the appellant shall have to be considered afresh by the Selection Committee. How best to do it has to be left to its wise discretion in the matter of details, but in order to eliminate, in so far as one may, chance of yet another litigation we ought to indicate the broad frame-work within which the Committee should act and the preliminary steps which the Government must take in order to facilitate the Committees task.11.
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The course adopted by the High Court has cause to the appellant an amount of injustice which has to be rectified. It is clear that the Chief Secretary, Punjab, did not grant integrity certificate in favour of the appellant because of the adverse report in his confidential roll for the year 1966-67. One of the reasons which evidently weighed with the Selection Committee in not putting the appellants name on the Select List was that the Chief Secretary had not issued the integrity certificate in his favour. Thus, the non- inclusion of appellants name in the Select List and the non-issuance of the integrity certificate are closely linked, whether or not there was another reason also for which the Selection Committee kept him out from the Selectprinciple is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult t o support the non- issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate tomay also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select List because he was "not found suitable otherwise", that regulation 5 which deals with the preparation of a list of suitable officers provides by clause 7 that"if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposedthat it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for inclusion in the Select List. In the absence of any such reason, we are unable to agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the Select List.In matters of this nature, particularly when the Select Lists have to be prepared and reviewed from year to year, it becomes difficult to work out the logical consequences of holding that the case of any particular officer ought to be reconsidered. But, inevitably, for reasons mentioned above, the case of the appellant shall have to be considered afresh by the Selection Committee.
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STATE OF UTTARAKHAND & ORS Vs. SMT. SURESHWATI | the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A. 15. We have perused the Award passed by the Labour Court, and find that a full opportunity was given to the parties to lead evidence, both oral and documentary, to substantiate their respective case. The High Court has not even adverted to the said evidence, and has disposed of the Writ Petition on the sole ground that the School had not conducted a disciplinary enquiry before discharging the respondent from service. The School has led sufficient evidence before the Labour Court to prove that the Respondent had abandoned her service from 01.07.1997 when she got married, and moved to another District, which was not denied by her in her evidence. The record of the School reveals that she was not in employment of the School since July 1997. 16. The initial employment of the Respondent as a teacher from July 1993 to 21.5.1994 was itself invalid, since she was only inter-mediate (as reflected in the letter dated 25.3.1996 issued by the District Basic Education Officer, Haridwar), and did not have the B.Ed. degree, which was the minimum qualification to be appointed as a teacher. 17. The Respondent has failed to prove that she had worked for 240 days during the year preceding her alleged termination on 8.3.2006. She has merely made a bald averment in her affidavit of evidence filed before the Labour Court. It was open to the Respondent to have called for the records of the School i.e. the Attendance Register and the Accounts, to prove her continuous employment till 8.3.2006. Since the School was being administered by the Government of Uttarakhand from 2005 onwards, she could have produced her Salary Slips as evidence of her continuous employment upto 08.03.2006. However, she failed to produce any evidence whatsoever to substantiate her case. The reliance placed by the Respondent on the letter dated 20.6.2013 from the Block Development Officer, Roorkee cannot be relied upon. The letter acknowledges that the Respondent was on leave when the Government took over the School, and started receiving grants in aid. The Block Development Officers recommendation to the Chief Education Officer, Haridwar to act in compliance with the Order dated 5.2.2010 passed by the Labour Court cannot be relied on, as the Award dated 5.2.2010 was set aside by the High Court. 18. On the basis of the evidence led before the Labour Court, we hold that the School has established that the Respondent had abandoned her service in 1997, and had never reported back for work. The Respondent has failed to discharge the onus to prove that she had worked for 240 days in the preceding 12 months prior to her alleged termination on 8.3.2006. The onus was entirely upon the employee to prove that she had worked continuously for 240 days in the twelve months preceding the date of her alleged termination on 8.3.2006, which she failed to discharge. A division bench of this Court in Bhavnagar Municipal Corpn. v. Jadeja Govubha Chhanubha (2014) 16 SCC 130 held that : 7. It is fairly well-settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25-B of the Industrial Disputes Act, 1947. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25-B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court in Range Forest Officer v. S.T. Hadimani (2002) 3 SCC 25 , Municipal Corpn., Faridabad v. Siri Niwas (2004) 8 SCC 195 , M.P. Electricity Board v. Hariram (2004) 8 SCC 246 , Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan (2004) 8 SCC 161 ,: 2004 SCC (L&S) 1055] , Surendranagar District Panchayat v. Jethabhai Pitamberbhai (2005) 8 SCC 450 ,and R.M. Yellatti v. Executive Engineer (2006) 1 SCC 106. unequivocally recognise the principle that the burden to prove that the workman had worked for 240 days is entirely upon him. So also the question whether an adverse inference could be drawn against the employer in case he did not produce the best evidence available with it, has been the subject-matter of pronouncements of this Court in Municipal Corpn., Faridabad v. Siri Niwas and M.P. Electricity Board v. Hariram [M.P. Electricity Board v. Hariram, , reiterated in RBI v. S. Mani (2005) 5 SCC 100. This Court has held that only because some documents have not been produced by the management, an adverse inference cannot be drawn against it. | 1[ds]13. We have heard the learned Counsel for the parties, and perused the record. We find that the High Court has set aside the Award dated 22.8.2016 passed by the Labour Court on the sole ground that no disciplinary enquiry was held by the School regarding her alleged abandonment of service.14. This Court has in a catena of decisions held that where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it. The entire matter would be open before the tribunal, which would have the jurisdiction to satisfy itself on the evidence adduced by the parties whether the dismissal or discharge was justified.A four Judge Bench of this Court in Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory AIR 1965 SC 1803 . held that :11. It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been property held (see Indian Iron & Steel Co. v. Workmen AIR: 1958 SC 130 . ) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to Sana Musa Sugar Works (P) Limited v. Shobrati Khan AIR 1959 SC 923 . , Phulbari Tea Estate v. Workmen AIR 1959 SC 1111 , and Punjab National Bank Limited v. WorkmenAIR 1960 SC 160 . These three cases were further considered by this Court in Bharat Sugar Mills Limited v. Jai Singh (1962) 3 SCR 684. , and reference was also made to the decision of the Labour Appellate Tribunal in Ram Swarath Sinha v. Belsund SugarCo. (1954) LAC 697. . It was pointed out that the important effect of omission to hold an enquiry was merely this: that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out. It is true that three of these cases, except Phulbari Tea Estate case , were on applications under Section 23 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate case was on a reference under Section 10, and the same principle was applied there also, the only difference being that in that case there was an inquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper.Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:32. From those decisions, the following principles broadly emerge:(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A.15. We have perused the Award passed by the Labour Court, and find that a full opportunity was given to the parties to lead evidence, both oral and documentary, to substantiate their respective case. The High Court has not even adverted to the said evidence, and has disposed of the Writ Petition on the sole ground that the School had not conducted a disciplinary enquiry before discharging the respondent from service. The School has led sufficient evidence before the Labour Court to prove that the Respondent had abandoned her service from 01.07.1997 when she got married, and moved to another District, which was not denied by her in her evidence. The record of the School reveals that she was not in employment of the School since July 1997.16. The initial employment of the Respondent as a teacher from July 1993 to 21.5.1994 was itself invalid, since she was only inter-mediate (as reflected in the letter dated 25.3.1996 issued by the District Basic Education Officer, Haridwar), and did not have the B.Ed. degree, which was the minimum qualification to be appointed as a teacher.17. The Respondent has failed to prove that she had worked for 240 days during the year preceding her alleged termination on 8.3.2006. She has merely made a bald averment in her affidavit of evidence filed before the Labour Court. It was open to the Respondent to have called for the records of the School i.e. the Attendance Register and the Accounts, to prove her continuous employment till 8.3.2006. Since the School was being administered by the Government of Uttarakhand from 2005 onwards, she could have produced her Salary Slips as evidence of her continuous employment upto 08.03.2006. However, she failed to produce any evidence whatsoever to substantiate her case.The reliance placed by the Respondent on the letter dated 20.6.2013 from the Block Development Officer, Roorkee cannot be relied upon. The letter acknowledges that the Respondent was on leave when the Government took over the School, and started receiving grants in aid. The Block Development Officers recommendation to the Chief Education Officer, Haridwar to act in compliance with the Order dated 5.2.2010 passed by the Labour Court cannot be relied on, as the Award dated 5.2.2010 was set aside by the High Court.18. On the basis of the evidence led before the Labour Court, we hold that the School has established that the Respondent had abandoned her service in 1997, and had never reported back for work.The Respondent has failed to discharge the onus to prove that she had worked for 240 days in the preceding 12 months prior to her alleged termination on 8.3.2006. The onus was entirely upon the employee to prove that she had worked continuously for 240 days in the twelve months preceding the date of her alleged termination on 8.3.2006, which she failed to discharge.A division bench of this Court in Bhavnagar Municipal Corpn. v. Jadeja Govubha Chhanubha (2014) 16 SCC 130 held that :7. It is fairly well-settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25-B of the Industrial Disputes Act, 1947. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25-B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court in Range Forest Officer v. S.T. Hadimani (2002) 3 SCC 25 , Municipal Corpn., Faridabad v. Siri Niwas (2004) 8 SCC 195 , M.P. Electricity Board v. Hariram (2004) 8 SCC 246 , Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan (2004) 8 SCC 161 ,: 2004 SCC (L&S) 1055] , Surendranagar District Panchayat v. Jethabhai Pitamberbhai (2005) 8 SCC 450 ,and R.M. Yellatti v. Executive Engineer (2006) 1 SCC 106. unequivocally recognise the principle that the burden to prove that the workman had worked for 240 days is entirely upon him. So also the question whether an adverse inference could be drawn against the employer in case he did not produce the best evidence available with it, has been the subject-matter of pronouncements of this Court in Municipal Corpn., Faridabad v. Siri Niwas and M.P. Electricity Board v. Hariram [M.P. Electricity Board v. Hariram, , reiterated in RBI v. S. Mani (2005) 5 SCC 100. This Court has held that only because some documents have not been produced by the management, an adverse inference cannot be drawn against it. | 1 | 4,738 | 2,682 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A. 15. We have perused the Award passed by the Labour Court, and find that a full opportunity was given to the parties to lead evidence, both oral and documentary, to substantiate their respective case. The High Court has not even adverted to the said evidence, and has disposed of the Writ Petition on the sole ground that the School had not conducted a disciplinary enquiry before discharging the respondent from service. The School has led sufficient evidence before the Labour Court to prove that the Respondent had abandoned her service from 01.07.1997 when she got married, and moved to another District, which was not denied by her in her evidence. The record of the School reveals that she was not in employment of the School since July 1997. 16. The initial employment of the Respondent as a teacher from July 1993 to 21.5.1994 was itself invalid, since she was only inter-mediate (as reflected in the letter dated 25.3.1996 issued by the District Basic Education Officer, Haridwar), and did not have the B.Ed. degree, which was the minimum qualification to be appointed as a teacher. 17. The Respondent has failed to prove that she had worked for 240 days during the year preceding her alleged termination on 8.3.2006. She has merely made a bald averment in her affidavit of evidence filed before the Labour Court. It was open to the Respondent to have called for the records of the School i.e. the Attendance Register and the Accounts, to prove her continuous employment till 8.3.2006. Since the School was being administered by the Government of Uttarakhand from 2005 onwards, she could have produced her Salary Slips as evidence of her continuous employment upto 08.03.2006. However, she failed to produce any evidence whatsoever to substantiate her case. The reliance placed by the Respondent on the letter dated 20.6.2013 from the Block Development Officer, Roorkee cannot be relied upon. The letter acknowledges that the Respondent was on leave when the Government took over the School, and started receiving grants in aid. The Block Development Officers recommendation to the Chief Education Officer, Haridwar to act in compliance with the Order dated 5.2.2010 passed by the Labour Court cannot be relied on, as the Award dated 5.2.2010 was set aside by the High Court. 18. On the basis of the evidence led before the Labour Court, we hold that the School has established that the Respondent had abandoned her service in 1997, and had never reported back for work. The Respondent has failed to discharge the onus to prove that she had worked for 240 days in the preceding 12 months prior to her alleged termination on 8.3.2006. The onus was entirely upon the employee to prove that she had worked continuously for 240 days in the twelve months preceding the date of her alleged termination on 8.3.2006, which she failed to discharge. A division bench of this Court in Bhavnagar Municipal Corpn. v. Jadeja Govubha Chhanubha (2014) 16 SCC 130 held that : 7. It is fairly well-settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25-B of the Industrial Disputes Act, 1947. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25-B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court in Range Forest Officer v. S.T. Hadimani (2002) 3 SCC 25 , Municipal Corpn., Faridabad v. Siri Niwas (2004) 8 SCC 195 , M.P. Electricity Board v. Hariram (2004) 8 SCC 246 , Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan (2004) 8 SCC 161 ,: 2004 SCC (L&S) 1055] , Surendranagar District Panchayat v. Jethabhai Pitamberbhai (2005) 8 SCC 450 ,and R.M. Yellatti v. Executive Engineer (2006) 1 SCC 106. unequivocally recognise the principle that the burden to prove that the workman had worked for 240 days is entirely upon him. So also the question whether an adverse inference could be drawn against the employer in case he did not produce the best evidence available with it, has been the subject-matter of pronouncements of this Court in Municipal Corpn., Faridabad v. Siri Niwas and M.P. Electricity Board v. Hariram [M.P. Electricity Board v. Hariram, , reiterated in RBI v. S. Mani (2005) 5 SCC 100. This Court has held that only because some documents have not been produced by the management, an adverse inference cannot be drawn against it.
### Response:
1
### Explanation:
is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A.15. We have perused the Award passed by the Labour Court, and find that a full opportunity was given to the parties to lead evidence, both oral and documentary, to substantiate their respective case. The High Court has not even adverted to the said evidence, and has disposed of the Writ Petition on the sole ground that the School had not conducted a disciplinary enquiry before discharging the respondent from service. The School has led sufficient evidence before the Labour Court to prove that the Respondent had abandoned her service from 01.07.1997 when she got married, and moved to another District, which was not denied by her in her evidence. The record of the School reveals that she was not in employment of the School since July 1997.16. The initial employment of the Respondent as a teacher from July 1993 to 21.5.1994 was itself invalid, since she was only inter-mediate (as reflected in the letter dated 25.3.1996 issued by the District Basic Education Officer, Haridwar), and did not have the B.Ed. degree, which was the minimum qualification to be appointed as a teacher.17. The Respondent has failed to prove that she had worked for 240 days during the year preceding her alleged termination on 8.3.2006. She has merely made a bald averment in her affidavit of evidence filed before the Labour Court. It was open to the Respondent to have called for the records of the School i.e. the Attendance Register and the Accounts, to prove her continuous employment till 8.3.2006. Since the School was being administered by the Government of Uttarakhand from 2005 onwards, she could have produced her Salary Slips as evidence of her continuous employment upto 08.03.2006. However, she failed to produce any evidence whatsoever to substantiate her case.The reliance placed by the Respondent on the letter dated 20.6.2013 from the Block Development Officer, Roorkee cannot be relied upon. The letter acknowledges that the Respondent was on leave when the Government took over the School, and started receiving grants in aid. The Block Development Officers recommendation to the Chief Education Officer, Haridwar to act in compliance with the Order dated 5.2.2010 passed by the Labour Court cannot be relied on, as the Award dated 5.2.2010 was set aside by the High Court.18. On the basis of the evidence led before the Labour Court, we hold that the School has established that the Respondent had abandoned her service in 1997, and had never reported back for work.The Respondent has failed to discharge the onus to prove that she had worked for 240 days in the preceding 12 months prior to her alleged termination on 8.3.2006. The onus was entirely upon the employee to prove that she had worked continuously for 240 days in the twelve months preceding the date of her alleged termination on 8.3.2006, which she failed to discharge.A division bench of this Court in Bhavnagar Municipal Corpn. v. Jadeja Govubha Chhanubha (2014) 16 SCC 130 held that :7. It is fairly well-settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25-B of the Industrial Disputes Act, 1947. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25-B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court in Range Forest Officer v. S.T. Hadimani (2002) 3 SCC 25 , Municipal Corpn., Faridabad v. Siri Niwas (2004) 8 SCC 195 , M.P. Electricity Board v. Hariram (2004) 8 SCC 246 , Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan (2004) 8 SCC 161 ,: 2004 SCC (L&S) 1055] , Surendranagar District Panchayat v. Jethabhai Pitamberbhai (2005) 8 SCC 450 ,and R.M. Yellatti v. Executive Engineer (2006) 1 SCC 106. unequivocally recognise the principle that the burden to prove that the workman had worked for 240 days is entirely upon him. So also the question whether an adverse inference could be drawn against the employer in case he did not produce the best evidence available with it, has been the subject-matter of pronouncements of this Court in Municipal Corpn., Faridabad v. Siri Niwas and M.P. Electricity Board v. Hariram [M.P. Electricity Board v. Hariram, , reiterated in RBI v. S. Mani (2005) 5 SCC 100. This Court has held that only because some documents have not been produced by the management, an adverse inference cannot be drawn against it.
|
Natthu Singh & Others Vs. State of Uttar Pradesh | Gopal Tiwari (PW 16). If the appellants had any reason to think that the four bundles were added surreptitiously, they should have cross-examined the Investigating Officer in that respect. But this was not done even though the Investigating Officer was cross-examined at considerable length. On the other hand, the evidence on the record leaves no room for doubt that the cap, the three cartridges and the broken portion of the butt-end of the gun were recovered early in the morning of November 12, 1970 and were sealed soon after. An attempt was also made to argue that Nirpat Singhs gun could not have been recovered and shown to Syed Ahmad Sultan (CW 2) as alleged by the prosecution because the witness returned from tour late in the evening while the gun was seized much earlier. The argument is futile because recovery memo Ex. Ka-8 shows that it was drawn up at 11.30 p.m. 20. It has next been argued by Mr. Pramod Swarup that there was no reason why the plea of alibi taken by Nirpat Singh, Uttam Singh and Mahipal Singh should have been rejected. We find however that appellant Nirpat Singh was employed as a clerk at a short distance of 6 miles from the place of the incident. He did not even take the plea of alibi in the Court of the committing magistrate. All the same, the trial Judge examined Rasool (CW 1) and he proved that Nirpat Singh remained on duty only upto 3 p.m. on November 11, 1970 and went away thereafter. It is therefore futile to argue that he should have been held to be on his duty as a telephone clerk at Mahoba from 10 a.m. to 4 p.m. As has been stated, Mahoba was close by, and could be reached within a short time. Uttam Singh was employed as a teacher in a school at village Supa, where the murders took place, and it appears that the place of the first incident was at a distance of only 175 yards from the school. The trial Judge has rejected the plea of alibi for the reason that no such defence was taken in the Court of the committing magistrate and also because of the proximity of the school to the place of the incident where Uttam Singh could have reached well in time even if he had left at the close of the school at 4 p.m. 21. It has not been argued that appellant Natthu Singh was in a position to make out a plea of alibi and it only remains for us to examine a similar argument on behalf of appellant Mahipal Singh. He also did not take the plea in the Court of the committing magistrate that he was far away from the place of the incident owing to his posting at police station Bajna at the time of the incident. Moreover there is no justification for the argument of Mr. Pramod Swarup that the trial Court and the High Court have found it in Mahipal Singhs favour that he left Bajna police station only at 1 p.m. on the date of the incident. We have gone through the two judgments, and we find that no such finding has been arrived at there. All the same, the trial Court and the High Court have examined the plea of alibi even on the Assumption that Mahipal Singh left Bajna at 1 p.m., and have given reasons for holding that he could still have reached the place of the incident. It will be recalled that the participation of Mahipal Singh in the crime has been established not only by the parol evidence on the record, but also by the recovery of his cap from the place of the second incident and his conduct in escaping from police custody. He claims to have taken leave of absence for November 11 and 12, 1970, but he failed to report at the place of his posting even after the expiry of the leave. He in fact escaped from police custody and was re-arrested after several months on August 1, 1971 when proceedings were taken against him under Section 87, Cr. P.C. There is thus no force in the argument that the plea of alibi has been rejected out of hand. 22. It has lastly been argued on behalf of the appellants that there was no justification for awarding the extreme penalty of death for the murders because of the delay in the trial, and reference in this connection has been made to Vivian Rodrick v. The State of West Bengal [AIR 1971 SC 1584 : (1971) 1 SCC 468 : 1971 SCC (Cri) 192.] , State of Maharashtra v. Manglya Dhavu Kongi [AIR 1972 SC 1797 : (1972) 3 SCC 46 : 1972 SCC (Cri) 237.] and Shanker v. State of U.P. [AIR 1975 SC 757 : (1975) 3 SCC 851 : 1975 SCC (Cri) 270.]. There is however no force in the argument because, as has been stated, appellants Natthu Singh, Uttam Singh and Mahipal Singh absconded and were apprehended after proceeding were taken against them under Section 87, Cr. P.C. Mahipal Singh was finally arrested on August 1, 1971. The trial Judge convicted and sentenced the appellants on December 12, 1973, and the High Court confirmed the death sentence on September 2, 1974. It cannot therefore be said that there has been any such delay as to justify the lesser sentence. On the other hand, the evidence on the record leaves no room for doubt that the appellants had on several occasions tried to take the law in their own hands and that led up to the murders which were committed after premeditation, with lethal weapons and in broad daylight when there was really no occasion for any provocation. There was no justification for murdering Banmali, Basdeo and Prem Narain for they had not even purchased the field from Natthu Singh. There is therefore no extenuating circumstances to justify the lesser sentence. | 0[ds]8. It would thus appear that the prosecution has led satisfactory evidence to prove how the appellants were bent upon obtaining the reconveyance of the "Bandhi" field from Ram Dayal and Smt. Kishori Devi, mother of Govind Das, at the original price of Rs. 6000. It will be recalled that they convened a "panchayat" for that purpose about a month before the date of the occurrence, but without success9. It has also been proved by satisfactory evidence that the Police made report Ex.0 against appellants Natthu Singh, Nirpat Singh and Uttam Singh for action under Section 107, Cr. P.C. but they did not enter appearance in the proceedings. It may also be mentioned that it is not disputed before us that appellants Natthu Singh, Nirpat Singh and Mahipal Singh had licensed guns withthem.Ram Dayal (PW 12) made an application Ex.1 to the Collector of Hamirpur on October 27, 1970 for cancellation of the licenses and he initially succeeded in obtaining an order in his favour, but it was stayed by the Collector. The three appellants thus continued to have the licensed guns with them which, according to the prosecution, were used by them soon after, on November 11, 1970, in committing the four murders10. There is thus satisfactory evidence on the record to prove the motive for the crime, the possession of licensed guns by appellants Natthu Singh, Nirpat Singh and Mahipal Singh and the circumstances which led up to the murders. Nothing of any importance has been urged against this part of the evidenceThere is however no force in the argument because, as has been stated, appellants Natthu Singh, Uttam Singh and Mahipal Singh absconded and were apprehended after proceeding were taken against them under Section 87, Cr. P.C. Mahipal Singh was finally arrested on August 1, 1971. The trial Judge convicted and sentenced the appellants on December 12, 1973, and the High Court confirmed the death sentence on September 2, 1974. It cannot therefore be said that there has been any such delay as to justify the lesser sentence. On the other hand, the evidence on the record leaves no room for doubt that the appellants had on several occasions tried to take the law in their own hands and that led up to the murders which were committed after premeditation, with lethal weapons and in broad daylight when there was really no occasion for any provocation. There was no justification for murdering Banmali, Basdeo and Prem Narain for they had not even purchased the field from Natthu Singh. There is therefore no extenuating circumstances to justify the lesser sentence. | 0 | 4,844 | 488 | ### 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:
Gopal Tiwari (PW 16). If the appellants had any reason to think that the four bundles were added surreptitiously, they should have cross-examined the Investigating Officer in that respect. But this was not done even though the Investigating Officer was cross-examined at considerable length. On the other hand, the evidence on the record leaves no room for doubt that the cap, the three cartridges and the broken portion of the butt-end of the gun were recovered early in the morning of November 12, 1970 and were sealed soon after. An attempt was also made to argue that Nirpat Singhs gun could not have been recovered and shown to Syed Ahmad Sultan (CW 2) as alleged by the prosecution because the witness returned from tour late in the evening while the gun was seized much earlier. The argument is futile because recovery memo Ex. Ka-8 shows that it was drawn up at 11.30 p.m. 20. It has next been argued by Mr. Pramod Swarup that there was no reason why the plea of alibi taken by Nirpat Singh, Uttam Singh and Mahipal Singh should have been rejected. We find however that appellant Nirpat Singh was employed as a clerk at a short distance of 6 miles from the place of the incident. He did not even take the plea of alibi in the Court of the committing magistrate. All the same, the trial Judge examined Rasool (CW 1) and he proved that Nirpat Singh remained on duty only upto 3 p.m. on November 11, 1970 and went away thereafter. It is therefore futile to argue that he should have been held to be on his duty as a telephone clerk at Mahoba from 10 a.m. to 4 p.m. As has been stated, Mahoba was close by, and could be reached within a short time. Uttam Singh was employed as a teacher in a school at village Supa, where the murders took place, and it appears that the place of the first incident was at a distance of only 175 yards from the school. The trial Judge has rejected the plea of alibi for the reason that no such defence was taken in the Court of the committing magistrate and also because of the proximity of the school to the place of the incident where Uttam Singh could have reached well in time even if he had left at the close of the school at 4 p.m. 21. It has not been argued that appellant Natthu Singh was in a position to make out a plea of alibi and it only remains for us to examine a similar argument on behalf of appellant Mahipal Singh. He also did not take the plea in the Court of the committing magistrate that he was far away from the place of the incident owing to his posting at police station Bajna at the time of the incident. Moreover there is no justification for the argument of Mr. Pramod Swarup that the trial Court and the High Court have found it in Mahipal Singhs favour that he left Bajna police station only at 1 p.m. on the date of the incident. We have gone through the two judgments, and we find that no such finding has been arrived at there. All the same, the trial Court and the High Court have examined the plea of alibi even on the Assumption that Mahipal Singh left Bajna at 1 p.m., and have given reasons for holding that he could still have reached the place of the incident. It will be recalled that the participation of Mahipal Singh in the crime has been established not only by the parol evidence on the record, but also by the recovery of his cap from the place of the second incident and his conduct in escaping from police custody. He claims to have taken leave of absence for November 11 and 12, 1970, but he failed to report at the place of his posting even after the expiry of the leave. He in fact escaped from police custody and was re-arrested after several months on August 1, 1971 when proceedings were taken against him under Section 87, Cr. P.C. There is thus no force in the argument that the plea of alibi has been rejected out of hand. 22. It has lastly been argued on behalf of the appellants that there was no justification for awarding the extreme penalty of death for the murders because of the delay in the trial, and reference in this connection has been made to Vivian Rodrick v. The State of West Bengal [AIR 1971 SC 1584 : (1971) 1 SCC 468 : 1971 SCC (Cri) 192.] , State of Maharashtra v. Manglya Dhavu Kongi [AIR 1972 SC 1797 : (1972) 3 SCC 46 : 1972 SCC (Cri) 237.] and Shanker v. State of U.P. [AIR 1975 SC 757 : (1975) 3 SCC 851 : 1975 SCC (Cri) 270.]. There is however no force in the argument because, as has been stated, appellants Natthu Singh, Uttam Singh and Mahipal Singh absconded and were apprehended after proceeding were taken against them under Section 87, Cr. P.C. Mahipal Singh was finally arrested on August 1, 1971. The trial Judge convicted and sentenced the appellants on December 12, 1973, and the High Court confirmed the death sentence on September 2, 1974. It cannot therefore be said that there has been any such delay as to justify the lesser sentence. On the other hand, the evidence on the record leaves no room for doubt that the appellants had on several occasions tried to take the law in their own hands and that led up to the murders which were committed after premeditation, with lethal weapons and in broad daylight when there was really no occasion for any provocation. There was no justification for murdering Banmali, Basdeo and Prem Narain for they had not even purchased the field from Natthu Singh. There is therefore no extenuating circumstances to justify the lesser sentence.
### Response:
0
### Explanation:
8. It would thus appear that the prosecution has led satisfactory evidence to prove how the appellants were bent upon obtaining the reconveyance of the "Bandhi" field from Ram Dayal and Smt. Kishori Devi, mother of Govind Das, at the original price of Rs. 6000. It will be recalled that they convened a "panchayat" for that purpose about a month before the date of the occurrence, but without success9. It has also been proved by satisfactory evidence that the Police made report Ex.0 against appellants Natthu Singh, Nirpat Singh and Uttam Singh for action under Section 107, Cr. P.C. but they did not enter appearance in the proceedings. It may also be mentioned that it is not disputed before us that appellants Natthu Singh, Nirpat Singh and Mahipal Singh had licensed guns withthem.Ram Dayal (PW 12) made an application Ex.1 to the Collector of Hamirpur on October 27, 1970 for cancellation of the licenses and he initially succeeded in obtaining an order in his favour, but it was stayed by the Collector. The three appellants thus continued to have the licensed guns with them which, according to the prosecution, were used by them soon after, on November 11, 1970, in committing the four murders10. There is thus satisfactory evidence on the record to prove the motive for the crime, the possession of licensed guns by appellants Natthu Singh, Nirpat Singh and Mahipal Singh and the circumstances which led up to the murders. Nothing of any importance has been urged against this part of the evidenceThere is however no force in the argument because, as has been stated, appellants Natthu Singh, Uttam Singh and Mahipal Singh absconded and were apprehended after proceeding were taken against them under Section 87, Cr. P.C. Mahipal Singh was finally arrested on August 1, 1971. The trial Judge convicted and sentenced the appellants on December 12, 1973, and the High Court confirmed the death sentence on September 2, 1974. It cannot therefore be said that there has been any such delay as to justify the lesser sentence. On the other hand, the evidence on the record leaves no room for doubt that the appellants had on several occasions tried to take the law in their own hands and that led up to the murders which were committed after premeditation, with lethal weapons and in broad daylight when there was really no occasion for any provocation. There was no justification for murdering Banmali, Basdeo and Prem Narain for they had not even purchased the field from Natthu Singh. There is therefore no extenuating circumstances to justify the lesser sentence.
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Union of India (UOI) and Ors Vs. V.R. Tripathi | of service which is rendered by the employee, entitling the employee and after his death, their family to pension in accordance with the rules. Even if we do accept that submission, the principle which has been laid down by this Court on the basis of Section 16 of the Hindu Marriage Act, 1955 must find application in the present case as well. The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries - legitimate children.17. We may note at this stage, that a Division Bench of the Calcutta High Court in Namita Goldar (supra) quashed the circular of the Railway Board dated 2 January 1992 to the extent that it prevented the children of the second wife from being considered for appointment on compassionate grounds. Subsequently, another Division Bench of the High Court in its decision in Eastern Coalfields Ltd. v. Dilip Singh (2013) 3 Cal. LT 379 took a contrary view, without noticing the earlier decision. We may advert to the subsequent decision in Eastern Coalfields Ltd. (supra) for the reason that it proceeds on a construction of Section 16 which, in our view, is inconsistent with the language of that provision. The Division Bench held thus:Section 16(1) of the aforesaid Act creates a legal fiction whereby a child born out of void marriage shall be held to be legitimate. Section 16(3) of the said act restricts such legal presumption to the rights of such a child only to the property of his parents and none else.It is, therefore, clear that Section 16 of Hindu Marriages Act, 1955 presumes a child born out of a void marriage as legitimate only for the purpose of entitling him to claim rights in or to the property of his parents but not to any other thing.It is settled law that public post is not a heritable property. In State Bank of India v. Jaspal Kaur reported in (2007) 9 SCC 571 the Apex Court held that it is clear that public post is not heritable, therefore, the right to compassionate appointment is not a heritable property.In fact it is an exception to the Rule of regular appointment by open competition. Such exception to the Rule of regular appointment is therefore a privilege extended by the employer in terms of the scheme for compassionate appointment itself. It is not a property of the deceased nor is it a heritable right.In State of Chhattisgarh v. Dhirjo Kumar Sengar reported in (2009) 13 SCC 600 the Apex Court held as follows:Appointment on compassionate ground is an exception to the constitutional scheme of equality as adumbrated Under Articles 14 and 16 of the Constitution of India.For the aforesaid reasons, we are of the opinion that the provisions of Section 16 of the Hindu Marriage Act, 1955 cannot come to the aid of the Petitioner. Legal presumption of legitimacy in such provision is restricted only to the property of the deceased and not to other things. Hence, such provision of law cannot be pressed into service to expand the privilege of compassionate appointment extended by an employee under the scheme as the same can by no stretch of imagination be held to be the property of the deceased employee.18. The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in Sub-section (1) of Section 16 in regard to the legitimacy of the child. Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Court in M. Muthuraj v. Deputy General of Police, Tamil Nadu (2016) 5 CTC 50 adopting the same position. In the view which we have taken, we have arrived at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires. A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar in Union of India v. M. Karumbayee 2017 Lab. IC (NOC 237) 69. A Special leave petition filed against the judgment of the Division Bench was dismissed by this Court on 18 September 20171.19. We may, however, clarify that the issue as to whether in a particular case, the applicant meets all the stipulations of the scheme including financial need and other requirements are matters which will be decided on the facts of each individual case.20. Finally, it would be necessary to dwell on the submission which was urged on behalf of the Respondent that once the circular dated 2 January 1992 was struck down by the Division Bench of the Calcutta High Court in Namita Goldar (supra) and which was accepted and has been implemented, it was not thereafter open to the railway authorities to rely upon the same circular which has all India force and effect. There is merit in the submission. Hence, we find it improper on the part of the Railway Board to issue a fresh circular on 3 April 2013, reiterating the terms of the earlier circular dated 2 January, 1992 even after the decision in Namita Goldar (supra), which attained finality. | 0[ds]The submission which has been urged on behalf of the Union of India by the learned Additional Solicitor General is premised on the basis that there is no right to compassionate appointment. There can be no doubt about the principle that there is no right as such to compassionate appointment but only an entitlement, where a scheme or Rules envisaging it exist, to be considered in accordance with the provisions.Even if the narrow classification test is adopted, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to beare here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee againstif we do accept that submission, the principle which has been laid down by this Court on the basis of Section 16 of the Hindu Marriage Act, 1955 must find application in the present case as well. The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries - legitimate children.We may note at this stage, that a Division Bench of the Calcutta High Court in Namita Goldar (supra) quashed the circular of the Railway Board dated 2 January 1992 to the extent that it prevented the children of the second wife from being considered for appointment on compassionate grounds. Subsequently, another Division Bench of the High Court in its decision in Eastern Coalfields Ltd. v. Dilip Singh (2013) 3 Cal. LT 379 took a contrary view, without noticing the earlier decision. We may advert to the subsequent decision in Eastern Coalfields Ltd. (supra) for the reason that it proceeds on a construction of Section 16 which, in our view, is inconsistent with the language of that provision. The Division Bench held16(1) of the aforesaid Act creates a legal fiction whereby a child born out of void marriage shall be held to be legitimate. Section 16(3) of the said act restricts such legal presumption to the rights of such a child only to the property of his parents and noneis, therefore, clear that Section 16 of Hindu Marriages Act, 1955 presumes a child born out of a void marriage as legitimate only for the purpose of entitling him to claim rights in or to the property of his parents but not to any otheris settled law that public post is not a heritable property. In State Bank of India v. Jaspal Kaur reported in (2007) 9 SCC 571 the Apex Court held that it is clear that public post is not heritable, therefore, the right to compassionate appointment is not a heritablefact it is an exception to the Rule of regular appointment by open competition. Such exception to the Rule of regular appointment is therefore a privilege extended by the employer in terms of the scheme for compassionate appointment itself. It is not a property of the deceased nor is it a heritableState of Chhattisgarh v. Dhirjo Kumar Sengar reported in (2009) 13 SCC 600 the Apex Court held ason compassionate ground is an exception to the constitutional scheme of equality as adumbrated Under Articles 14 and 16 of the Constitution ofthe aforesaid reasons, we are of the opinion that the provisions of Section 16 of the Hindu Marriage Act, 1955 cannot come to the aid of the Petitioner. Legal presumption of legitimacy in such provision is restricted only to the property of the deceased and not to other things. Hence, such provision of law cannot be pressed into service to expand the privilege of compassionate appointment extended by an employee under the scheme as the same can by no stretch of imagination be held to be the property of the deceased employee.The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in Sub-section (1) of Section 16 in regard to the legitimacy of the child. Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Court in M. Muthuraj v. Deputy General of Police, Tamil Nadu (2016) 5 CTC 50 adopting the same position. In the view which we have taken, we have arrived at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires. A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar in Union of India v. M. Karumbayee 2017 Lab. IC (NOC 237) 69. A Special leave petition filed against the judgment of the Division Bench was dismissed by this Court on 18 September 20171.We may, however, clarify that the issue as to whether in a particular case, the applicant meets all the stipulations of the scheme including financial need and other requirements are matters which will be decided on the facts of each individualis merit in the submission. Hence, we find it improper on the part of the Railway Board to issue a fresh circular on 3 April 2013, reiterating the terms of the earlier circular dated 2 January, 1992 even after the decision in Namita Goldar (supra), which attained finality. | 0 | 4,237 | 1,272 | ### Instruction:
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of service which is rendered by the employee, entitling the employee and after his death, their family to pension in accordance with the rules. Even if we do accept that submission, the principle which has been laid down by this Court on the basis of Section 16 of the Hindu Marriage Act, 1955 must find application in the present case as well. The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries - legitimate children.17. We may note at this stage, that a Division Bench of the Calcutta High Court in Namita Goldar (supra) quashed the circular of the Railway Board dated 2 January 1992 to the extent that it prevented the children of the second wife from being considered for appointment on compassionate grounds. Subsequently, another Division Bench of the High Court in its decision in Eastern Coalfields Ltd. v. Dilip Singh (2013) 3 Cal. LT 379 took a contrary view, without noticing the earlier decision. We may advert to the subsequent decision in Eastern Coalfields Ltd. (supra) for the reason that it proceeds on a construction of Section 16 which, in our view, is inconsistent with the language of that provision. The Division Bench held thus:Section 16(1) of the aforesaid Act creates a legal fiction whereby a child born out of void marriage shall be held to be legitimate. Section 16(3) of the said act restricts such legal presumption to the rights of such a child only to the property of his parents and none else.It is, therefore, clear that Section 16 of Hindu Marriages Act, 1955 presumes a child born out of a void marriage as legitimate only for the purpose of entitling him to claim rights in or to the property of his parents but not to any other thing.It is settled law that public post is not a heritable property. In State Bank of India v. Jaspal Kaur reported in (2007) 9 SCC 571 the Apex Court held that it is clear that public post is not heritable, therefore, the right to compassionate appointment is not a heritable property.In fact it is an exception to the Rule of regular appointment by open competition. Such exception to the Rule of regular appointment is therefore a privilege extended by the employer in terms of the scheme for compassionate appointment itself. It is not a property of the deceased nor is it a heritable right.In State of Chhattisgarh v. Dhirjo Kumar Sengar reported in (2009) 13 SCC 600 the Apex Court held as follows:Appointment on compassionate ground is an exception to the constitutional scheme of equality as adumbrated Under Articles 14 and 16 of the Constitution of India.For the aforesaid reasons, we are of the opinion that the provisions of Section 16 of the Hindu Marriage Act, 1955 cannot come to the aid of the Petitioner. Legal presumption of legitimacy in such provision is restricted only to the property of the deceased and not to other things. Hence, such provision of law cannot be pressed into service to expand the privilege of compassionate appointment extended by an employee under the scheme as the same can by no stretch of imagination be held to be the property of the deceased employee.18. The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in Sub-section (1) of Section 16 in regard to the legitimacy of the child. Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Court in M. Muthuraj v. Deputy General of Police, Tamil Nadu (2016) 5 CTC 50 adopting the same position. In the view which we have taken, we have arrived at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires. A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar in Union of India v. M. Karumbayee 2017 Lab. IC (NOC 237) 69. A Special leave petition filed against the judgment of the Division Bench was dismissed by this Court on 18 September 20171.19. We may, however, clarify that the issue as to whether in a particular case, the applicant meets all the stipulations of the scheme including financial need and other requirements are matters which will be decided on the facts of each individual case.20. Finally, it would be necessary to dwell on the submission which was urged on behalf of the Respondent that once the circular dated 2 January 1992 was struck down by the Division Bench of the Calcutta High Court in Namita Goldar (supra) and which was accepted and has been implemented, it was not thereafter open to the railway authorities to rely upon the same circular which has all India force and effect. There is merit in the submission. Hence, we find it improper on the part of the Railway Board to issue a fresh circular on 3 April 2013, reiterating the terms of the earlier circular dated 2 January, 1992 even after the decision in Namita Goldar (supra), which attained finality.
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concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee againstif we do accept that submission, the principle which has been laid down by this Court on the basis of Section 16 of the Hindu Marriage Act, 1955 must find application in the present case as well. The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries - legitimate children.We may note at this stage, that a Division Bench of the Calcutta High Court in Namita Goldar (supra) quashed the circular of the Railway Board dated 2 January 1992 to the extent that it prevented the children of the second wife from being considered for appointment on compassionate grounds. Subsequently, another Division Bench of the High Court in its decision in Eastern Coalfields Ltd. v. Dilip Singh (2013) 3 Cal. LT 379 took a contrary view, without noticing the earlier decision. We may advert to the subsequent decision in Eastern Coalfields Ltd. (supra) for the reason that it proceeds on a construction of Section 16 which, in our view, is inconsistent with the language of that provision. The Division Bench held16(1) of the aforesaid Act creates a legal fiction whereby a child born out of void marriage shall be held to be legitimate. Section 16(3) of the said act restricts such legal presumption to the rights of such a child only to the property of his parents and noneis, therefore, clear that Section 16 of Hindu Marriages Act, 1955 presumes a child born out of a void marriage as legitimate only for the purpose of entitling him to claim rights in or to the property of his parents but not to any otheris settled law that public post is not a heritable property. In State Bank of India v. Jaspal Kaur reported in (2007) 9 SCC 571 the Apex Court held that it is clear that public post is not heritable, therefore, the right to compassionate appointment is not a heritablefact it is an exception to the Rule of regular appointment by open competition. Such exception to the Rule of regular appointment is therefore a privilege extended by the employer in terms of the scheme for compassionate appointment itself. It is not a property of the deceased nor is it a heritableState of Chhattisgarh v. Dhirjo Kumar Sengar reported in (2009) 13 SCC 600 the Apex Court held ason compassionate ground is an exception to the constitutional scheme of equality as adumbrated Under Articles 14 and 16 of the Constitution ofthe aforesaid reasons, we are of the opinion that the provisions of Section 16 of the Hindu Marriage Act, 1955 cannot come to the aid of the Petitioner. Legal presumption of legitimacy in such provision is restricted only to the property of the deceased and not to other things. Hence, such provision of law cannot be pressed into service to expand the privilege of compassionate appointment extended by an employee under the scheme as the same can by no stretch of imagination be held to be the property of the deceased employee.The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in Sub-section (1) of Section 16 in regard to the legitimacy of the child. Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Court in M. Muthuraj v. Deputy General of Police, Tamil Nadu (2016) 5 CTC 50 adopting the same position. In the view which we have taken, we have arrived at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires. A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar in Union of India v. M. Karumbayee 2017 Lab. IC (NOC 237) 69. A Special leave petition filed against the judgment of the Division Bench was dismissed by this Court on 18 September 20171.We may, however, clarify that the issue as to whether in a particular case, the applicant meets all the stipulations of the scheme including financial need and other requirements are matters which will be decided on the facts of each individualis merit in the submission. Hence, we find it improper on the part of the Railway Board to issue a fresh circular on 3 April 2013, reiterating the terms of the earlier circular dated 2 January, 1992 even after the decision in Namita Goldar (supra), which attained finality.
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Firm Hansraj Nathu Ram Vs. Firm Lalji Raja & Sons | Morena, in what was Gwalior State and subsequently became a part of the United State named Madhya Bharat and after the Constitution the Part B State of Madhya Bharat. On the judgment-debtors objection the application for execution was dismissed on December 29, 1950, but the appeal against that order was allowed by the High Court on November 15, 1954.3. It is unnecessary to set out the various Sections of the Indian Code of Civil Procedure or to trace the various steps by which Ss. 43 and 44 were amended in that Code; that we have done in C. A. No. 24 of 1960: (AIR 1962 SC 1737 ) decided today. It was contended before us by the judgment-debtor that the Court had no power to transfer the decree under S. 38 to the Court in Morena. On the date when the decree was transferred the Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adopted by the Madhya Bharat Adaptation order of 1948 but the power of transfer by the Court at Bankura was governed by Ss. 38 and 39 of the Indian Code of Civil Procedure. Under that Code, the Court to which the decree could be transferred was one established in what was British India because the Code extended to the territories of what was British India and it was not till the coming into force of Act II of 1951 on April 1, 1951, that the Indian Code was applied to the "Territories of India" which comprised Parts A, B and C States.4. It was contended by Mr. N. S. Bindra counsel for the respondent that under Ss. 38 and 39 of the Indian Code of Civil Procedure a decree could be sent for execution to any Court, the expression "Court" being understood as a place where justice was administered and for this reliance was placed on Manavala Goundan v. Kumarappa Reddy, ILR 30 Mad 326 where the word "Court" in S. 622 of the old Civil P. C. was defined as a place where justice is judicially administered; but that was in a case where it had to be determined whether a District Registrar was a Court for the purpose of Civil Procedure Code. The definition as given in that case is not of any help in determining the question now before us because what we have to see is whether the Court at Morena even though it administered justice judicially was covered by the word "Court" in S. 38 or not. As we have said above "Court" in the Section means a court to which the Indian Code of Civil Procedure applies and not any Court.Similarly at the relevant time in Ss. 40 and 42 of the Indian Code of Civil Procedure "Court" necessarily meant a Court to which Indian Civil Procedure Code applied i.e., a Court in what was British India. The Court at Morena not being such a Court the decree could not be transferred to it under the Indian Code of Civil Procedure and Ss. 38 and 39 were inapplicable to justify such a transfer.5. The decree, it was then argued, was executable under S. 43 of the Indian Civil Procedure Code as amended by the Adaptation of Laws Order of June 5, 1950, which had retrospective effect as from January 26, 1950.After the amendment that Section reads:"S. 43. Any decree passed -(a) by a Civil Court in Part B State, or(b) ...................(c) ...................may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in the States."The argument was that in the present case the expression "in a Part B State" should be read as if the expression was "in a Part A State". This again is not permissible for us. Section 43 has to be interpreted as it is and a Court cannot read it as if its language was different from what it actually is. It is not permissible for this Court to amend the law as suggested. Besides the Indian Civil Procedure Code was not extended to Madhya Bharat till April 1, 1951, by Act II of 1951. The decrees of foreign courts were, under the Gwalior Code of which Morena was a part, not executable under S. 233 which required a suit to be brought on the basis of foreign decrees nor under the Madhya Bharat Code of Civil Procedure. The decree therefore could not be executed in Morena under S. 43 of the Indian Code of Civil Procedure.6. It was next argued that the appellant firm was not a foreigner because it did not fall under the Foreigners Act (Act 31 of 1946) and reference was made to S. 2 (a)(iii) which was amended by Act 38 of 1947 on December 15, 1947; but this Act is not relevant for the purpose of finding out whether the decree was a foreign decree or not because the execution of decrees is governed by the provisions of the Code of Civil Procedure and not by the Foreigners Act. Under the former a decree can be executed by a Court which passed the decree or to which it was transferred for execution and the decree which could be transferred has to be a decree passed under the Code and the Court to which it could be transferred has to be a Court which was governed by the Indian Code of Civil Procedure. But in the present case it was not transferred to a Court which at the time of the transfer was governed by the Indian Code of Civil Procedure and therefore the transfer was ineffective for the purpose of execution and as we have said above, S. 43 of the Indian Code was inapplicable before Act II of 1951 to the State of Madhya Bharat. It is not necessary to go into the other questions raised if the above two questions are decided against the respondent. | 1[ds]6. It was next argued that the appellant firm was not a foreigner because it did not fall under the Foreigners Act (Act 31 of 1946) and reference was made to S. 2 (a)(iii) which was amended by Act 38 of 1947 on December 15, 1947; but this Act is not relevant for the purpose of finding out whether the decree was a foreign decree or not because the execution of decrees is governed by the provisions of the Code of Civil Procedure and not by the Foreigners Act. Under the former a decree can be executed by a Court which passed the decree or to which it was transferred for execution and the decree which could be transferred has to be a decree passed under the Code and the Court to which it could be transferred has to be a Court which was governed by the Indian Code of Civil Procedure. But in the present case it was not transferred to a Court which at the time of the transfer was governed by the Indian Code of Civil Procedure and therefore the transfer was ineffective for the purpose of execution and as we have said above, S. 43 of the Indian Code was inapplicable before Act II of 1951 to the State of Madhya Bharat. It is not necessary to go into the other questions raised if the above two questions are decided against the respondent. | 1 | 1,323 | 256 | ### 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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Morena, in what was Gwalior State and subsequently became a part of the United State named Madhya Bharat and after the Constitution the Part B State of Madhya Bharat. On the judgment-debtors objection the application for execution was dismissed on December 29, 1950, but the appeal against that order was allowed by the High Court on November 15, 1954.3. It is unnecessary to set out the various Sections of the Indian Code of Civil Procedure or to trace the various steps by which Ss. 43 and 44 were amended in that Code; that we have done in C. A. No. 24 of 1960: (AIR 1962 SC 1737 ) decided today. It was contended before us by the judgment-debtor that the Court had no power to transfer the decree under S. 38 to the Court in Morena. On the date when the decree was transferred the Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adopted by the Madhya Bharat Adaptation order of 1948 but the power of transfer by the Court at Bankura was governed by Ss. 38 and 39 of the Indian Code of Civil Procedure. Under that Code, the Court to which the decree could be transferred was one established in what was British India because the Code extended to the territories of what was British India and it was not till the coming into force of Act II of 1951 on April 1, 1951, that the Indian Code was applied to the "Territories of India" which comprised Parts A, B and C States.4. It was contended by Mr. N. S. Bindra counsel for the respondent that under Ss. 38 and 39 of the Indian Code of Civil Procedure a decree could be sent for execution to any Court, the expression "Court" being understood as a place where justice was administered and for this reliance was placed on Manavala Goundan v. Kumarappa Reddy, ILR 30 Mad 326 where the word "Court" in S. 622 of the old Civil P. C. was defined as a place where justice is judicially administered; but that was in a case where it had to be determined whether a District Registrar was a Court for the purpose of Civil Procedure Code. The definition as given in that case is not of any help in determining the question now before us because what we have to see is whether the Court at Morena even though it administered justice judicially was covered by the word "Court" in S. 38 or not. As we have said above "Court" in the Section means a court to which the Indian Code of Civil Procedure applies and not any Court.Similarly at the relevant time in Ss. 40 and 42 of the Indian Code of Civil Procedure "Court" necessarily meant a Court to which Indian Civil Procedure Code applied i.e., a Court in what was British India. The Court at Morena not being such a Court the decree could not be transferred to it under the Indian Code of Civil Procedure and Ss. 38 and 39 were inapplicable to justify such a transfer.5. The decree, it was then argued, was executable under S. 43 of the Indian Civil Procedure Code as amended by the Adaptation of Laws Order of June 5, 1950, which had retrospective effect as from January 26, 1950.After the amendment that Section reads:"S. 43. Any decree passed -(a) by a Civil Court in Part B State, or(b) ...................(c) ...................may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in the States."The argument was that in the present case the expression "in a Part B State" should be read as if the expression was "in a Part A State". This again is not permissible for us. Section 43 has to be interpreted as it is and a Court cannot read it as if its language was different from what it actually is. It is not permissible for this Court to amend the law as suggested. Besides the Indian Civil Procedure Code was not extended to Madhya Bharat till April 1, 1951, by Act II of 1951. The decrees of foreign courts were, under the Gwalior Code of which Morena was a part, not executable under S. 233 which required a suit to be brought on the basis of foreign decrees nor under the Madhya Bharat Code of Civil Procedure. The decree therefore could not be executed in Morena under S. 43 of the Indian Code of Civil Procedure.6. It was next argued that the appellant firm was not a foreigner because it did not fall under the Foreigners Act (Act 31 of 1946) and reference was made to S. 2 (a)(iii) which was amended by Act 38 of 1947 on December 15, 1947; but this Act is not relevant for the purpose of finding out whether the decree was a foreign decree or not because the execution of decrees is governed by the provisions of the Code of Civil Procedure and not by the Foreigners Act. Under the former a decree can be executed by a Court which passed the decree or to which it was transferred for execution and the decree which could be transferred has to be a decree passed under the Code and the Court to which it could be transferred has to be a Court which was governed by the Indian Code of Civil Procedure. But in the present case it was not transferred to a Court which at the time of the transfer was governed by the Indian Code of Civil Procedure and therefore the transfer was ineffective for the purpose of execution and as we have said above, S. 43 of the Indian Code was inapplicable before Act II of 1951 to the State of Madhya Bharat. It is not necessary to go into the other questions raised if the above two questions are decided against the respondent.
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6. It was next argued that the appellant firm was not a foreigner because it did not fall under the Foreigners Act (Act 31 of 1946) and reference was made to S. 2 (a)(iii) which was amended by Act 38 of 1947 on December 15, 1947; but this Act is not relevant for the purpose of finding out whether the decree was a foreign decree or not because the execution of decrees is governed by the provisions of the Code of Civil Procedure and not by the Foreigners Act. Under the former a decree can be executed by a Court which passed the decree or to which it was transferred for execution and the decree which could be transferred has to be a decree passed under the Code and the Court to which it could be transferred has to be a Court which was governed by the Indian Code of Civil Procedure. But in the present case it was not transferred to a Court which at the time of the transfer was governed by the Indian Code of Civil Procedure and therefore the transfer was ineffective for the purpose of execution and as we have said above, S. 43 of the Indian Code was inapplicable before Act II of 1951 to the State of Madhya Bharat. It is not necessary to go into the other questions raised if the above two questions are decided against the respondent.
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PR. COMMISSIONER OF INCOME TAX 3 NAGPUR Vs. BALLARPUR INDUSTRIES LTD | of manufacturing of various kinds of papers. The dispute in this appeal relates to the assessment year 1993-94. 6. The question arose in the assessment year in question before the Assessing Officer (AO) as to what is the true nature of payment of Rs.3.25 crores made by the respondent-Company(assessee) to one Mr. G.R.Hada pursuant to the compromise arrived at between the respondent-assessee-Company and Mr. 2 2G.R.Hada in a civil suit filed by Mr. G.R. Hada against the respondent-Company and others. 7. According to the respondent-Company(assessee), Mr. G.R. Hada and the respondent-Company were the joint promoters of one Company called M/s Andhra Pradesh Rayons Limited in which Mr. G.R. Hada was holding 10.25% shares and the remaining shares were held by other promoter shareholders with different percentage. 8. Since the dispute arose amongst the promoter shareholders, Mr. G.R. Hada filed a civil suit against the respondent-Company(assessee) and other promoter shareholders on the basis of an agreement, which was entered into amongst the promoter shareholders. 9. In the abovementioned suit, a compromise was arrived at between the respondent-Company(assessee) and Mr. G.R. Hada. Pursuant to the said compromise, 3 3the respondent-Company(assessee) paid a sum of Rs.3.25 crores to Mr. G.R. Hada. 10. The respondent-Company(assessee), however, claimed a deduction of Rs.3.25 crores in the assessment year in question as revenue expenditure because, according to them, they had paid the said sum to Mr. G.R. Hada for running their business. 11. The AO examined the claim in the context of the terms of the agreement in Para 12 (a) of his order dated 29.03.1996 (pages 54 to 60 of the SLP paper book) and held that the claim cannot be considered as revenue expenditure. The AO, therefore, rejected the claim. 12. The respondent-Company(assessee) felt aggrieved by the order of the AO and filed an appeal to the Commissioner of Income Tax (Appeals)-I, Nagpur. The CIT (Appeals) dealt with this issue in Para 15 of his order (pages 92 to 94 of the SLP paper book) and by his order 18.12.1998 confirmed the addition made by 4 4the AO. In other words, the CIT (Appeals) was also of the view that the claim made by the respondent- Company(assessee) cannot be considered as revenue expenditure. 13. The respondent-Company(assessee) felt aggrieved and filed second appeal in the Income Tax Appellate Tribunal. The Tribunal examined the question in Paras 26 and 27 and by its order dated 30.06.2003 allowed the appeal and directed the AO to allow the deduction of Rs.3.25 crores as claimed by the respondent-Company(assessee). 14. The Commissioner of Income Tax- Revenue felt aggrieved and filed appeal in the High Court of Judicature at Mumbai, Nagpur Bench. By impugned order, the High Court dismissed the appeal, which has given rise to filing of the present appeal by way of special leave by the Revenue in this Court. 15. So, the short question, which arises for consideration in this appeal, is whether the High Court 5 5was justified in dismissing the appeal filed by the Commissioner of Income Tax. 16. Heard Mr. Sanjay Jain, learned Additional Solicitor General for the appellant-Revenue and Ms. Vanita Bhargava, learned counsel for the respondent- Company(assessee). 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order as well as the order of the Tribunal and remand the case to the Tribunal to decide the appeal filed by the respondent-Company(assessee) afresh on merits in accordance with law. 18. The need to remand the case to the Tribunal has arisen for the following reasons. 19. From the perusal of Para 26 of the order of the Tribunal, we find that the Tribunal has recorded a finding, which reads as under: 6 6 26…………The AO did not dispute the fact that the expenditure related to the business of the assessee. The CIT (A), however, reversed the findings of the AO and held that the expenditure cannot be considered as business expenditure. A perusal of the CIT (A)s order can only lead to a conclusion that the CIT(A) was of the view that the expenditure in question was not a capital expenditure but of a revenue nature……….. 20. The aforesaid observation of the Tribunal, on what AO and CIT (Appeals) held, does not seem to be correct and rather inconsistent when we peruse the finding of the AO (concluding Para 12 (a) & (d) of the AOs order at page 60 of SLP and concluding Para 15.1 of CIT (Appeals) at page 93 of the SLP). 21. In other words, we find that the Tribunal did not correctly appreciate as to what AO and CIT (Appeals) held and what was their reasoning which led to their respective conclusion. 22. Having wrongly observed about their respective reasoning and the finding, the Tribunal proceeded to examine the case and eventually reversed the order of CIT (Appeals). The High court did not notice the 7 7aforesaid observation of the Tribunal and upheld the order of the Tribunal. 23. In such a situation like the one arising in the case and keeping in view the question involved, we are of the considered opinion that the matter deserves to be remanded to the Tribunal for deciding the appeal filed by the respondent-Company (assessee) afresh on merits because the Tribunal being the last Court of appeal on facts, its finding on the question of fact is of significance. 24. In our view, remanding the case is not likely to cause any prejudice to any party because the aggrieved party will have a right of appeal to the High Court and then to this Court against any adverse order. 25. Though the learned counsel for the parties argued the question on merits but having taken note of the approach of the Tribunal, we consider, in the interest of both the parties, to remand the appeal to 8 8the Tribunal for its hearing afresh on merits in accordance with law, keeping all the issues open. | 1[ds]17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order as well as the order of the Tribunal and remand the case to the Tribunal to decide the appeal filed by the respondent-Company(assessee) afresh on merits in accordance with law18. The need to remand the case to the Tribunal has arisen for the following reasons20. The aforesaid observation of the Tribunal, on what AO and CIT (Appeals) held, does not seem to be correct and rather inconsistent when we peruse the finding of the AO (concluding Para 12 (a) & (d) of the AOs order at page 60 of SLP and concluding Para 15.1 of CIT (Appeals) at page 93 of the SLP)21. In other words, we find that the Tribunal did not correctly appreciate as to what AO and CIT (Appeals) held and what was their reasoning which led to their respective conclusion22. Having wrongly observed about their respective reasoning and the finding, the Tribunal proceeded to examine the case and eventually reversed the order of CIT (Appeals). The High court did not notice the 7 7aforesaid observation of the Tribunal and upheld the order of the Tribunal23. In such a situation like the one arising in the case and keeping in view the question involved, we are of the considered opinion that the matter deserves to be remanded to the Tribunal for deciding the appeal filed by the respondent-Company (assessee) afresh on merits because the Tribunal being the last Court of appeal on facts, its finding on the question of fact is of significance24. In our view, remanding the case is not likely to cause any prejudice to any party because the aggrieved party will have a right of appeal to the High Court and then to this Court against any adverse order25. Though the learned counsel for the parties argued the question on merits but having taken note of the approach of the Tribunal, we consider, in the interest of both the parties, to remand the appeal to 8 8the Tribunal for its hearing afresh on merits in accordance with law, keeping all the issues open. | 1 | 1,306 | 416 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
of manufacturing of various kinds of papers. The dispute in this appeal relates to the assessment year 1993-94. 6. The question arose in the assessment year in question before the Assessing Officer (AO) as to what is the true nature of payment of Rs.3.25 crores made by the respondent-Company(assessee) to one Mr. G.R.Hada pursuant to the compromise arrived at between the respondent-assessee-Company and Mr. 2 2G.R.Hada in a civil suit filed by Mr. G.R. Hada against the respondent-Company and others. 7. According to the respondent-Company(assessee), Mr. G.R. Hada and the respondent-Company were the joint promoters of one Company called M/s Andhra Pradesh Rayons Limited in which Mr. G.R. Hada was holding 10.25% shares and the remaining shares were held by other promoter shareholders with different percentage. 8. Since the dispute arose amongst the promoter shareholders, Mr. G.R. Hada filed a civil suit against the respondent-Company(assessee) and other promoter shareholders on the basis of an agreement, which was entered into amongst the promoter shareholders. 9. In the abovementioned suit, a compromise was arrived at between the respondent-Company(assessee) and Mr. G.R. Hada. Pursuant to the said compromise, 3 3the respondent-Company(assessee) paid a sum of Rs.3.25 crores to Mr. G.R. Hada. 10. The respondent-Company(assessee), however, claimed a deduction of Rs.3.25 crores in the assessment year in question as revenue expenditure because, according to them, they had paid the said sum to Mr. G.R. Hada for running their business. 11. The AO examined the claim in the context of the terms of the agreement in Para 12 (a) of his order dated 29.03.1996 (pages 54 to 60 of the SLP paper book) and held that the claim cannot be considered as revenue expenditure. The AO, therefore, rejected the claim. 12. The respondent-Company(assessee) felt aggrieved by the order of the AO and filed an appeal to the Commissioner of Income Tax (Appeals)-I, Nagpur. The CIT (Appeals) dealt with this issue in Para 15 of his order (pages 92 to 94 of the SLP paper book) and by his order 18.12.1998 confirmed the addition made by 4 4the AO. In other words, the CIT (Appeals) was also of the view that the claim made by the respondent- Company(assessee) cannot be considered as revenue expenditure. 13. The respondent-Company(assessee) felt aggrieved and filed second appeal in the Income Tax Appellate Tribunal. The Tribunal examined the question in Paras 26 and 27 and by its order dated 30.06.2003 allowed the appeal and directed the AO to allow the deduction of Rs.3.25 crores as claimed by the respondent-Company(assessee). 14. The Commissioner of Income Tax- Revenue felt aggrieved and filed appeal in the High Court of Judicature at Mumbai, Nagpur Bench. By impugned order, the High Court dismissed the appeal, which has given rise to filing of the present appeal by way of special leave by the Revenue in this Court. 15. So, the short question, which arises for consideration in this appeal, is whether the High Court 5 5was justified in dismissing the appeal filed by the Commissioner of Income Tax. 16. Heard Mr. Sanjay Jain, learned Additional Solicitor General for the appellant-Revenue and Ms. Vanita Bhargava, learned counsel for the respondent- Company(assessee). 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order as well as the order of the Tribunal and remand the case to the Tribunal to decide the appeal filed by the respondent-Company(assessee) afresh on merits in accordance with law. 18. The need to remand the case to the Tribunal has arisen for the following reasons. 19. From the perusal of Para 26 of the order of the Tribunal, we find that the Tribunal has recorded a finding, which reads as under: 6 6 26…………The AO did not dispute the fact that the expenditure related to the business of the assessee. The CIT (A), however, reversed the findings of the AO and held that the expenditure cannot be considered as business expenditure. A perusal of the CIT (A)s order can only lead to a conclusion that the CIT(A) was of the view that the expenditure in question was not a capital expenditure but of a revenue nature……….. 20. The aforesaid observation of the Tribunal, on what AO and CIT (Appeals) held, does not seem to be correct and rather inconsistent when we peruse the finding of the AO (concluding Para 12 (a) & (d) of the AOs order at page 60 of SLP and concluding Para 15.1 of CIT (Appeals) at page 93 of the SLP). 21. In other words, we find that the Tribunal did not correctly appreciate as to what AO and CIT (Appeals) held and what was their reasoning which led to their respective conclusion. 22. Having wrongly observed about their respective reasoning and the finding, the Tribunal proceeded to examine the case and eventually reversed the order of CIT (Appeals). The High court did not notice the 7 7aforesaid observation of the Tribunal and upheld the order of the Tribunal. 23. In such a situation like the one arising in the case and keeping in view the question involved, we are of the considered opinion that the matter deserves to be remanded to the Tribunal for deciding the appeal filed by the respondent-Company (assessee) afresh on merits because the Tribunal being the last Court of appeal on facts, its finding on the question of fact is of significance. 24. In our view, remanding the case is not likely to cause any prejudice to any party because the aggrieved party will have a right of appeal to the High Court and then to this Court against any adverse order. 25. Though the learned counsel for the parties argued the question on merits but having taken note of the approach of the Tribunal, we consider, in the interest of both the parties, to remand the appeal to 8 8the Tribunal for its hearing afresh on merits in accordance with law, keeping all the issues open.
### Response:
1
### Explanation:
17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order as well as the order of the Tribunal and remand the case to the Tribunal to decide the appeal filed by the respondent-Company(assessee) afresh on merits in accordance with law18. The need to remand the case to the Tribunal has arisen for the following reasons20. The aforesaid observation of the Tribunal, on what AO and CIT (Appeals) held, does not seem to be correct and rather inconsistent when we peruse the finding of the AO (concluding Para 12 (a) & (d) of the AOs order at page 60 of SLP and concluding Para 15.1 of CIT (Appeals) at page 93 of the SLP)21. In other words, we find that the Tribunal did not correctly appreciate as to what AO and CIT (Appeals) held and what was their reasoning which led to their respective conclusion22. Having wrongly observed about their respective reasoning and the finding, the Tribunal proceeded to examine the case and eventually reversed the order of CIT (Appeals). The High court did not notice the 7 7aforesaid observation of the Tribunal and upheld the order of the Tribunal23. In such a situation like the one arising in the case and keeping in view the question involved, we are of the considered opinion that the matter deserves to be remanded to the Tribunal for deciding the appeal filed by the respondent-Company (assessee) afresh on merits because the Tribunal being the last Court of appeal on facts, its finding on the question of fact is of significance24. In our view, remanding the case is not likely to cause any prejudice to any party because the aggrieved party will have a right of appeal to the High Court and then to this Court against any adverse order25. Though the learned counsel for the parties argued the question on merits but having taken note of the approach of the Tribunal, we consider, in the interest of both the parties, to remand the appeal to 8 8the Tribunal for its hearing afresh on merits in accordance with law, keeping all the issues open.
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Ram Vilas Service Limited, Kumbakonam Vs. M/s. Raman & Raman Private Limited & Another | Divisional Engineer of the High-ways Department.(c) Every application for variation of conditions of permit under sub-section (8) of section 57 of the Act in respect of a transport vehicle shall be in form PVA.(d) The provisions of rule 163 (b) shall, mutatis mutandis, apply to application for the variation of a permit or the variation of the counter-signature, if any, thereof by the inclusion of an additional vehicle sanctioned subject to the production of the registration certificate of the additional vehicle."5. Section 5 of the Madras Act III of 1964, reads as follows :"5 (1). Notwithstanding anything contained in the principal Act, the route or routes or the area specified in every stage carriage permit granted before the commencement of this Act shall be deemed to be a condition attached to such permit under sub-section (3) of section 48 of the principal Act, as if this Act were in force on the date of grant of such permit.(2) Notwithstanding any judgment or order of any Court, all proceedings taken for the grant of, and all orders passed granting any variation, extension or curtailment of the route or routes or the area specified in a stage carriage permit before the commencement of this Act by the State Transport Authority or by a Regional Transport Authority or by an authority or person to whom the powers and functions of the State Transport Authority or a Regional Transport Authority have been delegated, or by an authority exercising the powers of appeal or revision against the orders of the State Transport Authority or a Regional Transport Authority, shall not be deemed to be invalid merely by reason of the fact that the State Transport Authority or the Regional Transport Authority, as the case may be, had no power to grant such variation, extension or curtailment and all such proceedings taken or orders passed shall be deemed always to have been validly taken or passed in accordance with law notwithstanding the distance covered by the variation or extension exceeded twenty-four kilometers."6. The learned counsel for the respondent contends that Section 48 (3) (xxi), as amended, operates whether a condition to that effect has been put in a permit or not. But we are unable to read section 48 in this sense. Section 48 (3) clearly enables the Regional Transport Authority to attach to the permit any or one of the twentyone conditions. It may in a particular case put one or two or more of the conditions or it may put all the conditions. It seems to be common ground that if any of the first twenty conditions in Section 48 (3) is not attached to a permit it will not have effect. What makes condition (xxi) different is hard to appreciate. If condition (xxi) as amended is not attached to a permit it is difficult to see how the Regional Transport Authority can derive any power from the existence of a Section 48 (3) (xxi) in the Act. Section 5 (1) of Act III of 1964 makes the route or routes or the area specified in every stage carriage permit granted before the commencement of the Amending Act a condition attached to such permit under sub-section (3) of section 48 of the principal Act it does not say that Section 48 (3) (xxi) shall be deemed to be a condition attached to every such permit. The learned counsel for the respondent says that this was the intention of the amendment, but if this was so, the intention has not been carried out.7. It was argued before us that the history of legislation supports the interpretation placed by the High Court but, in our view, the Act as it stands amended by Act III of 1964 is quite clear and it is not necessary to go into the history of the legislation.8. It seems to us that the High Court erred in holding that Section 48 (3) (xxi) of the Act as amended, by itself gave power to the Regional Transport Authority to vary the route within certain limits. This power, in our view, would be exercisable only if a condition to that effect is out in the permit.In the case of the appellant we saw the permit and what it contained was a condition similar to the condition mentioned in Section 48 (3) (xxi) before its amendment by Act III of 1964. Therefore, for the purpose of this appeal we must treat S. 48 (3) (xxi), as amended, as non-existent. If S. 48 (3) (xxi) as amended, is treated as non-existent, then there can be no difficulty in coming to the conclusion that no limitation had been placed on the powers of the Regional Transport Authority in respect of the grant of applications for variation of the route.The order of the Regional Transport Authority cannot therefore, be challenged as being beyond its jurisdiction.9. Another question that was debated before us was whether Rule 208 of the Madras Motor Vehicles Rules, extracted above, confers powers on a Transport Authority to vary permits or whether it is merely a procedural rule. It seems to us that as the Act stands at present, Rule 208 does confer power on a transport authority to vary all kinds of permits or conditions attached therein. This power is exercised on an application made in writing by the holder of any permit.10. It follows from the above reasoning that the Regional Transport Authority had the authority under Rule 208 to vary the permit and nothing contained in Section 48 (3) (xxi) limited its power in respect of the distance covered by the variation in this case.11. We may mention that it was argued before us that Section 57 (8) is not merely procedural but also implies a power to receive applications and vary the conditions in a permit. This may be so, but it is not necessary to decide in this case because in Madras Rule 208 clearly confers power on the Transport Authority to vary the conditions of the permit. | 1[ds]But we are unable to read section 48 in this sense. Section 48 (3) clearly enables the Regional Transport Authority to attach to the permit any or one of the twentyone conditions. It may in a particular case put one or two or more of the conditions or it may put all the conditions. It seems to be common ground that if any of the first twenty conditions in Section 48 (3) is not attached to a permit it will not have effect. What makes condition (xxi) different is hard to appreciate. If condition (xxi) as amended is not attached to a permit it is difficult to see how the Regional Transport Authority can derive any power from the existence of a Section 48 (3) (xxi) in the Act. Section 5 (1) of Act III of 1964 makes the route or routes or the area specified in every stage carriage permit granted before the commencement of the Amending Act a condition attached to such permit under sub-section (3) of section 48 of the principal Act it does not say that Section 48 (3) (xxi) shall be deemed to be a condition attached to every such permit.It was argued before us that the history of legislation supports the interpretation placed by the High Court but, in our view, the Act as it stands amended by Act III of 1964 is quite clear and it is not necessary to go into the history of the legislation.8. It seems to us that the High Court erred in holding that Section 48 (3) (xxi) of the Act as amended, by itself gave power to the Regional Transport Authority to vary the route within certain limits. This power, in our view, would be exercisable only if a condition to that effect is out in the permit.In the case of the appellant we saw the permit and what it contained was a condition similar to the condition mentioned in Section 48 (3) (xxi) before its amendment by Act III of 1964. Therefore, for the purpose of this appeal we must treat S. 48 (3) (xxi), as amended, as non-existent. If S. 48 (3) (xxi) as amended, is treated as non-existent, then there can be no difficulty in coming to the conclusion that no limitation had been placed on the powers of the Regional Transport Authority in respect of the grant of applications for variation of the route.The order of the Regional Transport Authority cannot therefore, be challenged as being beyond itsseems to us that as the Act stands at present, Rule 208 does confer power on a transport authority to vary all kinds of permits or conditions attached therein. This power is exercised on an application made in writing by the holder of any permit.10. It follows from the above reasoning that the Regional Transport Authority had the authority under Rule 208 to vary the permit and nothing contained in Section 48 (3) (xxi) limited its power in respect of the distance covered by the variation in this case.11. We may mention that it was argued before us that Section 57 (8) is not merely procedural but also implies a power to receive applications and vary the conditions in a permit. This may be so, but it is not necessary to decide in this case because in Madras Rule 208 clearly confers power on the Transport Authority to vary the conditions of the permit. | 1 | 2,069 | 643 | ### 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:
Divisional Engineer of the High-ways Department.(c) Every application for variation of conditions of permit under sub-section (8) of section 57 of the Act in respect of a transport vehicle shall be in form PVA.(d) The provisions of rule 163 (b) shall, mutatis mutandis, apply to application for the variation of a permit or the variation of the counter-signature, if any, thereof by the inclusion of an additional vehicle sanctioned subject to the production of the registration certificate of the additional vehicle."5. Section 5 of the Madras Act III of 1964, reads as follows :"5 (1). Notwithstanding anything contained in the principal Act, the route or routes or the area specified in every stage carriage permit granted before the commencement of this Act shall be deemed to be a condition attached to such permit under sub-section (3) of section 48 of the principal Act, as if this Act were in force on the date of grant of such permit.(2) Notwithstanding any judgment or order of any Court, all proceedings taken for the grant of, and all orders passed granting any variation, extension or curtailment of the route or routes or the area specified in a stage carriage permit before the commencement of this Act by the State Transport Authority or by a Regional Transport Authority or by an authority or person to whom the powers and functions of the State Transport Authority or a Regional Transport Authority have been delegated, or by an authority exercising the powers of appeal or revision against the orders of the State Transport Authority or a Regional Transport Authority, shall not be deemed to be invalid merely by reason of the fact that the State Transport Authority or the Regional Transport Authority, as the case may be, had no power to grant such variation, extension or curtailment and all such proceedings taken or orders passed shall be deemed always to have been validly taken or passed in accordance with law notwithstanding the distance covered by the variation or extension exceeded twenty-four kilometers."6. The learned counsel for the respondent contends that Section 48 (3) (xxi), as amended, operates whether a condition to that effect has been put in a permit or not. But we are unable to read section 48 in this sense. Section 48 (3) clearly enables the Regional Transport Authority to attach to the permit any or one of the twentyone conditions. It may in a particular case put one or two or more of the conditions or it may put all the conditions. It seems to be common ground that if any of the first twenty conditions in Section 48 (3) is not attached to a permit it will not have effect. What makes condition (xxi) different is hard to appreciate. If condition (xxi) as amended is not attached to a permit it is difficult to see how the Regional Transport Authority can derive any power from the existence of a Section 48 (3) (xxi) in the Act. Section 5 (1) of Act III of 1964 makes the route or routes or the area specified in every stage carriage permit granted before the commencement of the Amending Act a condition attached to such permit under sub-section (3) of section 48 of the principal Act it does not say that Section 48 (3) (xxi) shall be deemed to be a condition attached to every such permit. The learned counsel for the respondent says that this was the intention of the amendment, but if this was so, the intention has not been carried out.7. It was argued before us that the history of legislation supports the interpretation placed by the High Court but, in our view, the Act as it stands amended by Act III of 1964 is quite clear and it is not necessary to go into the history of the legislation.8. It seems to us that the High Court erred in holding that Section 48 (3) (xxi) of the Act as amended, by itself gave power to the Regional Transport Authority to vary the route within certain limits. This power, in our view, would be exercisable only if a condition to that effect is out in the permit.In the case of the appellant we saw the permit and what it contained was a condition similar to the condition mentioned in Section 48 (3) (xxi) before its amendment by Act III of 1964. Therefore, for the purpose of this appeal we must treat S. 48 (3) (xxi), as amended, as non-existent. If S. 48 (3) (xxi) as amended, is treated as non-existent, then there can be no difficulty in coming to the conclusion that no limitation had been placed on the powers of the Regional Transport Authority in respect of the grant of applications for variation of the route.The order of the Regional Transport Authority cannot therefore, be challenged as being beyond its jurisdiction.9. Another question that was debated before us was whether Rule 208 of the Madras Motor Vehicles Rules, extracted above, confers powers on a Transport Authority to vary permits or whether it is merely a procedural rule. It seems to us that as the Act stands at present, Rule 208 does confer power on a transport authority to vary all kinds of permits or conditions attached therein. This power is exercised on an application made in writing by the holder of any permit.10. It follows from the above reasoning that the Regional Transport Authority had the authority under Rule 208 to vary the permit and nothing contained in Section 48 (3) (xxi) limited its power in respect of the distance covered by the variation in this case.11. We may mention that it was argued before us that Section 57 (8) is not merely procedural but also implies a power to receive applications and vary the conditions in a permit. This may be so, but it is not necessary to decide in this case because in Madras Rule 208 clearly confers power on the Transport Authority to vary the conditions of the permit.
### Response:
1
### Explanation:
But we are unable to read section 48 in this sense. Section 48 (3) clearly enables the Regional Transport Authority to attach to the permit any or one of the twentyone conditions. It may in a particular case put one or two or more of the conditions or it may put all the conditions. It seems to be common ground that if any of the first twenty conditions in Section 48 (3) is not attached to a permit it will not have effect. What makes condition (xxi) different is hard to appreciate. If condition (xxi) as amended is not attached to a permit it is difficult to see how the Regional Transport Authority can derive any power from the existence of a Section 48 (3) (xxi) in the Act. Section 5 (1) of Act III of 1964 makes the route or routes or the area specified in every stage carriage permit granted before the commencement of the Amending Act a condition attached to such permit under sub-section (3) of section 48 of the principal Act it does not say that Section 48 (3) (xxi) shall be deemed to be a condition attached to every such permit.It was argued before us that the history of legislation supports the interpretation placed by the High Court but, in our view, the Act as it stands amended by Act III of 1964 is quite clear and it is not necessary to go into the history of the legislation.8. It seems to us that the High Court erred in holding that Section 48 (3) (xxi) of the Act as amended, by itself gave power to the Regional Transport Authority to vary the route within certain limits. This power, in our view, would be exercisable only if a condition to that effect is out in the permit.In the case of the appellant we saw the permit and what it contained was a condition similar to the condition mentioned in Section 48 (3) (xxi) before its amendment by Act III of 1964. Therefore, for the purpose of this appeal we must treat S. 48 (3) (xxi), as amended, as non-existent. If S. 48 (3) (xxi) as amended, is treated as non-existent, then there can be no difficulty in coming to the conclusion that no limitation had been placed on the powers of the Regional Transport Authority in respect of the grant of applications for variation of the route.The order of the Regional Transport Authority cannot therefore, be challenged as being beyond itsseems to us that as the Act stands at present, Rule 208 does confer power on a transport authority to vary all kinds of permits or conditions attached therein. This power is exercised on an application made in writing by the holder of any permit.10. It follows from the above reasoning that the Regional Transport Authority had the authority under Rule 208 to vary the permit and nothing contained in Section 48 (3) (xxi) limited its power in respect of the distance covered by the variation in this case.11. We may mention that it was argued before us that Section 57 (8) is not merely procedural but also implies a power to receive applications and vary the conditions in a permit. This may be so, but it is not necessary to decide in this case because in Madras Rule 208 clearly confers power on the Transport Authority to vary the conditions of the permit.
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UNION OF INDIA Vs. ASSOCIATION OF UNIFIED TELECOM SERVICE PROVIDERS OF INDIA | Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016); or (b) offline verification under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016); or (c) use of passport issued under Section 4 of the Passports Act, 1967 (15 of 1967); or (d) use of any other officially valid document or modes of identification as may be notified by the Central Government in this behalf. (4) If any person who is granted a license under the first proviso to sub-section (1) to establish, maintain or work a telegraph within any part of India is using authentication under clause (a) of sub-section (3) to identify any person to whom it provides its services, it shall make the other modes of identification under clauses (b) to (d) of sub-section (3) also available to such person. (5) The use of modes of identification under sub-section (3) shall be a voluntary choice of the person who is sought to be identified and no person shall be denied any service for not having an Aadhaar number. (6) If, for identification of a person, authentication under clause (a) of sub-section (3) is used, neither his core biometric information nor the Aadhaar number of the person shall be stored. (7) Nothing contained in sub-sections (3), (4) and (5) shall prevent the Central Government from specifying further safeguards and conditions for compliance by any person who is granted a license under the first proviso to sub-section (1) in respect of identification of person to whom it provides its services. Explanation.—The expressions Aadhaar number and core biometric information shall have the same meanings as are respectively assigned to them in clauses (a) and (j) of Section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016). 17. Section 3(10) defines creditor. The term debt is defined in Section 3(11). The expression property is defined in Section 3(27). Operational creditor is defined in Section 5(20) in Part II under the head Insolvency Resolution and Liquidation for Corporate Persons. Section 5(21) defines operational debt. 18. A question has been raised concerning ownership. Whether TSPs can be said to be the owner based on the right to use the spectrum under licence granted to them? Whether a licence is a contractual arrangement? Whether ownership belongs to the Government of India? Whether spectrum being under contract can be subjected to proceedings under Section 18 of the Code? The question also arises whether the spectrum can be said to be in possession, which arises from ownership. What is the distinction between possession and occupation? Whether possession correlates with the ownership right? A question also arises concerning the difference between trading and insolvency proceedings. Whether a licence can be transferred under the insolvency proceedings, particularly when the trading is subjected to clearance of dues by seller or buyer, as the case may be, as provided in Guideline Nos.10 and 11; whereas in insolvency proceedings dues are wiped off. Guideline No.12 is also assumed to be of significance in case spectrum is subjected to insolvency proceedings, which must be considered. 19. It is also required to be examined that when Government has declined the permission to trade and has not issued NOC for trading on the ground of non-fulfilment of the conditions as stipulated in the Licence Agreement, the spectrum can be subjected to resolution proceedings which will have the effect of wiping off the dues of the Government, which are more than Rs.40,000 crores. Whereas the dues of the Banks are much less. Whether obtaining the DoTs permission and its approval to the resolution plan would be a substitute for Trading Guideline Nos.10, 11, and 12 ? 20. A question also arises of bona fide nature of the proceedings under the Code. In the backdrop facts of the cases, question also arises whether spectrum licence subjected to proceedings under the Code, and it overrides the provisions contained in the Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933, and Telecom Regulatory Authority of India Act, 1997. 21. In view of the fact that the licence contained an agreement between the licensor, licensee, and the lenders, whether on the basis of that, spectrum can be treated as a security interest and what is the mode of its enforcement. Whether the Banks can enforce it in the proceedings under the Code or by the procedure as per the law of enforcement of security interest under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) or under any other law. 22. A question of seminal significance also arises whether the spectrum is a natural resource, the Government is holding the same as cestui que trust. In view of the nature of the resource, it can be subjected to insolvency/liquidation proceedings. Earlier licence was obtained on the payment of fees in advance that was not beneficial to the TSPs, as such a new revenue sharing regime was devised in 1999, and the Central Government has an exclusive right under section 4 of the Telegraph Act, 1885 in use of spectrum, it can part with on certain statutory guidelines, its use is not permissible without the payment of requisite fee. Whether dues under the licence can be said to be operational dues? It is also to be examined whether deferred/default payment instalment/s of spectrum acquisition cost can be termed to be operational dues besides AGR dues. Whether as per the revenue sharing regime and the provisions of the Indian Telegraph Act, 1885, the dues can be said to be operational dues? Whether natural resource would be available to use without payment of requisite dues, whether such dues can be wiped off by resorting to the proceedings under the Code and comparative dues of Government, and secured creditors and bona fides of proceedings are also the questions to be considered. 23. We consider it appropriate that the aforesaid various questions should first be considered by the NCLT. | 1[ds]This Court can examine the limited question in these proceedings whether the proceedings are resorted to as a subterfuge to avoid payment of AGR dues, and it is for the NCLT to decide whether the licence/spectrum can be transferred and be a part of the resolution process initiated under the provisions of the Code. Whether spectrum/licence can be subjected to resolution process as an asset belonging to the telecom service providers, and whether the AGR dues are operational dues and have to be dealt with under the provisions of the IBC by NCLT. With respect to the trading and sharing arrangement to the extent of spectrum traded or shared by different service providers under the sharing arrangement, the liability as per the guidelines, has to be borne by the respective telecom service providers.6. As per the statutory guidelines issued by the Department of Telecommunications in 2015, spectrum sharing allows the operators to pool their respective spectrum for usage in a specific geographical area. The Central Government framed spectrum sharing guidelines on 24.9.2015.8. The spectrum trading allows parties to transfer their rights and obligations to another party. In the case of spectrum sharing, the right to use spectrum remains with the respective telecom service providers, whereas in the case of spectrum trading, the right to use gets transferred from the buyer to the seller. Under spectrum trading guidelines, details of transactions which have taken place, are given.It is a natural resource, and under Section 4 of the Indian Telegraph Act, 1885, the Government has the sovereign right.18. A question has been raised concerning ownership. Whether TSPs can be said to be the owner based on the right to use the spectrum under licence granted to them? Whether a licence is a contractual arrangement? Whether ownership belongs to the Government of India? Whether spectrum being under contract can be subjected to proceedings under Section 18 of the Code? The question also arises whether the spectrum can be said to be in possession, which arises from ownership. What is the distinction between possession and occupation? Whether possession correlates with the ownership right? A question also arises concerning the difference between trading and insolvency proceedings. Whether a licence can be transferred under the insolvency proceedings, particularly when the trading is subjected to clearance of dues by seller or buyer, as the case may be, as provided in Guideline Nos.10 and 11; whereas in insolvency proceedings dues are wiped off. Guideline No.12 is also assumed to be of significance in case spectrum is subjected to insolvency proceedings, which must be considered.19. It is also required to be examined that when Government has declined the permission to trade and has not issued NOC for trading on the ground of non-fulfilment of the conditions as stipulated in the Licence Agreement, the spectrum can be subjected to resolution proceedings which will have the effect of wiping off the dues of the Government, which are more than Rs.40,000 crores. Whereas the dues of the Banks are much less. Whether obtaining the DoTs permission and its approval to the resolution plan would be a substitute for Trading Guideline Nos.10, 11, and 12 ?20. A question also arises of bona fide nature of the proceedings under the Code. In the backdrop facts of the cases, question also arises whether spectrum licence subjected to proceedings under the Code, and it overrides the provisions contained in the Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933, and Telecom Regulatory Authority of India Act, 1997.21. In view of the fact that the licence contained an agreement between the licensor, licensee, and the lenders, whether on the basis of that, spectrum can be treated as a security interest and what is the mode of its enforcement. Whether the Banks can enforce it in the proceedings under the Code or by the procedure as per the law of enforcement of security interest under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) or under any other law.22. A question of seminal significance also arises whether the spectrum is a natural resource, the Government is holding the same as cestui que trust. In view of the nature of the resource, it can be subjected to insolvency/liquidation proceedings. Earlier licence was obtained on the payment of fees in advance that was not beneficial to the TSPs, as such a new revenue sharing regime was devised in 1999, and the Central Government has an exclusive right under section 4 of the Telegraph Act, 1885 in use of spectrum, it can part with on certain statutory guidelines, its use is not permissible without the payment of requisite fee.Whether dues under the licence can be said to be operational dues? It is also to be examined whether deferred/default payment instalment/s of spectrum acquisition cost can be termed to be operational dues besides AGR dues. Whether as per the revenue sharing regime and the provisions of the Indian Telegraph Act, 1885, the dues can be said to be operational dues? Whether natural resource would be available to use without payment of requisite dues, whether such dues can be wiped off by resorting to the proceedings under the Code and comparative dues of Government, and secured creditors and bona fides of proceedings are also the questions to be considered.23. We consider it appropriate that the aforesaid various questions should first be considered by the NCLT.The Parliament has approved spectrum sharing as part of National Telecom Policy, 2012. However, DOT issued and approved the final guidelines in the year 2015. Spectrum sharing is a policy that permits the sharing of radio access network equipment of operators. Single radio network equipment is used to provide services by two operators using both the entities spectrum. As per Spectrum Sharing Guidelines of DoT, (i) it is a prerequisite that both operators sharing spectrum need to have spectrum in the same band and the same licenced area; (ii) it is also necessary that both operators have a network in the same geographical area; and (iii) leasing of the spectrum is not permitted under the policy. By sharing the radio network equipment, two operators use their spectrum and create their respective businesses capacity. Liability to pay necessary AGR and licence fee remains with the respective companies.On going through the entire Sharing Guidelines, it does not stipulate anything about the past dues of the sharing operators. In the case of sharing spectrum usage charges, the rate of each of the licensees post sharing shall increase by 0.5% of adjusted gross revenue.26. That in the present case, only part of the spectrum of the licensee has been shared with the case of some of TSPs., which has been approved by the DoT under the Sharing Guidelines, 2015, and there is no provision for the liability of the past dues on the shared operator. Even otherwise, the past dues of sharing operator/licensee covers AGR for the spectrum used by holder of licence, certain TSPs. such as Reliance came into existence later on, and as observed hereinabove, the liability of such operator of the AGR, would only be to the extent it has used the said spectrum. Shared operator TSPs. cannot be saddled with the liability to pay the past dues of AGR of licensee, that have shared the spectrum with the original licensees.27. Coming to the question of liability of the telecom companies which are using spectrum under the Trading Guidelines with respect to the AGR dues of the telecom company, Spectrum trading is governed by the Spectrum Trading Guidelines dated 12.10.2015 and under the said Trading Guidelines, part of the spectrum of the telecom company facing insolvency – the other telecom company is using original licensee. The purchaser and buyers liability shall be as per para 11 of the Spectrum Trading Guidelines dated 12.10.2015Thus, as per para 11 of the Spectrum Trading Guidelines dated 12.10.2015, read with the clarification vide O.M. dated 12.05.2016, in case of a part of the spectrum is under sale, the liability of the purchaser/buyer with respect to past dues of the seller shall not arise. In a case where the entire spectrum is under sale, in that case, the past dues of the seller shall be the liability of the buyer except the amount/dues, if any, found recoverable after the effective date of the trade, which was not known to the parties at the time of the effective date of trade and in such a situation the liability of such dues of the buyer and seller would be jointly or severally and the government at its discretion is entitled to recover such amount. In the present case, it is not in dispute that in some cases only part spectrum was traded, and the remaining spectrum continued with the seller. At the time of agreement for spectrum trading, the AGR dues of the seller were also known. Therefore, on a joint reading of para 11 of the Spectrum Trading Guidelines dated 12.10.2015 read with O.M. dated 12.05.2016, the sellers dues prior to the concluding of the agreement/spectrum trading shall not be upon the buyer.29. It is clear that in the case, which was decided by this Court relating to AGR dues, respondents were the parties, and they were litigating with respect to the definition of AGR in the second round of appeal filed in 215 before this Court. Each of them was aware that the dispute as to the definition of AGR was pending in this Court. Thus, it is apparent that it was known to the parties that AGR dues to be finalised as per the decision of this Court in a pending matter, and lis was pending for the last 20 years. The liability cannot be escaped as specified in the Trading Guidelines to the extent that the seller or buyer is liable. They have to pay the AGR as per the judgment rendered by this Court. The purchasers who are not seller or buyer, shall have to pay the dues to the extent they are liable under the Guidelines, as discussed above. It was stated that they have paid dues as per the self-assessment or, in some cases, demands have not been raised.33. The Union of India, after envisaging the larger interest, economic consequences on the nation and to ensure that the order of this Court is complied with in its letter and spirit, has taken a conscious decision and sought approval of this Court to a formula for recovery of past dues from the telecom service providers. The formula is placed for approval of this Court, which is arrived at after detailed and long drawn deliberations at various levels in the administrative hierarchy, including the Cabinet, and keeping in view the vital issues related to financial health and viability of the telecom sector, need for ensuring competition and a level-playing field in the interest of consumers. The following decision has been taken with respect to the mode of recovery:THE MODE OF RECOVERY FOR CONSIDERATION OFTHIS HONBLE COURT1.1 All licensees impacted by the judgment of the Honble Supreme Court be allowed to pay the unpaid or remaining to be paid amount of past DoT assessed/calculated dues in annual instalments over 20 years (or less if they so opt), duly protecting the net present value of the said dues using a discount rate of 8% (based on One Year Marginal Cost of Lending Rate of SBI which is currently 7.75%). Interest on the unpaid amount, penalty, and interest on penalty in relation to the past dues as on the date of the judgment of the Honble Supreme Court (arising due to the said judgment of the Supreme Court) will not be levied beyond the date of the said judgment, and the NPV will be protected using the discount rate. However, the TSPs shall continue to be liable for interest, penalty, and interest on penalty for unpaid dues of LF and SUC which arise prospectively after the date of judgment of the Honble Supreme Court (24.10.2019).1.2 Change in amount of past dues arising from the AGR judgment (24.10.2019), if any, determined after reconciliation between TSPs self-assessment and DoTs assessment/calculation, be added to/adjusted against the payable instalment amounts of the TSP on the same basis as given in paragraph 1.1 above.34. A prayer has also been made to pay the remaining dues through annual installments spanning over 20 years. For any lapse, a provision has been made to protect the net present value as per the order passed by this Court up to the date of judgment and the dues thereafter, to be realised using the discounted rate of 8%, which is based on one marginal MCLR rate of SBI which is currently at 7.75%. The interest, penalty, and interest on penalty on the arrears as per agreement not to be levied beyond the date of judgment, and the NPV will be protected. However, for prospective arrears, if any, the TSPs. shall be liable to interest, penalty, and interest on penalty for unpaid dues as per agreement after the date of judgment of this Court.35. Considering the various factors taken into account and the letters written by the Indian Banks Association, we are of the opinion that the decision of the Cabinet is based on the various factors, and in the interest of the economy and the consumers. The decision is taken after extensive deliberations and consultations, and till the date of judgment, the dues have been worked out as per the decision rendered by this Court. Only for the subsequent period, some relaxation has been given as to the rate of interest, penalty, and interest on penalty, which is permissible. The arrears have accumulated for the last 20 years. It is also to be noted that some of the companies are under insolvency proceedings, validity of which is to be examined, and they were having huge arrears of AGR dues against them. For protecting the telecom sector, a decision has been taken on various considerations mentioned above, which cannot be objected to.36. However, we consider that the period of 20 years fixed for payment is excessive. We feel that it is a revenue sharing regime, and it is grant of sovereign right to the TSPs. under the Telecom Policy. We feel that some reasonable time is to be granted, considering the financial stress and the banking sectors involvement. We deem it appropriate to grant facility of time to make payment of dues in equal yearly instalments. Rest of the decision quoted above, taken by the Cabinet, shall stand except the modifications concerning the time schedule for making payment of arrears. But, at the same time, it is to be ensured that the dues are paid in toto. The concession is granted only on the condition that the dues shall be paid punctually within the time stipulated by this Court. Even a single default will attract the dues along with interest, penalty and interest on penalty at the rate specified in the agreement.37. We also place on record that the demand of AGR was raised as against non-telecom PSUs. on the strength of the judgment passed by this Court. Pursuant to the Courts directions, the matter has been re- examined and considering the representations filed by PSUs. It is stated in the affidavit dated 18.6.2020 that non- telecom public sector undertakings are non-telecom entities involved in providing services such as power transmission, oil and gas exploration, and refining, Metrorail service, etc., and that they are not into the business of providing mobile services to the general public. They are not holding Access Service Licence (ASL). The revenue received by non-telecom public sector undertakings under the head of telecom services forms a very negligible and a small portion and does not form part of the total revenue, e.g., 0.0002% for GAIL, 0.00028% for DMRC and 0.001% for Oil India, etc. | 1 | 6,484 | 2,916 | ### 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.
### Input:
Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016); or (b) offline verification under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016); or (c) use of passport issued under Section 4 of the Passports Act, 1967 (15 of 1967); or (d) use of any other officially valid document or modes of identification as may be notified by the Central Government in this behalf. (4) If any person who is granted a license under the first proviso to sub-section (1) to establish, maintain or work a telegraph within any part of India is using authentication under clause (a) of sub-section (3) to identify any person to whom it provides its services, it shall make the other modes of identification under clauses (b) to (d) of sub-section (3) also available to such person. (5) The use of modes of identification under sub-section (3) shall be a voluntary choice of the person who is sought to be identified and no person shall be denied any service for not having an Aadhaar number. (6) If, for identification of a person, authentication under clause (a) of sub-section (3) is used, neither his core biometric information nor the Aadhaar number of the person shall be stored. (7) Nothing contained in sub-sections (3), (4) and (5) shall prevent the Central Government from specifying further safeguards and conditions for compliance by any person who is granted a license under the first proviso to sub-section (1) in respect of identification of person to whom it provides its services. Explanation.—The expressions Aadhaar number and core biometric information shall have the same meanings as are respectively assigned to them in clauses (a) and (j) of Section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016). 17. Section 3(10) defines creditor. The term debt is defined in Section 3(11). The expression property is defined in Section 3(27). Operational creditor is defined in Section 5(20) in Part II under the head Insolvency Resolution and Liquidation for Corporate Persons. Section 5(21) defines operational debt. 18. A question has been raised concerning ownership. Whether TSPs can be said to be the owner based on the right to use the spectrum under licence granted to them? Whether a licence is a contractual arrangement? Whether ownership belongs to the Government of India? Whether spectrum being under contract can be subjected to proceedings under Section 18 of the Code? The question also arises whether the spectrum can be said to be in possession, which arises from ownership. What is the distinction between possession and occupation? Whether possession correlates with the ownership right? A question also arises concerning the difference between trading and insolvency proceedings. Whether a licence can be transferred under the insolvency proceedings, particularly when the trading is subjected to clearance of dues by seller or buyer, as the case may be, as provided in Guideline Nos.10 and 11; whereas in insolvency proceedings dues are wiped off. Guideline No.12 is also assumed to be of significance in case spectrum is subjected to insolvency proceedings, which must be considered. 19. It is also required to be examined that when Government has declined the permission to trade and has not issued NOC for trading on the ground of non-fulfilment of the conditions as stipulated in the Licence Agreement, the spectrum can be subjected to resolution proceedings which will have the effect of wiping off the dues of the Government, which are more than Rs.40,000 crores. Whereas the dues of the Banks are much less. Whether obtaining the DoTs permission and its approval to the resolution plan would be a substitute for Trading Guideline Nos.10, 11, and 12 ? 20. A question also arises of bona fide nature of the proceedings under the Code. In the backdrop facts of the cases, question also arises whether spectrum licence subjected to proceedings under the Code, and it overrides the provisions contained in the Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933, and Telecom Regulatory Authority of India Act, 1997. 21. In view of the fact that the licence contained an agreement between the licensor, licensee, and the lenders, whether on the basis of that, spectrum can be treated as a security interest and what is the mode of its enforcement. Whether the Banks can enforce it in the proceedings under the Code or by the procedure as per the law of enforcement of security interest under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) or under any other law. 22. A question of seminal significance also arises whether the spectrum is a natural resource, the Government is holding the same as cestui que trust. In view of the nature of the resource, it can be subjected to insolvency/liquidation proceedings. Earlier licence was obtained on the payment of fees in advance that was not beneficial to the TSPs, as such a new revenue sharing regime was devised in 1999, and the Central Government has an exclusive right under section 4 of the Telegraph Act, 1885 in use of spectrum, it can part with on certain statutory guidelines, its use is not permissible without the payment of requisite fee. Whether dues under the licence can be said to be operational dues? It is also to be examined whether deferred/default payment instalment/s of spectrum acquisition cost can be termed to be operational dues besides AGR dues. Whether as per the revenue sharing regime and the provisions of the Indian Telegraph Act, 1885, the dues can be said to be operational dues? Whether natural resource would be available to use without payment of requisite dues, whether such dues can be wiped off by resorting to the proceedings under the Code and comparative dues of Government, and secured creditors and bona fides of proceedings are also the questions to be considered. 23. We consider it appropriate that the aforesaid various questions should first be considered by the NCLT.
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the AGR as per the judgment rendered by this Court. The purchasers who are not seller or buyer, shall have to pay the dues to the extent they are liable under the Guidelines, as discussed above. It was stated that they have paid dues as per the self-assessment or, in some cases, demands have not been raised.33. The Union of India, after envisaging the larger interest, economic consequences on the nation and to ensure that the order of this Court is complied with in its letter and spirit, has taken a conscious decision and sought approval of this Court to a formula for recovery of past dues from the telecom service providers. The formula is placed for approval of this Court, which is arrived at after detailed and long drawn deliberations at various levels in the administrative hierarchy, including the Cabinet, and keeping in view the vital issues related to financial health and viability of the telecom sector, need for ensuring competition and a level-playing field in the interest of consumers. The following decision has been taken with respect to the mode of recovery:THE MODE OF RECOVERY FOR CONSIDERATION OFTHIS HONBLE COURT1.1 All licensees impacted by the judgment of the Honble Supreme Court be allowed to pay the unpaid or remaining to be paid amount of past DoT assessed/calculated dues in annual instalments over 20 years (or less if they so opt), duly protecting the net present value of the said dues using a discount rate of 8% (based on One Year Marginal Cost of Lending Rate of SBI which is currently 7.75%). Interest on the unpaid amount, penalty, and interest on penalty in relation to the past dues as on the date of the judgment of the Honble Supreme Court (arising due to the said judgment of the Supreme Court) will not be levied beyond the date of the said judgment, and the NPV will be protected using the discount rate. However, the TSPs shall continue to be liable for interest, penalty, and interest on penalty for unpaid dues of LF and SUC which arise prospectively after the date of judgment of the Honble Supreme Court (24.10.2019).1.2 Change in amount of past dues arising from the AGR judgment (24.10.2019), if any, determined after reconciliation between TSPs self-assessment and DoTs assessment/calculation, be added to/adjusted against the payable instalment amounts of the TSP on the same basis as given in paragraph 1.1 above.34. A prayer has also been made to pay the remaining dues through annual installments spanning over 20 years. For any lapse, a provision has been made to protect the net present value as per the order passed by this Court up to the date of judgment and the dues thereafter, to be realised using the discounted rate of 8%, which is based on one marginal MCLR rate of SBI which is currently at 7.75%. The interest, penalty, and interest on penalty on the arrears as per agreement not to be levied beyond the date of judgment, and the NPV will be protected. However, for prospective arrears, if any, the TSPs. shall be liable to interest, penalty, and interest on penalty for unpaid dues as per agreement after the date of judgment of this Court.35. Considering the various factors taken into account and the letters written by the Indian Banks Association, we are of the opinion that the decision of the Cabinet is based on the various factors, and in the interest of the economy and the consumers. The decision is taken after extensive deliberations and consultations, and till the date of judgment, the dues have been worked out as per the decision rendered by this Court. Only for the subsequent period, some relaxation has been given as to the rate of interest, penalty, and interest on penalty, which is permissible. The arrears have accumulated for the last 20 years. It is also to be noted that some of the companies are under insolvency proceedings, validity of which is to be examined, and they were having huge arrears of AGR dues against them. For protecting the telecom sector, a decision has been taken on various considerations mentioned above, which cannot be objected to.36. However, we consider that the period of 20 years fixed for payment is excessive. We feel that it is a revenue sharing regime, and it is grant of sovereign right to the TSPs. under the Telecom Policy. We feel that some reasonable time is to be granted, considering the financial stress and the banking sectors involvement. We deem it appropriate to grant facility of time to make payment of dues in equal yearly instalments. Rest of the decision quoted above, taken by the Cabinet, shall stand except the modifications concerning the time schedule for making payment of arrears. But, at the same time, it is to be ensured that the dues are paid in toto. The concession is granted only on the condition that the dues shall be paid punctually within the time stipulated by this Court. Even a single default will attract the dues along with interest, penalty and interest on penalty at the rate specified in the agreement.37. We also place on record that the demand of AGR was raised as against non-telecom PSUs. on the strength of the judgment passed by this Court. Pursuant to the Courts directions, the matter has been re- examined and considering the representations filed by PSUs. It is stated in the affidavit dated 18.6.2020 that non- telecom public sector undertakings are non-telecom entities involved in providing services such as power transmission, oil and gas exploration, and refining, Metrorail service, etc., and that they are not into the business of providing mobile services to the general public. They are not holding Access Service Licence (ASL). The revenue received by non-telecom public sector undertakings under the head of telecom services forms a very negligible and a small portion and does not form part of the total revenue, e.g., 0.0002% for GAIL, 0.00028% for DMRC and 0.001% for Oil India, etc.
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Velvet Carpet and Co. Ltd Vs. Commissioner of Income Tax | 1. The question that needs to be decided in the present case is as to whether the Appellant/Assessee herein was entitled to weighted deduction in terms of the provision of Section 35B(1)(b)(iv) of the Income-tax Act, 1961, which was the provision in force during the relevant period, i.e., the assessment year 1983-84. In the return filed by the Assessee for that year, it had stated that a sum of Rs. 4,60,433 was paid by the Assessee to one Mr. Jack Barouk of Brussels who was appointed by the Assessee as its commercial agent in the said country for the sale of the Assessees goods. The aforesaid provision, i.e., Section 35B(1)(b)(iv), provides for weighted deduction that is in addition to the actual amount spent, one-third thereof as an additional expenditure, which provision was introduced to give the benefit to the Assessee. This provision reads as under:35B(1)(a) : Where an Assessee, being a domestic company or a person (other than a company) who is resident in India, has incurred, after the 29th day of February, 1968, but before the 1st day of March, 1983, whether directly or in association with any other person, any expenditure (not being in the nature of capital expenditure or personal expenses of the Assessee) referred to in Clause (b), he shall, subject to the provisions of this section, be allowed a deduction of a sum equal to one and one-third times the amount of such expenditure incurred during the previous year:Provided that in respect of the expenditure incurred after the 28th day of February, 1973, but before the 1st day of April, 1978, by a domestic company, being a company in which the public are substantially interested, the provisions of this clause shall have effect as if for the words one and one-third times, the words one and one-half times had been substituted.(b) The expenditure referred to in Clause (a) is that incurred wholly and exclusively on-- ...(iv) maintenance outside India of a branch, office or agency for the promotion of the sale outside India of such goods, services or facilities.As per Clause (b)(iv) the expenditure incurred shall qualify for weighted deduction in case the expenditure is incurred wholly and exclusively on maintenance outside India of a branch, office or agent for the promotion of the sale outside India of such goods, services or facilities.What is not in dispute is that the expenditure was in fact incurred. It was also incurred wholly and exclusively outside India as the payment was made to Mr. Jack Barouk a resident of Brussels. It is also not in dispute that this payment was made against some sales of carpets belonging to the Assessee, made by the said Mr. Jack Barouk. The only dispute is as to whether he could be treated as "agent" of the Assessee. The Appellant had filed appeal against the order of the Assessing Officer refusing to give benefit of the aforesaid provision, with the Commissioner of Income-tax (Appeals) ("CIT (Appeals)"), which was dismissed. However, in further appeal preferred before the Income-tax Appellate Tribunal (ITAT), the Appellant succeeded. A perusal of the judgment of the Income-tax Appellate Tribunal reveals that the Income-tax Appellate Tribunal had looked into the agreement that was entered into between the Assessee and the aforesaid Mr. Jack Barouk and found that this agreement is an agency agreement. The Income-tax Appellate Tribunal also took into consideration another supporting fact that as per the legal requirement the said agreement was approved by the Reserve Bank of India and the Reserve Bank of India in its approval had treated this agreement to be an agency agreement.2. We find that the High Court while allowing the appeal of the Department and rejecting the claim of the Assessee, observed that at no stage, the Assessee had put up a case that it had maintained branch or agency outside the country. This is clearly an erroneous finding and against the record. No doubt, the Assessee was not maintaining any branch office. However, the case of the Assessee was that Mr. Jack Barouk was appointed as his agent. It was the specific case made out by the Assessee right from the stage of the assessment proceedings and was specifically argued before the Income-tax Appellate Tribunal, as mentioned above, which was accepted by the Income-tax Appellate Tribunal.3. We were taken through the agreement that was entered into between the Assessee and Mr. Jack Barouk by the learned Counsel for the Appellant. It is in the form of communication dated October 24, 1977 addressed by Mr. Jack Barouk to the Assessee stating therein the terms and conditions on which two parties agreed to work together. In this communication, Mr. Jack Barouk agreed to keep the goods of the Assessee in his godown, show the said products to the visiting customers personally and secure orders from the territories mentioned therein namely, Benelux and France. This communication further states that he will be given 5 per cent, commission on all goods shipped by the Assessee to the aforesaid territories on the orders procured by the said Mr. Jack Barouk. The Assessee had accepted and agreed on the aforesaid terms contained in the said communication and there is a specific endorsement to this effect by the Assessee that the said communication, on acceptance by the Assessee, became a valid and enforceable agreement between the parties. The aforesaid terms clearly state that Mr. Jack Barouk had agreed to work as an agent of the Assessee and on the orders procured he was to get 5 per cent, commission. This aspect that the agreement was in fact an agency agreement stands conclusively established by the registration given by the Reserve Bank of India vide its letter dated October 29, 1977. Captioned communication of the Reserve Bank of India reads as "Registration of Selling Agency Arrangement". Thus, while giving its accord to the arrangement established between the parties it was termed as an agency arrangement. | 1[ds]2. We find that the High Court while allowing the appeal of the Department and rejecting the claim of the Assessee, observed that at no stage, the Assessee had put up a case that it had maintained branch or agency outside the country. This is clearly an erroneous finding and against the record. No doubt, the Assessee was not maintaining any branch office. However, the case of the Assessee was that Mr. Jack Barouk was appointed as his agent. It was the specific case made out by the Assessee right from the stage of the assessment proceedings and was specifically argued before the Income-tax Appellate Tribunal, as mentioned above, which was accepted by the Income-tax Appellate Tribunal3. We were taken through the agreement that was entered into between the Assessee and Mr. Jack Barouk by the learned Counsel for the Appellant. It is in the form of communication dated October 24, 1977 addressed by Mr. Jack Barouk to the Assessee stating therein the terms and conditions on which two parties agreed to work together. In this communication, Mr. Jack Barouk agreed to keep the goods of the Assessee in his godown, show the said products to the visiting customers personally and secure orders from the territories mentioned therein namely, Benelux and France. This communication further states that he will be given 5 per cent, commission on all goods shipped by the Assessee to the aforesaid territories on the orders procured by the said Mr. Jack Barouk. The Assessee had accepted and agreed on the aforesaid terms contained in the said communication and there is a specific endorsement to this effect by the Assessee that the said communication, on acceptance by the Assessee, became a valid and enforceable agreement between the parties. The aforesaid terms clearly state that Mr. Jack Barouk had agreed to work as an agent of the Assessee and on the orders procured he was to get 5 per cent, commission. This aspect that the agreement was in fact an agency agreement stands conclusively established by the registration given by the Reserve Bank of India vide its letter dated October 29, 1977. Captioned communication of the Reserve Bank of India reads as "Registration of Selling Agency Arrangement". Thus, while giving its accord to the arrangement established between the parties it was termed as an agency arrangement. | 1 | 1,127 | 425 | ### 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:
1. The question that needs to be decided in the present case is as to whether the Appellant/Assessee herein was entitled to weighted deduction in terms of the provision of Section 35B(1)(b)(iv) of the Income-tax Act, 1961, which was the provision in force during the relevant period, i.e., the assessment year 1983-84. In the return filed by the Assessee for that year, it had stated that a sum of Rs. 4,60,433 was paid by the Assessee to one Mr. Jack Barouk of Brussels who was appointed by the Assessee as its commercial agent in the said country for the sale of the Assessees goods. The aforesaid provision, i.e., Section 35B(1)(b)(iv), provides for weighted deduction that is in addition to the actual amount spent, one-third thereof as an additional expenditure, which provision was introduced to give the benefit to the Assessee. This provision reads as under:35B(1)(a) : Where an Assessee, being a domestic company or a person (other than a company) who is resident in India, has incurred, after the 29th day of February, 1968, but before the 1st day of March, 1983, whether directly or in association with any other person, any expenditure (not being in the nature of capital expenditure or personal expenses of the Assessee) referred to in Clause (b), he shall, subject to the provisions of this section, be allowed a deduction of a sum equal to one and one-third times the amount of such expenditure incurred during the previous year:Provided that in respect of the expenditure incurred after the 28th day of February, 1973, but before the 1st day of April, 1978, by a domestic company, being a company in which the public are substantially interested, the provisions of this clause shall have effect as if for the words one and one-third times, the words one and one-half times had been substituted.(b) The expenditure referred to in Clause (a) is that incurred wholly and exclusively on-- ...(iv) maintenance outside India of a branch, office or agency for the promotion of the sale outside India of such goods, services or facilities.As per Clause (b)(iv) the expenditure incurred shall qualify for weighted deduction in case the expenditure is incurred wholly and exclusively on maintenance outside India of a branch, office or agent for the promotion of the sale outside India of such goods, services or facilities.What is not in dispute is that the expenditure was in fact incurred. It was also incurred wholly and exclusively outside India as the payment was made to Mr. Jack Barouk a resident of Brussels. It is also not in dispute that this payment was made against some sales of carpets belonging to the Assessee, made by the said Mr. Jack Barouk. The only dispute is as to whether he could be treated as "agent" of the Assessee. The Appellant had filed appeal against the order of the Assessing Officer refusing to give benefit of the aforesaid provision, with the Commissioner of Income-tax (Appeals) ("CIT (Appeals)"), which was dismissed. However, in further appeal preferred before the Income-tax Appellate Tribunal (ITAT), the Appellant succeeded. A perusal of the judgment of the Income-tax Appellate Tribunal reveals that the Income-tax Appellate Tribunal had looked into the agreement that was entered into between the Assessee and the aforesaid Mr. Jack Barouk and found that this agreement is an agency agreement. The Income-tax Appellate Tribunal also took into consideration another supporting fact that as per the legal requirement the said agreement was approved by the Reserve Bank of India and the Reserve Bank of India in its approval had treated this agreement to be an agency agreement.2. We find that the High Court while allowing the appeal of the Department and rejecting the claim of the Assessee, observed that at no stage, the Assessee had put up a case that it had maintained branch or agency outside the country. This is clearly an erroneous finding and against the record. No doubt, the Assessee was not maintaining any branch office. However, the case of the Assessee was that Mr. Jack Barouk was appointed as his agent. It was the specific case made out by the Assessee right from the stage of the assessment proceedings and was specifically argued before the Income-tax Appellate Tribunal, as mentioned above, which was accepted by the Income-tax Appellate Tribunal.3. We were taken through the agreement that was entered into between the Assessee and Mr. Jack Barouk by the learned Counsel for the Appellant. It is in the form of communication dated October 24, 1977 addressed by Mr. Jack Barouk to the Assessee stating therein the terms and conditions on which two parties agreed to work together. In this communication, Mr. Jack Barouk agreed to keep the goods of the Assessee in his godown, show the said products to the visiting customers personally and secure orders from the territories mentioned therein namely, Benelux and France. This communication further states that he will be given 5 per cent, commission on all goods shipped by the Assessee to the aforesaid territories on the orders procured by the said Mr. Jack Barouk. The Assessee had accepted and agreed on the aforesaid terms contained in the said communication and there is a specific endorsement to this effect by the Assessee that the said communication, on acceptance by the Assessee, became a valid and enforceable agreement between the parties. The aforesaid terms clearly state that Mr. Jack Barouk had agreed to work as an agent of the Assessee and on the orders procured he was to get 5 per cent, commission. This aspect that the agreement was in fact an agency agreement stands conclusively established by the registration given by the Reserve Bank of India vide its letter dated October 29, 1977. Captioned communication of the Reserve Bank of India reads as "Registration of Selling Agency Arrangement". Thus, while giving its accord to the arrangement established between the parties it was termed as an agency arrangement.
### Response:
1
### Explanation:
2. We find that the High Court while allowing the appeal of the Department and rejecting the claim of the Assessee, observed that at no stage, the Assessee had put up a case that it had maintained branch or agency outside the country. This is clearly an erroneous finding and against the record. No doubt, the Assessee was not maintaining any branch office. However, the case of the Assessee was that Mr. Jack Barouk was appointed as his agent. It was the specific case made out by the Assessee right from the stage of the assessment proceedings and was specifically argued before the Income-tax Appellate Tribunal, as mentioned above, which was accepted by the Income-tax Appellate Tribunal3. We were taken through the agreement that was entered into between the Assessee and Mr. Jack Barouk by the learned Counsel for the Appellant. It is in the form of communication dated October 24, 1977 addressed by Mr. Jack Barouk to the Assessee stating therein the terms and conditions on which two parties agreed to work together. In this communication, Mr. Jack Barouk agreed to keep the goods of the Assessee in his godown, show the said products to the visiting customers personally and secure orders from the territories mentioned therein namely, Benelux and France. This communication further states that he will be given 5 per cent, commission on all goods shipped by the Assessee to the aforesaid territories on the orders procured by the said Mr. Jack Barouk. The Assessee had accepted and agreed on the aforesaid terms contained in the said communication and there is a specific endorsement to this effect by the Assessee that the said communication, on acceptance by the Assessee, became a valid and enforceable agreement between the parties. The aforesaid terms clearly state that Mr. Jack Barouk had agreed to work as an agent of the Assessee and on the orders procured he was to get 5 per cent, commission. This aspect that the agreement was in fact an agency agreement stands conclusively established by the registration given by the Reserve Bank of India vide its letter dated October 29, 1977. Captioned communication of the Reserve Bank of India reads as "Registration of Selling Agency Arrangement". Thus, while giving its accord to the arrangement established between the parties it was termed as an agency arrangement.
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Swadeshi Industries Limited Vs. Its Workmen | date of the agreement it was long before the date of the strike. There is some substance in this complaint; but that does not take away from the validity of the finding that the strike was justified.Whether the strike was justified or not is a question of fact and when on a consideration of all the facts and circumstances the Appellate Tribunal has come to the conclusion that the strike was justified, that finding is not vitiated merely because it placed undue weight on one or more circumstances. If these was evidence before the Appellate Tribunal on which it could reasonably come to the conclusion that the strike was justified we shall not be justified in interfering with that decision.It cannot be seriously suggested that in this case there was no such evidence before the Appellate Tribunal. Though the Charter of Demands submitted on the 26th is not on the record a fair idea of what was demanded therein can be obtained from the items mentioned in the Schedule. Items 1 to 5 of the Schedule are :1. Basic Pay.2. Dearness Allowance. 3. Bonus. 4. Provident Fund and Gratuity and 5. Leave and Holidays. It may be said that the provident fund had already been started by the Company in terms of the earlier agreement. It is not however clear that anything had been done as regards any gratuity scheme.Collective bargaining for securing improvement on matters like these viz., Basic Pay, dearness allowance, bonus, provident fund and gratuity, leave and holidays is the primary object of a trade union and when demands like these are put forward and thereafter a strike is resorted to in an attempt to induce the Company to agree to the demands or at least to open negotiations the strike must prima facie be considered justified.There is nothing to indicate that these demands were being put up frivolously or for any ulterior purpose. It is in this connection that Companys conduct as regards the implementation of the tenth term in the earlier agreement was of importance. This term provided that the case of the clerks will be taken up in the month of June next, when the matter will be settled amicably by Shri Nabjyoti Burman, Shri S. R. Poddar and Shri S. R. Biswas, Labour Officer in a conference. Admittedly meetings did take place between these three persons but no settlement was arrived at. The first Tribunal appears to have assumed that the opinion of the mediators was unfavourable to the workmen. This assumption was made merely from the fact that no report was made by the mediators. As the appellants Counsel fairly conceded there is no justification for such an assumption. All that we know is that these three persons, one from the Union, one from the Company and one from the Government Labour Department did meet. It is curious that the Company made no attempt to prove that it was the workers representatives who stood in the way of the settlement.5. In any case, the position in February 1951 was that since June 1949 when the case of the clerks was according to the agreement to be taken up, no settlement had been arrived at and the matter remained outstanding. In respect of the clerks therefore at least the demands for basic pay and dearness allowance etc.,was an issue in respect of which the Union should reasonably be considered to have felt the need for negotiation.6. All these mattes have been fully considered by the Appellate Tribunal and on such consideration it has arrived at the conclusion that the strike was justified. There is in our opinion not the slightest basis for thinking that this conclusion is perverse.7. The position therefore is that the conclusion of the Appellate Tribunal that the strike was not illegal and that it was justified remained unassailable. It was within a few days after the strike was launched that a general order terminating the services of all the workmen was made. The Appellate Tribunal thought that this order was made vindictively and mala fide, the purpose being to break the strike and weaken the position of the Mazdoor Union. Before us the Companys counsel has tried to suggest that these 230 members were guilty of violent activities. If that was the reason for which their services were sought to be terminated, it was necessary that it should be decided as a matter of fact by proper enquiry after giving reasonable opportunity to each workman to show the contrary that he was so guilty of violence. But no enquiry was held, no charge-sheet was framed and none of these 230 workmen had an opportunity to show that he was not guilty of any violence. Indeed the very manner in which a general order terminating the services of all workmen was made shows that the termination was intended to be the punishment not for any violent conduct or any other misconduct but for the mere fact of taking part in the strike. Besides no attempt has been made to prove by satisfactory evidence before the Tribunal the charge that any of their workmen were guilty of violence. In these circumstances the order of reinstatement made by the Appellate Tribunal is fully justified.8. The Companys Counsel drew our attention to the fact that while the order terminating the service of the workmen was made on May 24, 1951, the order of reinstatement was made in April, 1955. It is urged that in order to keep the factory going the Company had necessarily to appoint new men in place of those who had not joined though an opportunity was given to them.When however, as in this case, the order of termination itself bad reinstatement cannot ordinarily be refused merely because a long time has elapsed.It has further to be noticed that the Appellate Tribunal points out that no material was placed before it to show that new hands had been taken in by the Company. No such material was shown before us. | 0[ds]5. In any case, the position in February 1951 was that since June 1949 when the case of the clerks was according to the agreement to be taken up, no settlement had been arrived at and the matter remained outstanding. In respect of the clerks therefore at least the demands for basic pay and dearness allowance etc.,was an issue in respect of which the Union should reasonably be considered to have felt the need for negotiation.6. All these mattes have been fully considered by the Appellate Tribunal and on such consideration it has arrived at the conclusion that the strike was justified. There is in our opinion not the slightest basis for thinking that this conclusion is perverse.7. The position therefore is that the conclusion of the Appellate Tribunal that the strike was not illegal and that it was justified remained unassailable. It was within a few days after the strike was launched that a general order terminating the services of all the workmen was made. The Appellate Tribunal thought that this order was made vindictively and mala fide, the purpose being to break the strike and weaken the position of the Mazdoor Union. Before us the Companys counsel has tried to suggest that these 230 members were guilty of violent activities. If that was the reason for which their services were sought to be terminated, it was necessary that it should be decided as a matter of fact by proper enquiry after giving reasonable opportunity to each workman to show the contrary that he was so guilty of violence. But no enquiry was held, nowas framed and none of these 230 workmen had an opportunity to show that he was not guilty of any violence. Indeed the very manner in which a general order terminating the services of all workmen was made shows that the termination was intended to be the punishment not for any violent conduct or any other misconduct but for the mere fact of taking part in the strike. Besides no attempt has been made to prove by satisfactory evidence before the Tribunal the charge that any of their workmen were guilty of violence. In these circumstances the order of reinstatement made by the Appellate Tribunal is fully justified.8. The Companys Counsel drew our attention to the fact that while the order terminating the service of the workmen was made on May 24, 1951, the order of reinstatement was made in April, 1955. It is urged that in order to keep the factory going the Company had necessarily to appoint new men in place of those who had not joined though an opportunity was given to them.When however, as in this case, the order of termination itself bad reinstatement cannot ordinarily be refused merely because a long time has elapsed.It has further to be noticed that the Appellate Tribunal points out that no material was placed before it to show that new hands had been taken in by the Company. No such material was shown before us. | 0 | 2,449 | 535 | ### 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:
date of the agreement it was long before the date of the strike. There is some substance in this complaint; but that does not take away from the validity of the finding that the strike was justified.Whether the strike was justified or not is a question of fact and when on a consideration of all the facts and circumstances the Appellate Tribunal has come to the conclusion that the strike was justified, that finding is not vitiated merely because it placed undue weight on one or more circumstances. If these was evidence before the Appellate Tribunal on which it could reasonably come to the conclusion that the strike was justified we shall not be justified in interfering with that decision.It cannot be seriously suggested that in this case there was no such evidence before the Appellate Tribunal. Though the Charter of Demands submitted on the 26th is not on the record a fair idea of what was demanded therein can be obtained from the items mentioned in the Schedule. Items 1 to 5 of the Schedule are :1. Basic Pay.2. Dearness Allowance. 3. Bonus. 4. Provident Fund and Gratuity and 5. Leave and Holidays. It may be said that the provident fund had already been started by the Company in terms of the earlier agreement. It is not however clear that anything had been done as regards any gratuity scheme.Collective bargaining for securing improvement on matters like these viz., Basic Pay, dearness allowance, bonus, provident fund and gratuity, leave and holidays is the primary object of a trade union and when demands like these are put forward and thereafter a strike is resorted to in an attempt to induce the Company to agree to the demands or at least to open negotiations the strike must prima facie be considered justified.There is nothing to indicate that these demands were being put up frivolously or for any ulterior purpose. It is in this connection that Companys conduct as regards the implementation of the tenth term in the earlier agreement was of importance. This term provided that the case of the clerks will be taken up in the month of June next, when the matter will be settled amicably by Shri Nabjyoti Burman, Shri S. R. Poddar and Shri S. R. Biswas, Labour Officer in a conference. Admittedly meetings did take place between these three persons but no settlement was arrived at. The first Tribunal appears to have assumed that the opinion of the mediators was unfavourable to the workmen. This assumption was made merely from the fact that no report was made by the mediators. As the appellants Counsel fairly conceded there is no justification for such an assumption. All that we know is that these three persons, one from the Union, one from the Company and one from the Government Labour Department did meet. It is curious that the Company made no attempt to prove that it was the workers representatives who stood in the way of the settlement.5. In any case, the position in February 1951 was that since June 1949 when the case of the clerks was according to the agreement to be taken up, no settlement had been arrived at and the matter remained outstanding. In respect of the clerks therefore at least the demands for basic pay and dearness allowance etc.,was an issue in respect of which the Union should reasonably be considered to have felt the need for negotiation.6. All these mattes have been fully considered by the Appellate Tribunal and on such consideration it has arrived at the conclusion that the strike was justified. There is in our opinion not the slightest basis for thinking that this conclusion is perverse.7. The position therefore is that the conclusion of the Appellate Tribunal that the strike was not illegal and that it was justified remained unassailable. It was within a few days after the strike was launched that a general order terminating the services of all the workmen was made. The Appellate Tribunal thought that this order was made vindictively and mala fide, the purpose being to break the strike and weaken the position of the Mazdoor Union. Before us the Companys counsel has tried to suggest that these 230 members were guilty of violent activities. If that was the reason for which their services were sought to be terminated, it was necessary that it should be decided as a matter of fact by proper enquiry after giving reasonable opportunity to each workman to show the contrary that he was so guilty of violence. But no enquiry was held, no charge-sheet was framed and none of these 230 workmen had an opportunity to show that he was not guilty of any violence. Indeed the very manner in which a general order terminating the services of all workmen was made shows that the termination was intended to be the punishment not for any violent conduct or any other misconduct but for the mere fact of taking part in the strike. Besides no attempt has been made to prove by satisfactory evidence before the Tribunal the charge that any of their workmen were guilty of violence. In these circumstances the order of reinstatement made by the Appellate Tribunal is fully justified.8. The Companys Counsel drew our attention to the fact that while the order terminating the service of the workmen was made on May 24, 1951, the order of reinstatement was made in April, 1955. It is urged that in order to keep the factory going the Company had necessarily to appoint new men in place of those who had not joined though an opportunity was given to them.When however, as in this case, the order of termination itself bad reinstatement cannot ordinarily be refused merely because a long time has elapsed.It has further to be noticed that the Appellate Tribunal points out that no material was placed before it to show that new hands had been taken in by the Company. No such material was shown before us.
### Response:
0
### Explanation:
5. In any case, the position in February 1951 was that since June 1949 when the case of the clerks was according to the agreement to be taken up, no settlement had been arrived at and the matter remained outstanding. In respect of the clerks therefore at least the demands for basic pay and dearness allowance etc.,was an issue in respect of which the Union should reasonably be considered to have felt the need for negotiation.6. All these mattes have been fully considered by the Appellate Tribunal and on such consideration it has arrived at the conclusion that the strike was justified. There is in our opinion not the slightest basis for thinking that this conclusion is perverse.7. The position therefore is that the conclusion of the Appellate Tribunal that the strike was not illegal and that it was justified remained unassailable. It was within a few days after the strike was launched that a general order terminating the services of all the workmen was made. The Appellate Tribunal thought that this order was made vindictively and mala fide, the purpose being to break the strike and weaken the position of the Mazdoor Union. Before us the Companys counsel has tried to suggest that these 230 members were guilty of violent activities. If that was the reason for which their services were sought to be terminated, it was necessary that it should be decided as a matter of fact by proper enquiry after giving reasonable opportunity to each workman to show the contrary that he was so guilty of violence. But no enquiry was held, nowas framed and none of these 230 workmen had an opportunity to show that he was not guilty of any violence. Indeed the very manner in which a general order terminating the services of all workmen was made shows that the termination was intended to be the punishment not for any violent conduct or any other misconduct but for the mere fact of taking part in the strike. Besides no attempt has been made to prove by satisfactory evidence before the Tribunal the charge that any of their workmen were guilty of violence. In these circumstances the order of reinstatement made by the Appellate Tribunal is fully justified.8. The Companys Counsel drew our attention to the fact that while the order terminating the service of the workmen was made on May 24, 1951, the order of reinstatement was made in April, 1955. It is urged that in order to keep the factory going the Company had necessarily to appoint new men in place of those who had not joined though an opportunity was given to them.When however, as in this case, the order of termination itself bad reinstatement cannot ordinarily be refused merely because a long time has elapsed.It has further to be noticed that the Appellate Tribunal points out that no material was placed before it to show that new hands had been taken in by the Company. No such material was shown before us.
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T.S.Das Vs. Union Of India | to burden this judgment with the decisions considered by the Tribunal on the principle of equitable promissory estoppel and legitimate expectation, which have no application to the fact situation of the present case. 21. The original applicants contend that if the Government Policy dated 3rd July, 1976 is applied to the serving Sailors, inevitably, will result in retrospective application thereof to their deteriment. That is forbidden by Section 184-A of the Act. This argument does not commend to us. In that, the effect of the Government Policy is to disband the establishment of the Reserve Fleet Service with effect from 3rd July, 1976. As found earlier, drafting of Sailors to the Reserve Fleet Service was not automatic; but dependent on an express order to be passed by the competent Authority in that behalf on case-to-case basis. The Sailors did not have a vested or accrued right for being placed in the Reserve Fleet Service. Hence, no right of the Sailors in active service was affected or taken away because of the Policy dated 3rd July, 1976. Even the argument of the original applicants that the interpretation of expression if required occurring in Regulation 269(1) bestows unequal bargaining power on the Government is devoid of merits. The validity of Regulation 269(1) was not questioned before the Tribunal nor any relief was claimed in that behalf. Therefore, this argument is unavailable to the original applicants. In any case, on a conjoint reading of the Regulations governing the Service Conditions of the Sailors and more particularly having noticed that it is the prerogative of the Government to place the Sailors to the Fleet Reserve Service; and at the same time option was given to the Sailors to opt for discharge in terms of Section 16 of the Act, we fail to understand as to how such dispensation can be termed as unequal bargaining power. The consequence of not placing the concerned Sailor to the Fleet Reserve Service may result in deprivation of Reservist Pension. However, original applicants may be entitled to get a Special Pension under Regulation 95 of the Pension Regulations, being a separate dispensation for such Sailors, unless discharged by way of punishment under Regulation 279. 22. Accordingly, we hold that none of the applicants before the Tribunal are entitled for Reservist Pension in terms of Regulation 92 of the Naval (Pension) Regulations, 1964. The Tribunal has relied on other decisions of other Benches of the same Tribunal, which for the same reason cannot be countenanced. Re: Special Pension 23. The next question is whether the Sailors appointed before 1973 were entitled for a Special Pension, in terms of Regulation 95 of the Pension Regulations. Indeed, this is a special provision and carves out a category of Sailors, to whom it must apply. Discretion is vested in the Central Government to grant Special Pension to such Sailors, who fall within the excepted category. Two broad excepted categories have been noted in Regulation 95. Firstly, Sailors who have been discharged from their duties in pursuance of the Government policy of reducing the strength of establishment of the Indian Navy; or Secondly, of reorganization, which results in paying off of any ships or establishment. In the present case, Clause (i) of Regulation 95 must come into play, in the backdrop of the policy decision taken by the Government as enunciated in the notification dated 3rd July, 1976. On and from that date, concededly, the Fleet Reserve Service has been discontinued. That, inevitably results in reducing the strength of the establishment of the Fleet Reserve of the Indian Navy to that extent, after coming into force of the said policy. None of the Sailors have been or could be drafted to the Fleet Reserve after coming into force of the said Policy - as that establishment did not exist anymore and the strength of establishment of the Indian Navy stood reduced to that extent. Indisputably, the Sailors appointed prior to 3rd July, 1976, had the option of continuing on the Fleet Reserve Service after expiration of their active service/empanelment period. As noted earlier, in respect of each applicants the appointment letter mentions the period of appointment as 10 years of initial active service and 10 years thereafter as Fleet Reserve Service, if required. The option to continue on the Fleet Reserve Service could not be offered to these applicants and similarly placed Sailors, by the Department, after expiration of their empanelment period of 10 years or less than 15 years as the case may be. It is for that reason, such Sailors were simply discharged on expiration of their active service/empanelment period. In other words, on account of discontinuation of the Fleet Reserve establishment of the Indian Navy, in terms of policy dated 3rd July, 1976 it has entailed in reducing the strength of establishment of the Indian Navy to that extent. 24. That takes us to the case of Appellant No.36 (in C.A. No.2147 of 2011). The said appellant asserts that he was discharged from the Fleet Reserve unilaterally by the Department. By that time, he had completed combined 17 years 1 month and 26 days of service, for which reason was entitled to Reservist Pension under Regulation 92(2) of the Pension Regulations. The said appellant is relying on communication dated 8th May, 2014 in support of this contention. Since this appellant was not in active service when the Government Policy dated 3rd July, 1976 came into being and claims to have been discharged from the Fleet Service on 30th March, 1967, would be free to make representation to the competent Authority. It is for the competent Authority to examine the factum as to whether the discharge was unilateral and not at the request of the said appellant and including whether he would be entitled for Reservist Pension in terms of Regulation 92(2) of the Pension Regulations. We may not be understood to have expressed any opinion with regard to the questions that may require consideration by the competent Authority in that regard. | 1[ds]It is not in dispute that the applicants before the Tribunal were engaged as Sailors before 1973. The provisions concerning commissions, appointment and enrolments is found in Chapter IV of the Navy Act, 1957 (hereinafter referred to as Act, of 1957).Sub-Clause (1) of Regulation 92, throws some light on this aspect. It provides that a Reservist who is not in a receipt of Service Pension, be granted Reservist Pension on completion of the prescribed Naval and Reserve Service of 10 years each. None of the applicants claim that they are entitled for Service Pension, nor have they been so granted. The eligibility of grant for Reservist Pension is upon completion of the prescribed Naval and Reserve qualifying service of 10 years each. It is not in dispute that each of the applicants completed the prescribed Naval Service of 10 years in the first instance, also known as active service or engagement. It is also not in dispute that there is no formal order issued by the Competent Authority to draft the services of the concerned applicant on the Fleet Reserve Service after completion of 10 years of active service in the first instance.14. It is justly contended by the Department that after the aforesaid decision of the Tribunal having been affirmed by this Court, the opinion of the Tribunal in the impugned judgment to the contrary may be treated as impliedly overruled.That condition in the appointment letter cannot be read in isolation. The governing working conditions of Sailors must be traced to the provisions in the Act of 1957 or the Regulations framed thereunder concerning service conditions. From the provisions in the Act of 1957, there is nothing to indicate that the Sailor after appointment or enrolment is automatically entitled to continue in Fleet Reserve Service after completion of initial active service period of 10 years. The provisions, however, indicate that on completion of initial active service of 10 years or enhanced period as per the amended provisions is entitled to take discharge in terms of Section 16 of the Act. The applicants assert that none of the applicants opted for discharge. That, however, does not mean that they would or in fact have continued to be on the Fleet Reserve Service after expiration of the term of active service as a Sailor. There ought to have been an express order issued by the competent Authority to draft the concerned applicant in the Fleet Reserve Service. In absence of such an order, on completion of the term of service of engagement, the concerned sailor would stand discharged. Concededly, retention on the Fleet Reserve Service is the prerogative of the employer, to be exercised on case to case basis. In the present case, however, on account of a policy decision, the Fleet Reserve Service was discontinued in terms of notification dated 3rd July, 1976.16. As per this policy, the initial period of engagement was enhanced to 15 years. At the same time the transfer of Sailors to Fleet Reserve was discontinued. This is made amply clear in Clause (f) of the policy. The second part of the same clause pertains to Existing Fleet Reservist, who were to be paid the retaining fee till they are wasted out17. As noted hitherto, none of the relevant provisions even remotely suggest that the Sailor is automatically transferred to the Fleet Reserve Service. Whereas, it is expressly provided that on expiration of the term of service of engagement the Sailor would be placed on Fleet Reserve Service only if an express order in that behalf is passed by the Competent Authority to draft him on the Fleet Reserve and not otherwise. Section 16 of the Act, merely gives an option to the Sailor to take a discharge after expiration of term of service of engagement. It is not a deeming provision that if such option is not exercised by the concerned Sailor, he would be treated as having been drafted on the Fleet Reserve Service for another 10 years automatically18. Regulation 269, spells out the conditions of service. It reinforces the position that the services of a Sailor would be continued so long required or if required. The second part of Clause (1) of that Regulation uses the expression if required, for further 10 years service in the Indian Fleets Reserve, subject to the provisions of the Regulations for the Indian Fleet Reserve. This view taken by the Tribunal (Principal Bench, New Delhi) in T.A. No.492 of 2009 commends to us19. As aforesaid, on introducing the new policy on 3rd July, 1976, the Fleet Reserve was discontinued and instead the Sailors in service at the relevant time were given an option to continue in active service for a further term of 5 years. Some of the Sailors opted to continue till completion of 15 years, who, then became eligible for Service Pension having qualifying service20. The quintessence for grant of Reservist Pension, as per Regulation 92, is completion of the prescribed Naval and Reserve qualifying service of 10 years each. Merely upon completion of 10 years of active service as a Sailor or for that matter continued beyond that period, but falling short of 15 years or qualifying Reserve Service, the concerned Sailor cannot claim benefit under Regulation 92 for grant of Reservist Pension. For, to qualify for the Reservist Pension, he must be drafted to the Fleet Reserve Service for a period of 10 years. In terms of Regulation 6 of the Indian Fleet Reserve Regulations, there can be no claim to join the Fleet Reserve as a matter of right. None of the applicants were drafted to the Fleet Reserve Service after completion of their active service. Hence, the applicants before the Tribunal, could not have claimed the relief of Reservist Pension. The Tribunal (Regional Bench, Chennai) in O.A. No. 83 of 2013, however, granted that relief by invoking principle of equitable promissory estoppel and legitimate expectation in favour of the applicants. The Tribunal, in our opinion, committed manifest error in overlooking the statutory provisions in the Act of 1957 and the relevant Regulations framed thereunder, governing the conditions of service of Sailors. The fact that on completion of 10 years of active service, the Sailor could be taken on the Fleet Reserve Service for a further period of 10 years cannot be interpreted to mean that the concerned Sailor had acquired a legal right to join the Fleet Reserve Service or had de jure continued on Fleet Reserve Service for a further 10 years after expiration of the initial term of active service/engagement. There is no provision either in the Act of 1957 or the Regulations framed thereunder as pressed into service by the applicants, to suggest that drafting of such Sailors on Fleet Reserve Service was automatic after expiration of their active service/enrolment period. Considering the above, it is not necessary to burden this judgment with the decisions considered by the Tribunal on the principle of equitable promissory estoppel and legitimate expectation, which have no application to the fact situation of the present case.21. The original applicants contend that if the Government Policy dated 3rd July, 1976 is applied to the serving Sailors, inevitably, will result in retrospective application thereof to their deteriment.That is forbidden by Section 184-A of the Act. This argument does not commend to us. In that, the effect of the Government Policy is to disband the establishment of the Reserve Fleet Service with effect from 3rd July, 1976. As found earlier, drafting of Sailors to the Reserve Fleet Service was not automatic; but dependent on an express order to be passed by the competent Authority in that behalf on case-to-case basis. The Sailors did not have a vested or accrued right for being placed in the Reserve Fleet Service. Hence, no right of the Sailors in active service was affected or taken away because of the Policy dated 3rd July, 1976. Even the argument of the original applicants that the interpretation of expression if required occurring in Regulation 269(1) bestows unequal bargaining power on the Government is devoid of merits. The validity of Regulation 269(1) was not questioned before the Tribunal nor any relief was claimed in that behalf. Therefore, this argument is unavailable to the original applicants. In any case, on a conjoint reading of the Regulations governing the Service Conditions of the Sailors and more particularly having noticed that it is the prerogative of the Government to place the Sailors to the Fleet Reserve Service; and at the same time option was given to the Sailors to opt for discharge in terms of Section 16 of the Act, we fail to understand as to how such dispensation can be termed as unequal bargaining power. The consequence of not placing the concerned Sailor to the Fleet Reserve Service may result in deprivation of Reservist Pension. However, original applicants may be entitled to get aunder Regulation 95 of the Pension Regulations, being a separate dispensation for such Sailors, unless discharged by way of punishment under Regulation 279.22. Accordingly, we hold that none of the applicants before the Tribunal are entitled for Reservist Pension in terms of Regulation 92 of the Naval (Pension) Regulations, 1964. The Tribunal has relied on other decisions of other Benches of the same Tribunal, which for the same reason cannot be countenanced.of the Pension Regulations.Indeed, this is a special provision and carves out a category of Sailors, to whom it must apply. Discretion is vested in the Central Government to grantto such Sailors, who fall within the excepted category. Two broad excepted categories have been noted in Regulation 95. Firstly, Sailors who have been discharged from their duties in pursuance of the Government policy of reducing the strength of establishment of the Indian Navy; or Secondly, of reorganization, which results in paying off of any ships or establishment. In the present case, Clause (i) of Regulation 95 must come into play, in the backdrop of the policy decision taken by the Government as enunciated in the notification dated 3rd July, 1976. On and from that date, concededly, the Fleet Reserve Service has been discontinued. That, inevitably results in reducing the strength of the establishment of the Fleet Reserve of the Indian Navy to that extent, after coming into force of the said policy. None of the Sailors have been or could be drafted to the Fleet Reserve after coming into force of the said Policy - as that establishment did not exist anymore and the strength of establishment of the Indian Navy stood reduced to that extent. Indisputably, the Sailors appointed prior to 3rd July, 1976, had the option of continuing on the Fleet Reserve Service after expiration of their active service/empanelment period. As noted earlier, in respect of each applicants the appointment letter mentions the period of appointment as 10 years of initial active service and 10 years thereafter as Fleet Reserve Service, if required. The option to continue on the Fleet Reserve Service could not be offered to these applicants and similarly placed Sailors, by the Department, after expiration of their empanelment period of 10 years or less than 15 years as the case may be. It is for that reason, such Sailors were simply discharged on expiration of their active service/empanelment period. In other words, on account of discontinuation of the Fleet Reserve establishment of the Indian Navy, in terms of policy dated 3rd July, 1976 it has entailed in reducing the strength of establishment of the Indian Navy to that extent.Since this appellant was not in active service when the Government Policy dated 3rd July, 1976 came into being and claims to have been discharged from the Fleet Service on 30th March, 1967, would be free to make representation to the competent Authority. It is for the competent Authority to examine the factum as to whether the discharge was unilateral and not at the request of the said appellant and including whether he would be entitled for Reservist Pension in terms of Regulation 92(2)of the Pension Regulations.We may not be understood to have expressed any opinion with regard to the questions that may require consideration by the competent Authority in that regard. | 1 | 9,861 | 2,232 | ### Instruction:
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to burden this judgment with the decisions considered by the Tribunal on the principle of equitable promissory estoppel and legitimate expectation, which have no application to the fact situation of the present case. 21. The original applicants contend that if the Government Policy dated 3rd July, 1976 is applied to the serving Sailors, inevitably, will result in retrospective application thereof to their deteriment. That is forbidden by Section 184-A of the Act. This argument does not commend to us. In that, the effect of the Government Policy is to disband the establishment of the Reserve Fleet Service with effect from 3rd July, 1976. As found earlier, drafting of Sailors to the Reserve Fleet Service was not automatic; but dependent on an express order to be passed by the competent Authority in that behalf on case-to-case basis. The Sailors did not have a vested or accrued right for being placed in the Reserve Fleet Service. Hence, no right of the Sailors in active service was affected or taken away because of the Policy dated 3rd July, 1976. Even the argument of the original applicants that the interpretation of expression if required occurring in Regulation 269(1) bestows unequal bargaining power on the Government is devoid of merits. The validity of Regulation 269(1) was not questioned before the Tribunal nor any relief was claimed in that behalf. Therefore, this argument is unavailable to the original applicants. In any case, on a conjoint reading of the Regulations governing the Service Conditions of the Sailors and more particularly having noticed that it is the prerogative of the Government to place the Sailors to the Fleet Reserve Service; and at the same time option was given to the Sailors to opt for discharge in terms of Section 16 of the Act, we fail to understand as to how such dispensation can be termed as unequal bargaining power. The consequence of not placing the concerned Sailor to the Fleet Reserve Service may result in deprivation of Reservist Pension. However, original applicants may be entitled to get a Special Pension under Regulation 95 of the Pension Regulations, being a separate dispensation for such Sailors, unless discharged by way of punishment under Regulation 279. 22. Accordingly, we hold that none of the applicants before the Tribunal are entitled for Reservist Pension in terms of Regulation 92 of the Naval (Pension) Regulations, 1964. The Tribunal has relied on other decisions of other Benches of the same Tribunal, which for the same reason cannot be countenanced. Re: Special Pension 23. The next question is whether the Sailors appointed before 1973 were entitled for a Special Pension, in terms of Regulation 95 of the Pension Regulations. Indeed, this is a special provision and carves out a category of Sailors, to whom it must apply. Discretion is vested in the Central Government to grant Special Pension to such Sailors, who fall within the excepted category. Two broad excepted categories have been noted in Regulation 95. Firstly, Sailors who have been discharged from their duties in pursuance of the Government policy of reducing the strength of establishment of the Indian Navy; or Secondly, of reorganization, which results in paying off of any ships or establishment. In the present case, Clause (i) of Regulation 95 must come into play, in the backdrop of the policy decision taken by the Government as enunciated in the notification dated 3rd July, 1976. On and from that date, concededly, the Fleet Reserve Service has been discontinued. That, inevitably results in reducing the strength of the establishment of the Fleet Reserve of the Indian Navy to that extent, after coming into force of the said policy. None of the Sailors have been or could be drafted to the Fleet Reserve after coming into force of the said Policy - as that establishment did not exist anymore and the strength of establishment of the Indian Navy stood reduced to that extent. Indisputably, the Sailors appointed prior to 3rd July, 1976, had the option of continuing on the Fleet Reserve Service after expiration of their active service/empanelment period. As noted earlier, in respect of each applicants the appointment letter mentions the period of appointment as 10 years of initial active service and 10 years thereafter as Fleet Reserve Service, if required. The option to continue on the Fleet Reserve Service could not be offered to these applicants and similarly placed Sailors, by the Department, after expiration of their empanelment period of 10 years or less than 15 years as the case may be. It is for that reason, such Sailors were simply discharged on expiration of their active service/empanelment period. In other words, on account of discontinuation of the Fleet Reserve establishment of the Indian Navy, in terms of policy dated 3rd July, 1976 it has entailed in reducing the strength of establishment of the Indian Navy to that extent. 24. That takes us to the case of Appellant No.36 (in C.A. No.2147 of 2011). The said appellant asserts that he was discharged from the Fleet Reserve unilaterally by the Department. By that time, he had completed combined 17 years 1 month and 26 days of service, for which reason was entitled to Reservist Pension under Regulation 92(2) of the Pension Regulations. The said appellant is relying on communication dated 8th May, 2014 in support of this contention. Since this appellant was not in active service when the Government Policy dated 3rd July, 1976 came into being and claims to have been discharged from the Fleet Service on 30th March, 1967, would be free to make representation to the competent Authority. It is for the competent Authority to examine the factum as to whether the discharge was unilateral and not at the request of the said appellant and including whether he would be entitled for Reservist Pension in terms of Regulation 92(2) of the Pension Regulations. We may not be understood to have expressed any opinion with regard to the questions that may require consideration by the competent Authority in that regard.
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on completion of 10 years of active service, the Sailor could be taken on the Fleet Reserve Service for a further period of 10 years cannot be interpreted to mean that the concerned Sailor had acquired a legal right to join the Fleet Reserve Service or had de jure continued on Fleet Reserve Service for a further 10 years after expiration of the initial term of active service/engagement. There is no provision either in the Act of 1957 or the Regulations framed thereunder as pressed into service by the applicants, to suggest that drafting of such Sailors on Fleet Reserve Service was automatic after expiration of their active service/enrolment period. Considering the above, it is not necessary to burden this judgment with the decisions considered by the Tribunal on the principle of equitable promissory estoppel and legitimate expectation, which have no application to the fact situation of the present case.21. The original applicants contend that if the Government Policy dated 3rd July, 1976 is applied to the serving Sailors, inevitably, will result in retrospective application thereof to their deteriment.That is forbidden by Section 184-A of the Act. This argument does not commend to us. In that, the effect of the Government Policy is to disband the establishment of the Reserve Fleet Service with effect from 3rd July, 1976. As found earlier, drafting of Sailors to the Reserve Fleet Service was not automatic; but dependent on an express order to be passed by the competent Authority in that behalf on case-to-case basis. The Sailors did not have a vested or accrued right for being placed in the Reserve Fleet Service. Hence, no right of the Sailors in active service was affected or taken away because of the Policy dated 3rd July, 1976. Even the argument of the original applicants that the interpretation of expression if required occurring in Regulation 269(1) bestows unequal bargaining power on the Government is devoid of merits. The validity of Regulation 269(1) was not questioned before the Tribunal nor any relief was claimed in that behalf. Therefore, this argument is unavailable to the original applicants. In any case, on a conjoint reading of the Regulations governing the Service Conditions of the Sailors and more particularly having noticed that it is the prerogative of the Government to place the Sailors to the Fleet Reserve Service; and at the same time option was given to the Sailors to opt for discharge in terms of Section 16 of the Act, we fail to understand as to how such dispensation can be termed as unequal bargaining power. The consequence of not placing the concerned Sailor to the Fleet Reserve Service may result in deprivation of Reservist Pension. However, original applicants may be entitled to get aunder Regulation 95 of the Pension Regulations, being a separate dispensation for such Sailors, unless discharged by way of punishment under Regulation 279.22. Accordingly, we hold that none of the applicants before the Tribunal are entitled for Reservist Pension in terms of Regulation 92 of the Naval (Pension) Regulations, 1964. The Tribunal has relied on other decisions of other Benches of the same Tribunal, which for the same reason cannot be countenanced.of the Pension Regulations.Indeed, this is a special provision and carves out a category of Sailors, to whom it must apply. Discretion is vested in the Central Government to grantto such Sailors, who fall within the excepted category. Two broad excepted categories have been noted in Regulation 95. Firstly, Sailors who have been discharged from their duties in pursuance of the Government policy of reducing the strength of establishment of the Indian Navy; or Secondly, of reorganization, which results in paying off of any ships or establishment. In the present case, Clause (i) of Regulation 95 must come into play, in the backdrop of the policy decision taken by the Government as enunciated in the notification dated 3rd July, 1976. On and from that date, concededly, the Fleet Reserve Service has been discontinued. That, inevitably results in reducing the strength of the establishment of the Fleet Reserve of the Indian Navy to that extent, after coming into force of the said policy. None of the Sailors have been or could be drafted to the Fleet Reserve after coming into force of the said Policy - as that establishment did not exist anymore and the strength of establishment of the Indian Navy stood reduced to that extent. Indisputably, the Sailors appointed prior to 3rd July, 1976, had the option of continuing on the Fleet Reserve Service after expiration of their active service/empanelment period. As noted earlier, in respect of each applicants the appointment letter mentions the period of appointment as 10 years of initial active service and 10 years thereafter as Fleet Reserve Service, if required. The option to continue on the Fleet Reserve Service could not be offered to these applicants and similarly placed Sailors, by the Department, after expiration of their empanelment period of 10 years or less than 15 years as the case may be. It is for that reason, such Sailors were simply discharged on expiration of their active service/empanelment period. In other words, on account of discontinuation of the Fleet Reserve establishment of the Indian Navy, in terms of policy dated 3rd July, 1976 it has entailed in reducing the strength of establishment of the Indian Navy to that extent.Since this appellant was not in active service when the Government Policy dated 3rd July, 1976 came into being and claims to have been discharged from the Fleet Service on 30th March, 1967, would be free to make representation to the competent Authority. It is for the competent Authority to examine the factum as to whether the discharge was unilateral and not at the request of the said appellant and including whether he would be entitled for Reservist Pension in terms of Regulation 92(2)of the Pension Regulations.We may not be understood to have expressed any opinion with regard to the questions that may require consideration by the competent Authority in that regard.
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UNION OF INDIA Vs. VARINDERA CONSTRUCTIONS LTD. THROUGH ITS DIRECTOR | of the parties. 9. It is well-settled cannon of law that parties are free to decide their own terms and conditions in case of a contract. In the instant case, Clause 19 of the special conditions deal with issue of bar on reimbursement of certain payments on account of escalation. It is apt to re-produce the said clause 19 herein below:?19. Reimbursement/Refund of Variation in Prices:- No escalation, reimbursement what so ever shall be made to the contractor for increase in price of materials and fuels and wages of labour which the contractor may have to incur during execution of the work on any account. The contractor shall quote their rates accordingly.? On a plain reading of abovementioned clause, prima facie, it appears that the appellant made it clear that the contractor shall quote their rate after having regard to this clause that no reimbursement regarding any escalation whatsoever be made to the contractor if any such escalation takes place during the subsistence of the contract which the respondent with open eyes had agreed. The word?whatsoever?as used in Clause 19 suggests that even any escalation takes place due to the action of the government would also not be reimbursed. 10. At this juncture, we would also like to mention that Clause 6.3 of special conditions, particularly, deals with the present issue. For the sake of convenience, it is reproduced herein below:?Minimum Wages Payable: 6.1. Refer condition 51 of DG MAP general conditions of contracts. The Contractor shall not pay wages lower than minimum wages of labour as fixed by the Govt of India/State Govt/Union Territory whichever is higher. 6.2 The fair wage referred to in condition 51 of DG MAP general conditions of contracts will be deemed to be the same as the minimum wages payable as referred to above. 6.3. The contractor shall have no claim whatsoever, if on account of local factor and /or regulations he is required to pay the wages in excess of minimum wages as described above during the execution of work.? (Emphasis supplies by us) On a plain reading of Clause 6.3 read with Clause 19, it is evident that it was particularly made clear that no escalation would be reimbursed even in the case of Regulation. Hence, in the presence of such clauses, which respondent voluntarily agreed before accepting the contract, any departure cannot be allowed. In other words, now the respondent cannot claim reimbursement of excess of minimum wages on account of hike due to the Notification of the Government of Haryana. If any departure would be allowed from the terms and conditions of the contract, then it would destroy the basic purpose of the contract provided such conditions shall not be arbitrary. 11. In the impugned decision, the Division Bench of the High Court, at Para 6 & 7 held as under:?6. Suffice would it be to state that clause 19 and 25 have to be read harmoniously. Whereas Clause 19 prohibits escalation to be paid with respect to the wages of labour, Clause 25 requires minimum wage increase to be reimbursed to the contractor upon there being an impact thereon by a law declared by the State Government. The minimum wages, as we all know, are statutorily notified under the Minimum Wages Act, 1948. We note that the learned arbitrator has granted the benefits under the said head, but not fully recompensing the contractor the 37.46% increase in minimum wages. The reasoning given by the learned arbitrator is that the contractor could have envisaged that there would be some increase in wages during the period of contract. 7. The interpretation by the learned arbitrator, if at all is faulty, is to the detriment of the contractor, for the reason Clause 25, which commences with the expression? However? is required to be read as an exception to Clause 19 and, if so read, the entire increase in minimum wages which was result of a government notification was required to be recompensed.? 12. It is a settled law that the process of interpretation is based on the objective view of a reasonable person, given the context in which the contracting parties made their agreement. On a perusal of the said two paragraphs of the impugned judgment, we fail to understand that on what parameters the High Court has interpreted Clause 19 in light of Clause 25 of the Contract. Both the clauses stand on different footing. Clause 19 deals, inter alia, with the matter of wages whereas Clause 25 deals with the matter of Octroi Sales Tax and other Duties. Such interpretation adopted by the High Court is against the cardinal principle of law which says that the terms of the contract shall be construed by the courts after having regard to the intention of the parties. Courts ought not to take any hypothetical view as it may cause prejudice to either of the parties. 13. It is pertinent to note here that Clause 19 does not start with any word?Subject to?. Moreover, there is no other provision in the contract which specifically allow the reimbursement of wages in case of escalation. In the absence of these things, we are of the considered view that it is not permissible in law that Clause 19 ought to be interpreted in light of Clause 25. Also in the impugned judgment, the High Court without having regard to the title and first part of Clause 25, interpreted Clause 19, along with the second part of Clause 25, which is against the cannons of law. 14. To sum up, Clause 19 cannot be read in the light of second Part of Clause 25 as both stands on different footing i.e., deal with separate issues. Hence, the respondent-Contractor in the present case is not entitled to claim any escalation in minimum wages as it would be against the condition of Clause 19 read with Clause 6.3. 15. In view of the above detailed discussion, we are of the considered view that the High Court erred in law. | 1[ds]led cannon of law that parties are free to decide their own terms and conditions in case of a contract. In the instant case, Clause 19 of the special conditions deal with issue of bar on reimbursement of certain payments on account of escalation. It is apt toreproducethe said clause 19 herein below:?19. Reimbursement/Refund of Variation in Prices:No escalation, reimbursement what so ever shall be made to the contractor for increase in price of materials and fuels and wages of labour which the contractor may have to incur during execution of the work on any account. The contractor shall quote their rates accordingly.?On a plain reading of abovementioned clause, prima facie, it appears that the appellant made it clear that the contractor shall quote their rate after having regard to this clause that no reimbursement regarding any escalation whatsoever be made to the contractor if any such escalation takes place during the subsistence of the contract which the respondent with open eyes had agreed. The wordas used in Clause 19 suggests that even any escalation takes place due to the action of the government would also not be reimbursedAt this juncture, we would also like to mention that Clause 6.3 of special conditions, particularly, deals with the present issue. For the sake of convenience, it isd herein below:?Minimum Wages Payable:6.1. Refer condition 51 of DG MAP general conditions of contracts. The Contractor shall not pay wages lower than minimum wages of labour as fixed by the Govt of India/State Govt/Union Territory whichever is higher6.2 The fair wage referred to in condition 51 of DG MAP general conditions of contracts will be deemed to be the same as the minimum wages payable as referred to above6.3. The contractor shall have no claim whatsoever, if on account of local factor and /or regulations he is required to pay the wages in excess of minimum wages as described above during the execution of work.?(Emphasis supplies by us)On a plain reading of Clause 6.3 read with Clause 19, it is evident that it was particularly made clear that no escalation would be reimbursed even in the case of Regulation. Hence, in the presence of such clauses, which respondent voluntarily agreed before accepting the contract, any departure cannot be allowed. In other words, now the respondent cannot claim reimbursement of excess of minimum wages on account of hike due to the Notification of the Government of Haryana. If any departure would be allowed from the terms and conditions of the contract, then it would destroy the basic purpose of the contract provided such conditions shall not be arbitraryIt is a settled law that the process of interpretation is based on the objective view of a reasonable person, given the context in which the contracting parties made their agreement. On a perusal of the said two paragraphs of the impugned judgment, we fail to understand that on what parameters the High Court has interpreted Clause 19 in light of Clause 25 of the Contract. Both the clauses stand on different footing. Clause 19 deals, inter alia, with the matter of wages whereas Clause 25 deals with the matter of Octroi Sales Tax and other Duties. Such interpretation adopted by the High Court is against the cardinal principle of law which says that the terms of the contract shall be construed by the courts after having regard to the intention of the parties. Courts ought not to take any hypothetical view as it may cause prejudice to either of the partiesIt is pertinent to note here that Clause 19 does not start with any word. Moreover, there is no other provision in the contract which specifically allow the reimbursement of wages in case of escalation. In the absence of these things, we are of the considered view that it is not permissible in law that Clause 19 ought to be interpreted in light of Clause 25. Also in the impugned judgment, the High Court without having regard to the title and first part of Clause 25, interpreted Clause 19, along with the second part of Clause 25, which is against the cannons of lawTo sum up, Clause 19 cannot be read in the light of second Part of Clause 25 as both stands on different footing i.e., deal with separate issues. Hence, ther in the present case is not entitled to claim any escalation in minimum wages as it would be against the condition of Clause 19 read with Clause 6.3In view of the above detailed discussion, we are of the considered view that the High Court erred in law8. The primary object of the arbitration is to reach a final disposition in a speedy, effective, inexpensive and expeditious manner. In order to regulate the law regarding arbitration, legislature came up with legislation which is known as Arbitration and Conciliation Act, 1996. In order to make arbitration process more effective, legislature restricted the role of courts in case where matter is subject to the arbitration. Section 5 of the Act specifically restricted the interference of the courts to some extent. In other words, it is only in exceptional circumstances, as provided by this Act, the court is entitled to intervene in the dispute which is subject matter of arbitration. Such intervention may be before, at or after the arbitration proceeding, as the case may be. In short, court shall not intervene with the subject matter of arbitration unless injustice is caused to either of the parties9. It isd cannon of law that parties are free to decide their own terms and conditions in case of a contract. In the instant case, Clause 19 of the special conditions deal with issue of bar on reimbursement of certain payments on account of escalationOn a plain reading of abovementioned clause, prima facie, it appears that the appellant made it clear that the contractor shall quote their rate after having regard to this clause that no reimbursement regarding any escalation whatsoever be made to the contractor if any such escalation takes place during the subsistence of the contract which the respondent with open eyes had agreed. Thes used in Clause 19 suggests that even any escalation takes place due to the action of the government would also not be reimbursedOn a plain reading of Clause 6.3 read with Clause 19, it is evident that it was particularly made clear that no escalation would be reimbursed even in the case of Regulation. Hence, in the presence of such clauses, which respondent voluntarily agreed before accepting the contract, any departure cannot be allowed. In other words, now the respondent cannot claim reimbursement of excess of minimum wages on account of hike due to the Notification of the Government of Haryana. If any departure would be allowed from the terms and conditions of the contract, then it would destroy the basic purpose of the contract provided such conditions shall not be arbitraryIt is a settled law that the process of interpretation is based on the objective view of a reasonable person, given the context in which the contracting parties made their agreement. On a perusal of the said two paragraphs of the impugned judgment, we fail to understand that on what parameters the High Court has interpreted Clause 19 in light of Clause 25 of the Contract. Both the clauses stand on different footing. Clause 19 deals, inter alia, with the matter of wages whereas Clause 25 deals with the matter of Octroi Sales Tax and other Duties. Such interpretation adopted by the High Court is against the cardinal principle of law which says that the terms of the contract shall be construed by the courts after having regard to the intention of the parties. Courts ought not to take any hypothetical view as it may cause prejudice to either of the partiesIt is pertinent to note here that Clause 19 does not start with any. Moreover, there is no other provision in the contract which specifically allow the reimbursement of wages in case of escalation. In the absence of these things, we are of the considered view that it is not permissible in law that Clause 19 ought to be interpreted in light of Clause 25. Also in the impugned judgment, the High Court without having regard to the title and first part of Clause 25, interpreted Clause 19, along with the second part of Clause 25, which is against the cannons of lawo sum up, Clause 19 cannot be read in the light of second Part of Clause 25 as both stands on different footing i.e., deal with separate issues. Hence, ther in the present case is not entitled to claim any escalation in minimum wages as it would be against the condition of Clause 19 read with Clause 6. | 1 | 2,237 | 1,590 | ### Instruction:
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of the parties. 9. It is well-settled cannon of law that parties are free to decide their own terms and conditions in case of a contract. In the instant case, Clause 19 of the special conditions deal with issue of bar on reimbursement of certain payments on account of escalation. It is apt to re-produce the said clause 19 herein below:?19. Reimbursement/Refund of Variation in Prices:- No escalation, reimbursement what so ever shall be made to the contractor for increase in price of materials and fuels and wages of labour which the contractor may have to incur during execution of the work on any account. The contractor shall quote their rates accordingly.? On a plain reading of abovementioned clause, prima facie, it appears that the appellant made it clear that the contractor shall quote their rate after having regard to this clause that no reimbursement regarding any escalation whatsoever be made to the contractor if any such escalation takes place during the subsistence of the contract which the respondent with open eyes had agreed. The word?whatsoever?as used in Clause 19 suggests that even any escalation takes place due to the action of the government would also not be reimbursed. 10. At this juncture, we would also like to mention that Clause 6.3 of special conditions, particularly, deals with the present issue. For the sake of convenience, it is reproduced herein below:?Minimum Wages Payable: 6.1. Refer condition 51 of DG MAP general conditions of contracts. The Contractor shall not pay wages lower than minimum wages of labour as fixed by the Govt of India/State Govt/Union Territory whichever is higher. 6.2 The fair wage referred to in condition 51 of DG MAP general conditions of contracts will be deemed to be the same as the minimum wages payable as referred to above. 6.3. The contractor shall have no claim whatsoever, if on account of local factor and /or regulations he is required to pay the wages in excess of minimum wages as described above during the execution of work.? (Emphasis supplies by us) On a plain reading of Clause 6.3 read with Clause 19, it is evident that it was particularly made clear that no escalation would be reimbursed even in the case of Regulation. Hence, in the presence of such clauses, which respondent voluntarily agreed before accepting the contract, any departure cannot be allowed. In other words, now the respondent cannot claim reimbursement of excess of minimum wages on account of hike due to the Notification of the Government of Haryana. If any departure would be allowed from the terms and conditions of the contract, then it would destroy the basic purpose of the contract provided such conditions shall not be arbitrary. 11. In the impugned decision, the Division Bench of the High Court, at Para 6 & 7 held as under:?6. Suffice would it be to state that clause 19 and 25 have to be read harmoniously. Whereas Clause 19 prohibits escalation to be paid with respect to the wages of labour, Clause 25 requires minimum wage increase to be reimbursed to the contractor upon there being an impact thereon by a law declared by the State Government. The minimum wages, as we all know, are statutorily notified under the Minimum Wages Act, 1948. We note that the learned arbitrator has granted the benefits under the said head, but not fully recompensing the contractor the 37.46% increase in minimum wages. The reasoning given by the learned arbitrator is that the contractor could have envisaged that there would be some increase in wages during the period of contract. 7. The interpretation by the learned arbitrator, if at all is faulty, is to the detriment of the contractor, for the reason Clause 25, which commences with the expression? However? is required to be read as an exception to Clause 19 and, if so read, the entire increase in minimum wages which was result of a government notification was required to be recompensed.? 12. It is a settled law that the process of interpretation is based on the objective view of a reasonable person, given the context in which the contracting parties made their agreement. On a perusal of the said two paragraphs of the impugned judgment, we fail to understand that on what parameters the High Court has interpreted Clause 19 in light of Clause 25 of the Contract. Both the clauses stand on different footing. Clause 19 deals, inter alia, with the matter of wages whereas Clause 25 deals with the matter of Octroi Sales Tax and other Duties. Such interpretation adopted by the High Court is against the cardinal principle of law which says that the terms of the contract shall be construed by the courts after having regard to the intention of the parties. Courts ought not to take any hypothetical view as it may cause prejudice to either of the parties. 13. It is pertinent to note here that Clause 19 does not start with any word?Subject to?. Moreover, there is no other provision in the contract which specifically allow the reimbursement of wages in case of escalation. In the absence of these things, we are of the considered view that it is not permissible in law that Clause 19 ought to be interpreted in light of Clause 25. Also in the impugned judgment, the High Court without having regard to the title and first part of Clause 25, interpreted Clause 19, along with the second part of Clause 25, which is against the cannons of law. 14. To sum up, Clause 19 cannot be read in the light of second Part of Clause 25 as both stands on different footing i.e., deal with separate issues. Hence, the respondent-Contractor in the present case is not entitled to claim any escalation in minimum wages as it would be against the condition of Clause 19 read with Clause 6.3. 15. In view of the above detailed discussion, we are of the considered view that the High Court erred in law.
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contracting parties made their agreement. On a perusal of the said two paragraphs of the impugned judgment, we fail to understand that on what parameters the High Court has interpreted Clause 19 in light of Clause 25 of the Contract. Both the clauses stand on different footing. Clause 19 deals, inter alia, with the matter of wages whereas Clause 25 deals with the matter of Octroi Sales Tax and other Duties. Such interpretation adopted by the High Court is against the cardinal principle of law which says that the terms of the contract shall be construed by the courts after having regard to the intention of the parties. Courts ought not to take any hypothetical view as it may cause prejudice to either of the partiesIt is pertinent to note here that Clause 19 does not start with any word. Moreover, there is no other provision in the contract which specifically allow the reimbursement of wages in case of escalation. In the absence of these things, we are of the considered view that it is not permissible in law that Clause 19 ought to be interpreted in light of Clause 25. Also in the impugned judgment, the High Court without having regard to the title and first part of Clause 25, interpreted Clause 19, along with the second part of Clause 25, which is against the cannons of lawTo sum up, Clause 19 cannot be read in the light of second Part of Clause 25 as both stands on different footing i.e., deal with separate issues. Hence, ther in the present case is not entitled to claim any escalation in minimum wages as it would be against the condition of Clause 19 read with Clause 6.3In view of the above detailed discussion, we are of the considered view that the High Court erred in law8. The primary object of the arbitration is to reach a final disposition in a speedy, effective, inexpensive and expeditious manner. In order to regulate the law regarding arbitration, legislature came up with legislation which is known as Arbitration and Conciliation Act, 1996. In order to make arbitration process more effective, legislature restricted the role of courts in case where matter is subject to the arbitration. Section 5 of the Act specifically restricted the interference of the courts to some extent. In other words, it is only in exceptional circumstances, as provided by this Act, the court is entitled to intervene in the dispute which is subject matter of arbitration. Such intervention may be before, at or after the arbitration proceeding, as the case may be. In short, court shall not intervene with the subject matter of arbitration unless injustice is caused to either of the parties9. It isd cannon of law that parties are free to decide their own terms and conditions in case of a contract. In the instant case, Clause 19 of the special conditions deal with issue of bar on reimbursement of certain payments on account of escalationOn a plain reading of abovementioned clause, prima facie, it appears that the appellant made it clear that the contractor shall quote their rate after having regard to this clause that no reimbursement regarding any escalation whatsoever be made to the contractor if any such escalation takes place during the subsistence of the contract which the respondent with open eyes had agreed. Thes used in Clause 19 suggests that even any escalation takes place due to the action of the government would also not be reimbursedOn a plain reading of Clause 6.3 read with Clause 19, it is evident that it was particularly made clear that no escalation would be reimbursed even in the case of Regulation. Hence, in the presence of such clauses, which respondent voluntarily agreed before accepting the contract, any departure cannot be allowed. In other words, now the respondent cannot claim reimbursement of excess of minimum wages on account of hike due to the Notification of the Government of Haryana. If any departure would be allowed from the terms and conditions of the contract, then it would destroy the basic purpose of the contract provided such conditions shall not be arbitraryIt is a settled law that the process of interpretation is based on the objective view of a reasonable person, given the context in which the contracting parties made their agreement. On a perusal of the said two paragraphs of the impugned judgment, we fail to understand that on what parameters the High Court has interpreted Clause 19 in light of Clause 25 of the Contract. Both the clauses stand on different footing. Clause 19 deals, inter alia, with the matter of wages whereas Clause 25 deals with the matter of Octroi Sales Tax and other Duties. Such interpretation adopted by the High Court is against the cardinal principle of law which says that the terms of the contract shall be construed by the courts after having regard to the intention of the parties. Courts ought not to take any hypothetical view as it may cause prejudice to either of the partiesIt is pertinent to note here that Clause 19 does not start with any. Moreover, there is no other provision in the contract which specifically allow the reimbursement of wages in case of escalation. In the absence of these things, we are of the considered view that it is not permissible in law that Clause 19 ought to be interpreted in light of Clause 25. Also in the impugned judgment, the High Court without having regard to the title and first part of Clause 25, interpreted Clause 19, along with the second part of Clause 25, which is against the cannons of lawo sum up, Clause 19 cannot be read in the light of second Part of Clause 25 as both stands on different footing i.e., deal with separate issues. Hence, ther in the present case is not entitled to claim any escalation in minimum wages as it would be against the condition of Clause 19 read with Clause 6.
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State Of Punjab Vs. Iqbal Singh And Ors | order and the case did not fall within the purview of Art. 311(2) of the Constitution. It has been further contended by learned counsel for the appellants that it was the judgment of this Court in M. Narasimachar v. The State of Mysore [1960 I L.L.J. 798] (1960) I S.C.R. 981; A.I.R. 1960 S.C. 247 and not the judgment in State of Punjab v. K. R. Erry & Sobhag Rai Mehta, [1973-I L.L.J. 33] 2 S.C.R. 405, which governed the present case. We regret we are unable to accede to these contentions.4. Though the impugned order imposing cut in pension and gratuity is not one of reduction in rank falling within the purview of Art. 311(2) yet there can be no doubt it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence. Reference in this connection may be made with advantage to the decision of this Court in K. R. Erry and Sobhag Rai Mehtas case (supra) where after an exhaustive review of the case law bearing on the point, it was observed at page 413 as follows :"Where a body or authority is judicial or where it has to determine a matter involving rights judicially because of express or implied provision, the principle of natural justice audi alteram partem applies. See Province of Bombay v. Kusalds v. Advani and others. (1950) S.C.R. 621(725), and Board of High School & Intermediate Education U. P. Allahabad v. Ghanshyam Das Gupta and others. (1972) Suppl. (3) S.C.R. 36. With the proliferation of administrative decision in the Welfare State it is now further recognised by Courts both in England and in this country, especially after the decision of House of Lords in Ridge v. Baldwin [1964] A.C. 40 that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects, individual rights or interest, and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. See : State of Orissa v. Dr. (Miss) Binapani Dei and others. (1967) 2 S.C.R. 625 and in Re. H. K. (An infant), (1967) 2 Q.B. 617. In the former case it was observed as follows :"An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority. It is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purposes the person against whom an enquiry is held must be informed of the case he is called upon to meet and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a nearing applied alike to judicial Tribunals and bodies of person invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed. It need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."5. These observations were made with reference to an authority which could be described as characteristically administrative. At page 630 it was observed :"It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence."The case and the English in re H.K. (An infant) were specifically referred to with approval in a decision of the constitutional Bench of this Court in A. K. Karipak and others, etc. v. Union of India and others. (1970) 1 S.C.C. 457."6. The decision of this Court in M. Narasimacharis case (supra) on which strong reliance has been placed on behalf of the appellants is of no assistance to them as the point as to whether an opportunity to show cause was to be afforded to a Government servant before applying a cut in his pension in view of the principle of natural justice embodied in the well-known maxim audi alteram partem was never urged or gone into in that case, Furthermore as pointed out by Palekar, J., while speaking for the Court in K. R. Erry and Sobhag Rai Mehtas case (supra) the question whether pension is a bounty or property did not arise in the former case. The present case is, in our opinion, fully covered by the judgment of this Court in K. R. Erry and Sobhag Raj Mehtas case.7. For the foregoing reasons we are of the view that the impugned judgments do not suffer from any illegality and were rightly rendered.8. | 0[ds]We regret we are unable to accede to these contentions.4. Though the impugned order imposing cut in pension and gratuity is not one of reduction in rank falling within the purview of Art. 311(2) yet there can be no doubt it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence.The decision of this Court in M. Narasimacharis case (supra) on which strong reliance has been placed on behalf of the appellants is of no assistance to them as the point as to whether an opportunity to show cause was to be afforded to a Government servant before applying a cut in his pension in view of the principle of natural justice embodied in the well-known maxim audi alteram partem was never urged or gone into in that case, Furthermore as pointed out by Palekar, J., while speaking for the Court in K. R. Erry and Sobhag Rai Mehtas case (supra) the question whether pension is a bounty or property did not arise in the former case. The present case is, in our opinion, fully covered by the judgment of this Court in K. R. Erry and Sobhag Raj Mehtas case.7. For the foregoing reasons we are of the view that the impugned judgments do not suffer from any illegality and were rightly rendered. | 0 | 2,230 | 248 | ### Instruction:
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order and the case did not fall within the purview of Art. 311(2) of the Constitution. It has been further contended by learned counsel for the appellants that it was the judgment of this Court in M. Narasimachar v. The State of Mysore [1960 I L.L.J. 798] (1960) I S.C.R. 981; A.I.R. 1960 S.C. 247 and not the judgment in State of Punjab v. K. R. Erry & Sobhag Rai Mehta, [1973-I L.L.J. 33] 2 S.C.R. 405, which governed the present case. We regret we are unable to accede to these contentions.4. Though the impugned order imposing cut in pension and gratuity is not one of reduction in rank falling within the purview of Art. 311(2) yet there can be no doubt it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence. Reference in this connection may be made with advantage to the decision of this Court in K. R. Erry and Sobhag Rai Mehtas case (supra) where after an exhaustive review of the case law bearing on the point, it was observed at page 413 as follows :"Where a body or authority is judicial or where it has to determine a matter involving rights judicially because of express or implied provision, the principle of natural justice audi alteram partem applies. See Province of Bombay v. Kusalds v. Advani and others. (1950) S.C.R. 621(725), and Board of High School & Intermediate Education U. P. Allahabad v. Ghanshyam Das Gupta and others. (1972) Suppl. (3) S.C.R. 36. With the proliferation of administrative decision in the Welfare State it is now further recognised by Courts both in England and in this country, especially after the decision of House of Lords in Ridge v. Baldwin [1964] A.C. 40 that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects, individual rights or interest, and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. See : State of Orissa v. Dr. (Miss) Binapani Dei and others. (1967) 2 S.C.R. 625 and in Re. H. K. (An infant), (1967) 2 Q.B. 617. In the former case it was observed as follows :"An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority. It is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purposes the person against whom an enquiry is held must be informed of the case he is called upon to meet and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a nearing applied alike to judicial Tribunals and bodies of person invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed. It need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."5. These observations were made with reference to an authority which could be described as characteristically administrative. At page 630 it was observed :"It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence."The case and the English in re H.K. (An infant) were specifically referred to with approval in a decision of the constitutional Bench of this Court in A. K. Karipak and others, etc. v. Union of India and others. (1970) 1 S.C.C. 457."6. The decision of this Court in M. Narasimacharis case (supra) on which strong reliance has been placed on behalf of the appellants is of no assistance to them as the point as to whether an opportunity to show cause was to be afforded to a Government servant before applying a cut in his pension in view of the principle of natural justice embodied in the well-known maxim audi alteram partem was never urged or gone into in that case, Furthermore as pointed out by Palekar, J., while speaking for the Court in K. R. Erry and Sobhag Rai Mehtas case (supra) the question whether pension is a bounty or property did not arise in the former case. The present case is, in our opinion, fully covered by the judgment of this Court in K. R. Erry and Sobhag Raj Mehtas case.7. For the foregoing reasons we are of the view that the impugned judgments do not suffer from any illegality and were rightly rendered.8.
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We regret we are unable to accede to these contentions.4. Though the impugned order imposing cut in pension and gratuity is not one of reduction in rank falling within the purview of Art. 311(2) yet there can be no doubt it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence.The decision of this Court in M. Narasimacharis case (supra) on which strong reliance has been placed on behalf of the appellants is of no assistance to them as the point as to whether an opportunity to show cause was to be afforded to a Government servant before applying a cut in his pension in view of the principle of natural justice embodied in the well-known maxim audi alteram partem was never urged or gone into in that case, Furthermore as pointed out by Palekar, J., while speaking for the Court in K. R. Erry and Sobhag Rai Mehtas case (supra) the question whether pension is a bounty or property did not arise in the former case. The present case is, in our opinion, fully covered by the judgment of this Court in K. R. Erry and Sobhag Raj Mehtas case.7. For the foregoing reasons we are of the view that the impugned judgments do not suffer from any illegality and were rightly rendered.
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Monitor India Private Limited Vs. The Union of India & Another | or credits made after the date on which a certificate had been issued. Since the Petitioner had already credited the amount in its books of account, the Assessing Officer has opined that the certificate for nondeduction of tax is not valid in respect of the payment of Rs.1.56 crores. Moreover, it has been stated that the amount mentioned in the certificate does not tally with the amount credited or paid by the Petitioner. Now, reading the reasons as they stand, it is evident that there is not even an allegation to the effect that there was a failure on the part of the Petitioner to fully and truly disclose all material facts necessary for the assessment. But for the purposes of the present discussion, it is not necessary to rest the view which we are inclined to take, merely on the absence of any averment that there was a failure to disclose on the part of the Petitioner. The record before the Court indicates that even when the original return was filed, the Petitioner had in the note (Note4) annexed to the return of income, expressly clarified that the Petitioner had filed an application under Section 195 in respect of the corporate allocation payable to its principal. The Note indicated that the principal provided administrative and management support services and the costs which were incurred were allocated at actuals to various subsidiaries globally that benefited from the service provided. The Petitioner stated that the costs which were allocated were reimbursed to the foreign principal at actuals and that there was no markup. The Petitioner stated that it believed that there was no income tax liability arising on such corporate allocations and the company was hopeful that a nil order of withholding would be passed. However, pending the order from the Revenue authorities, the amount was treated as being disallowed, but the Petitioner reserved its right to revise the return after receipt of the order from the Revenue. This was also duly elaborated upon in the Profit and Loss Account as well as in the Tax Audit Report. After an order was passed under Section 195(2) on 15 March 2005, a revised return of income was filed on 1 April 2005. During the course of the assessment proceedings, the Assessing Officer made enquiries specifically in regard to the manner in which the allocation has been made and sought an explanation from the Petitioner both in regard to the basis and quantum of the allocation. During the course of the replies which were supplied by the Petitioner during the course of the assessment proceedings, the Petitioner disclosed the following facts: (i) That a payment was made in the amount of Rs.1.56 crores by the Petitioner to its foreign principal; (ii) The payment which was made represented a reimbursement on the basis of actuals to the foreign principal in respect of costs incurred on behalf of the Petitioner for providing services; (iii) That there was an agreement between the Petitioner and the foreign principal, a copy of which was placed on record; (iv) The allocation of expenses was carried out in accordance with the methodology which was placed on record; (v) An order had been passed under Section 195(2) by the Assessing Officer. There was, therefore, in these circumstances, a full disclosure of all primary and material facts necessary for the assessment. As we have noted earlier, the Assessing Officer has not even indicated in the reasons that have been recorded that there was any failure to disclose fully and truly all material facts. But quite apart from the facts and as indicated above, we find merit in the contention of the Petitioner that there was a full and true disclosure of all necessary material for assessment for Assessment Year 2004-05.11, The assessment has been sought to be reopened purely on the basis that (i) A certificate was issued to the Petitioner under Section 197; (ii) That by virtue of Circular 774/99 a certificate under Section 197 would be valid only for payment or credit made after the issuance of the certificate; and (iii) Since the Petitioner had already credited an amount in its books, the certificate was not valid. The Assessing Officer has, in our view, erroneously proceeded on the basis that the certificate was issued under Section 197. The certificate, as a matter of fact, was issued on an application that was filed under Section 195(2) and was a certificate under that provision. But perhaps more fundamental is the fact that the provisions of Section 195 are attracted where any person is responsible for paying to a nonresident any interest or any other sum chargeable under the provisions of the Act. It is in such cases that the requirement of deducting income tax at the time of credit of such income to the account of the Payee or at the time of payment arises. The Assessing Officer has, in the reasons which have been recorded, made no reference at all to whether the payment which was effected to the foreign principal represented income chargeable under the provisions of the Act. The contention of the Petitioner all along has been that this payment represented only a reimbursement of costs incurred and should, therefore, not be treated as income. On this aspect, the reasons contain no disclosure to the effect that the Assessing Officer is of the view that this represented income which was chargeable.12. In the circumstances, having regard to the fact that the reopening of the assessment has taken place beyond a period of four years of the end of the relevant Assessment Year, we find merit in the case of the assessee that the jurisdictional condition for reopening of the assessment has not been fulfilled. There has been clearly no failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment. Moreover, as we have noted earlier that is not even the case of the Assessing Officer for reopening of the assessment. | 1[ds]10. The basis on which the assessment for Assessment Yearis sought to be reopened is set out in the reasons which were disclosed to the Petitioner on 22 March 2011. The reasons set out that the Petitioner made an application fornondeduction of TDS after the books for05 had been finalized and the amount of Rs.1.56 crores had been credited to the account of the U.S. Company. According to the Assessing Officer, under Circular 774/99, a certificate under Section 197 is valid only for payment or credits made after the date on which a certificate had been issued. Since the Petitioner had already credited the amount in its books of account, the Assessing Officer has opined that the certificate for nondeduction of tax is not valid in respect of the payment of Rs.1.56 crores. Moreover, it has been stated that the amount mentioned in the certificate does not tally with the amount credited or paid by the Petitioner. Now, reading the reasons as they stand, it is evident that there is not even an allegation to the effect that there was a failure on the part of the Petitioner to fully and truly disclose all material facts necessary for the assessment. But for the purposes of the present discussion, it is not necessary to rest the view which we are inclined to take, merely on the absence of any averment that there was a failure to disclose on the part of the Petitioner. The record before the Court indicates that even when the original return was filed, the Petitioner had in the note (Note4) annexed to the return of income, expressly clarified that the Petitioner had filed an application under Section 195 in respect of the corporate allocation payable to its principal. The Note indicated that the principal provided administrative and management support services and the costs which were incurred were allocated at actuals to various subsidiaries globally that benefited from the service provided. The Petitioner stated that the costs which were allocated were reimbursed to the foreign principal at actuals and that there was no markup. The Petitioner stated that it believed that there was no income tax liability arising on such corporate allocations and the company was hopeful that a nil order of withholding would be passed. However, pending the order from the Revenue authorities, the amount was treated as being disallowed, but the Petitioner reserved its right to revise the return after receipt of the order from the Revenue. This was also duly elaborated upon in the Profit and Loss Account as well as in the Tax Audit Report. After an order was passed under Section 195(2) on 15 March 2005, a revised return of income was filed on 1 April 2005. During the course of the assessment proceedings, the Assessing Officer made enquiries specifically in regard to the manner in which the allocation has been made and sought an explanation from the Petitioner both in regard to the basis and quantum of the allocation. During the course of the replies which were supplied by the Petitioner during the course of the assessment proceedings, the Petitioner disclosed the following facts: (i) That a payment was made in the amount of Rs.1.56 crores by the Petitioner to its foreign principal; (ii) The payment which was made represented a reimbursement on the basis of actuals to the foreign principal in respect of costs incurred on behalf of the Petitioner for providing services; (iii) That there was an agreement between the Petitioner and the foreign principal, a copy of which was placed on record; (iv) The allocation of expenses was carried out in accordance with the methodology which was placed on record; (v) An order had been passed under Section 195(2) by the Assessing Officer. There was, therefore, in these circumstances, a full disclosure of all primary and material facts necessary for the assessment. As we have noted earlier, the Assessing Officer has not even indicated in the reasons that have been recorded that there was any failure to disclose fully and truly all material facts. But quite apart from the facts and as indicated above, we find merit in the contention of the Petitioner that there was a full and true disclosure of all necessary material for assessment for Assessment YearThe assessment has been sought to be reopened purely on the basis that (i) A certificate was issued to the Petitioner under Section 197; (ii) That by virtue of Circular 774/99 a certificate under Section 197 would be valid only for payment or credit made after the issuance of the certificate; and (iii) Since the Petitioner had already credited an amount in its books, the certificate was not valid. The Assessing Officer has, in our view, erroneously proceeded on the basis that the certificate was issued under Section 197. The certificate, as a matter of fact, was issued on an application that was filed under Section 195(2) and was a certificate under that provision. But perhaps more fundamental is the fact that the provisions of Section 195 are attracted where any person is responsible for paying to a nonresident any interest or any other sum chargeable under the provisions of the Act. It is in such cases that the requirement of deducting income tax at the time of credit of such income to the account of the Payee or at the time of payment arises. The Assessing Officer has, in the reasons which have been recorded, made no reference at all to whether the payment which was effected to the foreign principal represented income chargeable under the provisions of the Act. The contention of the Petitioner all along has been that this payment represented only a reimbursement of costs incurred and should, therefore, not be treated as income. On this aspect, the reasons contain no disclosure to the effect that the Assessing Officer is of the view that this represented income which was chargeable.12. In the circumstances, having regard to the fact that the reopening of the assessment has taken place beyond a period of four years of the end of the relevant Assessment Year, we find merit in the case of the assessee that the jurisdictional condition for reopening of the assessment has not been fulfilled. There has been clearly no failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment. Moreover, as we have noted earlier that is not even the case of the Assessing Officer for reopening of the assessment. | 1 | 3,099 | 1,185 | ### 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:
or credits made after the date on which a certificate had been issued. Since the Petitioner had already credited the amount in its books of account, the Assessing Officer has opined that the certificate for nondeduction of tax is not valid in respect of the payment of Rs.1.56 crores. Moreover, it has been stated that the amount mentioned in the certificate does not tally with the amount credited or paid by the Petitioner. Now, reading the reasons as they stand, it is evident that there is not even an allegation to the effect that there was a failure on the part of the Petitioner to fully and truly disclose all material facts necessary for the assessment. But for the purposes of the present discussion, it is not necessary to rest the view which we are inclined to take, merely on the absence of any averment that there was a failure to disclose on the part of the Petitioner. The record before the Court indicates that even when the original return was filed, the Petitioner had in the note (Note4) annexed to the return of income, expressly clarified that the Petitioner had filed an application under Section 195 in respect of the corporate allocation payable to its principal. The Note indicated that the principal provided administrative and management support services and the costs which were incurred were allocated at actuals to various subsidiaries globally that benefited from the service provided. The Petitioner stated that the costs which were allocated were reimbursed to the foreign principal at actuals and that there was no markup. The Petitioner stated that it believed that there was no income tax liability arising on such corporate allocations and the company was hopeful that a nil order of withholding would be passed. However, pending the order from the Revenue authorities, the amount was treated as being disallowed, but the Petitioner reserved its right to revise the return after receipt of the order from the Revenue. This was also duly elaborated upon in the Profit and Loss Account as well as in the Tax Audit Report. After an order was passed under Section 195(2) on 15 March 2005, a revised return of income was filed on 1 April 2005. During the course of the assessment proceedings, the Assessing Officer made enquiries specifically in regard to the manner in which the allocation has been made and sought an explanation from the Petitioner both in regard to the basis and quantum of the allocation. During the course of the replies which were supplied by the Petitioner during the course of the assessment proceedings, the Petitioner disclosed the following facts: (i) That a payment was made in the amount of Rs.1.56 crores by the Petitioner to its foreign principal; (ii) The payment which was made represented a reimbursement on the basis of actuals to the foreign principal in respect of costs incurred on behalf of the Petitioner for providing services; (iii) That there was an agreement between the Petitioner and the foreign principal, a copy of which was placed on record; (iv) The allocation of expenses was carried out in accordance with the methodology which was placed on record; (v) An order had been passed under Section 195(2) by the Assessing Officer. There was, therefore, in these circumstances, a full disclosure of all primary and material facts necessary for the assessment. As we have noted earlier, the Assessing Officer has not even indicated in the reasons that have been recorded that there was any failure to disclose fully and truly all material facts. But quite apart from the facts and as indicated above, we find merit in the contention of the Petitioner that there was a full and true disclosure of all necessary material for assessment for Assessment Year 2004-05.11, The assessment has been sought to be reopened purely on the basis that (i) A certificate was issued to the Petitioner under Section 197; (ii) That by virtue of Circular 774/99 a certificate under Section 197 would be valid only for payment or credit made after the issuance of the certificate; and (iii) Since the Petitioner had already credited an amount in its books, the certificate was not valid. The Assessing Officer has, in our view, erroneously proceeded on the basis that the certificate was issued under Section 197. The certificate, as a matter of fact, was issued on an application that was filed under Section 195(2) and was a certificate under that provision. But perhaps more fundamental is the fact that the provisions of Section 195 are attracted where any person is responsible for paying to a nonresident any interest or any other sum chargeable under the provisions of the Act. It is in such cases that the requirement of deducting income tax at the time of credit of such income to the account of the Payee or at the time of payment arises. The Assessing Officer has, in the reasons which have been recorded, made no reference at all to whether the payment which was effected to the foreign principal represented income chargeable under the provisions of the Act. The contention of the Petitioner all along has been that this payment represented only a reimbursement of costs incurred and should, therefore, not be treated as income. On this aspect, the reasons contain no disclosure to the effect that the Assessing Officer is of the view that this represented income which was chargeable.12. In the circumstances, having regard to the fact that the reopening of the assessment has taken place beyond a period of four years of the end of the relevant Assessment Year, we find merit in the case of the assessee that the jurisdictional condition for reopening of the assessment has not been fulfilled. There has been clearly no failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment. Moreover, as we have noted earlier that is not even the case of the Assessing Officer for reopening of the assessment.
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1
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for payment or credits made after the date on which a certificate had been issued. Since the Petitioner had already credited the amount in its books of account, the Assessing Officer has opined that the certificate for nondeduction of tax is not valid in respect of the payment of Rs.1.56 crores. Moreover, it has been stated that the amount mentioned in the certificate does not tally with the amount credited or paid by the Petitioner. Now, reading the reasons as they stand, it is evident that there is not even an allegation to the effect that there was a failure on the part of the Petitioner to fully and truly disclose all material facts necessary for the assessment. But for the purposes of the present discussion, it is not necessary to rest the view which we are inclined to take, merely on the absence of any averment that there was a failure to disclose on the part of the Petitioner. The record before the Court indicates that even when the original return was filed, the Petitioner had in the note (Note4) annexed to the return of income, expressly clarified that the Petitioner had filed an application under Section 195 in respect of the corporate allocation payable to its principal. The Note indicated that the principal provided administrative and management support services and the costs which were incurred were allocated at actuals to various subsidiaries globally that benefited from the service provided. The Petitioner stated that the costs which were allocated were reimbursed to the foreign principal at actuals and that there was no markup. The Petitioner stated that it believed that there was no income tax liability arising on such corporate allocations and the company was hopeful that a nil order of withholding would be passed. However, pending the order from the Revenue authorities, the amount was treated as being disallowed, but the Petitioner reserved its right to revise the return after receipt of the order from the Revenue. This was also duly elaborated upon in the Profit and Loss Account as well as in the Tax Audit Report. After an order was passed under Section 195(2) on 15 March 2005, a revised return of income was filed on 1 April 2005. During the course of the assessment proceedings, the Assessing Officer made enquiries specifically in regard to the manner in which the allocation has been made and sought an explanation from the Petitioner both in regard to the basis and quantum of the allocation. During the course of the replies which were supplied by the Petitioner during the course of the assessment proceedings, the Petitioner disclosed the following facts: (i) That a payment was made in the amount of Rs.1.56 crores by the Petitioner to its foreign principal; (ii) The payment which was made represented a reimbursement on the basis of actuals to the foreign principal in respect of costs incurred on behalf of the Petitioner for providing services; (iii) That there was an agreement between the Petitioner and the foreign principal, a copy of which was placed on record; (iv) The allocation of expenses was carried out in accordance with the methodology which was placed on record; (v) An order had been passed under Section 195(2) by the Assessing Officer. There was, therefore, in these circumstances, a full disclosure of all primary and material facts necessary for the assessment. As we have noted earlier, the Assessing Officer has not even indicated in the reasons that have been recorded that there was any failure to disclose fully and truly all material facts. But quite apart from the facts and as indicated above, we find merit in the contention of the Petitioner that there was a full and true disclosure of all necessary material for assessment for Assessment YearThe assessment has been sought to be reopened purely on the basis that (i) A certificate was issued to the Petitioner under Section 197; (ii) That by virtue of Circular 774/99 a certificate under Section 197 would be valid only for payment or credit made after the issuance of the certificate; and (iii) Since the Petitioner had already credited an amount in its books, the certificate was not valid. The Assessing Officer has, in our view, erroneously proceeded on the basis that the certificate was issued under Section 197. The certificate, as a matter of fact, was issued on an application that was filed under Section 195(2) and was a certificate under that provision. But perhaps more fundamental is the fact that the provisions of Section 195 are attracted where any person is responsible for paying to a nonresident any interest or any other sum chargeable under the provisions of the Act. It is in such cases that the requirement of deducting income tax at the time of credit of such income to the account of the Payee or at the time of payment arises. The Assessing Officer has, in the reasons which have been recorded, made no reference at all to whether the payment which was effected to the foreign principal represented income chargeable under the provisions of the Act. The contention of the Petitioner all along has been that this payment represented only a reimbursement of costs incurred and should, therefore, not be treated as income. On this aspect, the reasons contain no disclosure to the effect that the Assessing Officer is of the view that this represented income which was chargeable.12. In the circumstances, having regard to the fact that the reopening of the assessment has taken place beyond a period of four years of the end of the relevant Assessment Year, we find merit in the case of the assessee that the jurisdictional condition for reopening of the assessment has not been fulfilled. There has been clearly no failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment. Moreover, as we have noted earlier that is not even the case of the Assessing Officer for reopening of the assessment.
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M/s. Ganpati RV-Talleres Alegria Track Pvt. Ltd Vs. Union of India & Another | 6th Edn., p. 342) Joint venture companies are now being increasingly formed in relation to projects requiring inflow of foreign capital or technical expertise in the fast developing countries in East Asia, viz., Japan, South Korea, Taiwan, China, etc. [See Jacques Buhart : Joint Ventures in East Asia -- Legal Issues (1991).] There has been similar growth of joint ventures in our country wherein foreign companies join with Indian counterparts and contribute towards capital and technical know-how for the success of the venture. The High Court has taken note of this connotation of the expression "joint venture". But the High Court has held that NHL is not a joint venture and that there is only a certain amount of equity participation by a foreign company in it. We are unable to agree with the said view of the High Court.25. As noticed earlier, in its tender NHL had stated that it is a joint venture company established by TPI, LMI and WML and IIPL wherein TPI, LMI and WML and other companies in the same group as well as Mr. Aroon Purie own 60% shares and IIPL owns 40% shares. It was also stated that the joint venture has received approval of the Government of India and is currently in operation and that the promoter will increase their capital/contribution to commensurate with the project need and that the company has been established as an information and database management company with expertise in database processing, publishing, sales/marketing and the dissemination of related information. In the tender it is also stated that as a joint venture in the true sense of the phrase, the company will have access to expertise in database management, sales and publishing of its parent group companies. It would thus appear that the Indian group of companies (TPI, LMI and WML) and the Singapore-based company (IIPL) have pooled together their resources in the sense that TPI, LMI and WML have made available their equipment and organisation at various places in the country while IIPL has made available its wide experience in the field as well as the expertise of its managerial staff. All the constituents of NHL have thus contributed to the resources of the Company (NHL). This shows that NHL is an association of companies jointly undertaking a commercial enterprise wherein they will all contribute assets and will share risks and have a community of interest. We are, therefore, of the view that NHL has been constituted as a joint venture by the group of Indian companies and IIPL, the Singapore-based company and it would not be correct to say that IIPL which has a substantial stake in the success of the venture, having 40% of shareholding, is a mere shareholder in NHL.xx xx xx41. We have been informed that while the matter was pending in the High Court and in this Court the telephone directory for the year 1993 has been printed and supplied to the Department by Respondent 4 as per terms of the contract. Insofar as the directory for the year 1994 is concerned we find that, as per the terms of the contract, the process for preparation of the telephone directory has already commenced. We cannot lose sight of the fact that as a result of quashing of the contract in respect of the directory for 1994 fresh steps will have to be taken to award a fresh contract and the said process would take some time and thereafter the contractor will require time to print and publish the telephone directory. It would, therefore, not be feasible to bring out the directory for 1994 before the close of the year. As a result, the Department would suffer loss of revenue which it would otherwise earn by way of royalty from Respondent 4 for the directory for the year 1994. Insofar as the contract in respect of the year 1995 is concerned there is sufficient time for the Department to award a fresh contract if the contract awarded to Respondent 4 is cancelled and the new contractor will have sufficient time at his disposal to print and deliver the directory as per the time schedule. Moreover, in respect of the directory for the year 1995 the amount of royalty that is payable by Respondent 4 is Rs 45 lakhs and the amount of royalty offered by NHL for the directory for the said year was Rs .291.6 lakhs. Keeping in view the circumstances referred to above, the course that commends us is that, while maintaining the contract awarded to Respondent 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing CM No.6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition the application for interim relief has become infructuous and the appeal against the order dismissing CM No. 6120 of 1993 must, therefore, be dismissed as infructuous." 7. Though the aforesaid case related to experience, the other essential characteristic of a joint venture has also been highlighted. 8. In that view of the matter the inevitable conclusion is that the view taken by the High Court that the appellant did not fulfil the eligibility criteria was not correct. The High Court was not justified in dismissing the writ petition. We direct the Evaluation Committee to consider the bid of the appellant alongwith two persons who had been selected and take a final decision. 9. | 1[ds]Keeping in view the circumstances referred to above, the course that commends us is that, while maintaining the contract awarded to Respondent 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing CM No.6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition the application for interim relief has become infructuous and the appeal against the order dismissing CM No. 6120 of 1993 must, therefore, be dismissed asthat view of the matter the inevitable conclusion is that the view taken by the High Court that the appellant did not fulfil the eligibility criteria was not correct. The High Court was not justified in dismissing the writ petition. We direct the Evaluation Committee to consider the bid of the appellant alongwith two persons who had been selected and take a final decision | 1 | 4,106 | 257 | ### 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:
6th Edn., p. 342) Joint venture companies are now being increasingly formed in relation to projects requiring inflow of foreign capital or technical expertise in the fast developing countries in East Asia, viz., Japan, South Korea, Taiwan, China, etc. [See Jacques Buhart : Joint Ventures in East Asia -- Legal Issues (1991).] There has been similar growth of joint ventures in our country wherein foreign companies join with Indian counterparts and contribute towards capital and technical know-how for the success of the venture. The High Court has taken note of this connotation of the expression "joint venture". But the High Court has held that NHL is not a joint venture and that there is only a certain amount of equity participation by a foreign company in it. We are unable to agree with the said view of the High Court.25. As noticed earlier, in its tender NHL had stated that it is a joint venture company established by TPI, LMI and WML and IIPL wherein TPI, LMI and WML and other companies in the same group as well as Mr. Aroon Purie own 60% shares and IIPL owns 40% shares. It was also stated that the joint venture has received approval of the Government of India and is currently in operation and that the promoter will increase their capital/contribution to commensurate with the project need and that the company has been established as an information and database management company with expertise in database processing, publishing, sales/marketing and the dissemination of related information. In the tender it is also stated that as a joint venture in the true sense of the phrase, the company will have access to expertise in database management, sales and publishing of its parent group companies. It would thus appear that the Indian group of companies (TPI, LMI and WML) and the Singapore-based company (IIPL) have pooled together their resources in the sense that TPI, LMI and WML have made available their equipment and organisation at various places in the country while IIPL has made available its wide experience in the field as well as the expertise of its managerial staff. All the constituents of NHL have thus contributed to the resources of the Company (NHL). This shows that NHL is an association of companies jointly undertaking a commercial enterprise wherein they will all contribute assets and will share risks and have a community of interest. We are, therefore, of the view that NHL has been constituted as a joint venture by the group of Indian companies and IIPL, the Singapore-based company and it would not be correct to say that IIPL which has a substantial stake in the success of the venture, having 40% of shareholding, is a mere shareholder in NHL.xx xx xx41. We have been informed that while the matter was pending in the High Court and in this Court the telephone directory for the year 1993 has been printed and supplied to the Department by Respondent 4 as per terms of the contract. Insofar as the directory for the year 1994 is concerned we find that, as per the terms of the contract, the process for preparation of the telephone directory has already commenced. We cannot lose sight of the fact that as a result of quashing of the contract in respect of the directory for 1994 fresh steps will have to be taken to award a fresh contract and the said process would take some time and thereafter the contractor will require time to print and publish the telephone directory. It would, therefore, not be feasible to bring out the directory for 1994 before the close of the year. As a result, the Department would suffer loss of revenue which it would otherwise earn by way of royalty from Respondent 4 for the directory for the year 1994. Insofar as the contract in respect of the year 1995 is concerned there is sufficient time for the Department to award a fresh contract if the contract awarded to Respondent 4 is cancelled and the new contractor will have sufficient time at his disposal to print and deliver the directory as per the time schedule. Moreover, in respect of the directory for the year 1995 the amount of royalty that is payable by Respondent 4 is Rs 45 lakhs and the amount of royalty offered by NHL for the directory for the said year was Rs .291.6 lakhs. Keeping in view the circumstances referred to above, the course that commends us is that, while maintaining the contract awarded to Respondent 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing CM No.6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition the application for interim relief has become infructuous and the appeal against the order dismissing CM No. 6120 of 1993 must, therefore, be dismissed as infructuous." 7. Though the aforesaid case related to experience, the other essential characteristic of a joint venture has also been highlighted. 8. In that view of the matter the inevitable conclusion is that the view taken by the High Court that the appellant did not fulfil the eligibility criteria was not correct. The High Court was not justified in dismissing the writ petition. We direct the Evaluation Committee to consider the bid of the appellant alongwith two persons who had been selected and take a final decision. 9.
### Response:
1
### Explanation:
Keeping in view the circumstances referred to above, the course that commends us is that, while maintaining the contract awarded to Respondent 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing CM No.6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition the application for interim relief has become infructuous and the appeal against the order dismissing CM No. 6120 of 1993 must, therefore, be dismissed asthat view of the matter the inevitable conclusion is that the view taken by the High Court that the appellant did not fulfil the eligibility criteria was not correct. The High Court was not justified in dismissing the writ petition. We direct the Evaluation Committee to consider the bid of the appellant alongwith two persons who had been selected and take a final decision
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U.P. Pollution Control Board Vs. Modi Distillery & Ors | that although Parliament enacted the Water (Prevention of Control and Pollution) Act, 1974 to meet the urgent need for introducing a comprehensive legislation with its established unitary agencies in the Centre and the States to provide for the prevention, abatement and control of pollution of rivers and streams, for maintaining or restoring wholesomeness of water courses and for controlling the existing and new discharges of domestic and industrial wastes, which is a matter of grave national concern, the manner in which some of the Boards are functioning leaves much to be desired. This is an instance where due to the sheer negligence on the part of the legal advisors in drafting the complaint a large business house is allowed to escape the consequences of the breaches committed by it of the provisions of the Act with impunity. It was expected that the Board and its legal advisors should have drafted the complaint with greater circumspection not to leave any technical flaw which would invalidate the initiation of the prosecution allowing the respondents to escape the consequences of the breaches committed by them of the provisions of the Act with impunity. As already stated, prior to the commencement of the Act the Company owned an industrial unit styled as Messrs Modi Distillery which was discharging its trade effluents into the Kali River through the Kadrabad Drain and therefore the matter fell within the ambit of S. 26 of the Act. S. 26 provides that where immediately before the commencement of the Act any person was discharging any sewage or trade effluent into a stream, the provisions of S. 25 shall, so far as may be, apply to such person as they apply in relation to a person referred to in that section. S. 25(1) creates an absolute prohibition against bringing into use any new or altered outlet for the discharge of sewage or trade effluent into a stream without the consent of the Board. On a combined reading of Ss. 25(1) and 26 it was mandatory for the Company viz. Messrs Modi Industries Limited to make an application to the Board under sub-section (2) of S. 25 read with S. 26 in the prescribed form containing the prescribed particulars for grant of consent for the discharge of its trade effluents into the said stream, subject to such conditions as it may impose. Along with the complaint the appellant has placed on record several documents showing that the rejection of the application was in the public interest as it was incomplete in many respects. These documents also reveal that the Company did not have proper arrangements for treatment of the highly polluted trade effluents, discharged by it and although the appellant repeatedly by its letter required the Company to obtain the consent of the Board, the Company was intentionally and deliberately avoiding compliance of the requirements of Ss. 25(1) and 26 of the Act. The contravention of these provisions is an offence punishable under S. 44. The other ten persons arrayed by names as accused in the complaint are respondents Nos. 2-11, the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited. It cannot be doubted that in such capacity they were in charge of and responsible for the conduct of the business of the Company and were therefore deemed to be guilty of the said offence and liable to be proceeded against and punished under S. 47 of the Act. It would be a travesty of justice if the big business house of Messrs Modi Industries Limited is allowed to defeat the prosecution launched and avoid facing the trial on a technical flaw which is not incurable for their alleged deliberate and wilful breach of the provisions contained in Ss. 25(1) and 26 made punishable under S. 44 read with S. 47 of the Act. 8. Faced with the difficulty of refuting the gravamen of the offence set out in the complaint, Shri Ram Jethmalani, learned counsel appearing for the respondents drew our attention to the counter-affidavit of Virendra Prasad, Manager (Personnel & Administration), Modi Distillery dated January 13, 1986 and the two supplementary affidavits dated August 25, 1986 and November 17, 1986 tending to show that Messrs Modi Industries Limited, the company owning the industrial unit, have taken effective steps to set up an effluents treatment plant by entering into an agreement dated December 23, 1985 with Messrs Chemical Consultants & Engineers, Ahmadnagar who would set it up in collaboration with Sulzer Bros. Limited, Switzerland by employment of the technical knowhow which would be able to recover Methane gas up to 70% and also bring down BOD reduction up to 90%. Further, it is averred that the company sought and obtained the approval of the Board subject to a time schedule for erection and installation of the plant by the end of June 1987. It is also averred that since the Government of India has turned down the application of the respondents for subsidy for installation of the said plant insofar as the year 1985-86 was concerned, they are trying other sources of finance and that in the meanwhile pending the installation and commissioning of the plant based on the Sulzers process and treating the effluents by alternative methods in order to reduce the extent of BOD discharge. They are diluting the effluents by mixing fresh water to the extent of 13 to 15 times the amount of effluent discharged in order to reduce the extent of pollution. In view of the subsequent events the learned counsel submits that this was a fit case for dropping the proceedings. The averments made by the respondents in the various affidavits have been controverted by the affidavit-in-rejoinder sworn by Chandra Bhal Singh, Law Officer of the appellant-Board showing that there is little or no progress in the matter of establishment of the effluents treatment plant. We need not enter into this controversy. These are all matters to be dealt with by the learned Chief Judicial Magistrate. | 1[ds]6. On a combined reading of the provisions contained in sub-ss. (1) and (2), we have no doubt whatever that the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited, the Company owning the industrial unit Messrs Modi Distillery could be prosecuted as having been in charge of and responsible to the company, for the business of the industrial unit Messrs Modi Distillery owned by it and could be deemed to be guilty of the offence with which they are charged. The learned single Judge has failed to bear in mind that this situation has been brought about by the industrial unit viz. Messrs Modi Distillery of Messrs Modi Industries Limited because in spite of more than one notice being issued by the Board, the unit of Messrs Modi Distillery deliberately failed to furnish the information called for regarding the particulars and names of the Managing Director, Directors and other persons responsible for the conduct of the Company. Having wilfully failed to furnish the requisite information to the Board, it is now not open to the Chairman, Vice-Chairman, Managing Director and other members of the Board of Directors to seek the Courts assistance to derive advantage from the lapse committed by their own industrial unit. The learned single Judge has focussed his attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Messrs Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in paragraph 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Messrs Modi Industries Limited, the Company owning the industrial unit, in place of Messrs Modi Distillery. Although as a pure proposition of law in the abstract the learned single Judges view that there can be no vicarious liability of the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors under sub-section (1) or (2) of S. 47 of the Act unless there was a prosecution against Messrs Modi Industries Limited, the Company owning the industrial unit, can be termed as correct, the objection raised by the petitioners before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum. We have already pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the Board. Furthermore, the legal infirmity is of such a nature which could be easily cured. Another circumstance which brings out the narrow perspective of the learned single Judge is his failure to appreciate the fact that the averments in paragraph 2 has to be construed in the light of the averments contained in paragraphs 17, 18 and 19 which are to the effect that the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors were also liable for the alleged offence committed by the CompanyWe need not enter into this controversy. These are all matters to be dealt with by the learned Chief Judicial Magistrate | 1 | 3,544 | 632 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
that although Parliament enacted the Water (Prevention of Control and Pollution) Act, 1974 to meet the urgent need for introducing a comprehensive legislation with its established unitary agencies in the Centre and the States to provide for the prevention, abatement and control of pollution of rivers and streams, for maintaining or restoring wholesomeness of water courses and for controlling the existing and new discharges of domestic and industrial wastes, which is a matter of grave national concern, the manner in which some of the Boards are functioning leaves much to be desired. This is an instance where due to the sheer negligence on the part of the legal advisors in drafting the complaint a large business house is allowed to escape the consequences of the breaches committed by it of the provisions of the Act with impunity. It was expected that the Board and its legal advisors should have drafted the complaint with greater circumspection not to leave any technical flaw which would invalidate the initiation of the prosecution allowing the respondents to escape the consequences of the breaches committed by them of the provisions of the Act with impunity. As already stated, prior to the commencement of the Act the Company owned an industrial unit styled as Messrs Modi Distillery which was discharging its trade effluents into the Kali River through the Kadrabad Drain and therefore the matter fell within the ambit of S. 26 of the Act. S. 26 provides that where immediately before the commencement of the Act any person was discharging any sewage or trade effluent into a stream, the provisions of S. 25 shall, so far as may be, apply to such person as they apply in relation to a person referred to in that section. S. 25(1) creates an absolute prohibition against bringing into use any new or altered outlet for the discharge of sewage or trade effluent into a stream without the consent of the Board. On a combined reading of Ss. 25(1) and 26 it was mandatory for the Company viz. Messrs Modi Industries Limited to make an application to the Board under sub-section (2) of S. 25 read with S. 26 in the prescribed form containing the prescribed particulars for grant of consent for the discharge of its trade effluents into the said stream, subject to such conditions as it may impose. Along with the complaint the appellant has placed on record several documents showing that the rejection of the application was in the public interest as it was incomplete in many respects. These documents also reveal that the Company did not have proper arrangements for treatment of the highly polluted trade effluents, discharged by it and although the appellant repeatedly by its letter required the Company to obtain the consent of the Board, the Company was intentionally and deliberately avoiding compliance of the requirements of Ss. 25(1) and 26 of the Act. The contravention of these provisions is an offence punishable under S. 44. The other ten persons arrayed by names as accused in the complaint are respondents Nos. 2-11, the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited. It cannot be doubted that in such capacity they were in charge of and responsible for the conduct of the business of the Company and were therefore deemed to be guilty of the said offence and liable to be proceeded against and punished under S. 47 of the Act. It would be a travesty of justice if the big business house of Messrs Modi Industries Limited is allowed to defeat the prosecution launched and avoid facing the trial on a technical flaw which is not incurable for their alleged deliberate and wilful breach of the provisions contained in Ss. 25(1) and 26 made punishable under S. 44 read with S. 47 of the Act. 8. Faced with the difficulty of refuting the gravamen of the offence set out in the complaint, Shri Ram Jethmalani, learned counsel appearing for the respondents drew our attention to the counter-affidavit of Virendra Prasad, Manager (Personnel & Administration), Modi Distillery dated January 13, 1986 and the two supplementary affidavits dated August 25, 1986 and November 17, 1986 tending to show that Messrs Modi Industries Limited, the company owning the industrial unit, have taken effective steps to set up an effluents treatment plant by entering into an agreement dated December 23, 1985 with Messrs Chemical Consultants & Engineers, Ahmadnagar who would set it up in collaboration with Sulzer Bros. Limited, Switzerland by employment of the technical knowhow which would be able to recover Methane gas up to 70% and also bring down BOD reduction up to 90%. Further, it is averred that the company sought and obtained the approval of the Board subject to a time schedule for erection and installation of the plant by the end of June 1987. It is also averred that since the Government of India has turned down the application of the respondents for subsidy for installation of the said plant insofar as the year 1985-86 was concerned, they are trying other sources of finance and that in the meanwhile pending the installation and commissioning of the plant based on the Sulzers process and treating the effluents by alternative methods in order to reduce the extent of BOD discharge. They are diluting the effluents by mixing fresh water to the extent of 13 to 15 times the amount of effluent discharged in order to reduce the extent of pollution. In view of the subsequent events the learned counsel submits that this was a fit case for dropping the proceedings. The averments made by the respondents in the various affidavits have been controverted by the affidavit-in-rejoinder sworn by Chandra Bhal Singh, Law Officer of the appellant-Board showing that there is little or no progress in the matter of establishment of the effluents treatment plant. We need not enter into this controversy. These are all matters to be dealt with by the learned Chief Judicial Magistrate.
### Response:
1
### Explanation:
6. On a combined reading of the provisions contained in sub-ss. (1) and (2), we have no doubt whatever that the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited, the Company owning the industrial unit Messrs Modi Distillery could be prosecuted as having been in charge of and responsible to the company, for the business of the industrial unit Messrs Modi Distillery owned by it and could be deemed to be guilty of the offence with which they are charged. The learned single Judge has failed to bear in mind that this situation has been brought about by the industrial unit viz. Messrs Modi Distillery of Messrs Modi Industries Limited because in spite of more than one notice being issued by the Board, the unit of Messrs Modi Distillery deliberately failed to furnish the information called for regarding the particulars and names of the Managing Director, Directors and other persons responsible for the conduct of the Company. Having wilfully failed to furnish the requisite information to the Board, it is now not open to the Chairman, Vice-Chairman, Managing Director and other members of the Board of Directors to seek the Courts assistance to derive advantage from the lapse committed by their own industrial unit. The learned single Judge has focussed his attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Messrs Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in paragraph 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Messrs Modi Industries Limited, the Company owning the industrial unit, in place of Messrs Modi Distillery. Although as a pure proposition of law in the abstract the learned single Judges view that there can be no vicarious liability of the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors under sub-section (1) or (2) of S. 47 of the Act unless there was a prosecution against Messrs Modi Industries Limited, the Company owning the industrial unit, can be termed as correct, the objection raised by the petitioners before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum. We have already pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the Board. Furthermore, the legal infirmity is of such a nature which could be easily cured. Another circumstance which brings out the narrow perspective of the learned single Judge is his failure to appreciate the fact that the averments in paragraph 2 has to be construed in the light of the averments contained in paragraphs 17, 18 and 19 which are to the effect that the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors were also liable for the alleged offence committed by the CompanyWe need not enter into this controversy. These are all matters to be dealt with by the learned Chief Judicial Magistrate
|
The New India Assurance Company Limited & Another Vs. Ashish Ravindra Kulkarni & Others | the decision in Rajesh is not a binding precedent.(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.(vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/, Rs. 40,000/and Rs. 15,000/respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.16. In our view, the Respondents Claimants would be entitled to future prospects in terms of clause (iii) of the said conclusions as the deceased Ravindra had a permanent job. Hence an amount of 30% of the amount calculated as the total income of the deceased by applying concerned multiplier would have to be added to the compensation. The said 30% amount towards loss of future prospects would come to Rs.12,04,524/-.17. In so far as the deductions of the amounts of House Rent Allowance and Festival Allowance are concerned, in our view, the said deductions are also not permissible. A useful reference could be made to the judgment of the Apex Court in Indira Srivastava and otherss case (supra) wherein the Apex Court has held that the benefits meant for family, as distinguished from personal benefits like conveyance allowance, etc. also form part of income. Hence the amounts paid by way of House Rent Allowance and Festival Allowance would have to be taken into consideration whilst calculating the total income of the deceased Ravindra.18. In so far as deduction of Rs.3,00,000/- which amount has been granted by the employer TATA Precision Industries, Singapore to the Respondents Claimants is concerned, the said deduction is not permissible. A useful reference could be made to the judgment of the Apex Court in Vimal Kanwars case (supra) wherein the Apex Court in the context of the salary receivable by the dependent claimant upon compassionate appointment due to victims death held that it does not come within the periphery of Motor Vehicles Act to be termed as pecuniary advantage.19. In so far as the amounts to be awarded under conventional heads i.e. for loss of consortium, funeral expenses and towards loss of care and guidance for minor children are concerned, the Apex Court in Pranay Sethis case (supra) in paragraph 54 held that the reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. The judgment in Pranay Sethis case (supra) in so far as the said aspect is concerned was considered by the Apex Court in Magma General Insurance Co. Ltd.s case (supra). The Apex Court in the said case observed that the Motor Vehicles Act is a beneficial legislation and, in case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to the children who loose their parents in motor vehicle accidents under the Act. The amount of compensation to be awarded as consortium will be governed by the principles as laid down in Pranay Sethis case (supra). The Apex Court in the said case awarded an amount of Rs.40,000/- each for loss of Filial Consortium apart from a ;sum of Rs.50,000/- each for the loss of love and affection. In view of the fact that the judgment in Magma General Insurance Co. Ltds case (supra) has considered the judgment in Pranay Sethis case (supra), we propose to follow the said judgment in the matter of awarding the sums on account of conventional heads. In view thereof the amount of Rs.3,00,000/- granted as compensation for loss of love and affection to the Respondents Claimants would have to be brought down to Rs.1,50,000/- i.e. Rs.50,000/- to each of the Respondents Claimants. In view of the special facts and circumstances of the case where the body of the deceased was brought by Air to Pune, we deem it appropriate to maintain the amount of Rs.1,00,000/- granted for funeral expenses. We also deem it appropriate to award Rs.15,000/- towards loss of estate, and Rs.1,20,000/- i.e. Rs.40,000/- to Ashish i.e. the Respondent No.1 towards Parental Consortium and Rs.80,000/- to the parents i.e. the Respondent Nos.2 and 3 towards Filial Consortium.20. Lastly coming to the rate at which the interest has been granted by the MACT, Pune, as indicated herein above, the interest to the Respondents Claimants had been granted at the rate of 6% p.a. We deem it appropriate to enhance it to 7.5% p.a.21. In that view of the matter, the above First Appeal filed by the Appellant Insurance Company is accordingly dismissed save and except to the extent of modification in respect of the amount towards loss of love and affection. | 1[ds]In so far as Grounds C, E and F are concerned, it is pertinent to note that the AppellantInsurance Company has not pleaded the case sought to be urged by the said grounds in the written statement. As indicated above, the AppellantInsurance Company has not led any evidence in rebuttal. Hence in the absence of any pleadings to that effect in the written statement, the AppellantInsurance Company would not be entitled to raise the said grounds. In any event the said grounds do not fall within the statutory defences which are available to an insurer under Section 149 of the Motor Vehicles Act to the Insurer.In so far as Grounds J, L and T, which we have reproduced herein above, are concerned, it is pertinent to note that before the MACT, Pune the appointment letter as well as the salary slip of the deceased Ravindra were produced through the representative of the TATA Precision Industries, SingaporeKirti Naik (PW 2). In the absence of any contra material, the MACT was right in relying upon the said material to come to the conclusion as regards the income of the deceased Ravindra.We therefore do not find any merit in the challenge raised to the Award passed by the MACT, Pune on behalf of the Appellant5. In so far as future prospects are concerned, the same has been denied to the RespondentsClaimants on the ground that the deceased Ravindra was not a permanent employee. It is required to be noted that the deceased Ravindra was engaged as a Chief Executive Officer with TATA Precision Industries, Singapore, and it is the case of the RespondentsClaimants that the monthly salary of the deceased Ravindra was $ 11,153 Singapore dollars. The concept of temporary/permanent, in our view, cannot be made applicable to the Chief Executive Officer in a Company which is based abroad. In fact the concept may be alien to such company. It would therefore have to be held that the deceased Ravindra was a permanent employee of the said TATA Precision Industries, Singapore. In so far as the said aspect is concerned, a useful reference could be made to the judgment of the Apex Court in Pranay Sethis case (supra).In our view, the RespondentsClaimants would be entitled to future prospects in terms of clause (iii) of the said conclusions as the deceased Ravindra had a permanent job. Hence an amount of 30% of the amount calculated as the total income of the deceased by applying concerned multiplier would have to be added to the compensation. The said 30% amount towards loss of future prospects would come to Rs.12,04,524/-.In so far as the deductions of the amounts of House Rent Allowance and Festival Allowance are concerned, in our view, the said deductions are also not permissible. A useful reference could be made to the judgment of the Apex Court in Indira Srivastava and otherss case (supra) wherein the Apex Court has held that the benefits meant for family, as distinguished from personal benefits like conveyance allowance, etc. also form part of income. Hence the amounts paid by way of House Rent Allowance and Festival Allowance would have to be taken into consideration whilst calculating the total income of the deceasedview of the fact that the judgment in Magma General Insurance Co. Ltds case (supra) has considered the judgment in Pranay Sethis case (supra), we propose to follow the said judgment in the matter of awarding the sums on account of conventional heads. In view thereof the amount of Rs.3,00,000/- granted as compensation for loss of love and affection to the RespondentsClaimants would have to be brought down to Rs.1,50,000/- i.e. Rs.50,000/- to each of the RespondentsClaimants. In view of the special facts and circumstances of the case where the body of the deceased was brought by Air to Pune, we deem it appropriate to maintain the amount of Rs.1,00,000/- granted for funeral expenses. We also deem it appropriate to award Rs.15,000/- towards loss of estate, and Rs.1,20,000/- i.e. Rs.40,000/- to Ashish i.e. the Respondent No.1 towards Parental Consortium and Rs.80,000/- to the parents i.e. the Respondent Nos.2 and 3 towards Filial Consortium.20. Lastly coming to the rate at which the interest has been granted by the MACT, Pune, as indicated herein above, the interest to the RespondentsClaimants had been granted at the rate of 6% p.a. We deem it appropriate to enhance it to 7.5% p.a.21. In that view of the matter, the above First Appeal filed by the AppellantInsurance Company is accordingly dismissed save and except to the extent of modification in respect of the amount towards loss of love and affection. | 1 | 4,307 | 846 | ### 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 decision in Rajesh is not a binding precedent.(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.(vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/, Rs. 40,000/and Rs. 15,000/respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.16. In our view, the Respondents Claimants would be entitled to future prospects in terms of clause (iii) of the said conclusions as the deceased Ravindra had a permanent job. Hence an amount of 30% of the amount calculated as the total income of the deceased by applying concerned multiplier would have to be added to the compensation. The said 30% amount towards loss of future prospects would come to Rs.12,04,524/-.17. In so far as the deductions of the amounts of House Rent Allowance and Festival Allowance are concerned, in our view, the said deductions are also not permissible. A useful reference could be made to the judgment of the Apex Court in Indira Srivastava and otherss case (supra) wherein the Apex Court has held that the benefits meant for family, as distinguished from personal benefits like conveyance allowance, etc. also form part of income. Hence the amounts paid by way of House Rent Allowance and Festival Allowance would have to be taken into consideration whilst calculating the total income of the deceased Ravindra.18. In so far as deduction of Rs.3,00,000/- which amount has been granted by the employer TATA Precision Industries, Singapore to the Respondents Claimants is concerned, the said deduction is not permissible. A useful reference could be made to the judgment of the Apex Court in Vimal Kanwars case (supra) wherein the Apex Court in the context of the salary receivable by the dependent claimant upon compassionate appointment due to victims death held that it does not come within the periphery of Motor Vehicles Act to be termed as pecuniary advantage.19. In so far as the amounts to be awarded under conventional heads i.e. for loss of consortium, funeral expenses and towards loss of care and guidance for minor children are concerned, the Apex Court in Pranay Sethis case (supra) in paragraph 54 held that the reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. The judgment in Pranay Sethis case (supra) in so far as the said aspect is concerned was considered by the Apex Court in Magma General Insurance Co. Ltd.s case (supra). The Apex Court in the said case observed that the Motor Vehicles Act is a beneficial legislation and, in case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to the children who loose their parents in motor vehicle accidents under the Act. The amount of compensation to be awarded as consortium will be governed by the principles as laid down in Pranay Sethis case (supra). The Apex Court in the said case awarded an amount of Rs.40,000/- each for loss of Filial Consortium apart from a ;sum of Rs.50,000/- each for the loss of love and affection. In view of the fact that the judgment in Magma General Insurance Co. Ltds case (supra) has considered the judgment in Pranay Sethis case (supra), we propose to follow the said judgment in the matter of awarding the sums on account of conventional heads. In view thereof the amount of Rs.3,00,000/- granted as compensation for loss of love and affection to the Respondents Claimants would have to be brought down to Rs.1,50,000/- i.e. Rs.50,000/- to each of the Respondents Claimants. In view of the special facts and circumstances of the case where the body of the deceased was brought by Air to Pune, we deem it appropriate to maintain the amount of Rs.1,00,000/- granted for funeral expenses. We also deem it appropriate to award Rs.15,000/- towards loss of estate, and Rs.1,20,000/- i.e. Rs.40,000/- to Ashish i.e. the Respondent No.1 towards Parental Consortium and Rs.80,000/- to the parents i.e. the Respondent Nos.2 and 3 towards Filial Consortium.20. Lastly coming to the rate at which the interest has been granted by the MACT, Pune, as indicated herein above, the interest to the Respondents Claimants had been granted at the rate of 6% p.a. We deem it appropriate to enhance it to 7.5% p.a.21. In that view of the matter, the above First Appeal filed by the Appellant Insurance Company is accordingly dismissed save and except to the extent of modification in respect of the amount towards loss of love and affection.
### Response:
1
### Explanation:
In so far as Grounds C, E and F are concerned, it is pertinent to note that the AppellantInsurance Company has not pleaded the case sought to be urged by the said grounds in the written statement. As indicated above, the AppellantInsurance Company has not led any evidence in rebuttal. Hence in the absence of any pleadings to that effect in the written statement, the AppellantInsurance Company would not be entitled to raise the said grounds. In any event the said grounds do not fall within the statutory defences which are available to an insurer under Section 149 of the Motor Vehicles Act to the Insurer.In so far as Grounds J, L and T, which we have reproduced herein above, are concerned, it is pertinent to note that before the MACT, Pune the appointment letter as well as the salary slip of the deceased Ravindra were produced through the representative of the TATA Precision Industries, SingaporeKirti Naik (PW 2). In the absence of any contra material, the MACT was right in relying upon the said material to come to the conclusion as regards the income of the deceased Ravindra.We therefore do not find any merit in the challenge raised to the Award passed by the MACT, Pune on behalf of the Appellant5. In so far as future prospects are concerned, the same has been denied to the RespondentsClaimants on the ground that the deceased Ravindra was not a permanent employee. It is required to be noted that the deceased Ravindra was engaged as a Chief Executive Officer with TATA Precision Industries, Singapore, and it is the case of the RespondentsClaimants that the monthly salary of the deceased Ravindra was $ 11,153 Singapore dollars. The concept of temporary/permanent, in our view, cannot be made applicable to the Chief Executive Officer in a Company which is based abroad. In fact the concept may be alien to such company. It would therefore have to be held that the deceased Ravindra was a permanent employee of the said TATA Precision Industries, Singapore. In so far as the said aspect is concerned, a useful reference could be made to the judgment of the Apex Court in Pranay Sethis case (supra).In our view, the RespondentsClaimants would be entitled to future prospects in terms of clause (iii) of the said conclusions as the deceased Ravindra had a permanent job. Hence an amount of 30% of the amount calculated as the total income of the deceased by applying concerned multiplier would have to be added to the compensation. The said 30% amount towards loss of future prospects would come to Rs.12,04,524/-.In so far as the deductions of the amounts of House Rent Allowance and Festival Allowance are concerned, in our view, the said deductions are also not permissible. A useful reference could be made to the judgment of the Apex Court in Indira Srivastava and otherss case (supra) wherein the Apex Court has held that the benefits meant for family, as distinguished from personal benefits like conveyance allowance, etc. also form part of income. Hence the amounts paid by way of House Rent Allowance and Festival Allowance would have to be taken into consideration whilst calculating the total income of the deceasedview of the fact that the judgment in Magma General Insurance Co. Ltds case (supra) has considered the judgment in Pranay Sethis case (supra), we propose to follow the said judgment in the matter of awarding the sums on account of conventional heads. In view thereof the amount of Rs.3,00,000/- granted as compensation for loss of love and affection to the RespondentsClaimants would have to be brought down to Rs.1,50,000/- i.e. Rs.50,000/- to each of the RespondentsClaimants. In view of the special facts and circumstances of the case where the body of the deceased was brought by Air to Pune, we deem it appropriate to maintain the amount of Rs.1,00,000/- granted for funeral expenses. We also deem it appropriate to award Rs.15,000/- towards loss of estate, and Rs.1,20,000/- i.e. Rs.40,000/- to Ashish i.e. the Respondent No.1 towards Parental Consortium and Rs.80,000/- to the parents i.e. the Respondent Nos.2 and 3 towards Filial Consortium.20. Lastly coming to the rate at which the interest has been granted by the MACT, Pune, as indicated herein above, the interest to the RespondentsClaimants had been granted at the rate of 6% p.a. We deem it appropriate to enhance it to 7.5% p.a.21. In that view of the matter, the above First Appeal filed by the AppellantInsurance Company is accordingly dismissed save and except to the extent of modification in respect of the amount towards loss of love and affection.
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BAYAJI SAMBHU MALI @BORATE(D) THR. LRS Vs. NAZIR MOHAMMED B.ZARI THR.POA HOLD | be postponed as therein provided. Since T, the landlord was under no disability and was alive on April 1, 1957 his tenant J became the deemed purchaser on the tillers day. Therefore, the relationship of landlord and tenant between T and J came to be extinguished and no right could be claimed either by T or anyone claiming through him such as A or the present purchasers on the footing that they are the owners of the land on or after April 1, 1957. 57. In Anna Bhau Magdum, Since Deceased by LRs v. Babasaheb Anandrao Desai (1995) 5 SCC 243 , the Court, no doubt, held that requirement under Section 32F(1A) was mandatory. There cannot be any automatic purchase under Section 32 read with Section 32G in such a case. However, it is relevant to note para 15. 15. The submission of Shri Wad is that if express statement made by the tenant could not stand in the way of his availing the right conferred by the Act, there is no reason why merely because of inaction on his part a tenant should be deprived of the right. The observations aforementioned made in Amrit Bhikaji Kale have to be read in the context of the facts of that case where it was found that the landlord who was major and was under no disability, was alive on 1-4-1957 and the provisions of Section 32F were not attracted and there was deemed purchase of the land by the tenant by virtue of Section 32. The subsequent statement made by the tenant in proceedings before the Aval Karkoon were, therefore, held to be of no avail. The position in the instant case is, however, different. The respondent – landlord was a minor on 1-4-1957 and the case was governed by Section 32F and there has been non compliance of sub- section (1A) of Section 32-F. 58. It is also relevant to note that it was not a case where the question related to postponed date within the meaning of the first proviso to Section 32(1), but the principle relating to deemed status under Section 32(1) will apply in respect to deemed status under the proviso. 59. In Sudam Ganpat Kutwal v. Shevantabai Tukaram Gulumkar (2006) 7 SCC 200 , the landlord filed an application under Section 31 read with Section 29 of the Act. The claim was accepted and possession of half of the land was directed to be delivered for a bona fide cultivation. The other half was to remain with the tenant. Thereafter, the landlady filed an application seeking possession of the remaining half of the land alleging certain defaults by the tenant. Later, the successor-in-interest of the landlady filed an application under Section 32(P) read with Section 32F for declaration that the deemed statutory purchase by the tenant was void as there was no required notice under Section 32F(1A) of the Act. This Court referred to the provisions and culled out its conclusions in para 23, which read, inter alia, as follows: 23. The position as disclosed by a combined and harmonious reading of Sections 31, 32, 32F and 32G may be stated thus: a) Where the landlord has not served on the tenant, a notice of termination (as stated in clause (b) of sub-section (1) of section 32), the tenant is deemed to have purchased the land on the tillers day (1.4.1957); b) Where the tenant is deemed to have purchased the land on the Tillers Day (1.4.1957), the Lands Tribunal is required to issue notice and determine the price of land to be paid by tenant. Where there is a deemed purchase, but the right to purchase is postponed, the Land Tribunal shall determine the price of land, as soon as may be after the postponed date; - ------- f) Where a landlord, who is a widow, exercises her right of termination and secures possession of part of the tenanted land for personal cultivation under section 31(1) of the Act, then there is no question of her successor- in-title giving a notice of termination within one year from the date on which the widows interest ceases to exist. When section 31 (3) ceases to apply, section 32F also will not apply and there is no need for the tenant to give any intimation under section 32F(1A). 60. In Tukaram Maruti Chavan v. Maruti Narayan Chavan (Dead) by LRs and Others (2008) 9 SCC 358 , the question was whether the appellant could exercise right to purchase in the absence of intimation under Section 32F(1A) to the landlord and to the Tribunal. 61. The original landlady who was a widow died in 1964 leaving behind him two sons. The original tenant initiated proceedings under Section 32G which was ordered in his favour. 62. The Court was of the view that notice under Section 32F(1A) is mandatory. However, the Court also inter alia held as follows: The required notice is not mandatory only in a case when a widow landlady has already exercised her right under Section 31(1) i.e. when during her lifetime, a notice is served to the tenant that the landlady requires the land bona fide. Once a notice under Section 31(1) is served by such a widow landlady, the further benefit of Section 31(3) is not available. 63. No doubt, learned counsel for the respondent submitted that in the event the Court is inclined to take a view that the certified copies are to be looked into, the matter may be remitted back. 64. We are of the view that there is a wealth of documents showing that the respondent litigated the matter at three levels i.e. the application filed by the landlord dated 20.05.1967, the order passed in appeal and still further the order in revision before the Tribunal. Relying on some discrepancy as noted as regards the date of filing of the appeal and the date of the impugned order, the Authorities and the High Court should not have found against the appellant. | 0[ds]26. Now that we have the case as setup by learned counsel for the appellant and learned counsel for the respondents and also the statutory scheme, we must delve a little deeper into the facts and also apply the same in the backdrop of the scheme of the Act. The High Court has proceeded on the basis that the appellant has not given notice under Section 32F(1A). According to the High Court, it is mandatory. Learned counsel for the respondent also relies on that reasoning. On the other hand, the case of the appellant is that in accord with his case, there is no requirement to give a notice under Section 32F(1A). The landlord would point out that the Court may notice that it is the case of the appellant that Section 32F(1A) has been substantially complied with by the appellant31. However, subsection (3) of Section 31 contemplates that where a landlord is a minor or a widow or a person subject to mental or physical disability, the notice may be given and an application for possession under Section 29 may be made by the minor within one year from the date on which he attains majority. We are not concerned here with the other categories. Therefore, we can hold that if a landlord is a minor, he can invoke provisions of Section 29 and an application for possession under Section 29 can be made within one year from the date on which he attains majority. Section 31A provides for the conditions of termination of tenancy. It limits the right of the landlord to terminate a tenancy for cultivating the land personally under Section 31 by hedging the said right with certain conditions. The conditions also may not concern us. It is now that we must pass on to Section 3235. Before we discuss Section 32F, we deem it appropriate to refer to Section 32G. Section 32G deals with the power of the Tribunal to issue notice and determine the price of the land to be paid by the tenants. Section 32G(5) declares that in the case of a tenant who is deemed to have purchased the land on the postponed date the Tribunal shall determine the price of the land. The Tribunal is defined in Section 2(19) as the Agricultural Lands Tribunal under Section 6736. Section 32G inter alia provides that the Tribunal shall publish or cause to be published a public notice calling upon the persons who are deemed to have purchased the lands. This is apart from calling upon the landlords and other persons to appear on the date specified in the notice. The failure of the tenant to appear or a tenant who makes a statement that he is not willing to purchase the land will result in the Tribunal ordering in writing declaring that such tenant is not willing to purchase and the purchase is ineffective. If the tenant is willing to purchase, the Tribunal after giving an opportunity to the landlord and the tenant determine the price42. We are inclined to proceed in this case on the basis that the appellant had not given intimation within the meaning of Section 32F(1A) of the Act. On the other hand, the specific case which is pressed before us is that what is crucial is he must be treated as a deemed tenant having regard to the fact that the respondent – landlord unsuccessfully filed an application within the meaning of Section 29 read with Section 3243. At this juncture, we must focus on the facts given by the landlord more closely. As we have noticed, the case of the appellant is that the respondent filed an application under Section 29 and the same came to be rejected by order dated 27.07.1967. The landlord, according to the appellant, preferred an appeal which was rejected on 09.03.196846. From the orders which are produced before us in the revision application filed by the first respondent, the Maharashtra Tribunal has confirmed this finding. The revision application was dismissed47. It is thereafter that the appellant filed an application purporting under Section 32G. As we have noticed the matter travelled upto the Tribunal which remanded it to the Original Authority, it is thereafter that a new round of litigation commenced and which culminated in the impugned order of the High Court. In this round, the order of the Original Authority went against the appellant and it is found that the landlord became a major on 04.06.196648. He found that the provisions of Section 32F are applicable. The Original Authority further reasoned that it was necessary for the appellant to exercise a right of purchase by giving intimation under Rule 20 of the Rules, 1956 within two years from the date of attaining majority i.e. by 04.06.1968. This mandatory provision was not complied with by the tenant and he lost his right. Regarding the proceedings at the hands of the first respondent – landlord, it is stated as regards extract of appeal register, there is some discrepancy in the extract. It has mentioned that the date of lower court order is 27.07.1967 and the date of receipt is 19.06.1967 (apparently the date of receipt is the date of receipt of the appeal, in other words, the discrepancy is that the date of the appeal is earlier than the date of the order which is impugned in the appeal). It is further stated that there is no evidence by the first respondent to establish that the landlord terminated the tenancy and filed an application for possession of the suit land under Section 29 read with Section 31 after attaining majority. Therefore, it was for the tenant to exercise his right of purchase under Section 32F(1A) which he failed to exercise and thus resulted in the loss of his right. The Assistant Collector in the appeal filed by the appellant allowed his appeal. The Tribunal reversed the order of the Appellate Authority and restored the order of the Original Authority. The Tribunal has proceeded on the basis of the discrepancy in the appeal and the order is substantially on the lines of what the Original Authority has proceeded to hold. It is further pointed out that where the party is to produce the primary evidence it would be a certified copy and nothing else. The landlord has denied the filing of the case for possession and the tenant / appellant has failed to comply with the provisions of Section 32F. He has lost the right to purchase the suit land49. The High Court has adverted to the provisions and found there was a serious doubt expressed about the initiation of proceedings filed by the landlord and the learned Single Judge could not see how the Tehsildar and the Agricultural Land Tribunal have committed an error apparent on the face of the record or perversity in regard to the finding about giving intimation. It was further found that in the proceedings under Section 32G, it was permissible to the landlord to raise an issue of non compliance under Section 32F(1A) by the tenant50. It was reiterated that intimation to the landlord and the Tribunal under Section 32F(1A) is a mandatory pre-requisite51. The argument of the appellant that the proceedings after the remand must be treated as a continuation of an earlier round of litigation and there is a substantial compliance with Section 32F(1A) was not accepted. Interplay between Section 29 read with first proviso to Section 32(1) and Section 32F52. A perusal of the First Proviso to Section 32(1) read with Section 29 would show that when an application is filed by the landlord for possession and that application is rejected then the tenant is deemed to have purchased the land. With reference to the date on which the order rejecting the landlords application under section 29 read with Section 32 is passed. This is a case of deemed purchase. Section 32F, on the other hand, entitles the tenant to purchase. This is applicable in a situation where the landlord is a minor and on attaining majority though he has a period of one year from the date on which he attains majority to terminate the tenancy and he does not do so. Then the time starts ticking for the tenant from the expiry of the period of one year from which the minor landlord becomes major53. If there is no deemed tenancy within the meaning of Section 32 proviso read with Section 29 then the only alternative available for the tenant is to purchase the right by invoking provision of Section 32F. Both cannot exist together viz. if a person has a deemed status, there is no need for him to apply for purchase under Section 32F. Section 29 read with Sections 32 and 32F deal with two mutually exclusive situations. In a case covered by Section 29 read with Section 32(1) the tenant acquires the deemed status and in a case where a matter is covered by Section 32F, there is no deemed status for the tenant but he has to invoke provision of section 32F and issue a notice both to the landlord and to the Tribunal within the meaning of Section 32F(1A) and the matter has to be decided by the Authority54. In the facts of this case, if it is established that provisions contained in Section 32 read with Section 29 are applicable in so far as if we accept the case of the appellant that the respondent landlord had invoked Section 29 read with Section 32, being a case of a minor who became entitled to apply within a period of one year from the date of attaining majority and the application culminated in the rejection of his case then the appellant would acquire deemed status. If he acquires deemed status, then there could be no need to invoke Section 32F. Rather there is no need for him to again acquire a status which is conferred upon him by law by a deeming provision. Nothing more is required to be done by the tenant in such a case55. Coming to the merits of the matter, the appellant has produced material, the orders passed by the Appellate Authority and also by the Tribunal in Revision. It does show by invoking Sections 29 and 32, the first respondent had applied by projecting the case that he was born in 1948. The application filed by him stood rejected on the basis that the application was barred as birth register showed that he was born in 1947. Though the appellant has not produced certified copies earlier, the appellant has produced the same in the High Court after the judgment was delivered in the writ petition along with the review petition58. It is also relevant to note that it was not a case where the question related to postponed date within the meaning of the first proviso to Section 32(1), but the principle relating to deemed status under Section 32(1) will apply in respect to deemed status under the proviso63. No doubt, learned counsel for the respondent submitted that in the event the Court is inclined to take a view that the certified copies are to be looked into, the matter may be remitted back64. We are of the view that there is a wealth of documents showing that the respondent litigated the matter at three levels i.e. the application filed by the landlord dated 20.05.1967, the order passed in appeal and still further the order in revision before the Tribunal. Relying on some discrepancy as noted as regards the date of filing of the appeal and the date of the impugned order, the Authorities and the High Court should not have found against the appellant. | 0 | 8,695 | 2,124 | ### Instruction:
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be postponed as therein provided. Since T, the landlord was under no disability and was alive on April 1, 1957 his tenant J became the deemed purchaser on the tillers day. Therefore, the relationship of landlord and tenant between T and J came to be extinguished and no right could be claimed either by T or anyone claiming through him such as A or the present purchasers on the footing that they are the owners of the land on or after April 1, 1957. 57. In Anna Bhau Magdum, Since Deceased by LRs v. Babasaheb Anandrao Desai (1995) 5 SCC 243 , the Court, no doubt, held that requirement under Section 32F(1A) was mandatory. There cannot be any automatic purchase under Section 32 read with Section 32G in such a case. However, it is relevant to note para 15. 15. The submission of Shri Wad is that if express statement made by the tenant could not stand in the way of his availing the right conferred by the Act, there is no reason why merely because of inaction on his part a tenant should be deprived of the right. The observations aforementioned made in Amrit Bhikaji Kale have to be read in the context of the facts of that case where it was found that the landlord who was major and was under no disability, was alive on 1-4-1957 and the provisions of Section 32F were not attracted and there was deemed purchase of the land by the tenant by virtue of Section 32. The subsequent statement made by the tenant in proceedings before the Aval Karkoon were, therefore, held to be of no avail. The position in the instant case is, however, different. The respondent – landlord was a minor on 1-4-1957 and the case was governed by Section 32F and there has been non compliance of sub- section (1A) of Section 32-F. 58. It is also relevant to note that it was not a case where the question related to postponed date within the meaning of the first proviso to Section 32(1), but the principle relating to deemed status under Section 32(1) will apply in respect to deemed status under the proviso. 59. In Sudam Ganpat Kutwal v. Shevantabai Tukaram Gulumkar (2006) 7 SCC 200 , the landlord filed an application under Section 31 read with Section 29 of the Act. The claim was accepted and possession of half of the land was directed to be delivered for a bona fide cultivation. The other half was to remain with the tenant. Thereafter, the landlady filed an application seeking possession of the remaining half of the land alleging certain defaults by the tenant. Later, the successor-in-interest of the landlady filed an application under Section 32(P) read with Section 32F for declaration that the deemed statutory purchase by the tenant was void as there was no required notice under Section 32F(1A) of the Act. This Court referred to the provisions and culled out its conclusions in para 23, which read, inter alia, as follows: 23. The position as disclosed by a combined and harmonious reading of Sections 31, 32, 32F and 32G may be stated thus: a) Where the landlord has not served on the tenant, a notice of termination (as stated in clause (b) of sub-section (1) of section 32), the tenant is deemed to have purchased the land on the tillers day (1.4.1957); b) Where the tenant is deemed to have purchased the land on the Tillers Day (1.4.1957), the Lands Tribunal is required to issue notice and determine the price of land to be paid by tenant. Where there is a deemed purchase, but the right to purchase is postponed, the Land Tribunal shall determine the price of land, as soon as may be after the postponed date; - ------- f) Where a landlord, who is a widow, exercises her right of termination and secures possession of part of the tenanted land for personal cultivation under section 31(1) of the Act, then there is no question of her successor- in-title giving a notice of termination within one year from the date on which the widows interest ceases to exist. When section 31 (3) ceases to apply, section 32F also will not apply and there is no need for the tenant to give any intimation under section 32F(1A). 60. In Tukaram Maruti Chavan v. Maruti Narayan Chavan (Dead) by LRs and Others (2008) 9 SCC 358 , the question was whether the appellant could exercise right to purchase in the absence of intimation under Section 32F(1A) to the landlord and to the Tribunal. 61. The original landlady who was a widow died in 1964 leaving behind him two sons. The original tenant initiated proceedings under Section 32G which was ordered in his favour. 62. The Court was of the view that notice under Section 32F(1A) is mandatory. However, the Court also inter alia held as follows: The required notice is not mandatory only in a case when a widow landlady has already exercised her right under Section 31(1) i.e. when during her lifetime, a notice is served to the tenant that the landlady requires the land bona fide. Once a notice under Section 31(1) is served by such a widow landlady, the further benefit of Section 31(3) is not available. 63. No doubt, learned counsel for the respondent submitted that in the event the Court is inclined to take a view that the certified copies are to be looked into, the matter may be remitted back. 64. We are of the view that there is a wealth of documents showing that the respondent litigated the matter at three levels i.e. the application filed by the landlord dated 20.05.1967, the order passed in appeal and still further the order in revision before the Tribunal. Relying on some discrepancy as noted as regards the date of filing of the appeal and the date of the impugned order, the Authorities and the High Court should not have found against the appellant.
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which he failed to exercise and thus resulted in the loss of his right. The Assistant Collector in the appeal filed by the appellant allowed his appeal. The Tribunal reversed the order of the Appellate Authority and restored the order of the Original Authority. The Tribunal has proceeded on the basis of the discrepancy in the appeal and the order is substantially on the lines of what the Original Authority has proceeded to hold. It is further pointed out that where the party is to produce the primary evidence it would be a certified copy and nothing else. The landlord has denied the filing of the case for possession and the tenant / appellant has failed to comply with the provisions of Section 32F. He has lost the right to purchase the suit land49. The High Court has adverted to the provisions and found there was a serious doubt expressed about the initiation of proceedings filed by the landlord and the learned Single Judge could not see how the Tehsildar and the Agricultural Land Tribunal have committed an error apparent on the face of the record or perversity in regard to the finding about giving intimation. It was further found that in the proceedings under Section 32G, it was permissible to the landlord to raise an issue of non compliance under Section 32F(1A) by the tenant50. It was reiterated that intimation to the landlord and the Tribunal under Section 32F(1A) is a mandatory pre-requisite51. The argument of the appellant that the proceedings after the remand must be treated as a continuation of an earlier round of litigation and there is a substantial compliance with Section 32F(1A) was not accepted. Interplay between Section 29 read with first proviso to Section 32(1) and Section 32F52. A perusal of the First Proviso to Section 32(1) read with Section 29 would show that when an application is filed by the landlord for possession and that application is rejected then the tenant is deemed to have purchased the land. With reference to the date on which the order rejecting the landlords application under section 29 read with Section 32 is passed. This is a case of deemed purchase. Section 32F, on the other hand, entitles the tenant to purchase. This is applicable in a situation where the landlord is a minor and on attaining majority though he has a period of one year from the date on which he attains majority to terminate the tenancy and he does not do so. Then the time starts ticking for the tenant from the expiry of the period of one year from which the minor landlord becomes major53. If there is no deemed tenancy within the meaning of Section 32 proviso read with Section 29 then the only alternative available for the tenant is to purchase the right by invoking provision of Section 32F. Both cannot exist together viz. if a person has a deemed status, there is no need for him to apply for purchase under Section 32F. Section 29 read with Sections 32 and 32F deal with two mutually exclusive situations. In a case covered by Section 29 read with Section 32(1) the tenant acquires the deemed status and in a case where a matter is covered by Section 32F, there is no deemed status for the tenant but he has to invoke provision of section 32F and issue a notice both to the landlord and to the Tribunal within the meaning of Section 32F(1A) and the matter has to be decided by the Authority54. In the facts of this case, if it is established that provisions contained in Section 32 read with Section 29 are applicable in so far as if we accept the case of the appellant that the respondent landlord had invoked Section 29 read with Section 32, being a case of a minor who became entitled to apply within a period of one year from the date of attaining majority and the application culminated in the rejection of his case then the appellant would acquire deemed status. If he acquires deemed status, then there could be no need to invoke Section 32F. Rather there is no need for him to again acquire a status which is conferred upon him by law by a deeming provision. Nothing more is required to be done by the tenant in such a case55. Coming to the merits of the matter, the appellant has produced material, the orders passed by the Appellate Authority and also by the Tribunal in Revision. It does show by invoking Sections 29 and 32, the first respondent had applied by projecting the case that he was born in 1948. The application filed by him stood rejected on the basis that the application was barred as birth register showed that he was born in 1947. Though the appellant has not produced certified copies earlier, the appellant has produced the same in the High Court after the judgment was delivered in the writ petition along with the review petition58. It is also relevant to note that it was not a case where the question related to postponed date within the meaning of the first proviso to Section 32(1), but the principle relating to deemed status under Section 32(1) will apply in respect to deemed status under the proviso63. No doubt, learned counsel for the respondent submitted that in the event the Court is inclined to take a view that the certified copies are to be looked into, the matter may be remitted back64. We are of the view that there is a wealth of documents showing that the respondent litigated the matter at three levels i.e. the application filed by the landlord dated 20.05.1967, the order passed in appeal and still further the order in revision before the Tribunal. Relying on some discrepancy as noted as regards the date of filing of the appeal and the date of the impugned order, the Authorities and the High Court should not have found against the appellant.
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Vijayander Kumar Vs. State Of Rajasthan | High Court by the order under Appeal. 7. Learned senior counsel for the appellants drew our attention to some letters and communications such as annexure P.1 and P.2 both dated 27.02.1998 and annexure P.10 dated 24.02.1998 to support his contention that on 24.02.1998 itself the change in the management was brought to the notice of the informant with an intimation that a liability of Rs.23,00,000/- (rupees twenty three lacs) has been transferred to the new management which they shall pay and thereafter, on 27.02.1998 the informant received payment from the appellants as well as accepted the post-dated cheques on 27.02.1998 itself. On that basis it has been contended that wrong averments and allegations have been made in the FIR. It is further case of the appellants that the allegations and averments do not make out any criminal offence.8. On behalf of the appellants reliance has been placed upon judgments of this Court in the case of ThermaxLimited and Others Vs. K.M.Johnyand Others (2011) 13 SCC 412 ) and in case of DalipKaur and Others vs. JagnarSingh and another (2009) 14 SCC 696 ). There can be no dispute with the legal proposition laid down in the case of Anil Mahajan vs. BhorIndustries Limited (2005) 10 SCC 228 ) which has been discussed in paragraph 31 in the case of ThermoxLimited (supra) that if the complaint discloses only a simple case of civil dispute between the parties and there is an absolute absence of requisite averment to make out a case of cheating, the criminal proceeding can be quashed. Similar is the law noticed in the case of DalipKaur (supra). In this case the matter was remanded back to the High Court because of non-consideration of relevant issues as noticed in paragraph 10, but the law was further clarified in paragraph 11 by placing reliance upon judgment of this Court in R.Kalyani vs. JanakC.Mehta (2009) 1 SCC 516). It is relevant to extract paragraph 11 of the judgment which runs as follows: “11.There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta is attracted, which are as under:“(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.(4) If the allegation discloses a civil dispute, the same by itself may not be ground to hold that the criminal proceedings should not be allowed to continue.” 9. Learned senior counsel for the appellants also placed reliance upon judgment of this Court in the case of Devendraand Others vs. State of Uttar Pradesh and Another (2009) 7 SCC 495 ), only to highlight that a second petition under Section 482 of the Cr.P.C. can be entertained because order of Magistrate taking cognizance gives rise to a new cause of action. This issue does not require any deliberation because learned senior counsel for the respondent no.2, the informant, has not raised any objection to the maintainability of petition under Section 482 of the Cr.P.C.10. Contra the submission advanced on behalf of the appellants, learned counsel for the respondent no.2 has submitted that there is no merit in the contention advanced on behalf of the appellants that the FIR discloses only a civil case or that there is no allegation or averment making out a criminal offence. For that purpose he relied upon judgment of the High Court rendered in the facts of this very case reported in 1999 Criminal Law Journal, 1849, already noted earlier. 11. No doubt, the views of the High Court in respect of averments and allegations in the FIR were in the context of a prayer to quash the FIR itself but in the facts of this case those findings and observations are still relevant and they do not support the contentions on behalf of the appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the appellants in their defence in accordance with law for due consideration at appropriate stage.12. Learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint discloses a criminal offence or not. This proposition is supported by several judgments of this Court as noted in paragraph 16 of judgment in the case of RavindraKumar Madhanlal Goenka and Another vs. Rugmini Ram Raghav Spinners Private Limited (2009) 11 SCC 529 ).13. On considering the facts of the present case it is found that the facts were properly noticed by the High Court on earlier occasion while examining the petition preferred by the appellants for quashing of FIR of this case. The same view has been reiterated by the High Court in the order under appeal for not interfering with the order of cognizance by the learned Magistrate. Hence, we do not find any good ground to interfere with the criminal proceedings against the appellants at this stage. | 0[ds]11. No doubt, the views ofin respect of averments and allegations in the FIR were in the context of a prayer to quash the FIR itself but in the facts of this case those findings and observations are still relevant and they do not support the contentions on behalf of the appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the appellants in their defence in accordance with law for due consideration at appropriate stage.12. Learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint discloses a criminal offence or not. This proposition is supported by several judgments of this Court as noted in paragraph 16 of judgment in the case of RavindraKumar Madhanlal Goenka and Another vs. Rugmini Ram Raghav Spinners Private Limited (2009) 11 SCC 529 ).13. Onthe facts ofthe present case it is found that the facts were properly noticed byon earlier occasion whileon preferred by the appellants for quashing of FIR of this case. The same view has been reiterated byrt in theorder under appeal for not interfering with the order of cognizance by the learned Magistrate. Hence, we do not find any good ground to interfere with the criminal proceedings against the appellants at this stage. | 0 | 1,921 | 313 | ### Instruction:
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High Court by the order under Appeal. 7. Learned senior counsel for the appellants drew our attention to some letters and communications such as annexure P.1 and P.2 both dated 27.02.1998 and annexure P.10 dated 24.02.1998 to support his contention that on 24.02.1998 itself the change in the management was brought to the notice of the informant with an intimation that a liability of Rs.23,00,000/- (rupees twenty three lacs) has been transferred to the new management which they shall pay and thereafter, on 27.02.1998 the informant received payment from the appellants as well as accepted the post-dated cheques on 27.02.1998 itself. On that basis it has been contended that wrong averments and allegations have been made in the FIR. It is further case of the appellants that the allegations and averments do not make out any criminal offence.8. On behalf of the appellants reliance has been placed upon judgments of this Court in the case of ThermaxLimited and Others Vs. K.M.Johnyand Others (2011) 13 SCC 412 ) and in case of DalipKaur and Others vs. JagnarSingh and another (2009) 14 SCC 696 ). There can be no dispute with the legal proposition laid down in the case of Anil Mahajan vs. BhorIndustries Limited (2005) 10 SCC 228 ) which has been discussed in paragraph 31 in the case of ThermoxLimited (supra) that if the complaint discloses only a simple case of civil dispute between the parties and there is an absolute absence of requisite averment to make out a case of cheating, the criminal proceeding can be quashed. Similar is the law noticed in the case of DalipKaur (supra). In this case the matter was remanded back to the High Court because of non-consideration of relevant issues as noticed in paragraph 10, but the law was further clarified in paragraph 11 by placing reliance upon judgment of this Court in R.Kalyani vs. JanakC.Mehta (2009) 1 SCC 516). It is relevant to extract paragraph 11 of the judgment which runs as follows: “11.There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta is attracted, which are as under:“(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.(4) If the allegation discloses a civil dispute, the same by itself may not be ground to hold that the criminal proceedings should not be allowed to continue.” 9. Learned senior counsel for the appellants also placed reliance upon judgment of this Court in the case of Devendraand Others vs. State of Uttar Pradesh and Another (2009) 7 SCC 495 ), only to highlight that a second petition under Section 482 of the Cr.P.C. can be entertained because order of Magistrate taking cognizance gives rise to a new cause of action. This issue does not require any deliberation because learned senior counsel for the respondent no.2, the informant, has not raised any objection to the maintainability of petition under Section 482 of the Cr.P.C.10. Contra the submission advanced on behalf of the appellants, learned counsel for the respondent no.2 has submitted that there is no merit in the contention advanced on behalf of the appellants that the FIR discloses only a civil case or that there is no allegation or averment making out a criminal offence. For that purpose he relied upon judgment of the High Court rendered in the facts of this very case reported in 1999 Criminal Law Journal, 1849, already noted earlier. 11. No doubt, the views of the High Court in respect of averments and allegations in the FIR were in the context of a prayer to quash the FIR itself but in the facts of this case those findings and observations are still relevant and they do not support the contentions on behalf of the appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the appellants in their defence in accordance with law for due consideration at appropriate stage.12. Learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint discloses a criminal offence or not. This proposition is supported by several judgments of this Court as noted in paragraph 16 of judgment in the case of RavindraKumar Madhanlal Goenka and Another vs. Rugmini Ram Raghav Spinners Private Limited (2009) 11 SCC 529 ).13. On considering the facts of the present case it is found that the facts were properly noticed by the High Court on earlier occasion while examining the petition preferred by the appellants for quashing of FIR of this case. The same view has been reiterated by the High Court in the order under appeal for not interfering with the order of cognizance by the learned Magistrate. Hence, we do not find any good ground to interfere with the criminal proceedings against the appellants at this stage.
### Response:
0
### Explanation:
11. No doubt, the views ofin respect of averments and allegations in the FIR were in the context of a prayer to quash the FIR itself but in the facts of this case those findings and observations are still relevant and they do not support the contentions on behalf of the appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the appellants in their defence in accordance with law for due consideration at appropriate stage.12. Learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint discloses a criminal offence or not. This proposition is supported by several judgments of this Court as noted in paragraph 16 of judgment in the case of RavindraKumar Madhanlal Goenka and Another vs. Rugmini Ram Raghav Spinners Private Limited (2009) 11 SCC 529 ).13. Onthe facts ofthe present case it is found that the facts were properly noticed byon earlier occasion whileon preferred by the appellants for quashing of FIR of this case. The same view has been reiterated byrt in theorder under appeal for not interfering with the order of cognizance by the learned Magistrate. Hence, we do not find any good ground to interfere with the criminal proceedings against the appellants at this stage.
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Anar Devi (D) through LR Vs. Vasudev Mangal Etc. Etc | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 11.08.2020 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur in the respective writ petitions, by which the High Court has partly allowed the writ petitions preferred by the respondents herein – judgment debtors and has dismissed the writ petitions preferred by the judgment creditor and has reduced the amount of mesne profits during the pendency of the first appeals before the first appellate court, the original judgment creditor has preferred the present appeals. 2. That the appellant herein instituted four different suits against the respective respondents for recovery of possession of the disputed suit property. It was the case on behalf of the original plaintiff that the respondents were in possession of four different portions of her residential house as licensee and that she was entitled for restoration of possession as well as mesne profits on termination of their licence. All the four suits came to be decreed by the learned trial Court vide common judgment and decree dated 27.11.2019. 2.1 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, the original defendants – respondents herein have preferred appeals before the first appellate court. They also filed applications to stay the common judgment and decree dated 27.11.2019 passed by the learned trial Court, during the pendency of the first appeals. Vide order dated 12.02.2020, while staying the execution of the judgment and decree dated 27.11.2019, the first appellate court directed the respondents herein – original defendants to pay mesne profits at different rates as under: Name of the Tenant/Respondent Mesne Profit fixed by the First Appellate Court 1. Vasudev Mangal Rs. 10,000/- 2. Mohan Lal Mangal Rs. 5,500/- 3. Chimman Lal Rs. 3,000/- 4. Shyamlal Mangal Rs. 7,000/- Total Rs. 25,500/- 2.2 Feeling aggrieved and dissatisfied with the respective orders passed by the first appellate court directing the judgment debtors – defendants – appellants before the first appellate court to pay mesne profits as above, the appellant herein preferred writ petitions before the High Court to enhance the amount of mesne profits. The original appellants – respondents herein also preferred writ petitions challenging the amount of mesne profits determined by the first appellate court. By the impugned common judgment and order, the High Court has allowed in part the writ petitions preferred by the original appellants – respondents herein and has reduced the amount of mesne profits as under: Name of the Tenant/Respondent Mesne Profit modified by the High Court 1. Vasudev Mangal Rs. 4,000/- 2. Mohan Lal Mangal Rs. 3,300/- 3. Chimman Lal Rs. 1,500/- 4. Shyamlal Mangal Rs. 4,000/- Total Rs. 12,800/- Consequently, the writ petitions preferred by the appellant herein to enhance the amount of mesne profits have been dismissed. 2.3 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court in reducing the amount of mesne profits, the legal representative of judgment creditor – original plaintiff has preferred the present appeals. 3. We have heard learned counsel for the respective parties at length. 4. From the impugned common judgment and order passed by the High Court, it appears that while reducing the amount of mesne profits, what has weighed with the High Court is that the premises is residential, being used for residential purposes and the construction is about 100 years old and that the report of the approved valuer dated 9.2.2020 was with respect to commercial premises. The High Court has thereafter considered the DLC rate. However, the High Court has not at all considered the market rate as per the current potential of the suit property. The High Court has mechanically reduced the mesne profits to 50%. Even if the valuers report was for commercial use/commercial property, in that case also, the mesne profits could not have been reduced by 50%. | 1[ds]4. From the impugned common judgment and order passed by the High Court, it appears that while reducing the amount of mesne profits, what has weighed with the High Court is that the premises is residential, being used for residential purposes and the construction is about 100 years old and that the report of the approved valuer dated 9.2.2020 was with respect to commercial premises. The High Court has thereafter considered the DLC rate. However, the High Court has not at all considered the market rate as per the current potential of the suit property. The High Court has mechanically reduced the mesne profits to 50%. Even if the valuers report was for commercial use/commercial property, in that case also, the mesne profits could not have been reduced by 50%. | 1 | 711 | 148 | ### 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:
M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 11.08.2020 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur in the respective writ petitions, by which the High Court has partly allowed the writ petitions preferred by the respondents herein – judgment debtors and has dismissed the writ petitions preferred by the judgment creditor and has reduced the amount of mesne profits during the pendency of the first appeals before the first appellate court, the original judgment creditor has preferred the present appeals. 2. That the appellant herein instituted four different suits against the respective respondents for recovery of possession of the disputed suit property. It was the case on behalf of the original plaintiff that the respondents were in possession of four different portions of her residential house as licensee and that she was entitled for restoration of possession as well as mesne profits on termination of their licence. All the four suits came to be decreed by the learned trial Court vide common judgment and decree dated 27.11.2019. 2.1 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, the original defendants – respondents herein have preferred appeals before the first appellate court. They also filed applications to stay the common judgment and decree dated 27.11.2019 passed by the learned trial Court, during the pendency of the first appeals. Vide order dated 12.02.2020, while staying the execution of the judgment and decree dated 27.11.2019, the first appellate court directed the respondents herein – original defendants to pay mesne profits at different rates as under: Name of the Tenant/Respondent Mesne Profit fixed by the First Appellate Court 1. Vasudev Mangal Rs. 10,000/- 2. Mohan Lal Mangal Rs. 5,500/- 3. Chimman Lal Rs. 3,000/- 4. Shyamlal Mangal Rs. 7,000/- Total Rs. 25,500/- 2.2 Feeling aggrieved and dissatisfied with the respective orders passed by the first appellate court directing the judgment debtors – defendants – appellants before the first appellate court to pay mesne profits as above, the appellant herein preferred writ petitions before the High Court to enhance the amount of mesne profits. The original appellants – respondents herein also preferred writ petitions challenging the amount of mesne profits determined by the first appellate court. By the impugned common judgment and order, the High Court has allowed in part the writ petitions preferred by the original appellants – respondents herein and has reduced the amount of mesne profits as under: Name of the Tenant/Respondent Mesne Profit modified by the High Court 1. Vasudev Mangal Rs. 4,000/- 2. Mohan Lal Mangal Rs. 3,300/- 3. Chimman Lal Rs. 1,500/- 4. Shyamlal Mangal Rs. 4,000/- Total Rs. 12,800/- Consequently, the writ petitions preferred by the appellant herein to enhance the amount of mesne profits have been dismissed. 2.3 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court in reducing the amount of mesne profits, the legal representative of judgment creditor – original plaintiff has preferred the present appeals. 3. We have heard learned counsel for the respective parties at length. 4. From the impugned common judgment and order passed by the High Court, it appears that while reducing the amount of mesne profits, what has weighed with the High Court is that the premises is residential, being used for residential purposes and the construction is about 100 years old and that the report of the approved valuer dated 9.2.2020 was with respect to commercial premises. The High Court has thereafter considered the DLC rate. However, the High Court has not at all considered the market rate as per the current potential of the suit property. The High Court has mechanically reduced the mesne profits to 50%. Even if the valuers report was for commercial use/commercial property, in that case also, the mesne profits could not have been reduced by 50%.
### Response:
1
### Explanation:
4. From the impugned common judgment and order passed by the High Court, it appears that while reducing the amount of mesne profits, what has weighed with the High Court is that the premises is residential, being used for residential purposes and the construction is about 100 years old and that the report of the approved valuer dated 9.2.2020 was with respect to commercial premises. The High Court has thereafter considered the DLC rate. However, the High Court has not at all considered the market rate as per the current potential of the suit property. The High Court has mechanically reduced the mesne profits to 50%. Even if the valuers report was for commercial use/commercial property, in that case also, the mesne profits could not have been reduced by 50%.
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United India Insurance Co. Ltd Vs. M/S. Harchand Rai Chandan Lal | Oriental Insurance Co. Ltd. vs. Samayanallur Primary Agricultural Co-op. Bank reported in AIR 2000 87 SC 10. In this case question came for interpretation of the similar policy, i.e. policy against burglary. The Bank had two insurance policies with the Oriental Insurance Company Ltd. out of which one was cash insurance policy for Rs.1 lakh and the second was a burglary insurance policy for Rs.25 lakhs. The relevant terms of the policy were "3(a) - Are all valuable secured in Burglary resistance safes when Premises are lockedyes(b) If so, state name or maker of safe and costTansi" 11. The answer to the question 3(a) was in positive. The question arose that according to the complaint burglary took place from the cashiers cash box. The surveyors report was that the stolen jewels had not been kept in safe locker an the theft was not covered under burglary insurance policy. Though the District Forum directed the insurance company to pay a sum of Rs.43,729.25 however, the State Commission observed that what is insured is not the contents of the cash box but the jewels kept in the safe which means a safety locker made by Tansi as agreed to in the proposal form. And it was observed that jewels kept in the cashiers cash box which were not covered by the policy. The State forum overruled the order passed by the District Forum. The order passed by the State Commission in revision was reversed by the National Commission. The matter came before this Court in Special Leave Petition by Insurance Company. Their Lordships observed that there was no necessity of referring to the dictionaries for understanding the meaning of the word safe which the parties in the instant case are proved to have understood while submitting the proposal and accepting the insurance policy. The cashiers box could not be equated with the safe within the meaning of the insurance policy. The alleged burglary and the removal of the jewellery from cash box, the cash box was not covered by the insurance policy between the parties. The insurance policy has to be construed having reference only to the stipulations contained in it and no artificial farfetched meaning could be given to the words appearing in it. And, therefore, they set aside the order of the National Commission. 12. Similarly, in the case of Oriental Insurance Co. Ltd vs. Sony Cheriyan reported in (1999) 6 SCC 451 an insurance was taken out under the Motor Vehicles Act, 1988 in which their Lordships observed" "The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy." 13. Similarly in the case of General Assurance Society Ltd vs. Chandumull Jain and Anr. reported in (1966) 3 SCR 500 the Constitution Bench had observed that the policy document being a contract and it has to be read strictly. It was observed, "In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for the and extended to cover flood, cyclone etc. had come into being." 14. Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.15. From the above discussion, we are of the opinion that theft should have preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer.16. However, all the three forums have already awarded compensation and the amount has been paid to the respondent, therefore, on the point of equity we would not like to disturb the payment which has already been made. However, in view of legal position stated by us, the orders of the District Forum, State Commission and the National Commission cannot be upheld.17. But before parting with the case we would like to observe that the terms of the policy as laid down by the Insurance Company should be suitably amended by the Insurance Company so as to make it more viable and facilitate the claimants to make their claim. The definition is so stringent in the present case that it gives rise to difficult situation for the common man to understand that in order to maintain their claim they will have to necessarily show evidence of violence or force. The definition of the word burglary should be given meaning, which is closer to the realities of life. The common man understands that he has taken out the Policy against theft. He hardly understands whether it should precede violence or force. Therefore, a policy should be a meaningful policy so that a common man can understand what is the meaning of burglary in common parlance. Though we have interpreted the present policy strictly in terms of the policy but we hope that the Insurance Companies will amend their policies so as to make them more meaningful to the public at large. It should have the meaning which a common man can easily understand rather than become more technical so as to defeat the cause of the public at large. 18. | 1[ds]Similarly in the case of General Assurance Society Ltd vs. Chandumull Jain and Anr. reported in (1966) 3 SCR 500 the Constitution Bench had observed that the policy document being a contract and it has to be read strictly. It wasinterpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for the and extended to cover flood, cyclone etc. had come into being.Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.15. From the above discussion, we are of the opinion that theft should have preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer.16. However, all the three forums have already awarded compensation and the amount has been paid to the respondent, therefore, on the point of equity we would not like to disturb the payment which has already been made. However, in view of legal position stated by us, the orders of the District Forum, State Commission and the National Commission cannot be upheld.17. But before parting with the case we would like to observe that the terms of the policy as laid down by the Insurance Company should be suitably amended by the Insurance Company so as to make it more viable and facilitate the claimants to make their claim. The definition is so stringent in the present case that it gives rise to difficult situation for the common man to understand that in order to maintain their claim they will have to necessarily show evidence of violence or force. The definition of the word burglary should be given meaning, which is closer to the realities of life. The common man understands that he has taken out the Policy against theft. He hardly understands whether it should precede violence or force. Therefore, a policy should be a meaningful policy so that a common man can understand what is the meaning of burglary in common parlance. Though we have interpreted the present policy strictly in terms of the policy but we hope that the Insurance Companies will amend their policies so as to make them more meaningful to the public at large. It should have the meaning which a common man can easily understand rather than become more technical so as to defeat the cause of the public at large. | 1 | 4,054 | 548 | ### 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:
Oriental Insurance Co. Ltd. vs. Samayanallur Primary Agricultural Co-op. Bank reported in AIR 2000 87 SC 10. In this case question came for interpretation of the similar policy, i.e. policy against burglary. The Bank had two insurance policies with the Oriental Insurance Company Ltd. out of which one was cash insurance policy for Rs.1 lakh and the second was a burglary insurance policy for Rs.25 lakhs. The relevant terms of the policy were "3(a) - Are all valuable secured in Burglary resistance safes when Premises are lockedyes(b) If so, state name or maker of safe and costTansi" 11. The answer to the question 3(a) was in positive. The question arose that according to the complaint burglary took place from the cashiers cash box. The surveyors report was that the stolen jewels had not been kept in safe locker an the theft was not covered under burglary insurance policy. Though the District Forum directed the insurance company to pay a sum of Rs.43,729.25 however, the State Commission observed that what is insured is not the contents of the cash box but the jewels kept in the safe which means a safety locker made by Tansi as agreed to in the proposal form. And it was observed that jewels kept in the cashiers cash box which were not covered by the policy. The State forum overruled the order passed by the District Forum. The order passed by the State Commission in revision was reversed by the National Commission. The matter came before this Court in Special Leave Petition by Insurance Company. Their Lordships observed that there was no necessity of referring to the dictionaries for understanding the meaning of the word safe which the parties in the instant case are proved to have understood while submitting the proposal and accepting the insurance policy. The cashiers box could not be equated with the safe within the meaning of the insurance policy. The alleged burglary and the removal of the jewellery from cash box, the cash box was not covered by the insurance policy between the parties. The insurance policy has to be construed having reference only to the stipulations contained in it and no artificial farfetched meaning could be given to the words appearing in it. And, therefore, they set aside the order of the National Commission. 12. Similarly, in the case of Oriental Insurance Co. Ltd vs. Sony Cheriyan reported in (1999) 6 SCC 451 an insurance was taken out under the Motor Vehicles Act, 1988 in which their Lordships observed" "The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy." 13. Similarly in the case of General Assurance Society Ltd vs. Chandumull Jain and Anr. reported in (1966) 3 SCR 500 the Constitution Bench had observed that the policy document being a contract and it has to be read strictly. It was observed, "In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for the and extended to cover flood, cyclone etc. had come into being." 14. Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.15. From the above discussion, we are of the opinion that theft should have preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer.16. However, all the three forums have already awarded compensation and the amount has been paid to the respondent, therefore, on the point of equity we would not like to disturb the payment which has already been made. However, in view of legal position stated by us, the orders of the District Forum, State Commission and the National Commission cannot be upheld.17. But before parting with the case we would like to observe that the terms of the policy as laid down by the Insurance Company should be suitably amended by the Insurance Company so as to make it more viable and facilitate the claimants to make their claim. The definition is so stringent in the present case that it gives rise to difficult situation for the common man to understand that in order to maintain their claim they will have to necessarily show evidence of violence or force. The definition of the word burglary should be given meaning, which is closer to the realities of life. The common man understands that he has taken out the Policy against theft. He hardly understands whether it should precede violence or force. Therefore, a policy should be a meaningful policy so that a common man can understand what is the meaning of burglary in common parlance. Though we have interpreted the present policy strictly in terms of the policy but we hope that the Insurance Companies will amend their policies so as to make them more meaningful to the public at large. It should have the meaning which a common man can easily understand rather than become more technical so as to defeat the cause of the public at large. 18.
### Response:
1
### Explanation:
Similarly in the case of General Assurance Society Ltd vs. Chandumull Jain and Anr. reported in (1966) 3 SCR 500 the Constitution Bench had observed that the policy document being a contract and it has to be read strictly. It wasinterpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for the and extended to cover flood, cyclone etc. had come into being.Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.15. From the above discussion, we are of the opinion that theft should have preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer.16. However, all the three forums have already awarded compensation and the amount has been paid to the respondent, therefore, on the point of equity we would not like to disturb the payment which has already been made. However, in view of legal position stated by us, the orders of the District Forum, State Commission and the National Commission cannot be upheld.17. But before parting with the case we would like to observe that the terms of the policy as laid down by the Insurance Company should be suitably amended by the Insurance Company so as to make it more viable and facilitate the claimants to make their claim. The definition is so stringent in the present case that it gives rise to difficult situation for the common man to understand that in order to maintain their claim they will have to necessarily show evidence of violence or force. The definition of the word burglary should be given meaning, which is closer to the realities of life. The common man understands that he has taken out the Policy against theft. He hardly understands whether it should precede violence or force. Therefore, a policy should be a meaningful policy so that a common man can understand what is the meaning of burglary in common parlance. Though we have interpreted the present policy strictly in terms of the policy but we hope that the Insurance Companies will amend their policies so as to make them more meaningful to the public at large. It should have the meaning which a common man can easily understand rather than become more technical so as to defeat the cause of the public at large.
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Delhi Cloth & General Mills Co. Ltd Vs. Chief Commissioner, Delhi & Ors | relating to safety. Section 21 deals with fencing of machinery. Section 22 with work on or near machinery in motion and Section 23 with employment of young persons on dangerous machines. The other sections which may be noticed in this Chapter are Section 27 containing the prohibition of employment of women and children near cotton openers; Section 35 in the matter of protection of eyes, Section 36 dealing with precautions against dangerous fumes, Section 37 relating to explosive or inflammable dust, gas etc., and Section 38 relating to precautions in case of fire. Under Section 39 if it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it may be dangerous to human life and safety he may serve on the manager of the factory an order in writing requiring him to furnish the particulars for determining whether the building, machinery, plant etc., can be used with safety or to carry out such tests as may be specified and convey the result thereof to the Inspector. Under Section 40 if it appears to the Inspector that any building or part of a building is in such a condition that it is dangerous to human life or safety he can serve an order on the manager of the factory specifying the measures which should be adopted and requiring him to carry out the same before a specified date. Similarly if it appears to him that the use of any building or machinery or plant involves imminent danger to human life or safety he can serve an order prohibiting its use until it has been properly repaired or altered. Chapter V deals with welfare and provisions are made therein for such amenities as washing facilities for storing and drying clothing, for sitting , first aid appliances, canteens and creches and every factory is required under Section 49 wherein 500 or more workers are ordinarily employed to have such number of welfare officers as may be prescribed. The Rules also contain various provisions where the Inspector has to be consulted and his approval obtained for doing certain things. For instance Rule 65 (3) say that the manager of a factory shall submit for the approval of the Chief Inspector plans of the building to be constructed or adapted for use as a canteen. It is unnecessary to refer to several other provisions contained in the Act and the Rules which show that the Chief Inspector and his staff play a very important role in the working of the factory. 8. In the return which was filed in the High Court to the writ petition it was stated in paragraph 8 that the fees were being charged for the running of the whole establishment including the Factory Inspectorate which in its turn "provides free inspection and expert technical advice etc., to factory owners in matters connected with safety, health, welfare and the allied matters in respect of compliance with the provisions of the Factories Act". It has further been stated the in our country matters relating to health, safety, welfare and employment have to be looked after and the desired results have been sought to be achieved by the legislature by providing statutory inspection service. 9. According to Mr. Gokhale the Inspectors only carry out the duties laid on them under the Act and all that they have to do is to ensure that the statutory provisions and the rules are carried out properly and launch prosecutions against factory owners under the provisions of Chapter X of the Act in case of any breach or default on the part of the factory owners. We do not consider that the functions and duties of the Inspectorate are confined only to the limited task which has been suggested on behalf of the appellant company. A large number of provisions to which reference has been made, particularly in the Chapter dealing with safety, involve a good deal of technical knowledge and in the course of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act. It can well be said that on certain occasions factory owners are bound to receive a good dead of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act. Similarly if a building or a machinery or a plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building or the machinery. Indeed it seems to us that the nature of the work of the Inspector is such that he is to render as much, if not more service than a Commissioner would, in the matter of supervision, regulation and control over the way in which the management of the trustees of religious and charitable endowment was concerned. The High Court further found, which finding being of fact, must be considered as final that 60 per cent of the amount of licence fees which were being realized was actually spent on services rendered to the factory owners. It can, therefore, hardly be contended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realisation. Before the High Court the appellant company never made out any case that the collections on account of the licence fee were merged in the general public revenue and were not appropriated in the manner laid down for the appropriation of expenses for the department concerned. | 0[ds]It is difficult to agree. In each case where the question arises whether the levy is in the nature of a fee the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff and the nature of work done by them will have to be examined for the purpose of determining the rendering of the services which would make the levy a fee. It is quite apparent that in the Liberty Cinema case it was found that no service of any kind was being or could be rendered and for that reason the levy was held to be a tax and not a fee. In our judgment the present case falls within the other class of cases to which reference has been made in which contributions for the purpose of maintaining an authority and the staff for supervising and controlling public institutions like Maths etc., were held to be fee and not taxWe do not consider that the functions and duties of the Inspectorate are confined only to the limited task which has been suggested on behalf of the appellant company. A large number of provisions to which reference has been made, particularly in the Chapter dealing with safety, involve a good deal of technical knowledge and in the course of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act. It can well be said that on certain occasions factory owners are bound to receive a good dead of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act. Similarly if a building or a machinery or a plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building or the machinery. Indeed it seems to us that the nature of the work of the Inspector is such that he is to render as much, if not more service than a Commissioner would, in the matter of supervision, regulation and control over the way in which the management of the trustees of religious and charitable endowment was concerned. The High Court further found, which finding being of fact, must be considered as final that 60 per cent of the amount of licence fees which were being realized was actually spent on services rendered to the factory owners. It can, therefore, hardly be contended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realisation. Before the High Court the appellant company never made out any case that the collections on account of the licence fee were merged in the general public revenue and were not appropriated in the manner laid down for the appropriation of expenses for the department concerne | 0 | 2,777 | 562 | ### 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:
relating to safety. Section 21 deals with fencing of machinery. Section 22 with work on or near machinery in motion and Section 23 with employment of young persons on dangerous machines. The other sections which may be noticed in this Chapter are Section 27 containing the prohibition of employment of women and children near cotton openers; Section 35 in the matter of protection of eyes, Section 36 dealing with precautions against dangerous fumes, Section 37 relating to explosive or inflammable dust, gas etc., and Section 38 relating to precautions in case of fire. Under Section 39 if it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it may be dangerous to human life and safety he may serve on the manager of the factory an order in writing requiring him to furnish the particulars for determining whether the building, machinery, plant etc., can be used with safety or to carry out such tests as may be specified and convey the result thereof to the Inspector. Under Section 40 if it appears to the Inspector that any building or part of a building is in such a condition that it is dangerous to human life or safety he can serve an order on the manager of the factory specifying the measures which should be adopted and requiring him to carry out the same before a specified date. Similarly if it appears to him that the use of any building or machinery or plant involves imminent danger to human life or safety he can serve an order prohibiting its use until it has been properly repaired or altered. Chapter V deals with welfare and provisions are made therein for such amenities as washing facilities for storing and drying clothing, for sitting , first aid appliances, canteens and creches and every factory is required under Section 49 wherein 500 or more workers are ordinarily employed to have such number of welfare officers as may be prescribed. The Rules also contain various provisions where the Inspector has to be consulted and his approval obtained for doing certain things. For instance Rule 65 (3) say that the manager of a factory shall submit for the approval of the Chief Inspector plans of the building to be constructed or adapted for use as a canteen. It is unnecessary to refer to several other provisions contained in the Act and the Rules which show that the Chief Inspector and his staff play a very important role in the working of the factory. 8. In the return which was filed in the High Court to the writ petition it was stated in paragraph 8 that the fees were being charged for the running of the whole establishment including the Factory Inspectorate which in its turn "provides free inspection and expert technical advice etc., to factory owners in matters connected with safety, health, welfare and the allied matters in respect of compliance with the provisions of the Factories Act". It has further been stated the in our country matters relating to health, safety, welfare and employment have to be looked after and the desired results have been sought to be achieved by the legislature by providing statutory inspection service. 9. According to Mr. Gokhale the Inspectors only carry out the duties laid on them under the Act and all that they have to do is to ensure that the statutory provisions and the rules are carried out properly and launch prosecutions against factory owners under the provisions of Chapter X of the Act in case of any breach or default on the part of the factory owners. We do not consider that the functions and duties of the Inspectorate are confined only to the limited task which has been suggested on behalf of the appellant company. A large number of provisions to which reference has been made, particularly in the Chapter dealing with safety, involve a good deal of technical knowledge and in the course of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act. It can well be said that on certain occasions factory owners are bound to receive a good dead of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act. Similarly if a building or a machinery or a plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building or the machinery. Indeed it seems to us that the nature of the work of the Inspector is such that he is to render as much, if not more service than a Commissioner would, in the matter of supervision, regulation and control over the way in which the management of the trustees of religious and charitable endowment was concerned. The High Court further found, which finding being of fact, must be considered as final that 60 per cent of the amount of licence fees which were being realized was actually spent on services rendered to the factory owners. It can, therefore, hardly be contended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realisation. Before the High Court the appellant company never made out any case that the collections on account of the licence fee were merged in the general public revenue and were not appropriated in the manner laid down for the appropriation of expenses for the department concerned.
### Response:
0
### Explanation:
It is difficult to agree. In each case where the question arises whether the levy is in the nature of a fee the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff and the nature of work done by them will have to be examined for the purpose of determining the rendering of the services which would make the levy a fee. It is quite apparent that in the Liberty Cinema case it was found that no service of any kind was being or could be rendered and for that reason the levy was held to be a tax and not a fee. In our judgment the present case falls within the other class of cases to which reference has been made in which contributions for the purpose of maintaining an authority and the staff for supervising and controlling public institutions like Maths etc., were held to be fee and not taxWe do not consider that the functions and duties of the Inspectorate are confined only to the limited task which has been suggested on behalf of the appellant company. A large number of provisions to which reference has been made, particularly in the Chapter dealing with safety, involve a good deal of technical knowledge and in the course of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act. It can well be said that on certain occasions factory owners are bound to receive a good dead of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act. Similarly if a building or a machinery or a plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building or the machinery. Indeed it seems to us that the nature of the work of the Inspector is such that he is to render as much, if not more service than a Commissioner would, in the matter of supervision, regulation and control over the way in which the management of the trustees of religious and charitable endowment was concerned. The High Court further found, which finding being of fact, must be considered as final that 60 per cent of the amount of licence fees which were being realized was actually spent on services rendered to the factory owners. It can, therefore, hardly be contended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realisation. Before the High Court the appellant company never made out any case that the collections on account of the licence fee were merged in the general public revenue and were not appropriated in the manner laid down for the appropriation of expenses for the department concerne
|
KAY BOUVET ENGINEERING LTD Vs. OVERSEAS INFRASTRUCTURE ALLIANCE (INDIA) PRIVATE LIMITED | TABLE 2. The breakup of the disbursement made as follows:- TABLE 3. Please confirm receipt of the credit. [emphasis supplied] 27. It will further be relevant to refer to the communication addressed by Overseas of the same date to Mashkour:- We have been paid the advance amount to 10.05 million USD in INR by Exim Bank because of Stringent Sanction entrancement by the United State Office of Foreign asset Control (OFAC) as per the letter enclosed herewith. The amount has been delivered to us @ Rs.44.37 per disbursement advice of the Exim bank attached herewith. Further OIA will release payment of USD 10.62 Million to Kay Bouvet on Submission of Advance Bank Guarantee and Performance Bank Guarantee to Mashkour Sugar Company and its confirmation and acceptance by Mashkour Sugar Company and discharge of OIA Bank Guarantee of USD 7.5 Million (As per mail dated 29.03.2011) of Mr. Ghodgankar. [emphasis supplied] 28. The communication dated 28th July 2011, addressed by Mashkour to Overseas would further clarify the position which reads thus:- We are please to inform you that nominated sub-contractor messres Kay Bouvet Engineering Private Limited has submitted Advance Payment Bank Guarantee as well as Performance Bank Guarantee to us as per the sub-contract agreement and we are satisfied with the same. In the light of the above we request your good self to release the 10% of the Sub- contract value as per letter dated 21.04.2011 addressed to Mashkour. The payment to be released as under:- Name of the Beneficiary : M/s Kay Bouvet Engineering Private Ltd. Name of Bank : M/s Bank of Maharashtra, Satara, City Branch IFSC Code : MAH80000134 Account No. : 60018168457 Mode of Payment : RTGS + amount of Rs.47,12,10,000/- (Rupees Forty Seven Crores Twelve Lakhs Ten Thousand only) As soon as we get confirmation from your side regarding release of payment we shall release your Bank Guarantee USD 7.5 Million. As I discussed today with Mr. Suresh I will be in India with original discharge bank Guarantee in the beginning of last week. [emphasis supplied] 29. As already discussed hereinabove that Kay Bouvet had certain grievances with regard to payment of less money on account of exchange rate, the communication dated 21st September 2011, addressed by Kay Bouvet to Mashkour would clarify the said position which reads thus:- We have been paid Rs.47,12,10,000/- by M/s. Overseas Infrastructure Alliance (India) Ltd. On 30th August 2011 equivalent to USD 10.62 Million converted 1 USD @ Rs.44.37/-, whereas on that day the conversion rate as per the attached list was 1 USD – Rs.46.26/-, so the amount would have been Rs.49,12,08,012/-, so they have underpaid a sum of Rs.1,99,98,012/-. So you are requested to advise OIA to release amount of Rs.1,99,98,012/- to us without any delay. 30. The last nail in the case of the Overseas would be in the nature of communication addressed by the Ambassador of Sudan to Mashkour dated 25th April 2017, which reads thus:- With reference to the earlier correspondence, we have received the DO No. 1425/Secy(ER)/2017 dated 18th April, 2017 from Mr. Amar Sinha, Secretary (Economic Relations) Ministry of External Affairs, Government of India, New Delhi, India expediting the termination of the agreement with Overseas Infrastructure Alliance (India) Private Limited (OIA) and that an agreement be signed with Kay Bouvet Engineering Ltd. (KBEL) as a direct contractor for the unutilized portion of the GOIs Line of Credit for US Dollars 150,000,000 for the Mashkour Sugar Project. It is on the record that a sum of Rs.47,12,10,000/- (US $ 10.62 Million) was paid by OIA to Kay Bouvet Engineering Ltd. KBEL on behalf of Mashkour Sugar Company from the funds released to OIA by Exim Bank from the 1st disbursed tranche of US $ 25 Million. Kindly make a note, while signing the revised contract with KBEL that the above mentioned amount of US Dollars 10.62 shall be adjusted by Kay Bouvet Engineering Ltd. against the supplies to be made to Mashkour Sugar Company Ltd. for the purpose of completing the project. Naturally, it should be borne in mind that the termination of OIA contract with Mashkour should not absolve them of any liability for the balance of the LoC 1st tranche of 25 Million disbursed to them, other than the US Dollars 10.62 already paid to KBEL and which will be adjusted when a contract is signed with KBEL as a main contractor. [emphasis supplied] 31. It is thus abundantly clear that the case of Kay Bouvet that the amount of Rs.47,12,10,000/- which was paid to it by Overseas, was paid on behalf of Mashkour from the funds released to Overseas by Exim Bank on behalf of Mashkour, cannot be said to be a dispute which is spurious, illusory or not supported by the evidence placed on record. The material placed on record amply clarifies that the initial payment which was made to Kay Bouvet as a sub-Contractor by Overseas who was a Contractor, was made on behalf of Mashkour and from the funds received by Overseas from Mashkour. It will also be clear that when a new contract was entered into between Mashkour and Kay Bouvet directly, Mashkour had directed the said amount of Rs.47,12,10,000/- to be adjusted against the supplies to be made to Mashkour Sugar Company Ltd. for the purpose of completing the Project. On the contrary, the documents clarify that the termination of the contract with Overseas would not absolve Overseas of any liability for the balance of the LoC 1st tranche of 25 Million disbursed to them other than USD 10.62 paid to Kay Bouvet. 32. In these circumstances, we find that NCLT had rightly rejected the application of Overseas after finding that there existed a dispute between Kay Bouvet and Overseas and as such, an order under Section 9 of the IBC would not have been passed. We find that NCLAT has patently misinterpreted the factual as well as legal position and erred in reversing the order of NCLT and directing admission of Section 9 petition. | 1[ds]13. Perusal of the aforesaid provisions would reveal that an Operational Creditor, on the occurrence of default, is required to deliver a Demand Notice of unpaid Operational Debt or a copy of invoice, demanding payment of amount involved in the default to the Corporate Debtor in such form and manner as may be prescribed. Within 10 days of the receipt of such Demand Notice or copy of invoice, the Corporate Debtor is required to either bring to the notice of the Operational Creditor existence of a dispute or to make the payment of unpaid Operational Debt in the manner as may be prescribed. Thereafter, as per the provisions of Section 9 of the IBC, after the expiry of the period of 10 days from the date of delivery of notice or invoice demanding payment under sub-section (1) of Section 8 and if the Operational Creditor does not receive payment from the Corporate Debtor or notice of the dispute under sub-section (2) of Section 8 of the IBC, the Operational Creditor is entitled to file an application before the adjudicating authority for initiating the Corporate Insolvency Resolution Process.14. The issue is no more res integra. It will be relevant to refer to paragraph 38 of the judgment of this Court in the case of Mobilox Innovations Private Limited v. Kirusa Software Private Limited (2018) 1 SCC 353 :-38. It is, thus, clear that so far as an operational creditor is concerned, a demand notice of an unpaid operational debt or copy of an invoice demanding payment of the amount involved must be delivered in the prescribed form. The corporate debtor is then given a period of 10 days from the receipt of the demand notice or copy of the invoice to bring to the notice of the operational creditor the existence of a dispute, if any. We have also seen the notes on clauses annexed to the Insolvency and Bankruptcy Bill of 2015, in which the existence of a dispute alone is mentioned. Even otherwise, the word and occurring in Section 8(2)(a) must be read as or keeping in mind the legislative intent and the fact that an anomalous situation would arise if it is not read as or. If read as and, disputes would only stave off the bankruptcy process if they are already pending in a suit or arbitration proceedings and not otherwise. This would lead to great hardship; in that a dispute may arise a few days before triggering of the insolvency process, in which case, though a dispute may exist, there is no time to approach either an Arbitral Tribunal or a court. Further, given the fact that long limitation periods are allowed, where disputes may arise and do not reach an Arbitral Tribunal or a court for up to three years, such persons would be outside the purview of Section 8(2) leading to bankruptcy proceedings commencing against them. Such an anomaly cannot possibly have been intended by the legislature nor has it so been intended. We have also seen that one of the objects of the Code qua operational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It is for this reason that it is enough that a dispute exists between the parties.15. It could thus be seen that this Court has held that one of the objects of the IBC qua operational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It has been held that it is for this reason that it is enough that a dispute exists between the parties.17. It is thus clear that once the Operational Creditor has filed an application which is otherwise complete, the adjudicating authority has to reject the application under Section 9(5)(ii)(d) of IBC, if a notice has been received by Operational Creditor or if there is a record of dispute in the information utility. What is required is that the notice by the Corporate Debtor must bring to the notice of Operational Creditor the existence of a dispute or the fact that a suit or arbitration proceedings relating to a dispute is pending between the parties. All that the adjudicating authority is required to see at this stage is, whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is a mere bluster. It has been held that however, at this stage, the Court is not required to be satisfied as to whether the defence is likely to succeed or not. The Court also cannot go into the merits of the dispute except to the extent indicated hereinabove. It has been held that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has no other option but to reject the application.18. In the light of the law laid down by this Court stated hereinabove, we will have to examine the facts of the present case. We clarify that though arguments have been advanced at the Bar with regard to the questions as to whether the so-called claim made by Overseas would be considered to be an Operational Debt and as to whether Overseas could be considered to be an Operational Creditor, we do not find it necessary to go into said questions, inasmuch as the present appeal can be decided only on a short question as to whether Kay Bouvet has been in a position to make out the case of existence of dispute or not.22. It can thus be seen that Kay Bouvet has clearly stated that the said amount of Rs.47,12,10,000/- was received as advance money on behalf of Mashkour. It has been specifically stated that in the agreement entered into between Mashkour and Kay Bouvet on 5th July 2017, the said advance payment of Rs.47,12,10,000/- has been duly considered. It is stated that the execution of the fresh contract in favour of Kay Bouvet in no manner creates an automatic liability on Kay Bouvet. As such, Kay Bouvet has pressed into service the existence of dispute for opposing the demand made by Overseas.25. A perusal thereof would clearly reveal that Mashkour was to release payment of two invoices of Overseas for USD 10.5 Million (USD 9.00 Million + USD 1.50 Million). It will further reveal that Overseas was to release payment of USD 10.62 Million to Kay Bouvet on submission of Advance Bank Guarantee and Performance Bank Guarantee to Mashkour and its confirmation and acceptance by Mashkour.31. It is thus abundantly clear that the case of Kay Bouvet that the amount of Rs.47,12,10,000/- which was paid to it by Overseas, was paid on behalf of Mashkour from the funds released to Overseas by Exim Bank on behalf of Mashkour, cannot be said to be a dispute which is spurious, illusory or not supported by the evidence placed on record. The material placed on record amply clarifies that the initial payment which was made to Kay Bouvet as a sub-Contractor by Overseas who was a Contractor, was made on behalf of Mashkour and from the funds received by Overseas from Mashkour. It will also be clear that when a new contract was entered into between Mashkour and Kay Bouvet directly, Mashkour had directed the said amount of Rs.47,12,10,000/- to be adjusted against the supplies to be made to Mashkour Sugar Company Ltd. for the purpose of completing the Project. On the contrary, the documents clarify that the termination of the contract with Overseas would not absolve Overseas of any liability for the balance of the LoC 1st tranche of 25 Million disbursed to them other than USD 10.62 paid to Kay Bouvet.32. In these circumstances, we find that NCLT had rightly rejected the application of Overseas after finding that there existed a dispute between Kay Bouvet and Overseas and as such, an order under Section 9 of the IBC would not have been passed. We find that NCLAT has patently misinterpreted the factual as well as legal position and erred in reversing the order of NCLT and directing admission of Section 9 petition. | 1 | 8,608 | 1,550 | ### 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:
TABLE 2. The breakup of the disbursement made as follows:- TABLE 3. Please confirm receipt of the credit. [emphasis supplied] 27. It will further be relevant to refer to the communication addressed by Overseas of the same date to Mashkour:- We have been paid the advance amount to 10.05 million USD in INR by Exim Bank because of Stringent Sanction entrancement by the United State Office of Foreign asset Control (OFAC) as per the letter enclosed herewith. The amount has been delivered to us @ Rs.44.37 per disbursement advice of the Exim bank attached herewith. Further OIA will release payment of USD 10.62 Million to Kay Bouvet on Submission of Advance Bank Guarantee and Performance Bank Guarantee to Mashkour Sugar Company and its confirmation and acceptance by Mashkour Sugar Company and discharge of OIA Bank Guarantee of USD 7.5 Million (As per mail dated 29.03.2011) of Mr. Ghodgankar. [emphasis supplied] 28. The communication dated 28th July 2011, addressed by Mashkour to Overseas would further clarify the position which reads thus:- We are please to inform you that nominated sub-contractor messres Kay Bouvet Engineering Private Limited has submitted Advance Payment Bank Guarantee as well as Performance Bank Guarantee to us as per the sub-contract agreement and we are satisfied with the same. In the light of the above we request your good self to release the 10% of the Sub- contract value as per letter dated 21.04.2011 addressed to Mashkour. The payment to be released as under:- Name of the Beneficiary : M/s Kay Bouvet Engineering Private Ltd. Name of Bank : M/s Bank of Maharashtra, Satara, City Branch IFSC Code : MAH80000134 Account No. : 60018168457 Mode of Payment : RTGS + amount of Rs.47,12,10,000/- (Rupees Forty Seven Crores Twelve Lakhs Ten Thousand only) As soon as we get confirmation from your side regarding release of payment we shall release your Bank Guarantee USD 7.5 Million. As I discussed today with Mr. Suresh I will be in India with original discharge bank Guarantee in the beginning of last week. [emphasis supplied] 29. As already discussed hereinabove that Kay Bouvet had certain grievances with regard to payment of less money on account of exchange rate, the communication dated 21st September 2011, addressed by Kay Bouvet to Mashkour would clarify the said position which reads thus:- We have been paid Rs.47,12,10,000/- by M/s. Overseas Infrastructure Alliance (India) Ltd. On 30th August 2011 equivalent to USD 10.62 Million converted 1 USD @ Rs.44.37/-, whereas on that day the conversion rate as per the attached list was 1 USD – Rs.46.26/-, so the amount would have been Rs.49,12,08,012/-, so they have underpaid a sum of Rs.1,99,98,012/-. So you are requested to advise OIA to release amount of Rs.1,99,98,012/- to us without any delay. 30. The last nail in the case of the Overseas would be in the nature of communication addressed by the Ambassador of Sudan to Mashkour dated 25th April 2017, which reads thus:- With reference to the earlier correspondence, we have received the DO No. 1425/Secy(ER)/2017 dated 18th April, 2017 from Mr. Amar Sinha, Secretary (Economic Relations) Ministry of External Affairs, Government of India, New Delhi, India expediting the termination of the agreement with Overseas Infrastructure Alliance (India) Private Limited (OIA) and that an agreement be signed with Kay Bouvet Engineering Ltd. (KBEL) as a direct contractor for the unutilized portion of the GOIs Line of Credit for US Dollars 150,000,000 for the Mashkour Sugar Project. It is on the record that a sum of Rs.47,12,10,000/- (US $ 10.62 Million) was paid by OIA to Kay Bouvet Engineering Ltd. KBEL on behalf of Mashkour Sugar Company from the funds released to OIA by Exim Bank from the 1st disbursed tranche of US $ 25 Million. Kindly make a note, while signing the revised contract with KBEL that the above mentioned amount of US Dollars 10.62 shall be adjusted by Kay Bouvet Engineering Ltd. against the supplies to be made to Mashkour Sugar Company Ltd. for the purpose of completing the project. Naturally, it should be borne in mind that the termination of OIA contract with Mashkour should not absolve them of any liability for the balance of the LoC 1st tranche of 25 Million disbursed to them, other than the US Dollars 10.62 already paid to KBEL and which will be adjusted when a contract is signed with KBEL as a main contractor. [emphasis supplied] 31. It is thus abundantly clear that the case of Kay Bouvet that the amount of Rs.47,12,10,000/- which was paid to it by Overseas, was paid on behalf of Mashkour from the funds released to Overseas by Exim Bank on behalf of Mashkour, cannot be said to be a dispute which is spurious, illusory or not supported by the evidence placed on record. The material placed on record amply clarifies that the initial payment which was made to Kay Bouvet as a sub-Contractor by Overseas who was a Contractor, was made on behalf of Mashkour and from the funds received by Overseas from Mashkour. It will also be clear that when a new contract was entered into between Mashkour and Kay Bouvet directly, Mashkour had directed the said amount of Rs.47,12,10,000/- to be adjusted against the supplies to be made to Mashkour Sugar Company Ltd. for the purpose of completing the Project. On the contrary, the documents clarify that the termination of the contract with Overseas would not absolve Overseas of any liability for the balance of the LoC 1st tranche of 25 Million disbursed to them other than USD 10.62 paid to Kay Bouvet. 32. In these circumstances, we find that NCLT had rightly rejected the application of Overseas after finding that there existed a dispute between Kay Bouvet and Overseas and as such, an order under Section 9 of the IBC would not have been passed. We find that NCLAT has patently misinterpreted the factual as well as legal position and erred in reversing the order of NCLT and directing admission of Section 9 petition.
### Response:
1
### Explanation:
Tribunal or a court. Further, given the fact that long limitation periods are allowed, where disputes may arise and do not reach an Arbitral Tribunal or a court for up to three years, such persons would be outside the purview of Section 8(2) leading to bankruptcy proceedings commencing against them. Such an anomaly cannot possibly have been intended by the legislature nor has it so been intended. We have also seen that one of the objects of the Code qua operational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It is for this reason that it is enough that a dispute exists between the parties.15. It could thus be seen that this Court has held that one of the objects of the IBC qua operational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It has been held that it is for this reason that it is enough that a dispute exists between the parties.17. It is thus clear that once the Operational Creditor has filed an application which is otherwise complete, the adjudicating authority has to reject the application under Section 9(5)(ii)(d) of IBC, if a notice has been received by Operational Creditor or if there is a record of dispute in the information utility. What is required is that the notice by the Corporate Debtor must bring to the notice of Operational Creditor the existence of a dispute or the fact that a suit or arbitration proceedings relating to a dispute is pending between the parties. All that the adjudicating authority is required to see at this stage is, whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is a mere bluster. It has been held that however, at this stage, the Court is not required to be satisfied as to whether the defence is likely to succeed or not. The Court also cannot go into the merits of the dispute except to the extent indicated hereinabove. It has been held that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has no other option but to reject the application.18. In the light of the law laid down by this Court stated hereinabove, we will have to examine the facts of the present case. We clarify that though arguments have been advanced at the Bar with regard to the questions as to whether the so-called claim made by Overseas would be considered to be an Operational Debt and as to whether Overseas could be considered to be an Operational Creditor, we do not find it necessary to go into said questions, inasmuch as the present appeal can be decided only on a short question as to whether Kay Bouvet has been in a position to make out the case of existence of dispute or not.22. It can thus be seen that Kay Bouvet has clearly stated that the said amount of Rs.47,12,10,000/- was received as advance money on behalf of Mashkour. It has been specifically stated that in the agreement entered into between Mashkour and Kay Bouvet on 5th July 2017, the said advance payment of Rs.47,12,10,000/- has been duly considered. It is stated that the execution of the fresh contract in favour of Kay Bouvet in no manner creates an automatic liability on Kay Bouvet. As such, Kay Bouvet has pressed into service the existence of dispute for opposing the demand made by Overseas.25. A perusal thereof would clearly reveal that Mashkour was to release payment of two invoices of Overseas for USD 10.5 Million (USD 9.00 Million + USD 1.50 Million). It will further reveal that Overseas was to release payment of USD 10.62 Million to Kay Bouvet on submission of Advance Bank Guarantee and Performance Bank Guarantee to Mashkour and its confirmation and acceptance by Mashkour.31. It is thus abundantly clear that the case of Kay Bouvet that the amount of Rs.47,12,10,000/- which was paid to it by Overseas, was paid on behalf of Mashkour from the funds released to Overseas by Exim Bank on behalf of Mashkour, cannot be said to be a dispute which is spurious, illusory or not supported by the evidence placed on record. The material placed on record amply clarifies that the initial payment which was made to Kay Bouvet as a sub-Contractor by Overseas who was a Contractor, was made on behalf of Mashkour and from the funds received by Overseas from Mashkour. It will also be clear that when a new contract was entered into between Mashkour and Kay Bouvet directly, Mashkour had directed the said amount of Rs.47,12,10,000/- to be adjusted against the supplies to be made to Mashkour Sugar Company Ltd. for the purpose of completing the Project. On the contrary, the documents clarify that the termination of the contract with Overseas would not absolve Overseas of any liability for the balance of the LoC 1st tranche of 25 Million disbursed to them other than USD 10.62 paid to Kay Bouvet.32. In these circumstances, we find that NCLT had rightly rejected the application of Overseas after finding that there existed a dispute between Kay Bouvet and Overseas and as such, an order under Section 9 of the IBC would not have been passed. We find that NCLAT has patently misinterpreted the factual as well as legal position and erred in reversing the order of NCLT and directing admission of Section 9 petition.
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Erin Estate, Galah, Ceylon Vs. Commissioner of Income Tax, Madras | stated there. In other words, the superintendent was asked to confine the purchase of the tea within the limits mentioned in the estimate which had been approved. It appears that, on receiving the opinion of the superintendent about the complaint made by Periasamy in regard to his salary, the superintendent was told to pay him Rs. 2 more per month. This no doubt is a small item but it shows that even where the salary of a clerk had to be increased by Rs. 2, the clerk made a representation to the partner, the partner called for the opinion of the superintendent and, on considering the representation and the opinion together, the partner directed the superintendent to pay the clerk Rs. 2 more per month. By his letter dated July 11, 1940, Andiappa Pillai directed the superintendent as to how the garden income should be adjusted. One in six months Rs. 7,500 to Rs. 10,000 should be retained as reserve and the balance distributed amongst the partners in proportion to their shares. That is the direction given. Then the superintendent is told to engage labourers and to sane Vaidyalingam and the labourers to cut the wild plant growth in both the said garden and Konangodai garden. Certain other directions as to the work to be assigned to the other clerks are also given. On July 13, 1940, Andiappa Pillai told the superintendent to pack and send 70 lbs. F. B. O. P. tea and suggested that, if the tea had not been sent already to Veerappa Pillai, he should carry out the said instruction. In this letter the superintendent is also asked to enquire from other companies the price of Nevvil and he is told that, having regard to the nature of the current sales of tea, manuring need not be stopped. On July 29, 1940, the superintendent is told as to how the account is to be made in regard to the charges for the guards. On August 8, 1940, Andiappa Pillai tells the superintendent that "when the coupon price goes down purchase for our garden 20,000 lbs. This correspondence shows that the entire control and management of the affairs of the firm had not been left with the superintendent. In regard to the manuring of tea gardens, the salary to be paid to the clerk, the purchase to be made, the expenditure to be incurred in constructing a building, the manner in which the goods should be packed and sent, all these are subjects discussed by the partners in their letters to the superintendent and in respect of all these presumably the superintendent had asked for directions and the partners gave him the directions. Besides, we have already referred to the admission made by Andiappa Pillai that, at the beginning of every year, the superintendent sent to the four important partners a budget concerning important and big matters to be attended to during the course of the year. Having regard to this evidence we are unable to accept the appellants argument that the control and management of the appellants affairs was situated wholly in Ceylon.In dealing with this question it would be relevant to bear in mind that the appellant would not succeed even if it is shown that a part of the control and management of the affairs of the company rested in India. The control and management must no doubt be shown to have been actually exercised; and the exercise of the control and management should not be illusory or merely notional. Once it is shown that control and management in the affairs of the firm was exercised by the partners residing in India, it would not be relevant to enquiry whether the control and management thus exercised amounted to a substantial part of the control and management of the affairs of the firm. The exercise of the control and management even in part in the taxable territories could be enough to fix the appellant with the character of a resident within S. 4A(b).We must accordingly hold that the High Court of Madras was justified in holding that the appellant is a firm resident in the taxable territories.9. Mr. Kolan then raised a further point which had not been urged before the High Court. He contended that the control and management mentioned in S. 4A (b) must be control and management valid and effective in law.Under S. 12 of the Partnership Act, it is only the majority of partners who could have given effective directions to the superintendent and since there is no evidence that the alleged control and management has been exercised by the majority of partners acting in concert it would not be possible to hold that any control and management of the firms affairs resided in India. We do not think there is any substance in this argument. Under S.12 (a), every partner has a right to take part in the conduct of the business and it is only where difference arises as to ordinary matters connected with the business of the firm that the same has to be decided by majority of partners under sub.s.(c) of the said section.It has not been suggested or shown that there was any difference between the partners in regard to the matters covered by the individual partners letters of instruction to the superintendent. Indeed the course of conduct evidenced by these letters shows that Andiappa Pillai who holds the maximum number of individual shares had purported to act for the partnership and usually gave instructions in regard to the conduct and management of the firms affairs. On the record we see no trace of any protest against or disagreement with this conduct of Andiappa Pillai. Besides, it was never suggested during the course of the enquiry before the Income-tax Officers that the directions given by Andiappa Pillai were not valid or effective and had not been agreed upon by the remaining partners. That is why we think this technical point raised by Mr. Kolah must fail. | 0[ds]Having regard to this evidence we are unable to accept the appellants argument that the control and management of the appellants affairs was situated wholly in Ceylon.In dealing with this question it would be relevant to bear in mind that the appellant would not succeed even if it is shown that a part of the control and management of the affairs of the company rested in India. The control and management must no doubt be shown to have been actually exercised; and the exercise of the control and management should not be illusory or merely notional. Once it is shown that control and management in the affairs of the firm was exercised by the partners residing in India, it would not be relevant to enquiry whether the control and management thus exercised amounted to a substantial part of the control and management of the affairs of the firm. The exercise of the control and management even in part in the taxable territories could be enough to fix the appellant with the character of a resident within S. 4A(b).We must accordingly hold that the High Court of Madras was justified in holding that the appellant is a firm resident in the taxable territories.9.Mr. Kolan then raised a further point which had not been urged before the High Court. He contended that the control and management mentioned in S. 4A (b) must be control and management valid and effective inS. 12 of the Partnership Act, it is only the majority of partners who could have given effective directions to the superintendent and since there is no evidence that the alleged control and management has been exercised by the majority of partners acting in concert it would not be possible to hold that any control and management of the firms affairs resided in India. We do not think there is any substance in this argument. Under S.12 (a), every partner has a right to take part in the conduct of the business and it is only where difference arises as to ordinary matters connected with the business of the firm that the same has to be decided by majority of partners under sub.s.(c) of the said section.It has not been suggested or shown that there was any difference between the partners in regard to the matters covered by the individual partners letters of instruction to the superintendent. Indeed the course of conduct evidenced by these letters shows that Andiappa Pillai who holds the maximum number of individual shares had purported to act for the partnership and usually gave instructions in regard to the conduct and management of the firms affairs. On the record we see no trace of any protest against or disagreement with this conduct of Andiappa Pillai. Besides, it was never suggested during the course of the enquiry before theOfficers that the directions given by Andiappa Pillai were not valid or effective and had not been agreed upon by the remaining partners. That is why we think this technical point raised by Mr. Kolah must fail. | 0 | 3,603 | 539 | ### 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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stated there. In other words, the superintendent was asked to confine the purchase of the tea within the limits mentioned in the estimate which had been approved. It appears that, on receiving the opinion of the superintendent about the complaint made by Periasamy in regard to his salary, the superintendent was told to pay him Rs. 2 more per month. This no doubt is a small item but it shows that even where the salary of a clerk had to be increased by Rs. 2, the clerk made a representation to the partner, the partner called for the opinion of the superintendent and, on considering the representation and the opinion together, the partner directed the superintendent to pay the clerk Rs. 2 more per month. By his letter dated July 11, 1940, Andiappa Pillai directed the superintendent as to how the garden income should be adjusted. One in six months Rs. 7,500 to Rs. 10,000 should be retained as reserve and the balance distributed amongst the partners in proportion to their shares. That is the direction given. Then the superintendent is told to engage labourers and to sane Vaidyalingam and the labourers to cut the wild plant growth in both the said garden and Konangodai garden. Certain other directions as to the work to be assigned to the other clerks are also given. On July 13, 1940, Andiappa Pillai told the superintendent to pack and send 70 lbs. F. B. O. P. tea and suggested that, if the tea had not been sent already to Veerappa Pillai, he should carry out the said instruction. In this letter the superintendent is also asked to enquire from other companies the price of Nevvil and he is told that, having regard to the nature of the current sales of tea, manuring need not be stopped. On July 29, 1940, the superintendent is told as to how the account is to be made in regard to the charges for the guards. On August 8, 1940, Andiappa Pillai tells the superintendent that "when the coupon price goes down purchase for our garden 20,000 lbs. This correspondence shows that the entire control and management of the affairs of the firm had not been left with the superintendent. In regard to the manuring of tea gardens, the salary to be paid to the clerk, the purchase to be made, the expenditure to be incurred in constructing a building, the manner in which the goods should be packed and sent, all these are subjects discussed by the partners in their letters to the superintendent and in respect of all these presumably the superintendent had asked for directions and the partners gave him the directions. Besides, we have already referred to the admission made by Andiappa Pillai that, at the beginning of every year, the superintendent sent to the four important partners a budget concerning important and big matters to be attended to during the course of the year. Having regard to this evidence we are unable to accept the appellants argument that the control and management of the appellants affairs was situated wholly in Ceylon.In dealing with this question it would be relevant to bear in mind that the appellant would not succeed even if it is shown that a part of the control and management of the affairs of the company rested in India. The control and management must no doubt be shown to have been actually exercised; and the exercise of the control and management should not be illusory or merely notional. Once it is shown that control and management in the affairs of the firm was exercised by the partners residing in India, it would not be relevant to enquiry whether the control and management thus exercised amounted to a substantial part of the control and management of the affairs of the firm. The exercise of the control and management even in part in the taxable territories could be enough to fix the appellant with the character of a resident within S. 4A(b).We must accordingly hold that the High Court of Madras was justified in holding that the appellant is a firm resident in the taxable territories.9. Mr. Kolan then raised a further point which had not been urged before the High Court. He contended that the control and management mentioned in S. 4A (b) must be control and management valid and effective in law.Under S. 12 of the Partnership Act, it is only the majority of partners who could have given effective directions to the superintendent and since there is no evidence that the alleged control and management has been exercised by the majority of partners acting in concert it would not be possible to hold that any control and management of the firms affairs resided in India. We do not think there is any substance in this argument. Under S.12 (a), every partner has a right to take part in the conduct of the business and it is only where difference arises as to ordinary matters connected with the business of the firm that the same has to be decided by majority of partners under sub.s.(c) of the said section.It has not been suggested or shown that there was any difference between the partners in regard to the matters covered by the individual partners letters of instruction to the superintendent. Indeed the course of conduct evidenced by these letters shows that Andiappa Pillai who holds the maximum number of individual shares had purported to act for the partnership and usually gave instructions in regard to the conduct and management of the firms affairs. On the record we see no trace of any protest against or disagreement with this conduct of Andiappa Pillai. Besides, it was never suggested during the course of the enquiry before the Income-tax Officers that the directions given by Andiappa Pillai were not valid or effective and had not been agreed upon by the remaining partners. That is why we think this technical point raised by Mr. Kolah must fail.
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0
### Explanation:
Having regard to this evidence we are unable to accept the appellants argument that the control and management of the appellants affairs was situated wholly in Ceylon.In dealing with this question it would be relevant to bear in mind that the appellant would not succeed even if it is shown that a part of the control and management of the affairs of the company rested in India. The control and management must no doubt be shown to have been actually exercised; and the exercise of the control and management should not be illusory or merely notional. Once it is shown that control and management in the affairs of the firm was exercised by the partners residing in India, it would not be relevant to enquiry whether the control and management thus exercised amounted to a substantial part of the control and management of the affairs of the firm. The exercise of the control and management even in part in the taxable territories could be enough to fix the appellant with the character of a resident within S. 4A(b).We must accordingly hold that the High Court of Madras was justified in holding that the appellant is a firm resident in the taxable territories.9.Mr. Kolan then raised a further point which had not been urged before the High Court. He contended that the control and management mentioned in S. 4A (b) must be control and management valid and effective inS. 12 of the Partnership Act, it is only the majority of partners who could have given effective directions to the superintendent and since there is no evidence that the alleged control and management has been exercised by the majority of partners acting in concert it would not be possible to hold that any control and management of the firms affairs resided in India. We do not think there is any substance in this argument. Under S.12 (a), every partner has a right to take part in the conduct of the business and it is only where difference arises as to ordinary matters connected with the business of the firm that the same has to be decided by majority of partners under sub.s.(c) of the said section.It has not been suggested or shown that there was any difference between the partners in regard to the matters covered by the individual partners letters of instruction to the superintendent. Indeed the course of conduct evidenced by these letters shows that Andiappa Pillai who holds the maximum number of individual shares had purported to act for the partnership and usually gave instructions in regard to the conduct and management of the firms affairs. On the record we see no trace of any protest against or disagreement with this conduct of Andiappa Pillai. Besides, it was never suggested during the course of the enquiry before theOfficers that the directions given by Andiappa Pillai were not valid or effective and had not been agreed upon by the remaining partners. That is why we think this technical point raised by Mr. Kolah must fail.
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Banarsi Das Ahluwalia Vs. The Chief Controlling Revenue Authority, Delhi | and in which the question about the amount of stamp duty is yet to be decided. It also held that once the Authority has decided the case the fact that proceedings for realisation of duty remain pending would not make the case a pending case. At page 321 of the report the High Court observed that the language of section 57, viz., that "the authority may state any case referred to it under section 56 (2) or otherwise coming to its notice," and " refer such case with its own opinion thereon" made it clear that the reference has to be made at the stage when the case is still pending before it. When the High Courts attention was drawn to the decision in Maharashtra Sugar Mills case, AIR 1950 SC 218 (supra) and AIR 1952 Mad 811 (supra) and ILR (1955) Mad 1037 = (AIR 1955 Mad 304 ) (supra) the High Court distinguished the Maharashtra Sugar Mills case, AIR 1950 SC 218 on the ground that the application for reference made under Sec. 56 (2) to the Collector had not been decided when the Authority was asked to state the case under section 57 (1) and that therefore it was possible to say that the case was still pending. As regards the two Madras decisions the High Court agreed that the reference applied there was after the cases were concluded but observed that the Madras High Court had not examined the question whether reference under section 57 (1) was in such cases competent and that it relied on the decision in Maharashtra Sugar Mills Case, AIR 1950 SC 218 without noticing that in that case reference we applied for while the application asking the Collector to refer the case under Section 56 (2) to the Authority had not been disposed of. In Eastern Manganese and Minerals v. State of West Bengal, AIR 1960 Cal 340 the Calcutta High Court following In re, Cook and Kelvey, ILR 59 Cal 1171 = (AIR 1932 Cal 736) (supra) refused to direct reference on the ground that when an adjudication as to proper stamp has been made under section 31 and the duty is paid without the document having been impounded or when the document is not sent to the Collector under Section 38 (2) there is no case pending before the Authority and the Authority cannot state a case or cannot similarly be asked to state the case. With respect, the reasons given in these two decisions for distinguishing the Maharashtra Sugar Mills Case, AIR 1950 SC 218 (supra) do not seem to be correct. As aforesaid, it is clear from the facts of that case that there was no case pending before the Authority or any other revenue authority and yet mandamus granted by the High Court was confirmed by this Court. Therefore that decision was binding on both the High Courts.9. Whatever may have been the view in the past on the scope of section 57 (1) the position, after the decision in Maharashtra Sugar Mills Case, AIR 1950 SC 218 (supra), is settled that Section 57 (1) imposes a duty on the Authority to state a case when it raises a substantial question of law. As the Privy Council stated in 50 Ind App 227 =(AIR 1923 PC 138) (supra at p. 33 (of Ind App) = (at p. 142 of AIR): "To argue that if the legislature says that a public officer, even a revenue officer, shall do a thing and he without cause or justification refuses to do that thing yet the Specific Relief Act would not be applicable, and there would be no power in the Court to give relief to the subject, is to state a proposition to which their Lordships must refuse assent. It also must now be taken as settled that that duty is not affected by the question whether the case is pending before the Authority or not.The principle underlying the decision is that section 57 affords a remedy to the citizen to have his case referred to the High Court against an order of a revenue authority imposing stamp duty and/or penalty provided the application involves a substantial question of law and imposes a corresponding obligation on the authority to refer it to the High Court for its opinion. Such a right and obligation cannot be construed to depend upon any subsidiary circumstance such as the pendency of the case before the Authority.If the position is as held in (1902) ILR 25 Mad 752 the mere fact that the Collector has determined the duty and closed the case would render nugatory not only the controlling jurisdiction of the Authority but the remedy which sec. 57 (1) gives to the citizen as also the obligation of the Authority to state the case. The difficulty which the learned judges felt in (1902) ILR 25 Mad 752 and repeated in subsequent decisions is not, in our view, a rear one because as soon as a reference is made and the High Court pronounces its judgment the decision of the Authority is at large and the Authority, as required by section 59 (2) would have to dispose of the case in conformity with such judgment. The position therefore is that when a reference has been made to the Authority or the case has otherwise come to his notice, if an application is made under Sec. 57 (1) and it involves a substantial question of law, whether the case is pending or not, the Authority is bound to state the case in compliance with its obligation. The Authority is in a similar position as the Income-tax Tribunal under analogous provisions in the Income-tax Act.10. In our view, the Authority was in error in refusing to state the case and the High Court was equally in error in summarily dismissing the writ petition as the question whether the document was a declaration of trust or was a deed of settlement is a substantial question of law. | 1[ds]Consequently, where a serious question of law was involved there was a duty cast on the Authority to state the case and the citizen had a right to have such a case determined by the High Court. There would be a breach of duty if the Authority failed to appreciate that there was a serious point of law involved and such breach of duty could be enforced by an order under Section 45 of the Specific Reliefrespect, the reasons given in these two decisions for distinguishing the Maharashtra Sugar Mills Case, AIR 1950 SC 218 (supra) do not seem to be correct. As aforesaid, it is clear from the facts of that case that there was no case pending before the Authority or any other revenue authority and yet mandamus granted by the High Court was confirmed by this Court. Therefore that decision was binding on both the High Courts.9. Whatever may have been the view in the past on the scope of section 57 (1) the position, after the decision in Maharashtra Sugar Mills Case, AIR 1950 SC 218 (supra), is settled that Section 57 (1) imposes a duty on the Authority to state a case when it raises a substantial question of law.It will be noticed that when the Assistant Superintendent decided on July 19, 1945 that the document was a mortgage chargeable with the duty of Rs. 56,250 and ordered the Mills to pay the deficit and the penalty the case before him was concluded. In fact he wrote to the Registrar of Companies returning the document that it would be certified by him on payment of the said amounts. The Collector thereafter was requested to recover the two amounts and a demand was also made on the Mills. It is true that the application of the Mills dated February 1, 1945 to the Collector under Section 56 (2) was not decided when the Mills on February 5, 1946 asked the Authority to state the case. But unlike section 57 (1) the Collector under Section 56 (2) may refer the case if he is in doubt. The duty of the Collector not being obligatory, the case was concluded long before the Mills application dated February 5, 1946. In any event as the Collector did not refer the case under Section 56 (2) to the Authority it cannot be said that there was any pending case either before him or the Authority and yet the High Court ordered the Authority to state thealso must now be taken as settled that that duty is not affected by the question whether the case is pending before the Authority or not.The principle underlying the decision is that section 57 affords a remedy to the citizen to have his case referred to the High Court against an order of a revenue authority imposing stamp duty and/or penalty provided the application involves a substantial question of law and imposes a corresponding obligation on the authority to refer it to the High Court for its opinion. Such a right and obligation cannot be construed to depend upon any subsidiary circumstance such as the pendency of the case before the Authority.If the position is as held in (1902) ILR 25 Mad 752 the mere fact that the Collector has determined the duty and closed the case would render nugatory not only the controlling jurisdiction of the Authority but the remedy which sec. 57 (1) gives to the citizen as also the obligation of the Authority to state the case. The difficulty which the learned judges felt in (1902) ILR 25 Mad 752 and repeated in subsequent decisions is not, in our view, a rear one because as soon as a reference is made and the High Court pronounces its judgment the decision of the Authority is at large and the Authority, as required by section 59 (2) would have to dispose of the case in conformity with such judgment. The position therefore is that when a reference has been made to the Authority or the case has otherwise come to his notice, if an application is made under Sec. 57 (1) and it involves a substantial question of law, whether the case is pending or not, the Authority is bound to state the case in compliance with its obligation. The Authority is in a similar position as the Income-tax Tribunal under analogous provisions in the Income-tax Act.10. In our view, the Authority was in error in refusing to state the case and the High Court was equally in error in summarily dismissing the writ petition as the question whether the document was a declaration of trust or was a deed of settlement is a substantial question of | 1 | 4,823 | 851 | ### 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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and in which the question about the amount of stamp duty is yet to be decided. It also held that once the Authority has decided the case the fact that proceedings for realisation of duty remain pending would not make the case a pending case. At page 321 of the report the High Court observed that the language of section 57, viz., that "the authority may state any case referred to it under section 56 (2) or otherwise coming to its notice," and " refer such case with its own opinion thereon" made it clear that the reference has to be made at the stage when the case is still pending before it. When the High Courts attention was drawn to the decision in Maharashtra Sugar Mills case, AIR 1950 SC 218 (supra) and AIR 1952 Mad 811 (supra) and ILR (1955) Mad 1037 = (AIR 1955 Mad 304 ) (supra) the High Court distinguished the Maharashtra Sugar Mills case, AIR 1950 SC 218 on the ground that the application for reference made under Sec. 56 (2) to the Collector had not been decided when the Authority was asked to state the case under section 57 (1) and that therefore it was possible to say that the case was still pending. As regards the two Madras decisions the High Court agreed that the reference applied there was after the cases were concluded but observed that the Madras High Court had not examined the question whether reference under section 57 (1) was in such cases competent and that it relied on the decision in Maharashtra Sugar Mills Case, AIR 1950 SC 218 without noticing that in that case reference we applied for while the application asking the Collector to refer the case under Section 56 (2) to the Authority had not been disposed of. In Eastern Manganese and Minerals v. State of West Bengal, AIR 1960 Cal 340 the Calcutta High Court following In re, Cook and Kelvey, ILR 59 Cal 1171 = (AIR 1932 Cal 736) (supra) refused to direct reference on the ground that when an adjudication as to proper stamp has been made under section 31 and the duty is paid without the document having been impounded or when the document is not sent to the Collector under Section 38 (2) there is no case pending before the Authority and the Authority cannot state a case or cannot similarly be asked to state the case. With respect, the reasons given in these two decisions for distinguishing the Maharashtra Sugar Mills Case, AIR 1950 SC 218 (supra) do not seem to be correct. As aforesaid, it is clear from the facts of that case that there was no case pending before the Authority or any other revenue authority and yet mandamus granted by the High Court was confirmed by this Court. Therefore that decision was binding on both the High Courts.9. Whatever may have been the view in the past on the scope of section 57 (1) the position, after the decision in Maharashtra Sugar Mills Case, AIR 1950 SC 218 (supra), is settled that Section 57 (1) imposes a duty on the Authority to state a case when it raises a substantial question of law. As the Privy Council stated in 50 Ind App 227 =(AIR 1923 PC 138) (supra at p. 33 (of Ind App) = (at p. 142 of AIR): "To argue that if the legislature says that a public officer, even a revenue officer, shall do a thing and he without cause or justification refuses to do that thing yet the Specific Relief Act would not be applicable, and there would be no power in the Court to give relief to the subject, is to state a proposition to which their Lordships must refuse assent. It also must now be taken as settled that that duty is not affected by the question whether the case is pending before the Authority or not.The principle underlying the decision is that section 57 affords a remedy to the citizen to have his case referred to the High Court against an order of a revenue authority imposing stamp duty and/or penalty provided the application involves a substantial question of law and imposes a corresponding obligation on the authority to refer it to the High Court for its opinion. Such a right and obligation cannot be construed to depend upon any subsidiary circumstance such as the pendency of the case before the Authority.If the position is as held in (1902) ILR 25 Mad 752 the mere fact that the Collector has determined the duty and closed the case would render nugatory not only the controlling jurisdiction of the Authority but the remedy which sec. 57 (1) gives to the citizen as also the obligation of the Authority to state the case. The difficulty which the learned judges felt in (1902) ILR 25 Mad 752 and repeated in subsequent decisions is not, in our view, a rear one because as soon as a reference is made and the High Court pronounces its judgment the decision of the Authority is at large and the Authority, as required by section 59 (2) would have to dispose of the case in conformity with such judgment. The position therefore is that when a reference has been made to the Authority or the case has otherwise come to his notice, if an application is made under Sec. 57 (1) and it involves a substantial question of law, whether the case is pending or not, the Authority is bound to state the case in compliance with its obligation. The Authority is in a similar position as the Income-tax Tribunal under analogous provisions in the Income-tax Act.10. In our view, the Authority was in error in refusing to state the case and the High Court was equally in error in summarily dismissing the writ petition as the question whether the document was a declaration of trust or was a deed of settlement is a substantial question of law.
### Response:
1
### Explanation:
Consequently, where a serious question of law was involved there was a duty cast on the Authority to state the case and the citizen had a right to have such a case determined by the High Court. There would be a breach of duty if the Authority failed to appreciate that there was a serious point of law involved and such breach of duty could be enforced by an order under Section 45 of the Specific Reliefrespect, the reasons given in these two decisions for distinguishing the Maharashtra Sugar Mills Case, AIR 1950 SC 218 (supra) do not seem to be correct. As aforesaid, it is clear from the facts of that case that there was no case pending before the Authority or any other revenue authority and yet mandamus granted by the High Court was confirmed by this Court. Therefore that decision was binding on both the High Courts.9. Whatever may have been the view in the past on the scope of section 57 (1) the position, after the decision in Maharashtra Sugar Mills Case, AIR 1950 SC 218 (supra), is settled that Section 57 (1) imposes a duty on the Authority to state a case when it raises a substantial question of law.It will be noticed that when the Assistant Superintendent decided on July 19, 1945 that the document was a mortgage chargeable with the duty of Rs. 56,250 and ordered the Mills to pay the deficit and the penalty the case before him was concluded. In fact he wrote to the Registrar of Companies returning the document that it would be certified by him on payment of the said amounts. The Collector thereafter was requested to recover the two amounts and a demand was also made on the Mills. It is true that the application of the Mills dated February 1, 1945 to the Collector under Section 56 (2) was not decided when the Mills on February 5, 1946 asked the Authority to state the case. But unlike section 57 (1) the Collector under Section 56 (2) may refer the case if he is in doubt. The duty of the Collector not being obligatory, the case was concluded long before the Mills application dated February 5, 1946. In any event as the Collector did not refer the case under Section 56 (2) to the Authority it cannot be said that there was any pending case either before him or the Authority and yet the High Court ordered the Authority to state thealso must now be taken as settled that that duty is not affected by the question whether the case is pending before the Authority or not.The principle underlying the decision is that section 57 affords a remedy to the citizen to have his case referred to the High Court against an order of a revenue authority imposing stamp duty and/or penalty provided the application involves a substantial question of law and imposes a corresponding obligation on the authority to refer it to the High Court for its opinion. Such a right and obligation cannot be construed to depend upon any subsidiary circumstance such as the pendency of the case before the Authority.If the position is as held in (1902) ILR 25 Mad 752 the mere fact that the Collector has determined the duty and closed the case would render nugatory not only the controlling jurisdiction of the Authority but the remedy which sec. 57 (1) gives to the citizen as also the obligation of the Authority to state the case. The difficulty which the learned judges felt in (1902) ILR 25 Mad 752 and repeated in subsequent decisions is not, in our view, a rear one because as soon as a reference is made and the High Court pronounces its judgment the decision of the Authority is at large and the Authority, as required by section 59 (2) would have to dispose of the case in conformity with such judgment. The position therefore is that when a reference has been made to the Authority or the case has otherwise come to his notice, if an application is made under Sec. 57 (1) and it involves a substantial question of law, whether the case is pending or not, the Authority is bound to state the case in compliance with its obligation. The Authority is in a similar position as the Income-tax Tribunal under analogous provisions in the Income-tax Act.10. In our view, the Authority was in error in refusing to state the case and the High Court was equally in error in summarily dismissing the writ petition as the question whether the document was a declaration of trust or was a deed of settlement is a substantial question of
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M.C. V. S. Arunachala Nadar Etc Vs. The State Of Madras & Others | that the said allowance is not an admissible or a permissible trade allowance prescribed by the bye-law. The question, therefore, is whether the allowance described as mahimai is a trade allowance and if so, whether the allowance is permitted to be received by the Rules or bye-laws made under that section. The relevant provisions may be noticed at this stage. Section 14 says:"No trade allowance, other than an allowance prescribed by rules or by-laws made under this Act, shall be made or received in a notified area by any person in any transaction in respect of the commercial crop or crops concerned and no Civil Court shall, in any suit or proceeding arising out of any such transaction, have regard to any trade allowance not so prescribed. Explanation : Every deduction other than deductions on account of deviation from sample, when the purchase is made by sample, or of deviation from standard, when the purchase is made by reference to a known standard, or on account of difference between the actual weight of the sacking and the standard weight, or on account of the admixture of foreign matter, shall be regarded as a trade allowance for the purposes of this Act. Section 19 : "(1) Subject to any rules made by the State Government under S. 18 and with the previous sanction of the Director of Agriculture, Madras, a market committee may in respect of the notified area for which it was established make by, laws for the regulation of the business and the conditions of trading thereon." By-law 25 : Trade allowance applying to the market and the notified area : (a)............. ............... ................. "(b) Deductions such as mahimaiare prohibited. The weight of alien substance such as mud and stone, it any contained in the lint or kapas borahs or in the bags of groundout pods or kernels shall be deducted." The gist of the aforesaid provisions may be stated thus : Trade allowance cannot be received in any notified area by any person in any transaction in respect of commercial crop or crops. Every deduction in any transaction in respect of the said crop other than those specified in the explanation is trade allowance for the purpose of the Act. A market committee generally may make bylaws for the regulation of the business and conditions of trading therein and particularly it can make by-laws prescribing what are permissible trade allowances under the section. Such allowances as are prescribed by a by-law can be deducted in any transaction notwithstanding the fact that they are trade allowances. The argument of the learned counsel is that that by-law is bad, because the market committee did not name the allowance or allowances taking them out of the prohibition under S. 14 which they are entitled to do under that section, but made the by-law mentioning the mahimai allowance as one not deductible in any transaction. The validity of that part of the by-law prohibiting the deduction of mahimai as trade allowance depends upon the nature of that deduction. If mahimai is not a trade allowance, the said part of the by-law would obviously be invalid as inconsistent with the provisions of S. 14. If, on the other hand, mahimai is a trade allowance, the said part of the by-law will be superfluous, as the allowance falls within the terms of the section itself. This leads us to the question whether mahimai is a trade allowance within the meaning of S. 14 of the Act. 16. What is a trade allowance? Trade involves exchange of commodities for money, the business of buying and selling and the transaction involves the seller, the buyer, the commodity sold and the price paid for the sale. Allowance means something given as compensation, rebate or deduction. Under the section, the said deduction should be in any transaction in respect of commercial crops. The deduction may be out of the commodity or out of the price. The recipient may be the seller, the buyer or a third party. When A sells a quantity of cotton to B for a hundred rupees, B, the purchaser, may deduct one rupee from the sale price and pay ninety nine rupees to A; he may keep that amount for himself or pay the same to C. So too, A the seller, may purport to sell one maund of cotton but in fact deduct a small part of it, retain that part for himself or give it to C; or both A and B may fix the price of the commodity purchased at Rs. 102 but the purchaser pays one rupee to C and the seller retains or pays one rupee to C; or it may be that payments have nothing to do with the price or the transaction, but both the parties pay C a specified amount as consideration for the user of the premises or for the services rendered by him. The question whether a particular payment is a trade allowance or not, depends upon the facts of each case. Firstly, it must be a deduction in any transaction in respect of commercial crops. Ii it is a deduction out of the price or commodity agreed to be paid or transferred, it would be a trade allowance. On the other hand, it the payment is de hors the terms of the transaction but made towards consideration for the use of the premises or services rendered, it would not be a deduction from the price or in any transaction.No material has been placed before us to arrive at a definite finding in the present case whether mahimaiis a deduction from the price or commodity within the meaning of S. 14 of the Act. The learned Judges, having expressed the view that the question did not arise for consideration at that stage, did not also consider any material to support their finding. In the circumstances, the only reasonable course is to leave that question open so that it may be decided in appropriate proceedings. | 0[ds]3. While the object of the Act is to protect the growers, the argument proceeds, the small traders are compelled to resort to distant markets, with the result that some of them would be forced to give up their business and others would have to incur unnecessary expenditure which they could not afford. The Act is an integrated one, and it regulates the buying and selling of commercial crops. If the small traders are exempted, it creates loopholes in the scheme through which the big trader may operate, and thereby the object itself would be defeated. That apart, the second proviso enables the Committee to exempt small traders in appropriate cases. The constitution of the Committee, in which there will be representatives of the traders and the buyers, is a sufficient guarantee against the implementation of the provisions of the Act to the detriment of all concerned. If a packed Committee abuses its powers, there is a further provision to enable the Government to supersede it.We therefore hold that, having regard to the entire scheme of the Act, the impugned provisions of the Act constitute reasonable restrictions on a citizens right to do business, and therefore, they are validWe cannot share the opinion of the learned judges that the question does not arise for decision at this stage. The appellants prayed for issue of a writ of mandamus directing the respondents to forbear from enforcing any or all the provisions of the Act as amended and the Rules and by-laws framed thereunder by the Ramanathapuram Committee; and, the provisions of the Act read with the bye-laws prohibited the collection of mahimai by the appellants. The question whether the bye law prohibiting the collection of mahimai allowance is valid or not does arise directly for consideration in this case. There is also some ambiguity in the conclusion arrived at by the learned Judges of the High CourtThere is considerable force in this argument, but we think that the learned Judges meant only that the said allowance is not an admissible or a permissible trade allowance prescribed by the bye-lawTrade allowance cannot be received in any notified area by any person in any transaction in respect of commercial crop or crops. Every deduction in any transaction in respect of the said crop other than those specified in the explanation is trade allowance for the purpose of the Act. A market committee generally may make bylaws for the regulation of the business and conditions of trading therein and particularly it can make by-laws prescribing what are permissible trade allowances under the section. Such allowances as are prescribed by a by-law can be deducted in any transaction notwithstanding the fact that they are trade allowances. The argument of the learned counsel is that that by-law is bad, because the market committee did not name the allowance or allowances taking them out of the prohibition under S. 14 which they are entitled to do under that section, but made the by-law mentioning the mahimai allowance as one not deductible in any transaction. The validity of that part of the by-law prohibiting the deduction of mahimai as trade allowance depends upon the nature of that deduction. If mahimai is not a trade allowance, the said part of the by-law would obviously be invalid as inconsistent with the provisions of S. 14. If, on the other hand, mahimai is a trade allowance, the said part of the by-law will be superfluous, as the allowance falls within the terms of the section itself. This leads us to the question whether mahimai is a trade allowance within the meaning of S. 14 of the Act16. What is a trade allowance? Trade involves exchange of commodities for money, the business of buying and selling and the transaction involves the seller, the buyer, the commodity sold and the price paid for the sale. Allowance means something given as compensation, rebate or deduction. Under the section, the said deduction should be in any transaction in respect of commercial crops. The deduction may be out of the commodity or out of the price. The recipient may be the seller, the buyer or a third party. When A sells a quantity of cotton to B for a hundred rupees, B, the purchaser, may deduct one rupee from the sale price and pay ninety nine rupees to A; he may keep that amount for himself or pay the same to C. So too, A the seller, may purport to sell one maund of cotton but in fact deduct a small part of it, retain that part for himself or give it to C; or both A and B may fix the price of the commodity purchased at Rs. 102 but the purchaser pays one rupee to C and the seller retains or pays one rupee to C; or it may be that payments have nothing to do with the price or the transaction, but both the parties pay C a specified amount as consideration for the user of the premises or for the services rendered by him. The question whether a particular payment is a trade allowance or not, depends upon the facts of each case. Firstly, it must be a deduction in any transaction in respect of commercial crops. Ii it is a deduction out of the price or commodity agreed to be paid or transferred, it would be a trade allowance. On the other hand, it the payment is de hors the terms of the transaction but made towards consideration for the use of the premises or services rendered, it would not be a deduction from the price or in any transaction. | 0 | 6,742 | 1,020 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
that the said allowance is not an admissible or a permissible trade allowance prescribed by the bye-law. The question, therefore, is whether the allowance described as mahimai is a trade allowance and if so, whether the allowance is permitted to be received by the Rules or bye-laws made under that section. The relevant provisions may be noticed at this stage. Section 14 says:"No trade allowance, other than an allowance prescribed by rules or by-laws made under this Act, shall be made or received in a notified area by any person in any transaction in respect of the commercial crop or crops concerned and no Civil Court shall, in any suit or proceeding arising out of any such transaction, have regard to any trade allowance not so prescribed. Explanation : Every deduction other than deductions on account of deviation from sample, when the purchase is made by sample, or of deviation from standard, when the purchase is made by reference to a known standard, or on account of difference between the actual weight of the sacking and the standard weight, or on account of the admixture of foreign matter, shall be regarded as a trade allowance for the purposes of this Act. Section 19 : "(1) Subject to any rules made by the State Government under S. 18 and with the previous sanction of the Director of Agriculture, Madras, a market committee may in respect of the notified area for which it was established make by, laws for the regulation of the business and the conditions of trading thereon." By-law 25 : Trade allowance applying to the market and the notified area : (a)............. ............... ................. "(b) Deductions such as mahimaiare prohibited. The weight of alien substance such as mud and stone, it any contained in the lint or kapas borahs or in the bags of groundout pods or kernels shall be deducted." The gist of the aforesaid provisions may be stated thus : Trade allowance cannot be received in any notified area by any person in any transaction in respect of commercial crop or crops. Every deduction in any transaction in respect of the said crop other than those specified in the explanation is trade allowance for the purpose of the Act. A market committee generally may make bylaws for the regulation of the business and conditions of trading therein and particularly it can make by-laws prescribing what are permissible trade allowances under the section. Such allowances as are prescribed by a by-law can be deducted in any transaction notwithstanding the fact that they are trade allowances. The argument of the learned counsel is that that by-law is bad, because the market committee did not name the allowance or allowances taking them out of the prohibition under S. 14 which they are entitled to do under that section, but made the by-law mentioning the mahimai allowance as one not deductible in any transaction. The validity of that part of the by-law prohibiting the deduction of mahimai as trade allowance depends upon the nature of that deduction. If mahimai is not a trade allowance, the said part of the by-law would obviously be invalid as inconsistent with the provisions of S. 14. If, on the other hand, mahimai is a trade allowance, the said part of the by-law will be superfluous, as the allowance falls within the terms of the section itself. This leads us to the question whether mahimai is a trade allowance within the meaning of S. 14 of the Act. 16. What is a trade allowance? Trade involves exchange of commodities for money, the business of buying and selling and the transaction involves the seller, the buyer, the commodity sold and the price paid for the sale. Allowance means something given as compensation, rebate or deduction. Under the section, the said deduction should be in any transaction in respect of commercial crops. The deduction may be out of the commodity or out of the price. The recipient may be the seller, the buyer or a third party. When A sells a quantity of cotton to B for a hundred rupees, B, the purchaser, may deduct one rupee from the sale price and pay ninety nine rupees to A; he may keep that amount for himself or pay the same to C. So too, A the seller, may purport to sell one maund of cotton but in fact deduct a small part of it, retain that part for himself or give it to C; or both A and B may fix the price of the commodity purchased at Rs. 102 but the purchaser pays one rupee to C and the seller retains or pays one rupee to C; or it may be that payments have nothing to do with the price or the transaction, but both the parties pay C a specified amount as consideration for the user of the premises or for the services rendered by him. The question whether a particular payment is a trade allowance or not, depends upon the facts of each case. Firstly, it must be a deduction in any transaction in respect of commercial crops. Ii it is a deduction out of the price or commodity agreed to be paid or transferred, it would be a trade allowance. On the other hand, it the payment is de hors the terms of the transaction but made towards consideration for the use of the premises or services rendered, it would not be a deduction from the price or in any transaction.No material has been placed before us to arrive at a definite finding in the present case whether mahimaiis a deduction from the price or commodity within the meaning of S. 14 of the Act. The learned Judges, having expressed the view that the question did not arise for consideration at that stage, did not also consider any material to support their finding. In the circumstances, the only reasonable course is to leave that question open so that it may be decided in appropriate proceedings.
### Response:
0
### Explanation:
3. While the object of the Act is to protect the growers, the argument proceeds, the small traders are compelled to resort to distant markets, with the result that some of them would be forced to give up their business and others would have to incur unnecessary expenditure which they could not afford. The Act is an integrated one, and it regulates the buying and selling of commercial crops. If the small traders are exempted, it creates loopholes in the scheme through which the big trader may operate, and thereby the object itself would be defeated. That apart, the second proviso enables the Committee to exempt small traders in appropriate cases. The constitution of the Committee, in which there will be representatives of the traders and the buyers, is a sufficient guarantee against the implementation of the provisions of the Act to the detriment of all concerned. If a packed Committee abuses its powers, there is a further provision to enable the Government to supersede it.We therefore hold that, having regard to the entire scheme of the Act, the impugned provisions of the Act constitute reasonable restrictions on a citizens right to do business, and therefore, they are validWe cannot share the opinion of the learned judges that the question does not arise for decision at this stage. The appellants prayed for issue of a writ of mandamus directing the respondents to forbear from enforcing any or all the provisions of the Act as amended and the Rules and by-laws framed thereunder by the Ramanathapuram Committee; and, the provisions of the Act read with the bye-laws prohibited the collection of mahimai by the appellants. The question whether the bye law prohibiting the collection of mahimai allowance is valid or not does arise directly for consideration in this case. There is also some ambiguity in the conclusion arrived at by the learned Judges of the High CourtThere is considerable force in this argument, but we think that the learned Judges meant only that the said allowance is not an admissible or a permissible trade allowance prescribed by the bye-lawTrade allowance cannot be received in any notified area by any person in any transaction in respect of commercial crop or crops. Every deduction in any transaction in respect of the said crop other than those specified in the explanation is trade allowance for the purpose of the Act. A market committee generally may make bylaws for the regulation of the business and conditions of trading therein and particularly it can make by-laws prescribing what are permissible trade allowances under the section. Such allowances as are prescribed by a by-law can be deducted in any transaction notwithstanding the fact that they are trade allowances. The argument of the learned counsel is that that by-law is bad, because the market committee did not name the allowance or allowances taking them out of the prohibition under S. 14 which they are entitled to do under that section, but made the by-law mentioning the mahimai allowance as one not deductible in any transaction. The validity of that part of the by-law prohibiting the deduction of mahimai as trade allowance depends upon the nature of that deduction. If mahimai is not a trade allowance, the said part of the by-law would obviously be invalid as inconsistent with the provisions of S. 14. If, on the other hand, mahimai is a trade allowance, the said part of the by-law will be superfluous, as the allowance falls within the terms of the section itself. This leads us to the question whether mahimai is a trade allowance within the meaning of S. 14 of the Act16. What is a trade allowance? Trade involves exchange of commodities for money, the business of buying and selling and the transaction involves the seller, the buyer, the commodity sold and the price paid for the sale. Allowance means something given as compensation, rebate or deduction. Under the section, the said deduction should be in any transaction in respect of commercial crops. The deduction may be out of the commodity or out of the price. The recipient may be the seller, the buyer or a third party. When A sells a quantity of cotton to B for a hundred rupees, B, the purchaser, may deduct one rupee from the sale price and pay ninety nine rupees to A; he may keep that amount for himself or pay the same to C. So too, A the seller, may purport to sell one maund of cotton but in fact deduct a small part of it, retain that part for himself or give it to C; or both A and B may fix the price of the commodity purchased at Rs. 102 but the purchaser pays one rupee to C and the seller retains or pays one rupee to C; or it may be that payments have nothing to do with the price or the transaction, but both the parties pay C a specified amount as consideration for the user of the premises or for the services rendered by him. The question whether a particular payment is a trade allowance or not, depends upon the facts of each case. Firstly, it must be a deduction in any transaction in respect of commercial crops. Ii it is a deduction out of the price or commodity agreed to be paid or transferred, it would be a trade allowance. On the other hand, it the payment is de hors the terms of the transaction but made towards consideration for the use of the premises or services rendered, it would not be a deduction from the price or in any transaction.
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Rohitash Kumar Vs. Om Prakash Sharma | and it is not permissible, to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. The Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven. The Court, while interpreting statutory provisions, cannot add words to a Statute, or read words into it which are not part of it, especially when a literal reading of the same, produces an intelligible result. (Vide: Nalinakhya Bysack v. Shyam Sunder Haldar & Ors., AIR 1953 SC 148 ; Sri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459 ; M. Pentiah & Ors. v. Muddala Veeramallappa & Ors., AIR 1961 SC 1107 ; The Balasinor Nagrik Co- operative Bank Ltd. v. Babubhai Shankerlal Pandya & Ors., AIR 1987 SC 849 ; and Dadi Jagannadham v. Jammulu Ramulu & Ors., (2001) 7 SCC 71 ). 23. The Statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause. 24. In view of the above, it becomes crystal clear that, under the garb of interpreting the provision, the Court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation. 25. The matter requires to be considered in the light of the aforesaid settled legal propositions. The Service Selection Board (CPOs) 91, selected 154 persons to be appointed as Assistant Commandant (Direct Entry), and they were then sent for training in two separate batches. Batch No.16 consisted of 67 officers who joined the training on 1.2.1993, while Batch No.17 consisted of 87 officers who joined the training on 2.7.1993. They could not be sent for training in one batch, even though they had been selected through the same competitive examination, due to administrative reasons i.e., character verification etc. Respondent no.1, who was promoted from the feeding cadre, joined his post on 15.3.1993. Thus, it is evident that he was placed in the promotional cadre, prior to the commencement of the training of Batch No.17 on 2.7.1993. 26. The learned Single Judge dealt with the statutory provisions contained in Rule 3 and held as under: “A perusal of the above makes it apparent that in the case of the officers who have been promoted their seniority is to be determined on the basis of continuous appointment on a day in which they are selected for promoted to that rank. In case of direct entrants their inter–se seniority is to be determined on the basis of aggregate marks obtained by them. Inter-se seniority of the officers mentioned at serial No.(l) (ii) and (iii) is to be determined according to the date of their continuous appointment in the rank. Proviso to the rule is clear. It is specifically mentioned that in the case of direct entrants, the date of appointment shall be the date of commencement of their training course at the Border Security Force Academy.” In light of the above, relief had been granted to respondent no.1. The Division Bench concurred with the said interpretation. 27. If we apply the settled legal propositions referred to hereinabove, no other interpretation is permissible. The language of the said rule is crystal clear. There is no ambiguity with respect to it. The validity of the rule is not under challenge. In such a fact- situation, it is not permissible for the court to interpret the rule otherwise. The said proviso will have application only in a case where officers who have been selected in pursuance of the same selection process are split into separate batches. Interpreting the rule otherwise, would amount to adding words to the proviso, which the law does not permit. 28. If the contention of the appellants is accepted, it would amount to fixing their seniority from a date prior, to their birth in the cadre. Admittedly, the appellants (17th batch), joined training on 2.7.1993 and their claim is to fix their seniority from the Ist of February, 1993 i.e. the date on which, the 16th batch joined training. Such a course is not permissible in law. The facts and circumstances of the case neither require any interpretation, nor reading down of the rule. 29. Shri R. Venkataramani, learned Senior counsel for the appellants, has placed very heavy reliance upon the judgment of the Delhi High Court (Dinesh Kumar v. UOI & Ors.) dated 14.2.2011 wherein, certain relief was granted to the petitioner therein, in view of the fact that there was some delay in joining training, in relation to passing the fitness test set by the Review Medical Board. The court granted relief, in light of the facts and circumstances of the case, without interpreting Rule 3 of the Rules 1978. Thus, the said judgment, in fact, does not lay down any law. The case at hand is easily distinguishable from the above, as that was a case where seniority and promotion had been granted on a notional basis, with retrospective effect and it was held that the person to whom the same had been granted, was entitled to all consequential benefits. 30. Thus, in view of the above, the | 0[ds]7. This Court applied the rule of contemporanea expositio, as the Court found that the same is a well established rule of the interpretation of a statute, with reference to the exposition that it has received from contemporary authorities. However, while doing so, the Court added words of caution to the effect that such a rule must give way, where the language of the statute is plain and unambiguous., This Court applied the said rule of interpretation by holding that contemporanea expositio as expounded by administrative authorities, is a very useful and relevant guide to the interpretation of the expressions used in a statutory instrument. The words used in a statutory provision must be understood in the same way, in which they are usually understood, in ordinary common parlance with respect to the area in which, the said law is in force or, by the people who ordinarily deal with them. | 0 | 4,455 | 170 | ### Instruction:
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and it is not permissible, to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. The Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven. The Court, while interpreting statutory provisions, cannot add words to a Statute, or read words into it which are not part of it, especially when a literal reading of the same, produces an intelligible result. (Vide: Nalinakhya Bysack v. Shyam Sunder Haldar & Ors., AIR 1953 SC 148 ; Sri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459 ; M. Pentiah & Ors. v. Muddala Veeramallappa & Ors., AIR 1961 SC 1107 ; The Balasinor Nagrik Co- operative Bank Ltd. v. Babubhai Shankerlal Pandya & Ors., AIR 1987 SC 849 ; and Dadi Jagannadham v. Jammulu Ramulu & Ors., (2001) 7 SCC 71 ). 23. The Statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause. 24. In view of the above, it becomes crystal clear that, under the garb of interpreting the provision, the Court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation. 25. The matter requires to be considered in the light of the aforesaid settled legal propositions. The Service Selection Board (CPOs) 91, selected 154 persons to be appointed as Assistant Commandant (Direct Entry), and they were then sent for training in two separate batches. Batch No.16 consisted of 67 officers who joined the training on 1.2.1993, while Batch No.17 consisted of 87 officers who joined the training on 2.7.1993. They could not be sent for training in one batch, even though they had been selected through the same competitive examination, due to administrative reasons i.e., character verification etc. Respondent no.1, who was promoted from the feeding cadre, joined his post on 15.3.1993. Thus, it is evident that he was placed in the promotional cadre, prior to the commencement of the training of Batch No.17 on 2.7.1993. 26. The learned Single Judge dealt with the statutory provisions contained in Rule 3 and held as under: “A perusal of the above makes it apparent that in the case of the officers who have been promoted their seniority is to be determined on the basis of continuous appointment on a day in which they are selected for promoted to that rank. In case of direct entrants their inter–se seniority is to be determined on the basis of aggregate marks obtained by them. Inter-se seniority of the officers mentioned at serial No.(l) (ii) and (iii) is to be determined according to the date of their continuous appointment in the rank. Proviso to the rule is clear. It is specifically mentioned that in the case of direct entrants, the date of appointment shall be the date of commencement of their training course at the Border Security Force Academy.” In light of the above, relief had been granted to respondent no.1. The Division Bench concurred with the said interpretation. 27. If we apply the settled legal propositions referred to hereinabove, no other interpretation is permissible. The language of the said rule is crystal clear. There is no ambiguity with respect to it. The validity of the rule is not under challenge. In such a fact- situation, it is not permissible for the court to interpret the rule otherwise. The said proviso will have application only in a case where officers who have been selected in pursuance of the same selection process are split into separate batches. Interpreting the rule otherwise, would amount to adding words to the proviso, which the law does not permit. 28. If the contention of the appellants is accepted, it would amount to fixing their seniority from a date prior, to their birth in the cadre. Admittedly, the appellants (17th batch), joined training on 2.7.1993 and their claim is to fix their seniority from the Ist of February, 1993 i.e. the date on which, the 16th batch joined training. Such a course is not permissible in law. The facts and circumstances of the case neither require any interpretation, nor reading down of the rule. 29. Shri R. Venkataramani, learned Senior counsel for the appellants, has placed very heavy reliance upon the judgment of the Delhi High Court (Dinesh Kumar v. UOI & Ors.) dated 14.2.2011 wherein, certain relief was granted to the petitioner therein, in view of the fact that there was some delay in joining training, in relation to passing the fitness test set by the Review Medical Board. The court granted relief, in light of the facts and circumstances of the case, without interpreting Rule 3 of the Rules 1978. Thus, the said judgment, in fact, does not lay down any law. The case at hand is easily distinguishable from the above, as that was a case where seniority and promotion had been granted on a notional basis, with retrospective effect and it was held that the person to whom the same had been granted, was entitled to all consequential benefits. 30. Thus, in view of the above, the
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7. This Court applied the rule of contemporanea expositio, as the Court found that the same is a well established rule of the interpretation of a statute, with reference to the exposition that it has received from contemporary authorities. However, while doing so, the Court added words of caution to the effect that such a rule must give way, where the language of the statute is plain and unambiguous., This Court applied the said rule of interpretation by holding that contemporanea expositio as expounded by administrative authorities, is a very useful and relevant guide to the interpretation of the expressions used in a statutory instrument. The words used in a statutory provision must be understood in the same way, in which they are usually understood, in ordinary common parlance with respect to the area in which, the said law is in force or, by the people who ordinarily deal with them.
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V. B. Badami Etc Vs. State Of Mysore & Ors | 165 to 1847 are promotees to whom were allotted to substantive vacancies arising from 1st November, 1956 to 1st December, 1957 on the basis of their continuous service in the cadre. There was no quota rule for the period 1st November, 1956 to 1st December, 1957. Therefore, neither the promotions of those persons not their relative seniority can be disturbed.32. Persons No. 185 to 213 are promotees. Persons No. 214 to 236 are direct recruits. Persons No. 237 to 280 are also promotees. From 2nd December, 1957 when the 1957 Recruitment Rules came into existence till 10th September, 1959, when the 1959 probation Rules came into force as State promoted many persons from Class II. Two-thirds of the total vacancies for the periods 2nd December, 1957 to 10th September, 1959 were promotional vacancies. Therefore, all person promoted to those two-thirds vacancies cannot be disturbed. Those promotees who are in excess of the two thirds vacancies will be pushed down to the vacancies in the subsequent period. The remaining one-third vacancies were for direct recruitment. Direct recruits equal in number to those one-third vacancies should be placed next after the promotees placed in the first two-thirds vacancies between 2nd December, 1957 and 10th September, 1959. If direct recruits are in excess of the quota they will similarly be shifted to the subsequent period.33. The next period is from 11th September, 1959 to 26th October, 1964. From 11th September, 1959 the promotional vacancies became one-third and direct recruitment vacancies became two-thirds. The excess promotees during the previous period will be first absorbed in the promotional vacancies and thereafter promotees during the periods will be absorbed. Again, if there would be excess promotions they will be shifted to the following period.34. The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between 11th September, 1959 and 26th October, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on 26th October, 1964 will not rob the direct recruit of their quota which remained unfilled from 2nd December, 1957.35. The Government confirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the substantive vacancy.36. In S. C. Jaisinghanin v. Union of India, (1967) 2 S.C.R. 703, it was said that when the quota was fixed for the two source of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been promotee in excess of the prescribed quota should be held to have been illegally promoted. In Bishan Sarups case (supra) it was held that when it was ascertained that not more than 1/3 of the vacancies were to go to the promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. The promotees were entitled to 1/3 of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year.37. Two principle are established in the decision referred to. One is that quotas which are fixed are unalterable according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the group that because there has been a number in excess of quota the same should be absorbed depriving the other group of quota.38. In Bachan Singh and another v. Union of India others, (1972) 3 S.C.R. 898, the two appellants were promoted in the years 1958 and 1959. The respondents were appointed by direct recruitment in 1962, 1963 and 1964. The respondents were confirmed in their posts before the appellants. It was held that the direct recruits were confirmed against permanent vacancies within their quota. The earlier confirmation of direct recruits though appointed later was upheld on the ground that they fell within their quota of permanent vacancies.39. Subbaramans case (supra) on which the appellants relied also held that each quota would have to be worked independently on its own force. In that case the Assistant Executive Engineers who were initially entitled to 3/4th and subsequently to 2/3rd of the vacancies while Assistant Engineers who were entitled initially to 1/4th and subsequently to 1/3rd of such vacancies were held to be entitled to their respective quotas independent of the fact whether any person from one class or the other was promoted or not. It was illustrated by saying that if there were three vacancies in a year, two would go to the Assistant Executive Engineers and one would go to the Assistant Engineers and even if there were not eligible Assistant Executive Engineers who could be promoted to fill in two vacancies belonging to their quota, one vacancy is to be filled up by promotion of an Assistant Engineer, if he was eligible. Similarly, if two vacancies belonging to the quota of Assistant Executive Engineers are to be filled by Assistant Executive Engineers for want of availability of eligible Assistant Executive Engineers the appointment of Assistant Engineers to fill in those two vacancies would be irregular because they would have to be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota for those years.40. For the foregoing reasons, we hold that the respondents No. 2 to 24 were entitled to the vacancies within their quota which had not been filled up and they are senior to the appellants. | 0[ds]22. The contention of the appellants that the respondents were recruited to temporary vacancies is wrong for these principle reasons.23. First, the cadre here consists only of permanent posts. The cadre does not consist of any temporary post. The total number of vacancies between 2nd December, 1957 and 10th September, 1959 were 59. Under the quota 39 were promotional vacancies and 20 were direct recruitment vacancies. There were in fact 59 promotees. They were 20 in excess of their quota. There was, however, no direct recruitment during that period. Again, between 11th September, 1959 and 10th September, 1965 the total number of vacancies were 208. Under the quota system 71 were promotional vacancies and 137 were direct recruitment vacancies. There were in fact 168 promotees during the period. Therefore, 97 promotees were in excess of their quota. Out of the 137 direct recruitment quota only 20 were filled up during the period. In this background it appears that when in 1962 direct recruitment was made there were 20 direct recruitment vacancies in the quota which were not filled up. The promotees, however, being 20 in excess were not entitled to confirmation against the vacancies within the quota of the direct recruits. The promotees were promoted on officiating basis. Therefore, when the respondents were appointed by direct recruitment on probation under order dated 26th October, 1962 they were required to undergo training and probation, for a period of two years. In order to meet the audit objections by reason of lack of provision in the Recruitment Rules for training reserves the Government sanctioned 20 temporary posts to accommodate the probationers for the period of their probation. On the completion of the period of training there was no renewal of the temporary posts. Therefore, the temporary posts which were created for the direct recruits during their period of probation cannot be taken into account in working out the quota rule and for adjustment of seniority.24. It may also be stated here that the promotees had not been deprived of their appointment and they had not been subjected to any revision. The implementation of the quota rule has resulted in the adjustment of seniority consistent with the quota. The confirmation had been issued in the case of promotees and direct recruits having regard to the permanent strength of the cadre and the quota.25. Second, the advertisement of the Public Service Commission inviting direct recruits stated that the posts "are likely to be made permanent". The order of appointment of the respondent as Gazetted Probationers on selection by the Public Service Commission stated that the respondents were appointed as Probationer Assistant Commissioners. The order of appointment refers obviously to the 1959 Probationers Rules.26. Third, Rule 9 of the Mysore Government Servant Probation Rules states that a probationer who has been declared to have satisfactorily completed his probation has to be confirmed as a full member of the service at the earliest opportunity in any substantive vacancy which may exist or arise in the permanent cadre of the service in respect of which he has been recruited as a probationer. This rule excludes temporary posts from the cadre. It is, therefore, impossible to hold that the direct recruits were temporary employees outside the permanent cadre of the service.In working out the quota rule, these principles are generally followed. First, where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, confirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of the seniority-cum-merit. A promotion could be made in respect of a temporary post or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case.The quota between promotees and direct recruits is to be fixed with reference to the permanent strength of 135 junior duty posts. Persons who were allotted the junior duty posts under the States Reorganisation Act are to be accommodated within the permanent cadre strength of 135 posts. If they are in excess of the number then the excess will have to be accommodated in the promotional vacancies during the subsequent period commencing from 2nd December, 1957 to 10th September, 1959.The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between 11th September, 1959 and 26th October, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on 26th October, 1964 will not rob the direct recruit of their quota which remained unfilled from 2nd December, 1957.35. The Government confirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the substantiveif two vacancies belonging to the quota of Assistant Executive Engineers are to be filled by Assistant Executive Engineers for want of availability of eligible Assistant Executive Engineers the appointment of Assistant Engineers to fill in those two vacancies would be irregular because they would have to be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota for those years.40. For the foregoing reasons, we hold that the respondents No. 2 to 24 were entitled to the vacancies within their quota which had not been filled up and they are senior to the appellants. | 0 | 4,470 | 1,210 | ### 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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165 to 1847 are promotees to whom were allotted to substantive vacancies arising from 1st November, 1956 to 1st December, 1957 on the basis of their continuous service in the cadre. There was no quota rule for the period 1st November, 1956 to 1st December, 1957. Therefore, neither the promotions of those persons not their relative seniority can be disturbed.32. Persons No. 185 to 213 are promotees. Persons No. 214 to 236 are direct recruits. Persons No. 237 to 280 are also promotees. From 2nd December, 1957 when the 1957 Recruitment Rules came into existence till 10th September, 1959, when the 1959 probation Rules came into force as State promoted many persons from Class II. Two-thirds of the total vacancies for the periods 2nd December, 1957 to 10th September, 1959 were promotional vacancies. Therefore, all person promoted to those two-thirds vacancies cannot be disturbed. Those promotees who are in excess of the two thirds vacancies will be pushed down to the vacancies in the subsequent period. The remaining one-third vacancies were for direct recruitment. Direct recruits equal in number to those one-third vacancies should be placed next after the promotees placed in the first two-thirds vacancies between 2nd December, 1957 and 10th September, 1959. If direct recruits are in excess of the quota they will similarly be shifted to the subsequent period.33. The next period is from 11th September, 1959 to 26th October, 1964. From 11th September, 1959 the promotional vacancies became one-third and direct recruitment vacancies became two-thirds. The excess promotees during the previous period will be first absorbed in the promotional vacancies and thereafter promotees during the periods will be absorbed. Again, if there would be excess promotions they will be shifted to the following period.34. The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between 11th September, 1959 and 26th October, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on 26th October, 1964 will not rob the direct recruit of their quota which remained unfilled from 2nd December, 1957.35. The Government confirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the substantive vacancy.36. In S. C. Jaisinghanin v. Union of India, (1967) 2 S.C.R. 703, it was said that when the quota was fixed for the two source of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been promotee in excess of the prescribed quota should be held to have been illegally promoted. In Bishan Sarups case (supra) it was held that when it was ascertained that not more than 1/3 of the vacancies were to go to the promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. The promotees were entitled to 1/3 of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year.37. Two principle are established in the decision referred to. One is that quotas which are fixed are unalterable according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the group that because there has been a number in excess of quota the same should be absorbed depriving the other group of quota.38. In Bachan Singh and another v. Union of India others, (1972) 3 S.C.R. 898, the two appellants were promoted in the years 1958 and 1959. The respondents were appointed by direct recruitment in 1962, 1963 and 1964. The respondents were confirmed in their posts before the appellants. It was held that the direct recruits were confirmed against permanent vacancies within their quota. The earlier confirmation of direct recruits though appointed later was upheld on the ground that they fell within their quota of permanent vacancies.39. Subbaramans case (supra) on which the appellants relied also held that each quota would have to be worked independently on its own force. In that case the Assistant Executive Engineers who were initially entitled to 3/4th and subsequently to 2/3rd of the vacancies while Assistant Engineers who were entitled initially to 1/4th and subsequently to 1/3rd of such vacancies were held to be entitled to their respective quotas independent of the fact whether any person from one class or the other was promoted or not. It was illustrated by saying that if there were three vacancies in a year, two would go to the Assistant Executive Engineers and one would go to the Assistant Engineers and even if there were not eligible Assistant Executive Engineers who could be promoted to fill in two vacancies belonging to their quota, one vacancy is to be filled up by promotion of an Assistant Engineer, if he was eligible. Similarly, if two vacancies belonging to the quota of Assistant Executive Engineers are to be filled by Assistant Executive Engineers for want of availability of eligible Assistant Executive Engineers the appointment of Assistant Engineers to fill in those two vacancies would be irregular because they would have to be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota for those years.40. For the foregoing reasons, we hold that the respondents No. 2 to 24 were entitled to the vacancies within their quota which had not been filled up and they are senior to the appellants.
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vacancies and 137 were direct recruitment vacancies. There were in fact 168 promotees during the period. Therefore, 97 promotees were in excess of their quota. Out of the 137 direct recruitment quota only 20 were filled up during the period. In this background it appears that when in 1962 direct recruitment was made there were 20 direct recruitment vacancies in the quota which were not filled up. The promotees, however, being 20 in excess were not entitled to confirmation against the vacancies within the quota of the direct recruits. The promotees were promoted on officiating basis. Therefore, when the respondents were appointed by direct recruitment on probation under order dated 26th October, 1962 they were required to undergo training and probation, for a period of two years. In order to meet the audit objections by reason of lack of provision in the Recruitment Rules for training reserves the Government sanctioned 20 temporary posts to accommodate the probationers for the period of their probation. On the completion of the period of training there was no renewal of the temporary posts. Therefore, the temporary posts which were created for the direct recruits during their period of probation cannot be taken into account in working out the quota rule and for adjustment of seniority.24. It may also be stated here that the promotees had not been deprived of their appointment and they had not been subjected to any revision. The implementation of the quota rule has resulted in the adjustment of seniority consistent with the quota. The confirmation had been issued in the case of promotees and direct recruits having regard to the permanent strength of the cadre and the quota.25. Second, the advertisement of the Public Service Commission inviting direct recruits stated that the posts "are likely to be made permanent". The order of appointment of the respondent as Gazetted Probationers on selection by the Public Service Commission stated that the respondents were appointed as Probationer Assistant Commissioners. The order of appointment refers obviously to the 1959 Probationers Rules.26. Third, Rule 9 of the Mysore Government Servant Probation Rules states that a probationer who has been declared to have satisfactorily completed his probation has to be confirmed as a full member of the service at the earliest opportunity in any substantive vacancy which may exist or arise in the permanent cadre of the service in respect of which he has been recruited as a probationer. This rule excludes temporary posts from the cadre. It is, therefore, impossible to hold that the direct recruits were temporary employees outside the permanent cadre of the service.In working out the quota rule, these principles are generally followed. First, where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, confirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of the seniority-cum-merit. A promotion could be made in respect of a temporary post or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case.The quota between promotees and direct recruits is to be fixed with reference to the permanent strength of 135 junior duty posts. Persons who were allotted the junior duty posts under the States Reorganisation Act are to be accommodated within the permanent cadre strength of 135 posts. If they are in excess of the number then the excess will have to be accommodated in the promotional vacancies during the subsequent period commencing from 2nd December, 1957 to 10th September, 1959.The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between 11th September, 1959 and 26th October, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on 26th October, 1964 will not rob the direct recruit of their quota which remained unfilled from 2nd December, 1957.35. The Government confirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the substantiveif two vacancies belonging to the quota of Assistant Executive Engineers are to be filled by Assistant Executive Engineers for want of availability of eligible Assistant Executive Engineers the appointment of Assistant Engineers to fill in those two vacancies would be irregular because they would have to be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota for those years.40. For the foregoing reasons, we hold that the respondents No. 2 to 24 were entitled to the vacancies within their quota which had not been filled up and they are senior to the appellants.
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Wopansao Vs. N. L. Odyuo & Ors | was no evidence to displace the statements in the present case. The evidence is that the Electoral Registration Officer accepted the statements as correct and registered the names of the personnel of the 12th Battalion. 12. The contention on behalf of the appellant was that a number having service qualification can only be ordinarily resident at the constituency in which but for his having service qualification he would have been ordinarily resident on that date, and, therefore, since Wokha was the place for service, Wokha could not be the place for ordinary residence and his home town or village would be ordinarily resident. Such a construction would be misreading Section 20(3) of the 1950 Act, because under that provision a fiction is created that members having service qualification would be deemed to be ordinarily resident at their home town or place but for their service qualification. When the personnel made statements to the effect that they ordinarily resided at Wokha, they did not want to take advantage of the fiction of being ordinarily resident at their home town or village but they stated that they were ordinarily resident at Wokha. The Electoral Registration Officer was within his jurisdiction to registrar the personnel of the 12th Battalion as ordinary residents at Wokha by reason of their statements in the prescribed forms. The statutory fiction is intended to confer the right to be registered as electors at their home town or village but the fiction cannot take away the right of persons possessing service qualification to get themselves registered at a constituency in which they are ordinarily residing though such place happens to be their place of service. 13. A contention was advanced on behalf of the appellant that in registering the service electors the Registration Officer did not exercise his discretion but merely carried out the orders and direction of the Chief Electoral Officer. The High Court referred to the directions and instructions for preparation of electoral rolls for Armed Forces personnel and held that the statements in form No. 2 as prescribed by Rule 7 of the Registration of Electoral Rules, 1960, were checked by the Officer-in-Charge of the Record Office and were thereafter forwarded to the Chief Electoral Officer concerned in whose office the statements were sorted out according to the constituency and thereafter forwarded to the Electoral Registration Officer concerned. We agree with the reasons and conclusion of the High Court the decision of the statutory authority which acted on the declarations submitted by the service personnel verified and found to be correct was beyond any challenge on the materials on record. 14. The contentions on behalf of the appellant were that of the 348 service electors 37 were not Indian citizens, 35 of them being Nepali and 2 Sikkimese and further that out of the remaining service electors excepting 69 the rest were not Indian citizens. These were the allegations of the appellant in the particulars furnished by him in an application, dated October 4, 1969.15. The appellant in his evidence stated that he was not clear whether the service electors were citizens of India or foreigners. It was also his evidence that when he asked the Record Officer at Shillong he learnt that may of the service personnel were not Indian citizens. The evidence of the appellant is not substantive evidence, or any proof of the allegation. Part of it is hearsay and is not corroborated. The other part is not of evidentiary value. 16. The appellant relied heavily on the evidence of P.W. 6, Dhrubajyoti Lahiri in proof of the allegation that the majority of the service personnel were not Indian citizens. Lahiri said that there was a Long Roll in two volumes which were marked Exs. 17 and 18. The Long Roll was the register containing the residential particulars of the personnel, the date of enrolment, and other heads of entries, namely, serial number in the book, number of personnel, rank, name, fathers name, religion and class or caste, residential particulars giving village, nearest railway station, Post Office, Tehsil and Thana, District and Province, date of birth, enrolment, discharge Education. There is no column or heading regarding nationality in the Long Roll. Ex. 19 which was tendered in evidence was a list in a tabular form. Ex. 19 was prepared by Lahiri. He said that he himself compared it with the Long Roll. Lahiris evidence was that there was no column in the Long Roll for citizenship. Lahiris evidence was that the home address of some of these service personnel was Nepal. In cross-examination, Lahiri said that the service personnel were called Nepali by common parlance. Lahiri also said that the service personnel filled up the forms declaring that they were Indian citizens and Lahiri himself also asked the service personnel about their citizenship. His evidence was that these members of the service personal were Indian citizens. 17. It is in evidence that the Electoral Registration Officer said that he was satisfied about the declarations of the members of the service personnel about their Indian citizenship. The High Court correctly found that in the statements furnished by the service personnel being Ex. 6 series and Ex. A series, they declared themselves to be citizens of India and the statements were verified by the Record Officer. The High Court also correctly held that no objection was taken at any stage and no notice was given to any member of the service personnel that their names would be objected to on the ground that they were not Indian citizens and they have not been given any opportunity of being heard in respect of the allegation. No such member of the service personnel was examined. There is no evidence to substantiate the allegation which was made that members of the service personnel were not Indian citizens. On the contrary, the evidence oral as well as documentary is overwhelming and unrebutted that each member of the service personnel made a statement declaring himself to be an Indian citizen. | 0[ds]8. The other ground on which the qualification of the service personnel to be registered as voters in the Wokha Constituency was questioned was that they were not Indian citizens. Article 326 of the Constitution confers voting rights on citizens of India. Section 16 of the 1950 Act disqualifies a person for registration as a voter if he is not a citizen of India. Section 62 of the Representation of the People Act, 1951 called the 1951 Act prohibits a person from voting at an election in any constituency if he is subject to any disqualifications mentioned in Section 16 of the 1950 Act. Under Section 100(1)(d)(iii) of the 1951 if the result of the election in so far it concerned the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or reception of vote which is void, the court would have jurisdiction to declare such an election void. Therefore, if the allegation that the personnel of the 12th Battalion, Assam Rifles were not Indian citizens was established, it was submitted that the election would be declared voidSuch a construction would be misreading Section 20(3) of the 1950 Act, because under that provision a fiction is created that members having service qualification would be deemed to be ordinarily resident at their home town or place but for their service qualification. When the personnel made statements to the effect that they ordinarily resided at Wokha, they did not want to take advantage of the fiction of being ordinarily resident at their home town or village but they stated that they were ordinarily resident at Wokha. The Electoral Registration Officer was within his jurisdiction to registrar the personnel of the 12th Battalion as ordinary residents at Wokha by reason of their statements in the prescribed forms. The statutory fiction is intended to confer the right to be registered as electors at their home town or village but the fiction cannot take away the right of persons possessing service qualification to get themselves registered at a constituency in which they are ordinarily residing though such place happens to be their place of service13. A contention was advanced on behalf of the appellant that in registering the service electors the Registration Officer did not exercise his discretion but merely carried out the orders and direction of the Chief ElectoralOfficer. The High Courtreferred to the directions and instructions for preparation of electoral rolls for Armed Forces personnel and held that the statements in form No. 2 as prescribed by Rule 7 of the Registration of Electoral Rules, 1960, were checked by the Officer-in-Charge of the Record Office and were thereafter forwarded to the Chief Electoral Officer concerned in whose office the statements were sorted out according to the constituency and thereafter forwarded to the Electoral Registration Officer concerned. We agree with the reasons and conclusion of the High Court the decision of the statutory authority which acted on the declarations submitted by the service personnel verified and found to be correct was beyond any challenge on the materials on recordThe High Courtreferred to the directions and instructions for preparation of electoral rolls for Armed Forces personnel and held that the statements in form No. 2 as prescribed by Rule 7 of the Registration of Electoral Rules, 1960, were checked by the Officer-in-Charge of the Record Office and were thereafter forwarded to the Chief Electoral Officer concerned in whose office the statements were sorted out according to the constituency and thereafter forwarded to the Electoral Registration Officer concerned. We agree with the reasons and conclusion of the High Court the decision of the statutory authority which acted on the declarations submitted by the service personnel verified and found to be correct was beyond any challenge on the materials on record15. The appellant in his evidence stated that he was not clear whether the service electors were citizens of India or foreigners. It was also his evidence that when he asked the Record Officer at Shillong he learnt that may of the service personnel were not Indian citizens. The evidence of the appellant is not substantive evidence, or any proof of the allegation. Part of it is hearsay and is not corroborated. The other part is not of evidentiary value16. The appellant relied heavily on the evidence of P.W. 6, Dhrubajyoti Lahiri in proof of the allegation that the majority of the service personnel were not Indian citizens. Lahiri said that there was a Long Roll in two volumes which were marked Exs. 17 and 18. The Long Roll was the register containing the residential particulars of the personnel, the date of enrolment, and other heads of entries, namely, serial number in the book, number of personnel, rank, name, fathers name, religion and class or caste, residential particulars giving village, nearest railway station, Post Office, Tehsil and Thana, District and Province, date of birth, enrolment, discharge Education. There is no column or heading regarding nationality in the Long Roll. Ex. 19 which was tendered in evidence was a list in a tabular form. Ex. 19 was prepared by Lahiri. He said that he himself compared it with the Long Roll. Lahiris evidence was that there was no column in the Long Roll for citizenship. Lahiris evidence was that the home address of some of these service personnel was Nepal. In cross-examination, Lahiri said that the service personnel were called Nepali by common parlance. Lahiri also said that the service personnel filled up the forms declaring that they were Indian citizens and Lahiri himself also asked the service personnel about their citizenship. His evidence was that these members of the service personal were Indian citizens17. It is in evidence that the Electoral Registration Officer said that he was satisfied about the declarations of the members of the service personnel about their Indian citizenship.The High Courtcorrectly found that in the statements furnished by the service personnel being Ex. 6 series and Ex. A series, they declared themselves to be citizens of India and the statements were verified by the RecordOfficer. TheHigh Courtalso correctly held that no objection was taken at any stage and no notice was given to any member of the service personnel that their names would be objected to on the ground that they were not Indian citizens and they have not been given any opportunity of being heard in respect of the allegation. No such member of the service personnel was examined. There is no evidence to substantiate the allegation which was made that members of the service personnel were not Indian citizens. On the contrary, the evidence oral as well as documentary is overwhelming and unrebutted that each member of the service personnel made a statement declaring himself to be an Indian citizen6. This Court in B. M. Ramaswamy v. B. M. Krishnamurthy and Others, ((1963) 3 SCR 479 : AIR 1963 SC 458 : (1964) 2 SCJ 268) held that the finality of the electoral roll cannot be challenged in a proceeding impeaching the validity of the election. The effect of Section 30 of the 1950 Act was construed by this Court in the recent decision in Kabul Singh v. Kundan Singh and Others, ((1970) 1 SCR 845 : AIR 1970 SC 340 : (1970) 1 SCJ 469) to be that Sections 14 to 24 of the 1950 Act are a complete code in the matter of preparation and maintenance of electoral rolls and Section 30 of the 1950 Act does not confer jurisdiction on a Civil Court to entertain or adjudicate upon a question whether a person is or is not entitled to registrar himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the Electoral Registration Officer or any decision given by the authority appointed under the 1950 Act for the revision of any such roll7. The Civil Court therefore would have no jurisdiction to adjudicate upon a question whether the personnel of the 12th Battalion, Assam Rifles in the present case were validly registered as service electors. | 0 | 2,768 | 1,460 | ### Instruction:
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was no evidence to displace the statements in the present case. The evidence is that the Electoral Registration Officer accepted the statements as correct and registered the names of the personnel of the 12th Battalion. 12. The contention on behalf of the appellant was that a number having service qualification can only be ordinarily resident at the constituency in which but for his having service qualification he would have been ordinarily resident on that date, and, therefore, since Wokha was the place for service, Wokha could not be the place for ordinary residence and his home town or village would be ordinarily resident. Such a construction would be misreading Section 20(3) of the 1950 Act, because under that provision a fiction is created that members having service qualification would be deemed to be ordinarily resident at their home town or place but for their service qualification. When the personnel made statements to the effect that they ordinarily resided at Wokha, they did not want to take advantage of the fiction of being ordinarily resident at their home town or village but they stated that they were ordinarily resident at Wokha. The Electoral Registration Officer was within his jurisdiction to registrar the personnel of the 12th Battalion as ordinary residents at Wokha by reason of their statements in the prescribed forms. The statutory fiction is intended to confer the right to be registered as electors at their home town or village but the fiction cannot take away the right of persons possessing service qualification to get themselves registered at a constituency in which they are ordinarily residing though such place happens to be their place of service. 13. A contention was advanced on behalf of the appellant that in registering the service electors the Registration Officer did not exercise his discretion but merely carried out the orders and direction of the Chief Electoral Officer. The High Court referred to the directions and instructions for preparation of electoral rolls for Armed Forces personnel and held that the statements in form No. 2 as prescribed by Rule 7 of the Registration of Electoral Rules, 1960, were checked by the Officer-in-Charge of the Record Office and were thereafter forwarded to the Chief Electoral Officer concerned in whose office the statements were sorted out according to the constituency and thereafter forwarded to the Electoral Registration Officer concerned. We agree with the reasons and conclusion of the High Court the decision of the statutory authority which acted on the declarations submitted by the service personnel verified and found to be correct was beyond any challenge on the materials on record. 14. The contentions on behalf of the appellant were that of the 348 service electors 37 were not Indian citizens, 35 of them being Nepali and 2 Sikkimese and further that out of the remaining service electors excepting 69 the rest were not Indian citizens. These were the allegations of the appellant in the particulars furnished by him in an application, dated October 4, 1969.15. The appellant in his evidence stated that he was not clear whether the service electors were citizens of India or foreigners. It was also his evidence that when he asked the Record Officer at Shillong he learnt that may of the service personnel were not Indian citizens. The evidence of the appellant is not substantive evidence, or any proof of the allegation. Part of it is hearsay and is not corroborated. The other part is not of evidentiary value. 16. The appellant relied heavily on the evidence of P.W. 6, Dhrubajyoti Lahiri in proof of the allegation that the majority of the service personnel were not Indian citizens. Lahiri said that there was a Long Roll in two volumes which were marked Exs. 17 and 18. The Long Roll was the register containing the residential particulars of the personnel, the date of enrolment, and other heads of entries, namely, serial number in the book, number of personnel, rank, name, fathers name, religion and class or caste, residential particulars giving village, nearest railway station, Post Office, Tehsil and Thana, District and Province, date of birth, enrolment, discharge Education. There is no column or heading regarding nationality in the Long Roll. Ex. 19 which was tendered in evidence was a list in a tabular form. Ex. 19 was prepared by Lahiri. He said that he himself compared it with the Long Roll. Lahiris evidence was that there was no column in the Long Roll for citizenship. Lahiris evidence was that the home address of some of these service personnel was Nepal. In cross-examination, Lahiri said that the service personnel were called Nepali by common parlance. Lahiri also said that the service personnel filled up the forms declaring that they were Indian citizens and Lahiri himself also asked the service personnel about their citizenship. His evidence was that these members of the service personal were Indian citizens. 17. It is in evidence that the Electoral Registration Officer said that he was satisfied about the declarations of the members of the service personnel about their Indian citizenship. The High Court correctly found that in the statements furnished by the service personnel being Ex. 6 series and Ex. A series, they declared themselves to be citizens of India and the statements were verified by the Record Officer. The High Court also correctly held that no objection was taken at any stage and no notice was given to any member of the service personnel that their names would be objected to on the ground that they were not Indian citizens and they have not been given any opportunity of being heard in respect of the allegation. No such member of the service personnel was examined. There is no evidence to substantiate the allegation which was made that members of the service personnel were not Indian citizens. On the contrary, the evidence oral as well as documentary is overwhelming and unrebutted that each member of the service personnel made a statement declaring himself to be an Indian citizen.
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place of service13. A contention was advanced on behalf of the appellant that in registering the service electors the Registration Officer did not exercise his discretion but merely carried out the orders and direction of the Chief ElectoralOfficer. The High Courtreferred to the directions and instructions for preparation of electoral rolls for Armed Forces personnel and held that the statements in form No. 2 as prescribed by Rule 7 of the Registration of Electoral Rules, 1960, were checked by the Officer-in-Charge of the Record Office and were thereafter forwarded to the Chief Electoral Officer concerned in whose office the statements were sorted out according to the constituency and thereafter forwarded to the Electoral Registration Officer concerned. We agree with the reasons and conclusion of the High Court the decision of the statutory authority which acted on the declarations submitted by the service personnel verified and found to be correct was beyond any challenge on the materials on recordThe High Courtreferred to the directions and instructions for preparation of electoral rolls for Armed Forces personnel and held that the statements in form No. 2 as prescribed by Rule 7 of the Registration of Electoral Rules, 1960, were checked by the Officer-in-Charge of the Record Office and were thereafter forwarded to the Chief Electoral Officer concerned in whose office the statements were sorted out according to the constituency and thereafter forwarded to the Electoral Registration Officer concerned. We agree with the reasons and conclusion of the High Court the decision of the statutory authority which acted on the declarations submitted by the service personnel verified and found to be correct was beyond any challenge on the materials on record15. The appellant in his evidence stated that he was not clear whether the service electors were citizens of India or foreigners. It was also his evidence that when he asked the Record Officer at Shillong he learnt that may of the service personnel were not Indian citizens. The evidence of the appellant is not substantive evidence, or any proof of the allegation. Part of it is hearsay and is not corroborated. The other part is not of evidentiary value16. The appellant relied heavily on the evidence of P.W. 6, Dhrubajyoti Lahiri in proof of the allegation that the majority of the service personnel were not Indian citizens. Lahiri said that there was a Long Roll in two volumes which were marked Exs. 17 and 18. The Long Roll was the register containing the residential particulars of the personnel, the date of enrolment, and other heads of entries, namely, serial number in the book, number of personnel, rank, name, fathers name, religion and class or caste, residential particulars giving village, nearest railway station, Post Office, Tehsil and Thana, District and Province, date of birth, enrolment, discharge Education. There is no column or heading regarding nationality in the Long Roll. Ex. 19 which was tendered in evidence was a list in a tabular form. Ex. 19 was prepared by Lahiri. He said that he himself compared it with the Long Roll. Lahiris evidence was that there was no column in the Long Roll for citizenship. Lahiris evidence was that the home address of some of these service personnel was Nepal. In cross-examination, Lahiri said that the service personnel were called Nepali by common parlance. Lahiri also said that the service personnel filled up the forms declaring that they were Indian citizens and Lahiri himself also asked the service personnel about their citizenship. His evidence was that these members of the service personal were Indian citizens17. It is in evidence that the Electoral Registration Officer said that he was satisfied about the declarations of the members of the service personnel about their Indian citizenship.The High Courtcorrectly found that in the statements furnished by the service personnel being Ex. 6 series and Ex. A series, they declared themselves to be citizens of India and the statements were verified by the RecordOfficer. TheHigh Courtalso correctly held that no objection was taken at any stage and no notice was given to any member of the service personnel that their names would be objected to on the ground that they were not Indian citizens and they have not been given any opportunity of being heard in respect of the allegation. No such member of the service personnel was examined. There is no evidence to substantiate the allegation which was made that members of the service personnel were not Indian citizens. On the contrary, the evidence oral as well as documentary is overwhelming and unrebutted that each member of the service personnel made a statement declaring himself to be an Indian citizen6. This Court in B. M. Ramaswamy v. B. M. Krishnamurthy and Others, ((1963) 3 SCR 479 : AIR 1963 SC 458 : (1964) 2 SCJ 268) held that the finality of the electoral roll cannot be challenged in a proceeding impeaching the validity of the election. The effect of Section 30 of the 1950 Act was construed by this Court in the recent decision in Kabul Singh v. Kundan Singh and Others, ((1970) 1 SCR 845 : AIR 1970 SC 340 : (1970) 1 SCJ 469) to be that Sections 14 to 24 of the 1950 Act are a complete code in the matter of preparation and maintenance of electoral rolls and Section 30 of the 1950 Act does not confer jurisdiction on a Civil Court to entertain or adjudicate upon a question whether a person is or is not entitled to registrar himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the Electoral Registration Officer or any decision given by the authority appointed under the 1950 Act for the revision of any such roll7. The Civil Court therefore would have no jurisdiction to adjudicate upon a question whether the personnel of the 12th Battalion, Assam Rifles in the present case were validly registered as service electors.
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Rashtriya Sut Girni Mazdoor Sangh Through Its General Secretary Vs. S Government of Maharashtra,Ministry of Law and Judiciary | in the Workmen of Meenakshi Mills Ltd. (supra), we are not persuaded by the submission of the learned Counsel for the Union. In paragraph 40 of the report, the Apex Court held thus:As regards the second part of the contention relating to the discretion conferred on the appropriate Government to specify the authority which may exercise the power under sub-section (2), it may be stated that the said discretion is given to the Government itself and not to a subordinate officer. In Virendra v. State of Punjab, this Court was dealing with section 2 (1) (a) of the Punjab Special Powers (Press) Act, 1956, which uses the expression "the State Government or any authority so specified in this behalf". The validity of the said provision was assailed on the ground that it gave unfettered and uncontrolled discretion to the State Government or to the officer authorised by it and reliance was placed on the earlier decision of this Court in Dwarka Prasad Laxmi Narain v. State of U. P. Rejecting the said contention, this Court held: (S. C. R. p. 321)"in the first place, the discretion is given in the first instance to the State Government itself and not to a very subordinate officer like the licensing officer as was done in Dwarka Prasad case. It is true that the State Government may delegate the power to any officer or person but the fact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse of this power of delegation. "( 23 ) THOUGH the said observations were made by the Apex Court in the light of the provisions contained in section 25-N of the Act of 1947, we are of the considered view that the said observations are equally applicable to the provisions of section 25-O of the Act of 1947 and that the State Government is competent to delegate its power to the officer or authority subordinate to it. The delegation of the power by the State Government to the Commissioner of Labour under section 39 of the Industrial Disputes Act, 1947, therefore, cannot be faulted. We do not find any merit in the submission of the learned Counsel for the Union that the said delegation was mala fide. As a matter of fact, by Notification dated 17-8-1994, the powers exercisable by the State Government under sections 25-N and 25-O of the Act of 1947 have been delegated to the Commissioner of Labour. The said Notification dated 17-8-1994 reads thus:"notification Industries, Energy and Labour Department, Mantralaya, Bombay 400 032. Dated the 17th August, 1994. No. IDA-194/cr 329/lab-10-In exercise of the powers conferred by section 39 of the Industrial Disputes Act, 1947 (14 of 1947) and in suppression of the Government Notification, Industries, Energy and Labour Department, Industries, Energy and Labour Department, No. OMM. 1088/2697/lab-2, dated the 16th August, 1988, the Government of Maharashtra hereby directs that the powers exercisable by it under sections 25-N and 25-O of the said Act shall also be exercised by the Commissioner of Labour, Bombay. By Order and in the name of the Governor of Maharashtra, B. J. Pol, Under Secretary to Government. "The Notification being general in nature, the question of mala fide does not arise. The whole argument of the learned Counsel for the Union about mala fide is misconceived and does not deserve to be accepted. ( 24 ) HAVING considered the submissions of the learned Counsel for the Union as aforestated, the question now arises is whether the Commissioner of Labour was justified in rejecting the application made by the Corporation for closure of the Mill under section 25-O of the Act of 1947 on the ground of pendency of Writ Petition No. 2453 of 1987 Be it noted that the Commissioner of Labour in the impugned order dated 2-5-1997 concluded that the structure of the factory building was very old and in dilapidated condition and hence it was unsafe. He further held that the ratio of the installed capacity to capacity utilisation was very poor and it was one of the important reasons for heavy losses and subsequent illness of the Mill. The Commissioner of Labour thus held that the reasons for the closure were genuine and reasonable. Despite the aforesaid findings, the Commissioner of Labour rejected the application on the ground that Writ Petition No. 2453 of 1987 was pending. We called for the record and proceedings of Writ Petition No. 2453 of 1987 and perused the papers made therein. In the said writ petition filed by the Union, the Union has challenged the vires of sections 3 and 4 of the Bombay Relief Undertakings (Special Provisions) Act, 1958 and the Notifications issued thereunder and sought direction to the Corporation to run the Mill so as to subserve the purposes of Nationalisation Act of 1982. From the proceedings, we find that no interim order is operating in favour of the Union. In these circumstances, by mere pendency of Writ Petition No. 2453 of 1987, the application made by the Union for closure could not have been rejected, when the Commissioner of Labour found that the reasons for closure were genuine and adequate. The impugned order passed by the Commissioner of Labour on 2-5-1997 was, therefore, unsustainable and has to be set aside to the extent the application for closure has been rejected. In the light of these findings, we do not intend to examine the merits of the contention advanced by the learned Senior Counsel appearing for the Corporation that on expiry of sixty days from the date of making of application under section 25-O of the Act of 1947, since no order was passed by the Commissioner of Labour, the application was deemed to be granted and vehement opposition to this contention by the learned Counsel for the Union that, in the facts and circumstances, there could not have been deemed grant of permission, since before expiry of ninety days, the Commissioner of Labour rejected the application. | 0[ds]( 8 ) THERE is no dispute that the Mill ceased production and went in liquidation in the month of February, 1969 and this Court passed winding up order in the month of September, 1973 in respect of the said Mill. There is also no dispute that in the month of February, 1974, the Mill was taken over by the Government of India at the instance of the Government of Maharashtra under section(2) of the Industries (Development and Regulation) Act, 1951, and that the Government of Maharashtra exercised the powers conferred on it under the Bombay Relief Undertakings (Special Provisions) Act, 1958 and declared by its Notification datedthe Mill as "relief Undertaking" and similar Notifications were issued from time to time tillwhen the Government of Maharashtra promulgated the Ordinance, which later on became the Act vide Maharashtra Act No. XXXIII ofis true that the Act of 1982 was enacted to provide for the acquisition of the Mill for the purpose of ensuring continued and increased production of goods manufactured by the Mill. The Mill was being wound up under the supervision of the High Court and the management of the Mill was taken over by the Corporation on behalf of the Government of India under section 18fa of the Industries (Development and Regulation) Act, 1951. In order to ensure continued and increased production of goods, the Mill was acquired initially by promulgation of ordinance, which later on was repealed and enacted in the Act of 1982. The Act came into force onSection 3 of the Act of 1982 provides that on the "appointed day", that isthe right, title and interest of the Mill shall stand transferred to and shall vest absolutely in the State Government. It further provides that after the Mill is vested in the State Government, it shall stand transferred to and vested in the Corporation. Section 7 provides for issuance of shares by the Corporation for the value of assets transferred to it by the State Government. The management and administration of the Mill is provided under section 9 of the Act of 1982, which provides that the Mill shall be managed on behalf of the Corporation by such person or body of persons as may be nominated by the Corporation in this behalf and such person or body of persons shall carry on management in accordance with such regulations as may be made by the Corporation in this behalf with the previous approval of the State Government. It is thus provided under section 9 that the Mill shall be managed by the Corporation. Section 10 makes a provision that the employees, who were in employment immediately before the "appointed day", shall become the employees of the Corporation with the same rights and privileges as if the Mill has not been transferred and vested in the Corporation and their employment shall continue unless and until their employment in the Corporation is duly terminated or until their remuneration and other conditions of service are duly altered by the Corporation. Thus section 10 provides that the erstwhile employees, who had become employees of the Corporation on transfer of the Mill, shall continue in employment so long as their services are not duly terminated. In other words, the employment of esrtwhile employees, who became employees of the Corporation, could be brought to an end in accordance with law. An employment of an employee can come to an end by various modes and closure of the Mill is one of the modes by which the employment of the employee can be duly terminated. There is absolutely no provision in the Act of 1982 prohibiting the Corporation from closing the Mill while acting in accordance with law and under various enactments about which the Act of 1982 is silent. The Act of 1982 cannot be read to mean that once the Mill has been acquired under the said Act, it should be necessarily continued to run in perpetuity, even if it has become financiallyand there are genuine, valid and adequate grounds for its closure. Merely because the Mill came to be acquired under the Act of 1982 and vested in the State Government thereunder and then transferred to the Corporation, can it be said that the Corporation is compelled to run the said Mill irrespective of numerous valid reasons, which do not justify its continuance. After acquisition of the Mill under the Act of 1982 by the State Government and thereafter transfer to the Corporation, the various enactments, which govern the relationship of the employer and employee between the Mill and its employees cannot be excluded. We find ourselves unable to agree with the submission of the learned Counsel for the Union that since the Act of 1982 is holding the field and is occupied, it was not open to the State Government to decide closure of the16 ) THERE cannot be any quarrel on the proposition that the executive or the State power cannot be exercised in derogation of law made by the competent legislature. The question, in the facts and circumstances and in the light of the Act of 1982, is whether the State Government, by taking decision to close the Mill, has exercised power in derogation of the Act of 1982 For the reasons already indicated by us above, it cannot be held that the decision to close down the Mill by the State Government, or for that matter, by making an application under sectionof the Act of 1947 by the Corporation, is inconsistent or contrary to or in derogation of the Act of 1982. By referring to the various provisions of the Act of 1982, we have already indicated that the said Act of 1982 does not prohibit the State Government or, for that matter, the Corporation, to take a decision for the closure of the Mill. Rather the provisions contained in sections 9 and 10 of the Act of 1982 do lead to the conclusion that the Corporation is empowered to terminate the employment of the employees in accordance with law, and that would not exclude the termination of employment of the employees as a result of closure. We, therefore, are unable to agree with the submission of the learned Counsel for the Union that the action of the Corporation in making the application under sectionof the Act of 1947 is contrary to the Act of17 ) IN so far as the contention of the learned Counsel for the Union that the Cabinet has not taken a decision to close the Mill is concerned, we are of the view that such submission has been made by misconstruing the communication datedsent by the State Government to the Corporation. Since there was a dispute about the exact English translation of the documentwe got the English translation of the said document done from the Official Translator of this Court, marked "x" for identification18 ) IT would be thus seen from the aforesaid document that in the meeting held onthe Cabinet decided to close down the Mill, as the machinery of the Mill was old and worn out. The Cabinet further decided that the employees/workers in the said Mill should be given voluntary retirement. As the Cabinet was competent to take such decision and such decision having been taken, no fault can be found in the said decision. In Dayakar Reddys case (supra), the Apex Court observed that in a case where the company is a State Government undertaking, the State has to take an administrative decision first and then adecision under section19 ) IN the present case also, the facts are eloquent. In the application, the facts are: (i) old and outdated building and machinery and very low productivity, (ii) continuous heavy losses; (iii) the Mill is(iv) the liabilities as onamounting to Rs. 813. 91 lakhs exceed the assets which are at Rs. 139. 05 lakhs; (v) the Corporation is a sick company as per the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 and a reference has already been by the Corporation to the Board of Industrial Finance and Reconstruction and as per the report of the operating Agency (IDBI) appointed by B. I. F. R. , the Mill is unviable and has been recommended for closure, etc. Besides that, during the course of arguments, Shri Deshpande, the learned Senior Counsel, after seeking instructions from the Manager of the Corporation, who was in Court, submitted that at the time of acquisition, there were 900 employees. Out of which, 600 employees have already retired and on the date of the application made under sectionof the Act of 1947, only 300 employees were in employment. Even the Commissioner of Labour has found the reasons assigned by the Corporation for closure genuine and adequate. For all these reasons, it cannot be said that the Cabinet decision for closure was not in accordance with law or was inconsistent with the provisions of the Act of 1982 or that the application made by the Corporation under sectionof the Act of 1947 seeking closure of the Millwas beyond its authority or20 ) SINCE the running of the Mill had becomeand in the light of its liabilities, which are more than six times its assets, the submissions of the learned Counsel for the Union that the application made by the Corporation under sectionof the Act of 1947 seeking closure of Mill is violative of Articles 14 and 21 of the Constitution of India, cannot be accepted. It is true that by acquisition of the Mill by the State Government and its transfer and further vesting in the Corporation was for the purpose of protecting the employment of its employees, but by passage of time if the objects of acquisition could not be achieved and the Mill continued to run in heavy losses and it became absolutelyit was open to the Corporation to apply for its closure. There is no merit in the submission of the learned Counsel for the Union that by the Act of 1982, the livelihood of the employees is protected for all times to come. We have already referred to section 10 of the the Act of 1982, which provides for termination of the employees in accordance with law and, therefore, it cannot be said that the employment of the employees was perpetually protected. Reliance placed by the learned Counsel for the Union on paragraphs 32 and 33 of the case of Olga Tellis (supra), paragraphs 230 to 240, 269, 274, 296 and 298 of the Delhi Transport Corporations case (supra) and paragraphs 40 to 47 and 49 of the Air India Statutory Corporations case (supra) do not help the Union in the facts and circumstances of the present case and, therefore, we are not burdening this judgment by quoting the aforesaid judgments1 ) NOW, we may turn to the submission of the learned Counsel for the Union that the delegation of power by the State Government to the Commissioner of Labour Under section 39 of the Act of 1947 is bad in law and is actuated with malice. The learned Counsel for the Union submitted that the delegation is mala fide, because the power is entrusted for one purpose and is deliberately used with the design of achieving another, which is unauthorised or forbidden. On facts, the learned Counsel for the Union submitted that onthe Commissioner of Labour refused to accept the copy of Unions reply to the application made by the Corporation under sectionof the Act of 1947 and, therefore, a letter was sent by the Union to the Government of India by registered A/d, which was not replied by the State23 ) THOUGH the said observations were made by the Apex Court in the light of the provisions contained in sectionof the Act of 1947, we are of the considered view that the said observations are equally applicable to the provisions of sectionof the Act of 1947 and that the State Government is competent to delegate its power to the officer or authority subordinate to it. The delegation of the power by the State Government to the Commissioner of Labour under section 39 of the Industrial Disputes Act, 1947, therefore, cannot be faulted. We do not find any merit in the submission of the learned Counsel for the Union that the said delegation was mala fide. As a matter of fact, by Notification datedthe powers exercisable by the State Government under sectionsof the Act of 1947 have been delegated to the Commissioner ofit noted that the Commissioner of Labour in the impugned order datedconcluded that the structure of the factory building was very old and in dilapidated condition and hence it was unsafe. He further held that the ratio of the installed capacity to capacity utilisation was very poor and it was one of the important reasons for heavy losses and subsequent illness of the Mill. The Commissioner of Labour thus held that the reasons for the closure were genuine and reasonable. Despite the aforesaid findings, the Commissioner of Labour rejected the application on the ground that Writ Petition No. 2453 of 1987 was pending. We called for the record and proceedings of Writ Petition No. 2453 of 1987 and perused the papers made therein. In the said writ petition filed by the Union, the Union has challenged the vires of sections 3 and 4 of the Bombay Relief Undertakings (Special Provisions) Act, 1958 and the Notifications issued thereunder and sought direction to the Corporation to run the Mill so as to subserve the purposes of Nationalisation Act of 1982. From the proceedings, we find that no interim order is operating in favour of the Union. In these circumstances, by mere pendency of Writ Petition No. 2453 of 1987, the application made by the Union for closure could not have been rejected, when the Commissioner of Labour found that the reasons for closure were genuine and adequate. The impugned order passed by the Commissioner of Labour onwas, therefore, unsustainable and has to be set aside to the extent the application for closure has been rejected. In the light of these findings, we do not intend to examine the merits of the contention advanced by the learned Senior Counsel appearing for the Corporation that on expiry of sixty days from the date of making of application under sectionof the Act of 1947, since no order was passed by the Commissioner of Labour, the application was deemed to be granted and vehement opposition to this contention by the learned Counsel for the Union that, in the facts and circumstances, there could not have been deemed grant of permission, since before expiry of ninety days, the Commissioner of Labour rejected the application. | 0 | 10,350 | 2,663 | ### Instruction:
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in the Workmen of Meenakshi Mills Ltd. (supra), we are not persuaded by the submission of the learned Counsel for the Union. In paragraph 40 of the report, the Apex Court held thus:As regards the second part of the contention relating to the discretion conferred on the appropriate Government to specify the authority which may exercise the power under sub-section (2), it may be stated that the said discretion is given to the Government itself and not to a subordinate officer. In Virendra v. State of Punjab, this Court was dealing with section 2 (1) (a) of the Punjab Special Powers (Press) Act, 1956, which uses the expression "the State Government or any authority so specified in this behalf". The validity of the said provision was assailed on the ground that it gave unfettered and uncontrolled discretion to the State Government or to the officer authorised by it and reliance was placed on the earlier decision of this Court in Dwarka Prasad Laxmi Narain v. State of U. P. Rejecting the said contention, this Court held: (S. C. R. p. 321)"in the first place, the discretion is given in the first instance to the State Government itself and not to a very subordinate officer like the licensing officer as was done in Dwarka Prasad case. It is true that the State Government may delegate the power to any officer or person but the fact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse of this power of delegation. "( 23 ) THOUGH the said observations were made by the Apex Court in the light of the provisions contained in section 25-N of the Act of 1947, we are of the considered view that the said observations are equally applicable to the provisions of section 25-O of the Act of 1947 and that the State Government is competent to delegate its power to the officer or authority subordinate to it. The delegation of the power by the State Government to the Commissioner of Labour under section 39 of the Industrial Disputes Act, 1947, therefore, cannot be faulted. We do not find any merit in the submission of the learned Counsel for the Union that the said delegation was mala fide. As a matter of fact, by Notification dated 17-8-1994, the powers exercisable by the State Government under sections 25-N and 25-O of the Act of 1947 have been delegated to the Commissioner of Labour. The said Notification dated 17-8-1994 reads thus:"notification Industries, Energy and Labour Department, Mantralaya, Bombay 400 032. Dated the 17th August, 1994. No. IDA-194/cr 329/lab-10-In exercise of the powers conferred by section 39 of the Industrial Disputes Act, 1947 (14 of 1947) and in suppression of the Government Notification, Industries, Energy and Labour Department, Industries, Energy and Labour Department, No. OMM. 1088/2697/lab-2, dated the 16th August, 1988, the Government of Maharashtra hereby directs that the powers exercisable by it under sections 25-N and 25-O of the said Act shall also be exercised by the Commissioner of Labour, Bombay. By Order and in the name of the Governor of Maharashtra, B. J. Pol, Under Secretary to Government. "The Notification being general in nature, the question of mala fide does not arise. The whole argument of the learned Counsel for the Union about mala fide is misconceived and does not deserve to be accepted. ( 24 ) HAVING considered the submissions of the learned Counsel for the Union as aforestated, the question now arises is whether the Commissioner of Labour was justified in rejecting the application made by the Corporation for closure of the Mill under section 25-O of the Act of 1947 on the ground of pendency of Writ Petition No. 2453 of 1987 Be it noted that the Commissioner of Labour in the impugned order dated 2-5-1997 concluded that the structure of the factory building was very old and in dilapidated condition and hence it was unsafe. He further held that the ratio of the installed capacity to capacity utilisation was very poor and it was one of the important reasons for heavy losses and subsequent illness of the Mill. The Commissioner of Labour thus held that the reasons for the closure were genuine and reasonable. Despite the aforesaid findings, the Commissioner of Labour rejected the application on the ground that Writ Petition No. 2453 of 1987 was pending. We called for the record and proceedings of Writ Petition No. 2453 of 1987 and perused the papers made therein. In the said writ petition filed by the Union, the Union has challenged the vires of sections 3 and 4 of the Bombay Relief Undertakings (Special Provisions) Act, 1958 and the Notifications issued thereunder and sought direction to the Corporation to run the Mill so as to subserve the purposes of Nationalisation Act of 1982. From the proceedings, we find that no interim order is operating in favour of the Union. In these circumstances, by mere pendency of Writ Petition No. 2453 of 1987, the application made by the Union for closure could not have been rejected, when the Commissioner of Labour found that the reasons for closure were genuine and adequate. The impugned order passed by the Commissioner of Labour on 2-5-1997 was, therefore, unsustainable and has to be set aside to the extent the application for closure has been rejected. In the light of these findings, we do not intend to examine the merits of the contention advanced by the learned Senior Counsel appearing for the Corporation that on expiry of sixty days from the date of making of application under section 25-O of the Act of 1947, since no order was passed by the Commissioner of Labour, the application was deemed to be granted and vehement opposition to this contention by the learned Counsel for the Union that, in the facts and circumstances, there could not have been deemed grant of permission, since before expiry of ninety days, the Commissioner of Labour rejected the application.
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has found the reasons assigned by the Corporation for closure genuine and adequate. For all these reasons, it cannot be said that the Cabinet decision for closure was not in accordance with law or was inconsistent with the provisions of the Act of 1982 or that the application made by the Corporation under sectionof the Act of 1947 seeking closure of the Millwas beyond its authority or20 ) SINCE the running of the Mill had becomeand in the light of its liabilities, which are more than six times its assets, the submissions of the learned Counsel for the Union that the application made by the Corporation under sectionof the Act of 1947 seeking closure of Mill is violative of Articles 14 and 21 of the Constitution of India, cannot be accepted. It is true that by acquisition of the Mill by the State Government and its transfer and further vesting in the Corporation was for the purpose of protecting the employment of its employees, but by passage of time if the objects of acquisition could not be achieved and the Mill continued to run in heavy losses and it became absolutelyit was open to the Corporation to apply for its closure. There is no merit in the submission of the learned Counsel for the Union that by the Act of 1982, the livelihood of the employees is protected for all times to come. We have already referred to section 10 of the the Act of 1982, which provides for termination of the employees in accordance with law and, therefore, it cannot be said that the employment of the employees was perpetually protected. Reliance placed by the learned Counsel for the Union on paragraphs 32 and 33 of the case of Olga Tellis (supra), paragraphs 230 to 240, 269, 274, 296 and 298 of the Delhi Transport Corporations case (supra) and paragraphs 40 to 47 and 49 of the Air India Statutory Corporations case (supra) do not help the Union in the facts and circumstances of the present case and, therefore, we are not burdening this judgment by quoting the aforesaid judgments1 ) NOW, we may turn to the submission of the learned Counsel for the Union that the delegation of power by the State Government to the Commissioner of Labour Under section 39 of the Act of 1947 is bad in law and is actuated with malice. The learned Counsel for the Union submitted that the delegation is mala fide, because the power is entrusted for one purpose and is deliberately used with the design of achieving another, which is unauthorised or forbidden. On facts, the learned Counsel for the Union submitted that onthe Commissioner of Labour refused to accept the copy of Unions reply to the application made by the Corporation under sectionof the Act of 1947 and, therefore, a letter was sent by the Union to the Government of India by registered A/d, which was not replied by the State23 ) THOUGH the said observations were made by the Apex Court in the light of the provisions contained in sectionof the Act of 1947, we are of the considered view that the said observations are equally applicable to the provisions of sectionof the Act of 1947 and that the State Government is competent to delegate its power to the officer or authority subordinate to it. The delegation of the power by the State Government to the Commissioner of Labour under section 39 of the Industrial Disputes Act, 1947, therefore, cannot be faulted. We do not find any merit in the submission of the learned Counsel for the Union that the said delegation was mala fide. As a matter of fact, by Notification datedthe powers exercisable by the State Government under sectionsof the Act of 1947 have been delegated to the Commissioner ofit noted that the Commissioner of Labour in the impugned order datedconcluded that the structure of the factory building was very old and in dilapidated condition and hence it was unsafe. He further held that the ratio of the installed capacity to capacity utilisation was very poor and it was one of the important reasons for heavy losses and subsequent illness of the Mill. The Commissioner of Labour thus held that the reasons for the closure were genuine and reasonable. Despite the aforesaid findings, the Commissioner of Labour rejected the application on the ground that Writ Petition No. 2453 of 1987 was pending. We called for the record and proceedings of Writ Petition No. 2453 of 1987 and perused the papers made therein. In the said writ petition filed by the Union, the Union has challenged the vires of sections 3 and 4 of the Bombay Relief Undertakings (Special Provisions) Act, 1958 and the Notifications issued thereunder and sought direction to the Corporation to run the Mill so as to subserve the purposes of Nationalisation Act of 1982. From the proceedings, we find that no interim order is operating in favour of the Union. In these circumstances, by mere pendency of Writ Petition No. 2453 of 1987, the application made by the Union for closure could not have been rejected, when the Commissioner of Labour found that the reasons for closure were genuine and adequate. The impugned order passed by the Commissioner of Labour onwas, therefore, unsustainable and has to be set aside to the extent the application for closure has been rejected. In the light of these findings, we do not intend to examine the merits of the contention advanced by the learned Senior Counsel appearing for the Corporation that on expiry of sixty days from the date of making of application under sectionof the Act of 1947, since no order was passed by the Commissioner of Labour, the application was deemed to be granted and vehement opposition to this contention by the learned Counsel for the Union that, in the facts and circumstances, there could not have been deemed grant of permission, since before expiry of ninety days, the Commissioner of Labour rejected the application.
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Promoters & Builders Assn.Of Pune Vs. State Of Maharashtra | furtherance of the object of the grant of the land in favour of the Nuclear Power Corporation. The appellant-builders contend that there is no commercial exploitation of the dug up earth inasmuch as the same is redeployed in the construction activity itself. In the case of the Nuclear Power Corporation it is the specific case of the Corporation that extract of earth is a consequence of the use of the land for the purposes of the grant thereof and that there is no commercial exploitation of the excavated earth inasmuch as "the soil being excavated for "Intake Channel" was not sent outside or sold to anybody for commercial gain". 14. None of the provisions contained in the MRTP Act referred to above or the provisions of Rule 6 of the Rules of 1968 would have a material bearing in judging the validity of the impugned actions inasmuch as none of the said provisions can obviate the necessity of a mining license/permission under the Act of 1957 if the same is required to regulate the activities undertaken in the present case by the appellants. It will, therefore, not be necessary to delve into the arguments raised on the aforesaid score. Suffice it would be to say that unless the excavation undertaken by the appellant-builders is for any of the purposes contemplated by the Notification dated 3.2.2000 the liability of such builders to penalty under Section 48(7) of the Code would be in serious doubt. 15. Though Section 2(j) of the Mines Act, 1952 which defines Mine and the expression "mining operations" appearing in Section 3(d) of the Act of 1957 may contemplate a somewhat elaborate process of extraction of a mineral, in view of the Notification dated 3.2.2000, insofar as ordinary earth is concerned, a simple process of excavation may also amount to a mining operation in any given situation. However, as seen, the operation of the said Notification has an inbuilt restriction. It is ordinary earth used only for the purposes enumerated therein, namely, filling or leveling purposes in construction of an embankment, road, railways and buildings which alone is a minor mineral. Excavation of ordinary earth for uses not contemplated in the aforesaid Notification, therefore, would not amount to a mining activity so as to attract the wrath of the provisions of either the Code or the Act of 1957. 16. As use can only follow extraction or excavation it is the purpose of the excavation that has to be seen. The liability under Section 48(7) for excavation of ordinary earth would, therefore, truly depend on a determination of the use/purpose for which the excavated earth had been put to. An excavation undertaken to lay the foundation of a building would not, ordinarily, carry the intention to use the excavated earth for the purpose of filling up or levelling. A blanket determination of liability merely because ordinary earth was dug up, therefore, would not be justified; what would be required is a more precise determination of the end use of the excavated earth; a finding on the correctness of the stand of the builders that the extracted earth was not used commercially but was redeployed in the building operations. If the determination was to return a finding in favour of the claim made by the builders, obviously, the Notification dated 3.2.2000 would have no application; the excavated earth would not be a specie of minor mineral under Section 3(e) of the Act of 1957 read with the Notification dated 3.2.2000. 17. Insofar as the appeal filed by the Nuclear Power Corporation is concerned, the purpose of excavation, ex facie, being relatable to the purpose of the grant of the land to the Corporation by the State Government, the extraction of ordinary earth was clearly not for the purposes spelt out by the said Notification dated 03.02.2000. The process undertaken by the Corporation is to further the objects of the grant in the course of which the excavation of earth is but coincidental. In this regard we must notice with approval the following views expressed by the Bombay High Court in Rashtriya Chemicals and Fertilizers Limited Vs. State of Maharashtra and Others [AIR 1993 Bombay 144] while dealing with a somewhat similar question. 18. If it were a mere question of Mines and Minerals Act, 1957 covering the removal of earth, there cannot be possibly any doubt whatever, now, in view of the very wide definition of the term contained in the enactment itself, and as interpreted by the authoritative pronouncements of the Supreme Court. As noted earlier, the question involved in the present case is not to be determined with reference to the Central enactment but with reference to the clauses in the grant and the provisions in the Code. When it is noted that the Company was given the land for the purpose of erecting massive structures as needed in setting up a chemical factory of the designs and dimensions of the company, the context would certainly rule out a reservation for the State Government of the earth that is found in the land. That will very much defeat the purpose of the grant itself. Every use of the sod, or piercing of the land with a pick-axe, would, in that eventuality, require sanction of the authorities. The interpretation so placed, would frustrate the intention of the grant and lead to patently absurd results. To equate the earth removed in the process of digging a foundation, or otherwise, as a mineral product, in that context, would be a murder of an alien but lovely language. The reading of the entire grant, would certainly rule out a proposition equating every pebble or particle of soil in the granted land as partaking the character of a mineral product. In the light of the above conclusion, I am clearly of the view that the orders of the authorities, are vitiated by errors of law apparent on the face of the record. They are liable to be quashed. I do so." 19. | 1[ds]If it were a mere question of Mines and Minerals Act, 1957 covering the removal of earth, there cannot be possibly any doubt whatever, now, in view of the very wide definition of the term contained in the enactment itself, and as interpreted by the authoritative pronouncements of the Supreme Court. As noted earlier, the question involved in the present case is not to be determined with reference to the Central enactment but with reference to the clauses in the grant and the provisions in the Code. When it is noted that the Company was given the land for the purpose of erecting massive structures as needed in setting up a chemical factory of the designs and dimensions of the company, the context would certainly rule out a reservation for the State Government of the earth that is found in the land. That will very much defeat the purpose of the grant itself. Every use of the sod, or piercing of the land with a pick-axe, would, in that eventuality, require sanction of the authorities. The interpretation so placed, would frustrate the intention of the grant and lead to patently absurd results. To equate the earth removed in the process of digging a foundation, or otherwise, as a mineral product, in that context, would be a murder of an alien but lovely language. The reading of the entire grant, would certainly rule out a proposition equating every pebble or particle of soil in the granted land as partaking the character of a mineral product. In the light of the above conclusion, I am clearly of the view that the orders of the authorities, are vitiated by errors of law apparent on the face of the record. They are liable to be quashed. I do so." | 1 | 3,278 | 331 | ### Instruction:
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furtherance of the object of the grant of the land in favour of the Nuclear Power Corporation. The appellant-builders contend that there is no commercial exploitation of the dug up earth inasmuch as the same is redeployed in the construction activity itself. In the case of the Nuclear Power Corporation it is the specific case of the Corporation that extract of earth is a consequence of the use of the land for the purposes of the grant thereof and that there is no commercial exploitation of the excavated earth inasmuch as "the soil being excavated for "Intake Channel" was not sent outside or sold to anybody for commercial gain". 14. None of the provisions contained in the MRTP Act referred to above or the provisions of Rule 6 of the Rules of 1968 would have a material bearing in judging the validity of the impugned actions inasmuch as none of the said provisions can obviate the necessity of a mining license/permission under the Act of 1957 if the same is required to regulate the activities undertaken in the present case by the appellants. It will, therefore, not be necessary to delve into the arguments raised on the aforesaid score. Suffice it would be to say that unless the excavation undertaken by the appellant-builders is for any of the purposes contemplated by the Notification dated 3.2.2000 the liability of such builders to penalty under Section 48(7) of the Code would be in serious doubt. 15. Though Section 2(j) of the Mines Act, 1952 which defines Mine and the expression "mining operations" appearing in Section 3(d) of the Act of 1957 may contemplate a somewhat elaborate process of extraction of a mineral, in view of the Notification dated 3.2.2000, insofar as ordinary earth is concerned, a simple process of excavation may also amount to a mining operation in any given situation. However, as seen, the operation of the said Notification has an inbuilt restriction. It is ordinary earth used only for the purposes enumerated therein, namely, filling or leveling purposes in construction of an embankment, road, railways and buildings which alone is a minor mineral. Excavation of ordinary earth for uses not contemplated in the aforesaid Notification, therefore, would not amount to a mining activity so as to attract the wrath of the provisions of either the Code or the Act of 1957. 16. As use can only follow extraction or excavation it is the purpose of the excavation that has to be seen. The liability under Section 48(7) for excavation of ordinary earth would, therefore, truly depend on a determination of the use/purpose for which the excavated earth had been put to. An excavation undertaken to lay the foundation of a building would not, ordinarily, carry the intention to use the excavated earth for the purpose of filling up or levelling. A blanket determination of liability merely because ordinary earth was dug up, therefore, would not be justified; what would be required is a more precise determination of the end use of the excavated earth; a finding on the correctness of the stand of the builders that the extracted earth was not used commercially but was redeployed in the building operations. If the determination was to return a finding in favour of the claim made by the builders, obviously, the Notification dated 3.2.2000 would have no application; the excavated earth would not be a specie of minor mineral under Section 3(e) of the Act of 1957 read with the Notification dated 3.2.2000. 17. Insofar as the appeal filed by the Nuclear Power Corporation is concerned, the purpose of excavation, ex facie, being relatable to the purpose of the grant of the land to the Corporation by the State Government, the extraction of ordinary earth was clearly not for the purposes spelt out by the said Notification dated 03.02.2000. The process undertaken by the Corporation is to further the objects of the grant in the course of which the excavation of earth is but coincidental. In this regard we must notice with approval the following views expressed by the Bombay High Court in Rashtriya Chemicals and Fertilizers Limited Vs. State of Maharashtra and Others [AIR 1993 Bombay 144] while dealing with a somewhat similar question. 18. If it were a mere question of Mines and Minerals Act, 1957 covering the removal of earth, there cannot be possibly any doubt whatever, now, in view of the very wide definition of the term contained in the enactment itself, and as interpreted by the authoritative pronouncements of the Supreme Court. As noted earlier, the question involved in the present case is not to be determined with reference to the Central enactment but with reference to the clauses in the grant and the provisions in the Code. When it is noted that the Company was given the land for the purpose of erecting massive structures as needed in setting up a chemical factory of the designs and dimensions of the company, the context would certainly rule out a reservation for the State Government of the earth that is found in the land. That will very much defeat the purpose of the grant itself. Every use of the sod, or piercing of the land with a pick-axe, would, in that eventuality, require sanction of the authorities. The interpretation so placed, would frustrate the intention of the grant and lead to patently absurd results. To equate the earth removed in the process of digging a foundation, or otherwise, as a mineral product, in that context, would be a murder of an alien but lovely language. The reading of the entire grant, would certainly rule out a proposition equating every pebble or particle of soil in the granted land as partaking the character of a mineral product. In the light of the above conclusion, I am clearly of the view that the orders of the authorities, are vitiated by errors of law apparent on the face of the record. They are liable to be quashed. I do so." 19.
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If it were a mere question of Mines and Minerals Act, 1957 covering the removal of earth, there cannot be possibly any doubt whatever, now, in view of the very wide definition of the term contained in the enactment itself, and as interpreted by the authoritative pronouncements of the Supreme Court. As noted earlier, the question involved in the present case is not to be determined with reference to the Central enactment but with reference to the clauses in the grant and the provisions in the Code. When it is noted that the Company was given the land for the purpose of erecting massive structures as needed in setting up a chemical factory of the designs and dimensions of the company, the context would certainly rule out a reservation for the State Government of the earth that is found in the land. That will very much defeat the purpose of the grant itself. Every use of the sod, or piercing of the land with a pick-axe, would, in that eventuality, require sanction of the authorities. The interpretation so placed, would frustrate the intention of the grant and lead to patently absurd results. To equate the earth removed in the process of digging a foundation, or otherwise, as a mineral product, in that context, would be a murder of an alien but lovely language. The reading of the entire grant, would certainly rule out a proposition equating every pebble or particle of soil in the granted land as partaking the character of a mineral product. In the light of the above conclusion, I am clearly of the view that the orders of the authorities, are vitiated by errors of law apparent on the face of the record. They are liable to be quashed. I do so."
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Commissioner of Income Tax Vs. Gujarat Cypromet Ltd | incurred by the Assessee according to the method of accounting regularly employed by him) only in computing the income referred to in Section 28 of that previous year in which such sum is actually paid by him. 8. As noted above, Explanation 3C was inserted by the Finance Act, 2006, with retrospective effect from April 1, 1989 which is to the following effect: Explanation 3C.--For the removal of doubts, it is hereby declared that a deduction of any sum, being interest payable under Clause (d) of this section, shall be allowed if such interest has been actually paid and any interest referred to in that Clause which has been converted into a loan or borrowing shall not be deemed to have been actually paid. 9. The appellate authority has noticed the facts in para 12 as extracted above which needs no repetition. 10. The interest liability which accrued during the relevant assessment year was not actually paid back by the Assessee rather was sought to be adjusted in the further loan of Rs. 8 crores which was obtained by the Industrial Development Bank of India. 11. The judgment of the Delhi High Court relied upon by the learned Counsel for the Appellant refers to Section 43B as well as Explanation 3C and held that Explanation 3C having retrospective effect with effect from April 1, 1989 shall be applicable to the year in question. The Delhi High Court in its judgment has referred to the judgment of the Madhya Pradesh High Court in Eicher Motors Limited (supra). It is useful to refer to paras 11 and 12 of the judgment. 12. In so concluding, this Court is supported by the decision of the Madhya Pradesh High Court in Eicher Motors Ltd. v. CIT (2009) 315 ITR 312 (MP) and subsequently, the judgment of the High Court of Telangana and Andhra Pradesh in CIT v. Pennar Profiles Limited (ITA No. 289 of 2003, decided on February 11, 2015 (2015) 376 ITR 355 (T&AP)). In Eicher Motors, the court noted2: As observed supra, Explanation 3C has now in clear terms provided that such conversion of interest amount into loan shall not be deemed to be regarded as actually paid amount within the meaning of Section 43B. In view of clear legislative mandate removing this doubt and making the intention of the Legislature clear in relation to such transaction, it is not now necessary for this Court to interpret the unamended Section 43B in detail, nor is it necessary for this Court to take note of facts in detail as also the submissions urged in support of various contentions except to place reliance on Explanation 3C to Section 43B and answer the questions against the Assessee and in favour of Revenue. The court in Pennar Profiles Limited (supra) considered the decisions in Mahindra Nissan Allywin Ltd. [1998] 233 ITR 493 (AP), Vinir Engineering P. Ltd. [2009] 313 ITR 154 (Karn) and Eicher Motors (supra) and held as follows (page 359 of 376 ITR): In this backdrop, we have perused the provisions contained in Section 43B of the Act, in particular, Explanation 3C thereof, which was inserted by the Finance Act, 2006 with retrospective effect from April 1, 1989. This provision was inserted in 2006 and hence, this Court in Mahindra Nissans case, had no occasion to deal with the case in the light of this provision. In so far as the Karnataka High Court is concerned, though this provision was existing on the date of judgment, it appears that it was not brought to the notice of learned Judges and, hence, the Division Bench proceeded to consider and decide the appeal of the Assessee without referring to Explanation 3C appended to Section 43B of the Act. As a matter of fact, from reading of Explanation 3C, in our opinion, the question as raised in the present appeals stands answered without further discussion. This provision was inserted for removal of doubts and it was declared that deduction of any sum, being interest payable under Clause (d) of Section 43B of the Act, shall be allowed if such interest has been actually paid and any interest referred to in that clause, which has been converted into a loan or borrowing, shall not be deemed to have been actually paid. Thus, the doubt stands removed in view of Explanation 3C. This provision was considered by the Madhya Pradesh High Court in Eicher Motors Limited v. CIT to hold that in view of Explanation 3C appended to Section 43B with retrospective effect from April 1, 1989, conversion of interest amount into loan would not be deemed to be regarded as actually paid amount within the meaning of Section 43B of the Act. In the light of the introduction of Explanation 3C, this Court does not consider it necessary to discuss the precedents relied upon by the Assessee delivered prior to the enactment of Finance Act, 2006. As regards the decision in Shakti Spring Industries P. Ltd. [2013] 219 Taxman 124 (Jharkhand) (Mag.), the interest due in that case was offset against a subsidy which the Assessee was entitled to, and it did not involve an instance where it was converted into a loan or borrowing within the meaning of Explanation 3C. It is perhaps for this reason that Explanation 3C was not discussed. 13. In the impugned judgment, the Gujarat High Court has relied upon Bhagwati Autocast Ltd. (supra) which was not a case covered by Section 43B(d) rather was a case of Section 43B(a). The provisions of Section 43B covers a host of different situations. The statutory Explanation 3C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3C, we are, thus, of the view that the Assessing Officer has rightly disallowed the deduction as claimed by the Assessee. The appellate authority, the Income-tax Appellate Tribunal and the High Court erred in reversing the said disallowance. | 1[ds]9. The appellate authority has noticed the facts in para 12 as extracted above which needs no repetition10. The interest liability which accrued during the relevant assessment year was not actually paid back by the Assessee rather was sought to be adjusted in the further loan of Rs. 8 crores which was obtained by the Industrial Development Bank of India12. In so concluding, this Court is supported by the decision of the Madhya Pradesh High Court in Eicher Motors Ltd. v. CIT (2009) 315 ITR 312 (MP) and subsequently, the judgment of the High Court of Telangana and Andhra Pradesh in CIT v. Pennar Profiles Limited (ITA No. 289 of 2003, decided on February 11, 2015 (2015) 376 ITR 355 (T&AP)). In Eicher Motors, the court noted2:As observed supra, Explanation 3C has now in clear terms provided that such conversion of interest amount into loan shall not be deemed to be regarded as actually paid amount within the meaning of Section 43B. In view of clear legislative mandate removing this doubt and making the intention of the Legislature clear in relation to such transaction, it is not now necessary for this Court to interpret the unamended Section 43B in detail, nor is it necessary for this Court to take note of facts in detail as also the submissions urged in support of various contentions except to place reliance on Explanation 3C to Section 43B and answer the questions against the Assessee and in favour of RevenueThe court in Pennar Profiles Limited (supra) considered the decisions in Mahindra Nissan Allywin Ltd. [1998] 233 ITR 493 (AP), Vinir Engineering P. Ltd. [2009] 313 ITR 154 (Karn) and Eicher Motors (supra) and held as follows (page 359 of 376 ITR):In this backdrop, we have perused the provisions contained in Section 43B of the Act, in particular, Explanation 3C thereof, which was inserted by the Finance Act, 2006 with retrospective effect from April 1, 1989. This provision was inserted in 2006 and hence, this Court in Mahindra Nissans case, had no occasion to deal with the case in the light of this provision. In so far as the Karnataka High Court is concerned, though this provision was existing on the date of judgment, it appears that it was not brought to the notice of learned Judges and, hence, the Division Bench proceeded to consider and decide the appeal of the Assessee without referring to Explanation 3C appended to Section 43B of the ActAs a matter of fact, from reading of Explanation 3C, in our opinion, the question as raised in the present appeals stands answered without further discussion. This provision was inserted for removal of doubts and it was declared that deduction of any sum, being interest payable under Clause (d) of Section 43B of the Act, shall be allowed if such interest has been actually paid and any interest referred to in that clause, which has been converted into a loan or borrowing, shall not be deemed to have been actually paid. Thus, the doubt stands removed in view of Explanation 3C. This provision was considered by the Madhya Pradesh High Court in Eicher Motors Limited v. CIT to hold that in view of Explanation 3C appended to Section 43B with retrospective effect from April 1, 1989, conversion of interest amount into loan would not be deemed to be regarded as actually paid amount within the meaning of Section 43B of the Act.In the light of the introduction of Explanation 3C, this Court does not consider it necessary to discuss the precedents relied upon by the Assessee delivered prior to the enactment of Finance Act, 2006. As regards the decision in Shakti Spring Industries P. Ltd. [2013] 219 Taxman 124 (Jharkhand) (Mag.), the interest due in that case was offset against a subsidy which the Assessee was entitled to, and it did not involve an instance where it was converted into a loan or borrowing within the meaning of Explanation 3C. It is perhaps for this reason that Explanation 3C was not discussed13. In the impugned judgment, the Gujarat High Court has relied upon Bhagwati Autocast Ltd. (supra) which was not a case covered by Section 43B(d) rather was a case of Section 43B(a). The provisions of Section 43B covers a host of different situations. The statutory Explanation 3C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3C, we are, thus, of the view that the Assessing Officer has rightly disallowed the deduction as claimed by the Assessee. The appellate authority, the Income-tax Appellate Tribunal and the High Court erred in reversing the said disallowance. | 1 | 2,364 | 896 | ### Instruction:
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incurred by the Assessee according to the method of accounting regularly employed by him) only in computing the income referred to in Section 28 of that previous year in which such sum is actually paid by him. 8. As noted above, Explanation 3C was inserted by the Finance Act, 2006, with retrospective effect from April 1, 1989 which is to the following effect: Explanation 3C.--For the removal of doubts, it is hereby declared that a deduction of any sum, being interest payable under Clause (d) of this section, shall be allowed if such interest has been actually paid and any interest referred to in that Clause which has been converted into a loan or borrowing shall not be deemed to have been actually paid. 9. The appellate authority has noticed the facts in para 12 as extracted above which needs no repetition. 10. The interest liability which accrued during the relevant assessment year was not actually paid back by the Assessee rather was sought to be adjusted in the further loan of Rs. 8 crores which was obtained by the Industrial Development Bank of India. 11. The judgment of the Delhi High Court relied upon by the learned Counsel for the Appellant refers to Section 43B as well as Explanation 3C and held that Explanation 3C having retrospective effect with effect from April 1, 1989 shall be applicable to the year in question. The Delhi High Court in its judgment has referred to the judgment of the Madhya Pradesh High Court in Eicher Motors Limited (supra). It is useful to refer to paras 11 and 12 of the judgment. 12. In so concluding, this Court is supported by the decision of the Madhya Pradesh High Court in Eicher Motors Ltd. v. CIT (2009) 315 ITR 312 (MP) and subsequently, the judgment of the High Court of Telangana and Andhra Pradesh in CIT v. Pennar Profiles Limited (ITA No. 289 of 2003, decided on February 11, 2015 (2015) 376 ITR 355 (T&AP)). In Eicher Motors, the court noted2: As observed supra, Explanation 3C has now in clear terms provided that such conversion of interest amount into loan shall not be deemed to be regarded as actually paid amount within the meaning of Section 43B. In view of clear legislative mandate removing this doubt and making the intention of the Legislature clear in relation to such transaction, it is not now necessary for this Court to interpret the unamended Section 43B in detail, nor is it necessary for this Court to take note of facts in detail as also the submissions urged in support of various contentions except to place reliance on Explanation 3C to Section 43B and answer the questions against the Assessee and in favour of Revenue. The court in Pennar Profiles Limited (supra) considered the decisions in Mahindra Nissan Allywin Ltd. [1998] 233 ITR 493 (AP), Vinir Engineering P. Ltd. [2009] 313 ITR 154 (Karn) and Eicher Motors (supra) and held as follows (page 359 of 376 ITR): In this backdrop, we have perused the provisions contained in Section 43B of the Act, in particular, Explanation 3C thereof, which was inserted by the Finance Act, 2006 with retrospective effect from April 1, 1989. This provision was inserted in 2006 and hence, this Court in Mahindra Nissans case, had no occasion to deal with the case in the light of this provision. In so far as the Karnataka High Court is concerned, though this provision was existing on the date of judgment, it appears that it was not brought to the notice of learned Judges and, hence, the Division Bench proceeded to consider and decide the appeal of the Assessee without referring to Explanation 3C appended to Section 43B of the Act. As a matter of fact, from reading of Explanation 3C, in our opinion, the question as raised in the present appeals stands answered without further discussion. This provision was inserted for removal of doubts and it was declared that deduction of any sum, being interest payable under Clause (d) of Section 43B of the Act, shall be allowed if such interest has been actually paid and any interest referred to in that clause, which has been converted into a loan or borrowing, shall not be deemed to have been actually paid. Thus, the doubt stands removed in view of Explanation 3C. This provision was considered by the Madhya Pradesh High Court in Eicher Motors Limited v. CIT to hold that in view of Explanation 3C appended to Section 43B with retrospective effect from April 1, 1989, conversion of interest amount into loan would not be deemed to be regarded as actually paid amount within the meaning of Section 43B of the Act. In the light of the introduction of Explanation 3C, this Court does not consider it necessary to discuss the precedents relied upon by the Assessee delivered prior to the enactment of Finance Act, 2006. As regards the decision in Shakti Spring Industries P. Ltd. [2013] 219 Taxman 124 (Jharkhand) (Mag.), the interest due in that case was offset against a subsidy which the Assessee was entitled to, and it did not involve an instance where it was converted into a loan or borrowing within the meaning of Explanation 3C. It is perhaps for this reason that Explanation 3C was not discussed. 13. In the impugned judgment, the Gujarat High Court has relied upon Bhagwati Autocast Ltd. (supra) which was not a case covered by Section 43B(d) rather was a case of Section 43B(a). The provisions of Section 43B covers a host of different situations. The statutory Explanation 3C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3C, we are, thus, of the view that the Assessing Officer has rightly disallowed the deduction as claimed by the Assessee. The appellate authority, the Income-tax Appellate Tribunal and the High Court erred in reversing the said disallowance.
### Response:
1
### Explanation:
9. The appellate authority has noticed the facts in para 12 as extracted above which needs no repetition10. The interest liability which accrued during the relevant assessment year was not actually paid back by the Assessee rather was sought to be adjusted in the further loan of Rs. 8 crores which was obtained by the Industrial Development Bank of India12. In so concluding, this Court is supported by the decision of the Madhya Pradesh High Court in Eicher Motors Ltd. v. CIT (2009) 315 ITR 312 (MP) and subsequently, the judgment of the High Court of Telangana and Andhra Pradesh in CIT v. Pennar Profiles Limited (ITA No. 289 of 2003, decided on February 11, 2015 (2015) 376 ITR 355 (T&AP)). In Eicher Motors, the court noted2:As observed supra, Explanation 3C has now in clear terms provided that such conversion of interest amount into loan shall not be deemed to be regarded as actually paid amount within the meaning of Section 43B. In view of clear legislative mandate removing this doubt and making the intention of the Legislature clear in relation to such transaction, it is not now necessary for this Court to interpret the unamended Section 43B in detail, nor is it necessary for this Court to take note of facts in detail as also the submissions urged in support of various contentions except to place reliance on Explanation 3C to Section 43B and answer the questions against the Assessee and in favour of RevenueThe court in Pennar Profiles Limited (supra) considered the decisions in Mahindra Nissan Allywin Ltd. [1998] 233 ITR 493 (AP), Vinir Engineering P. Ltd. [2009] 313 ITR 154 (Karn) and Eicher Motors (supra) and held as follows (page 359 of 376 ITR):In this backdrop, we have perused the provisions contained in Section 43B of the Act, in particular, Explanation 3C thereof, which was inserted by the Finance Act, 2006 with retrospective effect from April 1, 1989. This provision was inserted in 2006 and hence, this Court in Mahindra Nissans case, had no occasion to deal with the case in the light of this provision. In so far as the Karnataka High Court is concerned, though this provision was existing on the date of judgment, it appears that it was not brought to the notice of learned Judges and, hence, the Division Bench proceeded to consider and decide the appeal of the Assessee without referring to Explanation 3C appended to Section 43B of the ActAs a matter of fact, from reading of Explanation 3C, in our opinion, the question as raised in the present appeals stands answered without further discussion. This provision was inserted for removal of doubts and it was declared that deduction of any sum, being interest payable under Clause (d) of Section 43B of the Act, shall be allowed if such interest has been actually paid and any interest referred to in that clause, which has been converted into a loan or borrowing, shall not be deemed to have been actually paid. Thus, the doubt stands removed in view of Explanation 3C. This provision was considered by the Madhya Pradesh High Court in Eicher Motors Limited v. CIT to hold that in view of Explanation 3C appended to Section 43B with retrospective effect from April 1, 1989, conversion of interest amount into loan would not be deemed to be regarded as actually paid amount within the meaning of Section 43B of the Act.In the light of the introduction of Explanation 3C, this Court does not consider it necessary to discuss the precedents relied upon by the Assessee delivered prior to the enactment of Finance Act, 2006. As regards the decision in Shakti Spring Industries P. Ltd. [2013] 219 Taxman 124 (Jharkhand) (Mag.), the interest due in that case was offset against a subsidy which the Assessee was entitled to, and it did not involve an instance where it was converted into a loan or borrowing within the meaning of Explanation 3C. It is perhaps for this reason that Explanation 3C was not discussed13. In the impugned judgment, the Gujarat High Court has relied upon Bhagwati Autocast Ltd. (supra) which was not a case covered by Section 43B(d) rather was a case of Section 43B(a). The provisions of Section 43B covers a host of different situations. The statutory Explanation 3C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3C, we are, thus, of the view that the Assessing Officer has rightly disallowed the deduction as claimed by the Assessee. The appellate authority, the Income-tax Appellate Tribunal and the High Court erred in reversing the said disallowance.
|
Anversinh @ Kiransinh Fatesinh Zala Vs. State of Gujarat | illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully. 19. It is apparent that instead of being a valid defence, the appellants vociferous arguments are merely a justification which although evokes our sympathy, but cant change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC. II. Whether the punishment awarded is just, and ought there be leniency given the unique circumstances? 20. Having held so, we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a humane approach at the stage of sentencing. The opinion of this Court in State of Madhya Pradesh v. Surendra Singh (2015) 1 SCC 222 . on the need for proportionality during sentencing must be re-emphasised. This Court viewed that: 13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society. [emphasis supplied] 21. True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited. 22. We say so for the following reasons: first, it is apparent that no force had been used in the act of kidnapping. There was no preplanning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing. 23. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively. 24. Third, owing to a protracted trial and delays at different levels, more than twenty-two years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage. 25. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low. 26. Fifth, unlike in the cases of State of Haryana v. Raja Ram (1973) 1 SCC 544 and Thakorlal D. Vadgama v. State of Gujarat (1973) 2 SCC 413 , there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded. 27. Given these multiple unique circumstances, we are of the opinion that the sentence of five years rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the this case. The concerns of both the society and the victim can be respected, and the twin principles of deterrence and correction would be served by reducing the appellants sentence to the period of incarceration already undergone by him. CONCLUSION | 1[ds]11. Having given our thoughtful consideration to the rival submissions, it appears to us that although worded succinctly, the impugned judgment does not err in appreciating the law on kidnapping.12. A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the childs minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such enticement need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl.(Thakorlal D Vadgama v. State of Gujarat, (1973) 2 SCC 413 , ¶ 10) However, mere recovery of a missing minor from the custody of a stranger would not ipso-facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in the cases of King Emperor v. Gokaran AIR 1921 Oudh 226. and Emperor v. Abdur Rahman AIR 1916 All 210 .13. Adverting to the facts of the present case, the appellant has unintentionally admitted his culpability. Besides the victim being recovered from his custody, the appellant admits to having established sexual intercourse and of having an intention to marry her. Although the victims deposition that she was forcefully removed from the custody of her parents might possibly be a belated improvement but the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him.14. Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.15. A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent.(Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359 , ¶ 15.) Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minors physical safety upon his/her guardians. Therefore, a minor girls infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.16. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellants case. On facts, the case is distinguishable as it was restricted to an instance of taking and not enticement. Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.18. Unfortunately, it has not been the appellants case that he had no active role to play in the occurrence. Rather the eye-witnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.19. It is apparent that instead of being a valid defence, the appellants vociferous arguments are merely a justification which although evokes our sympathy, but cant change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC.20. Having held so, we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a humane approach at the stage of sentencing. The opinion of this Court in State of Madhya Pradesh v. Surendra Singh (2015) 1 SCC 222 . on the need for proportionality during sentencing must be re-emphasised. This Court viewed that:13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.21. True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited.22. We say so for the following reasons: first, it is apparent that no force had been used in the act of kidnapping. There was no preplanning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing.23. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively.24. Third, owing to a protracted trial and delays at different levels, more than twenty-two years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage.25. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low.26. Fifth, unlike in the cases of State of Haryana v. Raja Ram (1973) 1 SCC 544 and Thakorlal D. Vadgama v. State of Gujarat (1973) 2 SCC 413 , there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded.27. Given these multiple unique circumstances, we are of the opinion that the sentence of five years rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the this case. The concerns of both the society and the victim can be respected, and the twin principles of deterrence and correction would be served by reducing the appellants sentence to the period of incarceration already undergone by him. | 1 | 3,852 | 1,833 | ### Instruction:
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### Input:
illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully. 19. It is apparent that instead of being a valid defence, the appellants vociferous arguments are merely a justification which although evokes our sympathy, but cant change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC. II. Whether the punishment awarded is just, and ought there be leniency given the unique circumstances? 20. Having held so, we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a humane approach at the stage of sentencing. The opinion of this Court in State of Madhya Pradesh v. Surendra Singh (2015) 1 SCC 222 . on the need for proportionality during sentencing must be re-emphasised. This Court viewed that: 13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society. [emphasis supplied] 21. True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited. 22. We say so for the following reasons: first, it is apparent that no force had been used in the act of kidnapping. There was no preplanning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing. 23. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively. 24. Third, owing to a protracted trial and delays at different levels, more than twenty-two years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage. 25. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low. 26. Fifth, unlike in the cases of State of Haryana v. Raja Ram (1973) 1 SCC 544 and Thakorlal D. Vadgama v. State of Gujarat (1973) 2 SCC 413 , there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded. 27. Given these multiple unique circumstances, we are of the opinion that the sentence of five years rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the this case. The concerns of both the society and the victim can be respected, and the twin principles of deterrence and correction would be served by reducing the appellants sentence to the period of incarceration already undergone by him. CONCLUSION
### Response:
1
### Explanation:
Unfortunately, it has not been the appellants case that he had no active role to play in the occurrence. Rather the eye-witnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.19. It is apparent that instead of being a valid defence, the appellants vociferous arguments are merely a justification which although evokes our sympathy, but cant change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC.20. Having held so, we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a humane approach at the stage of sentencing. The opinion of this Court in State of Madhya Pradesh v. Surendra Singh (2015) 1 SCC 222 . on the need for proportionality during sentencing must be re-emphasised. This Court viewed that:13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.21. True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited.22. We say so for the following reasons: first, it is apparent that no force had been used in the act of kidnapping. There was no preplanning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing.23. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively.24. Third, owing to a protracted trial and delays at different levels, more than twenty-two years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage.25. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low.26. Fifth, unlike in the cases of State of Haryana v. Raja Ram (1973) 1 SCC 544 and Thakorlal D. Vadgama v. State of Gujarat (1973) 2 SCC 413 , there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded.27. Given these multiple unique circumstances, we are of the opinion that the sentence of five years rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the this case. The concerns of both the society and the victim can be respected, and the twin principles of deterrence and correction would be served by reducing the appellants sentence to the period of incarceration already undergone by him.
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State of Kerala and Others Etc Vs. T.N. Peter and Another Etc | building at 70 % of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Art. 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Art. 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classifications be made on the basis of authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other." 13. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14."The principle that may be distilled from these rulings and the basics of equality jurisprudence is that classification is not permissible for compensation purposes so long as the differentia relied on has no rational relation to the object in view viz. reduction in recompense. 14. Is it rational to pay different scales of compensation, as pointed out by Sikri, C.J. in the Nagpur Improvement Trust case, depending on whether you acquire for housing or hospital, irrigation scheme or town improvement, school building or police-station? The amount of compensation payable has no bearing on this distinction, although it is conceivable that classification for purposes of compensation may exist and in such cases the statute may be good. We are unable to discern any valid discremen in the Town Planning Act vis-a-vis the Land Acquisition Act warranting a classification in the matter of denial of solatium. 15. We uphold the Act in other respects but not when it deals invidiously between two owners based on an irrelevant criterion viz. the acquisition being for an improvement scheme. We are not to be understood to mean that the rate of compensation may not vary or must be uniform in all cases. We need not investigate this question further as it does not arise here although we are clear in our mind that under given circumstances differentiation even in the scale of compensation may comfortably comport with Art. 14. No such circumstances are present here nor pressed. Indeed, the State, realising the force of this facet of discrimination offered, expilatory fashion, both before the High Court and before us, to pay 15% solatium to obliterate the hostile distinction. 16. The core question now arises. What is the effect even if we read a discriminatory design in Sec. 34? Is plastic surgery permissible or demolition of the section inevitable? Assuming that there is an untenable discrimination in the matter of compensation does the whole of s. 34 have to be liquidated or severable portions voided? In our opinion, scuttling the section, the course the High Court has chosen, should be the last step. The Court uses its writ power with a constructive design, an affirmative slant and a sustaining bent. Even when by compulsions of inseverability, a destructive stroke becomes necessary the court minimises the injury by an intelligent containment. Law keeps alive and "operation pull down" is de mode. Viewed from this perspective, so far as we are able to see, the only discriminatory factor as between s. 34 of the Act and s. 25 of the Land Acquisition Act vis-a-vis quantification of compensation is the non-payment of solatium in the former case because of the provision in s. 34(1) that s. 25 of the Land Acquisition Act shall have no application. Thus, to achieve the virtue of equality and to eliminate the vice of inequality what is needed is the obliteration of s. 25 of the Land Acquisition Act from s. 34(1) of the Town Planning Act. The whole of s. 34(1) does not have to be struck down. Once we excise the discriminatory and, therefore, void part in Sec. 34(1) of the Act, equality is restored. The owner will then be entitled to the same compensation, including solatium, that he may be eligible for under the Land Acquisition Act. What is rendered void by Art. 13 is only to the extent of the contravention of Art. 14. The lancet of the Court may remove the offending words and restore to constitutional health the rest of the provision.We hold that the exclusion of Sec. 25 of the Land Acquisition Act from sec. 34 of the Act is unconstitutional but it is severable and we sever it. The necessary consequence is that s. 34(1) will be read omitting the words and s. 25 . What follows then? Section 32 obligates the state to act under the Land Acquisition Act but we have struck down that part which excludes sec. 25 of the Land Acquisition Act and so, the modification no longer covers s. 25. It continues to apply to the acquisition of property under the Town Planning Act. Section 34(2) provides for compensation exactly like s. 25(1) of the Land Acquisition Act and, in the light of what we have just decided, s. 25(2) will also apply and "in addition to the market value of the land as above provided, the court shall in every case award a sum of fifteen per centum on such market value in consideration of the compulsory nature of the acquisition." 17. | 1[ds]An argument was put forward that under the Land Acquisition Act there is thus a protection against unlimited uncertainty for the owners once lands are frozen in the matter of dealing with them by an initial notification. This protection against protraction and inaction on the part of the State and immobilisation of ownership is absent in the Town Planning Ac t. According to Mr. T. C. Raghavan, appearing for some respondents, this makes for arbitrariness and discrimination invalidatory of the relevant provisions of the Town Planning Act. In our view there is no substance in this submission, having regard to the specialised nature of improvement schemes and the democratic a participation in the process required in such casesMuch argument was addressed on the either or arbitrariness implicit in s. 33 of the A ct. The precise contention is that it is open to the Trust to acquire either under the Kerala Land Acquisition Act or under Chapter VII of the Town Planning Act. In the latter event, no solatium is payable while under the former statute it is a statutory obligation of the acquiring Govt. Thus, if an Authority has an option to proceed under one statute or the other and the consequences upon the owner are more onerous or less, such a facultative provision bears the lethal vice of arbitrariness in its bosom and is violative of Art. 14 and is therefore, voidWe do not accept the argument that there is a legal option for the authority to acquire either under the Land Acquisition Act or under the Town Planning Act when land is needed for a scheme. Theoretically, yes, but practically, no. Which sensible statutory functionary, responsible to the Treasury and to the community, will resort to the more expensive process under the Land Acquisition Act as against the specially designed and less costly provision under s. 34? Fanciful possibilities, freak exercise and speculative aberrations are not realistic enough for constitutional invalidation on the score of actual alter. natives or alive options, one more onerous than the otherThe same reasoning applies to the present situation. The Town Planning Act is a special statute where lands have to be acquired on a large scale and as early and quickly as possible so that schemes may be implemented with promptitude. What is more, there is a specific and purposeful provision excluding some section s of the Kerala Land Acquisition Act. In such circumstances, it is incredible that the authority acting under the Act will sabotage Chapter VII, in particular s. 34, by resorting to the Kerala Land Acquisition Act in derogation of the express provision facilitating acquisition of lands on less onerous terms. He functions under the Town Planning Act, needs Lands for the schemes under that Act, has provisions for acquisition under that Act. Then would be, by reckless action, travel beyond that Act and with a view to oblige the private owner betray the public interest and resort to the power under the Land Acquisition Act, disregarding the non obstante provision in Sec. of the Act? Presumption of perversity cannot b e the foundation of unconstitutionality. Moreover, the expression, used in the context of s. 32, clearly (does not bear the meaning attributed to it by the counsel for the respondents. All that it means is that when immovable property is found necessary for the purpose of a scheme it may be acquired by the compulsory process written into s. 32. It is, as if there were only one option, not two. If the scheme is to be implemented, the mode of acquisition shall be under s. 32 and the manner of such acquisition is the same under the Land Acquisition Act minus ss. 14, 22 and 25 thereof. A slight reflection makes it clear that the mode prescribed is only one, and so the theory of alternatives one of which being mere onerous than the other, and the consequent inference of arbitrariness, cannot arise. We overrule that argument.We must notice, before we part with this point, the argument of Sri Raghavan for the respondents that the existence of alternatives is not theoretical nor chimerical but real, and proof of the pudding is in the eating. He pointed to one of the appeals in this batch where the proceedings under sec. 34 of the Act were given up, the provision of the Land Acquisition Act used, and full compensation and solatium paid to the owner. This instance gave flesh and blood to the submission about discrimination. Shri Khader, for the trust countered this argument by-stating that because the High Court struck clown t he Act and the land was needed. the only statute then available to the State was the Land Acquisition Act. So, the authority was reluctantly constrained to notify and acquire under the Land Acquisition Act. Had Sec. 34 of the Act been available, this step would not have been taken and absent Sec. 34 the argument of alternatives has no basis. We agree with this reasoning and repel the submission of arbitrary power to pick and choose. At worst, a swallow does not make a summer but we must warn that prodigal state action to favour some owner when sec. 34 has been resuscitated will be betrayal of public interest and invalidated as mala fide even at the instance of a concerned citizen. The legislature cannot be stultified by the suspicious improvidence, or worse, of the ExecutiveIt is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14."The principle that may be distilled from these rulings and the basics of equality jurisprudence is that classification is not permissible for compensation purposes so long as the differentia relied on has no rational relation to the object in view viz. reduction in recompenseIs it rational to pay different scales of compensation, as pointed out by Sikri, C.J. in the Nagpur Improvement Trust case, depending on whether you acquire for housing or hospital, irrigation scheme or town improvement, school building or police-station? The amount of compensation payable has no bearing on this distinction, although it is conceivable that classification for purposes of compensation may exist and in such cases the statute may be good. We are unable to discern any valid discremen in the Town Planning Act vis-a-vis the Land Acquisition Act warranting a classification in the matter of denial of solatiumWe uphold the Act in other respects but not when it deals invidiously between two owners based on an irrelevant criterion viz. the acquisition being for an improvement scheme. We are not to be understood to mean that the rate of compensation may not vary or must be uniform in all cases. We need not investigate this question further as it does not arise here although we are clear in our mind that under given circumstances differentiation even in the scale of compensation may comfortably comport with Art. 14. No such circumstances are present here nor pressed. Indeed, the State, realising the force of this facet of discrimination offered, expilatory fashion, both before the High Court and before us, to pay 15% solatium to obliterate the hostile distinctionIn our opinion, scuttling the section, the course the High Court has chosen, should be the last step. The Court uses its writ power with a constructive design, an affirmative slant and a sustaining bent. Even when by compulsions of inseverability, a destructive stroke becomes necessary the court minimises the injury by an intelligent containment. Law keeps alive and "operation pull down" is de mode. Viewed from this perspective, so far as we are able to see, the only discriminatory factor as between s. 34 of the Act and s. 25 of the Land Acquisition Act vis-a-vis quantification of compensation is the non-payment of solatium in the former case because of the provision in s. 34(1) that s. 25 of the Land Acquisition Act shall have no application. Thus, to achieve the virtue of equality and to eliminate the vice of inequality what is needed is the obliteration of s. 25 of the Land Acquisition Act from s. 34(1) of the Town Planning Act. The whole of s. 34(1) does not have to be struck down. Once we excise the discriminatory and, therefore, void part in Sec. 34(1) of the Act, equality is restored. The owner will then be entitled to the same compensation, including solatium, that he may be eligible for under the Land Acquisition Act. What is rendered void by Art. 13 is only to the extent of the contravention of Art. 14. The lancet of the Court may remove the offending words and restore to constitutional health the rest of the provision.We hold that the exclusion of Sec. 25 of the Land Acquisition Act from sec. 34 of the Act is unconstitutional but it is severable and we sever it. The necessary consequence is that s. 34(1) will be read omitting the words and s. 25 . What follows then? Section 32 obligates the state to act under the Land Acquisition Act but we have struck down that part which excludes sec. 25 of the Land Acquisition Act and so, the modification no longer covers s. 25. It continues to apply to the acquisition of property under the Town Planning Act. Section 34(2) provides for compensation exactly like s. 25(1) of the Land Acquisition Act and, in the light of what we have just decided, s. 25(2) will also apply and "in addition to the market value of the land as above provided, the court shall in every case award a sum of fifteen per centum on such market value in consideration of the compulsory nature of the acquisition." | 1 | 5,942 | 1,825 | ### 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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building at 70 % of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Art. 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Art. 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classifications be made on the basis of authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other." 13. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14."The principle that may be distilled from these rulings and the basics of equality jurisprudence is that classification is not permissible for compensation purposes so long as the differentia relied on has no rational relation to the object in view viz. reduction in recompense. 14. Is it rational to pay different scales of compensation, as pointed out by Sikri, C.J. in the Nagpur Improvement Trust case, depending on whether you acquire for housing or hospital, irrigation scheme or town improvement, school building or police-station? The amount of compensation payable has no bearing on this distinction, although it is conceivable that classification for purposes of compensation may exist and in such cases the statute may be good. We are unable to discern any valid discremen in the Town Planning Act vis-a-vis the Land Acquisition Act warranting a classification in the matter of denial of solatium. 15. We uphold the Act in other respects but not when it deals invidiously between two owners based on an irrelevant criterion viz. the acquisition being for an improvement scheme. We are not to be understood to mean that the rate of compensation may not vary or must be uniform in all cases. We need not investigate this question further as it does not arise here although we are clear in our mind that under given circumstances differentiation even in the scale of compensation may comfortably comport with Art. 14. No such circumstances are present here nor pressed. Indeed, the State, realising the force of this facet of discrimination offered, expilatory fashion, both before the High Court and before us, to pay 15% solatium to obliterate the hostile distinction. 16. The core question now arises. What is the effect even if we read a discriminatory design in Sec. 34? Is plastic surgery permissible or demolition of the section inevitable? Assuming that there is an untenable discrimination in the matter of compensation does the whole of s. 34 have to be liquidated or severable portions voided? In our opinion, scuttling the section, the course the High Court has chosen, should be the last step. The Court uses its writ power with a constructive design, an affirmative slant and a sustaining bent. Even when by compulsions of inseverability, a destructive stroke becomes necessary the court minimises the injury by an intelligent containment. Law keeps alive and "operation pull down" is de mode. Viewed from this perspective, so far as we are able to see, the only discriminatory factor as between s. 34 of the Act and s. 25 of the Land Acquisition Act vis-a-vis quantification of compensation is the non-payment of solatium in the former case because of the provision in s. 34(1) that s. 25 of the Land Acquisition Act shall have no application. Thus, to achieve the virtue of equality and to eliminate the vice of inequality what is needed is the obliteration of s. 25 of the Land Acquisition Act from s. 34(1) of the Town Planning Act. The whole of s. 34(1) does not have to be struck down. Once we excise the discriminatory and, therefore, void part in Sec. 34(1) of the Act, equality is restored. The owner will then be entitled to the same compensation, including solatium, that he may be eligible for under the Land Acquisition Act. What is rendered void by Art. 13 is only to the extent of the contravention of Art. 14. The lancet of the Court may remove the offending words and restore to constitutional health the rest of the provision.We hold that the exclusion of Sec. 25 of the Land Acquisition Act from sec. 34 of the Act is unconstitutional but it is severable and we sever it. The necessary consequence is that s. 34(1) will be read omitting the words and s. 25 . What follows then? Section 32 obligates the state to act under the Land Acquisition Act but we have struck down that part which excludes sec. 25 of the Land Acquisition Act and so, the modification no longer covers s. 25. It continues to apply to the acquisition of property under the Town Planning Act. Section 34(2) provides for compensation exactly like s. 25(1) of the Land Acquisition Act and, in the light of what we have just decided, s. 25(2) will also apply and "in addition to the market value of the land as above provided, the court shall in every case award a sum of fifteen per centum on such market value in consideration of the compulsory nature of the acquisition." 17.
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being mere onerous than the other, and the consequent inference of arbitrariness, cannot arise. We overrule that argument.We must notice, before we part with this point, the argument of Sri Raghavan for the respondents that the existence of alternatives is not theoretical nor chimerical but real, and proof of the pudding is in the eating. He pointed to one of the appeals in this batch where the proceedings under sec. 34 of the Act were given up, the provision of the Land Acquisition Act used, and full compensation and solatium paid to the owner. This instance gave flesh and blood to the submission about discrimination. Shri Khader, for the trust countered this argument by-stating that because the High Court struck clown t he Act and the land was needed. the only statute then available to the State was the Land Acquisition Act. So, the authority was reluctantly constrained to notify and acquire under the Land Acquisition Act. Had Sec. 34 of the Act been available, this step would not have been taken and absent Sec. 34 the argument of alternatives has no basis. We agree with this reasoning and repel the submission of arbitrary power to pick and choose. At worst, a swallow does not make a summer but we must warn that prodigal state action to favour some owner when sec. 34 has been resuscitated will be betrayal of public interest and invalidated as mala fide even at the instance of a concerned citizen. The legislature cannot be stultified by the suspicious improvidence, or worse, of the ExecutiveIt is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14."The principle that may be distilled from these rulings and the basics of equality jurisprudence is that classification is not permissible for compensation purposes so long as the differentia relied on has no rational relation to the object in view viz. reduction in recompenseIs it rational to pay different scales of compensation, as pointed out by Sikri, C.J. in the Nagpur Improvement Trust case, depending on whether you acquire for housing or hospital, irrigation scheme or town improvement, school building or police-station? The amount of compensation payable has no bearing on this distinction, although it is conceivable that classification for purposes of compensation may exist and in such cases the statute may be good. We are unable to discern any valid discremen in the Town Planning Act vis-a-vis the Land Acquisition Act warranting a classification in the matter of denial of solatiumWe uphold the Act in other respects but not when it deals invidiously between two owners based on an irrelevant criterion viz. the acquisition being for an improvement scheme. We are not to be understood to mean that the rate of compensation may not vary or must be uniform in all cases. We need not investigate this question further as it does not arise here although we are clear in our mind that under given circumstances differentiation even in the scale of compensation may comfortably comport with Art. 14. No such circumstances are present here nor pressed. Indeed, the State, realising the force of this facet of discrimination offered, expilatory fashion, both before the High Court and before us, to pay 15% solatium to obliterate the hostile distinctionIn our opinion, scuttling the section, the course the High Court has chosen, should be the last step. The Court uses its writ power with a constructive design, an affirmative slant and a sustaining bent. Even when by compulsions of inseverability, a destructive stroke becomes necessary the court minimises the injury by an intelligent containment. Law keeps alive and "operation pull down" is de mode. Viewed from this perspective, so far as we are able to see, the only discriminatory factor as between s. 34 of the Act and s. 25 of the Land Acquisition Act vis-a-vis quantification of compensation is the non-payment of solatium in the former case because of the provision in s. 34(1) that s. 25 of the Land Acquisition Act shall have no application. Thus, to achieve the virtue of equality and to eliminate the vice of inequality what is needed is the obliteration of s. 25 of the Land Acquisition Act from s. 34(1) of the Town Planning Act. The whole of s. 34(1) does not have to be struck down. Once we excise the discriminatory and, therefore, void part in Sec. 34(1) of the Act, equality is restored. The owner will then be entitled to the same compensation, including solatium, that he may be eligible for under the Land Acquisition Act. What is rendered void by Art. 13 is only to the extent of the contravention of Art. 14. The lancet of the Court may remove the offending words and restore to constitutional health the rest of the provision.We hold that the exclusion of Sec. 25 of the Land Acquisition Act from sec. 34 of the Act is unconstitutional but it is severable and we sever it. The necessary consequence is that s. 34(1) will be read omitting the words and s. 25 . What follows then? Section 32 obligates the state to act under the Land Acquisition Act but we have struck down that part which excludes sec. 25 of the Land Acquisition Act and so, the modification no longer covers s. 25. It continues to apply to the acquisition of property under the Town Planning Act. Section 34(2) provides for compensation exactly like s. 25(1) of the Land Acquisition Act and, in the light of what we have just decided, s. 25(2) will also apply and "in addition to the market value of the land as above provided, the court shall in every case award a sum of fifteen per centum on such market value in consideration of the compulsory nature of the acquisition."
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Birla Jute Manufacturing Co. Ltd Vs. Commissioner Of Wealth Tax, Westbengal, Calcutta | the High Court an erroneous figure did not become a correct figure by lapse of time. The following portion of the judgment of the High Court may be reproduced:"The Tribunal was, therefore, in a sense right in excluding a sum of Rs. 1,45,00,000/- from the net value of the assets as shown in the balance sheet of the assessee, as on March 31, 1957. We, however, make it clear that in answering question No. 1 in the affirmative we did not mean that the net value of the assets should be taken at the figure as appearing in the balance sheet reduced by Rs. 1,45,00,000/- What we mean to say is that in valuing the assets the addition of Rupees 1,45,00,000/- may not have been correctly made. This does not, however, mean that the net value of the assets must be the balance sheet figure reduced by Rs. 1,45,00,000/-. That net value win have now to be ascertained under S. 7 (1) of the Wealth Tax Act, now that we have expressed the opinion that the balance sheet in the instant case has not found the unequivocal approval both of the assessee and of the Revenue authorities." It is quite clear that under section 7 (2) of the Act the Wealth Tax Officer may determine the net value of the assets of the business as a whole having regard to the balance sheet of the business as on the valuation date. It must be remembered that under S. 211 of the Indian Companies Act, 1956, every balance sheet of a company must give a true and fair figure of the state of its affairs as at the end of the financial year. If the assessee has shown the net value of the assets at a certain figure in the balance sheet the Wealth Tax Officer would be entitled to accept it on the footing that the assessee knew best what the valuation of the assets was. It was, however, open to the assessee to satisfy the authorities that the said figure had been enhanced or increased or inflated "for acceptable reasons". It was equally open to the Wealth Tax Officer not to accept the figure given by the assessee but to arrive at another figure if he was satisfied for good reasons that the valuation given in the balance sheet was wrong. There , can be no doubt that S. 7 (2) (a) of the Act contemplates that the book value in the balance sheet should be taken as the primary basis of valuation and if any adjustment is required it is open to the Wealth Tax Officer to make such an adjustment in the valuation as given in the balance sheet as may be necessary in the circumstances of the case. (See Kesoram Industries and Cotton Mills Ltd. v. Commr. of Wealth Tax (Central) Calcutta, 59 ITR 767 = (AIR 1966 SC 1370 ). 3. In the present case the sole reason which at the stage of the appeal before the Tribunal came to be disclosed for inflating the valuation by Rs. 1,45,00,000 in the assessment year 1948-49 was that the assessee contemplated issuing bonus shares for which the consent of the Central Government was necessary under S. 3 of the Capital Issues (Control) Act, 1947. The same was not granted. The assessee, however, did not produce the order, if the Central Government showing the reasons for which permission was declined to the issuance of bonus shares. It continued to show the enhanced or inflated valuation in the balance sheet throughout. The circumstances in which bonus shares are issued are well known. A company may not require any new money but it may reasonably wish to bring the nominal amount of its issued share capital more into line with the true excess of assets over liabilities. Unless it takes this step its annual profits will appear to be disproportionately high in relation to its nominal capital. By means of issuing bonus shares the reserve or share premium account or some part of the same are capitalised or converted into share capital. The capitalisation of free i.e. voluntary reserves merely means that undistributed profits have been permanently ploughed back and converted into share capital which cannot be returned to the members by way of dividend (vide Modern Company Law by L. C. B. Gower, p. 110.) 4. It is quite clear that the main idea underlying the issue of bonus shares is to bring the nominal amount of the issued share capital of the company into line with the true excess of assets over liabilities. This will involve a genuine and correct valuation of assets and not their under-valuation or inflation. It must be remembered that the power to issue shares for increasing the capital is of a fiduciary nature and must be exercised bona fide for the general advantage of the company. No evidence in the shape of an affidavit or any other material was placed before the wealth tax authorities by the assessee demonstrating how it became necessary to inflate the valuation by Rs. 1,45,00,000 for the purpose of issuing bonus shares. It was not even the case of the assessee that the value was inflated under expert actuarial suggestion or under some misapprehension or mistaken advice. In this situation the only possible conclusion can be that the assessee could not advance any convincing and acceptable reasons for the alleged inflation. The Wealth Tax Officer could reject the figure given by the assessee in the balance sheet if he was, for sufficient reasons, satisfied that that figure was wrong. The facts and circumstances which have been discussed above show that the Wealth Tax Officer was fully justified in accepting the figure which the assessee himself had given in the balance sheet as the correct figure and in proceeding to make the assessment in accordance with that figure. The High Court should have, therefore, answered the question in the negative and in favour of the Commissioner of Wealth Tax. | 1[ds]It is quite clear that under section 7 (2) of the Act the Wealth Tax Officer may determine the net value of the assets of the business as a whole having regard to the balance sheet of the business as on the valuation date. It must be remembered that under S. 211 of the Indian Companies Act, 1956, every balance sheet of a company must give a true and fair figure of the state of its affairs as at the end of the financial year. If the assessee has shown the net value of the assets at a certain figure in the balance sheet the Wealth Tax Officer would be entitled to accept it on the footing that the assessee knew best what the valuation of the assets was. It was, however, open to the assessee to satisfy the authorities that the said figure had been enhanced or increased or inflated "for acceptable reasons". It was equally open to the Wealth Tax Officer not to accept the figure given by the assessee but to arrive at another figure if he was satisfied for good reasons that the valuation given in the balance sheet was wrong. There , can be no doubt that S. 7 (2) (a) of the Act contemplates that the book value in the balance sheet should be taken as the primary basis of valuation and if any adjustment is required it is open to the Wealth Tax Officer to make such an adjustment in the valuation as given in the balance sheet as may be necessary in the circumstances of the case. (See Kesoram Industries and Cotton Mills Ltd. v. Commr. of Wealth Tax (Central) Calcutta, 59 ITR 767 = (AIR 1966 SC 1370 )3. In the present case the sole reason which at the stage of the appeal before the Tribunal came to be disclosed for inflating the valuation by Rs. 1,45,00,000 in the assessment year 1948-49 was that the assessee contemplated issuing bonus shares for which the consent of the Central Government was necessary under S. 3 ofthe Capital Issues (Control) Act, 1947. The same was not granted. The assessee, however, did not produce the order, if the Central Government showing the reasons for which permission was declined to the issuance of bonus shares. It continued to show the enhanced or inflated valuation in the balance sheet throughout. The circumstances in which bonus shares are issued are well known. A company may not require any new money but it may reasonably wish to bring the nominal amount of its issued share capital more into line with the true excess of assets over liabilities. Unless it takes this step its annual profits will appear to be disproportionately high in relation to its nominal capital. By means of issuing bonus shares the reserve or share premium account or some part of the same are capitalised or converted into share capital. The capitalisation of free i.e. voluntary reserves merely means that undistributed profits have been permanently ploughed back and converted into share capital which cannot be returned to the members by way of dividend (vide Modern Company Law by L. C. B. Gower, p. 110.)4. It is quite clear that the main idea underlying the issue of bonus shares is to bring the nominal amount of the issued share capital of the company into line with the true excess of assets over liabilities. This will involve a genuine and correct valuation of assets and not their under-valuation or inflation. It must be remembered that the power to issue shares for increasing the capital is of a fiduciary nature and must be exercised bona fide for the general advantage of the company. No evidence in the shape of an affidavit or any other material was placed before the wealth tax authorities by the assessee demonstrating how it became necessary to inflate the valuation by Rs. 1,45,00,000 for the purpose of issuing bonus shares. It was not even the case of the assessee that the value was inflated under expert actuarial suggestion or under some misapprehension or mistaken advice. In this situation the only possible conclusion can be that the assessee could not advance any convincing and acceptable reasons for the alleged inflation. The Wealth Tax Officer could reject the figure given by the assessee in the balance sheet if he was, for sufficient reasons, satisfied that that figure was wrong. The facts and circumstances which have been discussed above show that the Wealth Tax Officer was fully justified in accepting the figure which the assessee himself had given in the balance sheet as the correct figure and in proceeding to make the assessment in accordance with that figure. The High Court should have, therefore, answered the question in the negative and in favour of the Commissioner of Wealth Tax. | 1 | 1,704 | 867 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the High Court an erroneous figure did not become a correct figure by lapse of time. The following portion of the judgment of the High Court may be reproduced:"The Tribunal was, therefore, in a sense right in excluding a sum of Rs. 1,45,00,000/- from the net value of the assets as shown in the balance sheet of the assessee, as on March 31, 1957. We, however, make it clear that in answering question No. 1 in the affirmative we did not mean that the net value of the assets should be taken at the figure as appearing in the balance sheet reduced by Rs. 1,45,00,000/- What we mean to say is that in valuing the assets the addition of Rupees 1,45,00,000/- may not have been correctly made. This does not, however, mean that the net value of the assets must be the balance sheet figure reduced by Rs. 1,45,00,000/-. That net value win have now to be ascertained under S. 7 (1) of the Wealth Tax Act, now that we have expressed the opinion that the balance sheet in the instant case has not found the unequivocal approval both of the assessee and of the Revenue authorities." It is quite clear that under section 7 (2) of the Act the Wealth Tax Officer may determine the net value of the assets of the business as a whole having regard to the balance sheet of the business as on the valuation date. It must be remembered that under S. 211 of the Indian Companies Act, 1956, every balance sheet of a company must give a true and fair figure of the state of its affairs as at the end of the financial year. If the assessee has shown the net value of the assets at a certain figure in the balance sheet the Wealth Tax Officer would be entitled to accept it on the footing that the assessee knew best what the valuation of the assets was. It was, however, open to the assessee to satisfy the authorities that the said figure had been enhanced or increased or inflated "for acceptable reasons". It was equally open to the Wealth Tax Officer not to accept the figure given by the assessee but to arrive at another figure if he was satisfied for good reasons that the valuation given in the balance sheet was wrong. There , can be no doubt that S. 7 (2) (a) of the Act contemplates that the book value in the balance sheet should be taken as the primary basis of valuation and if any adjustment is required it is open to the Wealth Tax Officer to make such an adjustment in the valuation as given in the balance sheet as may be necessary in the circumstances of the case. (See Kesoram Industries and Cotton Mills Ltd. v. Commr. of Wealth Tax (Central) Calcutta, 59 ITR 767 = (AIR 1966 SC 1370 ). 3. In the present case the sole reason which at the stage of the appeal before the Tribunal came to be disclosed for inflating the valuation by Rs. 1,45,00,000 in the assessment year 1948-49 was that the assessee contemplated issuing bonus shares for which the consent of the Central Government was necessary under S. 3 of the Capital Issues (Control) Act, 1947. The same was not granted. The assessee, however, did not produce the order, if the Central Government showing the reasons for which permission was declined to the issuance of bonus shares. It continued to show the enhanced or inflated valuation in the balance sheet throughout. The circumstances in which bonus shares are issued are well known. A company may not require any new money but it may reasonably wish to bring the nominal amount of its issued share capital more into line with the true excess of assets over liabilities. Unless it takes this step its annual profits will appear to be disproportionately high in relation to its nominal capital. By means of issuing bonus shares the reserve or share premium account or some part of the same are capitalised or converted into share capital. The capitalisation of free i.e. voluntary reserves merely means that undistributed profits have been permanently ploughed back and converted into share capital which cannot be returned to the members by way of dividend (vide Modern Company Law by L. C. B. Gower, p. 110.) 4. It is quite clear that the main idea underlying the issue of bonus shares is to bring the nominal amount of the issued share capital of the company into line with the true excess of assets over liabilities. This will involve a genuine and correct valuation of assets and not their under-valuation or inflation. It must be remembered that the power to issue shares for increasing the capital is of a fiduciary nature and must be exercised bona fide for the general advantage of the company. No evidence in the shape of an affidavit or any other material was placed before the wealth tax authorities by the assessee demonstrating how it became necessary to inflate the valuation by Rs. 1,45,00,000 for the purpose of issuing bonus shares. It was not even the case of the assessee that the value was inflated under expert actuarial suggestion or under some misapprehension or mistaken advice. In this situation the only possible conclusion can be that the assessee could not advance any convincing and acceptable reasons for the alleged inflation. The Wealth Tax Officer could reject the figure given by the assessee in the balance sheet if he was, for sufficient reasons, satisfied that that figure was wrong. The facts and circumstances which have been discussed above show that the Wealth Tax Officer was fully justified in accepting the figure which the assessee himself had given in the balance sheet as the correct figure and in proceeding to make the assessment in accordance with that figure. The High Court should have, therefore, answered the question in the negative and in favour of the Commissioner of Wealth Tax.
### Response:
1
### Explanation:
It is quite clear that under section 7 (2) of the Act the Wealth Tax Officer may determine the net value of the assets of the business as a whole having regard to the balance sheet of the business as on the valuation date. It must be remembered that under S. 211 of the Indian Companies Act, 1956, every balance sheet of a company must give a true and fair figure of the state of its affairs as at the end of the financial year. If the assessee has shown the net value of the assets at a certain figure in the balance sheet the Wealth Tax Officer would be entitled to accept it on the footing that the assessee knew best what the valuation of the assets was. It was, however, open to the assessee to satisfy the authorities that the said figure had been enhanced or increased or inflated "for acceptable reasons". It was equally open to the Wealth Tax Officer not to accept the figure given by the assessee but to arrive at another figure if he was satisfied for good reasons that the valuation given in the balance sheet was wrong. There , can be no doubt that S. 7 (2) (a) of the Act contemplates that the book value in the balance sheet should be taken as the primary basis of valuation and if any adjustment is required it is open to the Wealth Tax Officer to make such an adjustment in the valuation as given in the balance sheet as may be necessary in the circumstances of the case. (See Kesoram Industries and Cotton Mills Ltd. v. Commr. of Wealth Tax (Central) Calcutta, 59 ITR 767 = (AIR 1966 SC 1370 )3. In the present case the sole reason which at the stage of the appeal before the Tribunal came to be disclosed for inflating the valuation by Rs. 1,45,00,000 in the assessment year 1948-49 was that the assessee contemplated issuing bonus shares for which the consent of the Central Government was necessary under S. 3 ofthe Capital Issues (Control) Act, 1947. The same was not granted. The assessee, however, did not produce the order, if the Central Government showing the reasons for which permission was declined to the issuance of bonus shares. It continued to show the enhanced or inflated valuation in the balance sheet throughout. The circumstances in which bonus shares are issued are well known. A company may not require any new money but it may reasonably wish to bring the nominal amount of its issued share capital more into line with the true excess of assets over liabilities. Unless it takes this step its annual profits will appear to be disproportionately high in relation to its nominal capital. By means of issuing bonus shares the reserve or share premium account or some part of the same are capitalised or converted into share capital. The capitalisation of free i.e. voluntary reserves merely means that undistributed profits have been permanently ploughed back and converted into share capital which cannot be returned to the members by way of dividend (vide Modern Company Law by L. C. B. Gower, p. 110.)4. It is quite clear that the main idea underlying the issue of bonus shares is to bring the nominal amount of the issued share capital of the company into line with the true excess of assets over liabilities. This will involve a genuine and correct valuation of assets and not their under-valuation or inflation. It must be remembered that the power to issue shares for increasing the capital is of a fiduciary nature and must be exercised bona fide for the general advantage of the company. No evidence in the shape of an affidavit or any other material was placed before the wealth tax authorities by the assessee demonstrating how it became necessary to inflate the valuation by Rs. 1,45,00,000 for the purpose of issuing bonus shares. It was not even the case of the assessee that the value was inflated under expert actuarial suggestion or under some misapprehension or mistaken advice. In this situation the only possible conclusion can be that the assessee could not advance any convincing and acceptable reasons for the alleged inflation. The Wealth Tax Officer could reject the figure given by the assessee in the balance sheet if he was, for sufficient reasons, satisfied that that figure was wrong. The facts and circumstances which have been discussed above show that the Wealth Tax Officer was fully justified in accepting the figure which the assessee himself had given in the balance sheet as the correct figure and in proceeding to make the assessment in accordance with that figure. The High Court should have, therefore, answered the question in the negative and in favour of the Commissioner of Wealth Tax.
|
TELANGANA STATE SOUTHERN POWER DISTRIBUTION COMPANY LIMITED & ANR. Vs. M/S SRIGDHAA BEVERAGES | This Court elucidated the position in the context of Section 24 of the Electricity Act, 1910, to emphasise that under Section 2(c) of the Electricity Act, a consumer means any person who is supplied with energy, and since liability to pay electricity dues is fastened only on the consumer, at the relevant time, the purchaser was not the consumer. It has also been stated that in the absence of consumption of electricity, the subsequent purchaser was merely seeking reconnection without there being any statutory dues towards consumption charges. We had specifically posed a question to the learned counsel for the respondent in the order dated 15.11.2019, that whether, in the context of the judicial pronouncements sought to be relied upon, there was a specific clause in the nature of Clause 26 as in the present E-auction sale notice, which absolved the Authorized Officer of various dues including electricity dues. On the conspectus of the judgments referred to by the respondent, there were no such clauses in the cases in question. 9. We may also notice that there have been subsequent judicial pronouncements dealing with this aspect of electricity dues. A three Judge Bench of this Court has held that the dues under the terms and conditions of supply partake the character of statutory dues (Hyderabad Vanaspathi Ltd. v. A.P . State Electricity Board & Ors. (1998) 4 SCC 470 ). The mere fact that agreements were entered into with every consumer only served the purpose of bringing to the notice of the consumer the terms and conditions of supply, but did not make the dues purely contractual in character. 10. We can draw strength from the observations of this Court in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Paramount Polymers (P) Ltd., (2006) 13 SCC 101 (2 Judges Bench) where there was a similarity as in the present case, of a specific clause dealing with electricity dues. It was observed that in such a scenario if a transferee desires to enjoy the service connection, he shall pay the outstanding dues, if any, to the supplier of electricity and a reconnection or a new connection shall not be given to any premises where there are arrears on account of dues to the supplier unless they are so declared in advance. 11. We may also notice that as an auction purchaser bidding in an as is where is, whatever there is and without recourse basis , the respondent would have inspected the premises and made inquiries about the dues in all respects. The facts of the present case, as in the judgment aforesaid, are more explicit in character as there is a specific mention of the quantification of dues of various accounts including electricity dues. The respondent was, thus, clearly put to notice in this behalf. 12. The same view in case of a similar clause has been taken in Paschimanchal Vidyut Vitran Nigam Limited & Ors. v. DVS Steels and Alloys Private Limited & Ors. (2009) 1 SCC 210 (2 Judge Bench) It has been further observed that if any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations so long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable. A condition for clearance of dues cannot per se be termed as unreasonable or arbitrary. 13. We may notice a slightly contra view in Haryana State Electricity Board v. Hanuman Rice Mills, Dhanauri & Ors., (2010) 9 SCC 145 (2 Judge Bench) in a given scenario where the pendency of electricity dues was not mentioned in the terms & conditions of sale, and it was held in those facts that the dues could not be mulled on to the subsequent transferee. 14. We may notice that in Special Officer, Commerce, North Eastern Electricity Supply Company of Orissa (NESCO) v. Raghunath Paper Mills Private Limited & Anr., (2012) 13 SCC 479 (2 Judge Bench) a distinction was made between a connection sought to be obtained for the first time and a reconnection. In that case, no application had been made for transfer of a service connection from the previous owner to the auction-purchaser, but in fact, a fresh connection was requested. In light of the regulations therein, previous dues had to be cleared only in the case of a reconnection. Hence, the respondents were held to be free from electricity liability. This Court in Southern Power Distribution Company of Telangana Limited (through its CMD) & Ors. (supra) found that the facts were similar to the NESCO (supra) case, and thus followed the same line. 15. We have gone into the aforesaid judgments as it was urged before us that there is some ambiguity on the aspect of liability of dues of the past owners who had obtained the connection. There have been some differences in facts but, in our view, there is a clear judicial thinking which emerges, which needs to be emphasized: A. That electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual nature. B. Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is on AS IS WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS , there can be no doubt that the liability to pay electricity dues exists on the respondent (purchaser). C. The debate over connection or reconnection would not exist in cases like the present one where both aspects are covered as per clause 8.4 of the General Terms & Conditions of Supply. | 1[ds]8. We have examined the submissions in the contours of the aforesaid controversy, and take note of the fact that in the case of Isha Marbles, (supra) the sale was in pursuance of Section 29(1) of the State Financial Corporations Act, 1951, but the important aspect was that there was no clause specifically dealing with the issue of electricity dues or such other dues, as in the present auction notice. This Court elucidated the position in the context of Section 24 of the Electricity Act, 1910, to emphasise that under Section 2(c) of the Electricity Act, a consumer means any person who is supplied with energy, and since liability to pay electricity dues is fastened only on the consumer, at the relevant time, the purchaser was not the consumer. It has also been stated that in the absence of consumption of electricity, the subsequent purchaser was merely seeking reconnection without there being any statutory dues towards consumption charges. We had specifically posed a question to the learned counsel for the respondent in the order dated 15.11.2019, that whether, in the context of the judicial pronouncements sought to be relied upon, there was a specific clause in the nature of Clause 26 as in the present E-auction sale notice, which absolved the Authorized Officer of various dues including electricity dues. On the conspectus of the judgments referred to by the respondent, there were no such clauses in the cases in question10. We can draw strength from the observations of this Court in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Paramount Polymers (P) Ltd., (2006) 13 SCC 101 (2 Judges Bench) where there was a similarity as in the present case, of a specific clause dealing with electricity dues. It was observed that in such a scenario if a transferee desires to enjoy the service connection, he shall pay the outstanding dues, if any, to the supplier of electricity and a reconnection or a new connection shall not be given to any premises where there are arrears on account of dues to the supplier unless they are so declared in advance11. We may also notice that as an auction purchaser bidding in an as is where is, whatever there is and without recourse basis , the respondent would have inspected the premises and made inquiries about the dues in all respects. The facts of the present case, as in the judgment aforesaid, are more explicit in character as there is a specific mention of the quantification of dues of various accounts including electricity dues. The respondent was, thus, clearly put to notice in this behalf14. We may notice that in Special Officer, Commerce, North Eastern Electricity Supply Company of Orissa (NESCO) v. Raghunath Paper Mills Private Limited & Anr., (2012) 13 SCC 479 (2 Judge Bench) a distinction was made between a connection sought to be obtained for the first time and a reconnection. In that case, no application had been made for transfer of a service connection from the previous owner to the auction-purchaser, but in fact, a fresh connection was requested. In light of the regulations therein, previous dues had to be cleared only in the case of a reconnection. Hence, the respondents were held to be free from electricity liability. This Court in Southern Power Distribution Company of Telangana Limited (through its CMD) & Ors. (supra) found that the facts were similar to the NESCO (supra) case, and thus followed the same line15. We have gone into the aforesaid judgments as it was urged before us that there is some ambiguity on the aspect of liability of dues of the past owners who had obtained the connection. There have been some differences in facts but, in our view, there is a clear judicial thinking which emerges, which needs to be emphasized:A. That electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual natureB. Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is onAS IS WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS , there can be no doubt that the liability to pay electricity dues exists on the respondent (purchaser)C. The debate over connection or reconnection would not exist in cases like the present one where both aspects are covered as per clause 8.4 of the General Terms & Conditions of Supply. | 1 | 2,549 | 900 | ### 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:
This Court elucidated the position in the context of Section 24 of the Electricity Act, 1910, to emphasise that under Section 2(c) of the Electricity Act, a consumer means any person who is supplied with energy, and since liability to pay electricity dues is fastened only on the consumer, at the relevant time, the purchaser was not the consumer. It has also been stated that in the absence of consumption of electricity, the subsequent purchaser was merely seeking reconnection without there being any statutory dues towards consumption charges. We had specifically posed a question to the learned counsel for the respondent in the order dated 15.11.2019, that whether, in the context of the judicial pronouncements sought to be relied upon, there was a specific clause in the nature of Clause 26 as in the present E-auction sale notice, which absolved the Authorized Officer of various dues including electricity dues. On the conspectus of the judgments referred to by the respondent, there were no such clauses in the cases in question. 9. We may also notice that there have been subsequent judicial pronouncements dealing with this aspect of electricity dues. A three Judge Bench of this Court has held that the dues under the terms and conditions of supply partake the character of statutory dues (Hyderabad Vanaspathi Ltd. v. A.P . State Electricity Board & Ors. (1998) 4 SCC 470 ). The mere fact that agreements were entered into with every consumer only served the purpose of bringing to the notice of the consumer the terms and conditions of supply, but did not make the dues purely contractual in character. 10. We can draw strength from the observations of this Court in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Paramount Polymers (P) Ltd., (2006) 13 SCC 101 (2 Judges Bench) where there was a similarity as in the present case, of a specific clause dealing with electricity dues. It was observed that in such a scenario if a transferee desires to enjoy the service connection, he shall pay the outstanding dues, if any, to the supplier of electricity and a reconnection or a new connection shall not be given to any premises where there are arrears on account of dues to the supplier unless they are so declared in advance. 11. We may also notice that as an auction purchaser bidding in an as is where is, whatever there is and without recourse basis , the respondent would have inspected the premises and made inquiries about the dues in all respects. The facts of the present case, as in the judgment aforesaid, are more explicit in character as there is a specific mention of the quantification of dues of various accounts including electricity dues. The respondent was, thus, clearly put to notice in this behalf. 12. The same view in case of a similar clause has been taken in Paschimanchal Vidyut Vitran Nigam Limited & Ors. v. DVS Steels and Alloys Private Limited & Ors. (2009) 1 SCC 210 (2 Judge Bench) It has been further observed that if any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations so long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable. A condition for clearance of dues cannot per se be termed as unreasonable or arbitrary. 13. We may notice a slightly contra view in Haryana State Electricity Board v. Hanuman Rice Mills, Dhanauri & Ors., (2010) 9 SCC 145 (2 Judge Bench) in a given scenario where the pendency of electricity dues was not mentioned in the terms & conditions of sale, and it was held in those facts that the dues could not be mulled on to the subsequent transferee. 14. We may notice that in Special Officer, Commerce, North Eastern Electricity Supply Company of Orissa (NESCO) v. Raghunath Paper Mills Private Limited & Anr., (2012) 13 SCC 479 (2 Judge Bench) a distinction was made between a connection sought to be obtained for the first time and a reconnection. In that case, no application had been made for transfer of a service connection from the previous owner to the auction-purchaser, but in fact, a fresh connection was requested. In light of the regulations therein, previous dues had to be cleared only in the case of a reconnection. Hence, the respondents were held to be free from electricity liability. This Court in Southern Power Distribution Company of Telangana Limited (through its CMD) & Ors. (supra) found that the facts were similar to the NESCO (supra) case, and thus followed the same line. 15. We have gone into the aforesaid judgments as it was urged before us that there is some ambiguity on the aspect of liability of dues of the past owners who had obtained the connection. There have been some differences in facts but, in our view, there is a clear judicial thinking which emerges, which needs to be emphasized: A. That electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual nature. B. Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is on AS IS WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS , there can be no doubt that the liability to pay electricity dues exists on the respondent (purchaser). C. The debate over connection or reconnection would not exist in cases like the present one where both aspects are covered as per clause 8.4 of the General Terms & Conditions of Supply.
### Response:
1
### Explanation:
8. We have examined the submissions in the contours of the aforesaid controversy, and take note of the fact that in the case of Isha Marbles, (supra) the sale was in pursuance of Section 29(1) of the State Financial Corporations Act, 1951, but the important aspect was that there was no clause specifically dealing with the issue of electricity dues or such other dues, as in the present auction notice. This Court elucidated the position in the context of Section 24 of the Electricity Act, 1910, to emphasise that under Section 2(c) of the Electricity Act, a consumer means any person who is supplied with energy, and since liability to pay electricity dues is fastened only on the consumer, at the relevant time, the purchaser was not the consumer. It has also been stated that in the absence of consumption of electricity, the subsequent purchaser was merely seeking reconnection without there being any statutory dues towards consumption charges. We had specifically posed a question to the learned counsel for the respondent in the order dated 15.11.2019, that whether, in the context of the judicial pronouncements sought to be relied upon, there was a specific clause in the nature of Clause 26 as in the present E-auction sale notice, which absolved the Authorized Officer of various dues including electricity dues. On the conspectus of the judgments referred to by the respondent, there were no such clauses in the cases in question10. We can draw strength from the observations of this Court in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Paramount Polymers (P) Ltd., (2006) 13 SCC 101 (2 Judges Bench) where there was a similarity as in the present case, of a specific clause dealing with electricity dues. It was observed that in such a scenario if a transferee desires to enjoy the service connection, he shall pay the outstanding dues, if any, to the supplier of electricity and a reconnection or a new connection shall not be given to any premises where there are arrears on account of dues to the supplier unless they are so declared in advance11. We may also notice that as an auction purchaser bidding in an as is where is, whatever there is and without recourse basis , the respondent would have inspected the premises and made inquiries about the dues in all respects. The facts of the present case, as in the judgment aforesaid, are more explicit in character as there is a specific mention of the quantification of dues of various accounts including electricity dues. The respondent was, thus, clearly put to notice in this behalf14. We may notice that in Special Officer, Commerce, North Eastern Electricity Supply Company of Orissa (NESCO) v. Raghunath Paper Mills Private Limited & Anr., (2012) 13 SCC 479 (2 Judge Bench) a distinction was made between a connection sought to be obtained for the first time and a reconnection. In that case, no application had been made for transfer of a service connection from the previous owner to the auction-purchaser, but in fact, a fresh connection was requested. In light of the regulations therein, previous dues had to be cleared only in the case of a reconnection. Hence, the respondents were held to be free from electricity liability. This Court in Southern Power Distribution Company of Telangana Limited (through its CMD) & Ors. (supra) found that the facts were similar to the NESCO (supra) case, and thus followed the same line15. We have gone into the aforesaid judgments as it was urged before us that there is some ambiguity on the aspect of liability of dues of the past owners who had obtained the connection. There have been some differences in facts but, in our view, there is a clear judicial thinking which emerges, which needs to be emphasized:A. That electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual natureB. Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is onAS IS WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS , there can be no doubt that the liability to pay electricity dues exists on the respondent (purchaser)C. The debate over connection or reconnection would not exist in cases like the present one where both aspects are covered as per clause 8.4 of the General Terms & Conditions of Supply.
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Avinash Hansraj Gajbhiye Vs. Official Liquidator,M/S. V.Pharma.P.Ltd | interest thereon at the rate of 18% per annum with effect from 6.10.1996 along with the costs of the proceedings. The order dated 22.7.1999 that was sought to be challenged was the order on the misfeasance application. The order dated 16.8.2002 was one by which the Company Judge rejected an application for review filed by the petitioner seeking a review of the order passed on 7.9.2001. The appeal was in time only as regards the order dated 16.8.2002 refusing to review the earlier orders in misfeasance proceedings passed by the Company Judge. The appeal was not accompanied by even an application for condoning the delay in filing the appeal as against the orders dated 7.9.2001 and 22.7.1999even though the challenges to them were clearly barred by limitation. The Division Bench of the High Court, therefore, ordered on 19.9.2002 that the orders passed by the Company Judge on 7.9.2001 and 22.7.1999 were not amenable to scrutiny for their sustainability in the appeal filed and the appeal had to be confined to one from the order dated 16.8.2002. Thereafter, the appeal was dismissed holding that the Company Judge was justified in refusing to review the orders passed in the Misfeasance Application. The appellant then filed a petition to review the judgment in Company Appeal No. 3 of 2002. By order dated 18.7.2003, the application for review was dismissed. It is that order that is challenged in this appeal. 3. For the purpose of this case, we do not think it necessary to consider the question whether the appeal filed before the Division Bench under Section 483 of the Companies Act against an order refusing to review the orders on the Misfeasance Application was maintainable, the wide words of Section 483 notwithstanding (an order rejecting an application for review is not appealable even under the Code of Civil Procedure either under Order XLIII Rule 1(w) or Order XLVII Rule 7). We proceed on the assumption that the appeal was maintainable. 4. Learned counsel for the appellant submitted that the order of the Division Bench sought to be reviewed, proceeded on the basis that it was an appeal challenging the order dated 16.8.2002 passed by the Company Judge dismissing an application for review preferred by the appellant and the order dated 16.8.2002 passed by the Company Judge and the challenge thereto, included a challenge to the prior orders dated 7.9.2001 and 22.7.1999. This argument cannot be accepted. The order dated 16.8.2002 was that the Petition for review filed by the appellant seeking a review of the order dated 7.9.2001 passed in Company Application No. 40 of 1999, which was one for recalling the order dated 22.7.1999 was liable to be dismissed. The Company Judge after referring to the facts leading to that application and considering the merits of that application held that there was no error apparent on the face of the record which justified a review of the order dated 7.9.2001. The application for review was thus dismissed on 16.8.2002. It was this order that was dealt with in Company Appeal No. 3 of 2002 by the Division Bench in its order which was sought to be reviewed. The order specified that the appeal was against the order dated 16.8.2002. Therefore, the application for review filed by the appellant before the Division Bench could be treated only as an application for review of the order dated 19.9.2002 refusing to interfere with the order dated 16.8.2002. It is not possible to accept the argument of learned counsel for the appellant that the Division Bench while exercising its review jurisdiction or when called upon to exercise its review jurisdiction was bound to consider the reviewability or correctness of all the prior orders including the order on the review petition. 5. While dismissing the Petition for review of the order dated 7.9.2001, on 16.8.2002, the Company Judge found on the basis of the material on record of Company Application No. 40 of 1999 and the contentions sought to be raised by the appellant that there was no error apparent on the face of the record in the order dated 7.9.2001. Therefore, what was involved in Company Appeal No. 3 of 2002 was only the appellant or could not be produced by him at the time when the original order was passed, was made out. This finding by the Company Judge was affirmed by the Division Bench in its order dated 19.9.2002. When the appellant sought a review of that order, as indicated earlier, the Division Bench considered the conduct of the appellant right through the proceedings and found that the appellant was indulging in dilatory tactics just to thwart the order passed by the Company Judge on the misfeasance application. The court also found that there was no ground made out for reviewing its order dated 19.9.2002. On a consideration of the relevant aspects, we find that the Division Bench and the learned single Judge were both justified in not acceding to the prayer for review made by the appellant. 6. Learned counsel for the appellant submitted that the order on the misfeasance application was made without the appellant, who was only a legal representative of one of the Directors, really getting an opportunity to put forward his contentions. But on the materials, it was found that he had such an opportunity, a notice in that behalf having been taken out to him and served on him. His plea that he had no notice was found to be unacceptable. It is also seen that instead of taking appropriate steps at appropriate times, the appellant had indulged in initiating proceedings one after another which were all found to be untenable and without merit. In the circumstances, one can only say that the appellant has to thank himself for the situation he finds himself in, even if there is any merit in his claims. The High Court cannot be faulted for refusing to review its order dismissing the Company Appeal, or in dismissing the Company Appeal itself. 7. | 0[ds]While dismissing the Petition for review of the order dated 7.9.2001, on 16.8.2002, the Company Judge found on the basis of the material on record of Company Application No. 40 of 1999 and the contentions sought to be raised by the appellant that there was no error apparent on the face of the record in the order dated 7.9.2001. Therefore, what was involved in Company Appeal No. 3 of 2002 was only the appellant or could not be produced by him at the time when the original order was passed, was made out. This finding by the Company Judge was affirmed by the Division Bench in its order dated 19.9.2002. When the appellant sought a review of that order, as indicated earlier, the Division Bench considered the conduct of the appellant right through the proceedings and found that the appellant was indulging in dilatory tactics just to thwart the order passed by the Company Judge on the misfeasance application. The court also found that there was no ground made out for reviewing its order dated 19.9.2002. On a consideration of the relevant aspects, we find that the Division Bench and the learned single Judge were both justified in not acceding to the prayer for review made by the appellant. | 0 | 1,313 | 228 | ### 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:
interest thereon at the rate of 18% per annum with effect from 6.10.1996 along with the costs of the proceedings. The order dated 22.7.1999 that was sought to be challenged was the order on the misfeasance application. The order dated 16.8.2002 was one by which the Company Judge rejected an application for review filed by the petitioner seeking a review of the order passed on 7.9.2001. The appeal was in time only as regards the order dated 16.8.2002 refusing to review the earlier orders in misfeasance proceedings passed by the Company Judge. The appeal was not accompanied by even an application for condoning the delay in filing the appeal as against the orders dated 7.9.2001 and 22.7.1999even though the challenges to them were clearly barred by limitation. The Division Bench of the High Court, therefore, ordered on 19.9.2002 that the orders passed by the Company Judge on 7.9.2001 and 22.7.1999 were not amenable to scrutiny for their sustainability in the appeal filed and the appeal had to be confined to one from the order dated 16.8.2002. Thereafter, the appeal was dismissed holding that the Company Judge was justified in refusing to review the orders passed in the Misfeasance Application. The appellant then filed a petition to review the judgment in Company Appeal No. 3 of 2002. By order dated 18.7.2003, the application for review was dismissed. It is that order that is challenged in this appeal. 3. For the purpose of this case, we do not think it necessary to consider the question whether the appeal filed before the Division Bench under Section 483 of the Companies Act against an order refusing to review the orders on the Misfeasance Application was maintainable, the wide words of Section 483 notwithstanding (an order rejecting an application for review is not appealable even under the Code of Civil Procedure either under Order XLIII Rule 1(w) or Order XLVII Rule 7). We proceed on the assumption that the appeal was maintainable. 4. Learned counsel for the appellant submitted that the order of the Division Bench sought to be reviewed, proceeded on the basis that it was an appeal challenging the order dated 16.8.2002 passed by the Company Judge dismissing an application for review preferred by the appellant and the order dated 16.8.2002 passed by the Company Judge and the challenge thereto, included a challenge to the prior orders dated 7.9.2001 and 22.7.1999. This argument cannot be accepted. The order dated 16.8.2002 was that the Petition for review filed by the appellant seeking a review of the order dated 7.9.2001 passed in Company Application No. 40 of 1999, which was one for recalling the order dated 22.7.1999 was liable to be dismissed. The Company Judge after referring to the facts leading to that application and considering the merits of that application held that there was no error apparent on the face of the record which justified a review of the order dated 7.9.2001. The application for review was thus dismissed on 16.8.2002. It was this order that was dealt with in Company Appeal No. 3 of 2002 by the Division Bench in its order which was sought to be reviewed. The order specified that the appeal was against the order dated 16.8.2002. Therefore, the application for review filed by the appellant before the Division Bench could be treated only as an application for review of the order dated 19.9.2002 refusing to interfere with the order dated 16.8.2002. It is not possible to accept the argument of learned counsel for the appellant that the Division Bench while exercising its review jurisdiction or when called upon to exercise its review jurisdiction was bound to consider the reviewability or correctness of all the prior orders including the order on the review petition. 5. While dismissing the Petition for review of the order dated 7.9.2001, on 16.8.2002, the Company Judge found on the basis of the material on record of Company Application No. 40 of 1999 and the contentions sought to be raised by the appellant that there was no error apparent on the face of the record in the order dated 7.9.2001. Therefore, what was involved in Company Appeal No. 3 of 2002 was only the appellant or could not be produced by him at the time when the original order was passed, was made out. This finding by the Company Judge was affirmed by the Division Bench in its order dated 19.9.2002. When the appellant sought a review of that order, as indicated earlier, the Division Bench considered the conduct of the appellant right through the proceedings and found that the appellant was indulging in dilatory tactics just to thwart the order passed by the Company Judge on the misfeasance application. The court also found that there was no ground made out for reviewing its order dated 19.9.2002. On a consideration of the relevant aspects, we find that the Division Bench and the learned single Judge were both justified in not acceding to the prayer for review made by the appellant. 6. Learned counsel for the appellant submitted that the order on the misfeasance application was made without the appellant, who was only a legal representative of one of the Directors, really getting an opportunity to put forward his contentions. But on the materials, it was found that he had such an opportunity, a notice in that behalf having been taken out to him and served on him. His plea that he had no notice was found to be unacceptable. It is also seen that instead of taking appropriate steps at appropriate times, the appellant had indulged in initiating proceedings one after another which were all found to be untenable and without merit. In the circumstances, one can only say that the appellant has to thank himself for the situation he finds himself in, even if there is any merit in his claims. The High Court cannot be faulted for refusing to review its order dismissing the Company Appeal, or in dismissing the Company Appeal itself. 7.
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0
### Explanation:
While dismissing the Petition for review of the order dated 7.9.2001, on 16.8.2002, the Company Judge found on the basis of the material on record of Company Application No. 40 of 1999 and the contentions sought to be raised by the appellant that there was no error apparent on the face of the record in the order dated 7.9.2001. Therefore, what was involved in Company Appeal No. 3 of 2002 was only the appellant or could not be produced by him at the time when the original order was passed, was made out. This finding by the Company Judge was affirmed by the Division Bench in its order dated 19.9.2002. When the appellant sought a review of that order, as indicated earlier, the Division Bench considered the conduct of the appellant right through the proceedings and found that the appellant was indulging in dilatory tactics just to thwart the order passed by the Company Judge on the misfeasance application. The court also found that there was no ground made out for reviewing its order dated 19.9.2002. On a consideration of the relevant aspects, we find that the Division Bench and the learned single Judge were both justified in not acceding to the prayer for review made by the appellant.
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VIRUDHUNAGAR HINDU NADARGAL DHARMA PARIBALANA SABAI Vs. TUTICORIN EDUCATIONAL SOCIETY | grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai (2003) 6 SCC 675 , pointed out in Radhey Shyam Vs. Chhabi Nath (2015) 5 SCC 423 that orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.15. Another aspect that was overlooked by the High Court was that the second respondent herein namely Shri A. Rajendran was already restrained by the Sub-Court, from functioning as the Secretary of the first respondent society. It is seen from the records that the civil revision was filed before the High court by the first respondent society as well the second respondent herein. The second respondent herein was not only the second petitioner in the Civil Revision Petition filed before the High Court, but he also sought to represent the first respondent-Society as its Secretary, before the High court in the Civil Revision.16. But in a connected Civil Miscellaneous Appeal No.7 of 2018 filed by the appellants herein (plaintiffs in the suit), the Sub-Court, Thoothukudi passed an order dated 22.04.2018 restraining the second respondent herein for acting as the Secretary of the first respondent-Society. This appeal arose out of the dismissal by the trial court, of an interlocutory application I.A.No. 387 of 2018 filed by the appellants herein for restraining the second respondent herein from acting as the Secretary and another person from acting as the Patron. The trial Court dismissed I.A.No.387 of 2018, but the plaintiffs filed an appeal in Civil Misc. Appeal No.7 of 2018. The same was allowed by an order dated 22.04.2018 by the Sub-court, Thoothukudi unseating the second respondent as the Secretary. Though the second respondent has claimed in his rejoinder, that the order passed in C. M. A. No. 7 of 2018 was challenged in a revision in CRP (MD) No. 1295 of 2019 and an order of status quo was obtained, from the Madurai Bench of the Madras High Court, the same happened after more than a year. Therefore, on the date on which the first respondent-Society filed the Civil Revision CRP (MD) No. 1084 of 2018 before the high court, the second respondent herein was not the secretary and could not have acted on behalf of the society. This aspect was also overlooked by the High Court.17. The observation of the High Court that the trial Court proceeded in great haste, appears to be uncharitable. It is true that the application for injunction was moved on 24.4.2018 but the respondent nos. 1 & 2 were very vigilant, if not overzealous and, hence, they not only filed a counter affidavit to the application for injunction on 25.04.2018, but also filed 19 documents. They also advanced arguments, only after considering which the trial Court passed an order on 26.4.2018.18. Order XXXIX Rule 3A of the Code of Civil Procedure itself mandates the disposal of an application for injunction within 30 days, whenever an injunction was granted without notice to the opposite party. In this case, the trial Court, without granting an ex-parte order of injunction, chose to allow the opposite parties to file counter affidavit(s) along with documents and then heard the opposite parties before allowing the application for injunction. Finding the line of demarcation between speedy disposal and hurried dispatch, with mathematical precision, is not possible. In any case, even if the High Court was convinced that the trial Court had proceeded hastily, the High Court could have only remanded the matter back. But the High Court allowed the application for injunction without recording any finding on merits. In fact the order of the Trial Court deals with the rival contentions and is one passed on merits after due consideration of the pleadings and documents. The High Court unfortunately did not even deal with the matter on merits to over turn the decision of the Trial Court. Therefore, the order of the High Court is liable to be set aside and the order of the Trial Court is liable to be restored.19. But it is brought to our notice that after the High Court allowed the Civil Revision petition by its order dated 28.08.2018, the second respondent herein proceeded with the meeting of the General Body and the Executive Committee on 25.09.2018 and also conducted elections. Notice was ordered and the interim order of the status quo was passed in the above special leave petition only on 8.10.2018. Hence, it was sought to be contended that the above appeal has virtually become infructuous.20. In normal circumstances, we would have agreed. But this is a case where every meeting of the General Body and every attempt at holding elections to the first respondent-Society seem to have created a series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in Writ Petitions arising out of orders of the Registrar of Societies). This can be seen from the following table:table21. Therefore, we are of the view that the only way to bring to an end all the litigations between the parties before various fora is to set aside the impugned order and the elections held pursuant thereto and to appoint an Advocate Commissioner to convene the General Body as well as the Executive Committee for the election of office bearers. | 1[ds]11. Primarily the High Court, in our view, went wrong in overlooking the fact that there was already an appeal in C.M.A. No. 1 of 2018 filed before the Sub-Court at Tuticorin under Order XLI, Rule 1 (r) of the Code, at the instance of the fifth defendant in the suit (third respondent herein), as against the very same order of injunction and, therefore, there was no justification for invoking the supervisory jurisdiction under Article 227.12. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors.(2000) 7 SCC 695 , this Court held that ?though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy?.13. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai(2003) 6 SCC 675 , pointed out in Radhey Shyam Vs. Chhabi Nath(2015) 5 SCC 423 that orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.15. Another aspect that was overlooked by the High Court was that the second respondent herein namely Shri A. Rajendran was already restrained by the Sub-Court, from functioning as the Secretary of the first respondent society. It is seen from the records that the civil revision was filed before the High court by the first respondent society as well the second respondent herein. The second respondent herein was not only the second petitioner in the Civil Revision Petition filed before the High Court, but he also sought to represent the first respondent-Society as its Secretary, before the High court in the Civil Revision.Therefore, on the date on which the first respondent-Society filed the Civil Revision CRP (MD) No. 1084 of 2018 before the high court, the second respondent herein was not the secretary and could not have acted on behalf of the society. This aspect was also overlooked by the High Court.17. The observation of the High Court that the trial Court proceeded in great haste, appears to be uncharitable. It is true that the application for injunction was moved on 24.4.2018 but the respondent nos. 1 & 2 were very vigilant, if not overzealous and, hence, they not only filed a counter affidavit to the application for injunction on 25.04.2018, but also filed 19 documents. They also advanced arguments, only after considering which the trial Court passed an order on 26.4.2018.The observation of the High Court that the trial Court proceeded in great haste, appears to be uncharitable. It is true that the application for injunction was moved on 24.4.2018 but the respondent nos. 1 & 2 were very vigilant, if not overzealous and, hence, they not only filed a counter affidavit to the application for injunction on 25.04.2018, but also filed 19 documents. They also advanced arguments, only after considering which the trial Court passed an order on 26.4.2018.Order XXXIX Rule 3A of the Code of Civil Procedure itself mandates the disposal of an application for injunction within 30 days, whenever an injunction was granted without notice to the opposite party. In this case, the trial Court, without granting an ex-parte order of injunction, chose to allow the opposite parties to file counter affidavit(s) along with documents and then heard the opposite parties before allowing the application for injunction. Finding the line of demarcation between speedy disposal and hurried dispatch, with mathematical precision, is not possible. In any case, even if the High Court was convinced that the trial Court had proceeded hastily, the High Court could have only remanded the matter back. But the High Court allowed the application for injunction without recording any finding on merits. In fact the order of the Trial Court deals with the rival contentions and is one passed on merits after due consideration of the pleadings and documents. The High Court unfortunately did not even deal with the matter on merits to over turn the decision of the Trial Court. Therefore, the order of the High Court is liable to be set aside and the order of the Trial Court is liable to be restored.19. But it is brought to our notice that after the High Court allowed the Civil Revision petition by its order dated 28.08.2018, the second respondent herein proceeded with the meeting of the General Body and the Executive Committee on 25.09.2018 and also conducted elections. Notice was ordered and the interim order of the status quo was passed in the above special leave petition only on 8.10.2018. Hence, it was sought to be contended that the above appeal has virtually become infructuous.20. In normal circumstances, we would have agreed. But this is a case where every meeting of the General Body and every attempt at holding elections to the first respondent-Society seem to have created a series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in Writ Petitions arising out of orders of the Registrar of Societies).In normal circumstances, we would have agreed. But this is a case where every meeting of the General Body and every attempt at holding elections to the first respondent-Society seem to have created a series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in Writ Petitions arising out of orders of the Registrar of Societies).Therefore, we are of the view that the only way to bring to an end all the litigations between the parties before various fora is to set aside the impugned order and the elections held pursuant thereto and to appoint an Advocate Commissioner to convene the General Body as well as the Executive Committee for the election of office bearers. | 1 | 2,274 | 1,444 | ### 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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grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai (2003) 6 SCC 675 , pointed out in Radhey Shyam Vs. Chhabi Nath (2015) 5 SCC 423 that orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.15. Another aspect that was overlooked by the High Court was that the second respondent herein namely Shri A. Rajendran was already restrained by the Sub-Court, from functioning as the Secretary of the first respondent society. It is seen from the records that the civil revision was filed before the High court by the first respondent society as well the second respondent herein. The second respondent herein was not only the second petitioner in the Civil Revision Petition filed before the High Court, but he also sought to represent the first respondent-Society as its Secretary, before the High court in the Civil Revision.16. But in a connected Civil Miscellaneous Appeal No.7 of 2018 filed by the appellants herein (plaintiffs in the suit), the Sub-Court, Thoothukudi passed an order dated 22.04.2018 restraining the second respondent herein for acting as the Secretary of the first respondent-Society. This appeal arose out of the dismissal by the trial court, of an interlocutory application I.A.No. 387 of 2018 filed by the appellants herein for restraining the second respondent herein from acting as the Secretary and another person from acting as the Patron. The trial Court dismissed I.A.No.387 of 2018, but the plaintiffs filed an appeal in Civil Misc. Appeal No.7 of 2018. The same was allowed by an order dated 22.04.2018 by the Sub-court, Thoothukudi unseating the second respondent as the Secretary. Though the second respondent has claimed in his rejoinder, that the order passed in C. M. A. No. 7 of 2018 was challenged in a revision in CRP (MD) No. 1295 of 2019 and an order of status quo was obtained, from the Madurai Bench of the Madras High Court, the same happened after more than a year. Therefore, on the date on which the first respondent-Society filed the Civil Revision CRP (MD) No. 1084 of 2018 before the high court, the second respondent herein was not the secretary and could not have acted on behalf of the society. This aspect was also overlooked by the High Court.17. The observation of the High Court that the trial Court proceeded in great haste, appears to be uncharitable. It is true that the application for injunction was moved on 24.4.2018 but the respondent nos. 1 & 2 were very vigilant, if not overzealous and, hence, they not only filed a counter affidavit to the application for injunction on 25.04.2018, but also filed 19 documents. They also advanced arguments, only after considering which the trial Court passed an order on 26.4.2018.18. Order XXXIX Rule 3A of the Code of Civil Procedure itself mandates the disposal of an application for injunction within 30 days, whenever an injunction was granted without notice to the opposite party. In this case, the trial Court, without granting an ex-parte order of injunction, chose to allow the opposite parties to file counter affidavit(s) along with documents and then heard the opposite parties before allowing the application for injunction. Finding the line of demarcation between speedy disposal and hurried dispatch, with mathematical precision, is not possible. In any case, even if the High Court was convinced that the trial Court had proceeded hastily, the High Court could have only remanded the matter back. But the High Court allowed the application for injunction without recording any finding on merits. In fact the order of the Trial Court deals with the rival contentions and is one passed on merits after due consideration of the pleadings and documents. The High Court unfortunately did not even deal with the matter on merits to over turn the decision of the Trial Court. Therefore, the order of the High Court is liable to be set aside and the order of the Trial Court is liable to be restored.19. But it is brought to our notice that after the High Court allowed the Civil Revision petition by its order dated 28.08.2018, the second respondent herein proceeded with the meeting of the General Body and the Executive Committee on 25.09.2018 and also conducted elections. Notice was ordered and the interim order of the status quo was passed in the above special leave petition only on 8.10.2018. Hence, it was sought to be contended that the above appeal has virtually become infructuous.20. In normal circumstances, we would have agreed. But this is a case where every meeting of the General Body and every attempt at holding elections to the first respondent-Society seem to have created a series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in Writ Petitions arising out of orders of the Registrar of Societies). This can be seen from the following table:table21. Therefore, we are of the view that the only way to bring to an end all the litigations between the parties before various fora is to set aside the impugned order and the elections held pursuant thereto and to appoint an Advocate Commissioner to convene the General Body as well as the Executive Committee for the election of office bearers.
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availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai(2003) 6 SCC 675 , pointed out in Radhey Shyam Vs. Chhabi Nath(2015) 5 SCC 423 that orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.15. Another aspect that was overlooked by the High Court was that the second respondent herein namely Shri A. Rajendran was already restrained by the Sub-Court, from functioning as the Secretary of the first respondent society. It is seen from the records that the civil revision was filed before the High court by the first respondent society as well the second respondent herein. The second respondent herein was not only the second petitioner in the Civil Revision Petition filed before the High Court, but he also sought to represent the first respondent-Society as its Secretary, before the High court in the Civil Revision.Therefore, on the date on which the first respondent-Society filed the Civil Revision CRP (MD) No. 1084 of 2018 before the high court, the second respondent herein was not the secretary and could not have acted on behalf of the society. This aspect was also overlooked by the High Court.17. The observation of the High Court that the trial Court proceeded in great haste, appears to be uncharitable. It is true that the application for injunction was moved on 24.4.2018 but the respondent nos. 1 & 2 were very vigilant, if not overzealous and, hence, they not only filed a counter affidavit to the application for injunction on 25.04.2018, but also filed 19 documents. They also advanced arguments, only after considering which the trial Court passed an order on 26.4.2018.The observation of the High Court that the trial Court proceeded in great haste, appears to be uncharitable. It is true that the application for injunction was moved on 24.4.2018 but the respondent nos. 1 & 2 were very vigilant, if not overzealous and, hence, they not only filed a counter affidavit to the application for injunction on 25.04.2018, but also filed 19 documents. They also advanced arguments, only after considering which the trial Court passed an order on 26.4.2018.Order XXXIX Rule 3A of the Code of Civil Procedure itself mandates the disposal of an application for injunction within 30 days, whenever an injunction was granted without notice to the opposite party. In this case, the trial Court, without granting an ex-parte order of injunction, chose to allow the opposite parties to file counter affidavit(s) along with documents and then heard the opposite parties before allowing the application for injunction. Finding the line of demarcation between speedy disposal and hurried dispatch, with mathematical precision, is not possible. In any case, even if the High Court was convinced that the trial Court had proceeded hastily, the High Court could have only remanded the matter back. But the High Court allowed the application for injunction without recording any finding on merits. In fact the order of the Trial Court deals with the rival contentions and is one passed on merits after due consideration of the pleadings and documents. The High Court unfortunately did not even deal with the matter on merits to over turn the decision of the Trial Court. Therefore, the order of the High Court is liable to be set aside and the order of the Trial Court is liable to be restored.19. But it is brought to our notice that after the High Court allowed the Civil Revision petition by its order dated 28.08.2018, the second respondent herein proceeded with the meeting of the General Body and the Executive Committee on 25.09.2018 and also conducted elections. Notice was ordered and the interim order of the status quo was passed in the above special leave petition only on 8.10.2018. Hence, it was sought to be contended that the above appeal has virtually become infructuous.20. In normal circumstances, we would have agreed. But this is a case where every meeting of the General Body and every attempt at holding elections to the first respondent-Society seem to have created a series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in Writ Petitions arising out of orders of the Registrar of Societies).In normal circumstances, we would have agreed. But this is a case where every meeting of the General Body and every attempt at holding elections to the first respondent-Society seem to have created a series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in Writ Petitions arising out of orders of the Registrar of Societies).Therefore, we are of the view that the only way to bring to an end all the litigations between the parties before various fora is to set aside the impugned order and the elections held pursuant thereto and to appoint an Advocate Commissioner to convene the General Body as well as the Executive Committee for the election of office bearers.
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Gujarat Electricity Board,Thermal Power Station, Ukai, Guja Vs. Hind Mazdoor Sabha & Ors | question of the status of the workmen of the erstwhile contractor once the contract is abolished by the appropriate Government. Hence as far as the question of determination of the status of the workmen is concerned, it remains open for decisions by the industrial adjudicator. There is nothing in the Act which can be construed to have deprived the industrial adjudicator of the jurisdiction to determine the same. So long as, therefore, the said jurisdiction has not been taken away from the industrial adjudicator by any express provision of the Act or of any other statute, it will have to be held that jurisdiction which, as pointed out above, has been recognised even by the decisions in Dimakuchi (AIR 1958 SC 353 ) and Standard Vacuum (AIR 1960 SC 948 ) cases (supra) continues to exist. In the exercise of the said jurisdiction, the industrial adjudicator can certainly make a contract between the workmen of the excontractor and the principal employer and direct the principal employer to absorb such of them and on such terms as the adjudicator may determine in the facts of each case. We find nothing in the decisions relied upon on behalf of the appellant which goes counter to this proposition of law. The decisions in Indian General Navigation and Railway Company Ltd. (1966 (1) Lab LJ 735); Krishna Kurup (AIR 1987 SC 163 ) and Gurmail Singh (1991 (1) SCC 189 ) (supra), on which reliance is placed on behalf of the appellant for the purpose, have already been discussed by us above. The only additional decisions which is pressed into service in this behalf is Sanghi Jeevaraj Ghewar Chand v. Secretary, Madras Chillies, Grains Kirana Merchants Workers Union, (1969 (1) SCR 366 : AIR 1969 SC 530 ). By a common decision in this case, two appeals were decided by this Court. In one appeal, the establishment employed less than 20 employees and it was not a factory; in the other appeal, the establishment was in the public sector. By reasons of exclusion under S.1(3) of the Payment of Bonus Act, 1965, the establishment in the first appeal was excluded from the application of that Act whereas by reason of exemption under S.32(x), the establishment in the other appeal stood exempted from the operation of the said Act. On these facts, the question was whether the employees of the two establishments could claim bonus dehors the Payment of Bonus Act and the Court held, considering the history of the legislation, the background and the circumstances in which the Bonus Act was enacted, and the object of the Act and its scheme, that the Act was an exhaustive Act, dealing comprehensively with the subject matter of bonus in all its aspects, and the Parliament had not left it open to those to whom the Act did not apply, the reason of its provisions either as to exclusion or exemption, to raise a dispute with regard to bonus through industrial adjudication under the ID Act or other corresponding law. The ID Act itself did not provide for a statutory right for payment of bonus although it had provided substantial rights for workmen with regard to lay off, retrenchment compensation etc. It will thus be clear that the right to bonus which was spelt out by the judicial decisions was expressly denied by the Bonus Act to the workmen in the establishment concerned in that case, and yet the workmen claimed the bonus on the basis of the alleged provisions of the ID Act. In the present case, there is nothing in the Act as pointed out earlier, which has either expressly or impliedly taken away the raising of an industrial dispute to absorb the excontractors workmen in the principal establishment when the dispute has been espoused by the direct workmen or the jurisdiction of the Tribunal to give a direction for the purpose, of course, on such terms as it deems fit in the circumstances of each case.For all these reasons, we are unable to accept the contention that the industrial adjudicator cannot direct the principal employer to engage excontractors workmen as direct employees.24. It was then contended that the bulk of the contract labour was engaged by the contractors in the process of unloading coal, and since the year 1989 the process of unloading coal had been fully mechanised at the Ukai Thermal Power with which we are concerned and as such, no labour was required in the process of the unloading of coal. For this purpose, reliance was placed on the contents of the additional affidavit filed by the Board during the hearing of the present appeal. We are concerned in the present appeal with the award of the Tribunal dated 22nd February, 1988. If a situation has, thereafter, arisen where the workmen directed to be employed by the award have become surplus, it is open for the appellant - Board to retrench them in accordance with the provisions of law. However, the situation in 1989 cannot be pressed into service to negative the award of 1988 by which the dispute raised in 1982 was adjudicated.25. The last argument was that the appellant - Board has several other thermal Power plants in the State where certain type of the works done through contract labour only by contractors and the present Thermal Power plant is only one of them. Any decision in the present appeal will have, therefore, according to the Board serious repercussions in the other plants. It is contended that this might also result in total break down of the functioning of the Board which would not be in the interest of the workers as a class. To say the least, the argument is one in terrorem and has only to be stated to be rejected. The Board has to manage its affairs according to the provisions of law. The Courts cannot grant it exemption from the law on the ground that it will not be in a position to run its affairs. | 0[ds]15. It is no doubt true that neither S.10 of the Act nor any other provision thereof provides for determination of the status of the workmen of the erstwhile contractor once the appropriate Government abolishes the contract labour. In fact, on the abolition of the contract, the workmen are in a worse condition since they can neither be employed by the contractor nor is there any obligation cast on the principal employer to engage them in his establishment. We find that this is a vital lacuna in the Act. Although the Act has been placed on the statute book with all benevolent intentions, and elaborate provisions are made to prevent the abuse of the contract labour system as is evident from the Statement of objects and Reasons and the provisions of the Act referred to by us in detail earlier, the legislature has not provided any relief for the concerned workmen after the contract is abolished. One reason for the same pointed out to us was that the workmen engaged by the contractor may not be qualified to be engaged by the principal employer according to the latters rules of recruitment. In this respect, we envisage two different situations, first where a similar type of work is being carried out by the direct employees of the principal employer and, second where the contract labour is engaged to execute work which is not being carried out by any section of the direct employees of the principal employer. As regards the first situation, the condition No. (5) of the licence to be granted to the contractor in Form VI under R.25(1) of the Rules requires that wage rates, holidays, hours of work and other conditions of service of the contract workmen shall be the same as applicable to the workmen directly employed by the principal employer for performing the same or similar type of work. In other cases, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor, as per condition (6) of the said Form, shall be such as may be specified by the Chief Labour Commissioner (Central). When the legislature has been careful enough to take such precautions, we are unable to appreciate as to why it could not have provided also for the absorption of the workmen who have been doing the work in question. It is possible that the contractor has been transferring his workmen from one job to another and the same workmen may not be working for the time in the same establishment or the process. But as pointed out earlier, the application for registration under R.17(1), the certificate of registration under R.18(1), the register of establishment under R.18(3), the application for licence under R.21(2) and the licence granted under R.25(1) all require the particulars of contract labour to be furnished in the prescribed form. Hence it should not be difficult to verify the workmen who were actually working in the establishment in question for a given period of time and the period for which they had worked since the record of payment of wages made to them would be available as it is to be made in presence of representative of the principal employer who is also responsible to make the payment of the whole of the wages or the balance of it in case the contractor makes default. For ensuring the payment to the workmen, the muster roll has necessarily to be maintained. If they have in fact worked for a reasonably long time satisfactorily and have thus gained experience, it should not be difficult to identify and absorb them. In fact, they will any time be better than fresh recruits and their engagement would be beneficial to the establishment concerned. On account of the abolition of the contract labour, the establishment will in any case require replacement of the contract labour. It may be that the establishment may not require the whole complement of the workmen erstwhile employed by the contractor. But that also may not always be correct since the contractor would more probably than not have employed less work force than may be necessary in order to keep his margin of profit as wide as possible. Whatever the case, the logic in not employing the workmen of the erstwhile contractor or those of them who may be necessary, in the principal establishment after the contract is abolished, does not appear to be sound.The legislature probably did not consider it advisable to make a provision for automatic absorption of the erstwhile contract labour in the principal establishment on the abolition of the contract labour, fearing that such provision would amount to forcing the contract labour on the principal employer and making a contract between them. The industrial adjudicator however is not inhibited by such considerations. He has the jurisdiction to change the contractual relationship and also make new contracts between the employer and the employees under the ID Act. It is for this reason that in all cases where the contract labour is abolished, the industrial adjudicator, depending upon the facts of the case will have the authority to direct the principal employer to absorb such of the workmen of the erstwhile contractor and on such terms as he may determine on the basis of the relevant material before him. Hence the legislature could have provided in the Act itself for a reference of the dispute with regard to the absorption of the workmen of the erstwhile contractor to the industrial adjudicator after the appropriate Government has abolished the contract labour. That would also have obviated the need to sponsor the dispute by the direct workmen of the principal employer. That can still be done by a suitable amendment of thehave therefore to see whether the respondents who have raised this dispute have a direct interest in the subject matter of the dispute or a substantial interest therein in the sense that the class to which the respondents belong is substantially affected thereby and whether there is community of interest between the respondents and those whose cause they have espoused. There can be no doubt that there is community of interest in this case between the respondents and the workmen of Ramji Gordhan and Company. They belong to the same class and they do the work of the same employer and it is possible for the company to give the relief which the respondents are claiming. The respondents have in our opinion also a substantial interest in the subject matter of the dispute, namely, the abolition of the contract system in doing work of this kind. The learned Solicitor General particularly emphasised that there was no question of the interest of the respondents being prejudicially affected by the employment or non employment or the terms of service or conditions of labour of the workmen of Ramji Gordhan and Company and placed reliance on the words "may prejudicially affect their interest" appearing in the observations quoted above. We may, however, mention that the test laid down is that the workmen espousing the cause should have a substantial interest in the subject matter of the dispute and it was only when illustrating the practical application of the test that this Court used the words "may prejudicially affect their interest". Besides it is contended by Mr. Gokhale for the respondents that even if prejudicially affect on the interest of workmen espousing the cause is necessary, this is a case where the respondents interest may be prejudicially affected in future in case the contract system of work is allowed to prevail in this branch of the work of the company. He submits that if the company can carry on this part of work by contract system it may introduce the same system in other branches of its work which are now being done by its regular workmen. We do not think it necessary to go into this aspect of the matter as we have already indicated that prejudicial effect is only one of the illustrations of the practical application of the test laid down in Dimakuchi case (AIR 1958 SC 353 ), viz., substantial interest in the sense that the class to which the aggrieved party belongs is substantially affected thereby. It seems to us therefore that the respondents have a community of interest with the workmen of Ramji Gordhan and Company who are in effect working for the same employer. They have also a substantial interest in the subject matter of the dispute in the sense that the class to which they belong (namely, workmen) is substantially affected thereby. Finally the company can give relief in the matter. We are therefore of opinion that all the ingredients of S.2 (k) as interpreted in Dimakuchi case (AIR 1958 SC 353 ), are present in this case and the dispute between the parties is an industrial dispute and the reference was competent.Our conclusions and answers to the questions raised are, therefore, asIn view of the provisions of S.10 of the Act, it is only the appropriate Government which has the authority to abolish genuine labour contract in accordance with the provisions of the said Section. No Court including the industrial adjudicator had jurisdiction to do so.(iii) if the contract is sham or not genuine, the workmen of the so called contractor can raise an industrial dispute for declaring that they were always the employees of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of S.10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. It is only if the adjudicator comes to the conclusion that the contract is sham, that he will have jurisdiction to adjudicate the dispute. If, however, he comes to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of the contract labour under S.10 of the Act and keep the dispute pending. However, he can do so if the dispute is espoused by the direct workmen of the principal employer. If the workmen of the principal employer have not espoused the dispute, the adjudicator, after coming to the conclusion that the contract is genuine, has to reject the reference, the dispute being not an industrial dispute within the meaning of S.2(k) of the ID Act. He will not be competent to give any relief to the workmen of the erstwhile contractor even if the labour contract is abolished by the appropriate Government under S.10 of the Act.(iii) If the labour contract is genuine a composite industrial dispute can still be raised for abolition of the contract labour and their absorption. However, the dispute, will have to be raised invariably by the direct employees of the principal employer. The industrial adjudicator, after receipt of the reference of such dispute will have first to direct the workmen to approach the appropriate Government for abolition of the contract labour under S.10 of the Act and keep the reference pending. If pursuant to such reference, the contract labour is abolished by the appropriate Government, the industrial adjudicator will have to give opportunity to the parties to place the necessary material before him to decide whether the workmen of the erstwhile contract should be directed to be absorbed by the principal employer, how many of them and on what terms. If, however, the contract labour is not abolished, the industrial adjudicator has to reject the reference.(iv) Even after the contract labour system is abolished, the direct employees of the principal employer can raise an industrial dispute for absorption of the excontractors workmen and the adjudicator on the material placed before him can decide as to who and how many of the workmen should be absorbed and on what terms.It was next contended that the dispute raised by the workmen was for abolition of the contract and such a dispute could not have been entertained by the Tribunal in view of the provisions of the S.10 of the Act. For this purpose, the learned counsel relied upon Clause (i) of the order of Reference. We find nothing in the said clause which supports the contention of the learnedthe first instance, we find that the contention that the Tribunal has held that the workmen in question are the employees of the Board only because of the non production of the valid proof of the certificate and the licences in question, is not correct. The Tribunal has, on the basis of the evidence on record, come to the conclusions, among others, that (i) the work was being done on the premises of the Board itself as the coal was being used for the purposes of the Board, viz., generation of electricity;(ii) the workmen were broadly under the control of the Board; (iii) there was overall supervision of the work by the officers of the Board; (iv) the work was of a continuous nature and ; (v) the work was an integral part of the overall work to be executed for the purposes of the generation of the electricity and that it had to be performed within specified time limits as part of the integrated process. The Tribunal has also in this connection referred to a decision of this Court reported in Hussainbhai, Calicut case, (1978 (4) SCC 257 : AIR 1978 SC 1410 ), to support its conclusion that in the aforesaid circumstances found by it, the workmen in question were the employees of the Board. It is true that the Tribunal has not in so many words recorded a finding that the contract was sham or bogus or a camouflage to conceal the real facts. It is also true that the Tribunal has referred to the decisions of the Madras and Karnataka High Courts and on its finding that the Board and the contractors had not produced valid proof of the registration certificate and the licences for the relevant period has held that the workmen should be deemed to be the employees of the Board. However, the decision of the Tribunal has to be read as a whole. Thus read, the decisions makes it clear that the Tribunal has based its conclusion both on the ground that the workmen were in fact engaged by the appellant - Board and not by the contractors who were merely intermediaries set up by the Board and also on the ground that there was no valid proof of the registration certificate and the licences in the possession of the Board and the contractors respectively. It is not, therefore, correct to say that the decision of the Tribunal is based only on the later ground. We are of the view that there is a factual finding recorded by the Tribunal that the labour contracts in question were not genuine and the decisions of the Tribunal is based on this ground as well.The next contention of the learned counsel that the reference with regard to the abolition of the contract labour was not maintainable after the coming into force of the Act has been sufficiently answered by us earlier while discussing and recorded our conclusions on the position of law in that behalf. Even on facts we have pointed out that the present reference was not for the abolition of contract labour but for a declaration that the workmen were in law the employees of the appellant - Board. The industrial adjudicator has undoubtedly no jurisdiction to abolish a genuine labour contract in view of the provisions of S.10 of the Act. However, it is not correct to say that the reference for the abolition of the contract, itself stands barred. It is the terms of the reference which will determine the jurisdiction of the industrial adjudicator to entertain and decide the reference. The dispute as to whether the labour contract is genuine or not can be agitated by the workmen and the industrial adjudicator has jurisdiction to examine the controversy. If the contract is held to be genuine, the dispute if it is espoused by direct workmen of the principal employer can be kept pending by the industrial adjudicator and the workmen may be referred by him to the appropriate Government for the abolition of the contract. If the appropriate Government abolishes the contract, the industrial adjudicator can thereafter grant further relief, if claimed, viz., of the absorption of the workmen of the erstwhile contractor in the principal establishment. If, however, the appropriate Government does not abolish the contract, the industrial adjudicator may reject the reference, as stated earlier. It is not therefore, correct to say that the reference of an industrial dispute seeking to abolish the contract is per se barred, as contended by the learnedis also not correct to say that the Act is a complete Code by itself and, therefore, the Industrial Tribunal has no jurisdiction to give a direction to the principal employer to absorb the workmen in question. We have already pointed out that the Act is silent on the question of the status of the workmen of the erstwhile contractor once the contract is abolished by the appropriate Government. Hence as far as the question of determination of the status of the workmen is concerned, it remains open for decisions by the industrial adjudicator. There is nothing in the Act which can be construed to have deprived the industrial adjudicator of the jurisdiction to determine the same. So long as, therefore, the said jurisdiction has not been taken away from the industrial adjudicator by any express provision of the Act or of any other statute, it will have to be held that jurisdiction which, as pointed out above, has been recognised even by the decisions in Dimakuchi (AIR 1958 SC 353 ) and Standard Vacuum (AIR 1960 SC 948 ) cases (supra) continues to exist. In the exercise of the said jurisdiction, the industrial adjudicator can certainly make a contract between the workmen of the excontractor and the principal employer and direct the principal employer to absorb such of them and on such terms as the adjudicator may determine in the facts of each case. We find nothing in the decisions relied upon on behalf of the appellant which goes counter to this proposition of law. The decisions in Indian General Navigation and Railway Company Ltd. (1966 (1) Lab LJ 735); Krishna Kurup (AIR 1987 SC 163 ) and Gurmail Singh (1991 (1) SCC 189 ) (supra), on which reliance is placed on behalf of the appellant for the purpose, have already been discussed by us above. The only additional decisions which is pressed into service in this behalf is Sanghi Jeevaraj Ghewar Chand v. Secretary, Madras Chillies, Grains Kirana Merchants Workers Union, (1969 (1) SCR 366 : AIR 1969 SC 530 ). By a common decision in this case, two appeals were decided by this Court. In one appeal, the establishment employed less than 20 employees and it was not a factory; in the other appeal, the establishment was in the public sector. By reasons of exclusion under S.1(3) of the Payment of Bonus Act, 1965, the establishment in the first appeal was excluded from the application of that Act whereas by reason of exemption under S.32(x), the establishment in the other appeal stood exempted from the operation of the said Act. On these facts, the question was whether the employees of the two establishments could claim bonus dehors the Payment of Bonus Act and the Court held, considering the history of the legislation, the background and the circumstances in which the Bonus Act was enacted, and the object of the Act and its scheme, that the Act was an exhaustive Act, dealing comprehensively with the subject matter of bonus in all its aspects, and the Parliament had not left it open to those to whom the Act did not apply, the reason of its provisions either as to exclusion or exemption, to raise a dispute with regard to bonus through industrial adjudication under the ID Act or other corresponding law. The ID Act itself did not provide for a statutory right for payment of bonus although it had provided substantial rights for workmen with regard to lay off, retrenchment compensation etc. It will thus be clear that the right to bonus which was spelt out by the judicial decisions was expressly denied by the Bonus Act to the workmen in the establishment concerned in that case, and yet the workmen claimed the bonus on the basis of the alleged provisions of the ID Act. In the present case, there is nothing in the Act as pointed out earlier, which has either expressly or impliedly taken away the raising of an industrial dispute to absorb the excontractors workmen in the principal establishment when the dispute has been espoused by the direct workmen or the jurisdiction of the Tribunal to give a direction for the purpose, of course, on such terms as it deems fit in the circumstances of each case.For all these reasons, we are unable to accept the contention that the industrial adjudicator cannot direct the principal employer to engage excontractors workmen as direct employees.24. It was then contended that the bulk of the contract labour was engaged by the contractors in the process of unloading coal, and since the year 1989 the process of unloading coal had been fully mechanised at the Ukai Thermal Power with which we are concerned and as such, no labour was required in the process of the unloading of coal. For this purpose, reliance was placed on the contents of the additional affidavit filed by the Board during the hearing of the present appeal. We are concerned in the present appeal with the award of the Tribunal dated 22nd February, 1988. If a situation has, thereafter, arisen where the workmen directed to be employed by the award have become surplus, it is open for the appellant - Board to retrench them in accordance with the provisions of law. However, the situation in 1989 cannot be pressed into service to negative the award of 1988 by which the dispute raised in 1982 was adjudicated.25. The last argument was that the appellant - Board has several other thermal Power plants in the State where certain type of the works done through contract labour only by contractors and the present Thermal Power plant is only one of them. Any decision in the present appeal will have, therefore, according to the Board serious repercussions in the other plants. It is contended that this might also result in total break down of the functioning of the Board which would not be in the interest of the workers as a class. To say the least, the argument is one in terrorem and has only to be stated to be rejected. The Board has to manage its affairs according to the provisions of law. The Courts cannot grant it exemption from the law on the ground that it will not be in a position to run its affairs. | 0 | 24,209 | 4,200 | ### 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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question of the status of the workmen of the erstwhile contractor once the contract is abolished by the appropriate Government. Hence as far as the question of determination of the status of the workmen is concerned, it remains open for decisions by the industrial adjudicator. There is nothing in the Act which can be construed to have deprived the industrial adjudicator of the jurisdiction to determine the same. So long as, therefore, the said jurisdiction has not been taken away from the industrial adjudicator by any express provision of the Act or of any other statute, it will have to be held that jurisdiction which, as pointed out above, has been recognised even by the decisions in Dimakuchi (AIR 1958 SC 353 ) and Standard Vacuum (AIR 1960 SC 948 ) cases (supra) continues to exist. In the exercise of the said jurisdiction, the industrial adjudicator can certainly make a contract between the workmen of the excontractor and the principal employer and direct the principal employer to absorb such of them and on such terms as the adjudicator may determine in the facts of each case. We find nothing in the decisions relied upon on behalf of the appellant which goes counter to this proposition of law. The decisions in Indian General Navigation and Railway Company Ltd. (1966 (1) Lab LJ 735); Krishna Kurup (AIR 1987 SC 163 ) and Gurmail Singh (1991 (1) SCC 189 ) (supra), on which reliance is placed on behalf of the appellant for the purpose, have already been discussed by us above. The only additional decisions which is pressed into service in this behalf is Sanghi Jeevaraj Ghewar Chand v. Secretary, Madras Chillies, Grains Kirana Merchants Workers Union, (1969 (1) SCR 366 : AIR 1969 SC 530 ). By a common decision in this case, two appeals were decided by this Court. In one appeal, the establishment employed less than 20 employees and it was not a factory; in the other appeal, the establishment was in the public sector. By reasons of exclusion under S.1(3) of the Payment of Bonus Act, 1965, the establishment in the first appeal was excluded from the application of that Act whereas by reason of exemption under S.32(x), the establishment in the other appeal stood exempted from the operation of the said Act. On these facts, the question was whether the employees of the two establishments could claim bonus dehors the Payment of Bonus Act and the Court held, considering the history of the legislation, the background and the circumstances in which the Bonus Act was enacted, and the object of the Act and its scheme, that the Act was an exhaustive Act, dealing comprehensively with the subject matter of bonus in all its aspects, and the Parliament had not left it open to those to whom the Act did not apply, the reason of its provisions either as to exclusion or exemption, to raise a dispute with regard to bonus through industrial adjudication under the ID Act or other corresponding law. The ID Act itself did not provide for a statutory right for payment of bonus although it had provided substantial rights for workmen with regard to lay off, retrenchment compensation etc. It will thus be clear that the right to bonus which was spelt out by the judicial decisions was expressly denied by the Bonus Act to the workmen in the establishment concerned in that case, and yet the workmen claimed the bonus on the basis of the alleged provisions of the ID Act. In the present case, there is nothing in the Act as pointed out earlier, which has either expressly or impliedly taken away the raising of an industrial dispute to absorb the excontractors workmen in the principal establishment when the dispute has been espoused by the direct workmen or the jurisdiction of the Tribunal to give a direction for the purpose, of course, on such terms as it deems fit in the circumstances of each case.For all these reasons, we are unable to accept the contention that the industrial adjudicator cannot direct the principal employer to engage excontractors workmen as direct employees.24. It was then contended that the bulk of the contract labour was engaged by the contractors in the process of unloading coal, and since the year 1989 the process of unloading coal had been fully mechanised at the Ukai Thermal Power with which we are concerned and as such, no labour was required in the process of the unloading of coal. For this purpose, reliance was placed on the contents of the additional affidavit filed by the Board during the hearing of the present appeal. We are concerned in the present appeal with the award of the Tribunal dated 22nd February, 1988. If a situation has, thereafter, arisen where the workmen directed to be employed by the award have become surplus, it is open for the appellant - Board to retrench them in accordance with the provisions of law. However, the situation in 1989 cannot be pressed into service to negative the award of 1988 by which the dispute raised in 1982 was adjudicated.25. The last argument was that the appellant - Board has several other thermal Power plants in the State where certain type of the works done through contract labour only by contractors and the present Thermal Power plant is only one of them. Any decision in the present appeal will have, therefore, according to the Board serious repercussions in the other plants. It is contended that this might also result in total break down of the functioning of the Board which would not be in the interest of the workers as a class. To say the least, the argument is one in terrorem and has only to be stated to be rejected. The Board has to manage its affairs according to the provisions of law. The Courts cannot grant it exemption from the law on the ground that it will not be in a position to run its affairs.
### Response:
0
### Explanation:
question of the status of the workmen of the erstwhile contractor once the contract is abolished by the appropriate Government. Hence as far as the question of determination of the status of the workmen is concerned, it remains open for decisions by the industrial adjudicator. There is nothing in the Act which can be construed to have deprived the industrial adjudicator of the jurisdiction to determine the same. So long as, therefore, the said jurisdiction has not been taken away from the industrial adjudicator by any express provision of the Act or of any other statute, it will have to be held that jurisdiction which, as pointed out above, has been recognised even by the decisions in Dimakuchi (AIR 1958 SC 353 ) and Standard Vacuum (AIR 1960 SC 948 ) cases (supra) continues to exist. In the exercise of the said jurisdiction, the industrial adjudicator can certainly make a contract between the workmen of the excontractor and the principal employer and direct the principal employer to absorb such of them and on such terms as the adjudicator may determine in the facts of each case. We find nothing in the decisions relied upon on behalf of the appellant which goes counter to this proposition of law. The decisions in Indian General Navigation and Railway Company Ltd. (1966 (1) Lab LJ 735); Krishna Kurup (AIR 1987 SC 163 ) and Gurmail Singh (1991 (1) SCC 189 ) (supra), on which reliance is placed on behalf of the appellant for the purpose, have already been discussed by us above. The only additional decisions which is pressed into service in this behalf is Sanghi Jeevaraj Ghewar Chand v. Secretary, Madras Chillies, Grains Kirana Merchants Workers Union, (1969 (1) SCR 366 : AIR 1969 SC 530 ). By a common decision in this case, two appeals were decided by this Court. In one appeal, the establishment employed less than 20 employees and it was not a factory; in the other appeal, the establishment was in the public sector. By reasons of exclusion under S.1(3) of the Payment of Bonus Act, 1965, the establishment in the first appeal was excluded from the application of that Act whereas by reason of exemption under S.32(x), the establishment in the other appeal stood exempted from the operation of the said Act. On these facts, the question was whether the employees of the two establishments could claim bonus dehors the Payment of Bonus Act and the Court held, considering the history of the legislation, the background and the circumstances in which the Bonus Act was enacted, and the object of the Act and its scheme, that the Act was an exhaustive Act, dealing comprehensively with the subject matter of bonus in all its aspects, and the Parliament had not left it open to those to whom the Act did not apply, the reason of its provisions either as to exclusion or exemption, to raise a dispute with regard to bonus through industrial adjudication under the ID Act or other corresponding law. The ID Act itself did not provide for a statutory right for payment of bonus although it had provided substantial rights for workmen with regard to lay off, retrenchment compensation etc. It will thus be clear that the right to bonus which was spelt out by the judicial decisions was expressly denied by the Bonus Act to the workmen in the establishment concerned in that case, and yet the workmen claimed the bonus on the basis of the alleged provisions of the ID Act. In the present case, there is nothing in the Act as pointed out earlier, which has either expressly or impliedly taken away the raising of an industrial dispute to absorb the excontractors workmen in the principal establishment when the dispute has been espoused by the direct workmen or the jurisdiction of the Tribunal to give a direction for the purpose, of course, on such terms as it deems fit in the circumstances of each case.For all these reasons, we are unable to accept the contention that the industrial adjudicator cannot direct the principal employer to engage excontractors workmen as direct employees.24. It was then contended that the bulk of the contract labour was engaged by the contractors in the process of unloading coal, and since the year 1989 the process of unloading coal had been fully mechanised at the Ukai Thermal Power with which we are concerned and as such, no labour was required in the process of the unloading of coal. For this purpose, reliance was placed on the contents of the additional affidavit filed by the Board during the hearing of the present appeal. We are concerned in the present appeal with the award of the Tribunal dated 22nd February, 1988. If a situation has, thereafter, arisen where the workmen directed to be employed by the award have become surplus, it is open for the appellant - Board to retrench them in accordance with the provisions of law. However, the situation in 1989 cannot be pressed into service to negative the award of 1988 by which the dispute raised in 1982 was adjudicated.25. The last argument was that the appellant - Board has several other thermal Power plants in the State where certain type of the works done through contract labour only by contractors and the present Thermal Power plant is only one of them. Any decision in the present appeal will have, therefore, according to the Board serious repercussions in the other plants. It is contended that this might also result in total break down of the functioning of the Board which would not be in the interest of the workers as a class. To say the least, the argument is one in terrorem and has only to be stated to be rejected. The Board has to manage its affairs according to the provisions of law. The Courts cannot grant it exemption from the law on the ground that it will not be in a position to run its affairs.
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State Of Kerala Vs. Shri M. Appukutty | (3A) ex facie properly fall under S. 19(2) (f). In any event, as was said by the Privy Council in Emperor v. Sibnath Banerji, 72 Ind App 241: (AIR 1945 PC 156 ) the rule making power is conferred by sub-s. (1) of that section and the function of sub-s. (2) is merely illustrative and the rules which are referred to in sub-s. (2) are authorised by and made under sub-s. (1).The provisions of sub-s. (2) are not restrictive of sub-s. (1) as expressly stated in the words :without prejudice to the generality of the foregoing power with which sub-s. (2) begins and which words are similar to the words of sub-s. (2) of S. 2 of the Defence of India Act which the Privy Council was considering Now sub-s. (1) of S. 19 of the Act provides that the State Government may make rules to carry out the purposes of this Act and the long title of the act is an Act to provide for the levy of general tax on the sale of goods in the State of Madras. Therefore in our opinion R. 17 and the various clause thereof made under S. 19 are not beyond the rule making power of the State Government as contained in S. 19. 5. The first sub-rule of R. 17 provides that the assessing authority may subject to sub-r. (1A) at any time within three years next succeeding that to which the tax relates determine the turnover which has escaped assessment and assess the tax payable on such turnover. That is the power of the assessing authority. 6. Sub-rule (1A) deals with those cases where an order has already been passed by the appellate authority under S. 11 or by a revising authority under S. 12. In those cases the assessing authority has to make a report to the appropriate appellate or revising authority and that authority can, after giving the dealer concerned reasonable opportunity of being heard, pass such orders as it thinks fit. There is then a third case and that is where there has been no appeal or revision under Ss. 11 and 12 of the Act and therefore no order of the appellate authority or on revisional authority as contemplated in Section 12(2) of the Act and in those cases the appellate authority or the revising authority as the case may be has under sub-r. (3A), the same power as the assessing authority had under sub-rr. (1) and (3) of R. 17. In the present case after an appeal to the Commercial Tax Officer there was no further proceeding and therefore the Deputy Commissioner who is the revising authority acted under R. 17 (3A) and issued a notice which, according to that sub-rule he had power to issue and then determined the escaped turnover. We have already held that R. 17 is a valid rule under S. 19 of the Act. Sub-rule (3A) of R. 17 on its plain construction confers jurisdiction on the revising authority to issue the notice which it did issue and in our opinion, and we say so with respect, the judgment of the High Court is, to that extent, erroneous and it cannot be said that the notice was without jurisdiction. Therefore the impugned order was not incorrect. 7. The respondent then argued that R. 17 is ultra vires of the provisions of the Act and he put his argument like this; that the power to assess is given to the assessing authority under S. 9 (1) and (2) which has been quoted above. The assessing authority is defined in S. 2 (a-2) to mean any person authorised by the State to make any assessment under this Act. Therefore the assessment of escaped turnover can only be done, if at all by an assessing authority and not by a revising authority as he has not been authorised by the State Government. The answer to this is in S. 2B. That section authorises the State Government to appoint as many Deputy Commissioners of Commercial Taxes as it thinks fit for the purpose of performing the functions conferred on them under the Act and such officers shall perform their functions within such local limit as the State Government in this behalf may assign to them. Rule 17 confers on the Deputy Commissioners the power to determine and tax escaped turnover in cases where revisions have been taken to them (sub-r. (1A)) and also where revisions have not been taken to them (sub-r. (3A)).Provisions of S. 9 (1) and (2) therefore are no bar to the exercise of power of assessing escaped turnovers. Moreover S. 9 does not deal with escaped turnovers but is a provision for the determination of the turnover of a dealer in the first instance nor can it be said that R. 17 is in conflict with Section 12 (2). That section deals with another state of affairs and another jurisdiction i.e. where the Deputy Commissioner suo motu or on an application made calls for the record and determines the legality or propriety of an order made by one of the subordinate officers. It cannot be said in view of R. 17 that the power of revision by the Deputy Commissioners is limited to powers under S. 12(2). Rule 17 deals with a separate and independent jurisdiction in regard to the determining and taxing escaped turnovers. The provisions of S. 12 (2) are in no way in conflict with the powers conferred under Rr. 17 (1), 17(1A) and 17(3A). 8. The further argument that sub-r. (3A) is confined to cases where the revision filed under S. 12(2) is pending is not supported by the language of that rule. Our attention was drawn to the judgment of the Madras High Court in the State of Madras v. Louis Dreyfus and Co. Ltd. (1955) 6 STC 318 at p. 328: ((S) AIR 1956 Mad 659 (FB) at p. 664). But that case does not deal with R. 3A which came into force later. | 1[ds]It is true that the substantive provisions of the Act do not expressly deal with the power and procedure for assessment of escaped turnover, the legislature has left it to be dealt with by statutory rules to be framed under S. 19, and R. 17 has been framed thereunder. Rule 17 (1) and (3A) ex facie properly fall under S. 19(2) (f)Therefore in our opinion R. 17 and the various clause thereof made under S. 19 are not beyond the rule making power of the State Government as contained in S. 19In the present case after an appeal to the Commercial Tax Officer there was no further proceeding and therefore the Deputy Commissioner who is the revising authority acted under R. 17 (3A) and issued a notice which, according to that sub-rule he had power to issue and then determined the escaped turnover. We have already held that R. 17 is a valid rule under S. 19 of the Act. Sub-rule (3A) of R. 17 on its plain construction confers jurisdiction on the revising authority to issue the notice which it did issue and in our opinion, and we say so with respect, the judgment of the High Court is, to that extent, erroneous and it cannot be said that the notice was without jurisdiction. Therefore the impugned order was not incorrectIt cannot be said in view of R. 17 that the power of revision by the Deputy Commissioners is limited to powers under S. 12(2). Rule 17 deals with a separate and independent jurisdiction in regard to the determining and taxing escaped turnovers. The provisions of S. 12 (2) are in no way in conflict with the powers conferred under Rr. 17 (1), 17(1A) and 17(3A)8. The further argument that sub-r. (3A) is confined to cases where the revision filed under S. 12(2) is pending is not supported by the language of that ruleBut that case does not deal with R. 3A which came into force later. | 1 | 2,872 | 384 | ### 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:
(3A) ex facie properly fall under S. 19(2) (f). In any event, as was said by the Privy Council in Emperor v. Sibnath Banerji, 72 Ind App 241: (AIR 1945 PC 156 ) the rule making power is conferred by sub-s. (1) of that section and the function of sub-s. (2) is merely illustrative and the rules which are referred to in sub-s. (2) are authorised by and made under sub-s. (1).The provisions of sub-s. (2) are not restrictive of sub-s. (1) as expressly stated in the words :without prejudice to the generality of the foregoing power with which sub-s. (2) begins and which words are similar to the words of sub-s. (2) of S. 2 of the Defence of India Act which the Privy Council was considering Now sub-s. (1) of S. 19 of the Act provides that the State Government may make rules to carry out the purposes of this Act and the long title of the act is an Act to provide for the levy of general tax on the sale of goods in the State of Madras. Therefore in our opinion R. 17 and the various clause thereof made under S. 19 are not beyond the rule making power of the State Government as contained in S. 19. 5. The first sub-rule of R. 17 provides that the assessing authority may subject to sub-r. (1A) at any time within three years next succeeding that to which the tax relates determine the turnover which has escaped assessment and assess the tax payable on such turnover. That is the power of the assessing authority. 6. Sub-rule (1A) deals with those cases where an order has already been passed by the appellate authority under S. 11 or by a revising authority under S. 12. In those cases the assessing authority has to make a report to the appropriate appellate or revising authority and that authority can, after giving the dealer concerned reasonable opportunity of being heard, pass such orders as it thinks fit. There is then a third case and that is where there has been no appeal or revision under Ss. 11 and 12 of the Act and therefore no order of the appellate authority or on revisional authority as contemplated in Section 12(2) of the Act and in those cases the appellate authority or the revising authority as the case may be has under sub-r. (3A), the same power as the assessing authority had under sub-rr. (1) and (3) of R. 17. In the present case after an appeal to the Commercial Tax Officer there was no further proceeding and therefore the Deputy Commissioner who is the revising authority acted under R. 17 (3A) and issued a notice which, according to that sub-rule he had power to issue and then determined the escaped turnover. We have already held that R. 17 is a valid rule under S. 19 of the Act. Sub-rule (3A) of R. 17 on its plain construction confers jurisdiction on the revising authority to issue the notice which it did issue and in our opinion, and we say so with respect, the judgment of the High Court is, to that extent, erroneous and it cannot be said that the notice was without jurisdiction. Therefore the impugned order was not incorrect. 7. The respondent then argued that R. 17 is ultra vires of the provisions of the Act and he put his argument like this; that the power to assess is given to the assessing authority under S. 9 (1) and (2) which has been quoted above. The assessing authority is defined in S. 2 (a-2) to mean any person authorised by the State to make any assessment under this Act. Therefore the assessment of escaped turnover can only be done, if at all by an assessing authority and not by a revising authority as he has not been authorised by the State Government. The answer to this is in S. 2B. That section authorises the State Government to appoint as many Deputy Commissioners of Commercial Taxes as it thinks fit for the purpose of performing the functions conferred on them under the Act and such officers shall perform their functions within such local limit as the State Government in this behalf may assign to them. Rule 17 confers on the Deputy Commissioners the power to determine and tax escaped turnover in cases where revisions have been taken to them (sub-r. (1A)) and also where revisions have not been taken to them (sub-r. (3A)).Provisions of S. 9 (1) and (2) therefore are no bar to the exercise of power of assessing escaped turnovers. Moreover S. 9 does not deal with escaped turnovers but is a provision for the determination of the turnover of a dealer in the first instance nor can it be said that R. 17 is in conflict with Section 12 (2). That section deals with another state of affairs and another jurisdiction i.e. where the Deputy Commissioner suo motu or on an application made calls for the record and determines the legality or propriety of an order made by one of the subordinate officers. It cannot be said in view of R. 17 that the power of revision by the Deputy Commissioners is limited to powers under S. 12(2). Rule 17 deals with a separate and independent jurisdiction in regard to the determining and taxing escaped turnovers. The provisions of S. 12 (2) are in no way in conflict with the powers conferred under Rr. 17 (1), 17(1A) and 17(3A). 8. The further argument that sub-r. (3A) is confined to cases where the revision filed under S. 12(2) is pending is not supported by the language of that rule. Our attention was drawn to the judgment of the Madras High Court in the State of Madras v. Louis Dreyfus and Co. Ltd. (1955) 6 STC 318 at p. 328: ((S) AIR 1956 Mad 659 (FB) at p. 664). But that case does not deal with R. 3A which came into force later.
### Response:
1
### Explanation:
It is true that the substantive provisions of the Act do not expressly deal with the power and procedure for assessment of escaped turnover, the legislature has left it to be dealt with by statutory rules to be framed under S. 19, and R. 17 has been framed thereunder. Rule 17 (1) and (3A) ex facie properly fall under S. 19(2) (f)Therefore in our opinion R. 17 and the various clause thereof made under S. 19 are not beyond the rule making power of the State Government as contained in S. 19In the present case after an appeal to the Commercial Tax Officer there was no further proceeding and therefore the Deputy Commissioner who is the revising authority acted under R. 17 (3A) and issued a notice which, according to that sub-rule he had power to issue and then determined the escaped turnover. We have already held that R. 17 is a valid rule under S. 19 of the Act. Sub-rule (3A) of R. 17 on its plain construction confers jurisdiction on the revising authority to issue the notice which it did issue and in our opinion, and we say so with respect, the judgment of the High Court is, to that extent, erroneous and it cannot be said that the notice was without jurisdiction. Therefore the impugned order was not incorrectIt cannot be said in view of R. 17 that the power of revision by the Deputy Commissioners is limited to powers under S. 12(2). Rule 17 deals with a separate and independent jurisdiction in regard to the determining and taxing escaped turnovers. The provisions of S. 12 (2) are in no way in conflict with the powers conferred under Rr. 17 (1), 17(1A) and 17(3A)8. The further argument that sub-r. (3A) is confined to cases where the revision filed under S. 12(2) is pending is not supported by the language of that ruleBut that case does not deal with R. 3A which came into force later.
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Dondeti Copi Reddy and Others Vs. Shri Anjaneya Swamyvaru Agraharam and Another | 1. The appellants claim to be tenants of certain lands under two lease deeds executed in their favour by one Bachinapu Subbayya. The lands belonged to two temples which brought the present suits against the appellants for possession of the lands and for mesne profits on the allegation that the appellants were trespassers. 2. We are in agreement with the High Court that since the lessor was, at the highest, a de facto trustee, he had no power to lease the lands. In that view the appellants would be no better than trespassers and have been correctly held by the High Court no to be tenants. There is no credible evidence to show that the trustees of the temples had, at any time, by word or conduct, accepted the appellants as tenants. 3. Shri Rajendra Chowdhary, appearing on behalf of the appellants contends that the Managing Trustees of the temples had accepted the rent of the lands from the appellants, thereby creating a contractual tenancy between them and the temples. In support of this submission counsel relies on Section 2(c) of the Andhra Pradesh Tenancy Act 18 of 1956, under which, insofar as relevant, a cultivating tenant is defined to mean a person who cultivates a land belonging to another person under a tenancy agreement, express or implied. It is true that acceptance of rent may furnish evidence of a tenancy and it may even help infer an implied contract of tenancy. But we find it difficult to entertain counsels submission for the reason that is being made for the first time in this Court and it would be necessary to investigate into fresh facts for the purpose of determining the validity of that submission. The point which the counsel is attempting to make before us appears to have been taken in the written statement but the appellants never asked the trial Court to raise any issue on that point. In the absence of any issue it is impossible to say that there is any evidence, properly so called, showing that a tenancy agreement had come into existence between the parties by implication. In any event the landlords had no opportunity to meet such a case. If they had notice of such a case, they might conceivably have led evidence to show that the allegation made by the appellants had no foundation in fact. | 0[ds]But we find it difficult to entertain counsels submission for the reason that is being made for the first time in this Court and it would be necessary to investigate into fresh facts for the purpose of determining the validity of that submission. The point which the counsel is attempting to make before us appears to have been taken in the written statement but the appellants never asked the trial Court to raise any issue on that point. In the absence of any issue it is impossible to say that there is any evidence, properly so called, showing that a tenancy agreement had come into existence between the parties by implication. In any event the landlords had no opportunity to meet such a case. If they had notice of such a case, they might conceivably have led evidence to show that the allegation made by the appellants had no foundation in fact. | 0 | 428 | 164 | ### 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:
1. The appellants claim to be tenants of certain lands under two lease deeds executed in their favour by one Bachinapu Subbayya. The lands belonged to two temples which brought the present suits against the appellants for possession of the lands and for mesne profits on the allegation that the appellants were trespassers. 2. We are in agreement with the High Court that since the lessor was, at the highest, a de facto trustee, he had no power to lease the lands. In that view the appellants would be no better than trespassers and have been correctly held by the High Court no to be tenants. There is no credible evidence to show that the trustees of the temples had, at any time, by word or conduct, accepted the appellants as tenants. 3. Shri Rajendra Chowdhary, appearing on behalf of the appellants contends that the Managing Trustees of the temples had accepted the rent of the lands from the appellants, thereby creating a contractual tenancy between them and the temples. In support of this submission counsel relies on Section 2(c) of the Andhra Pradesh Tenancy Act 18 of 1956, under which, insofar as relevant, a cultivating tenant is defined to mean a person who cultivates a land belonging to another person under a tenancy agreement, express or implied. It is true that acceptance of rent may furnish evidence of a tenancy and it may even help infer an implied contract of tenancy. But we find it difficult to entertain counsels submission for the reason that is being made for the first time in this Court and it would be necessary to investigate into fresh facts for the purpose of determining the validity of that submission. The point which the counsel is attempting to make before us appears to have been taken in the written statement but the appellants never asked the trial Court to raise any issue on that point. In the absence of any issue it is impossible to say that there is any evidence, properly so called, showing that a tenancy agreement had come into existence between the parties by implication. In any event the landlords had no opportunity to meet such a case. If they had notice of such a case, they might conceivably have led evidence to show that the allegation made by the appellants had no foundation in fact.
### Response:
0
### Explanation:
But we find it difficult to entertain counsels submission for the reason that is being made for the first time in this Court and it would be necessary to investigate into fresh facts for the purpose of determining the validity of that submission. The point which the counsel is attempting to make before us appears to have been taken in the written statement but the appellants never asked the trial Court to raise any issue on that point. In the absence of any issue it is impossible to say that there is any evidence, properly so called, showing that a tenancy agreement had come into existence between the parties by implication. In any event the landlords had no opportunity to meet such a case. If they had notice of such a case, they might conceivably have led evidence to show that the allegation made by the appellants had no foundation in fact.
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Melmaruvathur Adhiparasakthi Institute of Medical Sciences & Research Vs. Union of India & Another | day of assessment.7. There was NIL Normal Delivery & only 1 Caesarean Section on day of assessment.8. Data of OPD attendance and Laboratory & X-ray investigations provided by the Institute appear to be inflated.9. There were only 05 patients in Casualty at the time of taking round.10. Workload of Antenatal USG was NIL on day of assessment."6. The petitioner had submitted a representation to rebut the aforesaid factual position, which was duly considered on the earlier occasion by the Hearing Committee but was found to be unsatisfactory. Hence, the Hearing Committee submitted a negative report to the Competent Authority which, in turn, passed the order dated 31st May, 2017, debarring the petitioner college from admitting students for two academic sessions and to encash the bank guarantee of Rs. 2 crore. The order dated 31st May, 2017, however, was found to be an unreasoned order. It reads thus:-"No.U.12012/127/2016-ME.I[FTS.3084749]Government of IndiaMinistry of Health and Family Welfare(Department of Health & Family Welfare)***Nirman Bhavan, New Delhi,Dated the 31st May, 2017ToThe Principal/Dean,Melmaruvathur Adhiprasakthi Institute of Medical Sciences,MelmaruvathurTamil Nadu - 603319Subject: Conditional Recognition granted in 2016-17 to Melmaruvathur Adhiprasakthi Institute of Medical Sciences, Melmaruvathur - Decision of the Central Government.Sir/Madam,In continuation to this Ministrys notification dated 15.09.2016 granting conditional recognition to Melmaruvathur Adhiprasakthi Institute of Medical Sciences, Melmaruvathur for award of MBBS degree for 150 intake on the basis of approval communicated by Supreme Court Mandated Oversight Committee on MCI (OC) and after affording an opportunity of hearing to the college with reference to MCI letter No.MCI-34(41) (RG-25)/2015-Med./180572 dated 29.03.2017 sent after compliance verification assessment, I am directed to convey the decision of the Central Government to debar your College from admitting students against the allowed intake of 150 seats for two academic years i.e. 2017-18 & 2018-19 and also to authorise MCI to encash the bank guarantee of Rs. 2.00 Cr.2. You are therefore, directed not to admit students for 150 seats in MBBS course for the academic years i.e. 2017-18 & 2018-19 at your College.3. Admissions made against the above decision of Central Government will be treated as irregular and action will be initiated under IMC Act & Regulations made thereunder.Yours faithfully,Sd/-(D V K Rao)Under Secretary to the Govt. of IndiaTele fax: 011-2306 1120"7. Considering the tenor of the aforementioned order, this Court vide order dated 11th August, 2017, directed the Competent Authority to give an opportunity to the petitioner college and pass a reasoned order. Pursuant thereto, the Competent Authority has passed an order on 31st August, 2017. Until paragraph 9, the said order merely refers to all the previous proceedings and documents, including the direction given by this Court on 11th August, 2017. Paragraphs 10 and 11 of the impugned decision are relevant. The same are reproduced below:-"10. Now, in compliance with the above direction of Honble Supreme Court dated 11.8.2017, the Ministry granted hearing to the college on 25.8.2017. A member of the Oversight Committee was present during the entire proceeding of the Hearing Committee. The Hearing Committee after considering the oral and written submission of the college submitted its report with the following conclusion:-"The Hearing Committee does not recommend renewal until physical re-verification of the corrections in deficiencies"A copy of the Hearing Committee report containing the above observation is enclosed.11. Accepting the recommendations of the Hearing Committee, the Ministry reiterates its earlier decision dated 31.5.2017 to debar the Melmaruvathur Adhiprasakthi Institute of Medical Sciences & Research, Melmaruvathur from admitting students (150 seats) for two academic years i.e. 2017-18 & 2018-19 and authorize the MCI to encash the Bank Guarantee of Rs. 2.00 Crore."8. On a plain reading of the aforesaid decision, it is crystal clear that the Competent Authority has merely relied on the recommendation made by the Hearing Committee. The recommendation of the Hearing Committee, as extracted in paragraph 10 of the same decision, however, is an inconclusive opinion. The Hearing Committee had opined that physical re-verification of the corrections in deficiencies was necessary before accepting or rejecting the explanation offered by the petitioner college. In this view of the matter, we fail to understand as to how the Competent Authority could have reiterated its earlier decision dated 31st May, 2017. No singular reason has been assigned by the Competent Authority of the Central Government as to why it was impelled to reiterate its earlier decision dated 31st May, 2017, despite the fresh representation filed by the petitioner college and, moreso, the inconclusive view expressed by the Hearing Committee.9. We must therefore, set aside the impugned decision dated 31st August, 2017, passed by the Competent Authority of the Central Government. However, that cannot be the basis to grant relief to the petitioner college or justify issue of directions to the respondents so as to permit the petitioner college to admit students for the academic session 2017-18. For, the deficiencies noted in the assessment reports reproduced earlier are quite significant concerning the infrastructure and academic matters and are beyond the permissible limit. That position needs to be verified as has been observed by the Hearing Committee in its report submitted after the hearing on 25th August, 2017. Therefore, in the present case it would not be safe to straightaway accede to the request of the petitioner college to direct the respondents to issue recognition/approval for the academic session 2016-17 and to allow the petitioner college to admit students for the academic session 2017-18.10. While dealing with matters involving similar fact situation, this Court in the case of Shri Venkateshwara University through its Registrar and Another v. Union of India and Another, Writ Petition (C) No. 445 of 2017, decided on 1st September, 2017, and Krishna Mohan Medical College and Hospital & Anr. v. Union of India and Another, Writ Petition (C) No. 448 of 2017, decided on 1st September, 2017 issued directions to MCI to send its Inspecting Team to the petitioner college and inform the petitioner college about the deficiencies, if any, with option to remove the same within the time limit as may be specified in that behalf. | 1[ds]8. On a plain reading of the aforesaid decision, it is crystal clear that the Competent Authority has merely relied on the recommendation made by the Hearing Committee. The recommendation of the Hearing Committee, as extracted in paragraph 10 of the same decision, however, is an inconclusive opinion. The Hearing Committee had opined that physicalof the corrections in deficiencies was necessary before accepting or rejecting the explanation offered by the petitioner college. In this view of the matter, we fail to understand as to how the Competent Authority could have reiterated its earlier decision dated 31st May, 2017. No singular reason has been assigned by the Competent Authority of the Central Government as to why it was impelled to reiterate its earlier decision dated 31st May, 2017, despite the fresh representation filed by the petitioner college and, moreso, the inconclusive view expressed by the Hearing Committee.9. We must therefore, set aside the impugned decision dated 31st August, 2017, passed by the Competent Authority of the Central Government. However, that cannot be the basis to grant relief to the petitioner college or justify issue of directions to the respondents so as to permit the petitioner college to admit students for the academic sessionFor, the deficiencies noted in the assessment reports reproduced earlier are quite significant concerning the infrastructure and academic matters and are beyond the permissible limit. That position needs to be verified as has been observed by the Hearing Committee in its report submitted after the hearing on 25th August, 2017. Therefore, in the present case it would not be safe to straightaway accede to the request of the petitioner college to direct the respondents to issue recognition/approval for the academic sessionWhile dealing with matters involving similar fact situation, this Court in the case of Shri Venkateshwara University through its Registrar and Another v. Union of India and Another, Writ Petition (C) No. 445 of 2017, decided on 1st September, 2017, and Krishna Mohan Medical College and Hospital & Anr. v. Union of India and Another, Writ Petition (C) No. 448 of 2017, decided on 1st September, 2017 issued directions to MCI to send its Inspecting Team to the petitioner college and inform the petitioner college about the deficiencies, if any, with option to remove the same within the time limit as may be specified in that behalf. | 1 | 2,061 | 437 | ### 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:
day of assessment.7. There was NIL Normal Delivery & only 1 Caesarean Section on day of assessment.8. Data of OPD attendance and Laboratory & X-ray investigations provided by the Institute appear to be inflated.9. There were only 05 patients in Casualty at the time of taking round.10. Workload of Antenatal USG was NIL on day of assessment."6. The petitioner had submitted a representation to rebut the aforesaid factual position, which was duly considered on the earlier occasion by the Hearing Committee but was found to be unsatisfactory. Hence, the Hearing Committee submitted a negative report to the Competent Authority which, in turn, passed the order dated 31st May, 2017, debarring the petitioner college from admitting students for two academic sessions and to encash the bank guarantee of Rs. 2 crore. The order dated 31st May, 2017, however, was found to be an unreasoned order. It reads thus:-"No.U.12012/127/2016-ME.I[FTS.3084749]Government of IndiaMinistry of Health and Family Welfare(Department of Health & Family Welfare)***Nirman Bhavan, New Delhi,Dated the 31st May, 2017ToThe Principal/Dean,Melmaruvathur Adhiprasakthi Institute of Medical Sciences,MelmaruvathurTamil Nadu - 603319Subject: Conditional Recognition granted in 2016-17 to Melmaruvathur Adhiprasakthi Institute of Medical Sciences, Melmaruvathur - Decision of the Central Government.Sir/Madam,In continuation to this Ministrys notification dated 15.09.2016 granting conditional recognition to Melmaruvathur Adhiprasakthi Institute of Medical Sciences, Melmaruvathur for award of MBBS degree for 150 intake on the basis of approval communicated by Supreme Court Mandated Oversight Committee on MCI (OC) and after affording an opportunity of hearing to the college with reference to MCI letter No.MCI-34(41) (RG-25)/2015-Med./180572 dated 29.03.2017 sent after compliance verification assessment, I am directed to convey the decision of the Central Government to debar your College from admitting students against the allowed intake of 150 seats for two academic years i.e. 2017-18 & 2018-19 and also to authorise MCI to encash the bank guarantee of Rs. 2.00 Cr.2. You are therefore, directed not to admit students for 150 seats in MBBS course for the academic years i.e. 2017-18 & 2018-19 at your College.3. Admissions made against the above decision of Central Government will be treated as irregular and action will be initiated under IMC Act & Regulations made thereunder.Yours faithfully,Sd/-(D V K Rao)Under Secretary to the Govt. of IndiaTele fax: 011-2306 1120"7. Considering the tenor of the aforementioned order, this Court vide order dated 11th August, 2017, directed the Competent Authority to give an opportunity to the petitioner college and pass a reasoned order. Pursuant thereto, the Competent Authority has passed an order on 31st August, 2017. Until paragraph 9, the said order merely refers to all the previous proceedings and documents, including the direction given by this Court on 11th August, 2017. Paragraphs 10 and 11 of the impugned decision are relevant. The same are reproduced below:-"10. Now, in compliance with the above direction of Honble Supreme Court dated 11.8.2017, the Ministry granted hearing to the college on 25.8.2017. A member of the Oversight Committee was present during the entire proceeding of the Hearing Committee. The Hearing Committee after considering the oral and written submission of the college submitted its report with the following conclusion:-"The Hearing Committee does not recommend renewal until physical re-verification of the corrections in deficiencies"A copy of the Hearing Committee report containing the above observation is enclosed.11. Accepting the recommendations of the Hearing Committee, the Ministry reiterates its earlier decision dated 31.5.2017 to debar the Melmaruvathur Adhiprasakthi Institute of Medical Sciences & Research, Melmaruvathur from admitting students (150 seats) for two academic years i.e. 2017-18 & 2018-19 and authorize the MCI to encash the Bank Guarantee of Rs. 2.00 Crore."8. On a plain reading of the aforesaid decision, it is crystal clear that the Competent Authority has merely relied on the recommendation made by the Hearing Committee. The recommendation of the Hearing Committee, as extracted in paragraph 10 of the same decision, however, is an inconclusive opinion. The Hearing Committee had opined that physical re-verification of the corrections in deficiencies was necessary before accepting or rejecting the explanation offered by the petitioner college. In this view of the matter, we fail to understand as to how the Competent Authority could have reiterated its earlier decision dated 31st May, 2017. No singular reason has been assigned by the Competent Authority of the Central Government as to why it was impelled to reiterate its earlier decision dated 31st May, 2017, despite the fresh representation filed by the petitioner college and, moreso, the inconclusive view expressed by the Hearing Committee.9. We must therefore, set aside the impugned decision dated 31st August, 2017, passed by the Competent Authority of the Central Government. However, that cannot be the basis to grant relief to the petitioner college or justify issue of directions to the respondents so as to permit the petitioner college to admit students for the academic session 2017-18. For, the deficiencies noted in the assessment reports reproduced earlier are quite significant concerning the infrastructure and academic matters and are beyond the permissible limit. That position needs to be verified as has been observed by the Hearing Committee in its report submitted after the hearing on 25th August, 2017. Therefore, in the present case it would not be safe to straightaway accede to the request of the petitioner college to direct the respondents to issue recognition/approval for the academic session 2016-17 and to allow the petitioner college to admit students for the academic session 2017-18.10. While dealing with matters involving similar fact situation, this Court in the case of Shri Venkateshwara University through its Registrar and Another v. Union of India and Another, Writ Petition (C) No. 445 of 2017, decided on 1st September, 2017, and Krishna Mohan Medical College and Hospital & Anr. v. Union of India and Another, Writ Petition (C) No. 448 of 2017, decided on 1st September, 2017 issued directions to MCI to send its Inspecting Team to the petitioner college and inform the petitioner college about the deficiencies, if any, with option to remove the same within the time limit as may be specified in that behalf.
### Response:
1
### Explanation:
8. On a plain reading of the aforesaid decision, it is crystal clear that the Competent Authority has merely relied on the recommendation made by the Hearing Committee. The recommendation of the Hearing Committee, as extracted in paragraph 10 of the same decision, however, is an inconclusive opinion. The Hearing Committee had opined that physicalof the corrections in deficiencies was necessary before accepting or rejecting the explanation offered by the petitioner college. In this view of the matter, we fail to understand as to how the Competent Authority could have reiterated its earlier decision dated 31st May, 2017. No singular reason has been assigned by the Competent Authority of the Central Government as to why it was impelled to reiterate its earlier decision dated 31st May, 2017, despite the fresh representation filed by the petitioner college and, moreso, the inconclusive view expressed by the Hearing Committee.9. We must therefore, set aside the impugned decision dated 31st August, 2017, passed by the Competent Authority of the Central Government. However, that cannot be the basis to grant relief to the petitioner college or justify issue of directions to the respondents so as to permit the petitioner college to admit students for the academic sessionFor, the deficiencies noted in the assessment reports reproduced earlier are quite significant concerning the infrastructure and academic matters and are beyond the permissible limit. That position needs to be verified as has been observed by the Hearing Committee in its report submitted after the hearing on 25th August, 2017. Therefore, in the present case it would not be safe to straightaway accede to the request of the petitioner college to direct the respondents to issue recognition/approval for the academic sessionWhile dealing with matters involving similar fact situation, this Court in the case of Shri Venkateshwara University through its Registrar and Another v. Union of India and Another, Writ Petition (C) No. 445 of 2017, decided on 1st September, 2017, and Krishna Mohan Medical College and Hospital & Anr. v. Union of India and Another, Writ Petition (C) No. 448 of 2017, decided on 1st September, 2017 issued directions to MCI to send its Inspecting Team to the petitioner college and inform the petitioner college about the deficiencies, if any, with option to remove the same within the time limit as may be specified in that behalf.
|
State Of Punjab & Ors Vs. M/S. Chandu Lal Kishori Lal & Ors. Etc | but not including cotton waste. Section 15 of the Central Sales Tax, 1956 has been amended from time to time. Originally Section 15 reads as follows:-"15. Restrictions and conditions in regard to tax on sales or purchases of declared goods: Notwithstanding anything contained in the sales tax law of any State, the tax payable by any dealer under that law in respect of any sales or purchases of declared goods made by him inside the state shall not exceed two per cent of the sale price thereof, and such tax shall not be levied at more than one stage in a State."This Section was amended by the Central Sales Tax (Amendment) Act (No. 16 of 1957) and again by Centra1 Act No. 31 of 1958 and the amended Section reads as follows:-"15. Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State: Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely:(a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed two per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage;(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State".4. On behalf of the appellants the argument was stressed that ginning process was a manufacturing process, and ginned cotton and cotton seeds were different commercial commodities and the respondent was not entitled to the exemption under Section 5 (2) (a) (vi) of the Act. It was said that unginned cotton was transformed into two distinct commercial commodities and there was no substantial identity between unginned cotton and ginned cotton or cotton seeds. It was argued that the ginning process required complicated machinery of manufacture. Reference was made in this connection to the mechanical aspect of the ginning process described in Encyclopedia Britannica, Vol. 6 :-"Hand separation of lint and seed was replaced rapidly by use of saw-type gins in the United States after the inventions of Eli Whitney in 1794 and of Hogden Holmes in 1796. Whitneys gin was improved upon by Holmes who substituted toothed saws for the hooked cylinder and flat metal ribs for the slotted bar used by Whitney. The saws, metal ribs and doffing brush in these early models persist in modern gins, with no basic change in ginning principle having been made, although some modern gins substitute an air blast for the doffing brushes.Additional gin machinery has been developed to keep pace with changes in harvesting practices which have resulted in a trend from careful hand picking to rougher hand and machine harvesting. These developments include seed-cotton driers, seed-cotton cleaners, burr extractors, green-boll trap and magnetic devices for removing metal. Line cleaners, desiged to remove trash from lint after it had been removed from the seed, were added to modern gins in the late 1940s and 1950s. Improvement in grade, which resulted in a higher price for the lint, was, in some cases, offset by the loss in weight. Gin installations include presses for baling the lint and equipment for moving the seed away from the gin stands. While some of the seed is saved for planting purposes, most of it moves directly, to an oil mill for processing"*1.*1. Encyclopedia Britannica, Vol. 6, p. 614.In our opinion, the appellants are right in their contention that the ginning process is a manufacturing process. But the question presented for determination in the present case is somewhat different viz., whether the respondent is entitled to the exemption under Section 5 (2) (a) (vi) of the Act in the context and setting of the language of Sections 14 and 15 of the Central Sales Tax Act, 1956. "Declared goods" in Section 14 of the Central Sales Tax Act, 1956 are individually specified under separate items. "Cotton ginned or unginned" is treated as a single commodity under one item of declared goods. It is evident that cotton ginned or unginned being treated as a single commodity and as a single species of declared goods cannot be subject under Sec. 15 (a) of the Central Sales Tax Act to a tax exceeding two per cent of the sale or purchase price thereof or at more than one stage. But so far as cotton-seeds are concerned, it is difficult to accept the contention that the sale of cotton-seeds must be treated as a sale of declared goods for the purpose of Section 15 (a) or (b) of the Central Sales Tax Act, 1956. It is true that cotton in its unginned state contains cotton-seeds.But it is by a manufacturing process that the cotton and the seed are separated and it is not correct to say that the seeds so separated is cotton itself or part of the cotton. They are two distinct commercial goods though before the manufacturing process the seeds might have been a part of the cotton itself. There is hence no warrant for the contention that cottonseed is not different from cotton. It follows that the respondent is not entitled to deduct the sale price of the cotton-seeds from the purchase turnover under Section 5 (2) (a) (vi) of the Act.In our opinion, the assessing authority was right in holding that the respondent was not entitled to deduction in respect of cotton-seeds sold by it to registered, dealers. It is conceded that the assessing authority had already granted deduction under Sec. 5 (2) (a) (vi) so far as ginned cotton is concerned. | 0[ds]In our opinion, the appellants are right in their contention that the ginning process is a manufacturing process. But the question presented for determination in the present case is somewhat different viz., whether the respondent is entitled to the exemption under Section 5 (2) (a) (vi) of the Act in the context and setting of the language of Sections 14 and 15 of the Central Sales Tax Act, 1956. "Declared goods" in Section 14 of the Central Sales Tax Act, 1956 are individually specified under separate items. "Cotton ginned or unginned" is treated as a single commodity under one item of declared goods. It is evident that cotton ginned or unginned being treated as a single commodity and as a single species of declared goods cannot be subject under Sec. 15 (a) of the Central Sales Tax Act to a tax exceeding two per cent of the sale or purchase price thereof or at more than one stage. But so far as cotton-seeds are concerned, it is difficult to accept the contention that the sale of cotton-seeds must be treated as a sale of declared goods for the purpose of Section 15 (a) or (b) of the Central Sales Tax Act, 1956. It is true that cotton in its unginned state contains cotton-seeds.But it is by a manufacturing process that the cotton and the seed are separated and it is not correct to say that the seeds so separated is cotton itself or part of the cotton. They are two distinct commercial goods though before the manufacturing process the seeds might have been a part of the cotton itself. There is hence no warrant for the contention that cottonseed is not different from cotton. It follows that the respondent is not entitled to deduct the sale price of the cotton-seeds from the purchase turnover under Section 5 (2) (a) (vi) of the Act.In our opinion, the assessing authority was right in holding that the respondent was not entitled to deduction in respect of cotton-seeds sold by it to registered, dealers. It is conceded that the assessing authority had already granted deduction under Sec. 5 (2) (a) (vi) so far as ginned cotton is concerned. | 0 | 1,864 | 418 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
but not including cotton waste. Section 15 of the Central Sales Tax, 1956 has been amended from time to time. Originally Section 15 reads as follows:-"15. Restrictions and conditions in regard to tax on sales or purchases of declared goods: Notwithstanding anything contained in the sales tax law of any State, the tax payable by any dealer under that law in respect of any sales or purchases of declared goods made by him inside the state shall not exceed two per cent of the sale price thereof, and such tax shall not be levied at more than one stage in a State."This Section was amended by the Central Sales Tax (Amendment) Act (No. 16 of 1957) and again by Centra1 Act No. 31 of 1958 and the amended Section reads as follows:-"15. Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State: Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely:(a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed two per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage;(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State".4. On behalf of the appellants the argument was stressed that ginning process was a manufacturing process, and ginned cotton and cotton seeds were different commercial commodities and the respondent was not entitled to the exemption under Section 5 (2) (a) (vi) of the Act. It was said that unginned cotton was transformed into two distinct commercial commodities and there was no substantial identity between unginned cotton and ginned cotton or cotton seeds. It was argued that the ginning process required complicated machinery of manufacture. Reference was made in this connection to the mechanical aspect of the ginning process described in Encyclopedia Britannica, Vol. 6 :-"Hand separation of lint and seed was replaced rapidly by use of saw-type gins in the United States after the inventions of Eli Whitney in 1794 and of Hogden Holmes in 1796. Whitneys gin was improved upon by Holmes who substituted toothed saws for the hooked cylinder and flat metal ribs for the slotted bar used by Whitney. The saws, metal ribs and doffing brush in these early models persist in modern gins, with no basic change in ginning principle having been made, although some modern gins substitute an air blast for the doffing brushes.Additional gin machinery has been developed to keep pace with changes in harvesting practices which have resulted in a trend from careful hand picking to rougher hand and machine harvesting. These developments include seed-cotton driers, seed-cotton cleaners, burr extractors, green-boll trap and magnetic devices for removing metal. Line cleaners, desiged to remove trash from lint after it had been removed from the seed, were added to modern gins in the late 1940s and 1950s. Improvement in grade, which resulted in a higher price for the lint, was, in some cases, offset by the loss in weight. Gin installations include presses for baling the lint and equipment for moving the seed away from the gin stands. While some of the seed is saved for planting purposes, most of it moves directly, to an oil mill for processing"*1.*1. Encyclopedia Britannica, Vol. 6, p. 614.In our opinion, the appellants are right in their contention that the ginning process is a manufacturing process. But the question presented for determination in the present case is somewhat different viz., whether the respondent is entitled to the exemption under Section 5 (2) (a) (vi) of the Act in the context and setting of the language of Sections 14 and 15 of the Central Sales Tax Act, 1956. "Declared goods" in Section 14 of the Central Sales Tax Act, 1956 are individually specified under separate items. "Cotton ginned or unginned" is treated as a single commodity under one item of declared goods. It is evident that cotton ginned or unginned being treated as a single commodity and as a single species of declared goods cannot be subject under Sec. 15 (a) of the Central Sales Tax Act to a tax exceeding two per cent of the sale or purchase price thereof or at more than one stage. But so far as cotton-seeds are concerned, it is difficult to accept the contention that the sale of cotton-seeds must be treated as a sale of declared goods for the purpose of Section 15 (a) or (b) of the Central Sales Tax Act, 1956. It is true that cotton in its unginned state contains cotton-seeds.But it is by a manufacturing process that the cotton and the seed are separated and it is not correct to say that the seeds so separated is cotton itself or part of the cotton. They are two distinct commercial goods though before the manufacturing process the seeds might have been a part of the cotton itself. There is hence no warrant for the contention that cottonseed is not different from cotton. It follows that the respondent is not entitled to deduct the sale price of the cotton-seeds from the purchase turnover under Section 5 (2) (a) (vi) of the Act.In our opinion, the assessing authority was right in holding that the respondent was not entitled to deduction in respect of cotton-seeds sold by it to registered, dealers. It is conceded that the assessing authority had already granted deduction under Sec. 5 (2) (a) (vi) so far as ginned cotton is concerned.
### Response:
0
### Explanation:
In our opinion, the appellants are right in their contention that the ginning process is a manufacturing process. But the question presented for determination in the present case is somewhat different viz., whether the respondent is entitled to the exemption under Section 5 (2) (a) (vi) of the Act in the context and setting of the language of Sections 14 and 15 of the Central Sales Tax Act, 1956. "Declared goods" in Section 14 of the Central Sales Tax Act, 1956 are individually specified under separate items. "Cotton ginned or unginned" is treated as a single commodity under one item of declared goods. It is evident that cotton ginned or unginned being treated as a single commodity and as a single species of declared goods cannot be subject under Sec. 15 (a) of the Central Sales Tax Act to a tax exceeding two per cent of the sale or purchase price thereof or at more than one stage. But so far as cotton-seeds are concerned, it is difficult to accept the contention that the sale of cotton-seeds must be treated as a sale of declared goods for the purpose of Section 15 (a) or (b) of the Central Sales Tax Act, 1956. It is true that cotton in its unginned state contains cotton-seeds.But it is by a manufacturing process that the cotton and the seed are separated and it is not correct to say that the seeds so separated is cotton itself or part of the cotton. They are two distinct commercial goods though before the manufacturing process the seeds might have been a part of the cotton itself. There is hence no warrant for the contention that cottonseed is not different from cotton. It follows that the respondent is not entitled to deduct the sale price of the cotton-seeds from the purchase turnover under Section 5 (2) (a) (vi) of the Act.In our opinion, the assessing authority was right in holding that the respondent was not entitled to deduction in respect of cotton-seeds sold by it to registered, dealers. It is conceded that the assessing authority had already granted deduction under Sec. 5 (2) (a) (vi) so far as ginned cotton is concerned.
|
R.C. Jall & Others Vs. Union of India & Another | of the Ordinance clearly demonstrates that the duty imposed is in essence an excise duty and there is a rational connection between the said tax and the person on whom it is imposed. Section 2 of Ordinance 39 of 1944 clearly shows that the tax is an excise duty on the manufacture or production of coal or coke. Section 5 (2) thereof confers in express terms a power on the Central Government to make rules, inter alia, to provide for the manner in which the duties imposed by the Ordinance shall be collected and the persons who shall be liable to pay the duty. Rule 3 of the Rules made by the Central Government provides for the recovery of excise duty on the coal produced; under the said rule it would be collected by the Railway Administration by means of a surcharge on freight and such duty of excise shall be recover from the consignor, if the freight charges are being prepaid, at the time of consignment or from the consignee, if the freight charges are collected at the destination of the consignment. The machinery provided for the collection of the tax is, in our view, a reasonable one. Having regard to the nature of the tax, that is, the tax being an indirect one to be borne ultimately by the consumer, it cannot be said that there is no rational connection between the tax and the consignee. When the consignor pays, it cannot be denied that it is the most convenient stage for the collection of the tax, for it is the first time the coal leaves the possession of the consignor. The fact that the consignee is made to pay, in the contingency contemplated by R. 3(b) of the Rules cannot affect the essence of the tax, for the consignor, if he had paid the freight, would have passed it on to the consignee and instead the consignee himself pays it. The Central Government was legally competent to evolve a suitable machinery for collection without disturbing the essence of the tax, or ignoring the rational connection between the tax and the person on whom it is imposed. We hold that the machinery evolved under the Rules for collection of the duty satisfies the said conditions and therefore the eligibility of the tax at the destination point in the hands of the consignee cannot legitimately be questioned.9. Another facet of the contention of Mr. Sastri is that the purpose of the Ordinance had worked itself out and, therefore, the Central Government could no longer levy or collect the tax. The purpose of the Ordinance was to constitute a fund for the financing of activities for the improvement of production, marketing and distribution of coal. Section 3 of the repealing Ordinance provided that the unexpended balance, if any, at the credit of the Coal Production Fund constituted under the aforesaid Ordinance shall be applied to such purposes connected with the coal industry as the Central Government may direct. The validity of this Ordinance has not been questioned. It, therefore, follows that the purpose of the Ordinance has not been exhausted, for under S. 3 of the repealing Ordinance, the Central Government is authorized to apply the Coal Production Fund to such purposes connected with the coal industry. There is, therefore, no force in this argument.10. The last contention is raised by the appellant in Civil Appeal No. 184 of 1959. The High Court held him also liable for the payment of the cess on the ground that he was the person who entered into contract with the Railway Administration for the carriage of the goods and that the collection of freight was in respect of his goods and that he was the main contracting party. The decree was given against him on the basis that he was under a contractual obligation to pay the amount. Mr. Sen appearing for this appellant, contends that the consignments were on F. O. R. basis and that under the statutory rules only the consignee is liable and that the High Court was wrong in giving a decree against him. As we have already pointed out earlier, under R. 3 of the Coal Production Fund Rules, 1944, the Railway Administration is empowered only to collect the cess by means of a surcharge on freight from, (a) the consignor if the freight charges are being prepaid at the time of consignment, and (b) the consignee, if the freight charges are collected at the destination of the consignment. In the present case, R. 3(a) has no application, for the freight charges were not pre-paid at the time of consignment, and therefore the only rule applicable whereunder the Railway Administration can seek to recover the cess is R. 3(b) i.e., the consignee has to pay it. The rule does not empower the Railway Administration to recover the tax, in the circumstances of the case, from the consignor. Learned Solicitor General seeks to sustain the decree of the High Court on the basis of R. 6 which reads :"Refunds and Recoveries.- (1) Where the amount of excise duty due under these rules has not been collected either wholly or in part or where the amount collected is in excess of the amount due, the Railway Administration shall deal with the undercharges or over-charges, as the case may be, on the same principles as apply to undercharges and overcharges in regard to railway freight charges."It is suggested that, under this rule in the case of an undercharge, the Railway Administration can collect the deficit either from the consignor or the consignee. The rule does not say that if the consignee does not pay the consignor is liable to pay. The rule does not purport to enlarge the statutory liability of the consignor or the consignee, as the case may be, and, therefore, it must be understood to provide only for the recovery of undercharges from persons statutorily liable to pay in accordance with the principles governing the railway freight charges. | 0[ds]These two contentions do not find place in the statement of case as they should. Under Order XVIII R. 2 of the Supreme Court Rules, each party shall lodge is case within the time prescribed therein, and, under R. 3 thereof, the said case shall consist of two parts, and Part II, which is relevant now, says that it shall set out the propositions of law to be urged in support of the contentions of the party lodging the case. The object of the statement of the case is not only to enlighten the Court on the questions that would be raised before it, but also to enable the opposite party to know beforehand the arguments he would have to meet and to prepare his case. That the statement of case should be complete and full is also emphasized by the fact that, under the Schedule of Fees, a decent fee is prescribed to the junior and senior advocates for preparing the same. But we regret to observe that sufficient care is not being taken in the preparation of the statement of case as contemplated by the said rules. If the rules should serve the purpose they were intended for, it is necessary that counsel should, at the time of preparing the case, read their brief thoroughly, decide for themselves the questions that will be raised and express them clearly therein. Any dereliction of this obvious duty cannot easily be overlooked. This Court, therefore, ordinarily will not allow counsel at the time of hearing an appeal to raise questions not disclose in the statement of case. There are no exceptional circumstances in this case for us to depart from that salutary practice and we, therefore, cannot allow the appellant to raise these two questions beforeAugust 26, 1944, the Governor-General of India, in exercise of the powers vested in him under S. 72 of the Ninth Schedule tothe Government of India Act, 1935, read with India and Burma (Emergency Provisions) Act, 1940, promulgated the Coal Production Fund Ordinance 1944 (39 of 1944) to constitute a fund for the financing of activities for the improvement of production, marketing and distribution of coal and coke. This Court in Hansraj Moolji v. State of Bombay, 1957 SCR 634 : ((S) AIR 1957 SC 497 ) held that the deletion of the words "for the space of not more than six months from its promulgation from S. 72 of the 9th Schedule ofthe Government of India Act, 1935, by S. 1(3) of the India and Burma (Emergency Provisions) Act, 1940, had the effect of equating. Ordinances which were promulgated between June 27, 1940, and April 1, 1946, with Acts passed by the Indian Legislature without any limitation of time as regards their duration, and therefore continuing in force until they were repealed. It follows from this decision that the Ordinance promulgated on August, 26, 1944, was a permanent one and would continue to be in force till it was repealed. The second Ordinance, that is the repealing ordinance, was promulgated on April 26, 1947, and the repeal took effect from May 1, 1947. But in express turns it declared that the provisions of S. 6 ofthe General Clauses Act, 1897 (X of 1897) shall apply in respect of the repeal. Without the said express provision, S. 6, read with S. 30, of the General Clauses Act, might have achieved the said result, but ex abundant cautela and to place the matter beyond any controversy, S. 6 of the General Clauses Act was expressly made applicable to the repeal. Under S. 6 of the General Clauses Act, so far it is material to the present case, the repeal did not affect the right of the railway to recover the freight or the liability of the defendants to pay the same, and the remedy in respect of the said right and liability. The result was that Ordinance 39 of 1944 and the rules made thereunder must be held to continue to be in force in respect of the said right and liability, accrued or incurred before the said Ordinance was repealed and the remedies available thereunder. But the life of the repealing Ordinance had expired on November 1, 1947. What was the effect of the expiry of the repealing Ordinance on the said liability continued after repeal in respect of past transactions? The repealing Ordinance, being a temporary one, expired after it fulfilled its purpose. As it had continued the life of the original Ordinance, which was a permanent one, in respect of past transactions, the expiry of its life could not have any effect on that law to the extent saved. The decisions relating to the repeal of a temporary Ordinance with a saving clause have no bearing in the present context, for in that case the repealed Ordinance, in so far as it was kept alive, could not have a larger lease of life than the repealed and the repealing ordinances possessed. If so, it follows that the repealed Ordinance, to the extent saved, continued to have force under Art. 372 of the Constitution until. it was altered, repealed or amended by competent Legislature. It cannot, therefore, be said that the coal cess was levied or collected without the authority ofgreat respect, we accept the principles laid down by the said three decisions in the matter of levy of an excise duty and the machinery for collection thereof. Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. Therefore, subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost. The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience. Whether in a particular case the tax ceases to be in essence an excise duty, and the rational connection between the duty and the person on whom it is imposed ceased to exist, is to be decided on fair construction of the provisions of a particular Act.In this case, a perusal of the provisions of the Ordinance clearly demonstrates that the duty imposed is in essence an excise duty and there is a rational connection between the said tax and the person on whom it is imposed. Section 2 of Ordinance 39 of 1944 clearly shows that the tax is an excise duty on the manufacture or production of coal or coke. Section 5 (2) thereof confers in express terms a power on the Central Government to make rules, inter alia, to provide for the manner in which the duties imposed by the Ordinance shall be collected and the persons who shall be liable to pay the duty. Rule 3 of the Rules made by the Central Government provides for the recovery of excise duty on the coal produced; under the said rule it would be collected by the Railway Administration by means of a surcharge on freight and such duty of excise shall be recover from the consignor, if the freight charges are being prepaid, at the time of consignment or from the consignee, if the freight charges are collected at the destination of the consignment. The machinery provided for the collection of the tax is, in our view, a reasonable one. Having regard to the nature of the tax, that is, the tax being an indirect one to be borne ultimately by the consumer, it cannot be said that there is no rational connection between the tax and the consignee. When the consignor pays, it cannot be denied that it is the most convenient stage for the collection of the tax, for it is the first time the coal leaves the possession of the consignor. The fact that the consignee is made to pay, in the contingency contemplated by R. 3(b) of the Rules cannot affect the essence of the tax, for the consignor, if he had paid the freight, would have passed it on to the consignee and instead the consignee himself pays it. The Central Government was legally competent to evolve a suitable machinery for collection without disturbing the essence of the tax, or ignoring the rational connection between the tax and the person on whom it is imposed. We hold that the machinery evolved under the Rules for collection of the duty satisfies the said conditions and therefore the eligibility of the tax at the destination point in the hands of the consignee cannot legitimately betherefore, follows that the purpose of the Ordinance has not been exhausted, for under S. 3 of the repealing Ordinance, the Central Government is authorized to apply the Coal Production Fund to such purposes connected with the coal industry. There is, therefore, no force in thiswe have already pointed out earlier, under R. 3 of the Coal Production Fund Rules, 1944, the Railway Administration is empowered only to collect the cess by means of a surcharge on freight from, (a) the consignor if the freight charges are being prepaid at the time of consignment, and (b) the consignee, if the freight charges are collected at the destination of the consignment. In the present case, R. 3(a) has no application, for the freight charges were not pre-paid at the time of consignment, and therefore the only rule applicable whereunder the Railway Administration can seek to recover the cess is R. 3(b) i.e., the consignee has to pay it. The rule does not empower the Railway Administration to recover the tax, in the circumstances of the case, from therule does not say that if the consignee does not pay the consignor is liable to pay. The rule does not purport to enlarge the statutory liability of the consignor or the consignee, as the case may be, and, therefore, it must be understood to provide only for the recovery of undercharges from persons statutorily liable to pay in accordance with the principles governing the railway freight charges. | 0 | 5,467 | 1,915 | ### Instruction:
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of the Ordinance clearly demonstrates that the duty imposed is in essence an excise duty and there is a rational connection between the said tax and the person on whom it is imposed. Section 2 of Ordinance 39 of 1944 clearly shows that the tax is an excise duty on the manufacture or production of coal or coke. Section 5 (2) thereof confers in express terms a power on the Central Government to make rules, inter alia, to provide for the manner in which the duties imposed by the Ordinance shall be collected and the persons who shall be liable to pay the duty. Rule 3 of the Rules made by the Central Government provides for the recovery of excise duty on the coal produced; under the said rule it would be collected by the Railway Administration by means of a surcharge on freight and such duty of excise shall be recover from the consignor, if the freight charges are being prepaid, at the time of consignment or from the consignee, if the freight charges are collected at the destination of the consignment. The machinery provided for the collection of the tax is, in our view, a reasonable one. Having regard to the nature of the tax, that is, the tax being an indirect one to be borne ultimately by the consumer, it cannot be said that there is no rational connection between the tax and the consignee. When the consignor pays, it cannot be denied that it is the most convenient stage for the collection of the tax, for it is the first time the coal leaves the possession of the consignor. The fact that the consignee is made to pay, in the contingency contemplated by R. 3(b) of the Rules cannot affect the essence of the tax, for the consignor, if he had paid the freight, would have passed it on to the consignee and instead the consignee himself pays it. The Central Government was legally competent to evolve a suitable machinery for collection without disturbing the essence of the tax, or ignoring the rational connection between the tax and the person on whom it is imposed. We hold that the machinery evolved under the Rules for collection of the duty satisfies the said conditions and therefore the eligibility of the tax at the destination point in the hands of the consignee cannot legitimately be questioned.9. Another facet of the contention of Mr. Sastri is that the purpose of the Ordinance had worked itself out and, therefore, the Central Government could no longer levy or collect the tax. The purpose of the Ordinance was to constitute a fund for the financing of activities for the improvement of production, marketing and distribution of coal. Section 3 of the repealing Ordinance provided that the unexpended balance, if any, at the credit of the Coal Production Fund constituted under the aforesaid Ordinance shall be applied to such purposes connected with the coal industry as the Central Government may direct. The validity of this Ordinance has not been questioned. It, therefore, follows that the purpose of the Ordinance has not been exhausted, for under S. 3 of the repealing Ordinance, the Central Government is authorized to apply the Coal Production Fund to such purposes connected with the coal industry. There is, therefore, no force in this argument.10. The last contention is raised by the appellant in Civil Appeal No. 184 of 1959. The High Court held him also liable for the payment of the cess on the ground that he was the person who entered into contract with the Railway Administration for the carriage of the goods and that the collection of freight was in respect of his goods and that he was the main contracting party. The decree was given against him on the basis that he was under a contractual obligation to pay the amount. Mr. Sen appearing for this appellant, contends that the consignments were on F. O. R. basis and that under the statutory rules only the consignee is liable and that the High Court was wrong in giving a decree against him. As we have already pointed out earlier, under R. 3 of the Coal Production Fund Rules, 1944, the Railway Administration is empowered only to collect the cess by means of a surcharge on freight from, (a) the consignor if the freight charges are being prepaid at the time of consignment, and (b) the consignee, if the freight charges are collected at the destination of the consignment. In the present case, R. 3(a) has no application, for the freight charges were not pre-paid at the time of consignment, and therefore the only rule applicable whereunder the Railway Administration can seek to recover the cess is R. 3(b) i.e., the consignee has to pay it. The rule does not empower the Railway Administration to recover the tax, in the circumstances of the case, from the consignor. Learned Solicitor General seeks to sustain the decree of the High Court on the basis of R. 6 which reads :"Refunds and Recoveries.- (1) Where the amount of excise duty due under these rules has not been collected either wholly or in part or where the amount collected is in excess of the amount due, the Railway Administration shall deal with the undercharges or over-charges, as the case may be, on the same principles as apply to undercharges and overcharges in regard to railway freight charges."It is suggested that, under this rule in the case of an undercharge, the Railway Administration can collect the deficit either from the consignor or the consignee. The rule does not say that if the consignee does not pay the consignor is liable to pay. The rule does not purport to enlarge the statutory liability of the consignor or the consignee, as the case may be, and, therefore, it must be understood to provide only for the recovery of undercharges from persons statutorily liable to pay in accordance with the principles governing the railway freight charges.
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of the repealing Ordinance on the said liability continued after repeal in respect of past transactions? The repealing Ordinance, being a temporary one, expired after it fulfilled its purpose. As it had continued the life of the original Ordinance, which was a permanent one, in respect of past transactions, the expiry of its life could not have any effect on that law to the extent saved. The decisions relating to the repeal of a temporary Ordinance with a saving clause have no bearing in the present context, for in that case the repealed Ordinance, in so far as it was kept alive, could not have a larger lease of life than the repealed and the repealing ordinances possessed. If so, it follows that the repealed Ordinance, to the extent saved, continued to have force under Art. 372 of the Constitution until. it was altered, repealed or amended by competent Legislature. It cannot, therefore, be said that the coal cess was levied or collected without the authority ofgreat respect, we accept the principles laid down by the said three decisions in the matter of levy of an excise duty and the machinery for collection thereof. Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. Therefore, subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost. The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience. Whether in a particular case the tax ceases to be in essence an excise duty, and the rational connection between the duty and the person on whom it is imposed ceased to exist, is to be decided on fair construction of the provisions of a particular Act.In this case, a perusal of the provisions of the Ordinance clearly demonstrates that the duty imposed is in essence an excise duty and there is a rational connection between the said tax and the person on whom it is imposed. Section 2 of Ordinance 39 of 1944 clearly shows that the tax is an excise duty on the manufacture or production of coal or coke. Section 5 (2) thereof confers in express terms a power on the Central Government to make rules, inter alia, to provide for the manner in which the duties imposed by the Ordinance shall be collected and the persons who shall be liable to pay the duty. Rule 3 of the Rules made by the Central Government provides for the recovery of excise duty on the coal produced; under the said rule it would be collected by the Railway Administration by means of a surcharge on freight and such duty of excise shall be recover from the consignor, if the freight charges are being prepaid, at the time of consignment or from the consignee, if the freight charges are collected at the destination of the consignment. The machinery provided for the collection of the tax is, in our view, a reasonable one. Having regard to the nature of the tax, that is, the tax being an indirect one to be borne ultimately by the consumer, it cannot be said that there is no rational connection between the tax and the consignee. When the consignor pays, it cannot be denied that it is the most convenient stage for the collection of the tax, for it is the first time the coal leaves the possession of the consignor. The fact that the consignee is made to pay, in the contingency contemplated by R. 3(b) of the Rules cannot affect the essence of the tax, for the consignor, if he had paid the freight, would have passed it on to the consignee and instead the consignee himself pays it. The Central Government was legally competent to evolve a suitable machinery for collection without disturbing the essence of the tax, or ignoring the rational connection between the tax and the person on whom it is imposed. We hold that the machinery evolved under the Rules for collection of the duty satisfies the said conditions and therefore the eligibility of the tax at the destination point in the hands of the consignee cannot legitimately betherefore, follows that the purpose of the Ordinance has not been exhausted, for under S. 3 of the repealing Ordinance, the Central Government is authorized to apply the Coal Production Fund to such purposes connected with the coal industry. There is, therefore, no force in thiswe have already pointed out earlier, under R. 3 of the Coal Production Fund Rules, 1944, the Railway Administration is empowered only to collect the cess by means of a surcharge on freight from, (a) the consignor if the freight charges are being prepaid at the time of consignment, and (b) the consignee, if the freight charges are collected at the destination of the consignment. In the present case, R. 3(a) has no application, for the freight charges were not pre-paid at the time of consignment, and therefore the only rule applicable whereunder the Railway Administration can seek to recover the cess is R. 3(b) i.e., the consignee has to pay it. The rule does not empower the Railway Administration to recover the tax, in the circumstances of the case, from therule does not say that if the consignee does not pay the consignor is liable to pay. The rule does not purport to enlarge the statutory liability of the consignor or the consignee, as the case may be, and, therefore, it must be understood to provide only for the recovery of undercharges from persons statutorily liable to pay in accordance with the principles governing the railway freight charges.
|
Madley Pharmaceuticals Ltd Vs. The Commissioner of Central Excise & Customs, Daman & Another | Juris Secundum, Vol. LVII, pp. 1067-68.)” 34. It is settled law that this Court should follow an earlier decision that has withstood the changes in time, irrespective of the rationale of the view taken. It was held by a Constitution Bench in the case of Waman Rao v. Union of India, (1981) 2 SCC 362 : “40. It is also true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis. ...” 35. Now we may notice the decisions on which reliance placed by learned Senior Counsel Mr. Ganesh. In Delhi Cloth and General Millsv. Joint Secretary, 1978 (2) ELT (J121) (Del. HC), the question before the Court was whether calcium carbide, which does not comply with regard to purity and packaging with statutory rules answers the test of ‘Marketability’. The Court on facts has found that the calcium carbide manufactured by the company was for further utilization in the production of acetylene gas was not of purity that rendered it marketable nor was it packed in such a way as to make it marketable that is to say, in air tight containers. The Court has further noticed that the commodity in question would require further processing to make it marketable and therefore, the commodity in question is not marketable and hence, not excisable. 36. Reliance is placed on the decision of CESTAT in Amar Lalv. CCE, (2004) 172 ELT 466. That was a case where assessee manufactured a new drug for trial which were supplied for clinical trials. In view of the Drugs Control Act and the Rules framed thereunder, any drug could be marketed only after successful clinical trials and after approval and licence from Drugs Controller. Hence, the Tribunal held that the drug supplied free for clinical trials is not excisable Goods as it cannot be bought and sold at that stage. 37. In Pfizerv. Commissioner of Central Excise, 2002 (146) ELT 477, the question before the Tribunal was, whether excise duty is leviable on ‘Sugar syrup’ manufactured by the assessee for use in the manufacture by it for cough syrup. The Tribunal, while answering the issue, has stated that since the sale of Sugar Syrup containing artificial sweetener sodium saccharin would contravene the provisions of Prevention of Food Adulteration Rules, the Goods cannot be considered as marketable. 38. In Hindustan Petroleum Corporation Ltd.v. CCE, (2007) 210 ELT 407 (CESTAT), it was a case where assessee manufactured ‘diesel stem’ by refining the sour crude for captive consumption and sale in the market. The sale of ‘diesel stem’ containing high sulphur content was prohibited by Ministry of Petroleum and Natural Gas in the light of the notification issued by Ministry of Environment and Forest for preventing environmental pollution caused by emission due to burning of sulphur along with fuel. In the light of the notification issued by Ministry of Environment & Forest, the ‘diesel stem’ in its high content of sulphur is incapacitated from being sold in the market. In other words, this inherent incapability in the ingredients of the Goods, from being sold in the market makes it non-marketable and hence not excisable. 39. In Himalaya Drug Companyv. C.C.E., (2005) 187 ELT 427 , the question before the Tribunal was, whether the excise duty is leviable on ‘vegetable extracts’ manufactured by the assessee for use in the manufacture of Ayurvedic, Unani or Siddha Medicines. The Tribunal, while answering the issue, concluded that such vegetable extracts, unless subjected to preservative process, are not liable to be considered as Goods attracting excise duty and such Goods should be considered as only intermediary Goods. Further, in view of the fact that the licence issued by the Drug Controller prohibits assessee from selling such semi finished products. Therefore, the Tribunal concluded that such intermediary or semi-finished Goods manufactured by assessee cannot be compared with the products manufactured by others for sale, for the purpose of ‘marketability’. 40. In our considered view, the reliance placed by the learned Senior Counsel for the appellant on some of the decisions of the Tribunal would not assist him in support of his submission for the reason that the goods therein were not marketable and hence, excise duty was not leviable, not because of any statutory prohibition for the sale of the goods, but because they had not reached the stage of satisfying the test of marketability of the goods. 41. Now coming to the valuation of the physician samples for the purpose of levy of excise duty, in our view, this issue need not detain us long in view of the decision of this Court in the case of Commissioner of Central Excisev. M/s. Bal Pharma, Civil Appeal No. 1697 of 2006. This Court has upheld the conclusion of the Tribunal that the physician’s samples have to be valued on pro-rata basis. The Tribunal, while arriving at the aforesaid conclusion, had relied upon its earlier decision in the case of Commissioner of Central Excise, Calicutv. Trinity Pharmaceuticals Pvt. Ltd.,reported as 2005 (188) ELT 48 , which has been accepted by the department. Therefore, we hold that physician samples have to be valued on pro-rata basis for the relevant period. | 1[ds]28. We agree with Mr. Ganesh, learned Senior Counsel for the appellant, that the manufacture of patent and proprietary drugs is completed only after the labelling is completed, for the purpose of levy of excise duty. However, on a perusal of the labelling provisions in the Drug Rules, we find that they deal with the name of drug, contents of the drug, name and address of manufacturer, a distinctive batch number (details of manufacture of drug is recorded and available for inspection as a particular batch), preparation of drug, date of manufacture and date of expiry of drug, its storage conditions, etc., which are in aid of the object of the Act, viz. promoting the use of good quality drugs, and ensuring that drugs that do not live upto quality do not find their way into the market. Rule 96(1)(ix) of the Drug Rules on which Mr. Ganesh heavily relies in support of his submission, states that while complying with the labelling provisions under Clauses (i) to (viii) of Rule 96 (1), the manufacturer must further overprint on the labelSample - Not to bein case they are to be distributed free of cost as physicians samples. Further, the bare perusal of Rule 96 shows that its heading bears ‘Manner ofand Clause 1 of this Rule contemplates or govern the manner of labelling in a way that the particulars on the label of the container of a drug shall be either printed or written in indelible ink and shall appear in conspicuous manner. This gives ample clarification that the process of labelling is distinct or different from the overprinting on the label of asample, and hence we are unable to agree with him that the manufacture for the purpose of the Central Excise Tariff Act is not completed until ‘PhysiciansSample - Not to beis printed on the label.29. The primary reason of distributing free physician samples by the manufacturer of pharmaceutical drugs to us appears to be only for the purpose of advertising of the product and thereby enhancing the sale of the product in the open market. It has been shown by research that the market of a pharmaceutical company is enhanced substantially by the distribution of free physician samples. In other words, the distribution of such physician samples serves as a marketing tool in the hands of the pharmaceutical companies [See Sarah L. Cutrona et al., Characteristics of Recipients of Free Prescription Drug Samples : A Nationally Representative Analysis,(2008) 98 Am. J. Pub. Health 284].30. Before we conclude, in our view, the issue raised in these appeals is no more res integra. This issue came up for consideration before this Court in the case of Ranbaxy Laboratories Ltd.v. Commissioner of Central Excise, Pune, (2003) 9 SCC 199, wherein it wasIn these appeals, the question is whether free medical samples supplied to the doctors are liable to excise duty. In our view, this question is answered by a decision of this Court rendered today in Civil Appeal No. 3643-44 of 1999.Now coming to the valuation of the physician samples for the purpose of levy of excise duty, in our view, this issue need not detain us long in view of the decision of this Court in the case of Commissioner of Central Excisev. M/s. Bal Pharma, Civil Appeal No. 1697 of 2006. This Court has upheld the conclusion of the Tribunal that thesamples have to be valued on pro-rata basis. The Tribunal, while arriving at the aforesaid conclusion, had relied upon its earlier decision in the case of Commissioner of Central Excise, Calicutv. Trinity Pharmaceuticals Pvt. Ltd.,reported as 2005 (188) ELT 48 , which has been accepted by the department. Therefore, we hold that physician samples have to be valued on pro-rata basis for the relevant period. | 1 | 7,744 | 720 | ### Instruction:
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Juris Secundum, Vol. LVII, pp. 1067-68.)” 34. It is settled law that this Court should follow an earlier decision that has withstood the changes in time, irrespective of the rationale of the view taken. It was held by a Constitution Bench in the case of Waman Rao v. Union of India, (1981) 2 SCC 362 : “40. It is also true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis. ...” 35. Now we may notice the decisions on which reliance placed by learned Senior Counsel Mr. Ganesh. In Delhi Cloth and General Millsv. Joint Secretary, 1978 (2) ELT (J121) (Del. HC), the question before the Court was whether calcium carbide, which does not comply with regard to purity and packaging with statutory rules answers the test of ‘Marketability’. The Court on facts has found that the calcium carbide manufactured by the company was for further utilization in the production of acetylene gas was not of purity that rendered it marketable nor was it packed in such a way as to make it marketable that is to say, in air tight containers. The Court has further noticed that the commodity in question would require further processing to make it marketable and therefore, the commodity in question is not marketable and hence, not excisable. 36. Reliance is placed on the decision of CESTAT in Amar Lalv. CCE, (2004) 172 ELT 466. That was a case where assessee manufactured a new drug for trial which were supplied for clinical trials. In view of the Drugs Control Act and the Rules framed thereunder, any drug could be marketed only after successful clinical trials and after approval and licence from Drugs Controller. Hence, the Tribunal held that the drug supplied free for clinical trials is not excisable Goods as it cannot be bought and sold at that stage. 37. In Pfizerv. Commissioner of Central Excise, 2002 (146) ELT 477, the question before the Tribunal was, whether excise duty is leviable on ‘Sugar syrup’ manufactured by the assessee for use in the manufacture by it for cough syrup. The Tribunal, while answering the issue, has stated that since the sale of Sugar Syrup containing artificial sweetener sodium saccharin would contravene the provisions of Prevention of Food Adulteration Rules, the Goods cannot be considered as marketable. 38. In Hindustan Petroleum Corporation Ltd.v. CCE, (2007) 210 ELT 407 (CESTAT), it was a case where assessee manufactured ‘diesel stem’ by refining the sour crude for captive consumption and sale in the market. The sale of ‘diesel stem’ containing high sulphur content was prohibited by Ministry of Petroleum and Natural Gas in the light of the notification issued by Ministry of Environment and Forest for preventing environmental pollution caused by emission due to burning of sulphur along with fuel. In the light of the notification issued by Ministry of Environment & Forest, the ‘diesel stem’ in its high content of sulphur is incapacitated from being sold in the market. In other words, this inherent incapability in the ingredients of the Goods, from being sold in the market makes it non-marketable and hence not excisable. 39. In Himalaya Drug Companyv. C.C.E., (2005) 187 ELT 427 , the question before the Tribunal was, whether the excise duty is leviable on ‘vegetable extracts’ manufactured by the assessee for use in the manufacture of Ayurvedic, Unani or Siddha Medicines. The Tribunal, while answering the issue, concluded that such vegetable extracts, unless subjected to preservative process, are not liable to be considered as Goods attracting excise duty and such Goods should be considered as only intermediary Goods. Further, in view of the fact that the licence issued by the Drug Controller prohibits assessee from selling such semi finished products. Therefore, the Tribunal concluded that such intermediary or semi-finished Goods manufactured by assessee cannot be compared with the products manufactured by others for sale, for the purpose of ‘marketability’. 40. In our considered view, the reliance placed by the learned Senior Counsel for the appellant on some of the decisions of the Tribunal would not assist him in support of his submission for the reason that the goods therein were not marketable and hence, excise duty was not leviable, not because of any statutory prohibition for the sale of the goods, but because they had not reached the stage of satisfying the test of marketability of the goods. 41. Now coming to the valuation of the physician samples for the purpose of levy of excise duty, in our view, this issue need not detain us long in view of the decision of this Court in the case of Commissioner of Central Excisev. M/s. Bal Pharma, Civil Appeal No. 1697 of 2006. This Court has upheld the conclusion of the Tribunal that the physician’s samples have to be valued on pro-rata basis. The Tribunal, while arriving at the aforesaid conclusion, had relied upon its earlier decision in the case of Commissioner of Central Excise, Calicutv. Trinity Pharmaceuticals Pvt. Ltd.,reported as 2005 (188) ELT 48 , which has been accepted by the department. Therefore, we hold that physician samples have to be valued on pro-rata basis for the relevant period.
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28. We agree with Mr. Ganesh, learned Senior Counsel for the appellant, that the manufacture of patent and proprietary drugs is completed only after the labelling is completed, for the purpose of levy of excise duty. However, on a perusal of the labelling provisions in the Drug Rules, we find that they deal with the name of drug, contents of the drug, name and address of manufacturer, a distinctive batch number (details of manufacture of drug is recorded and available for inspection as a particular batch), preparation of drug, date of manufacture and date of expiry of drug, its storage conditions, etc., which are in aid of the object of the Act, viz. promoting the use of good quality drugs, and ensuring that drugs that do not live upto quality do not find their way into the market. Rule 96(1)(ix) of the Drug Rules on which Mr. Ganesh heavily relies in support of his submission, states that while complying with the labelling provisions under Clauses (i) to (viii) of Rule 96 (1), the manufacturer must further overprint on the labelSample - Not to bein case they are to be distributed free of cost as physicians samples. Further, the bare perusal of Rule 96 shows that its heading bears ‘Manner ofand Clause 1 of this Rule contemplates or govern the manner of labelling in a way that the particulars on the label of the container of a drug shall be either printed or written in indelible ink and shall appear in conspicuous manner. This gives ample clarification that the process of labelling is distinct or different from the overprinting on the label of asample, and hence we are unable to agree with him that the manufacture for the purpose of the Central Excise Tariff Act is not completed until ‘PhysiciansSample - Not to beis printed on the label.29. The primary reason of distributing free physician samples by the manufacturer of pharmaceutical drugs to us appears to be only for the purpose of advertising of the product and thereby enhancing the sale of the product in the open market. It has been shown by research that the market of a pharmaceutical company is enhanced substantially by the distribution of free physician samples. In other words, the distribution of such physician samples serves as a marketing tool in the hands of the pharmaceutical companies [See Sarah L. Cutrona et al., Characteristics of Recipients of Free Prescription Drug Samples : A Nationally Representative Analysis,(2008) 98 Am. J. Pub. Health 284].30. Before we conclude, in our view, the issue raised in these appeals is no more res integra. This issue came up for consideration before this Court in the case of Ranbaxy Laboratories Ltd.v. Commissioner of Central Excise, Pune, (2003) 9 SCC 199, wherein it wasIn these appeals, the question is whether free medical samples supplied to the doctors are liable to excise duty. In our view, this question is answered by a decision of this Court rendered today in Civil Appeal No. 3643-44 of 1999.Now coming to the valuation of the physician samples for the purpose of levy of excise duty, in our view, this issue need not detain us long in view of the decision of this Court in the case of Commissioner of Central Excisev. M/s. Bal Pharma, Civil Appeal No. 1697 of 2006. This Court has upheld the conclusion of the Tribunal that thesamples have to be valued on pro-rata basis. The Tribunal, while arriving at the aforesaid conclusion, had relied upon its earlier decision in the case of Commissioner of Central Excise, Calicutv. Trinity Pharmaceuticals Pvt. Ltd.,reported as 2005 (188) ELT 48 , which has been accepted by the department. Therefore, we hold that physician samples have to be valued on pro-rata basis for the relevant period.
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Joginder Singh and Others Vs. State of Punjab and Another | leave is directed against the order dated April 21, 1977 of the High Court of Punjab and Haryana determining the interest payable on the compensation awarded to the appellants for the acquisition of their land by the State Government. 2. A notification under Section 4 of the land Acquisition Act was made on August 31, 1961 in respect of land belonging to the appellants and in the proceedings which followed the land Acquisition officer determined a sum of Rs. 27, 99 2.84 as compensation payable therefore. Possession of the land was taken thereafter. On reference made at the instance of the appellants, the learned District Judge held by his judgment dated November 30, 1963 that the appellants were entitled to a further sum of Rs. 11, 307.10 as compensation. Dissatisfied with that determination, the appellants proceeded in appeal to the High Court, and on March 8, 1977 the High Court held that the appellants were entitled to a further amount of Rs. 17, 919.30 as compensation. The High Court also held that the appellants were entitled to interest at the rate of 4 per cent per annum on the enhanced amount of compensation awarded by it, the interest to run from the date possession of the land was taken. The appellants then applied to the High Court for a review of its order in so far as it had determined the rate of interest. The appellants pointed out that s. 28 and s. 34 of the Land Acquisition Act, 1894 had been amended by the Haryana Act No. 8 of 19 67 in consequence of which the rate of interest payable on the compensation was awarded for acquisition of land had been enhanced from 4 per cent to 6 per cent per annum from the date possession was taken to the date of payment. The claim was resisted by the State, which contended that the Haryana Act No. 8 of 1967 had been brought into force with effect from July 1, 1967 and proceedings for the determination of compensation initiated before the enforcement of that Act were liable to be governed by the original rate of interest at 4 per cent per annum, and no advantage could be taken of the higher rate enacted later. By its order dated April 21, 1977 the High Court ruled in favour of the appellants and held that the higher rate of interest should be available to the appellants even though the proceedings for determination of compensation were already pending before the amending Act was brought into force. A curious inconsistency, however, entered thereafter in the judgment of the High Court. On the amount determined as compensation by the Land Acquisition Officer and the learned District Judge the High Court held that the higher rate of interest at 6 per cent per annum was attracted, and interest at that rate rule d from the date possession was taken to the date of payment. But on the amount of Rs. 17, 919.30 representing the enhancement by it the High Court applied the rate of 4 per cent per annum from the date possession was taken and 6 per cent per annum from the date of its judgment awarding that amount. The High Court seems to have proceeded on the view that the right to this amount of Rs. 17, 919.30 as compensation arose to the appellants only from date of its judgment.We are of opinion that the High Court has erred. It is apparent from the impugned order of the High Court that it has found the appellants entitled to interest at the rate of 4 per cent per annum on the sum of Rs. 17, 919.30 from the date possession was taken. In so far that the High Court recognises the appellants claim to interest from that date the High Court is right, because the right to compensation arises when the land is acquired, and the judgment of the High Court merely represents a stage in the process of quantifying the compensation. The right to compensation and the quantification thereof are two distinct concepts. The right to compensation arises when the land vests in the State while its quantification may be concluded much later. Although the process of quantification may pass through several stages, from the Land Acquisition Officer to the District Judge and thereafter to the High Court, the process of quantification is merely one of computing the value of the land, on the principles enacted in the Land Acquisition Act. All along, however, the right to the compensation so quantified refers back to the date of acquisition. The additional amount of compensation awarded by the District Judge or by the High Court represents the difference between the true value of the land on the one hand and the actual amount awarded on the other which fell short of the true value. The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession. Since, however, the true value is usually determined only after it is computed through a multi-tiered process passing through different levels of a hierarchical judicial structure by the very nature of things it take sometime before the true value can be finally determined. The fact that it is determined later does not mean that the right to the amount comes into existence at a later date. And if, as the High Court has held, interest at 6 per cent per annum rules from the date procession was taken in the case of compensation determined by the learned District Judge, there is no reason why the same rate should not be applied from the date possession was taken in the case of the enhancement effected by the High Court.We hold that the appellants are entitled to interest at 6 per cent per annum on the amount of Rs. 17, 919.30 for the entire period from the date possession of the land was taken to the date of payment. | 1[ds]A curious inconsistency, however, entered thereafter in the judgment of the High Court. On the amount determined as compensation by the Land Acquisition Officer and the learned District Judge the High Court held that the higher rate of interest at 6 per cent per annum was attracted, and interest at that rate rule d from the date possession was taken to the date of payment. But on the amount of Rs. 17, 919.30 representing the enhancement by it the High Court applied the rate of 4 per cent per annum from the date possession was taken and 6 per cent per annum from the date of its judgment awarding that amount. The High Court seems to have proceeded on the view that the right to this amount of Rs. 17, 919.30 as compensation arose to the appellants only from date of its judgment.We are of opinion that the High Court has erred. It is apparent from the impugned order of the High Court that it has found the appellants entitled to interest at the rate of 4 per cent per annum on the sum of Rs. 17, 919.30 from the date possession was taken. In so far that the High Court recognises the appellants claim to interest from that date the High Court is right, because the right to compensation arises when the land is acquired, and the judgment of the High Court merely represents a stage in the process of quantifying the compensation. The right to compensation and the quantification thereof are two distinct concepts. The right to compensation arises when the land vests in the State while its quantification may be concluded much later. Although the process of quantification may pass through several stages, from the Land Acquisition Officer to the District Judge and thereafter to the High Court, the process of quantification is merely one of computing the value of the land, on the principles enacted in the Land Acquisition Act. All along, however, the right to the compensation so quantified refers back to the date of acquisition. The additional amount of compensation awarded by the District Judge or by the High Court represents the difference between the true value of the land on the one hand and the actual amount awarded on the other which fell short of the true value. The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession. Since, however, the true value is usually determined only after it is computed through a multi-tiered process passing through different levels of a hierarchical judicial structure by the very nature of things it take sometime before the true value can be finally determined. The fact that it is determined later does not mean that the right to the amount comes into existence at a later date. And if, as the High Court has held, interest at 6 per cent per annum rules from the date procession was taken in the case of compensation determined by the learned District Judge, there is no reason why the same rate should not be applied from the date possession was taken in the case of the enhancement effected by the High Court.We hold that the appellants are entitled to interest at 6 per cent per annum on the amount of Rs. 17, 919.30 for the entire period from the date possession of the land was taken to the date of payment. | 1 | 1,080 | 618 | ### 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:
leave is directed against the order dated April 21, 1977 of the High Court of Punjab and Haryana determining the interest payable on the compensation awarded to the appellants for the acquisition of their land by the State Government. 2. A notification under Section 4 of the land Acquisition Act was made on August 31, 1961 in respect of land belonging to the appellants and in the proceedings which followed the land Acquisition officer determined a sum of Rs. 27, 99 2.84 as compensation payable therefore. Possession of the land was taken thereafter. On reference made at the instance of the appellants, the learned District Judge held by his judgment dated November 30, 1963 that the appellants were entitled to a further sum of Rs. 11, 307.10 as compensation. Dissatisfied with that determination, the appellants proceeded in appeal to the High Court, and on March 8, 1977 the High Court held that the appellants were entitled to a further amount of Rs. 17, 919.30 as compensation. The High Court also held that the appellants were entitled to interest at the rate of 4 per cent per annum on the enhanced amount of compensation awarded by it, the interest to run from the date possession of the land was taken. The appellants then applied to the High Court for a review of its order in so far as it had determined the rate of interest. The appellants pointed out that s. 28 and s. 34 of the Land Acquisition Act, 1894 had been amended by the Haryana Act No. 8 of 19 67 in consequence of which the rate of interest payable on the compensation was awarded for acquisition of land had been enhanced from 4 per cent to 6 per cent per annum from the date possession was taken to the date of payment. The claim was resisted by the State, which contended that the Haryana Act No. 8 of 1967 had been brought into force with effect from July 1, 1967 and proceedings for the determination of compensation initiated before the enforcement of that Act were liable to be governed by the original rate of interest at 4 per cent per annum, and no advantage could be taken of the higher rate enacted later. By its order dated April 21, 1977 the High Court ruled in favour of the appellants and held that the higher rate of interest should be available to the appellants even though the proceedings for determination of compensation were already pending before the amending Act was brought into force. A curious inconsistency, however, entered thereafter in the judgment of the High Court. On the amount determined as compensation by the Land Acquisition Officer and the learned District Judge the High Court held that the higher rate of interest at 6 per cent per annum was attracted, and interest at that rate rule d from the date possession was taken to the date of payment. But on the amount of Rs. 17, 919.30 representing the enhancement by it the High Court applied the rate of 4 per cent per annum from the date possession was taken and 6 per cent per annum from the date of its judgment awarding that amount. The High Court seems to have proceeded on the view that the right to this amount of Rs. 17, 919.30 as compensation arose to the appellants only from date of its judgment.We are of opinion that the High Court has erred. It is apparent from the impugned order of the High Court that it has found the appellants entitled to interest at the rate of 4 per cent per annum on the sum of Rs. 17, 919.30 from the date possession was taken. In so far that the High Court recognises the appellants claim to interest from that date the High Court is right, because the right to compensation arises when the land is acquired, and the judgment of the High Court merely represents a stage in the process of quantifying the compensation. The right to compensation and the quantification thereof are two distinct concepts. The right to compensation arises when the land vests in the State while its quantification may be concluded much later. Although the process of quantification may pass through several stages, from the Land Acquisition Officer to the District Judge and thereafter to the High Court, the process of quantification is merely one of computing the value of the land, on the principles enacted in the Land Acquisition Act. All along, however, the right to the compensation so quantified refers back to the date of acquisition. The additional amount of compensation awarded by the District Judge or by the High Court represents the difference between the true value of the land on the one hand and the actual amount awarded on the other which fell short of the true value. The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession. Since, however, the true value is usually determined only after it is computed through a multi-tiered process passing through different levels of a hierarchical judicial structure by the very nature of things it take sometime before the true value can be finally determined. The fact that it is determined later does not mean that the right to the amount comes into existence at a later date. And if, as the High Court has held, interest at 6 per cent per annum rules from the date procession was taken in the case of compensation determined by the learned District Judge, there is no reason why the same rate should not be applied from the date possession was taken in the case of the enhancement effected by the High Court.We hold that the appellants are entitled to interest at 6 per cent per annum on the amount of Rs. 17, 919.30 for the entire period from the date possession of the land was taken to the date of payment.
### Response:
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### Explanation:
A curious inconsistency, however, entered thereafter in the judgment of the High Court. On the amount determined as compensation by the Land Acquisition Officer and the learned District Judge the High Court held that the higher rate of interest at 6 per cent per annum was attracted, and interest at that rate rule d from the date possession was taken to the date of payment. But on the amount of Rs. 17, 919.30 representing the enhancement by it the High Court applied the rate of 4 per cent per annum from the date possession was taken and 6 per cent per annum from the date of its judgment awarding that amount. The High Court seems to have proceeded on the view that the right to this amount of Rs. 17, 919.30 as compensation arose to the appellants only from date of its judgment.We are of opinion that the High Court has erred. It is apparent from the impugned order of the High Court that it has found the appellants entitled to interest at the rate of 4 per cent per annum on the sum of Rs. 17, 919.30 from the date possession was taken. In so far that the High Court recognises the appellants claim to interest from that date the High Court is right, because the right to compensation arises when the land is acquired, and the judgment of the High Court merely represents a stage in the process of quantifying the compensation. The right to compensation and the quantification thereof are two distinct concepts. The right to compensation arises when the land vests in the State while its quantification may be concluded much later. Although the process of quantification may pass through several stages, from the Land Acquisition Officer to the District Judge and thereafter to the High Court, the process of quantification is merely one of computing the value of the land, on the principles enacted in the Land Acquisition Act. All along, however, the right to the compensation so quantified refers back to the date of acquisition. The additional amount of compensation awarded by the District Judge or by the High Court represents the difference between the true value of the land on the one hand and the actual amount awarded on the other which fell short of the true value. The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession. Since, however, the true value is usually determined only after it is computed through a multi-tiered process passing through different levels of a hierarchical judicial structure by the very nature of things it take sometime before the true value can be finally determined. The fact that it is determined later does not mean that the right to the amount comes into existence at a later date. And if, as the High Court has held, interest at 6 per cent per annum rules from the date procession was taken in the case of compensation determined by the learned District Judge, there is no reason why the same rate should not be applied from the date possession was taken in the case of the enhancement effected by the High Court.We hold that the appellants are entitled to interest at 6 per cent per annum on the amount of Rs. 17, 919.30 for the entire period from the date possession of the land was taken to the date of payment.
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State of Kerala Vs. Messrs Moolji Vissanji | Hegde, J.1. These appeals by certificate raise a common question of law. We shall refer to that question presently. The respondent-assessee was assessed to sales tax for the year 1957-58, 1958-59 and 1959-60 in February, 1961. At time of the said assessment, he was granted certain exemptions by the Sales Tax Officer. On an examination of the records, the Deputy Commissioner of Sales Tax came to the conclusion that the exemptions granted by Sales Tax Officer were impermissible under law. Therefore, he started suo moto revision proceedings sometimes in 1963. After giving an opportunity to the assessee to represent his case he revised the order of assessment by his order dated May 20, 1965. That order was challenged by the assessee before the Sales Tax Appellate Tribunal. The Sales Tax Appellate Tribunal opined that the Deputy Commissioner of Sales Tax revised the order of assessment in exercise of his power under Rule 33 of the Rules framed under the Kerala Sales Tax Act of 1925. Following the decision of the Kerala High Court reported in 1965 K.L.T. P. 1167, he set aside the order of the Deputy Commissioner on the ground that the proceedings were initiated beyond time.2. Aggrieved by the order of the Tribunal, the State of Kerala took up the matter in revision to the High Court of Kerala. The High Court dismissed the revision petition with the following observations :"In the light of the decision of the Supreme Court in 16 STC 231 , and of this Court in 1965 K.L.T. 1167, this T.R.C. has to be dismissed. It is dismissed accordingly; No costs."3. The decision of the Kerala High Court in State of Kerala vs. K. E. Nainan was overruled by this Court in State of Kerala vs. K. E. Nainan, and the decision of this Court in State of Mysore vs. Yaddalam Lakshminarasimhiah Setty & Sons is no more good in view of the amendments with retrospective effect made later to the relevant provisions. See the decisions of this Court in State of Kerala vs. P. P. Joseph & Co. and Joseph Elias. Hence the decision of the High Court cannot be upheld.4. for the respondent-assessee contends that the order of the Deputy Commissioner is not valid is the same was made beyond the time fixed by Section 35 to the Kerala Central (Sales Tax) Act, 1963. This contention was not taken either before the Tribunal or before the High Court. Council for the assessee further contends that the other points that were urged before the Tribunal were neither points that were urged before the Tribunal were neither considered by the Tribunal nor by the High Court in view of their conclusion that the revision proceeding was barred by limitation for the reasons mentioned by them. It is open to the assessee to urge before the High Court those contentions. | 1[ds]3. The decision of the Kerala High Court in State of Kerala vs. K. E. Nainan was overruled by this Court in State of Kerala vs. K. E. Nainan, and the decision of this Court in State of Mysore vs. Yaddalam Lakshminarasimhiah Setty & Sons is no more good in view of the amendments with retrospective effect made later to the relevant provisions. See the decisions of this Court in State of Kerala vs. P. P. Joseph & Co. and Joseph Elias. Hence the decision of the High Court cannot be upheld.4. for thecontends that the order of the Deputy Commissioner is not valid is the same was made beyond the time fixed by Section 35 to the Kerala Central (Sales Tax) Act, 1963. This contention was not taken either before the Tribunal or before the High Court. Council for the assessee further contends that the other points that were urged before the Tribunal were neither points that were urged before the Tribunal were neither considered by the Tribunal nor by the High Court in view of their conclusion that the revision proceeding was barred by limitation for the reasons mentioned by them. It is open to the assessee to urge before the High Court those contentions. | 1 | 519 | 224 | ### 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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Hegde, J.1. These appeals by certificate raise a common question of law. We shall refer to that question presently. The respondent-assessee was assessed to sales tax for the year 1957-58, 1958-59 and 1959-60 in February, 1961. At time of the said assessment, he was granted certain exemptions by the Sales Tax Officer. On an examination of the records, the Deputy Commissioner of Sales Tax came to the conclusion that the exemptions granted by Sales Tax Officer were impermissible under law. Therefore, he started suo moto revision proceedings sometimes in 1963. After giving an opportunity to the assessee to represent his case he revised the order of assessment by his order dated May 20, 1965. That order was challenged by the assessee before the Sales Tax Appellate Tribunal. The Sales Tax Appellate Tribunal opined that the Deputy Commissioner of Sales Tax revised the order of assessment in exercise of his power under Rule 33 of the Rules framed under the Kerala Sales Tax Act of 1925. Following the decision of the Kerala High Court reported in 1965 K.L.T. P. 1167, he set aside the order of the Deputy Commissioner on the ground that the proceedings were initiated beyond time.2. Aggrieved by the order of the Tribunal, the State of Kerala took up the matter in revision to the High Court of Kerala. The High Court dismissed the revision petition with the following observations :"In the light of the decision of the Supreme Court in 16 STC 231 , and of this Court in 1965 K.L.T. 1167, this T.R.C. has to be dismissed. It is dismissed accordingly; No costs."3. The decision of the Kerala High Court in State of Kerala vs. K. E. Nainan was overruled by this Court in State of Kerala vs. K. E. Nainan, and the decision of this Court in State of Mysore vs. Yaddalam Lakshminarasimhiah Setty & Sons is no more good in view of the amendments with retrospective effect made later to the relevant provisions. See the decisions of this Court in State of Kerala vs. P. P. Joseph & Co. and Joseph Elias. Hence the decision of the High Court cannot be upheld.4. for the respondent-assessee contends that the order of the Deputy Commissioner is not valid is the same was made beyond the time fixed by Section 35 to the Kerala Central (Sales Tax) Act, 1963. This contention was not taken either before the Tribunal or before the High Court. Council for the assessee further contends that the other points that were urged before the Tribunal were neither points that were urged before the Tribunal were neither considered by the Tribunal nor by the High Court in view of their conclusion that the revision proceeding was barred by limitation for the reasons mentioned by them. It is open to the assessee to urge before the High Court those contentions.
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3. The decision of the Kerala High Court in State of Kerala vs. K. E. Nainan was overruled by this Court in State of Kerala vs. K. E. Nainan, and the decision of this Court in State of Mysore vs. Yaddalam Lakshminarasimhiah Setty & Sons is no more good in view of the amendments with retrospective effect made later to the relevant provisions. See the decisions of this Court in State of Kerala vs. P. P. Joseph & Co. and Joseph Elias. Hence the decision of the High Court cannot be upheld.4. for thecontends that the order of the Deputy Commissioner is not valid is the same was made beyond the time fixed by Section 35 to the Kerala Central (Sales Tax) Act, 1963. This contention was not taken either before the Tribunal or before the High Court. Council for the assessee further contends that the other points that were urged before the Tribunal were neither points that were urged before the Tribunal were neither considered by the Tribunal nor by the High Court in view of their conclusion that the revision proceeding was barred by limitation for the reasons mentioned by them. It is open to the assessee to urge before the High Court those contentions.
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V. Sumatiben Maganlal Manani (dead) by L.R Vs. Uttamchand Kashiprasad Shah & Another | the evidence is that the day on which the Commissioner visited the suit shop was found closed. The photographs taken by the photographer on a stray day shows that the suit shop was found closed and the oral evidence of the plaintiff was believed.” 19. In our view, the criticism by the High Court of the appellate court judgment is unwarranted. The appellate court did not arrive at its finding on a juxtaposition of segregated pieces of fact but it took into consideration the overall picture emerging from all the material facts and circumstances relating to the case. The appellate court expressly said that the two sets of photographs would only show that the shop was closed on the dates the pictures were taken and those pictures alone were not sufficient to prove non-user of the suit premises over a period of six months and they could, at best, be used as corroborative evidence. It, however, took into consideration the circumstance that apart from the suit premises defendant No.1 had set up another shop called “Mahavir Provision Stores” at Sardar Patel Colony and yet another shop in Chandlodia area. It also took into consideration that when the Court Commissioner visited the suit shop on July 23, 1977 it was found closed. What is of greater significance in that regard, however, is that defendant no.1 gave a false explanation for not opening the shop, stating that it was not opened due to the death of his maternal uncle even though the other shop at Sardar Patel Colony was not only open but he was also personally present there on that date. The court also took into consideration the false “Rojmel” filed by defendant No.1 in support of the plea that he continued to run the grocery business at the suit premises through an employee. The court also noticed that another Court Commissioner had gone to the suit premises on September 22, 1981. He did not find in the shop any grocery articles but found there articles belonging to defendant no.2 who carried on his milk business from the adjoining shop. Besides all this, the appellate court had taken into consideration the electricity bills that showed that there was no consumption of electricity over a period of six months immediately preceding the filing of the suit. 20. As regards the electricity bills, the High Court had to make the following comments: “Defendant No.1 has offered his explanation for this that he being a Jain, before the sun set, he closes his shop. The defendant No.1 has also produced electric bills of six months prior to the six months prior to the date of the filing of the suit. These bills have not been considered by any of the courts below properly. In those six months bills, which the defendant No.1 has produced, the charges of the electricity are minimum and there is no consumption. On the contrary, from this explanation of the defendant No.1 that he is not using the electricity......”. 21. Here again, the High Court failed to appreciate all the material facts and circumstances. The High Court thought that the electricity bills showing no consumption of electricity for the period of six months immediately preceding the filing of the suit were of no consequence because the bills for even the period prior to the period of six months preceding the suit showed no consumption of electricity. The High Court overlooked the fact that even though in terms of Section 13(1)(k) of the Bombay Rent Act, the plaintiff was required to prove non-user of the shop premises for a period of six months immediately preceding the filing of the suit, as a matter of fact, the case of the plaintiff was that defendant No.1 was not using the shop and keeping it closed for a much longer period starting from or about June, 1976. Thus, the bills produced by defendant no.1 showing no consumption of electricity in fact supported the case of the plaintiff. The High Court also overlooked that later on in the year 1979 defendant no.1 had got the electricity connection to the suit shop restored and thereafter the electricity bills were showing normal consumption of electricity. The High Court also overlooked that defendant no.1 had resorted to many falsehoods in his attempt to wriggle out of facts and circumstances established by the plaintiffs evidence. 22. In the same way on the issue of subletting the High Court was dismissive of the finding of the appellate court observing as follows:- “On scrutinizing the record, it is clearly found that reliance has been placed on the testimony of the plaintiffs power of attorney holder and panchnama prepared by the Court Commissioner. What is found by the Court Commissioner is only some milk cans in the suit premises. Some of the milk cans carried the name of defendant No.2 and also some sweet boxes. From this mere fact, a very serious presumption of the exclusive possession of the defendant No.2 has been drawn by both the courts below. The finding of the exclusive possession must be based on evidence and that factum of possession must be proved. From this only, no prudent man can infer the presence of a third party.” 23. We are unable to subscribe to the view taken by the High Court. On the basis of the materials available on record, as discussed in detail in the judgment of the appellate court, it was perfectly justified in arriving at the finding of subletting against defendant no.1. On a careful consideration of the matter, we find that the High Court, in exercise of its revisional jurisdiction, committed a mistake in interfering with and setting aside the findings of fact properly arrived at by the courts below. The judgment and order passed by the High Court is unsustainable by any reckoning. We, accordingly, set aside the judgment of the High Court and restore the decree passed by the trial court as affirmed by the appellate court. 24. In the result, | 1[ds]Maganbhai Manani, the husband and the power of attorney holder of the plaintiff in his deposition before the court fully supported the case of the plaintiff on the question of non-user as well. Apart from the evidence of the plaintiff, there were two sets of photographs, one taken on January 4, 1977 and the other on January 3, 1981 in which the suit shop appeared closed. The photographs taken on January 4, 1977, at exhibits 301 to 304, were formally proved by one Mr. Narendrabhai Madhavlal Gajjar at (Exh.300) who is a professional photographer and has a shop under the name and style of Gajjar Studio. He stated before the court that he had taken the photographs on the instructions of the husband of the landlady on January 4, 1977 at about 10 to 11 in the morning and had issued the bill, Exh.201. The other set of photographs, dated January 3, 1981, were taken by Vinodbhai Boria, who is also a professional photographer. In regard to the two sets of photographs the appellate court rightly said that those would, at best, show that the shop was closed on the dates on which the photographs were taken. The photographs, therefore, could not form conclusive evidence of non-user of the shop over a period of six months and, at best, they could be used as a piece of corroborative evidence.13. Apart from the photographs, there was the report of the Court Commissioner who visited the suit shop on July 23, 1977 and found it closed. The explanation of defendant no.1 was that on that date his maternal uncle had died and the shop was not opened for that reason. His witness Maheshkumar Trivedi, at Exh. 404, who was writing the accounts of business of defendant no.1, however, had a different explanation. According to him, the shop was not opened on July 23, 1977 because that was a holiday. The court has observed that grocery shops are not known to be closed on holidays. But the matter does not end there. After finding the suit shop closed, the Court Commissioner proceeded to visit the shop of defendant no.1 called `Mahavir Provision Stores at Sardar Patel Colony. There the shop was not only open but defendant no.1 was himself present in the shop. The court has observed, and rightly so, that on account of the death of the maternal uncle it cannot be that one shop would open and the other would remain closed.14. The most clinching evidence on the issue of non-user of the suit premises, however, comes in the form of the electricity bills. Electricity bills, Exhs. 172 to 177, are dated 10.1.1977, 23.2.1977, 25.3.1977, 2.5.1977, 2.6.1977 and 2.9.1977 respectively. These electricity bills clearly show that in the suit shop there was no consumption of electricity for the period of six months before the filing of the suit. In order to prove non-consumption of any electricity at the suit shop, the plaintiff also examined Rameshbhai Patel, at Exh.332, who was an employee of the Ahmedabad Electricity Company, as a Senior Clerk, for 12 years before his examination in court. He produced before the court statement of electric service number 149090 (of the suit shop) with his list Exh.74/1. He also produced other statements with lists, Exh.74/2 and Exh.74/3, containing record of metre readings of the suit premises showing electric consumption for different periods. He also referred to an application submitted by defendant no.1 for transfer of electric service in his name and for resuming electric supply in the suitcriticism by the High Court of the appellate court judgment is unwarranted. The appellate court did not arrive at its finding on a juxtaposition of segregated pieces of fact but it took into consideration the overall picture emerging from all the material facts and circumstances relating to the case. The appellate court expressly said that the two sets of photographs would only show that the shop was closed on the dates the pictures were taken and those pictures alone were not sufficient to prove non-user of the suit premises over a period of six months and they could, at best, be used as corroborative evidence. It, however, took into consideration the circumstance that apart from the suit premises defendant No.1 had set up another shop calledat Sardar Patel Colony and yet another shop in Chandlodia area. It also took into consideration that when the Court Commissioner visited the suit shop on July 23, 1977 it was found closed. What is of greater significance in that regard, however, is that defendant no.1 gave a false explanation for not opening the shop, stating that it was not opened due to the death of his maternal uncle even though the other shop at Sardar Patel Colony was not only open but he was also personally present there on that date. The court also took into consideration the falsefiled by defendant No.1 in support of the plea that he continued to run the grocery business at the suit premises through an employee. The court also noticed that another Court Commissioner had gone to the suit premises on September 22, 1981. He did not find in the shop any grocery articles but found there articles belonging to defendant no.2 who carried on his milk business from the adjoining shop. Besides all this, the appellate court had taken into consideration the electricity bills that showed that there was no consumption of electricity over a period of six months immediately preceding the filing of thethe basis of the materials available on record, as discussed in detail in the judgment of the appellate court, it was perfectly justified in arriving at the finding of subletting against defendant no.1. On a careful consideration of the matter, we find that the High Court, in exercise of its revisional jurisdiction, committed a mistake in interfering with and setting aside the findings of fact properly arrived at by the courts below. The judgment and order passed by the High Court is unsustainable by any reckoning. We, accordingly, set aside the judgment of the High Court and restore the decree passed by the trial court as affirmed by the appellate court. | 1 | 5,053 | 1,135 | ### Instruction:
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the evidence is that the day on which the Commissioner visited the suit shop was found closed. The photographs taken by the photographer on a stray day shows that the suit shop was found closed and the oral evidence of the plaintiff was believed.” 19. In our view, the criticism by the High Court of the appellate court judgment is unwarranted. The appellate court did not arrive at its finding on a juxtaposition of segregated pieces of fact but it took into consideration the overall picture emerging from all the material facts and circumstances relating to the case. The appellate court expressly said that the two sets of photographs would only show that the shop was closed on the dates the pictures were taken and those pictures alone were not sufficient to prove non-user of the suit premises over a period of six months and they could, at best, be used as corroborative evidence. It, however, took into consideration the circumstance that apart from the suit premises defendant No.1 had set up another shop called “Mahavir Provision Stores” at Sardar Patel Colony and yet another shop in Chandlodia area. It also took into consideration that when the Court Commissioner visited the suit shop on July 23, 1977 it was found closed. What is of greater significance in that regard, however, is that defendant no.1 gave a false explanation for not opening the shop, stating that it was not opened due to the death of his maternal uncle even though the other shop at Sardar Patel Colony was not only open but he was also personally present there on that date. The court also took into consideration the false “Rojmel” filed by defendant No.1 in support of the plea that he continued to run the grocery business at the suit premises through an employee. The court also noticed that another Court Commissioner had gone to the suit premises on September 22, 1981. He did not find in the shop any grocery articles but found there articles belonging to defendant no.2 who carried on his milk business from the adjoining shop. Besides all this, the appellate court had taken into consideration the electricity bills that showed that there was no consumption of electricity over a period of six months immediately preceding the filing of the suit. 20. As regards the electricity bills, the High Court had to make the following comments: “Defendant No.1 has offered his explanation for this that he being a Jain, before the sun set, he closes his shop. The defendant No.1 has also produced electric bills of six months prior to the six months prior to the date of the filing of the suit. These bills have not been considered by any of the courts below properly. In those six months bills, which the defendant No.1 has produced, the charges of the electricity are minimum and there is no consumption. On the contrary, from this explanation of the defendant No.1 that he is not using the electricity......”. 21. Here again, the High Court failed to appreciate all the material facts and circumstances. The High Court thought that the electricity bills showing no consumption of electricity for the period of six months immediately preceding the filing of the suit were of no consequence because the bills for even the period prior to the period of six months preceding the suit showed no consumption of electricity. The High Court overlooked the fact that even though in terms of Section 13(1)(k) of the Bombay Rent Act, the plaintiff was required to prove non-user of the shop premises for a period of six months immediately preceding the filing of the suit, as a matter of fact, the case of the plaintiff was that defendant No.1 was not using the shop and keeping it closed for a much longer period starting from or about June, 1976. Thus, the bills produced by defendant no.1 showing no consumption of electricity in fact supported the case of the plaintiff. The High Court also overlooked that later on in the year 1979 defendant no.1 had got the electricity connection to the suit shop restored and thereafter the electricity bills were showing normal consumption of electricity. The High Court also overlooked that defendant no.1 had resorted to many falsehoods in his attempt to wriggle out of facts and circumstances established by the plaintiffs evidence. 22. In the same way on the issue of subletting the High Court was dismissive of the finding of the appellate court observing as follows:- “On scrutinizing the record, it is clearly found that reliance has been placed on the testimony of the plaintiffs power of attorney holder and panchnama prepared by the Court Commissioner. What is found by the Court Commissioner is only some milk cans in the suit premises. Some of the milk cans carried the name of defendant No.2 and also some sweet boxes. From this mere fact, a very serious presumption of the exclusive possession of the defendant No.2 has been drawn by both the courts below. The finding of the exclusive possession must be based on evidence and that factum of possession must be proved. From this only, no prudent man can infer the presence of a third party.” 23. We are unable to subscribe to the view taken by the High Court. On the basis of the materials available on record, as discussed in detail in the judgment of the appellate court, it was perfectly justified in arriving at the finding of subletting against defendant no.1. On a careful consideration of the matter, we find that the High Court, in exercise of its revisional jurisdiction, committed a mistake in interfering with and setting aside the findings of fact properly arrived at by the courts below. The judgment and order passed by the High Court is unsustainable by any reckoning. We, accordingly, set aside the judgment of the High Court and restore the decree passed by the trial court as affirmed by the appellate court. 24. In the result,
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plaintiff on the question of non-user as well. Apart from the evidence of the plaintiff, there were two sets of photographs, one taken on January 4, 1977 and the other on January 3, 1981 in which the suit shop appeared closed. The photographs taken on January 4, 1977, at exhibits 301 to 304, were formally proved by one Mr. Narendrabhai Madhavlal Gajjar at (Exh.300) who is a professional photographer and has a shop under the name and style of Gajjar Studio. He stated before the court that he had taken the photographs on the instructions of the husband of the landlady on January 4, 1977 at about 10 to 11 in the morning and had issued the bill, Exh.201. The other set of photographs, dated January 3, 1981, were taken by Vinodbhai Boria, who is also a professional photographer. In regard to the two sets of photographs the appellate court rightly said that those would, at best, show that the shop was closed on the dates on which the photographs were taken. The photographs, therefore, could not form conclusive evidence of non-user of the shop over a period of six months and, at best, they could be used as a piece of corroborative evidence.13. Apart from the photographs, there was the report of the Court Commissioner who visited the suit shop on July 23, 1977 and found it closed. The explanation of defendant no.1 was that on that date his maternal uncle had died and the shop was not opened for that reason. His witness Maheshkumar Trivedi, at Exh. 404, who was writing the accounts of business of defendant no.1, however, had a different explanation. According to him, the shop was not opened on July 23, 1977 because that was a holiday. The court has observed that grocery shops are not known to be closed on holidays. But the matter does not end there. After finding the suit shop closed, the Court Commissioner proceeded to visit the shop of defendant no.1 called `Mahavir Provision Stores at Sardar Patel Colony. There the shop was not only open but defendant no.1 was himself present in the shop. The court has observed, and rightly so, that on account of the death of the maternal uncle it cannot be that one shop would open and the other would remain closed.14. The most clinching evidence on the issue of non-user of the suit premises, however, comes in the form of the electricity bills. Electricity bills, Exhs. 172 to 177, are dated 10.1.1977, 23.2.1977, 25.3.1977, 2.5.1977, 2.6.1977 and 2.9.1977 respectively. These electricity bills clearly show that in the suit shop there was no consumption of electricity for the period of six months before the filing of the suit. In order to prove non-consumption of any electricity at the suit shop, the plaintiff also examined Rameshbhai Patel, at Exh.332, who was an employee of the Ahmedabad Electricity Company, as a Senior Clerk, for 12 years before his examination in court. He produced before the court statement of electric service number 149090 (of the suit shop) with his list Exh.74/1. He also produced other statements with lists, Exh.74/2 and Exh.74/3, containing record of metre readings of the suit premises showing electric consumption for different periods. He also referred to an application submitted by defendant no.1 for transfer of electric service in his name and for resuming electric supply in the suitcriticism by the High Court of the appellate court judgment is unwarranted. The appellate court did not arrive at its finding on a juxtaposition of segregated pieces of fact but it took into consideration the overall picture emerging from all the material facts and circumstances relating to the case. The appellate court expressly said that the two sets of photographs would only show that the shop was closed on the dates the pictures were taken and those pictures alone were not sufficient to prove non-user of the suit premises over a period of six months and they could, at best, be used as corroborative evidence. It, however, took into consideration the circumstance that apart from the suit premises defendant No.1 had set up another shop calledat Sardar Patel Colony and yet another shop in Chandlodia area. It also took into consideration that when the Court Commissioner visited the suit shop on July 23, 1977 it was found closed. What is of greater significance in that regard, however, is that defendant no.1 gave a false explanation for not opening the shop, stating that it was not opened due to the death of his maternal uncle even though the other shop at Sardar Patel Colony was not only open but he was also personally present there on that date. The court also took into consideration the falsefiled by defendant No.1 in support of the plea that he continued to run the grocery business at the suit premises through an employee. The court also noticed that another Court Commissioner had gone to the suit premises on September 22, 1981. He did not find in the shop any grocery articles but found there articles belonging to defendant no.2 who carried on his milk business from the adjoining shop. Besides all this, the appellate court had taken into consideration the electricity bills that showed that there was no consumption of electricity over a period of six months immediately preceding the filing of thethe basis of the materials available on record, as discussed in detail in the judgment of the appellate court, it was perfectly justified in arriving at the finding of subletting against defendant no.1. On a careful consideration of the matter, we find that the High Court, in exercise of its revisional jurisdiction, committed a mistake in interfering with and setting aside the findings of fact properly arrived at by the courts below. The judgment and order passed by the High Court is unsustainable by any reckoning. We, accordingly, set aside the judgment of the High Court and restore the decree passed by the trial court as affirmed by the appellate court.
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Divisional Controller, N.E.K.R.T.C Vs. H. Amaresh | employer unless there exists a statutory provision in this behalf. Moreover, Labour Courts must act within the four corners of the statute concerned, in terms of the provisions thereof. When the Labour Court having held that charge No.4 stood proved, no interference by the learned Single Judge or by the Division Bench was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised capriciously and arbitrarily in spite of the finding that Charge No.4, with regard to the pilferage, has been proved beyond any doubt. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement was shockingly disproportionate in the nature of charge No.4 found proved. When charge No.4 is proved, which is grave in nature, interference with the punishment of dismissal cannot be justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in the exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved. Ms. Anitha Shenoy also cited a recent decision of this Court reported in (2005) 7 SCC 447 - Rajasthan State Road Transport Corpn. And Others vs. Zakir Hussain (Ruma Pal and Dr. AR. Lakshmanan, JJ). The respondent therein was also a conductor of the appellant-Corporation. He challenged the termination of his service as being in violation of the provisions of the Standing Order. However, without availing the remedy available to him under the Industrial Disputes Act, 1947 he approached the Civil Courts and obtained decrees in his favour. It was challenged by the management before the High Court. The High Court declined to interfere with the orders passed by the lower Court since there is concurrent finding on fact by both the Courts below and that no substantial question of law arises, the appellant-Corporation preferred the special leave petition before this Court questioning the correctness of the orders passed by the courts below and of the High Court particularly on the question of jurisdiction of civil courts to entertain and try the suit instead of an industrial dispute. This Court held that the civil court has no jurisdiction and that the jurisdiction cannot be conferred by any order of the court and that where an act creates an obligation and enforces the performance in a specified manner the performance cannot be enforced in any other manner. It was held that the employees of the State Road Transport Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitution and that their terms of appointment are governed by the letter of appointment and, therefore, the management was well within its right to terminate the services of the respondent during the period of probation if their services were not found to be satisfactory during the said period and in such an event the appellant-Corporation was not obliged to hold an enquiry before terminating the services. In the concluding part of the judgment, this Court has observed that since the respondent-workman has not acted bona fide in instituting the suit, the respondent was not entitled to any back wages and having regard to the facts and circumstances of the said case, it would not be appropriate to order refund of the back wages paid to him and that he shall not be allowed to continue in service any further and shall be discharged forthwith. 20. In the instant case, even though charge No.4 has been proved beyond any doubt, the Labour Court taking a lenient and sympathetic view, passed certain directions which were modified by the learned Single Judge and of the Division Bench. While entertaining this special leave petition, this Court has only ordered notice to the respondent. The order of the High Court and of the Division Bench has not been stayed even though the Division Bench observed that having regard to the gravity of the charges proved against the respondent, it would be in the interest of justice to modify the order passed by the learned Single Judge to the extent he has directed the appellant-Corporation to pay 25% back wages. The Division Bench deleted the direction in regard to the payment of back wages but retained the order in regard to the reinstatement. The said order is ex-facie illegal and contrary to the principles laid down by the various decisions of this Court which have been referred to in paragraphs supra and also on the proved facts and circumstances of the case. Having accepted all the facts that the charges of short remittance was proved and yet the learned single Judge and the learned Judges of the Division Bench proceeded to pass an order ordering reinstatement which clearly goes against the mandate of the various judgments of this Court. In our view, even short remittance amounts to mis-conduct and, therefore, applying the rulings of this Court, the impugned order ought not to have been passed by the Division Bench ordering reinstatement. We, therefore, have no hesitation to set aside the order passed by the learned Judges of the Division Bench and restore the order of dismissal of the respondent from service. It is stated that pursuant to the order of the Labour Court the respondent was reinstated in service. Since there was no stay granted by this Court the respondent had continued in service of the Corporation. In view of the law laid down by this Court and of the facts and circumstances of this case, the respondent, in our opinion, has no legal right to continue in service any further. We, therefore, direct the appellant-Corporation to immediately discharge the respondent from service. However, we make it clear that the salary paid to the respondent and other emoluments during this period shall not be recovered from the respondent. We also make it further clear that in view of the order of dismissal the respondent shall not be entitled to any further emoluments. 21. For the foregoing reasons, we | 1[ds]The High Court and the Labour Court failed to consider all the cogent evidence and documents produced by the Corporation before them. The Labour Court has miserably erred by not considering that the respondent was in a drunken condition when there was no denial on the part of the workmen to that effect. By not considering this, the High Court has also erredIn the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-appropriated funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating a Corporations funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corpn. Vs. B.S. Hullikatti, (2001) 2 SCC 574 was also relied on in this judgment among others. Examination of passengers of vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis-conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantumIn this context, it is useful to refer to the findings of the domestic tribunal which has already been extracted above in paragraph (supra). Before the Inquiry Officer Exh. M1-M4 were marked, which have not been refuted nor was the veracity of witness decided. The Inquiry Officer has stated that he has carefully examined the evidence of MW.1 and the documents marked which fully reveals that the delinquent has committed not only misconduct but misappropriated the cash. MW 1 was not cross examined by the delinquent employee. In reply, the delinquent has simply denied the charges stating it baseless. The Inquiry Officer, on a careful consideration of all aspects of the case, unhesitantly held that the delinquent was guilty of the charges and that all the charges have been provedIn the instant case, even though charge No.4 has been proved beyond any doubt, the Labour Court taking a lenient and sympathetic view, passed certain directions which were modified by the learned Single Judge and of the Division Bench. While entertaining this special leave petition, this Court has only ordered notice to the respondent. The order of the High Court and of the Division Bench has not been stayed even though the Division Bench observed that having regard to the gravity of the charges proved against the respondent, it would be in the interest of justice to modify the order passed by the learned Single Judge to the extent he has directed the appellant-Corporation to pay 25% back wages. The Division Bench deleted the direction in regard to the payment of back wages but retained the order in regard to the reinstatement. The said order is ex-facie illegal and contrary to the principles laid down by the various decisions of this Court which have been referred to in paragraphs supra and also on the proved facts and circumstances of the case. Having accepted all the facts that the charges of short remittance was proved and yet the learned single Judge and the learned Judges of the Division Bench proceeded to pass an order ordering reinstatement which clearly goes against the mandate of the various judgments of this Court. In our view, even short remittance amounts to mis-conduct and, therefore, applying the rulings of this Court, the impugned order ought not to have been passed by the Division Bench ordering reinstatement. We, therefore, have no hesitation to set aside the order passed by the learned Judges of the Division Bench and restore the order of dismissal of the respondent from service. It is stated that pursuant to the order of the Labour Court the respondent was reinstated in service. Since there was no stay granted by this Court the respondent had continued in service of the Corporation. In view of the law laid down by this Court and of the facts and circumstances of this case, the respondent, in our opinion, has no legal right to continue in service any further. We, therefore, direct the appellant-Corporation to immediately discharge the respondent from service. However, we make it clear that the salary paid to the respondent and other emoluments during this period shall not be recovered from the respondent. We also make it further clear that in view of the order of dismissal the respondent shall not be entitled to any further emoluments | 1 | 3,798 | 984 | ### Instruction:
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employer unless there exists a statutory provision in this behalf. Moreover, Labour Courts must act within the four corners of the statute concerned, in terms of the provisions thereof. When the Labour Court having held that charge No.4 stood proved, no interference by the learned Single Judge or by the Division Bench was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised capriciously and arbitrarily in spite of the finding that Charge No.4, with regard to the pilferage, has been proved beyond any doubt. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement was shockingly disproportionate in the nature of charge No.4 found proved. When charge No.4 is proved, which is grave in nature, interference with the punishment of dismissal cannot be justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in the exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved. Ms. Anitha Shenoy also cited a recent decision of this Court reported in (2005) 7 SCC 447 - Rajasthan State Road Transport Corpn. And Others vs. Zakir Hussain (Ruma Pal and Dr. AR. Lakshmanan, JJ). The respondent therein was also a conductor of the appellant-Corporation. He challenged the termination of his service as being in violation of the provisions of the Standing Order. However, without availing the remedy available to him under the Industrial Disputes Act, 1947 he approached the Civil Courts and obtained decrees in his favour. It was challenged by the management before the High Court. The High Court declined to interfere with the orders passed by the lower Court since there is concurrent finding on fact by both the Courts below and that no substantial question of law arises, the appellant-Corporation preferred the special leave petition before this Court questioning the correctness of the orders passed by the courts below and of the High Court particularly on the question of jurisdiction of civil courts to entertain and try the suit instead of an industrial dispute. This Court held that the civil court has no jurisdiction and that the jurisdiction cannot be conferred by any order of the court and that where an act creates an obligation and enforces the performance in a specified manner the performance cannot be enforced in any other manner. It was held that the employees of the State Road Transport Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitution and that their terms of appointment are governed by the letter of appointment and, therefore, the management was well within its right to terminate the services of the respondent during the period of probation if their services were not found to be satisfactory during the said period and in such an event the appellant-Corporation was not obliged to hold an enquiry before terminating the services. In the concluding part of the judgment, this Court has observed that since the respondent-workman has not acted bona fide in instituting the suit, the respondent was not entitled to any back wages and having regard to the facts and circumstances of the said case, it would not be appropriate to order refund of the back wages paid to him and that he shall not be allowed to continue in service any further and shall be discharged forthwith. 20. In the instant case, even though charge No.4 has been proved beyond any doubt, the Labour Court taking a lenient and sympathetic view, passed certain directions which were modified by the learned Single Judge and of the Division Bench. While entertaining this special leave petition, this Court has only ordered notice to the respondent. The order of the High Court and of the Division Bench has not been stayed even though the Division Bench observed that having regard to the gravity of the charges proved against the respondent, it would be in the interest of justice to modify the order passed by the learned Single Judge to the extent he has directed the appellant-Corporation to pay 25% back wages. The Division Bench deleted the direction in regard to the payment of back wages but retained the order in regard to the reinstatement. The said order is ex-facie illegal and contrary to the principles laid down by the various decisions of this Court which have been referred to in paragraphs supra and also on the proved facts and circumstances of the case. Having accepted all the facts that the charges of short remittance was proved and yet the learned single Judge and the learned Judges of the Division Bench proceeded to pass an order ordering reinstatement which clearly goes against the mandate of the various judgments of this Court. In our view, even short remittance amounts to mis-conduct and, therefore, applying the rulings of this Court, the impugned order ought not to have been passed by the Division Bench ordering reinstatement. We, therefore, have no hesitation to set aside the order passed by the learned Judges of the Division Bench and restore the order of dismissal of the respondent from service. It is stated that pursuant to the order of the Labour Court the respondent was reinstated in service. Since there was no stay granted by this Court the respondent had continued in service of the Corporation. In view of the law laid down by this Court and of the facts and circumstances of this case, the respondent, in our opinion, has no legal right to continue in service any further. We, therefore, direct the appellant-Corporation to immediately discharge the respondent from service. However, we make it clear that the salary paid to the respondent and other emoluments during this period shall not be recovered from the respondent. We also make it further clear that in view of the order of dismissal the respondent shall not be entitled to any further emoluments. 21. For the foregoing reasons, we
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The High Court and the Labour Court failed to consider all the cogent evidence and documents produced by the Corporation before them. The Labour Court has miserably erred by not considering that the respondent was in a drunken condition when there was no denial on the part of the workmen to that effect. By not considering this, the High Court has also erredIn the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-appropriated funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating a Corporations funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corpn. Vs. B.S. Hullikatti, (2001) 2 SCC 574 was also relied on in this judgment among others. Examination of passengers of vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis-conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantumIn this context, it is useful to refer to the findings of the domestic tribunal which has already been extracted above in paragraph (supra). Before the Inquiry Officer Exh. M1-M4 were marked, which have not been refuted nor was the veracity of witness decided. The Inquiry Officer has stated that he has carefully examined the evidence of MW.1 and the documents marked which fully reveals that the delinquent has committed not only misconduct but misappropriated the cash. MW 1 was not cross examined by the delinquent employee. In reply, the delinquent has simply denied the charges stating it baseless. The Inquiry Officer, on a careful consideration of all aspects of the case, unhesitantly held that the delinquent was guilty of the charges and that all the charges have been provedIn the instant case, even though charge No.4 has been proved beyond any doubt, the Labour Court taking a lenient and sympathetic view, passed certain directions which were modified by the learned Single Judge and of the Division Bench. While entertaining this special leave petition, this Court has only ordered notice to the respondent. The order of the High Court and of the Division Bench has not been stayed even though the Division Bench observed that having regard to the gravity of the charges proved against the respondent, it would be in the interest of justice to modify the order passed by the learned Single Judge to the extent he has directed the appellant-Corporation to pay 25% back wages. The Division Bench deleted the direction in regard to the payment of back wages but retained the order in regard to the reinstatement. The said order is ex-facie illegal and contrary to the principles laid down by the various decisions of this Court which have been referred to in paragraphs supra and also on the proved facts and circumstances of the case. Having accepted all the facts that the charges of short remittance was proved and yet the learned single Judge and the learned Judges of the Division Bench proceeded to pass an order ordering reinstatement which clearly goes against the mandate of the various judgments of this Court. In our view, even short remittance amounts to mis-conduct and, therefore, applying the rulings of this Court, the impugned order ought not to have been passed by the Division Bench ordering reinstatement. We, therefore, have no hesitation to set aside the order passed by the learned Judges of the Division Bench and restore the order of dismissal of the respondent from service. It is stated that pursuant to the order of the Labour Court the respondent was reinstated in service. Since there was no stay granted by this Court the respondent had continued in service of the Corporation. In view of the law laid down by this Court and of the facts and circumstances of this case, the respondent, in our opinion, has no legal right to continue in service any further. We, therefore, direct the appellant-Corporation to immediately discharge the respondent from service. However, we make it clear that the salary paid to the respondent and other emoluments during this period shall not be recovered from the respondent. We also make it further clear that in view of the order of dismissal the respondent shall not be entitled to any further emoluments
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FRANKLIN TEMPLETON TRUSTEE SERVICES PRIVATE LIMITED AND ANOTHER Vs. AMRUTA GARG AND OTHERS ETC | to be the best way to ensure a fair and equitable distribution of monies to unitholders while minimizing erosion in value for investors. It is also the contention of the trustees that they were required to justify and explain the reasons for winding up of the six schemes and hence the notice was worded in this manner. The notice had also informed the investors that there would be suspension of subscription and redemption post the cut-off time from 23rd April, 2020. All Systematic Investment Plans, Systematic Transfer Plans and Systematic Withdrawal Plans into and from the above- mentioned funds stood cancelled post the cut off time from 23rd April, 2020. The notice had also furnished information and clarification regarding distribution of monies from the Fund Assets, inter alia stating that following the decision to wind up the six schemes, the trustees would proceed for orderly realization and liquidation of the underlying assets with the objective of preserving value for unitholders. Their endeavour would be to liquidate the portfolio holdings at the earliest opportunity, to enable an equitable exit for all investors in the unprecedented circumstances. We do not think, in the facts of the present case, the notice for e-voting and the contents would justify annulling the consent given by the unitholders for the winding up of the six schemes. 38. We will now refer to and deal with some of the other objections to the consent/e-voting results which, in our opinion, are merely assertions, or at best minor irregularities, which do not have any substance. These contentions are: (i) Mr. T.S. Krishnamurthys appointment as the Observer by SEBI vide its letter dated 18th December, 2020 was made public belatedly on 26th December, 2020; (ii) Notice for e-meeting dated 6th December, 2020 issued under the name of Mr. Alok Sethi, Director of the Trustees, was not digitally signed by him. However, Mr. Alok Sethi had digitally signed the notice subsequently on 28th December, 2020; (iii) M/s. J. Sagar and Associates should not have been appointed as the Scrutiniser to oversee the conduct of the e-voting and the Observer Mr. T.S. Krishnamurthy should have acted as the Scrutinser; (iv) KFin Technologies was appointed for providing electronic platform for e-voting vide meeting of the Board of Directors of the trustees dated 29thApril, 2020 and thereafter the agreement dated 8th June, 2020 was entered into, but this agreement was digitally signed on 30th June, 2020. Similarly, M/s. J. Sagar and Associates, the law firm, was appointed as the Scrutiniser by letter of engagement dated 13th May, 2020 and the law firm had conveyed its willingness to act as the Scrutiniser. However, the resolution by the Board of Directors of the trustees was approved by circulation on 21st May, 2020. Further addendum to their letter of engagement was issued on 22nd December, 2020; and (v) Notices for e-voting did not specify with clarity whether e-voting was possible on any technology platform, viz. laptop/ desktop or smartphone, etc., though such facility was available. 39. These contentions are mere nitpicks and would hardly justify rejection of the consent to winding up which has been expressed by more than 95% of the unitholders who had voted. Mr. T.S. Krishnamurthy was appointed as the Observer by SEBI in view of the directions given by this Court to ensure fairness and transparency. He was not to conduct the meeting or the process, but only to oversee and give his report on the entire process. Being an independent observer, his observations and comments vide the report would help resolve any debate, doubt or questions. The observer is the eyes and ears, which the Court could rely. Mr. T.S. Krishnamurthy in his report has mentioned that many calls, messages and e-mails were received by him expressing difficulty in voting, non-receipt of passwords and difficulty in reaching the helplines. He had, therefore, conveyed these messages to the trustees and KFin Technologies. Based on the response, the number of helplines were increased. Missed calls were returned and answered. The Observers report vide Annexure-10 refers to the complaints/calls made to Mr. T.S. Krishnamurthy and also records that these were redressed. No unitholder has expressed or stated that they could not vote or their queries were not answered. Absence or lack of digital signatures on the notice is a technical and not a substantive objection. Moreover, the trustees have explained that in view of the objection raised by the Technical Assistance Team, Mr. Alok Sethi had digitally signed a copy of the notice for the purpose of the record. This digitally signed notice was made available to the Technical Assistance Team. M/s. J. Sagar and Associates and KFin Technologies had been earlier appointed by the trustees possibly for compliance of clause (c) to Regulation 18(15) of the Regulations. Agreements earlier in point of time with KFin Technologies and M/s. J. Sagar and Associates would not, in any manner, be an irregularity. Further, Mr. T.S. Krishnamurthy was not to himself count the votes as this exercise had to be undertaken essentially by the Scrutiniser, M/s. J. Sagar and Associates. To conduct the e-voting, for the purpose of consent, the trustees had engaged services of KFin Technologies and M/s. J. Sagar and Associates. M/s J. Sagar and Associates being a law firm, it is obvious, are not experts in information technology. Necessarily, they would rely on the data and details made available by KFin Technologies. We have already dealt with the question of integrity and authenticity of the e-voting data and that it was checked by two technical experts who are Assistant Directors at CFSL, Hyderabad. The comments of the forensic experts have been examined and considered in detail. 40. In the present case, we do not think the procedure prescribed by Regulation 4117 is required to be followed as the trustees themselves have stated that the process of winding up, which would include liquidation of the securities and distribution/payment to the unitholders, should be undertaken by a third party. The objectors had also made similar submissions. | 1[ds]Pertinently, after receipt of the forensic audit report, SEBI has issued show cause notice which is pending adjudication. Common people invest in mutual funds driven by factors such as simplicity in purchase and redemption of units, flexibility of holding and tenure, and liquidity by conversion into money. In the light of this, immediate directions are required as embargo prohibiting redemption of the units, effected by Regulation 40 from the date of publication of notice under Regulation 39(3)(b) on 23rd April 2020, for over ten months. Thereby the unitholders have suffered privation and harassment. This, in same manner, also undermines public sentiments and confidence vital for investments in mutual funds.Hence, in view of larger public interest, presentlywe are only deciding the limited aspect of unitholders consent to winding up [assuming that Regulation 18(15)(c) would apply even where the trustees form an opinion that a scheme should be wound up under Regulation, and are persuaded to direct winding up of the six schemes to ensure disbursement of funds and liquidation of assets/securities.Lastly and importantly, during the course of hearing on 2nd February, 2021, counsels for the objecting unitholders have agreed to disbursal of Rs.9,122 crores amongst the unitholders, which, it has been directed would be in proportion to the unitholders respective interest in the assets of the scheme, as suggested by SEBI. It is obvious that this disbursal to unitholders is possible only when we accept that the six schemes should be wound up.7. Interpreting the term consent with reference to clause (c) of sub- regulation (15) to Regulation 18, the judgment under challenge holds:221. Obviously, there can be a consent of the unit- holders to a proposed of winding up of a Scheme only if the majority of the unit-holders give consent to do so. Sub-clause (c) of clause (15) of Regulation 18 is silent on the nature of majority. Obviously, it is not a specific majority like three-fourth majority. Wherever three-fourth majority of the unit-holders was intended, the Mutual Funds Regulations say so. For example, sub-clause (b) of clause (15) of Regulation 18 and sub-clause (b) of clause (2) of Regulation 39. Therefore, it has to be a simple majority. For this purpose, we must make a reference to a decision of a Full Bench of the Allahabad High Court in the case of Wahid Ullah Khan v. District Magistrate, Nanital. In paragraph 32, the Allahabad High Court held thus:32. The word majority speaks, of greater number out of the total number which cannot be a fixed number. In fact, the starting point of majority is more than half, but any number more than half still continues to be majority. Majority cannot be said only confining to more than half. Majority of three-fourths of the total number, two-thirds of the total number would all come within the sphere of the word majority. A person is said to have won by a majority of fifty thousand votes or thirty thousand votes. All speak about the extent of majority. A majority may start from a number which is more than half and would continue till the balance of the number excluding one number. In the matter of votes if a resolution is carried either in favour or against by all it is said to be unanimous. Majority is used in contradiction to minority. Thus, there must exist a minority vote. So, even where one vote is cast in favour or against resolution the balance of the total number of votes cast would all be a number of majority vote.222. The meaning assigned by the Allahabad High court to the word majority appears to be most correct meaning. The Blacks Law Dictionary provides that a majority means a number that is more than half of a total. Therefore, consent, as contemplated by sub- clause (c) of clause (15) of Regulation 18 will have to be by a simple majority of the unit-holders of a particular Scheme which is decided to be wound up.While we partly agree with the aforesaid observations, we would like to emend the meaning given to the expression the consent of the unitholders for the purpose of clause (c) to sub- regulation (15) of Regulation 18.8. However, we begin by rejecting the argument raised by some of the objecting unitholders that consent would be binding only on those who have consented to winding up of the mutual fund schemes and cannot be imposed on others. The word consent, in the context of the clause, clearly refers to consent of the majority of the unitholders, and not consent given by individual unitholders who alone would be bound by their consent, that is, it excludes unitholders who are not agreeable. To accept the second or contra view, as pleaded by some of the objecting unitholders, would be to negate the very object and purpose of clause (c) to sub-regulation (15) of Regulation 18. In fact, the submission, if accepted, will make the Mutual Fund schemes and the winding up provisions in the Mutual Fund Regulations unworkable as there would be two different classes of unitholders – one bound by the consent, and others who are not bound by consent. Consequently, the scheme would not wind up. The intent behind the provision is to bind even those who do not consent.The word/expression consent in sub-regulation (15) to Regulation 18 refers to affirmative consent to winding up by the majority of the unitholders. Conversely, consent is denied when majority of the unitholders do not approve the proposal to wind up the scheme.12. Clause (c) to sub-regulation (15) of Regulation 18 per se does not prescribe any quorum or specify the criterion for computing majority or ratio of unitholders required for valid consent for winding up. Clause (b) of Regulation 39(2), on the other hand, specifies that seventy-five per cent of the unitholders of a scheme can pass a resolution that the scheme be wound up. Similarly, Regulation 41(1) requires the trustees to call a meeting to approve, by simple majority of the unitholders present and voting, a resolution for authorising the trustees or any other person to take steps for winding up of the scheme. Section 48 of the Companies Act, 2013 states that where share capital of a company is divided into different classes of shares, the rights attached to the shares of any class may be varied with the consent in writing of the shareholders of not less than three-fourths of the issued shares of that class. Sub-section (3) to Section 55 of the Companies Act, 2013 in case of failure to redeem or pay dividend refers to consent of holders of three-fourths in value of the preference shares. Section 103 of the Companies Act, 2013 prescribes minimum quorum for shareholder meetings.14. The concept of absurdity in the context of interpretation of statutes is construed to include any result which is unworkable, impracticable, illogical, futile or pointless, artificial, or productive of a disproportionate counter mischief (See Bennion on Statutory Interpretation, 5th Edition, at 969.). Logic referred to herein is not formal or syllogistic logic, but acceptance that enacted law would not set a standard which is palpably unjust, unfair, unreasonable or does not make any sense.(Ibid at 986.) When an interpretation is beset with practical difficulties, the courts have not shied from turning sides to accept an interpretation that offers a pragmatic solution that will serve the needs of society( Ibid at 971, quoting Griffiths LJ.). Therefore, when there is choice between two interpretations, we would avoid a construction which would reduce the legislation to futility, and should rather accept the construction based on the view that draftsmen would legislate only for the purpose of bringing about an effective result. We must strive as far as possible to give meaningful life to enactment or rule and avoid cadaveric consequences(See Principles of Statutory Interpretation by Justice G.P. Singh, 14th Edition, at 50.).15. We would neither hesitate in stating the obvious, that modern regulatory enactments bear heavily on commercial matters and, therefore, must be precisely and clearly legislated as to avoid inconvenience, friction and confusion, which may, in addition, have adverse economic consequences(See Bennion on Statutory Interpretation, 5th Edition, at 980.). The legislator in the present case must, therefore, reflect and take remedial steps to bring about clarity and certainty in the Mutual Fund Regulations.16. Reading prescription of a quorum as majority of the unitholders or consent as implying consent by the majority of all unitholders in Regulation 18(15)(c) of the Mutual Fund Regulations will not only lead to an absurdity but also an impossibility given the fact that mutual funds have thousands or lakhs of unitholders. Many unitholders due to lack of expertise, commercial understanding, relatively small holding etc. may not like to participate. Consent of majority of all unitholders of the scheme with further prescription that fifty percent of all unitholders shall constitute a quorum is clearly a practical impossibility and therefore would be a futile and foreclosed exercise.In the case of unitholders, the number is fluctuating and ever changing and, therefore, indefinite. Numbers of unitholders can increase, decrease and change with purchase or redemption. Therefore, in the context of clause (c) of Regulation 18(15), we would not, in the absence of any express stipulation, prescribe a minimum quorum and read the requirement of consent by the majority of the unitholders as consent by majority of all the unitholders. On the other hand, it would mean majority of unitholders who exercise their right and vote in support or to reject the proposal to wind up the mutual fund scheme. The unitholders who did not exercise their choice/option cannot be counted as either negative or positive votes as either denying or giving consent to the proposal for winding up.18. Investment in share market, though beneficial and attractive, requires expertise in portfolio construction, stock selection and market timing. In view of attendant risks, diversification of portfolio is preferred but this consequentially requires a larger investment. Mutual funds managed by professional fund managers with advantages of pooling of funds and operational efficiency are the preferred mode of investment for ordinary and common persons. It would be wrong to expect that many amongst these unitholders would have definitive opinion required and necessary voting in a poll on winding up of a mutual fund scheme. Such unitholders, for varied reasons, like lack of understanding and expertise, small holding etc., would prefer to abstain, leaving it to others to decide. Such abstention or refusal to express opinion cannot be construed as either accepting or rejecting the proposals. Keeping in view the object and purpose of the Regulation with the language used therein, we would not accept a construction which would lead to commercial chaos and deadlock. Therefore, silence on the part of absentee unitholders can neither be taken as an acceptance nor rejection of the proposal. Regulation 18(15)(c), upon application in ground reality, must not be interpreted in a manner to frustrate the very law and objective/purpose for which it was enacted. We would rather accept a reasonable and pragmatic construction which furthers the legislative purpose and objective. The underlying thrust behind Regulation 18(15)(c) is to inform the unitholders of the reason and cause for the winding up of the scheme and to give them an opportunity to accept and give their consent or reject the proposal. It is not to frustrate and make winding up an impossibility.Way back in 1943, Sutherland in Statutes and Statutory Construction, Volume 2, Third Edition at page no. 523, in Note 5109, had stated:Where a statue has received a contemporaneous and practical interpretation and the statute as interpreted is re-enacted, the practical interpretation is accorded greater weight than it ordinarily receives, and is regarded presumptively the correct interpretation of the law. The rule is based upon the theory that the legislature is acquainted with the contemporaneous interpretation of a statue, especially, when made by an administrative body or executive officers charged with the duty of administering or enforcing the law, and therefore impliedly adopts the interpretation upon re- enactment.With some modifications, the principle can be applied in the present case. Practical interpretation should be accorded greater weight than it ordinarily receives, and can be regarded as presumptively correct interpretation as the draftsmen legislate to bring about a functional and working result.19. We would not read into Regulation 18(15)(c) a need to have affirmative consent of majority of all or entire pool of unitholders. The words all or entire are not incorporated and found in the said Regulation. Thus, consent of the unitholders for the purpose of clause (c) to sub-regulation (15) of Regulation 18 would mean simple majority of the unitholders present and voting.29. The objectors to the e-voting results are sixteen in number and, as per details, they hold 20,02,114.041 units in the six schemes of value of Rs. 8,69,28,507.62. In percentage terms, the share of objectors in the total units is merely 0.024% and their share in the total AUM is 0.033%. (Chennai Financial Markets and Accountability, one of the parties and an objector, does not hold any unit in the six schemes. Trustees/AMC have questioned the locus and the role of CFMA. We are not presently examining the said aspect which is left open to be examined and decided, if required, later.)Though we have not been provided with scheme-wise break-up of the votes which should have been given, it does not matter in view of the overwhelming consent for winding up of the schemes.The rejected votes represent 1,997 unitholders holding approximately 68.10 crore units valued at Rs. 2,464 crores. Further, an overwhelming majority of the rejected votes – Rs. 2,420 crores by value, 98.6% by units and 97.5% by number of unitholders – were in favour of the scheme. Accordingly, if these rejected votes are taken into consideration, the total votes being polled in proportionate terms would increase from approximately 54% to approximately 62%.31. We do not think we are required to go into the said aspect in great detail. As already held above, the unitholders were given a chance and option to vote and about 38% of the unitholders in numerical terms and 54% in value terms had exercised their right to give or reject consent to the proposal for winding up. In the absence or need for minimum quorum, which is not provided or stipulated in the Regulations nor mandated under law, the e-voting result cannot be rejected on the ground that 38% of the unitholders in numerical terms and 54% in value terms, even if we do not account for the rejected votes, had participated. This cannot be a ground to reject and ignore the affirmative result consenting to the proposal for winding up of the six mutual fund schemes.The submission being that KFin Technologies is an associate/sister of M/s. Karvy Stock Broking Limited. This company, M/s. Karvy Stock Broking Limited, indicted by an adverse order dated 24th November, 2020 under Sections 11(1), 11(4) and 11B of the SEBI Act read with Regulation 35 of SEBI (Intermediary) Regulations, 2008, is barred from accepting new clients on grounds of investor fraud, falsification of records of investors/clients and misuse of client funds.33. This argument does not impress us and cannot be a ground to reject the results. KFin Technologies, it has been pointed out, has been providing e-voting platform services to listed public limited companies ever since the Ministry of Corporate Affairs mandated them to secure approval of the resolutions by the shareholders through electronic voting. The e-voting platform of KFin Technologies is certified by the Ministry of Corporate Affairs approved certification agency, viz. STQC Website Quality Certification Services. KFin Technologies has conducted more than 4,500 e-voting events since 2013. To reject the voting results on this rather specious submission would cast doubts with serious repercussions on e-voting results of several reputed companies. The objectors are unable to point out even a single instance where KFin Technologies has been indicted. In the present case, the e-voting exercise was also supervised by a team of technical experts, including Mr. M. Krishna and Mr. Ch E. Sai Prasad, Assistant Directors, CFSL, Hyderabad.35. The trustees/AMC and KFin Technologies have disputed paragraph 5 of the report stating that database monitoring logs were provided to the forensic experts. However, we need not go into the said aspect, for, in our opinion, paragraph 4 of the report is being misread and misunderstood by the objectors. It is correct that for some of the votes, the IP address 10.41.3.252 as captured was that of the Load Balancing Server of KFin Technologies. However, the report also records that KFin Technologies has explained that due to technical or implementation issues it was able to capture public IP address of e- votes after 1231 hours on 26th December, 2020. Paragraph 4 states that details of the customers, scheme-wise, where the same IP address has been logged for multiple e-votes, had been provided to the forensic experts. Clearly, the details of each customer /unitholder where one or same IP address was used for casting multiple votes was furnished. It is not the case of the objectors that any of the unitholders/voters have complained of impersonation or misuse of their identity. KFin Technologies has explained that in total 1,17,416 votes were registered in the system. The source IP address was captured in 88,293 cases. In 29,123 cases, votes with Load Balancing Server IP was captured in the IIS logs for which end-user IP report in the firewall between 26th December 2020 (09:00 a.m. till 12:31 p.m.) was available. They have, by way of data flow diagram, elucidated and explained the e-voting platform. The e-voting platform on valid login would issue a one-time password which would be sent via e-mail or SMS to the unitholder. This one-time password was randomly and automatically generated without human intervention. The unitholder was required to enter the one-time password and thereupon cast their vote. After the vote was cast, acknowledgement/ confirmation e-mail/SMS was sent to the registered voters ID/mobile number. Further, the data stored in the database was one-way encrypted. E-voting window was not open and the application would not allow the user or the unitholder to enter any details. Importantly, the Observers report mentions that before the e-voting, a thorough examination of the system was done by the experts. The report (Annexure-11) records that to check, 0.5% of the votes were selected randomly and on verification, e-logs were matched with the master database. Further on examination and analysis of the event logs of the two web servers no abnormal events were witnessed, indicating normal functionality of the system. We are satisfied with the explanation given by the trustees/AMC and KFin Technologies with reference to the observations in the report of the forensic experts from CFSL.37. At the first blush there does appear to be merit in the contention, albeit the notice for e-voting and meeting of the unitholders has to be read in entirety. We must also account for the history leading to the e-voting process. It is but obvious that the trustees had already taken a decision to wind up the six schemes. Regulation 39(3) requires the trustees to disclose the circumstances leading to winding up of the schemes. The trustees accordingly, in the notice for e-voting and meeting of the unitholders, had furnished their explanation and reason for winding up of the six schemes37. At the first blush there does appear to be merit in the contention, albeit the notice for e-voting and meeting of the unitholders has to be read in entirety. We must also account for the history leading to the e-voting process. It is but obvious that the trustees had already taken a decision to wind up the six schemes. Regulation 39(3) requires the trustees to disclose the circumstances leading to winding up of the schemes. The trustees accordingly, in the notice for e-voting and meeting of the unitholders, had furnished their explanation and reason for winding up of the six schemesand had also stated as under:The Trustee is providing the following explanation to help Unitholders assess the pros and cons of the voting options available to them. There can be no guarantee that the outcomes will be exactly as the Trustee expects. We urge Unitholders to carefully consider the following and seek appropriate advice and guidance in making this important decision.The controversy relating to winding up of the six mutual fund schemes has been in the public domain for a long time. The court would also take judicial notice that the unitholders were aware and conscious of the litigation against the winding up, including the procedure. At the same time, many in the general public may not be fully aware of the commercial considerations and niceties relating to mutual funds and debt securities market. This is the precise reason why most people do not make direct investment in the securities market and prefer mutual funds. Further, the trustees had earlier vide document No. 16 (enclosed at pages 1253 to 1255 in the appeal arising out of Special Leave Petition (C) No. 14288 of 2020) communicated the reasons for their decision to wind up the six schemes. The relevant portions this notice read as under:The unprecedented lockdown of the Indian economy in the wake of Covid-19 has impacted livelihoods and businesses across the country. Despite several measures by the Reserve Bank of India (RBI), the liquidity in certain segments of the corporate bond markets has fallen-off dramatically and has remained low for an extended period.In this scenario, mutual funds are facing unprecedented liquidity challenges due to a variety of factors – rising redemption pressures due to heightened risk aversion, mark to market losses following a spike in yields and lower trading volumes in the bond markets. These factors have together caused a significant and worsening liquidity crunch for open-end mutual fund schemes investing in corporate credits across the credit rating spectrum.Important Announcement: In this situation, we find that the ability to liquidate assets at a reasonable price to fund redemptions for the schemes identified below is under severe stress and it is no longer possible for certain schemes of Franklin Templeton to generate adequate liquidity to fund daily redemptions. Accordingly, we wish to inform you, that the Trustees of Franklin Templeton Mutual Fund in India have, after careful analysis and review of the recommendations submitted by Franklin Templeton AMC, and in close consultation with the investment team, voluntarily decided to wind up its suite of six yield-oriented fixed income funds, post cut-off time from April 23, 2020 (refer to Annexure I- Notice to Investors) as they are of the considered opinion that an event has occurred, which requires these schemes to be wound up. This decision has been taken in light of the severe market dislocation illiquidity caused by the Coid-19 pandemic, and in order to protect value for investors via managed sale of the portfolio. The list of schemes being wound up is as follows:1. Franklin India Ultra Short Bond Fund (FIUBF)2. Franklin India Short Term Income Fund (FISTIP)3. Franklin India Credit Risk Fund (FICRF)4. Franklin India Low Duration Fund (FILDF)5. Franklin India Dynamic Accrual Fund (FIDA)6. Franklin India Income Opportunities Fund (FIIOF)Factors leading to Winding-Up: The impact schemes of Franklin Templeton were able to meet their redemption obligationacross all market conditions and even during the initial phase of the Covid-19 pandemic lockdown despite redemption pressures and increased market illiquidity. However, the extension of the lockdown has heightened redemption volumes and reduced inflows to unsustainable levels. The schemes even resorted to borrowings within permissible limits in line with market practice to fund redemptions during this time but given the situation, we felt that it would not be prudent to leverage the schemes further. While the respective valuations of these schemes have been marked promptly and conservatively thus far, continuous redemption pressures in the backdrop of a severe dislocation in the corporate bond markets would place great strain on our ability to ensure equitable treatment of all investors.Further, given the current unprecedented situation even the committed borrowing lines maintained by the funds are inadequate to meet the demand for sustained narrowing across the schemes.We explored the possibility of suspending redemptions until market conditions stabilize without winding up the schemes. However, conditions for such a suspension under the current regulatory framework, such as a maximum suspension period of 10 working days (in 90 days) and the requirement to honour redemptions up to INR 2 lakh per day per investor, rendered this approach unviable to meet the severe sustained impact of the current crisis (refer Annexure III-FAQ for options considered besides winding up).The Trustees were hence left with no option except to initiate the winding up of the schemes with a view to protect the interests of unitholders, Winding up the schemes was determined to be the best way to ensure a fair and equitable distribution of monies to unitholders while minimizing erosion in value for investors.It is also the contention of the trustees that they were required to justify and explain the reasons for winding up of the six schemes and hence the notice was worded in this manner. The notice had also informed the investors that there would be suspension of subscription and redemption post the cut-off time from 23rd April, 2020. All Systematic Investment Plans, Systematic Transfer Plans and Systematic Withdrawal Plans into and from the above- mentioned funds stood cancelled post the cut off time from 23rd April, 2020. The notice had also furnished information and clarification regarding distribution of monies from the Fund Assets, inter alia stating that following the decision to wind up the six schemes, the trustees would proceed for orderly realization and liquidation of the underlying assets with the objective of preserving value for unitholders. Their endeavour would be to liquidate the portfolio holdings at the earliest opportunity, to enable an equitable exit for all investors in the unprecedented circumstances. We do not think, in the facts of the present case, the notice for e-voting and the contents would justify annulling the consent given by the unitholders for the winding up of the six schemes.38. We will now refer to and deal with some of the other objections to the consent/e-voting results which, in our opinion, are merely assertions, or at best minor irregularities, which do not have any substance.39. These contentions are mere nitpicks and would hardly justify rejection of the consent to winding up which has been expressed by more than 95% of the unitholders who had voted. Mr. T.S. Krishnamurthy was appointed as the Observer by SEBI in view of the directions given by this Court to ensure fairness and transparency. He was not to conduct the meeting or the process, but only to oversee and give his report on the entire process. Being an independent observer, his observations and comments vide the report would help resolve any debate, doubt or questions. The observer is the eyes and ears, which the Court could rely. Mr. T.S. Krishnamurthy in his report has mentioned that many calls, messages and e-mails were received by him expressing difficulty in voting, non-receipt of passwords and difficulty in reaching the helplines. He had, therefore, conveyed these messages to the trustees and KFin Technologies. Based on the response, the number of helplines were increased. Missed calls were returned and answered. The Observers report vide Annexure-10 refers to the complaints/calls made to Mr. T.S. Krishnamurthy and also records that these were redressed. No unitholder has expressed or stated that they could not vote or their queries were not answered. Absence or lack of digital signatures on the notice is a technical and not a substantive objection. Moreover, the trustees have explained that in view of the objection raised by the Technical Assistance Team, Mr. Alok Sethi had digitally signed a copy of the notice for the purpose of the record. This digitally signed notice was made available to the Technical Assistance Team. M/s. J. Sagar and Associates and KFin Technologies had been earlier appointed by the trustees possibly for compliance of clause (c) to Regulation 18(15) of the Regulations. Agreements earlier in point of time with KFin Technologies and M/s. J. Sagar and Associates would not, in any manner, be an irregularity. Further, Mr. T.S. Krishnamurthy was not to himself count the votes as this exercise had to be undertaken essentially by the Scrutiniser, M/s. J. Sagar and Associates. To conduct the e-voting, for the purpose of consent, the trustees had engaged services of KFin Technologies and M/s. J. Sagar and Associates. M/s J. Sagar and Associates being a law firm, it is obvious, are not experts in information technology. Necessarily, they would rely on the data and details made available by KFin Technologies. We have already dealt with the question of integrity and authenticity of the e-voting data and that it was checked by two technical experts who are Assistant Directors at CFSL, Hyderabad. The comments of the forensic experts have been examined and considered in detail.40. In the present case, we do not think the procedure prescribed by Regulation 4117 is required to be followed as the trustees themselves have stated that the process of winding up, which would include liquidation of the securities and distribution/payment to the unitholders, should be undertaken by a third party. The objectors had also made similar submissions.41. As per the consolidated affidavit filed by the trustees and AMC, securities equivalent to more than Rs.17,000 crores are yet to be realised. This is a substantial amount. The trustees and SEBI were not at ad idem and have given different time frames within which they felt the securities can be liquidated. However, both the trustees and SEBI, have stated in unison that the liquidation/realisation has to be proceeded with caution, as an attempt to offload the securities in haste can result in losses which would be detrimental and cause reduction in realisable value.We would not like to enter into this debate or give any specific directions but would observe that M/s. SBI Funds Management Pvt. Ltd. shall follow the best effort principle so as to ensure expeditious and timely payment to the unitholders and assure the best possible liquidation value of the assets/ securities to the unitholders. However, we have no hesitation in directing that distribution/disbursement of funds to the unitholders can be made in tranches without waiting for liquidation of all the securities/assets.42. In view of the aforesaid discussion, we hold that for the purpose of clause (c) to Regulation 18(15), consent of the unitholders would mean consent by majority of the unitholders who have participated in the poll, and not consent of majority of all the unitholders of the scheme. In view of the findings and reasons stated above, we reject the objections to poll results and hold that the unitholders of the six schemes have given their consent by majority to windup the six schemes. | 1 | 10,754 | 5,782 | ### 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:
to be the best way to ensure a fair and equitable distribution of monies to unitholders while minimizing erosion in value for investors. It is also the contention of the trustees that they were required to justify and explain the reasons for winding up of the six schemes and hence the notice was worded in this manner. The notice had also informed the investors that there would be suspension of subscription and redemption post the cut-off time from 23rd April, 2020. All Systematic Investment Plans, Systematic Transfer Plans and Systematic Withdrawal Plans into and from the above- mentioned funds stood cancelled post the cut off time from 23rd April, 2020. The notice had also furnished information and clarification regarding distribution of monies from the Fund Assets, inter alia stating that following the decision to wind up the six schemes, the trustees would proceed for orderly realization and liquidation of the underlying assets with the objective of preserving value for unitholders. Their endeavour would be to liquidate the portfolio holdings at the earliest opportunity, to enable an equitable exit for all investors in the unprecedented circumstances. We do not think, in the facts of the present case, the notice for e-voting and the contents would justify annulling the consent given by the unitholders for the winding up of the six schemes. 38. We will now refer to and deal with some of the other objections to the consent/e-voting results which, in our opinion, are merely assertions, or at best minor irregularities, which do not have any substance. These contentions are: (i) Mr. T.S. Krishnamurthys appointment as the Observer by SEBI vide its letter dated 18th December, 2020 was made public belatedly on 26th December, 2020; (ii) Notice for e-meeting dated 6th December, 2020 issued under the name of Mr. Alok Sethi, Director of the Trustees, was not digitally signed by him. However, Mr. Alok Sethi had digitally signed the notice subsequently on 28th December, 2020; (iii) M/s. J. Sagar and Associates should not have been appointed as the Scrutiniser to oversee the conduct of the e-voting and the Observer Mr. T.S. Krishnamurthy should have acted as the Scrutinser; (iv) KFin Technologies was appointed for providing electronic platform for e-voting vide meeting of the Board of Directors of the trustees dated 29thApril, 2020 and thereafter the agreement dated 8th June, 2020 was entered into, but this agreement was digitally signed on 30th June, 2020. Similarly, M/s. J. Sagar and Associates, the law firm, was appointed as the Scrutiniser by letter of engagement dated 13th May, 2020 and the law firm had conveyed its willingness to act as the Scrutiniser. However, the resolution by the Board of Directors of the trustees was approved by circulation on 21st May, 2020. Further addendum to their letter of engagement was issued on 22nd December, 2020; and (v) Notices for e-voting did not specify with clarity whether e-voting was possible on any technology platform, viz. laptop/ desktop or smartphone, etc., though such facility was available. 39. These contentions are mere nitpicks and would hardly justify rejection of the consent to winding up which has been expressed by more than 95% of the unitholders who had voted. Mr. T.S. Krishnamurthy was appointed as the Observer by SEBI in view of the directions given by this Court to ensure fairness and transparency. He was not to conduct the meeting or the process, but only to oversee and give his report on the entire process. Being an independent observer, his observations and comments vide the report would help resolve any debate, doubt or questions. The observer is the eyes and ears, which the Court could rely. Mr. T.S. Krishnamurthy in his report has mentioned that many calls, messages and e-mails were received by him expressing difficulty in voting, non-receipt of passwords and difficulty in reaching the helplines. He had, therefore, conveyed these messages to the trustees and KFin Technologies. Based on the response, the number of helplines were increased. Missed calls were returned and answered. The Observers report vide Annexure-10 refers to the complaints/calls made to Mr. T.S. Krishnamurthy and also records that these were redressed. No unitholder has expressed or stated that they could not vote or their queries were not answered. Absence or lack of digital signatures on the notice is a technical and not a substantive objection. Moreover, the trustees have explained that in view of the objection raised by the Technical Assistance Team, Mr. Alok Sethi had digitally signed a copy of the notice for the purpose of the record. This digitally signed notice was made available to the Technical Assistance Team. M/s. J. Sagar and Associates and KFin Technologies had been earlier appointed by the trustees possibly for compliance of clause (c) to Regulation 18(15) of the Regulations. Agreements earlier in point of time with KFin Technologies and M/s. J. Sagar and Associates would not, in any manner, be an irregularity. Further, Mr. T.S. Krishnamurthy was not to himself count the votes as this exercise had to be undertaken essentially by the Scrutiniser, M/s. J. Sagar and Associates. To conduct the e-voting, for the purpose of consent, the trustees had engaged services of KFin Technologies and M/s. J. Sagar and Associates. M/s J. Sagar and Associates being a law firm, it is obvious, are not experts in information technology. Necessarily, they would rely on the data and details made available by KFin Technologies. We have already dealt with the question of integrity and authenticity of the e-voting data and that it was checked by two technical experts who are Assistant Directors at CFSL, Hyderabad. The comments of the forensic experts have been examined and considered in detail. 40. In the present case, we do not think the procedure prescribed by Regulation 4117 is required to be followed as the trustees themselves have stated that the process of winding up, which would include liquidation of the securities and distribution/payment to the unitholders, should be undertaken by a third party. The objectors had also made similar submissions.
### Response:
1
### Explanation:
monies to unitholders while minimizing erosion in value for investors.It is also the contention of the trustees that they were required to justify and explain the reasons for winding up of the six schemes and hence the notice was worded in this manner. The notice had also informed the investors that there would be suspension of subscription and redemption post the cut-off time from 23rd April, 2020. All Systematic Investment Plans, Systematic Transfer Plans and Systematic Withdrawal Plans into and from the above- mentioned funds stood cancelled post the cut off time from 23rd April, 2020. The notice had also furnished information and clarification regarding distribution of monies from the Fund Assets, inter alia stating that following the decision to wind up the six schemes, the trustees would proceed for orderly realization and liquidation of the underlying assets with the objective of preserving value for unitholders. Their endeavour would be to liquidate the portfolio holdings at the earliest opportunity, to enable an equitable exit for all investors in the unprecedented circumstances. We do not think, in the facts of the present case, the notice for e-voting and the contents would justify annulling the consent given by the unitholders for the winding up of the six schemes.38. We will now refer to and deal with some of the other objections to the consent/e-voting results which, in our opinion, are merely assertions, or at best minor irregularities, which do not have any substance.39. These contentions are mere nitpicks and would hardly justify rejection of the consent to winding up which has been expressed by more than 95% of the unitholders who had voted. Mr. T.S. Krishnamurthy was appointed as the Observer by SEBI in view of the directions given by this Court to ensure fairness and transparency. He was not to conduct the meeting or the process, but only to oversee and give his report on the entire process. Being an independent observer, his observations and comments vide the report would help resolve any debate, doubt or questions. The observer is the eyes and ears, which the Court could rely. Mr. T.S. Krishnamurthy in his report has mentioned that many calls, messages and e-mails were received by him expressing difficulty in voting, non-receipt of passwords and difficulty in reaching the helplines. He had, therefore, conveyed these messages to the trustees and KFin Technologies. Based on the response, the number of helplines were increased. Missed calls were returned and answered. The Observers report vide Annexure-10 refers to the complaints/calls made to Mr. T.S. Krishnamurthy and also records that these were redressed. No unitholder has expressed or stated that they could not vote or their queries were not answered. Absence or lack of digital signatures on the notice is a technical and not a substantive objection. Moreover, the trustees have explained that in view of the objection raised by the Technical Assistance Team, Mr. Alok Sethi had digitally signed a copy of the notice for the purpose of the record. This digitally signed notice was made available to the Technical Assistance Team. M/s. J. Sagar and Associates and KFin Technologies had been earlier appointed by the trustees possibly for compliance of clause (c) to Regulation 18(15) of the Regulations. Agreements earlier in point of time with KFin Technologies and M/s. J. Sagar and Associates would not, in any manner, be an irregularity. Further, Mr. T.S. Krishnamurthy was not to himself count the votes as this exercise had to be undertaken essentially by the Scrutiniser, M/s. J. Sagar and Associates. To conduct the e-voting, for the purpose of consent, the trustees had engaged services of KFin Technologies and M/s. J. Sagar and Associates. M/s J. Sagar and Associates being a law firm, it is obvious, are not experts in information technology. Necessarily, they would rely on the data and details made available by KFin Technologies. We have already dealt with the question of integrity and authenticity of the e-voting data and that it was checked by two technical experts who are Assistant Directors at CFSL, Hyderabad. The comments of the forensic experts have been examined and considered in detail.40. In the present case, we do not think the procedure prescribed by Regulation 4117 is required to be followed as the trustees themselves have stated that the process of winding up, which would include liquidation of the securities and distribution/payment to the unitholders, should be undertaken by a third party. The objectors had also made similar submissions.41. As per the consolidated affidavit filed by the trustees and AMC, securities equivalent to more than Rs.17,000 crores are yet to be realised. This is a substantial amount. The trustees and SEBI were not at ad idem and have given different time frames within which they felt the securities can be liquidated. However, both the trustees and SEBI, have stated in unison that the liquidation/realisation has to be proceeded with caution, as an attempt to offload the securities in haste can result in losses which would be detrimental and cause reduction in realisable value.We would not like to enter into this debate or give any specific directions but would observe that M/s. SBI Funds Management Pvt. Ltd. shall follow the best effort principle so as to ensure expeditious and timely payment to the unitholders and assure the best possible liquidation value of the assets/ securities to the unitholders. However, we have no hesitation in directing that distribution/disbursement of funds to the unitholders can be made in tranches without waiting for liquidation of all the securities/assets.42. In view of the aforesaid discussion, we hold that for the purpose of clause (c) to Regulation 18(15), consent of the unitholders would mean consent by majority of the unitholders who have participated in the poll, and not consent of majority of all the unitholders of the scheme. In view of the findings and reasons stated above, we reject the objections to poll results and hold that the unitholders of the six schemes have given their consent by majority to windup the six schemes.
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SUGANDHI (dead) by Lrs. & ANR Vs. P. RAJKUMAR REP. BY HIS POWER AGENT IMAM OLI | the Order dated 19.02.2019 passed by the High Court of Judicature at Madras, Madurai Bench, in C.R.P.(NPD)(MD)No.2609 of 2018 whereby the High Court has dismissed the revision petition filed by the appellants challenging the refusal to entertain an application under Order 8 Rule 1A(3) of the Code of Civil Procedure, 1908 (for short C.P.C.) seeking leave of the court to produce additional documents. 3. The appellants herein are the defendants in the suit, O.S. No.257 of 2014, on the file of the Principal Sub-Judge, Pudukottai, and the respondent is the plaintiff. For the sake of convenience, parties are referred to in their respective positions before the Trial Court. The plaintiff filed the suit for injunction alleging that the defendants are attempting to grab the suit schedule property. When the suit was posted for the evidence of the defendants, they filed an application seeking leave to produce certain documents. It was contended that they had recently traced these documents related to the suit property and that was why they could not produce them along with the written statement. This application was opposed by the plaintiff. The Trial Court by its Order dated 11th October, 2018 dismissed the application. As noticed above, the High Court has confirmed the order of the Trial Court. 4. Mr. R. Anand Padmanabhan, learned counsel appearing for the appellants-defendants, submits that the said documents are necessary for just determination of the case. Due to certain unavoidable circumstances, the same could not be produced by the defendants along with the written statement. It was argued that the courts below have rejected the application on flimsy grounds. He submits that no prejudice whatsoever would be caused to the plaintiff by production of these documents. 5. On the other hand, Mr. S. Mahendran, learned counsel appearing for the respondent-plaintiff, has supported the impugned orders of the courts below. It is argued that the defendants are not entitled as a matter of right to produce the documents, particularly when the plaintiff has concluded his evidence. 6. We have given our anxious consideration to the contentions of the learned counsel of the parties. 7. Rule 1A of Order 8 of C.P.C. provides the procedure for production of documents by the defendant which is as under: 1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.— (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to document— (a) produced for the cross-examination of the plaintiffs witnesses, or (b) handed over to a witness merely to refresh his memory Sub-rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit. However, this will not apply to a document produced for crossexamination of the plaintiffs witnesses or handed over to a witness merely to refresh his memory. Sub-rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule (1) of Order 13 of C.P.C. again makes it mandatory for the parties to produce their original documents before settlement of issues. 8. Sub-rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the defendant 9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3). 10. Coming to the present case, the defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It cannot be disputed that these documents are necessary for arriving at a just decision in the suit. We are of the view that the courts below ought to have granted leave to produce these documents. | 1[ds]Sub-rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit. However, this will not apply to a document produced for crossexamination of the plaintiffs witnesses or handed over to a witness merely to refresh his memory. Sub-rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule (1) of Order 13 of C.P.C. again makes it mandatory for the parties to produce their original documents before settlement of issues.8. Sub-rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the defendant9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).10. Coming to the present case, the defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It cannot be disputed that these documents are necessary for arriving at a just decision in the suit. We are of the view that the courts below ought to have granted leave to produce these documents. | 1 | 1,140 | 480 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the Order dated 19.02.2019 passed by the High Court of Judicature at Madras, Madurai Bench, in C.R.P.(NPD)(MD)No.2609 of 2018 whereby the High Court has dismissed the revision petition filed by the appellants challenging the refusal to entertain an application under Order 8 Rule 1A(3) of the Code of Civil Procedure, 1908 (for short C.P.C.) seeking leave of the court to produce additional documents. 3. The appellants herein are the defendants in the suit, O.S. No.257 of 2014, on the file of the Principal Sub-Judge, Pudukottai, and the respondent is the plaintiff. For the sake of convenience, parties are referred to in their respective positions before the Trial Court. The plaintiff filed the suit for injunction alleging that the defendants are attempting to grab the suit schedule property. When the suit was posted for the evidence of the defendants, they filed an application seeking leave to produce certain documents. It was contended that they had recently traced these documents related to the suit property and that was why they could not produce them along with the written statement. This application was opposed by the plaintiff. The Trial Court by its Order dated 11th October, 2018 dismissed the application. As noticed above, the High Court has confirmed the order of the Trial Court. 4. Mr. R. Anand Padmanabhan, learned counsel appearing for the appellants-defendants, submits that the said documents are necessary for just determination of the case. Due to certain unavoidable circumstances, the same could not be produced by the defendants along with the written statement. It was argued that the courts below have rejected the application on flimsy grounds. He submits that no prejudice whatsoever would be caused to the plaintiff by production of these documents. 5. On the other hand, Mr. S. Mahendran, learned counsel appearing for the respondent-plaintiff, has supported the impugned orders of the courts below. It is argued that the defendants are not entitled as a matter of right to produce the documents, particularly when the plaintiff has concluded his evidence. 6. We have given our anxious consideration to the contentions of the learned counsel of the parties. 7. Rule 1A of Order 8 of C.P.C. provides the procedure for production of documents by the defendant which is as under: 1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.— (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to document— (a) produced for the cross-examination of the plaintiffs witnesses, or (b) handed over to a witness merely to refresh his memory Sub-rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit. However, this will not apply to a document produced for crossexamination of the plaintiffs witnesses or handed over to a witness merely to refresh his memory. Sub-rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule (1) of Order 13 of C.P.C. again makes it mandatory for the parties to produce their original documents before settlement of issues. 8. Sub-rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the defendant 9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3). 10. Coming to the present case, the defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It cannot be disputed that these documents are necessary for arriving at a just decision in the suit. We are of the view that the courts below ought to have granted leave to produce these documents.
### Response:
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### Explanation:
Sub-rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit. However, this will not apply to a document produced for crossexamination of the plaintiffs witnesses or handed over to a witness merely to refresh his memory. Sub-rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule (1) of Order 13 of C.P.C. again makes it mandatory for the parties to produce their original documents before settlement of issues.8. Sub-rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the defendant9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).10. Coming to the present case, the defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It cannot be disputed that these documents are necessary for arriving at a just decision in the suit. We are of the view that the courts below ought to have granted leave to produce these documents.
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Oriental Insurance Co. Ltd Vs. Dharam Chand | Aftab Alam, J. 1. This appeal arises from a motor accident claim. 2. In this case, the premium cheque for the insurance policy was received by the appellant, the insurance company, on May 7, 1998 at 4.00 pm and a cover note was issued at the same time. In columns 3 & 4 of the cover note, however, it was stated that the insurance would commence from May 8, 1998 and expire on May 7, 1999. 3. The motor accident in regard to which the claim case was filed took place at 8:30 pm on May 7, 1998. 4. The insurance company sought to disown its liability on the plea that the accident took place before the commencement of the insurance as indicated in the cover note. But, both the Tribunal and the High Court, turned down the plea and held the insurance company liable to pay the compensation amount. 5. When this appeal was taken up, counsel for the insurance company very fairly stated that since the cheque for the premium amount was received by the company at 4:00 pm on May 7, 1998, the insurance must be deemed to have commenced from that time and four hours later when the vehicle met with the accident, the owner must be deemed to have been covered by the insurance policy. We appreciate the fairness shown by the counsel for the insurance company. 6. | 0[ds]4. The insurance company sought to disown its liability on the plea that the accident took place before the commencement of the insurance as indicated in the cover note. But, both the Tribunal and the High Court, turned down the plea and held the insurance company liable to pay the compensation amount.When this appeal was taken up, counsel for the insurance company very fairly stated that since the cheque for the premium amount was received by the company at 4:00 pm on May 7, 1998, the insurance must be deemed to have commenced from that time and four hours later when the vehicle met with the accident, the owner must be deemed to have been covered by the insurance policy. We appreciate the fairness shown by the counsel for the insurance company. | 0 | 264 | 146 | ### 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:
Aftab Alam, J. 1. This appeal arises from a motor accident claim. 2. In this case, the premium cheque for the insurance policy was received by the appellant, the insurance company, on May 7, 1998 at 4.00 pm and a cover note was issued at the same time. In columns 3 & 4 of the cover note, however, it was stated that the insurance would commence from May 8, 1998 and expire on May 7, 1999. 3. The motor accident in regard to which the claim case was filed took place at 8:30 pm on May 7, 1998. 4. The insurance company sought to disown its liability on the plea that the accident took place before the commencement of the insurance as indicated in the cover note. But, both the Tribunal and the High Court, turned down the plea and held the insurance company liable to pay the compensation amount. 5. When this appeal was taken up, counsel for the insurance company very fairly stated that since the cheque for the premium amount was received by the company at 4:00 pm on May 7, 1998, the insurance must be deemed to have commenced from that time and four hours later when the vehicle met with the accident, the owner must be deemed to have been covered by the insurance policy. We appreciate the fairness shown by the counsel for the insurance company. 6.
### Response:
0
### Explanation:
4. The insurance company sought to disown its liability on the plea that the accident took place before the commencement of the insurance as indicated in the cover note. But, both the Tribunal and the High Court, turned down the plea and held the insurance company liable to pay the compensation amount.When this appeal was taken up, counsel for the insurance company very fairly stated that since the cheque for the premium amount was received by the company at 4:00 pm on May 7, 1998, the insurance must be deemed to have commenced from that time and four hours later when the vehicle met with the accident, the owner must be deemed to have been covered by the insurance policy. We appreciate the fairness shown by the counsel for the insurance company.
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Lalit Mohan Deb & Ors Vs. Union Of India & Ors | be placed in the scale given to the selection grade i.e. Rupees 225-10-325-15-400/- a relief which the courts could, obviously, not grant. It is for the Administration to determine how many Assistants should be in the Secretariat and what should be their scale of pay. The normal scale of Assistants is Rs. 150-5-195-EB-5-250/. It would not be possible for a court to direct that that scale be revised and something more be given to the Assistants. That is not the function of the courts.7. Mr. Sen on behalf of the appellants did not challenge the right of the Administration to have scales of pay in the same category of posts. Provision of a selection grade in the same category of posts is not a new thing. This has been recognised by the Central Pay Commission in para 10 of Chapter X of the Report. The Commission observed "with the object of providing incentive to employees who have no outlets or very limited outlets for promotion to higher posts, we are recommending in a number of cases that a certain percentage of the posts in the grade-usually 10 per cent-should carry a somewhat higher scale of pay even though there will be no change in the duties. Following the terminology in vogue we have described these posts as selection grade posts. "It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency. In the present case it is explained in the reply affidavit filed on behalf of the Administration that the basis for selection of some of the Assistants to the higher scale is seniority-cum-merit which is one of the two or three principles of promotion widely accepted in the Administration and duly recognised by the Pay Commission in Chapter XXXXV of the Report. Mr. Sen was, therefore, quite right in not challenging the right of the Administration to create a selection grade in the category of Assistants.8. Mr. Sen, however challenged the existing rule of 1963 because it no where uses the word Selection grade. Under the rule in respect of the Assistant, two scales are mentioned as follows:CHARTAnd though 25% post in the cadre of Assistants are given the higher scale of pay it is not stated therein as to who are the lucky Assistants who are to get this higher scale of pay. This, in his submission, is bound to lead to arbitrary selection which would violate the protection of Articles 14 and 16 of the Constitution. It is true that the rule by itself does not say that these 25% comprise selection grade posts but there is hardly any doubt that it refers to selection posts. This will be clear from the context. In the column "Existing scale of pay" the two grades are shown and against these two grades the revised scale of pay are also shown. These 75% of the posts of Assistants who were prior to 1-4-1961 in the grades of Rs. 80- Rs. 180/- are placed in the revised scale of Rs.150-250/- 25% of the posts whose existing scale of pay was Rs. 150 - Rs. 300/- are to be given after 1.4.1961 the scale of Rs. 225/- Rs.400/- Now the 25% of the posts whose exiting scale prior to 1-4-1961 was Rs. 150-10-300/- actually comprised what, was known as the selection grade when it was first created as shown above, on 1-7-1959. The posts of the Assistants who were placed in the selection grade of Rs. 150-10-300/- with from 1-7-1959 continue to be the posts for which a revision of Rs. 225 - Rs. 400/- was made in the rules of 1963. Therefore, it one reads the revision made with effect from 1-7-1959 together with the revision from 1-4-1961 one feels no doubt that the higher revised scale of pay in the 1963 Rules was for the 25% posts in the selection grade of Assistants.9. It is true that there are no statutory rules regulating the selection of Assistants to the selection grade. But the absence of such rules is no bar to the Administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with rule on the subject. The point was considered by this court in Sant Ram Sharma v. State of Rajasthan, 1968 (1) SCR 111 = (AIR 1967 SC 1910 ) and it was declared that in the absence of statutory rules regulating promotion to selection grade posts the Government is competent to issue administrative instructions as long as those instructions are not inconsistent with the rules already framed Mr. Sens argument is based on the absence of any statutory rule in this respect. Therefore, there is no question of any inconsistency with existing rule. In their affidavit in reply the Administration has stated that the appointment to the selection grade is made on the basis of seniority- cum-merit based upon a test open to all Assistants carried out in accordance with a prescribed procedure. It appears that there is a Departmental Promotion Committee whose business it is to prepare a promotion list of such Assistants who after passing the necessary tests are to be appointed in the selection grade. It is on the basis of this selection that respondents 4 to 20 and some others were appointed in the selection grade after they passed the tests and were selected by the Departmental Promotion Committee. The appellants did not appear for these tests and, therefore, can have no complaint about the selection. In fact they have not challenged the selection and appointment of respondents 4 to 20 in the selection grade posts. | 0[ds]Since we are satisfied that there is no merit in the appeal it is not necessary to consider the preliminary objection.6. The Writ Petition was really misconceived. There were 101 posts of Assistants in the Secretariat Prior to 1-7-1959 their pay scale was Rupees 80-4-160-5-180. All the Assistants were entitled to this scale. When the scale was revised with effect from 1-7-1959 two scales wereother words 25% of the posts were placed in the selection grade in the scale of Rs. 150-10-300/- and the rest continued in their old scale. Later when the 1963 rules came into effect from 1-4-1961 all those in the selection grade were placed in the scale of Rs. 225-10-325-15-400 while the rest of them who were in the 80-1180 grade were given the scale of Rs. 150-5-195-EB-5-250. If the contention is that there should be a uniform scale of pay that would only mean that the Assistants who were placed in the selection grade should not be allowed that grade but, like the appellants, should be placed in the uniform grade of Assistants in the scale of Rs. 150-5-195-EB-5-250/- That would be the only result of the contention of the appellants. They gain nothing thereby except to drag down the other Assistants who have been placed in the selection grade. Being aware of this situation, the appellants asked that all the Assistants should be placed in the scale given to the selection grade i.e. Rupees 225-10-325-15-400/- a relief which the courts could, obviously, not grant. It is for the Administration to determine how many Assistants should be in the Secretariat and what should be their scale of pay. The normal scale of Assistants is Rs. 150-5-195-EB-5-250/. It would not be possible for a court to direct that that scale be revised and something more be given to the Assistants. That is not the function of the courts.7. Mr. Sen on behalf of the appellants did not challenge the right of the Administration to have scales of pay in the same category of posts. Provision of a selection grade in the same category of posts is not a new thing. This has been recognised by the Central Pay Commission in para 10 of Chapter X of the Report. The Commission observed "with the object of providing incentive to employees who have no outlets or very limited outlets for promotion to higher posts, we are recommending in a number of cases that a certain percentage of the posts in the grade-usually 10 per cent-should carry a somewhat higher scale of pay even though there will be no change in the duties. Following the terminology in vogue we have described these posts as selection grade posts. "It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency. In the present case it is explained in the reply affidavit filed on behalf of the Administration that the basis for selection of some of the Assistants to the higher scale is seniority-cum-merit which is one of the two or three principles of promotion widely accepted in the Administration and duly recognised by the Pay Commission in Chapter XXXXV of the Report. Mr. Sen was, therefore, quite right in not challenging the right of the Administration to create a selection grade in the category ofthough 25% post in the cadre of Assistants are given the higher scale of pay it is not stated therein as to who are the lucky Assistants who are to get this higher scale of pay. This, in his submission, is bound to lead to arbitrary selection which would violate the protection of Articles 14 and 16 of the Constitution. It is true that the rule by itself does not say that these 25% comprise selection grade posts but there is hardly any doubt that it refers to selection posts. This will be clear from the context. In the column "Existing scale of pay" the two grades are shown and against these two grades the revised scale of pay are also shown. These 75% of the posts of Assistants who were prior to 1-4-1961 in the grades of Rs. 80- Rs. 180/- are placed in the revised scale of Rs.150-250/- 25% of the posts whose existing scale of pay was Rs. 150 - Rs. 300/- are to be given after 1.4.1961 the scale of Rs. 225/- Rs.400/- Now the 25% of the posts whose exiting scale prior to 1-4-1961 was Rs. 150-10-300/- actually comprised what, was known as the selection grade when it was first created as shown above, on 1-7-1959. The posts of the Assistants who were placed in the selection grade of Rs. 150-10-300/- with from 1-7-1959 continue to be the posts for which a revision of Rs. 225 - Rs. 400/- was made in the rules of 1963. Therefore, it one reads the revision made with effect from 1-7-1959 together with the revision from 1-4-1961 one feels no doubt that the higher revised scale of pay in the 1963 Rules was for the 25% posts in the selection grade of Assistants.9. It is true that there are no statutory rules regulating the selection of Assistants to the selection grade. But the absence of such rules is no bar to the Administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with rule on the subject. The point was considered by this court in Sant Ram Sharma v. State of Rajasthan, 1968 (1) SCR 111 = (AIR 1967 SC 1910 ) and it was declared that in the absence of statutory rules regulating promotion to selection grade posts the Government is competent to issue administrative instructions as long as those instructions are not inconsistent with the rules already framed Mr. Sens argument is based on the absence of any statutory rule in this respect. Therefore, there is no question of any inconsistency with existing rule. In their affidavit in reply the Administration has stated that the appointment to the selection grade is made on the basis of seniority- cum-merit based upon a test open to all Assistants carried out in accordance with a prescribed procedure. It appears that there is a Departmental Promotion Committee whose business it is to prepare a promotion list of such Assistants who after passing the necessary tests are to be appointed in the selection grade. It is on the basis of this selection that respondents 4 to 20 and some others were appointed in the selection grade after they passed the tests and were selected by the Departmental Promotion Committee. The appellants did not appear for these tests and, therefore, can have no complaint about the selection. In fact they have not challenged the selection and appointment of respondents 4 to 20 in the selection grade posts. | 0 | 1,847 | 1,286 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
be placed in the scale given to the selection grade i.e. Rupees 225-10-325-15-400/- a relief which the courts could, obviously, not grant. It is for the Administration to determine how many Assistants should be in the Secretariat and what should be their scale of pay. The normal scale of Assistants is Rs. 150-5-195-EB-5-250/. It would not be possible for a court to direct that that scale be revised and something more be given to the Assistants. That is not the function of the courts.7. Mr. Sen on behalf of the appellants did not challenge the right of the Administration to have scales of pay in the same category of posts. Provision of a selection grade in the same category of posts is not a new thing. This has been recognised by the Central Pay Commission in para 10 of Chapter X of the Report. The Commission observed "with the object of providing incentive to employees who have no outlets or very limited outlets for promotion to higher posts, we are recommending in a number of cases that a certain percentage of the posts in the grade-usually 10 per cent-should carry a somewhat higher scale of pay even though there will be no change in the duties. Following the terminology in vogue we have described these posts as selection grade posts. "It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency. In the present case it is explained in the reply affidavit filed on behalf of the Administration that the basis for selection of some of the Assistants to the higher scale is seniority-cum-merit which is one of the two or three principles of promotion widely accepted in the Administration and duly recognised by the Pay Commission in Chapter XXXXV of the Report. Mr. Sen was, therefore, quite right in not challenging the right of the Administration to create a selection grade in the category of Assistants.8. Mr. Sen, however challenged the existing rule of 1963 because it no where uses the word Selection grade. Under the rule in respect of the Assistant, two scales are mentioned as follows:CHARTAnd though 25% post in the cadre of Assistants are given the higher scale of pay it is not stated therein as to who are the lucky Assistants who are to get this higher scale of pay. This, in his submission, is bound to lead to arbitrary selection which would violate the protection of Articles 14 and 16 of the Constitution. It is true that the rule by itself does not say that these 25% comprise selection grade posts but there is hardly any doubt that it refers to selection posts. This will be clear from the context. In the column "Existing scale of pay" the two grades are shown and against these two grades the revised scale of pay are also shown. These 75% of the posts of Assistants who were prior to 1-4-1961 in the grades of Rs. 80- Rs. 180/- are placed in the revised scale of Rs.150-250/- 25% of the posts whose existing scale of pay was Rs. 150 - Rs. 300/- are to be given after 1.4.1961 the scale of Rs. 225/- Rs.400/- Now the 25% of the posts whose exiting scale prior to 1-4-1961 was Rs. 150-10-300/- actually comprised what, was known as the selection grade when it was first created as shown above, on 1-7-1959. The posts of the Assistants who were placed in the selection grade of Rs. 150-10-300/- with from 1-7-1959 continue to be the posts for which a revision of Rs. 225 - Rs. 400/- was made in the rules of 1963. Therefore, it one reads the revision made with effect from 1-7-1959 together with the revision from 1-4-1961 one feels no doubt that the higher revised scale of pay in the 1963 Rules was for the 25% posts in the selection grade of Assistants.9. It is true that there are no statutory rules regulating the selection of Assistants to the selection grade. But the absence of such rules is no bar to the Administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with rule on the subject. The point was considered by this court in Sant Ram Sharma v. State of Rajasthan, 1968 (1) SCR 111 = (AIR 1967 SC 1910 ) and it was declared that in the absence of statutory rules regulating promotion to selection grade posts the Government is competent to issue administrative instructions as long as those instructions are not inconsistent with the rules already framed Mr. Sens argument is based on the absence of any statutory rule in this respect. Therefore, there is no question of any inconsistency with existing rule. In their affidavit in reply the Administration has stated that the appointment to the selection grade is made on the basis of seniority- cum-merit based upon a test open to all Assistants carried out in accordance with a prescribed procedure. It appears that there is a Departmental Promotion Committee whose business it is to prepare a promotion list of such Assistants who after passing the necessary tests are to be appointed in the selection grade. It is on the basis of this selection that respondents 4 to 20 and some others were appointed in the selection grade after they passed the tests and were selected by the Departmental Promotion Committee. The appellants did not appear for these tests and, therefore, can have no complaint about the selection. In fact they have not challenged the selection and appointment of respondents 4 to 20 in the selection grade posts.
### Response:
0
### Explanation:
appellants. They gain nothing thereby except to drag down the other Assistants who have been placed in the selection grade. Being aware of this situation, the appellants asked that all the Assistants should be placed in the scale given to the selection grade i.e. Rupees 225-10-325-15-400/- a relief which the courts could, obviously, not grant. It is for the Administration to determine how many Assistants should be in the Secretariat and what should be their scale of pay. The normal scale of Assistants is Rs. 150-5-195-EB-5-250/. It would not be possible for a court to direct that that scale be revised and something more be given to the Assistants. That is not the function of the courts.7. Mr. Sen on behalf of the appellants did not challenge the right of the Administration to have scales of pay in the same category of posts. Provision of a selection grade in the same category of posts is not a new thing. This has been recognised by the Central Pay Commission in para 10 of Chapter X of the Report. The Commission observed "with the object of providing incentive to employees who have no outlets or very limited outlets for promotion to higher posts, we are recommending in a number of cases that a certain percentage of the posts in the grade-usually 10 per cent-should carry a somewhat higher scale of pay even though there will be no change in the duties. Following the terminology in vogue we have described these posts as selection grade posts. "It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency. In the present case it is explained in the reply affidavit filed on behalf of the Administration that the basis for selection of some of the Assistants to the higher scale is seniority-cum-merit which is one of the two or three principles of promotion widely accepted in the Administration and duly recognised by the Pay Commission in Chapter XXXXV of the Report. Mr. Sen was, therefore, quite right in not challenging the right of the Administration to create a selection grade in the category ofthough 25% post in the cadre of Assistants are given the higher scale of pay it is not stated therein as to who are the lucky Assistants who are to get this higher scale of pay. This, in his submission, is bound to lead to arbitrary selection which would violate the protection of Articles 14 and 16 of the Constitution. It is true that the rule by itself does not say that these 25% comprise selection grade posts but there is hardly any doubt that it refers to selection posts. This will be clear from the context. In the column "Existing scale of pay" the two grades are shown and against these two grades the revised scale of pay are also shown. These 75% of the posts of Assistants who were prior to 1-4-1961 in the grades of Rs. 80- Rs. 180/- are placed in the revised scale of Rs.150-250/- 25% of the posts whose existing scale of pay was Rs. 150 - Rs. 300/- are to be given after 1.4.1961 the scale of Rs. 225/- Rs.400/- Now the 25% of the posts whose exiting scale prior to 1-4-1961 was Rs. 150-10-300/- actually comprised what, was known as the selection grade when it was first created as shown above, on 1-7-1959. The posts of the Assistants who were placed in the selection grade of Rs. 150-10-300/- with from 1-7-1959 continue to be the posts for which a revision of Rs. 225 - Rs. 400/- was made in the rules of 1963. Therefore, it one reads the revision made with effect from 1-7-1959 together with the revision from 1-4-1961 one feels no doubt that the higher revised scale of pay in the 1963 Rules was for the 25% posts in the selection grade of Assistants.9. It is true that there are no statutory rules regulating the selection of Assistants to the selection grade. But the absence of such rules is no bar to the Administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with rule on the subject. The point was considered by this court in Sant Ram Sharma v. State of Rajasthan, 1968 (1) SCR 111 = (AIR 1967 SC 1910 ) and it was declared that in the absence of statutory rules regulating promotion to selection grade posts the Government is competent to issue administrative instructions as long as those instructions are not inconsistent with the rules already framed Mr. Sens argument is based on the absence of any statutory rule in this respect. Therefore, there is no question of any inconsistency with existing rule. In their affidavit in reply the Administration has stated that the appointment to the selection grade is made on the basis of seniority- cum-merit based upon a test open to all Assistants carried out in accordance with a prescribed procedure. It appears that there is a Departmental Promotion Committee whose business it is to prepare a promotion list of such Assistants who after passing the necessary tests are to be appointed in the selection grade. It is on the basis of this selection that respondents 4 to 20 and some others were appointed in the selection grade after they passed the tests and were selected by the Departmental Promotion Committee. The appellants did not appear for these tests and, therefore, can have no complaint about the selection. In fact they have not challenged the selection and appointment of respondents 4 to 20 in the selection grade posts.
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Muthuswami Vs. State of Madras | namely Hanifa (P. W. 2) and Ghouse (P. W. 5), and rejected the confession on the ground that it was not voluntary. But he believed the third eye-witness Jamal (P. W. 1) who he thought was corroborated by certain other evidence and based his conviction on that. He also convicted another accused Pongiannan, with whom we are not concerned, on the same evidence and sentenced them both to death.2. The High Court considered that P. W. 1 was as unreliable as the other two eye-witnesses and so refused to believe him. But they thought the confession had been wrongly rejected and, believing it to be voluntary, they upheld the conviction relying on the confession alone. They acquitted the other accused Pongiannan because once the eye-witnesses were discarded the only evidence implicating him was this uncorroborated confession of a co-accused. The question is raised whether a conviction can be based on a retracted and uncorroborated confession.3. We do not intend to answer this in a general way because on the facts of this case it is enough to say that it would be unsafe to act on this particular confession. The deceased was murdered about midday on 14-8-1949. The eye-witnesses P. Ws. 1, 2 and 5 and two more eye-witnesses who have not been called were examined by the police on the same day at the inquest. Despite that neither the appellant nor his co-accused were arrested. This may have been because they could not be found or it may be that the descriptions given were not enough for identification. That is conjecture. But what we do know is that none of the three eye-witnesses who have been called knew the accused before. They saw them for the first time in the actual act of committing the murder.4. Next, we are told by Muthusami, P. W. 7, and Palanisami, P. W. 8, that the accused were detained for at least a fortnight in police custody two months after the murder, that is to say, they were detained in police custody for some days before their arrests on 23rd and 25th of October 1949. The police witnesses deny this but the learned Additional Sessions Judge believed that they were in police custody for at least six days before their arrests. The High Court preferred to believe the police witnesses but the learned Judges have brushed aside the testimony of these two witnesses somewhat summarily.The learned Additional Sessions Judge who saw them and who saw the police witness Ratnaswami, P. W. 24, believed the former. The High Court give no. reasons for preferring the latter despite the fact that they did not have the advantage of observing their demeanour. All they say is that they see no. reason to disbelieve him. But that, in our opinion, is not sufficient to displace the conclusion of the Judge who actually saw the witnesses in the box. We would require more convincing reasons in a case of this kind and would want to be shown how and where the learned Additional Sessions Judge went wrong; also, in any case, the fact remains that the appellant and his co-accused were not arrested till nearly two and half months after the murder and the High Court considers that the investigation was perfunctory.5. Next come the identification parades held on the 1st and the 4th of November. The appellant was identified by each of the three eye-witnesses who have been called. We consider it would be unsafe to accept this identification two and a half months after the event. It is true that the murder was committed in the middle of the day but it is equally true that the three witnesses saw the assailants for a very brief interval of time even if the story about them walking by in single file ten minutes after the occurrence is true. It would be remarkable feat for even one witness to do this but we find it impossible to believe that no. less than three were able to do so. The fact that they did pick out the appellant and his co-accused at the parade is of course beyond dispute but it seems evident to us that the suspect must have been pointed out to them before and that of course destroys the value of the investigation; and once we get that far suspicion is at once cast on the genuineness of the confession.6. Now we wish to avoid laying down any hard and fast rules regarding the necessity of corroboration in the case of retracted confessions. But apart from any general rule of prudence, the circumstances indicated above are sufficient to require corroboration in this particular case.7. There are other circumstances also which throw doubt on the case P. Ws. 1 and 5 say that they told their employer Arunachala Chettiar about the murder within a few minutes of its occurrence but were told by him to mind their own business. That is somewhat unnatural conduct but this witness would have been an important witness to corroborate the truth of their story at any rate to that extent. He has not been called. So also the many who first saw the occurrence, namely Ghani, has not been called.8. The only reason the High Court give for accepting the confession is because the learned Judges considered there was intrinsic material to indicate its genuineness. But the only feature the learned Judges specify is that it contains a wealth of detail which could not have been invented. But the point overlooked is that none of this detail has been tested. The confession is a long and rambling one which could have been invented by an agile mind or pieced together after tutoring. What would have been difficult is to have set out a true set of facts in that manner. But unless the main features of the story are shown to be true, it is, in our opinion, unsafe to regard mere wealth of uncorroborated detail as a safeguard of truth. | 1[ds]The deceased was murdered about midday ones P. Ws. 1, 2 and 5 and two morewho have not been called were examined by the police on the same day at the inquest. Despite that neither the appellant nor hiswere arrested. This may have been because they could not be found or it may be that the descriptions given were not enough for identification. That is conjecture. But what we do know is that none of the threewho have been called knew the accused before. They saw them for the first time in the actual act of committing the murder.4. Next, we are told by Muthusami, P. W. 7, and Palanisami, P. W. 8, that the accused were detained for at least a fortnight in police custody two months after the murder, that is to say, they were detained in police custody for some days before their arrests on 23rd and 25th of October 1949. The police witnesses deny this but the learned Additional Sessions Judge believed that they were in police custody for at least six days before their arrests. The High Court preferred to believe the police witnesses but the learned Judges have brushed aside the testimony of these two witnesses somewhat summarily.The learned Additional Sessions Judge who saw them and who saw the police witness Ratnaswami, P. W. 24, believed the former. The High Court give no. reasons for preferring the latter despite the fact that they did not have the advantage of observing their demeanour. All they say is that they see no. reason to disbelievethat, in our opinion, is not sufficient to displace the conclusion of the Judge who actually saw the witnesses in the box. We would require more convincing reasons in a case of this kind and would want to be shown how and where the learned Additional Sessions Judge went wrong; also, in any case, the fact remains that the appellant and hiswere not arrested till nearly two and half months after the murder and the High Court considers that the investigation was perfunctory.5. Next come the identification parades held on the 1st and the 4th of November. The appellant was identified by each of the threewho have been called. We consider it would be unsafe to accept this identification two and a half months after the event. It is true that the murder was committed in the middle of the day but it is equally true that the three witnesses saw the assailants for a very brief interval of time even if the story about them walking by in single file ten minutes after the occurrence is true. It would be remarkable feat for even one witness to do this but we find it impossible to believe that no. less than three were able to do so. The fact that they did pick out the appellant and hisat the parade is of course beyond dispute but it seems evident to us that the suspect must have been pointed out to them before and that of course destroys the value of the investigation; and once we get that far suspicion is at once cast on the genuineness of the confession.There are other circumstances also which throw doubt on the case P. Ws. 1 and 5 say that they told their employer Arunachala Chettiar about the murder within a few minutes of its occurrence but were told by him to mind their own business. That is somewhat unnatural conduct but this witness would have been an important witness to corroborate the truth of their story at any rate to that extent. He has not been called. So also the many who first saw the occurrence, namely Ghani, has not been called.8. The only reason the High Court give for accepting the confession is because the learned Judges considered there was intrinsic material to indicate its genuineness. But the only feature the learned Judges specify is that it contains a wealth of detail which could not have been invented. But the point overlooked is that none of this detail has been tested. The confession is a long and rambling one which could have been invented by an agile mind or pieced together after tutoring. What would have been difficult is to have set out a true set of facts in that manner. But unless the main features of the story are shown to be true, it is, in our opinion, unsafe to regard mere wealth of uncorroborated detail as a safeguard of truth. | 1 | 1,133 | 805 | ### 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:
namely Hanifa (P. W. 2) and Ghouse (P. W. 5), and rejected the confession on the ground that it was not voluntary. But he believed the third eye-witness Jamal (P. W. 1) who he thought was corroborated by certain other evidence and based his conviction on that. He also convicted another accused Pongiannan, with whom we are not concerned, on the same evidence and sentenced them both to death.2. The High Court considered that P. W. 1 was as unreliable as the other two eye-witnesses and so refused to believe him. But they thought the confession had been wrongly rejected and, believing it to be voluntary, they upheld the conviction relying on the confession alone. They acquitted the other accused Pongiannan because once the eye-witnesses were discarded the only evidence implicating him was this uncorroborated confession of a co-accused. The question is raised whether a conviction can be based on a retracted and uncorroborated confession.3. We do not intend to answer this in a general way because on the facts of this case it is enough to say that it would be unsafe to act on this particular confession. The deceased was murdered about midday on 14-8-1949. The eye-witnesses P. Ws. 1, 2 and 5 and two more eye-witnesses who have not been called were examined by the police on the same day at the inquest. Despite that neither the appellant nor his co-accused were arrested. This may have been because they could not be found or it may be that the descriptions given were not enough for identification. That is conjecture. But what we do know is that none of the three eye-witnesses who have been called knew the accused before. They saw them for the first time in the actual act of committing the murder.4. Next, we are told by Muthusami, P. W. 7, and Palanisami, P. W. 8, that the accused were detained for at least a fortnight in police custody two months after the murder, that is to say, they were detained in police custody for some days before their arrests on 23rd and 25th of October 1949. The police witnesses deny this but the learned Additional Sessions Judge believed that they were in police custody for at least six days before their arrests. The High Court preferred to believe the police witnesses but the learned Judges have brushed aside the testimony of these two witnesses somewhat summarily.The learned Additional Sessions Judge who saw them and who saw the police witness Ratnaswami, P. W. 24, believed the former. The High Court give no. reasons for preferring the latter despite the fact that they did not have the advantage of observing their demeanour. All they say is that they see no. reason to disbelieve him. But that, in our opinion, is not sufficient to displace the conclusion of the Judge who actually saw the witnesses in the box. We would require more convincing reasons in a case of this kind and would want to be shown how and where the learned Additional Sessions Judge went wrong; also, in any case, the fact remains that the appellant and his co-accused were not arrested till nearly two and half months after the murder and the High Court considers that the investigation was perfunctory.5. Next come the identification parades held on the 1st and the 4th of November. The appellant was identified by each of the three eye-witnesses who have been called. We consider it would be unsafe to accept this identification two and a half months after the event. It is true that the murder was committed in the middle of the day but it is equally true that the three witnesses saw the assailants for a very brief interval of time even if the story about them walking by in single file ten minutes after the occurrence is true. It would be remarkable feat for even one witness to do this but we find it impossible to believe that no. less than three were able to do so. The fact that they did pick out the appellant and his co-accused at the parade is of course beyond dispute but it seems evident to us that the suspect must have been pointed out to them before and that of course destroys the value of the investigation; and once we get that far suspicion is at once cast on the genuineness of the confession.6. Now we wish to avoid laying down any hard and fast rules regarding the necessity of corroboration in the case of retracted confessions. But apart from any general rule of prudence, the circumstances indicated above are sufficient to require corroboration in this particular case.7. There are other circumstances also which throw doubt on the case P. Ws. 1 and 5 say that they told their employer Arunachala Chettiar about the murder within a few minutes of its occurrence but were told by him to mind their own business. That is somewhat unnatural conduct but this witness would have been an important witness to corroborate the truth of their story at any rate to that extent. He has not been called. So also the many who first saw the occurrence, namely Ghani, has not been called.8. The only reason the High Court give for accepting the confession is because the learned Judges considered there was intrinsic material to indicate its genuineness. But the only feature the learned Judges specify is that it contains a wealth of detail which could not have been invented. But the point overlooked is that none of this detail has been tested. The confession is a long and rambling one which could have been invented by an agile mind or pieced together after tutoring. What would have been difficult is to have set out a true set of facts in that manner. But unless the main features of the story are shown to be true, it is, in our opinion, unsafe to regard mere wealth of uncorroborated detail as a safeguard of truth.
### Response:
1
### Explanation:
The deceased was murdered about midday ones P. Ws. 1, 2 and 5 and two morewho have not been called were examined by the police on the same day at the inquest. Despite that neither the appellant nor hiswere arrested. This may have been because they could not be found or it may be that the descriptions given were not enough for identification. That is conjecture. But what we do know is that none of the threewho have been called knew the accused before. They saw them for the first time in the actual act of committing the murder.4. Next, we are told by Muthusami, P. W. 7, and Palanisami, P. W. 8, that the accused were detained for at least a fortnight in police custody two months after the murder, that is to say, they were detained in police custody for some days before their arrests on 23rd and 25th of October 1949. The police witnesses deny this but the learned Additional Sessions Judge believed that they were in police custody for at least six days before their arrests. The High Court preferred to believe the police witnesses but the learned Judges have brushed aside the testimony of these two witnesses somewhat summarily.The learned Additional Sessions Judge who saw them and who saw the police witness Ratnaswami, P. W. 24, believed the former. The High Court give no. reasons for preferring the latter despite the fact that they did not have the advantage of observing their demeanour. All they say is that they see no. reason to disbelievethat, in our opinion, is not sufficient to displace the conclusion of the Judge who actually saw the witnesses in the box. We would require more convincing reasons in a case of this kind and would want to be shown how and where the learned Additional Sessions Judge went wrong; also, in any case, the fact remains that the appellant and hiswere not arrested till nearly two and half months after the murder and the High Court considers that the investigation was perfunctory.5. Next come the identification parades held on the 1st and the 4th of November. The appellant was identified by each of the threewho have been called. We consider it would be unsafe to accept this identification two and a half months after the event. It is true that the murder was committed in the middle of the day but it is equally true that the three witnesses saw the assailants for a very brief interval of time even if the story about them walking by in single file ten minutes after the occurrence is true. It would be remarkable feat for even one witness to do this but we find it impossible to believe that no. less than three were able to do so. The fact that they did pick out the appellant and hisat the parade is of course beyond dispute but it seems evident to us that the suspect must have been pointed out to them before and that of course destroys the value of the investigation; and once we get that far suspicion is at once cast on the genuineness of the confession.There are other circumstances also which throw doubt on the case P. Ws. 1 and 5 say that they told their employer Arunachala Chettiar about the murder within a few minutes of its occurrence but were told by him to mind their own business. That is somewhat unnatural conduct but this witness would have been an important witness to corroborate the truth of their story at any rate to that extent. He has not been called. So also the many who first saw the occurrence, namely Ghani, has not been called.8. The only reason the High Court give for accepting the confession is because the learned Judges considered there was intrinsic material to indicate its genuineness. But the only feature the learned Judges specify is that it contains a wealth of detail which could not have been invented. But the point overlooked is that none of this detail has been tested. The confession is a long and rambling one which could have been invented by an agile mind or pieced together after tutoring. What would have been difficult is to have set out a true set of facts in that manner. But unless the main features of the story are shown to be true, it is, in our opinion, unsafe to regard mere wealth of uncorroborated detail as a safeguard of truth.
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Bhaiyalal Vs. State of Maharashtra | :"The applicant is holding office of Patwari. The competent and appropriate authority to appoint or remove the Patwari from his office, is Collector of the District. The Collector has not applied his mind to the facts of this case in the matter of one hoof domain safeguards available onto public servants against frivolous or vexatious prosecution ...... The S.D.O., Sakoli, is not a competent authority to sanction prosecution of the applicant in the matter of offence of corruption and bribery .........."7. The Trial Court went into the matter at some length and after referring to the provisions of the M.P. Land Revenue Code, 1954, relied upon on behalf of the appellant, observed that under Section 16 of that Code an Assistant or Deputy Collector was placed in charge of one or more sub-divisional Officer could exercise the powers of a collector who was called a Sub-Divisional Officer could exercise the powers of a Collector under a notification issued by the State Government. The Courts attention seems in this connection to have been invited to the notification issued by the M.P. Government, dated October 7, 1955, under sub-section (2) of Section 18 of that Code whereby the Government was pleased to direct all Sub-Divisional Officers to exercise the powers of the Collector as specified in the Schedule in that Code. Among the powers so delegated to the Sub-Divisional Officer which could be exercised by the Collector under the Code was the power to appoint Patwaris in each circle for maintenance and collection of annual paper and for the purpose of other duties. On this reasoning the Trail Court came to the conclusion that the Sub-Divisional Officer, Sakoli, was empowered to give a valid sanction to prosecute the appellant and it was not necessary to secure the sanction from the Collector. It appears that this conclusion was not seriously contested before the High Court and on appeal in that Court a new point was raised, based on the submission that the appellant having resigned from the service, was re-appointed as a Patwari by the Deputy Commissioner, and that was a fresh appointment. It was in these circumstances that the two registers containing the history sheet of the appellants service (Kanungos Patwari Registers) were produced in the High Court on behalf of the State. The entries in those registers were construed by the High Court in the manner already noticed by us. The High Court also relied on evidence of Shri Kapale, there Sub-Divisional Officer, and on the basis of his testimony and the entries in the two registers the appellants contention of having been appointed afresh after the acceptance of his resignation was repelled. The appellants counsel invited our attention to the entries in the two registers and tried to persuade us to hold that these entries establish the appellants fresh appointment as a Patwari and that the High Court was wrong in holding that the appellant was merely taken back into the service to which he had been appointed by the Sub-Divisional Officer in 1937 and confirmed in 1943. The conclusion of the High Court, in our opinion, is based on the valuation of the entries in the register and it does not disclose any infirmity which should expose it to challenge on appeal under Article 136 of the Constitution. The appellants contention is difficult to accept.8. We have, however, also looked at the entries in the two registers and we are in agreement with the view taken by the High Court. We find that in the first register the appellant was given warnings during his probationary period and was finely confirmed with effect from April 13, 1943, vide orders of the Sub-Divisional Officer, dated May 30, 1943. In the Second register we find the following entry :"Bhayalal who had tendered his resignation and whose resignation was accepted has been taken on duty by the Board of Revenue, vide order dated 2-8-1953 and accordingly he was taken on duty, vide D.Cs order, dated 27-3-53. His period of absence is treated as not on duty, vide R.B. order. He took over in P.C. 14 on 3-4-1953."The appellants service book is also on the record and the entries in that book do not give any indication that the appellant was appointed as a Patwari afresh in 1953. On the contrary the entries in the service book are suggestive of continuous service right from the appellants original appointment. The conclusion of the High Court on the construction of the entries in the register in the light of the evidence on the record seems to us to be unexceptionable in the light of the evidence on the record seems to us to be unexceptionable and once this conclusion is accepted the appellants challenge to the sanction must fail whether the case be considered to be governed by the provisions of the C.P. Act 2 of 1917 or of the M.P. Land Revenue Code of 1954 or of the Maharashtra Act XLI of 1966 (Maharashtra Land Revenue Code, 1966).9. A half-hearted argument was raised against the production of the two registers in the High Court but that was a matter in the discretion of that Court which as a general rule is not open to attack in this Court. It is not shown that in the exercise of this discretion there was any violation of a provision of law or that it was otherwise exercise arbitrarily or in a perverse manner and has prejudiced the appellant.10. As a last resort it was urged that the sentence is excessive. We do not think this Court can appropriately go into the question of sentence in this case which prima facie does not seem to be excessive. The question of sentence is normally a matter in the discretion of the Trial Court. For a public servant to ask for and accept bribe for performing his official duties is a very serious matter and it would be improper to show undue leniency in cases of corruption by such public servants. | 0[ds]But we are unable to hold as contended on behalf of the appellant that this section deprives theOfficers of the power to appoint Patwaris conferred on them by virtue of Sections 10 and 11, read with clause (i) of Schedule II. Afaint attempt was no doubt made on behalf of the appellant to persuade us to hold that Section 43 empowers only the Deputy Commissioner to appoint Patwaris and ther has no such power. But thel ultimately felt constrained to give up this attempt and to concede that in the case in hand the appellant has in fact been appointed as a Patwari by ther in 1937 and later confirmed by the same authority inargument is based on an incomplete picture of the provisions of this Code. Section 13(4) empowers theOfficer, subject to the provisions of Chapter XIII, to perform all the duties and functions and to exercise all the powers conferred upon a all the duties and functions and to exercise all the power conferred upon a Collector by this Code or by any law for the time being in force, in relation to thein his charge. The provisions of this Code, therefore, do not necessarily vest the power of appointment of Patwaris solely in the Deputy Commissioners. Inthe Case in hand the appellant did not care to place on the record the order of, what he calls, his fresh appointment. His sole argument was that it was for the prosecution to prove by cogent evidence the condition precedent of a valid prosecution by producing on the record of this case proper sanction in accordance with law. The State having failed to do so then must be quashed, said thes, according to his contention, could not shift to the accused and it through out remained on the prosecution and it was open to the appellant even in the High Court to rise this point for the firsttime. We are unable to hold on this argument that there is no proper sanction for theprosecution. The statutory provisions and the evidence on the record are clearly against thesubmission.6. This Court at the time of granting special leave directed the appeal to be heard on the special leave paper book and also sent for the record of this case. We find from the record that in the Trial Court the appellant had on March 29, 1968, presented an application questioning the validity of the sanction for his prosecution by relying inter alia on Section 6(1) of the Prevention of Corruption Act according to which (so far as relevant in this case) no court can take cognizance of an offence punishable under Section 161, I.P.C. or under Section 5(2) of the Prevention of Corruption Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office. In that application the appellant did not plead that he had beenin 1953 by virtue of an order of the Deputy Commissioner.conclusion of the High Court, in our opinion, is based on the valuation of the entries in the register and it does not disclose any infirmity which should expose it to challenge on appeal under Article 136 of the Constitution. Thecontention is difficult to accept.8. We have, however, also looked at the entries in the two registers and we are in agreement with the view taken by the High Court. We find that in the first register the appellant was given warnings during his probationary period and was finely confirmed with effect from April 13, 1943, vide orders of theOfficer, dated May 30,s service book is also on the record and the entries in that book do not give any indication that the appellant was appointed as a Patwari afresh in 1953. On the contrary the entries in the service book are suggestive of continuous service right from theoriginal appointment. The conclusion of the High Court on the construction of the entries in the register in the light of the evidence on the record seems to us to be unexceptionable in the light of the evidence on the record seems to us to be unexceptionable and once this conclusion is accepted thechallenge to the sanction must fail whether the case be considered to be governed by the provisions of the C.P. Act 2 of 1917 or of the M.P. Land Revenue Code of 1954 or of the Maharashtra Act XLI of 1966 (Maharashtra Land Revenue Code,do not think this Court can appropriately go into the question of sentence in this case which prima facie does not seem to be excessive. The question of sentence is normally a matter in the discretion of the Trial Court. For a public servant to ask for and accept bribe for performing his official duties is a very serious matter and it would be improper to show undue leniency in cases of corruption by such public servants. | 0 | 2,695 | 885 | ### 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 applicant is holding office of Patwari. The competent and appropriate authority to appoint or remove the Patwari from his office, is Collector of the District. The Collector has not applied his mind to the facts of this case in the matter of one hoof domain safeguards available onto public servants against frivolous or vexatious prosecution ...... The S.D.O., Sakoli, is not a competent authority to sanction prosecution of the applicant in the matter of offence of corruption and bribery .........."7. The Trial Court went into the matter at some length and after referring to the provisions of the M.P. Land Revenue Code, 1954, relied upon on behalf of the appellant, observed that under Section 16 of that Code an Assistant or Deputy Collector was placed in charge of one or more sub-divisional Officer could exercise the powers of a collector who was called a Sub-Divisional Officer could exercise the powers of a Collector under a notification issued by the State Government. The Courts attention seems in this connection to have been invited to the notification issued by the M.P. Government, dated October 7, 1955, under sub-section (2) of Section 18 of that Code whereby the Government was pleased to direct all Sub-Divisional Officers to exercise the powers of the Collector as specified in the Schedule in that Code. Among the powers so delegated to the Sub-Divisional Officer which could be exercised by the Collector under the Code was the power to appoint Patwaris in each circle for maintenance and collection of annual paper and for the purpose of other duties. On this reasoning the Trail Court came to the conclusion that the Sub-Divisional Officer, Sakoli, was empowered to give a valid sanction to prosecute the appellant and it was not necessary to secure the sanction from the Collector. It appears that this conclusion was not seriously contested before the High Court and on appeal in that Court a new point was raised, based on the submission that the appellant having resigned from the service, was re-appointed as a Patwari by the Deputy Commissioner, and that was a fresh appointment. It was in these circumstances that the two registers containing the history sheet of the appellants service (Kanungos Patwari Registers) were produced in the High Court on behalf of the State. The entries in those registers were construed by the High Court in the manner already noticed by us. The High Court also relied on evidence of Shri Kapale, there Sub-Divisional Officer, and on the basis of his testimony and the entries in the two registers the appellants contention of having been appointed afresh after the acceptance of his resignation was repelled. The appellants counsel invited our attention to the entries in the two registers and tried to persuade us to hold that these entries establish the appellants fresh appointment as a Patwari and that the High Court was wrong in holding that the appellant was merely taken back into the service to which he had been appointed by the Sub-Divisional Officer in 1937 and confirmed in 1943. The conclusion of the High Court, in our opinion, is based on the valuation of the entries in the register and it does not disclose any infirmity which should expose it to challenge on appeal under Article 136 of the Constitution. The appellants contention is difficult to accept.8. We have, however, also looked at the entries in the two registers and we are in agreement with the view taken by the High Court. We find that in the first register the appellant was given warnings during his probationary period and was finely confirmed with effect from April 13, 1943, vide orders of the Sub-Divisional Officer, dated May 30, 1943. In the Second register we find the following entry :"Bhayalal who had tendered his resignation and whose resignation was accepted has been taken on duty by the Board of Revenue, vide order dated 2-8-1953 and accordingly he was taken on duty, vide D.Cs order, dated 27-3-53. His period of absence is treated as not on duty, vide R.B. order. He took over in P.C. 14 on 3-4-1953."The appellants service book is also on the record and the entries in that book do not give any indication that the appellant was appointed as a Patwari afresh in 1953. On the contrary the entries in the service book are suggestive of continuous service right from the appellants original appointment. The conclusion of the High Court on the construction of the entries in the register in the light of the evidence on the record seems to us to be unexceptionable in the light of the evidence on the record seems to us to be unexceptionable and once this conclusion is accepted the appellants challenge to the sanction must fail whether the case be considered to be governed by the provisions of the C.P. Act 2 of 1917 or of the M.P. Land Revenue Code of 1954 or of the Maharashtra Act XLI of 1966 (Maharashtra Land Revenue Code, 1966).9. A half-hearted argument was raised against the production of the two registers in the High Court but that was a matter in the discretion of that Court which as a general rule is not open to attack in this Court. It is not shown that in the exercise of this discretion there was any violation of a provision of law or that it was otherwise exercise arbitrarily or in a perverse manner and has prejudiced the appellant.10. As a last resort it was urged that the sentence is excessive. We do not think this Court can appropriately go into the question of sentence in this case which prima facie does not seem to be excessive. The question of sentence is normally a matter in the discretion of the Trial Court. For a public servant to ask for and accept bribe for performing his official duties is a very serious matter and it would be improper to show undue leniency in cases of corruption by such public servants.
### Response:
0
### Explanation:
But we are unable to hold as contended on behalf of the appellant that this section deprives theOfficers of the power to appoint Patwaris conferred on them by virtue of Sections 10 and 11, read with clause (i) of Schedule II. Afaint attempt was no doubt made on behalf of the appellant to persuade us to hold that Section 43 empowers only the Deputy Commissioner to appoint Patwaris and ther has no such power. But thel ultimately felt constrained to give up this attempt and to concede that in the case in hand the appellant has in fact been appointed as a Patwari by ther in 1937 and later confirmed by the same authority inargument is based on an incomplete picture of the provisions of this Code. Section 13(4) empowers theOfficer, subject to the provisions of Chapter XIII, to perform all the duties and functions and to exercise all the powers conferred upon a all the duties and functions and to exercise all the power conferred upon a Collector by this Code or by any law for the time being in force, in relation to thein his charge. The provisions of this Code, therefore, do not necessarily vest the power of appointment of Patwaris solely in the Deputy Commissioners. Inthe Case in hand the appellant did not care to place on the record the order of, what he calls, his fresh appointment. His sole argument was that it was for the prosecution to prove by cogent evidence the condition precedent of a valid prosecution by producing on the record of this case proper sanction in accordance with law. The State having failed to do so then must be quashed, said thes, according to his contention, could not shift to the accused and it through out remained on the prosecution and it was open to the appellant even in the High Court to rise this point for the firsttime. We are unable to hold on this argument that there is no proper sanction for theprosecution. The statutory provisions and the evidence on the record are clearly against thesubmission.6. This Court at the time of granting special leave directed the appeal to be heard on the special leave paper book and also sent for the record of this case. We find from the record that in the Trial Court the appellant had on March 29, 1968, presented an application questioning the validity of the sanction for his prosecution by relying inter alia on Section 6(1) of the Prevention of Corruption Act according to which (so far as relevant in this case) no court can take cognizance of an offence punishable under Section 161, I.P.C. or under Section 5(2) of the Prevention of Corruption Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office. In that application the appellant did not plead that he had beenin 1953 by virtue of an order of the Deputy Commissioner.conclusion of the High Court, in our opinion, is based on the valuation of the entries in the register and it does not disclose any infirmity which should expose it to challenge on appeal under Article 136 of the Constitution. Thecontention is difficult to accept.8. We have, however, also looked at the entries in the two registers and we are in agreement with the view taken by the High Court. We find that in the first register the appellant was given warnings during his probationary period and was finely confirmed with effect from April 13, 1943, vide orders of theOfficer, dated May 30,s service book is also on the record and the entries in that book do not give any indication that the appellant was appointed as a Patwari afresh in 1953. On the contrary the entries in the service book are suggestive of continuous service right from theoriginal appointment. The conclusion of the High Court on the construction of the entries in the register in the light of the evidence on the record seems to us to be unexceptionable in the light of the evidence on the record seems to us to be unexceptionable and once this conclusion is accepted thechallenge to the sanction must fail whether the case be considered to be governed by the provisions of the C.P. Act 2 of 1917 or of the M.P. Land Revenue Code of 1954 or of the Maharashtra Act XLI of 1966 (Maharashtra Land Revenue Code,do not think this Court can appropriately go into the question of sentence in this case which prima facie does not seem to be excessive. The question of sentence is normally a matter in the discretion of the Trial Court. For a public servant to ask for and accept bribe for performing his official duties is a very serious matter and it would be improper to show undue leniency in cases of corruption by such public servants.
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M/S SHAHI AND ASSOCIATES Vs. STATE OF U.P | date of actual payment. The operative portion of the award is:"According to the above, the petitioner becomes entitled for receiving a total amount of Rs. 17,86,339.00 (Rs. Seventeen lac eighty six thousand three hundred thirty nine only) and the petitioner is hereby awarded the same. From the date of award to the actual date of payment an interest at the rate which is given in the provisions of section 31(7)(b) of the Arbitration and Conciliation Act, 1996 shall also be payable on Rs. 17,86,339.00 which is the amount of declared award. Both the parties would bear their own cost related with the arbitration."4. The respondents 1 and 2 being aggrieved by the aforesaid award filed civil miscellaneous case No. 5 of 2002 before the District Judge, Gorakpur, under Section 34 of the Act of 1996. The District Judge while upholding the sum awarded by the Arbitrator, reduced the rate of interest on the sum awarded from 18% p.a. to 6% p.a. by relying on para 7-A of Section 24 of the U.P. Amendment Act. 5. Being aggrieved by the aforesaid judgment dated 28.10.2006, both the parties filed F.A. F.O. Nos. 3728 of 2007 and 947 of 2007 before the High Court. The High Court by way of impugned common final judgment and order has dismissed both the appeals. In the course of the order, the High Court has observed that the District Judge has correctly reduced the rate of interest from 18% p.a. to 6% p.a. in view of para 7-A of Section 24 of the U.P Amendment Act. 6. Learned counsel for the appellant submits that the arbitration proceedings were commenced on 27.10.1999 under the Act of 1996 and the provisions of Arbitration Act, 1940 will have no application to the proceedings between the parties. The U.P. Amendment Act was a State amendment which introduced para 7-A to the First Schedule of the Arbitration Act, 1940. Since the Arbitration Act, 1940, has been repealed under Section 85 of the Act of 1996, the Schedule to Arbitration Act, 1940 also stands repealed and para 7-A has become obsolete. Therefore, the Arbitrator has rightly awarded interest @ 18% p.a. under Section 31(7)(b) of the Act of 1996. The District Judge as also the High Court have wrongly relied upon the repealed provision and reduced a statutorily permissible interest rate. 7. On the other hand, learned Additional Advocate General appearing for the respondent-State has sought to justify the impugned judgment. 8. We have carefully considered the submissions of the learned counsel made at the Bar. 9. The Act of 1996 has come into force with effect from 22.08.1996. Section 85 of the Act of 1996 expressly repeals the provisions of the Arbitration Act, 1940. Thus, the Act of 1996 would be applicable to all arbitral proceedings which have commenced on or after the said Act came into force. Para 7-A of Section 24 of the U.P. Amendment Act was an amendment to the First Schedule of Arbitration Act, 1940. This amendment was introduced by the U.P. Act No. 57 of 1976. The provisions of the Arbitration Act, 1940 including the State amendment will have no application to the proceedings commenced after coming into force of the Act of 1996. 10. Section 31(7)(b) of the Act of 1996, before its amendment by Act 3 of 2016, which has come into force with effect from 23.10.2015, is relevant for the purpose of this case, empowers the Arbitrator to award pre-award and post-award interest. This Section clearly states that unless otherwise specified, the awarded sum would carry an interest @ 18% p.a, as extracted below:"31. Form and contents of arbitral award – (7)(a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. (b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment". (Emphasis supplied)11. Section 31(7)(b) of the Act of 1996 clearly mandates that, in the event the Arbitrator does not give any specific directions as regards the rate of interest on the amount awarded, such amount shall carry interest @ 18% p.a. from the date of award till the date of payment. Since the Arbitration Act, 1940 has been repealed by way of Section 85 of the Act of 1996, the Schedule to the Arbitration Act, including the State amendment, also stands repealed. The only exception is provided in sub-section (2)(a) of Section 85 where a proceeding which had commenced when the Arbitration Act of 1940 was in force and continued even after coming into force of the Act of 1996, and all parties thereto agreed for application of the old Act of 1940. Therefore, the provisions of Arbitration Act, 1940 including the State amendment namely para 7-A of Section 24 of U.P. Amendment Act will have no application to the proceedings commenced after coming into force of the Act of 1996. 12. In the instant case, though the agreement was earlier to the date of coming into force of the Act of 1996, the proceedings admittedly commenced on 27.10.1999 and were conducted in accordance with the Act of 1996. If that be so, para 7-A of Section 24 of the U.P. Amendment Act has no application to the case at hand. Since the rate of interest granted by the Arbitrator is in accordance with Section 31(7)(b) of the Act of 1996, the High Court and the District Judge were not justified in reducing the rate of interest by following the U.P. Amendment Act. | 1[ds]11. Section 31(7)(b) of the Act of 1996 clearly mandates that, in the event the Arbitrator does not give any specific directions as regards the rate of interest on the amount awarded, such amount shall carry interest @ 18% p.a. from the date of award till the date of payment. Since the Arbitration Act, 1940 has been repealed by way of Section 85 of the Act of 1996, the Schedule to the Arbitration Act, including the State amendment, also stands repealed. The only exception is provided in sub-section (2)(a) of Section 85 where a proceeding which had commenced when the Arbitration Act of 1940 was in force and continued even after coming into force of the Act of 1996, and all parties thereto agreed for application of the old Act of 1940. Therefore, the provisions of Arbitration Act, 1940 including the State amendment namely para 7-A of Section 24 of U.P. Amendment Act will have no application to the proceedings commenced after coming into force of the Act of 1996.In the instant case, though the agreement was earlier to the date of coming into force of the Act of 1996, the proceedings admittedly commenced on 27.10.1999 and were conducted in accordance with the Act of 1996. If that be so, para 7-A of Section 24 of the U.P. Amendment Act has no application to the case at hand. Since the rate of interest granted by the Arbitrator is in accordance with Section 31(7)(b) of the Act of 1996, the High Court and the District Judge were not justified in reducing the rate of interest by following the U.P. Amendment Act.The Act of 1996 has come into force with effect from 22.08.1996. Section 85 of the Act of 1996 expressly repeals the provisions of the Arbitration Act, 1940. Thus, the Act of 1996 would be applicable to all arbitral proceedings which have commenced on or after the said Act came into force. Para 7-A of Section 24 of the U.P. Amendment Act was an amendment to the First Schedule of Arbitration Act, 1940. This amendment was introduced by the U.P. Act No. 57 of 1976. The provisions of the Arbitration Act, 1940 including the State amendment will have no application to the proceedings commenced after coming into force of the Act of 1996. | 1 | 1,505 | 440 | ### 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:
date of actual payment. The operative portion of the award is:"According to the above, the petitioner becomes entitled for receiving a total amount of Rs. 17,86,339.00 (Rs. Seventeen lac eighty six thousand three hundred thirty nine only) and the petitioner is hereby awarded the same. From the date of award to the actual date of payment an interest at the rate which is given in the provisions of section 31(7)(b) of the Arbitration and Conciliation Act, 1996 shall also be payable on Rs. 17,86,339.00 which is the amount of declared award. Both the parties would bear their own cost related with the arbitration."4. The respondents 1 and 2 being aggrieved by the aforesaid award filed civil miscellaneous case No. 5 of 2002 before the District Judge, Gorakpur, under Section 34 of the Act of 1996. The District Judge while upholding the sum awarded by the Arbitrator, reduced the rate of interest on the sum awarded from 18% p.a. to 6% p.a. by relying on para 7-A of Section 24 of the U.P. Amendment Act. 5. Being aggrieved by the aforesaid judgment dated 28.10.2006, both the parties filed F.A. F.O. Nos. 3728 of 2007 and 947 of 2007 before the High Court. The High Court by way of impugned common final judgment and order has dismissed both the appeals. In the course of the order, the High Court has observed that the District Judge has correctly reduced the rate of interest from 18% p.a. to 6% p.a. in view of para 7-A of Section 24 of the U.P Amendment Act. 6. Learned counsel for the appellant submits that the arbitration proceedings were commenced on 27.10.1999 under the Act of 1996 and the provisions of Arbitration Act, 1940 will have no application to the proceedings between the parties. The U.P. Amendment Act was a State amendment which introduced para 7-A to the First Schedule of the Arbitration Act, 1940. Since the Arbitration Act, 1940, has been repealed under Section 85 of the Act of 1996, the Schedule to Arbitration Act, 1940 also stands repealed and para 7-A has become obsolete. Therefore, the Arbitrator has rightly awarded interest @ 18% p.a. under Section 31(7)(b) of the Act of 1996. The District Judge as also the High Court have wrongly relied upon the repealed provision and reduced a statutorily permissible interest rate. 7. On the other hand, learned Additional Advocate General appearing for the respondent-State has sought to justify the impugned judgment. 8. We have carefully considered the submissions of the learned counsel made at the Bar. 9. The Act of 1996 has come into force with effect from 22.08.1996. Section 85 of the Act of 1996 expressly repeals the provisions of the Arbitration Act, 1940. Thus, the Act of 1996 would be applicable to all arbitral proceedings which have commenced on or after the said Act came into force. Para 7-A of Section 24 of the U.P. Amendment Act was an amendment to the First Schedule of Arbitration Act, 1940. This amendment was introduced by the U.P. Act No. 57 of 1976. The provisions of the Arbitration Act, 1940 including the State amendment will have no application to the proceedings commenced after coming into force of the Act of 1996. 10. Section 31(7)(b) of the Act of 1996, before its amendment by Act 3 of 2016, which has come into force with effect from 23.10.2015, is relevant for the purpose of this case, empowers the Arbitrator to award pre-award and post-award interest. This Section clearly states that unless otherwise specified, the awarded sum would carry an interest @ 18% p.a, as extracted below:"31. Form and contents of arbitral award – (7)(a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. (b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment". (Emphasis supplied)11. Section 31(7)(b) of the Act of 1996 clearly mandates that, in the event the Arbitrator does not give any specific directions as regards the rate of interest on the amount awarded, such amount shall carry interest @ 18% p.a. from the date of award till the date of payment. Since the Arbitration Act, 1940 has been repealed by way of Section 85 of the Act of 1996, the Schedule to the Arbitration Act, including the State amendment, also stands repealed. The only exception is provided in sub-section (2)(a) of Section 85 where a proceeding which had commenced when the Arbitration Act of 1940 was in force and continued even after coming into force of the Act of 1996, and all parties thereto agreed for application of the old Act of 1940. Therefore, the provisions of Arbitration Act, 1940 including the State amendment namely para 7-A of Section 24 of U.P. Amendment Act will have no application to the proceedings commenced after coming into force of the Act of 1996. 12. In the instant case, though the agreement was earlier to the date of coming into force of the Act of 1996, the proceedings admittedly commenced on 27.10.1999 and were conducted in accordance with the Act of 1996. If that be so, para 7-A of Section 24 of the U.P. Amendment Act has no application to the case at hand. Since the rate of interest granted by the Arbitrator is in accordance with Section 31(7)(b) of the Act of 1996, the High Court and the District Judge were not justified in reducing the rate of interest by following the U.P. Amendment Act.
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1
### Explanation:
11. Section 31(7)(b) of the Act of 1996 clearly mandates that, in the event the Arbitrator does not give any specific directions as regards the rate of interest on the amount awarded, such amount shall carry interest @ 18% p.a. from the date of award till the date of payment. Since the Arbitration Act, 1940 has been repealed by way of Section 85 of the Act of 1996, the Schedule to the Arbitration Act, including the State amendment, also stands repealed. The only exception is provided in sub-section (2)(a) of Section 85 where a proceeding which had commenced when the Arbitration Act of 1940 was in force and continued even after coming into force of the Act of 1996, and all parties thereto agreed for application of the old Act of 1940. Therefore, the provisions of Arbitration Act, 1940 including the State amendment namely para 7-A of Section 24 of U.P. Amendment Act will have no application to the proceedings commenced after coming into force of the Act of 1996.In the instant case, though the agreement was earlier to the date of coming into force of the Act of 1996, the proceedings admittedly commenced on 27.10.1999 and were conducted in accordance with the Act of 1996. If that be so, para 7-A of Section 24 of the U.P. Amendment Act has no application to the case at hand. Since the rate of interest granted by the Arbitrator is in accordance with Section 31(7)(b) of the Act of 1996, the High Court and the District Judge were not justified in reducing the rate of interest by following the U.P. Amendment Act.The Act of 1996 has come into force with effect from 22.08.1996. Section 85 of the Act of 1996 expressly repeals the provisions of the Arbitration Act, 1940. Thus, the Act of 1996 would be applicable to all arbitral proceedings which have commenced on or after the said Act came into force. Para 7-A of Section 24 of the U.P. Amendment Act was an amendment to the First Schedule of Arbitration Act, 1940. This amendment was introduced by the U.P. Act No. 57 of 1976. The provisions of the Arbitration Act, 1940 including the State amendment will have no application to the proceedings commenced after coming into force of the Act of 1996.
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Shivdev Singh Vs. The State Of Punjab(And Connected Petition) | best and thus two acres of barani land will be equal to one standard acre. Bhud is the worst and rate at 25 per centum and four acres of bhud are equal to one standard acre. Thus if the valuation given in Sch. A is accepted, bhud is only half as productive as sailabi.16. Therefore when Sch. C fixes one standard for unirrigated land without regard to quality it is bound to work inequality between farms and farms. It has been urged on behalf of the State that the Commission would be entitled to take into account these differences in quality. There is however nothing in R. 31 which permits the Commission to take into account this difference in the quality of land. The proviso to R. 31(4) (b) definitely lays down that in allotting marks the Commission shall apply the standard yield given in Sch. C, so that the Commission is bound to apply those yield in every case and there is nothing in R. 31 which permits the Commission to take into account the difference in quality of land. Now when S. 32K (1) (iv) read with S. 32-P provided for the appointment of a Commission to advise on the question of exemption under S. 32K (1) (iv), the intention of the legislature obviously was that the Commission will take into account all factors which should be properly taken into account in giving its advice. Quality of land is one such factor which should be properly taken into account by the Commission; but as the proviso to R. 31(4) stands, the Commission is bound to apply Sch. C on a mathematical basis without consideration of other factors. We are therefore of opinion that the proviso to R. 31 (4) (b) inasmuch as it obliges the Commission to apply Sch. C on a mathematical basis goes beyond the provisions of S. 32 K. It was certainly suggested in argument before us that it would be open to the Commission to take into account the difference in the quality of land. But there is nothing in the reply of the State to suggest this and we cannot accept what is suggested to us in argument in the face of the proviso to R. 31 (4) (b). The proviso therefore must be struck down as going beyond the rule-making power inasmuch as it is ultra vires the provisions of S. 32 K (1) (iv).17. There are other factors which govern the yield of land and these also have not been taken into account in R. 31. These factors may be grouped under the head "natural calamities" as for example, pests, locusts, excessive rain, floods and drought. There is nothing in R. 31 which gives a discretion to the Commission when applying the proviso to R. 31 (4) (b) to take into account these factors. Obviously, the intention behind the provision in S. 32K (1) (iv) was that in evaluating whether a farm was efficiently managed, the Commission will take all those factors which properly require consideration in the matter of yield into account. It was however suggested that the Commission was entitled to take these factors into account when judging the matter of yields; but we find nothing in the reply of the State Government to this effect and in any case if the proviso to R. 31 (4) (b) is interpreted as it stands it may not be possible for the Commission to take these factors into account when advising the State Government under S. 32K (1) (iv). It is not even clear which year before October 30,1956, the Commission will take into account in advising the Government, whether a particular farm is entitled to the benefit of S. 32K (1) (iv). If, for example the base year is one immediately- preceding October 30, 1956, and if in that year there was some natural calamity, the Commission cannot take that into account and must apply Sch. C as the proviso to R. 31(4) (b) seems to intend. The intention of the legislature therefore behind S. 32 K (1) (iv) would be subverted because of this proviso. That is another reason why this proviso should be struck down as going beyond the intention of the legislature in S. 32K(1)(iv).18. Lastly, there is another factor which is also very relevant in the matter of yields, namely, the rotation of crops which requires all good farmers to leave some part of their lands low by turns for a whole year in order that the fertility of the soil can be preserved. Again there is nothing in the proviso which allows the Commission to take into account this factor and make calculations only on the actual area of a farm which is cultivated and leave out of account such reasonable area as may not be cultivated in order to preserve the fertility of land on the principle of rotation of crops.As the proviso stands, the Commission is to apply Sch. C over the entire area of the farm without taking into account the factor of rotation of crops which necessitates that some reasonable portion of the land must be left follow for the whole year in order to preserve the fertility of the soil. Here again it is urged on behalf of the State in argument that the Commission can do so. But again that is not to be found in the reply of the State and as the proviso stands it obliges the Commission to apply Sch. C to the entire area of a farm in order to judge whether it is an efficiently managed farm. This is therefore another reason why the proviso goes beyond the intention of the legislature contained in S.32K (1)(iv).19. The proviso therefore to R. 31(4) (b) must he struck down as beyond the rule making power of the State Government. As soon as the proviso is struck down it would be impossible to work R.31 properly; therefore, the entire R. 31 must fall on this ground also.20. | 1[ds]We cannot agree with this contention. It is true that the Commission would have to decide whether a farm is entitled to the benefit of S. 32K. If no rules had been framed the matter would have been left at large for determination of the Commission to the next of its ability. It is true that the Commission consists of a Chairman who is or has been a Judge of the High Court and two members to be nominated by the State Government having special knowledge or practical experience of land or agricultural problems, even so we do not think that the Act did not contemplate framing of rules which will give certain objective guidance to the Commission in carrying out its duties. We do not think that in evolving the marking system as provided in R. 31 the Commissions discretion has been fettered and its independent judgment made illusory. So long as the marking system takes into account what is required under S. 32-K (1) (iv) in order to claim exemption from ceiling it cannot be said that the marking system that has been evolved is something beyond what was contemplated by the legislature. A perusal of Sch. B. to R. 31 shows that items I to IX which deal with lay-out, cultivation practices, sowing practices, manure practices, soil conservation practices, development of irrigation facilities, plant protection measures, keeping of records and miscellaneous items (like quality of draught and milch animals and their maintenance, arrangements for storage of produce, small orchards, home poultry farm, apiculture, sericulture, participate in co-operative associations, treatment with labour etc.) are all meant to evaluate the first three conditions in S. 32-K (1) (iv) as indicated by us above. We have been pointed out only one item in Sch. B. Under head "lay-out" which seems to be out of place and which carries 9 marks out of 500 marks. That item is voluntary consolidation and the criticism on behalf of the petitioners is that so long as the area in compact it is immaterial how that compactness has been achieved, whether voluntarily or otherwise. Barring this item all the other items appear to carryout the first three conditions mentioned by us above and therefore the Commission will have a standard when it considers the question of exemption of farms. It has full discretion to evaluate the various features set out in Sch. B items I to IX and has full power to give such marks as it thinks fit. It cannot therefore be said that by providing the marking system in Sch. B the rule has in any way fettered the discretion and judgment of the Commission, and affected its independence. Further item X in Sch. B is with respect to yields and carries 500 marks out of a total of 1000 marks. Thus the system behind Sch. B is that half the total number of marks is provided for the first three conditions and the other half is provided for the yields. We have already mentioned that the fourth condition under S. 32-K (1) (iv) shows that one of the main qualifications for exemption from ceiling under S. 32K is that the production of the farm should be such that its break-up shall lead to a fall in production. In the circumstances we do not think that it can be said that the allotment of half the total number of marks to yields in Sch. B is in any manner contrary to the intention of the legislature. We cannot therefore accept the contention of the petitioner that the marking system which has been evolved in Sch. B is in any way foreign to the purposes of the Act or in any way fails to carry out the object behind S. 32-K (1) (iv). The marking system only gives guidance to the Commission in the task assigned to it by S. 32-P (4) (c).The attack on R. 31 on the ground that the marking system evolved therein is foreign to the purposes of S. 32-K (1) (iv), mustshall refer to this division later in another connection; but here it may be remarked that in order that an A class farm be deemed under R. 31 (2) to be an efficiently managed farm that requires only 80 per centum of the total marks, so that when we apply the yields fixed under Sch. C we have to scale them down to 80 per centum, for even if yields are at 80 per centum the farm will be wholly entitled to exemption under R. 31(2). Therefore, though the yield fixed is 30 maunds for irrigated land and 10 maunds for unirrigated land in theory, the practical effect of R. 31 (2) is that if a farm produces 24 maunds per acre of irrigated land and 8 maunds per acre of unirrigated land it will pass the test prescribed by S. 32-K (1) (iv).We have therefore to compare this yield with the other figures which have been brought to our notice by either side, to decide whether the yield fixed in Sch. C has been deliberately fixed so high as to be unattainable with the object of making the provision of S. 32-K (1) (iv) nugatory. The burden of proving this and so establishing the mala fides of the State Government is on thein order that a farm may comply with the condition that its break-up would result in a fall of production it is obvious that its production must be higher than the average yield for the whole of the Punjab. We have already pointed out that so far as unirrigated land is concerned the fixing of the standard at 8 maunds per acre does not appear to be too high in view of the figures to be found in the bulletin published by the Board of Economic Inquiry Punjab (India), even though the figures relates to the period after October 30, 1956.As to the irrigated area it seems that the average production has reached up to about 16 maunds per acre. The standard fixed in Sch. C is 30 maunds which when reducted to 80 per centum comes to 24 maunds. On the materials that have been provided by either side on this record, we would hesitate to say that the standard of 24 maunds per acre for irrigated land of the best quality would be too high. Therefore, if the standard fixed in Sch. C is to be taken to apply to the best quality irrigated land and that standard is reduced to 80 per centum is view of R. 31(2) we would hesitate to say that Sch. C had fixed an unattainable standard and so was a mala fide exercise of power to frame rules with the object of defeating the intention of the legislature contained in S. 32K (1) (iv).We have already said that we propose to take the figures supplied to us with reference to wheat only and we shall assume, as the learned counsel for the petitioners ask us to assume that what is true about wheat would be equally true about other crops. We would therefore hesitate in the case of other produce also to say that the yields are too high and unattainable, if they are taken to be the yields from the best quality irrigated land in one case and the best quality unirrigated land in the other. The contention therefore that the Schedule has been framed mala fide in the sense mentioned above must fail, as the petitioners have failed to establish that. But this in our opinion does not end the matter and we shall now proceed further to deal with other aspects which have been urged before us.11. Rule 31(2) provides for the criterion for deciding whether the farm is efficiently managed etc. and has created three classes of farms, namely, A, B and C, depending upon the marks awarded, 80 per centum or more in the case of class A, 60 per centum or more but below 80 per centum for class B, and below 60 per centum for class C. It is further provided that an A class farm shall be deemed to be efficiently managed while 50 per centum of the area under a farm of class B shall, subject to the choice of the landowner be deemed to be efficiently managed but farm of class C shall not be considered efficiently managed. Now the contention on behalf of the petitioners is that this division into three classes is beyond the purview of S. 32-K and is therefore ultra vires. Section 32-K, as we have already indicated, lays down that provisions of S. 32A shall not apply to efficiently managed farms etc. so that when the Commission considers the question whether a particular farm is efficiently managed under S. 32K it has only to decide one of two things: namely, whether the farm is efficiently managed etc. or is not efficiently managed. If it is efficiently managed, the provisions of S. 32A shall not apply to the entire farm; if on the other hand, it is not efficiently managed, the provisions of S. 32A will apply to the entire farm. There is no scope in S. 32K for the creation of three classes of farms, as has been done by cl. (2) of R. 31. In other words there is no scope for the creation of class B farms in the rule on the terms of S. 32K. The rule therefore in so far as it creates an intermediate class of farms, half the area of which is deemed to be efficiently managed is clearly beyond the provisions of S. 32K (1) (iv). The creation of class B farms of R. 31 (2) being beyond the provisions of S. 32K must be held to be ultra vires that section. The question then arises whether in view of the creation of class B farms by R. 31 the whole of that rule must go. We are of opinion that the creation of class B farms is so integrated with the whole of R. 31 that it would not be possible to excise class B farms only from that rule and leave the rest of the rule unaffected. It is impossible to say what the form of R. 31 would have been if the rule making authority thought that it could not provide for class B farms. We are therefore of opinion that the whole of R. 31 along with Schedules B and C must fall, as soon as it is held that the creation of class B farms under the rule is beyond the rule-making power. This is one ground on which R. 31 must be struck down as ultra vires of the provisions of the Act, particular]y S.are of opinion that there is force in the second contention, though not in the first Section 32P (4) and (5) lay down that the State Government will be advised by the Commissioner with regard to exemption under S. 32K and the advice of the Commissioner would be binding on the State Government. Rule 31 (3) as it stands does not however provide for advice by the Commission there under. It is also not clear whether the Commission under S. 32P is a permanent Commission. It is however urged on behalf of the State that R. 31 (3) must be read subject to the Act and therefore if the Act requires that the Commission must be consulted in the matter of exemption the Government will be bound to consult the Commission even when it proceeds to revise the classification under R. 31 (3).We accept the submission on behalf of the State and hold that though R. 31 (3) does not specifically provide for consultation with the Commission at the time of revision that rule must be read subject to S. 32P (4) and eves at the time of revision the Government is bound to take the advice of the Commission and is bound to act32K lays down that the provisions of S. 32A will not apply to efficiently managed farms etc. Once therefore it is held that a farm comes within S. 32K (1) (iv) the provisions of S. 32-A relating to ceiling will not apply to it. There is nothing in Chapter IV-A to suggest that once an efficiently managed farm is taken out of the provisions of S.32A on the advice of the Commission it can be subjected again to those provisions. Nor have we found anything in the Act which gives power to the State Government to subject a farm to which S. 32A does not apply in view of S. 32K to the provisions S. 32A later. We realise that it may be possible for a farm which was efficiently managed when the Act came into force in 1956 to be so mis-managed later that it no longer remains an efficiently managed farm within the meaning of S. 32-K-(I) (iv) and it does seem reasonable in those circumstances that the provisions of S. 32A should apply later to such a mis-managed farm. But that in our opinion has not been provided in the Act itself. Once the farm as it was on October 30, 1956, gets the benefit of S. 32-K (1) (iv), such a provision in our opinion cannot be made by a rule, for in that case the rule would be going beyond the purview of the Act and would be ultra vires. That is another reason why R. 31 (3) must be struck down as ultra vires of the Act.14. Besides the attack on Sch. C based on fixing unattainable standards mala fide, the Schedule is further attacked on the ground that it goes beyond the intention behind S. 32K (1) (iv) inasmuch as it provides for a mathematical formula irrespective of various other considerations which have a great play in the matter of yield. We have already pointed out that Sch. C only provides for two classes of lands, namely, irrigated and unirrigated. Further the proviso to R. 31(4) (b) lays down that in allotting marks for yields, the Commission shall apply the standard yields given in Sch. C. This means that if the yield of a particular farm of irrigated land is, for example, 15 maunds of wheat per acre, the Commission would be bound under the proviso to give 50 per centum of the marks provided for yields in Sch. B. i.e., the Commission will have to award 250 out of 500 marks to such a farm. Now if land whether irrigated or unirrigated was of one quality and if there were no other factors to be taken into consideration in judging the yield in a particular area the application of a mathematical formula would have been justified. But there is no doubt that irrigated and unirrigated lands are not all of the same quality and that quality of land does affect production. There are other factors also to which we shall later refer which have to be taken into account in considering the yield; but those factors have all been ignored in Sch. C. Turning to the quality of land, we find from Sch. A to the Rules, which has been framed with respect of R. 5 for conversion of ordinary acres into standard acres, that there are eight qualities of land in the State of which five are under the head "irrigated," (namely, Chahi, Chahi-Nehri, Nehri perennial, Nehri non-perennial and Abi) and three under the head "unirrigated" (namely, Sailabi, Barani and Bhud).The highest quality is Nehri perennial and it is marked as 100 meaning thereby that one ordinary acre of Nehri perennial is equal to one standard acre. The lowest qualify of irrigated land is Nehri non-perennial, which is remarked as 75, meaning thereby that four ordinary acres of Nehri non-perennial are equal to three standard acres. This means that the yield of the lowest quality of irrigated land would be 25 per centum less than the best irrigated land. Now if the standards fixed in Sch. C are with reference to the best land, the best irrigated land is expected to produce 30 maunds minus 20 per centum i.e., 24 maunds. The lowest quality of irrigated land will be expected to produce 22 1/2 maunds (i.e. 75 per centum of the best land) minus 20 per centum, equal to 18 maunds. This shows that unless some account is taken of the quality of land, Sch. C is bound to work harshly on those farms where the quality of the irrigated land is of the lowest type. It may be said, however, that Sch. C is based on averages. Even if that is so, there is bound to be inequality where all the irrigated land of the farm is of the lowest quality. The same applies to unirrigated land. The best unirrigated land is Sailabi, which has 62 per centum yield as compared to the Nehri perennial, meaning thereby that roughly 10 acres of sailabi land are equal to six standard acres. Barani land is rated at 50 per centum of the best and thus two acres of barani land will be equal to one standard acre. Bhud is the worst and rate at 25 per centum and four acres of bhud are equal to one standard acre. Thus if the valuation given in Sch. A is accepted, bhud is only half as productive as sailabi.Therefore when Sch. C fixes one standard for unirrigated land without regard to quality it is bound to work inequality between farms and farms. It has been urged on behalf of the State that the Commission would be entitled to take into account these differences in quality. There is however nothing in R. 31 which permits the Commission to take into account this difference in the quality of land. The proviso to R. 31(4) (b) definitely lays down that in allotting marks the Commission shall apply the standard yield given in Sch. C, so that the Commission is bound to apply those yield in every case and there is nothing in R. 31 which permits the Commission to take into account the difference in quality of land. Now when S. 32K (1) (iv) read with S. 32-P provided for the appointment of a Commission to advise on the question of exemption under S. 32K (1) (iv), the intention of the legislature obviously was that the Commission will take into account all factors which should be properly taken into account in giving its advice. Quality of land is one such factor which should be properly taken into account by the Commission; but as the proviso to R. 31(4) stands, the Commission is bound to apply Sch. C on a mathematical basis without consideration of other factors. We are therefore of opinion that the proviso to R. 31 (4) (b) inasmuch as it obliges the Commission to apply Sch. C on a mathematical basis goes beyond the provisions of S. 32 K. It was certainly suggested in argument before us that it would be open to the Commission to take into account the difference in the quality of land. But there is nothing in the reply of the State to suggest this and we cannot accept what is suggested to us in argument in the face of the proviso to R. 31 (4) (b). The proviso therefore must be struck down as going beyond the rule-making power inasmuch as it is ultra vires the provisions of S. 32 K (1) (iv).There are other factors which govern the yield of land and these also have not been taken into account in R. 31. These factors may be grouped under the head "natural calamities" as for example, pests, locusts, excessive rain, floods and drought. There is nothing in R. 31 which gives a discretion to the Commission when applying the proviso to R. 31 (4) (b) to take into account these factors. Obviously, the intention behind the provision in S. 32K (1) (iv) was that in evaluating whether a farm was efficiently managed, the Commission will take all those factors which properly require consideration in the matter of yield into account. It was however suggested that the Commission was entitled to take these factors into account when judging the matter of yields; but we find nothing in the reply of the State Government to this effect and in any case if the proviso to R. 31 (4) (b) is interpreted as it stands it may not be possible for the Commission to take these factors into account when advising the State Government under S. 32K (1) (iv). It is not even clear which year before October 30,1956, the Commission will take into account in advising the Government, whether a particular farm is entitled to the benefit of S. 32K (1) (iv). If, for example the base year is one immediately- preceding October 30, 1956, and if in that year there was some natural calamity, the Commission cannot take that into account and must apply Sch. C as the proviso to R. 31(4) (b) seems to intend. The intention of the legislature therefore behind S. 32 K (1) (iv) would be subverted because of this proviso. That is another reason why this proviso should be struck down as going beyond the intention of the legislature in S. 32K(1)(iv).Lastly, there is another factor which is also very relevant in the matter of yields, namely, the rotation of crops which requires all good farmers to leave some part of their lands low by turns for a whole year in order that the fertility of the soil can be preserved. Again there is nothing in the proviso which allows the Commission to take into account this factor and make calculations only on the actual area of a farm which is cultivated and leave out of account such reasonable area as may not be cultivated in order to preserve the fertility of land on the principle of rotation of crops.As the proviso stands, the Commission is to apply Sch. C over the entire area of the farm without taking into account the factor of rotation of crops which necessitates that some reasonable portion of the land must be left follow for the whole year in order to preserve the fertility of the soil. Here again it is urged on behalf of the State in argument that the Commission can do so. But again that is not to be found in the reply of the State and as the proviso stands it obliges the Commission to apply Sch. C to the entire area of a farm in order to judge whether it is an efficiently managed farm. This is therefore another reason why the proviso goes beyond the intention of the legislature contained in S.32K (1)(iv).The proviso therefore to R. 31(4) (b) must he struck down as beyond the rule making power of the State Government. As soon as the proviso is struck down it would be impossible to work R.31 properly; therefore, the entire R. 31 must fall on this ground also. | 1 | 8,496 | 4,289 | ### 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:
best and thus two acres of barani land will be equal to one standard acre. Bhud is the worst and rate at 25 per centum and four acres of bhud are equal to one standard acre. Thus if the valuation given in Sch. A is accepted, bhud is only half as productive as sailabi.16. Therefore when Sch. C fixes one standard for unirrigated land without regard to quality it is bound to work inequality between farms and farms. It has been urged on behalf of the State that the Commission would be entitled to take into account these differences in quality. There is however nothing in R. 31 which permits the Commission to take into account this difference in the quality of land. The proviso to R. 31(4) (b) definitely lays down that in allotting marks the Commission shall apply the standard yield given in Sch. C, so that the Commission is bound to apply those yield in every case and there is nothing in R. 31 which permits the Commission to take into account the difference in quality of land. Now when S. 32K (1) (iv) read with S. 32-P provided for the appointment of a Commission to advise on the question of exemption under S. 32K (1) (iv), the intention of the legislature obviously was that the Commission will take into account all factors which should be properly taken into account in giving its advice. Quality of land is one such factor which should be properly taken into account by the Commission; but as the proviso to R. 31(4) stands, the Commission is bound to apply Sch. C on a mathematical basis without consideration of other factors. We are therefore of opinion that the proviso to R. 31 (4) (b) inasmuch as it obliges the Commission to apply Sch. C on a mathematical basis goes beyond the provisions of S. 32 K. It was certainly suggested in argument before us that it would be open to the Commission to take into account the difference in the quality of land. But there is nothing in the reply of the State to suggest this and we cannot accept what is suggested to us in argument in the face of the proviso to R. 31 (4) (b). The proviso therefore must be struck down as going beyond the rule-making power inasmuch as it is ultra vires the provisions of S. 32 K (1) (iv).17. There are other factors which govern the yield of land and these also have not been taken into account in R. 31. These factors may be grouped under the head "natural calamities" as for example, pests, locusts, excessive rain, floods and drought. There is nothing in R. 31 which gives a discretion to the Commission when applying the proviso to R. 31 (4) (b) to take into account these factors. Obviously, the intention behind the provision in S. 32K (1) (iv) was that in evaluating whether a farm was efficiently managed, the Commission will take all those factors which properly require consideration in the matter of yield into account. It was however suggested that the Commission was entitled to take these factors into account when judging the matter of yields; but we find nothing in the reply of the State Government to this effect and in any case if the proviso to R. 31 (4) (b) is interpreted as it stands it may not be possible for the Commission to take these factors into account when advising the State Government under S. 32K (1) (iv). It is not even clear which year before October 30,1956, the Commission will take into account in advising the Government, whether a particular farm is entitled to the benefit of S. 32K (1) (iv). If, for example the base year is one immediately- preceding October 30, 1956, and if in that year there was some natural calamity, the Commission cannot take that into account and must apply Sch. C as the proviso to R. 31(4) (b) seems to intend. The intention of the legislature therefore behind S. 32 K (1) (iv) would be subverted because of this proviso. That is another reason why this proviso should be struck down as going beyond the intention of the legislature in S. 32K(1)(iv).18. Lastly, there is another factor which is also very relevant in the matter of yields, namely, the rotation of crops which requires all good farmers to leave some part of their lands low by turns for a whole year in order that the fertility of the soil can be preserved. Again there is nothing in the proviso which allows the Commission to take into account this factor and make calculations only on the actual area of a farm which is cultivated and leave out of account such reasonable area as may not be cultivated in order to preserve the fertility of land on the principle of rotation of crops.As the proviso stands, the Commission is to apply Sch. C over the entire area of the farm without taking into account the factor of rotation of crops which necessitates that some reasonable portion of the land must be left follow for the whole year in order to preserve the fertility of the soil. Here again it is urged on behalf of the State in argument that the Commission can do so. But again that is not to be found in the reply of the State and as the proviso stands it obliges the Commission to apply Sch. C to the entire area of a farm in order to judge whether it is an efficiently managed farm. This is therefore another reason why the proviso goes beyond the intention of the legislature contained in S.32K (1)(iv).19. The proviso therefore to R. 31(4) (b) must he struck down as beyond the rule making power of the State Government. As soon as the proviso is struck down it would be impossible to work R.31 properly; therefore, the entire R. 31 must fall on this ground also.20.
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per centum of the best and thus two acres of barani land will be equal to one standard acre. Bhud is the worst and rate at 25 per centum and four acres of bhud are equal to one standard acre. Thus if the valuation given in Sch. A is accepted, bhud is only half as productive as sailabi.Therefore when Sch. C fixes one standard for unirrigated land without regard to quality it is bound to work inequality between farms and farms. It has been urged on behalf of the State that the Commission would be entitled to take into account these differences in quality. There is however nothing in R. 31 which permits the Commission to take into account this difference in the quality of land. The proviso to R. 31(4) (b) definitely lays down that in allotting marks the Commission shall apply the standard yield given in Sch. C, so that the Commission is bound to apply those yield in every case and there is nothing in R. 31 which permits the Commission to take into account the difference in quality of land. Now when S. 32K (1) (iv) read with S. 32-P provided for the appointment of a Commission to advise on the question of exemption under S. 32K (1) (iv), the intention of the legislature obviously was that the Commission will take into account all factors which should be properly taken into account in giving its advice. Quality of land is one such factor which should be properly taken into account by the Commission; but as the proviso to R. 31(4) stands, the Commission is bound to apply Sch. C on a mathematical basis without consideration of other factors. We are therefore of opinion that the proviso to R. 31 (4) (b) inasmuch as it obliges the Commission to apply Sch. C on a mathematical basis goes beyond the provisions of S. 32 K. It was certainly suggested in argument before us that it would be open to the Commission to take into account the difference in the quality of land. But there is nothing in the reply of the State to suggest this and we cannot accept what is suggested to us in argument in the face of the proviso to R. 31 (4) (b). The proviso therefore must be struck down as going beyond the rule-making power inasmuch as it is ultra vires the provisions of S. 32 K (1) (iv).There are other factors which govern the yield of land and these also have not been taken into account in R. 31. These factors may be grouped under the head "natural calamities" as for example, pests, locusts, excessive rain, floods and drought. There is nothing in R. 31 which gives a discretion to the Commission when applying the proviso to R. 31 (4) (b) to take into account these factors. Obviously, the intention behind the provision in S. 32K (1) (iv) was that in evaluating whether a farm was efficiently managed, the Commission will take all those factors which properly require consideration in the matter of yield into account. It was however suggested that the Commission was entitled to take these factors into account when judging the matter of yields; but we find nothing in the reply of the State Government to this effect and in any case if the proviso to R. 31 (4) (b) is interpreted as it stands it may not be possible for the Commission to take these factors into account when advising the State Government under S. 32K (1) (iv). It is not even clear which year before October 30,1956, the Commission will take into account in advising the Government, whether a particular farm is entitled to the benefit of S. 32K (1) (iv). If, for example the base year is one immediately- preceding October 30, 1956, and if in that year there was some natural calamity, the Commission cannot take that into account and must apply Sch. C as the proviso to R. 31(4) (b) seems to intend. The intention of the legislature therefore behind S. 32 K (1) (iv) would be subverted because of this proviso. That is another reason why this proviso should be struck down as going beyond the intention of the legislature in S. 32K(1)(iv).Lastly, there is another factor which is also very relevant in the matter of yields, namely, the rotation of crops which requires all good farmers to leave some part of their lands low by turns for a whole year in order that the fertility of the soil can be preserved. Again there is nothing in the proviso which allows the Commission to take into account this factor and make calculations only on the actual area of a farm which is cultivated and leave out of account such reasonable area as may not be cultivated in order to preserve the fertility of land on the principle of rotation of crops.As the proviso stands, the Commission is to apply Sch. C over the entire area of the farm without taking into account the factor of rotation of crops which necessitates that some reasonable portion of the land must be left follow for the whole year in order to preserve the fertility of the soil. Here again it is urged on behalf of the State in argument that the Commission can do so. But again that is not to be found in the reply of the State and as the proviso stands it obliges the Commission to apply Sch. C to the entire area of a farm in order to judge whether it is an efficiently managed farm. This is therefore another reason why the proviso goes beyond the intention of the legislature contained in S.32K (1)(iv).The proviso therefore to R. 31(4) (b) must he struck down as beyond the rule making power of the State Government. As soon as the proviso is struck down it would be impossible to work R.31 properly; therefore, the entire R. 31 must fall on this ground also.
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NAMAN VERMA Vs. THE DIRECTOR, THE INDIAN INSTITUTE OF TECHNOLOGY BOMBAY & ORS | 1. This appeal challenges the judgment and order dated 17.04.2018 passed by the High Court of Judicature at Bombay in Writ Petition No.6818 of 2013. 2. Claiming to be suffering from learning disabilities known as Dyscalculia, the appellant preferred the aforestated writ petition praying for following principal relief: (a) this Honble Court may please issue a writ of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the Respondent to take the petitioner into course of Master Design in 2013 batch. 3. Under the interim orders passed by the High Court, her candidature was directed to be considered and the appellant was admitted to the course of Master in Design. 4. With the passage of time, the appellant completed the course successfully. 5. However, when the writ petition was taken up for final disposal, after considering various issues, the entitlement of the appellant under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1995 Act for short) was not accepted. 6. The High Court was then confronted with the issue as to what would be the fate and what directions can be passed when the appellant had completed the course under the interim directions. While dealing with the issue, the High Court observed as under: We are of the view that although the petitioner may be entitled to be declared successful in the course we are unable to grant her any further relief in this petition for want of necessary powers under Article 226 to declare the petitioner as having passed M Des program held by IDC. 7. We have heard Mr. Anand Verma, learned Advocate in support of the appeal, and Ms. Aishwarya Bhati, learned Additional Solicitor General for the respondent. 8. At the outset, it must be mentioned that 1995 Act now stands replaced by the Rights of Persons with Disabilities Act, 2016 (2016 Act for short). 9. It is submitted that considering the provisions of the 2016 Act in any event of the matter, the entitlement of the appellant is certainly made out. We need not go into this issue. | 1[ds]8. At the outset, it must be mentioned that 1995 Act now stands replaced by the Rights of Persons with Disabilities Act, 2016 (2016 Act for short).9. It is submitted that considering the provisions of the 2016 Act in any event of the matter, the entitlement of the appellant is certainly made out. We need not go into this issue. | 1 | 406 | 74 | ### 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:
1. This appeal challenges the judgment and order dated 17.04.2018 passed by the High Court of Judicature at Bombay in Writ Petition No.6818 of 2013. 2. Claiming to be suffering from learning disabilities known as Dyscalculia, the appellant preferred the aforestated writ petition praying for following principal relief: (a) this Honble Court may please issue a writ of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the Respondent to take the petitioner into course of Master Design in 2013 batch. 3. Under the interim orders passed by the High Court, her candidature was directed to be considered and the appellant was admitted to the course of Master in Design. 4. With the passage of time, the appellant completed the course successfully. 5. However, when the writ petition was taken up for final disposal, after considering various issues, the entitlement of the appellant under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1995 Act for short) was not accepted. 6. The High Court was then confronted with the issue as to what would be the fate and what directions can be passed when the appellant had completed the course under the interim directions. While dealing with the issue, the High Court observed as under: We are of the view that although the petitioner may be entitled to be declared successful in the course we are unable to grant her any further relief in this petition for want of necessary powers under Article 226 to declare the petitioner as having passed M Des program held by IDC. 7. We have heard Mr. Anand Verma, learned Advocate in support of the appeal, and Ms. Aishwarya Bhati, learned Additional Solicitor General for the respondent. 8. At the outset, it must be mentioned that 1995 Act now stands replaced by the Rights of Persons with Disabilities Act, 2016 (2016 Act for short). 9. It is submitted that considering the provisions of the 2016 Act in any event of the matter, the entitlement of the appellant is certainly made out. We need not go into this issue.
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1
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8. At the outset, it must be mentioned that 1995 Act now stands replaced by the Rights of Persons with Disabilities Act, 2016 (2016 Act for short).9. It is submitted that considering the provisions of the 2016 Act in any event of the matter, the entitlement of the appellant is certainly made out. We need not go into this issue.
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JITEN K. AJMERA Vs. M/S TEJAS CO OPERATIVE HOUSING SOCIETY | referred to as “the National Commission”). The Revision Petition was filed to challenge the Interim Order dated 10.12.2015 passed by the State Commission Consumer Disputes Redressal Commission, Mumbai (hereinafter referred to as “the State Commission”) in First Appeal No. 85 of 2013. The Appellants herein had filed an Application under Order XLI Rule 27, CPC for permission to file additional documents, which have come into existence after the filing of the Appeal before the State Commission.2. The background facts in which the present Civil Appeal has been filed are briefly stated as under:2.1. The Appellants are the sons of Late Smt. Mrudula K. Ajmera who was the owner and in possession of a plot of land bearing CTS No. 284/38, Military Road, Marol Village, Andheri (East), Mumbai – 400059. The Late Smt. Mrudula K. Ajmera constructed a building viz. Tejas Apartments comprising of Ground plus 7 Upper Floors. The flats were sold to various purchasers on ownership basis. The flat owners formed the Respondent – Housing Society viz. M/s Tejas Co¬operative Housing Society2.2. The Respondent – Housing Society filed Consumer Complaint No. 570 of 2008 before the District Consumer Disputes Redressal Forum, Mumbai Sub¬ District. It was alleged that the Appellants/Opposite Parties had failed to supply service amenities to the members of the Respondent – Housing Society, failed to obtain the Occupancy Certificate from the Municipal Corporation, and execute the Conveyance Deed in favour of the society.The District Forum partly allowed the Consumer Complaint vide Order dated 27.02.2013. It was declared that the Appellants had failed to supply the service amenities to the Respondent – Housing Society, and obtain the Occupancy Certificate from the Municipal Corporation, and execute the Conveyance Deed.The District Forum directed the Appellants to obtain the Occupancy Certificate for the building within 3 months from the date of judgment. If the Appellants failed to obtain the Occupancy Certificate within the period specified, they would be liable to pay Rs. 500/¬ per day to the society.The Appellants were further directed to execute the Conveyance Deed in favour of the Respondent – Housing Society within 6 months from the date of judgment; refund the amount of Rs. 1,80,600/¬ collected from the society members towards service amenities; refund the amount of Rs. 1,15,368/¬ incurred by the society members towards formation of the society; and refund the amount of Rs. 1,98,198/¬ paid by the society members towards water taxes.2.3. Aggrieved by the aforesaid Order passed by the District Forum, the Appellants filed First Appeal No. 85 of 2013 before the State Consumer Disputes Redressal Commission, Maharashtra. The said Appeal is presently pending before the State Commission.2.4. On 15.01.2014, the Appellants/Developers filed an Application under Order XLI Rule 27, CPC for leading additional evidence before the State Commission in the pending Appeal. The Appellants requested for permission to produce two documents which had come into existence after the filing of the Appeal i.e. (i) Letter dated 08.08.2013 from their Architect to the Executive Engineer, Municipal Corporation of Greater Mumbai ( “MCGM”) enclosing the plans of all the floors, and requested for issuance of the Occupancy Certificate; (ii) Reply by the MCGM dated 26.08.2013, wherein it was stated that as per the visit done, there was unauthorized enclosure of elevation features by occupants which was violative of the last approved plans dated 02.07.2001. The Appellants were directed to remove the unauthorized structures along with compliance of requisite conditions.2.5. The State Commission vide Interim Order dated 10.12.2015 held that these documents were not necessary, and rejected the Application.2.6. Aggrieved by the aforesaid Interim Order dated 10.12.2015, the Appellants herein filed Revision Petition No. 175 of 2016 before the National Commission.The National Commission in para 11 of its Order dated 16.03.2018 held that it is an admitted fact that the additional documents sought to be produced by the Appellants did not exist while the matter was before the District Forum. The National Commission merely held that the additional information sought to be introduced does not satisfy the pre¬conditions under Section 107(1) (d) r.w. Rule 27 of Order XLI, CPC, and since the State Commission had held that the documents were not necessary, it did not call for any interference.2.7. Aggrieved by the Impugned Order dated 16.03.2018 passed by the National Commission, the Appellants have filed the present Appeal.3. We have heard learned Counsel for both parties, and perused the pleadings on record.3.1. We have perused the Application filed by the Appellants herein for bringing additional evidence on record, along with the documents sought to be produced in the pending Appeal before the State Commission. These documents have admittedly come into existence after the Appeal was filed before the State Commission. The Appellants therefore, could not have produced the said documents before the District Forum.3.2. Under Order XLI Rule 27, CPC a party can produce additional evidence at the appellate stage, if it establishes that notwithstanding the exercise of due diligence, such evidence was not within its knowledge, or could not even after the exercise of due diligence, be produced by it at the time when the decree appealed against was passed. A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713 3.3. These documents are of relevance to establish that the Appellants are not in a position to obtain the Occupancy Certificate from the MCGM until the unauthorized structures, which are in violation of the approved plans, are removed. In the absence of these documents, the Appellants would not be in a position to . substantiate their case that they are unable to obtain the Occupancy Certificate, and comply with the directions issued by the District Forum.4. The State Commission was in error by rejecting the Application filed by the Appellants under Order XLI Rule 27, CPC by merely stating that the documents are “not necessary”. The said Order is an unreasoned one. The State Commission must have taken a holistic view of the matter.5. The National Commission has by the Impugned Order dated 16.03.2018 affirmed the Interim Order passed by the State Commission. | 1[ds]3.1. We have perused the Application filed by the Appellants herein for bringing additional evidence on record, along with the documents sought to be produced in the pending Appeal before the State Commission. These documents have admittedly come into existence after the Appeal was filed before the State Commission. The Appellants therefore, could not have produced the said documents before the District Forum.3.These documents are of relevance to establish that the Appellants are not in a position to obtain the Occupancy Certificate from the MCGM until the unauthorized structures, which are in violation of the approved plans, are removed. In the absence of these documents, the Appellants would not be in a position to . substantiate their case that they are unable to obtain the Occupancy Certificate, and comply with the directions issued by the District Forum.4. The State Commission was in error by rejecting the Application filed by the Appellants under Order XLI Rule 27, CPC by merely stating that the documents are. The said Order is an unreasoned one. The State Commission must have taken a holistic view of the matter.5. The National Commission has by the Impugned Order dated 16.03.2018 affirmed the Interim Order passed by the State Commission. | 1 | 1,155 | 222 | ### 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:
referred to as “the National Commission”). The Revision Petition was filed to challenge the Interim Order dated 10.12.2015 passed by the State Commission Consumer Disputes Redressal Commission, Mumbai (hereinafter referred to as “the State Commission”) in First Appeal No. 85 of 2013. The Appellants herein had filed an Application under Order XLI Rule 27, CPC for permission to file additional documents, which have come into existence after the filing of the Appeal before the State Commission.2. The background facts in which the present Civil Appeal has been filed are briefly stated as under:2.1. The Appellants are the sons of Late Smt. Mrudula K. Ajmera who was the owner and in possession of a plot of land bearing CTS No. 284/38, Military Road, Marol Village, Andheri (East), Mumbai – 400059. The Late Smt. Mrudula K. Ajmera constructed a building viz. Tejas Apartments comprising of Ground plus 7 Upper Floors. The flats were sold to various purchasers on ownership basis. The flat owners formed the Respondent – Housing Society viz. M/s Tejas Co¬operative Housing Society2.2. The Respondent – Housing Society filed Consumer Complaint No. 570 of 2008 before the District Consumer Disputes Redressal Forum, Mumbai Sub¬ District. It was alleged that the Appellants/Opposite Parties had failed to supply service amenities to the members of the Respondent – Housing Society, failed to obtain the Occupancy Certificate from the Municipal Corporation, and execute the Conveyance Deed in favour of the society.The District Forum partly allowed the Consumer Complaint vide Order dated 27.02.2013. It was declared that the Appellants had failed to supply the service amenities to the Respondent – Housing Society, and obtain the Occupancy Certificate from the Municipal Corporation, and execute the Conveyance Deed.The District Forum directed the Appellants to obtain the Occupancy Certificate for the building within 3 months from the date of judgment. If the Appellants failed to obtain the Occupancy Certificate within the period specified, they would be liable to pay Rs. 500/¬ per day to the society.The Appellants were further directed to execute the Conveyance Deed in favour of the Respondent – Housing Society within 6 months from the date of judgment; refund the amount of Rs. 1,80,600/¬ collected from the society members towards service amenities; refund the amount of Rs. 1,15,368/¬ incurred by the society members towards formation of the society; and refund the amount of Rs. 1,98,198/¬ paid by the society members towards water taxes.2.3. Aggrieved by the aforesaid Order passed by the District Forum, the Appellants filed First Appeal No. 85 of 2013 before the State Consumer Disputes Redressal Commission, Maharashtra. The said Appeal is presently pending before the State Commission.2.4. On 15.01.2014, the Appellants/Developers filed an Application under Order XLI Rule 27, CPC for leading additional evidence before the State Commission in the pending Appeal. The Appellants requested for permission to produce two documents which had come into existence after the filing of the Appeal i.e. (i) Letter dated 08.08.2013 from their Architect to the Executive Engineer, Municipal Corporation of Greater Mumbai ( “MCGM”) enclosing the plans of all the floors, and requested for issuance of the Occupancy Certificate; (ii) Reply by the MCGM dated 26.08.2013, wherein it was stated that as per the visit done, there was unauthorized enclosure of elevation features by occupants which was violative of the last approved plans dated 02.07.2001. The Appellants were directed to remove the unauthorized structures along with compliance of requisite conditions.2.5. The State Commission vide Interim Order dated 10.12.2015 held that these documents were not necessary, and rejected the Application.2.6. Aggrieved by the aforesaid Interim Order dated 10.12.2015, the Appellants herein filed Revision Petition No. 175 of 2016 before the National Commission.The National Commission in para 11 of its Order dated 16.03.2018 held that it is an admitted fact that the additional documents sought to be produced by the Appellants did not exist while the matter was before the District Forum. The National Commission merely held that the additional information sought to be introduced does not satisfy the pre¬conditions under Section 107(1) (d) r.w. Rule 27 of Order XLI, CPC, and since the State Commission had held that the documents were not necessary, it did not call for any interference.2.7. Aggrieved by the Impugned Order dated 16.03.2018 passed by the National Commission, the Appellants have filed the present Appeal.3. We have heard learned Counsel for both parties, and perused the pleadings on record.3.1. We have perused the Application filed by the Appellants herein for bringing additional evidence on record, along with the documents sought to be produced in the pending Appeal before the State Commission. These documents have admittedly come into existence after the Appeal was filed before the State Commission. The Appellants therefore, could not have produced the said documents before the District Forum.3.2. Under Order XLI Rule 27, CPC a party can produce additional evidence at the appellate stage, if it establishes that notwithstanding the exercise of due diligence, such evidence was not within its knowledge, or could not even after the exercise of due diligence, be produced by it at the time when the decree appealed against was passed. A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713 3.3. These documents are of relevance to establish that the Appellants are not in a position to obtain the Occupancy Certificate from the MCGM until the unauthorized structures, which are in violation of the approved plans, are removed. In the absence of these documents, the Appellants would not be in a position to . substantiate their case that they are unable to obtain the Occupancy Certificate, and comply with the directions issued by the District Forum.4. The State Commission was in error by rejecting the Application filed by the Appellants under Order XLI Rule 27, CPC by merely stating that the documents are “not necessary”. The said Order is an unreasoned one. The State Commission must have taken a holistic view of the matter.5. The National Commission has by the Impugned Order dated 16.03.2018 affirmed the Interim Order passed by the State Commission.
### Response:
1
### Explanation:
3.1. We have perused the Application filed by the Appellants herein for bringing additional evidence on record, along with the documents sought to be produced in the pending Appeal before the State Commission. These documents have admittedly come into existence after the Appeal was filed before the State Commission. The Appellants therefore, could not have produced the said documents before the District Forum.3.These documents are of relevance to establish that the Appellants are not in a position to obtain the Occupancy Certificate from the MCGM until the unauthorized structures, which are in violation of the approved plans, are removed. In the absence of these documents, the Appellants would not be in a position to . substantiate their case that they are unable to obtain the Occupancy Certificate, and comply with the directions issued by the District Forum.4. The State Commission was in error by rejecting the Application filed by the Appellants under Order XLI Rule 27, CPC by merely stating that the documents are. The said Order is an unreasoned one. The State Commission must have taken a holistic view of the matter.5. The National Commission has by the Impugned Order dated 16.03.2018 affirmed the Interim Order passed by the State Commission.
|
Gursahai Saigal Vs. Commissioner Of Income-Tax, Punjab | the amount of his emoluments for the period beginning on the sixth day of April in that year and ending on the date of the cessation" came up for construction. It was contended that a sum of pound 10, 000 which became payable to the assessee as the executor of the deceased holder of an office under the terms on which the office was held was not liable to tax under the section as it could not be said to be " his emoluments" since it was payable after his death. It was observed by Scott L.J., "the rules...... in Section 45, Sub-section (5) and (6), are rules affecting assessment and collection, and that if there is any difficulty in the precise applicability of the language of those Sub-sections, it should be interpreted largely and generously in order not to defeat the main object of liability laid down by Rule 1 of Schedule E." Dealing with the words "his emoluments occurring in the subsection the learned Lord Justice said, "It is quite true that strictly speaking the emoluments in question never became his in the sense that the quantitative amount of pound 10, 000 became his property, It never became payable to him, because he died. But that it was his emoluments under the agreement with the Company in a broad sense seems to me to be obvious, and in order to prevent the Revenues failure to get the tax which was intended b Rule 1 of schedule E, it appears to me to be legitimate to treat the words in question as meaning on the amount of the emoluments attaching to the office which he held."On this interpretation of Sub-section (5) tax was assessed in this case.10. Now it seems to us that we are dealing here with a provision which lays down the machinery for the assessment of interest. That sub-section (8) intended to and did in the clearest term impose a charge for interest seems to us to be beyond dispute. It says that interest calculated in a certain mariner "shall be added to the tax." We do not here have to resort to any equitable rule of constructing or to alter the meaning of the language used or to add to or vary it in order to arrive at the conclusion that the provision intended to impose a liability to pay interest. That is the plain affect of the language used. But the Subsection also provides that the interest for which liability was created, has to be calculated in a certain manner. It is this provision which has given rise to the difficulty. But obviously this provision only lays down the machinery for assessing the amount of interest for which liability was clearly created; it in substance says that in calculating the amount of interest the machinery of calculation laid down in sub, sec. (6) shall be applied. The proper way to deal with such a provision is to give it an interpretation which, to use the words of the Privy Council in Mahairam Kamjidass(A.I.R. (1940) P.C. 124, 126-127.) case , makes the machinery workable, utres valeat potius quam pereat". We, therefore, think that we should read sub-sec.(6), according to the provision of which interest has to be calculated as provided in sub-sec.(8) in a manner which makes it workable and thereby prevent the clear intention of sub-sec.(8) being defeated. Now, how is that best done? As we have earlier said sub-sec.(6) deals with a case in which tax has been pail and therefore it says that interest would be calculated "from the I at day of January in the financial year in which the tax was paid". This obviously cannot literarily be applied to a case where no tax has been paid. If however the portion of sub-see. (6) which we have quoted above is read as, "from the 1st day of January in the finan- cial ear in which the tax ought to have been paid", the provisions becomes workable. It would not be doing too much violence to the words used to read them in this way. The tax ought to have been paid on one or other of the dates earlier mentioned. The intention was that interest should be charged from January 1 of the financial year in which the tax ought to have been paid. Those who paid the tax but a smaller amount and those who did not pay tax at all would than be put in the same position substantially which is obviously fair and was clearly intended. Which is the precise financial year in any case would depend on its facts and this, would make no difference in the construction of the provision.With regard to the other question about there being no shortfall between eighty per cent. of the amount of tax found payable on the regular assessment and the amount of tax paid in a case where no tax was paid, it seems to us the position is much simpler. If no tax is paid, the amount of such shortfall will naturally be the entire eighty per cent. We also think that the case before us is very near to Allens case((138) 22 T.C. 15. 16, 17.) It remains now to refer to sub-s, (9) of s. 18A. That subsection provides for payment of penalty in terms of s. 28 upon submission of estimates under sub-sees. (2) and (3) known or reasonably believed to be untrue or upon failure without reasonable cause to comply with the provisions of sub- sec.(3). We are unable to see that this provision in any way affects the construction of sub secs.(6) or (8) or assists in the solution of the, difficulty which has arisen in this case. The penalty under sub-sec.(9) is in addition to the liability under sub-sec. (6) and (8) which his not penalty in the real sence, and is leviable for reasons different from those on which the levy of interest under sub-secs. (6) and (8) is besad.11. | 0[ds]The object of this rule is to prevent a taxing statute being construed "according to its intent, though not according to its words": In re Bethlem Hospital ((1875) L.R. 19 Eq. 475, 459.). This Court has accepted this rule. Bhagwati J. in A. V. Fernandez v. The State of Kerala ([1957] S.C.R. 83 7, 847.) said, "If.......... the case is not covered within the four corners of the provisions of the tax- ing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter."It has been said that "If the provision is so wanting in clarity that no meaning is responsibly clear, the courts will be unable to regard it at; of any effect." : see InlandRevenue Commissioners v. Baldnoch Distillery Co. Ltd. ((1948) 1 All. E. R. 676,it is well recognised that the rule of construction on which the assessee relies applies only to a taxing provision and has no application to all provisions in a taxing statue. It does not, for example, apply to a provision not creating a charge for the tax but laying down the machinery for its calculation or procedure for its collection. The provisions in a taxing statute dealing with machinery for assessment have to be construed by the ordinary rules of construction, that is to say, in accordance with the clear intention of the legislature which is to make a charge leviedit seems to us that we are dealing here with a provision which lays down the machinery for the assessment of interest. That sub-section (8) intended to and did in the clearest term impose a charge for interest seems to us to be beyond dispute. It says that interest calculated in a certain mariner "shall be added to the tax." We do not here have to resort to any equitable rule of constructing or to alter the meaning of the language used or to add to or vary it in order to arrive at the conclusion that the provision intended to impose a liability to pay interest. That is the plain affect of the language used. But the Subsection also provides that the interest for which liability was created, has to be calculated in a certain manner. It is this provision which has given rise to the difficulty. But obviously this provision only lays down the machinery for assessing the amount of interest for which liability was clearly created; it in substance says that in calculating the amount of interest the machinery of calculation laid down in sub, sec. (6) shall be applied. The proper way to deal with such a provision is to give it an interpretation which, to use the words of the Privy Council in Mahairam Kamjidass(A.I.R. (1940) P.C. 124, 126-127.) case , makes the machinery workable, utres valeat potius quam pereat". We, therefore, think that we should read sub-sec.(6), according to the provision of which interest has to be calculated as provided in sub-sec.(8) in a manner which makes it workable and thereby prevent the clear intention of sub-sec.(8) being defeated. Now, how is that best done? As we have earlier said sub-sec.(6) deals with a case in which tax has been pail and therefore it says that interest would be calculated "from the I at day of January in the financial year in which the tax was paid". This obviously cannot literarily be applied to a case where no tax has been paid. If however the portion of sub-see. (6) which we have quoted above is read as, "from the 1st day of January in the finan- cial ear in which the tax ought to have been paid", the provisions becomes workable. It would not be doing too much violence to the words used to read them in this way. The tax ought to have been paid on one or other of the dates earlier mentioned. The intention was that interest should be charged from January 1 of the financial year in which the tax ought to have been paid. Those who paid the tax but a smaller amount and those who did not pay tax at all would than be put in the same position substantially which is obviously fair and was clearly intended. Which is the precise financial year in any case would depend on its facts and this, would make no difference in the construction of the provision.With regard to the other question about there being no shortfall between eighty per cent. of the amount of tax found payable on the regular assessment and the amount of tax paid in a case where no tax was paid, it seems to us the position is much simpler. If no tax is paid, the amount of such shortfall will naturally be the entire eighty per cent. We also think that the case before us is very near to Allens case((138) 22 T.C. 15. 16, 17.) It remains now to refer to sub-s, (9) of s. 18A. That subsection provides for payment of penalty in terms of s. 28 upon submission of estimates under sub-sees. (2) and (3) known or reasonably believed to be untrue or upon failure without reasonable cause to comply with the provisions of sub- sec.(3). We are unable to see that this provision in any way affects the construction of sub secs.(6) or (8) or assists in the solution of the, difficulty which has arisen in this case. The penalty under sub-sec.(9) is in addition to the liability under sub-sec. (6) and (8) which his not penalty in the real sence, and is leviable for reasons different from those on which the levy of interest under sub-secs. (6) and (8) is besad. | 0 | 3,210 | 1,130 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the amount of his emoluments for the period beginning on the sixth day of April in that year and ending on the date of the cessation" came up for construction. It was contended that a sum of pound 10, 000 which became payable to the assessee as the executor of the deceased holder of an office under the terms on which the office was held was not liable to tax under the section as it could not be said to be " his emoluments" since it was payable after his death. It was observed by Scott L.J., "the rules...... in Section 45, Sub-section (5) and (6), are rules affecting assessment and collection, and that if there is any difficulty in the precise applicability of the language of those Sub-sections, it should be interpreted largely and generously in order not to defeat the main object of liability laid down by Rule 1 of Schedule E." Dealing with the words "his emoluments occurring in the subsection the learned Lord Justice said, "It is quite true that strictly speaking the emoluments in question never became his in the sense that the quantitative amount of pound 10, 000 became his property, It never became payable to him, because he died. But that it was his emoluments under the agreement with the Company in a broad sense seems to me to be obvious, and in order to prevent the Revenues failure to get the tax which was intended b Rule 1 of schedule E, it appears to me to be legitimate to treat the words in question as meaning on the amount of the emoluments attaching to the office which he held."On this interpretation of Sub-section (5) tax was assessed in this case.10. Now it seems to us that we are dealing here with a provision which lays down the machinery for the assessment of interest. That sub-section (8) intended to and did in the clearest term impose a charge for interest seems to us to be beyond dispute. It says that interest calculated in a certain mariner "shall be added to the tax." We do not here have to resort to any equitable rule of constructing or to alter the meaning of the language used or to add to or vary it in order to arrive at the conclusion that the provision intended to impose a liability to pay interest. That is the plain affect of the language used. But the Subsection also provides that the interest for which liability was created, has to be calculated in a certain manner. It is this provision which has given rise to the difficulty. But obviously this provision only lays down the machinery for assessing the amount of interest for which liability was clearly created; it in substance says that in calculating the amount of interest the machinery of calculation laid down in sub, sec. (6) shall be applied. The proper way to deal with such a provision is to give it an interpretation which, to use the words of the Privy Council in Mahairam Kamjidass(A.I.R. (1940) P.C. 124, 126-127.) case , makes the machinery workable, utres valeat potius quam pereat". We, therefore, think that we should read sub-sec.(6), according to the provision of which interest has to be calculated as provided in sub-sec.(8) in a manner which makes it workable and thereby prevent the clear intention of sub-sec.(8) being defeated. Now, how is that best done? As we have earlier said sub-sec.(6) deals with a case in which tax has been pail and therefore it says that interest would be calculated "from the I at day of January in the financial year in which the tax was paid". This obviously cannot literarily be applied to a case where no tax has been paid. If however the portion of sub-see. (6) which we have quoted above is read as, "from the 1st day of January in the finan- cial ear in which the tax ought to have been paid", the provisions becomes workable. It would not be doing too much violence to the words used to read them in this way. The tax ought to have been paid on one or other of the dates earlier mentioned. The intention was that interest should be charged from January 1 of the financial year in which the tax ought to have been paid. Those who paid the tax but a smaller amount and those who did not pay tax at all would than be put in the same position substantially which is obviously fair and was clearly intended. Which is the precise financial year in any case would depend on its facts and this, would make no difference in the construction of the provision.With regard to the other question about there being no shortfall between eighty per cent. of the amount of tax found payable on the regular assessment and the amount of tax paid in a case where no tax was paid, it seems to us the position is much simpler. If no tax is paid, the amount of such shortfall will naturally be the entire eighty per cent. We also think that the case before us is very near to Allens case((138) 22 T.C. 15. 16, 17.) It remains now to refer to sub-s, (9) of s. 18A. That subsection provides for payment of penalty in terms of s. 28 upon submission of estimates under sub-sees. (2) and (3) known or reasonably believed to be untrue or upon failure without reasonable cause to comply with the provisions of sub- sec.(3). We are unable to see that this provision in any way affects the construction of sub secs.(6) or (8) or assists in the solution of the, difficulty which has arisen in this case. The penalty under sub-sec.(9) is in addition to the liability under sub-sec. (6) and (8) which his not penalty in the real sence, and is leviable for reasons different from those on which the levy of interest under sub-secs. (6) and (8) is besad.11.
### Response:
0
### Explanation:
The object of this rule is to prevent a taxing statute being construed "according to its intent, though not according to its words": In re Bethlem Hospital ((1875) L.R. 19 Eq. 475, 459.). This Court has accepted this rule. Bhagwati J. in A. V. Fernandez v. The State of Kerala ([1957] S.C.R. 83 7, 847.) said, "If.......... the case is not covered within the four corners of the provisions of the tax- ing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter."It has been said that "If the provision is so wanting in clarity that no meaning is responsibly clear, the courts will be unable to regard it at; of any effect." : see InlandRevenue Commissioners v. Baldnoch Distillery Co. Ltd. ((1948) 1 All. E. R. 676,it is well recognised that the rule of construction on which the assessee relies applies only to a taxing provision and has no application to all provisions in a taxing statue. It does not, for example, apply to a provision not creating a charge for the tax but laying down the machinery for its calculation or procedure for its collection. The provisions in a taxing statute dealing with machinery for assessment have to be construed by the ordinary rules of construction, that is to say, in accordance with the clear intention of the legislature which is to make a charge leviedit seems to us that we are dealing here with a provision which lays down the machinery for the assessment of interest. That sub-section (8) intended to and did in the clearest term impose a charge for interest seems to us to be beyond dispute. It says that interest calculated in a certain mariner "shall be added to the tax." We do not here have to resort to any equitable rule of constructing or to alter the meaning of the language used or to add to or vary it in order to arrive at the conclusion that the provision intended to impose a liability to pay interest. That is the plain affect of the language used. But the Subsection also provides that the interest for which liability was created, has to be calculated in a certain manner. It is this provision which has given rise to the difficulty. But obviously this provision only lays down the machinery for assessing the amount of interest for which liability was clearly created; it in substance says that in calculating the amount of interest the machinery of calculation laid down in sub, sec. (6) shall be applied. The proper way to deal with such a provision is to give it an interpretation which, to use the words of the Privy Council in Mahairam Kamjidass(A.I.R. (1940) P.C. 124, 126-127.) case , makes the machinery workable, utres valeat potius quam pereat". We, therefore, think that we should read sub-sec.(6), according to the provision of which interest has to be calculated as provided in sub-sec.(8) in a manner which makes it workable and thereby prevent the clear intention of sub-sec.(8) being defeated. Now, how is that best done? As we have earlier said sub-sec.(6) deals with a case in which tax has been pail and therefore it says that interest would be calculated "from the I at day of January in the financial year in which the tax was paid". This obviously cannot literarily be applied to a case where no tax has been paid. If however the portion of sub-see. (6) which we have quoted above is read as, "from the 1st day of January in the finan- cial ear in which the tax ought to have been paid", the provisions becomes workable. It would not be doing too much violence to the words used to read them in this way. The tax ought to have been paid on one or other of the dates earlier mentioned. The intention was that interest should be charged from January 1 of the financial year in which the tax ought to have been paid. Those who paid the tax but a smaller amount and those who did not pay tax at all would than be put in the same position substantially which is obviously fair and was clearly intended. Which is the precise financial year in any case would depend on its facts and this, would make no difference in the construction of the provision.With regard to the other question about there being no shortfall between eighty per cent. of the amount of tax found payable on the regular assessment and the amount of tax paid in a case where no tax was paid, it seems to us the position is much simpler. If no tax is paid, the amount of such shortfall will naturally be the entire eighty per cent. We also think that the case before us is very near to Allens case((138) 22 T.C. 15. 16, 17.) It remains now to refer to sub-s, (9) of s. 18A. That subsection provides for payment of penalty in terms of s. 28 upon submission of estimates under sub-sees. (2) and (3) known or reasonably believed to be untrue or upon failure without reasonable cause to comply with the provisions of sub- sec.(3). We are unable to see that this provision in any way affects the construction of sub secs.(6) or (8) or assists in the solution of the, difficulty which has arisen in this case. The penalty under sub-sec.(9) is in addition to the liability under sub-sec. (6) and (8) which his not penalty in the real sence, and is leviable for reasons different from those on which the levy of interest under sub-secs. (6) and (8) is besad.
|
Yusufbhai Noormohmed Nandoliya Vs. State Of Gujarat | an award shall be made. - The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement Explanation. - In computing the period of two years referred to in this section, the period during which any action or proceedings to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded." * 5. Section 12 deals with the question as to when the award of the Collector becomes final. Section 15 deals with the matters to be considered and matters to be neglected in the determination of the compensation. Section 16 deals with the power to take possession and provides that when the Collector has made an award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the government free from encumbrances. Section 17 confers powers on the appropriate government to take possession of any land needed for a public purpose and intended to be acquired, although no award has been made, in cases of special urgency 6. The submission of learned counsel for the appellant is that in the present case the notification under Section 6 of the said Act was published in June 1988 and, as the award under Section 11 was not made by the Collector within a period of two years from the date of the publication, the entire proceedings for the acquisition of the land lapsed. In connection with the Explanation to Section 11-A it was submitted by learned counsel that by the said Explanation the only period excluded in computing the aforesaid period of two years is the period during which any action or proceeding taken in pursuance of the said declaration under Section 6 up to the stage of Section 11, namely, up to the making of the award under Section 11 was stayed by the order of a competent court. It was submitted by him that the question of taking possession would arise after making the award under Section 11 and merely because a landholder obtained an injunction restraining land acquisition authorities from taking possession that would not serve to exclude any time from the aforesaid period of two years within which the award must be made 7. In support of his contention learned counsel for the appellant relied upon the judgment of a learned Single Judge of the Kerala High Court in S. Bavajan Sahib v. State of Kerala 1988 AIR(Ker) 280 : (1987) 1 Ker LT 836 : 1987 Ker(LJ) 870). In his judgment the learned Singly Judge has taken the view that the action or proceeding contemplated by the Explanation to Section 11-A of the said Act is any action or proceeding to be taken after the making of the declaration under Section 6 and before the passing of the award under Section 11. Such actions are those contemplated by Sections 7 to 10. The question of taking possession of the land arises only when the award is passed under Section 16 of the said Act except in cases of emergency covered under Section 17. It was pointed out by the learned Judge that the case before him was not a case in respect of which Section 17 was applicable and hence, unless there was a stay of the proceedings contemplated by Section 7 to 10 or of further proceedings pursuant to the declaration under Section 6 the Explanation will not operate so as to extend the period of two years prescribed by Section 11-A. We find ourselves unable to agree with the view of the learned. Single Judge of the Kerala High Court in the aforesaid judgment. In the Explanation to Section 11-A of the said Act which prescribes the period which is to be excluded, the expression used is -"the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court" 8. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the said Act. In the first place, as held by the learned Single Judge himself where the case is covered by Section 17, the possession can be taken before an award is made and we see not reason why the aforesaid expression in the Explanation should be given a different meaning depending upon whether the case is covered by Section 17 of otherwise. On the other hand, it appears to us that the Explanation is intended to confer a benefit on a landholder whose land is acquired after the declaration under Section 6 is made in cases covered by the Explanation. The benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the landholder. In order to get the benefit of the said provision what is required, is that the landholder who seeks the benefit must not have obtained any order from a court restraining any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those landholders who do not obtain any order from a court which would delay or prevent the making of the award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in taking a similar view in the impugned judgment | 0[ds]8. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the said Act. In the first place, as held by the learned Single Judge himself where the case is covered by Section 17, the possession can be taken before an award is made and we see not reason why the aforesaid expression in the Explanation should be given a different meaning depending upon whether the case is covered by Section 17 of otherwise. On the other hand, it appears to us that the Explanation is intended to confer a benefit on a landholder whose land is acquired after the declaration under Section 6 is made in cases covered by the Explanation. The benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the landholder. In order to get the benefit of the said provision what is required, is that the landholder who seeks the benefit must not have obtained any order from a court restraining any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those landholders who do not obtain any order from a court which would delay or prevent the making of the award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in taking a similar view in the impugned judgment | 0 | 1,948 | 297 | ### 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:
an award shall be made. - The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement Explanation. - In computing the period of two years referred to in this section, the period during which any action or proceedings to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded." * 5. Section 12 deals with the question as to when the award of the Collector becomes final. Section 15 deals with the matters to be considered and matters to be neglected in the determination of the compensation. Section 16 deals with the power to take possession and provides that when the Collector has made an award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the government free from encumbrances. Section 17 confers powers on the appropriate government to take possession of any land needed for a public purpose and intended to be acquired, although no award has been made, in cases of special urgency 6. The submission of learned counsel for the appellant is that in the present case the notification under Section 6 of the said Act was published in June 1988 and, as the award under Section 11 was not made by the Collector within a period of two years from the date of the publication, the entire proceedings for the acquisition of the land lapsed. In connection with the Explanation to Section 11-A it was submitted by learned counsel that by the said Explanation the only period excluded in computing the aforesaid period of two years is the period during which any action or proceeding taken in pursuance of the said declaration under Section 6 up to the stage of Section 11, namely, up to the making of the award under Section 11 was stayed by the order of a competent court. It was submitted by him that the question of taking possession would arise after making the award under Section 11 and merely because a landholder obtained an injunction restraining land acquisition authorities from taking possession that would not serve to exclude any time from the aforesaid period of two years within which the award must be made 7. In support of his contention learned counsel for the appellant relied upon the judgment of a learned Single Judge of the Kerala High Court in S. Bavajan Sahib v. State of Kerala 1988 AIR(Ker) 280 : (1987) 1 Ker LT 836 : 1987 Ker(LJ) 870). In his judgment the learned Singly Judge has taken the view that the action or proceeding contemplated by the Explanation to Section 11-A of the said Act is any action or proceeding to be taken after the making of the declaration under Section 6 and before the passing of the award under Section 11. Such actions are those contemplated by Sections 7 to 10. The question of taking possession of the land arises only when the award is passed under Section 16 of the said Act except in cases of emergency covered under Section 17. It was pointed out by the learned Judge that the case before him was not a case in respect of which Section 17 was applicable and hence, unless there was a stay of the proceedings contemplated by Section 7 to 10 or of further proceedings pursuant to the declaration under Section 6 the Explanation will not operate so as to extend the period of two years prescribed by Section 11-A. We find ourselves unable to agree with the view of the learned. Single Judge of the Kerala High Court in the aforesaid judgment. In the Explanation to Section 11-A of the said Act which prescribes the period which is to be excluded, the expression used is -"the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court" 8. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the said Act. In the first place, as held by the learned Single Judge himself where the case is covered by Section 17, the possession can be taken before an award is made and we see not reason why the aforesaid expression in the Explanation should be given a different meaning depending upon whether the case is covered by Section 17 of otherwise. On the other hand, it appears to us that the Explanation is intended to confer a benefit on a landholder whose land is acquired after the declaration under Section 6 is made in cases covered by the Explanation. The benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the landholder. In order to get the benefit of the said provision what is required, is that the landholder who seeks the benefit must not have obtained any order from a court restraining any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those landholders who do not obtain any order from a court which would delay or prevent the making of the award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in taking a similar view in the impugned judgment
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8. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the said Act. In the first place, as held by the learned Single Judge himself where the case is covered by Section 17, the possession can be taken before an award is made and we see not reason why the aforesaid expression in the Explanation should be given a different meaning depending upon whether the case is covered by Section 17 of otherwise. On the other hand, it appears to us that the Explanation is intended to confer a benefit on a landholder whose land is acquired after the declaration under Section 6 is made in cases covered by the Explanation. The benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the landholder. In order to get the benefit of the said provision what is required, is that the landholder who seeks the benefit must not have obtained any order from a court restraining any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those landholders who do not obtain any order from a court which would delay or prevent the making of the award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in taking a similar view in the impugned judgment
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Ashutosh Vs. State Of Rajasthan | such person be tried and determined in any manner in which any issue in a suit may be tried and determined.(3) Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.(4) Save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.(5) Nothing in this rule shall apply to a decree passed against a Hindu undivided family by virtue of the provisions of rule 10 of Order XXX." 16. The execution under this Rule can only be granted where a decree has been passed against a firm. A decree against the firm must perforce be in the firms name. Under this Rule, execution may be granted against the partnership property. It may also be granted against the partners, in which case the decree-holder may proceed against the separate property of the partners. In the case of Sahu Rajeshwar Rao vs. I.T.O., AIR 1969 SC 667 , this Court ruled that the liability of the partner of the firm is joint and several and it is open to a creditor of the firm to recover the debt of the firm from any one or more of the partners. In a decree against partnership firm, each partner is personally liable except the minor whose liability is limited to his assets in the partnership. In the case of Her Highness Maharani Mandalsa Devi & Ors. Vs. M. Ramnaram Private Ltd. & Ors., AIR 1965 SC 1718 , while considering the scope of Order 21 Rule 50 this Court observed as follows: "A suit by or in the name of a firm is really a suit by or in the name of all its partners. The decree passed in the suit, though in form against the firm, is in effect a decree against all the partners. Beyond doubt, in a normal case where all the partners of a firm are capable of being sued and of being adjudged judgment-debtors, a suit may be filed and a decree may be obtained against a firm under Order 30 of the Code of Civil Procedure, and such a decree may be executed against the property of the partnership and against all the partners by following the procedure of Order 21 Rule 50 of the Code of Civil Procedure." 17. We shall now advert to the submissions made by the learned Additional Advocate General appearing for the respondent-State. The starting point for the litigation is the decree dated 6.6.1970 passed against the State of Rajasthan in respect of the construction work of irrigation department. An appeal was preferred by the State of Rajasthan on 12.2.1980, an application under Section 144 C.P.C. was moved on behalf of the State on 2.4.1981 and Smt. Dhanwanti Devi executed a Will on 7.12.1983 and died in the month of May, 1985. In May, 1987, the District Judge, Sri Ganganagar allowed the application filed by the State of Rajasthan under Section 144 C.P.C. The attachment of the property was made of the house in question on 21.11.1992. Several other proceedings were taken thereafter by both the parties opposing attachment and the execution etc. Ultimately, the District Judge dismissed the application filed under Order 21 Rules 49 and 50 C.P.C. and the Review Application was also dismissed on 5.9.1998. Thereupon the appellant filed S.B. Civil Execution First Appeal No.2 of 1998 and the said appeal was dismissed on 12.11.2003. Now the parties are in this Court. 18. It is not in dispute that the decree amount of Rs.37,593/- was received by the State on 17.10.1992. The dispute between the parties is only with reference to the interest on the principal amount of Rs.37,593/- as on 17.10.1992, which according to the State, was payable by the Firm. A sum of Rs. 61,890/- was arrived at as interest on Rs.37,593/- as on 17.10.1992. Mr. Aruneshwar Gupta submitted that the State has been dragged into Court unnecessarily by filing a vexatious litigation by the appellant and, therefore, the State must be sufficiently compensated by directing the appellant to pay the interest @ 18% p.a. on Rs.37,593/- from 17.10.1992 till date. Though the argument of Mr. Aruneshwar Gupta appears to be attractive on the first blush, yet on a reconsideration and re-appreciation of the same, the said submission has no merits. Both the parties are in the legal battlefield for all these years. The appellant has also succeeded before the trial Court. The trial Court has held that the Will is genuine and, therefore, necessarily the appellant has to defend all further proceedings initiated by the State in various Courts. Mr. Aruneshwar Gupta submitted that the interest amount of Rs.61890/- as on 17.10.1992 plus the subsequent interest shall be ordered to be paid to the State without showing any sympathy to a vexatious litigant. 19. It is true that justice must be done at all costs. At the same time, we should not also forget that the justice should be tempered with mercy. Asking a party to pay interest on Rs.37,593/- at 18% p.a. from 17.10.1992 , in our considered opinion, is on the high side and excessive. This apart, asking both the parties to continue the execution proceedings at this distance of time is also not proper. The State has to wait for some more time to realise the fruits of the decree. We have also calculated the interest payable on Rs.37,593/- from 17.10.1992 @ 18% p.a. Calculating interest at the said rate, the interest amount comes to Rs.6,766/- p.a. (approx). Multiplying Rs.6,766/- X 13 years comes to Rs. 87,958/-. Adding Rs.61,890/- which was arrived at as interest as on 17.10.1992, The total interest payable on Rs.37,593/- from 17.10.1992 as on today @ 18% p.a. comes to Rs.1,49,848/- (Rs.87,958/- + Rs.61,890/-) | 0[ds]10. Both the contentions raised by the learned counsel appearing for the appellant have absolutely no merit. It is not in dispute that the decree was passed against the firm in which Smt. Dhanwanti Devi was also a partner. Under the provisions of the Partnership Act, one partner is the agent of the other. The partner is always liable for partnership debt unless there is implied or express restriction.It is not in dispute that the decree amount of Rs.37,593/- was received by the State on 17.10.1992. The dispute between the parties is only with reference to the interest on the principal amount of Rs.37,593/- as on 17.10.1992, which according to the State, was payable by the Firm. A sum of Rs. 61,890/- was arrived at as interest on Rs.37,593/- as on 17.10.1992.Mr. Aruneshwar Gupta submitted that the State has been dragged into Court unnecessarily by filing a vexatious litigation by the appellant and, therefore, the State must be sufficiently compensated by directing the appellant to pay the interest @ 18% p.a. on Rs.37,593/- from 17.10.1992 tilldate. Though the argument of Mr. Aruneshwar Gupta appears to be attractive on the first blush, yet on a reconsideration and re-appreciation of the same, the said submission has no merits. Both the parties are in the legal battlefield for all these years. The appellant has also succeeded before the trial Court. The trial Court has held that the Will is genuine and, therefore, necessarily the appellant has to defend all further proceedings initiated by the State in various Courts.Mr. Aruneshwar Gupta submitted that the interest amount of Rs.61890/- as on 17.10.1992 plus the subsequent interest shall be ordered to be paid to the State without showing any sympathy to a vexatious litigant.It is true that justice must be done at all costs. At the same time, we should not also forget that the justice should be tempered with mercy. Asking a party to pay interest on Rs.37,593/- at 18% p.a. from 17.10.1992 , in our considered opinion, is on the high side and excessive. This apart, asking both the parties to continue the execution proceedings at this distance of time is also not proper. The State has to wait for some more time to realise the fruits of the decree. We have also calculated the interest payable on Rs.37,593/- from 17.10.1992 @ 18% p.a. Calculating interest at the said rate, the interest amount comes to Rs.6,766/- p.a. (approx). Multiplying Rs.6,766/- X 13 years comes to Rs. 87,958/-. Adding Rs.61,890/- which was arrived at as interest as on 17.10.1992, The total interest payable on Rs.37,593/- from 17.10.1992 as on today @ 18% p.a. comes to Rs.1,49,848/- (Rs.87,958/- + Rs.61,890/-) | 0 | 4,148 | 497 | ### 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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such person be tried and determined in any manner in which any issue in a suit may be tried and determined.(3) Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.(4) Save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.(5) Nothing in this rule shall apply to a decree passed against a Hindu undivided family by virtue of the provisions of rule 10 of Order XXX." 16. The execution under this Rule can only be granted where a decree has been passed against a firm. A decree against the firm must perforce be in the firms name. Under this Rule, execution may be granted against the partnership property. It may also be granted against the partners, in which case the decree-holder may proceed against the separate property of the partners. In the case of Sahu Rajeshwar Rao vs. I.T.O., AIR 1969 SC 667 , this Court ruled that the liability of the partner of the firm is joint and several and it is open to a creditor of the firm to recover the debt of the firm from any one or more of the partners. In a decree against partnership firm, each partner is personally liable except the minor whose liability is limited to his assets in the partnership. In the case of Her Highness Maharani Mandalsa Devi & Ors. Vs. M. Ramnaram Private Ltd. & Ors., AIR 1965 SC 1718 , while considering the scope of Order 21 Rule 50 this Court observed as follows: "A suit by or in the name of a firm is really a suit by or in the name of all its partners. The decree passed in the suit, though in form against the firm, is in effect a decree against all the partners. Beyond doubt, in a normal case where all the partners of a firm are capable of being sued and of being adjudged judgment-debtors, a suit may be filed and a decree may be obtained against a firm under Order 30 of the Code of Civil Procedure, and such a decree may be executed against the property of the partnership and against all the partners by following the procedure of Order 21 Rule 50 of the Code of Civil Procedure." 17. We shall now advert to the submissions made by the learned Additional Advocate General appearing for the respondent-State. The starting point for the litigation is the decree dated 6.6.1970 passed against the State of Rajasthan in respect of the construction work of irrigation department. An appeal was preferred by the State of Rajasthan on 12.2.1980, an application under Section 144 C.P.C. was moved on behalf of the State on 2.4.1981 and Smt. Dhanwanti Devi executed a Will on 7.12.1983 and died in the month of May, 1985. In May, 1987, the District Judge, Sri Ganganagar allowed the application filed by the State of Rajasthan under Section 144 C.P.C. The attachment of the property was made of the house in question on 21.11.1992. Several other proceedings were taken thereafter by both the parties opposing attachment and the execution etc. Ultimately, the District Judge dismissed the application filed under Order 21 Rules 49 and 50 C.P.C. and the Review Application was also dismissed on 5.9.1998. Thereupon the appellant filed S.B. Civil Execution First Appeal No.2 of 1998 and the said appeal was dismissed on 12.11.2003. Now the parties are in this Court. 18. It is not in dispute that the decree amount of Rs.37,593/- was received by the State on 17.10.1992. The dispute between the parties is only with reference to the interest on the principal amount of Rs.37,593/- as on 17.10.1992, which according to the State, was payable by the Firm. A sum of Rs. 61,890/- was arrived at as interest on Rs.37,593/- as on 17.10.1992. Mr. Aruneshwar Gupta submitted that the State has been dragged into Court unnecessarily by filing a vexatious litigation by the appellant and, therefore, the State must be sufficiently compensated by directing the appellant to pay the interest @ 18% p.a. on Rs.37,593/- from 17.10.1992 till date. Though the argument of Mr. Aruneshwar Gupta appears to be attractive on the first blush, yet on a reconsideration and re-appreciation of the same, the said submission has no merits. Both the parties are in the legal battlefield for all these years. The appellant has also succeeded before the trial Court. The trial Court has held that the Will is genuine and, therefore, necessarily the appellant has to defend all further proceedings initiated by the State in various Courts. Mr. Aruneshwar Gupta submitted that the interest amount of Rs.61890/- as on 17.10.1992 plus the subsequent interest shall be ordered to be paid to the State without showing any sympathy to a vexatious litigant. 19. It is true that justice must be done at all costs. At the same time, we should not also forget that the justice should be tempered with mercy. Asking a party to pay interest on Rs.37,593/- at 18% p.a. from 17.10.1992 , in our considered opinion, is on the high side and excessive. This apart, asking both the parties to continue the execution proceedings at this distance of time is also not proper. The State has to wait for some more time to realise the fruits of the decree. We have also calculated the interest payable on Rs.37,593/- from 17.10.1992 @ 18% p.a. Calculating interest at the said rate, the interest amount comes to Rs.6,766/- p.a. (approx). Multiplying Rs.6,766/- X 13 years comes to Rs. 87,958/-. Adding Rs.61,890/- which was arrived at as interest as on 17.10.1992, The total interest payable on Rs.37,593/- from 17.10.1992 as on today @ 18% p.a. comes to Rs.1,49,848/- (Rs.87,958/- + Rs.61,890/-)
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### Explanation:
10. Both the contentions raised by the learned counsel appearing for the appellant have absolutely no merit. It is not in dispute that the decree was passed against the firm in which Smt. Dhanwanti Devi was also a partner. Under the provisions of the Partnership Act, one partner is the agent of the other. The partner is always liable for partnership debt unless there is implied or express restriction.It is not in dispute that the decree amount of Rs.37,593/- was received by the State on 17.10.1992. The dispute between the parties is only with reference to the interest on the principal amount of Rs.37,593/- as on 17.10.1992, which according to the State, was payable by the Firm. A sum of Rs. 61,890/- was arrived at as interest on Rs.37,593/- as on 17.10.1992.Mr. Aruneshwar Gupta submitted that the State has been dragged into Court unnecessarily by filing a vexatious litigation by the appellant and, therefore, the State must be sufficiently compensated by directing the appellant to pay the interest @ 18% p.a. on Rs.37,593/- from 17.10.1992 tilldate. Though the argument of Mr. Aruneshwar Gupta appears to be attractive on the first blush, yet on a reconsideration and re-appreciation of the same, the said submission has no merits. Both the parties are in the legal battlefield for all these years. The appellant has also succeeded before the trial Court. The trial Court has held that the Will is genuine and, therefore, necessarily the appellant has to defend all further proceedings initiated by the State in various Courts.Mr. Aruneshwar Gupta submitted that the interest amount of Rs.61890/- as on 17.10.1992 plus the subsequent interest shall be ordered to be paid to the State without showing any sympathy to a vexatious litigant.It is true that justice must be done at all costs. At the same time, we should not also forget that the justice should be tempered with mercy. Asking a party to pay interest on Rs.37,593/- at 18% p.a. from 17.10.1992 , in our considered opinion, is on the high side and excessive. This apart, asking both the parties to continue the execution proceedings at this distance of time is also not proper. The State has to wait for some more time to realise the fruits of the decree. We have also calculated the interest payable on Rs.37,593/- from 17.10.1992 @ 18% p.a. Calculating interest at the said rate, the interest amount comes to Rs.6,766/- p.a. (approx). Multiplying Rs.6,766/- X 13 years comes to Rs. 87,958/-. Adding Rs.61,890/- which was arrived at as interest as on 17.10.1992, The total interest payable on Rs.37,593/- from 17.10.1992 as on today @ 18% p.a. comes to Rs.1,49,848/- (Rs.87,958/- + Rs.61,890/-)
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MUZAFFAR HUSAIN Vs. STATE OF UTTAR PRADESH AND ANR | enquiry report submitted by the Enquiry Officer, Full Court of the High Court had resolved on 02.09.2006 to accept the said enquiry report and punish the appellant with curtailment of 90% of pensionary benefit with immediate effect. The order of punishment passed by the respondent-State on the basis of the said recommendation made by the full court of the High Court, was challenged by the appellant by filing a writ petition in the High Court. The High Court dropped the charge nos. 1 to 3 and upheld the charge nos. 4 to 11 against the appellant, and reduced the punishment to the curtailment of 70% in place of 90% of his pensionary benefits. 12. Pertinently, the appellant had not made any allegation with regard to violation of principles of natural justice or contravention of any statutory rules or regulations having occasioned during the course of enquiry proceedings or in the decision-making process. Therefore, in absence of any such allegations, the subjective satisfaction arrived at by the High Court on the administrative side, and the impugned order passed by the High Court on the judicial side did not warrant any interference of this court. When the Enquiry proceedings have been found to have been conducted in proper and legal manner, and when the High Court on administrative side as well as on judicial side, has accepted the findings recorded by the Enquiry Officer qua the charge nos. 4 to 11 levelled against the appellant as proved, holding him guilty of having committed misconduct, this court was not expected to sit as an appellate authority and revaluate the adequacy or reliability of the evidence adduced before the Enquiry Officer. Nonetheless, this court just for the sake of satisfying its conscience, had permitted the learned Senior Advocate Mr. Pradeep Kant to argue on the merits of the charges levelled against the appellant. 13. The bone of contention raised by the learned Senior Advocate Mr. Kant was that the charges levelled against the appellant were not sustainable factually or legally in as much as the appellant had decided the land reference cases as per the law prevailing at the relevant time. According to him as held in Union of India & Ors. Vs. Iqbal Singh (supra), Khorshed Shapoor Chenai Mrs Vs. Assistant Controller of Estate Duty (supra), Soran Singh Vs. Collector & Ors (supra), the right to seek compensation is a property right and the same could be transferred. In the opinion of this court, the said decisions have been rendered considering the facts of each case, and have hardly any relevance to the facts of the cases decided by the appellant under the Land Acquisition Act. In case of Union of India & Ors. Vs. Iqbal Singh (supra), this court was examining the right of the claimant as a legatee under the will executed by a displaced person under the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. In case of Khorshed Shapoor Chenai Mrs Vs. Assistant Controller of Estate Duty (supra), the question of legality and validity of the notices issued by the Assistant Controller of Estate Duty, Hyderabad in respect of the compensation received by the legal heirs and representatives of the deceased owner of the acquired land was under consideration. So far as the charges levelled against the appellant were concerned, it was alleged that the appellant had awarded enhanced compensation at an exorbitantly higher rate in favour of the subsequent purchasers/investors, who had no right to receive any compensation, more particularly when Section 6(e) of the Transfer of Property Act specifically prohibited the transfer of mere right to sue. The said cases were found to have been decided by the appellant in flagrant violation of the cardinal principles of law and equity, and against all judicial norms and propriety, with a view to unduly favour such subsequent purchasers who had no legal right to receive the compensation. 14. Much reliance was placed by the learned Senior Advocate Mr. Kant for the appellant on the decision of this court in case of Krishna Prasad Singh Vs. State of Bihar (supra), Sadhna Chaudhary Vs. State of Uttar Pradesh (supra) and Abhay Jain Vs. High Court of Judicature of Rajasthan & Anr (supra) to buttress his submission that mere suspicion cannot constitute misconduct, and that any probability of misconduct needs to be supported with oral or documentary material. He also submitted that the disciplinary proceedings could not be initiated against the judicial officers merely because the judgment or orders passed by them were wrong. We completely agree with the submissions made by the learned Senior Counsel for the appellant and with the ratio of judgments relied upon by him. Nonetheless, in the instant case the appellant was found to have conducted the proceedings in the manner which had reflected on his reputation and integrity. There was enough evidence and material to show that the appellant had misconducted himself while discharging his duties as a judicial officer, and had passed the judicial orders in utter disregard of the specific provisions of law, to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive. Under the circumstances, the High Court was perfectly justified in exercising its supervisory jurisdiction under Article 235 of the Constitution. 15. In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration. It is often said that the public servants are like fish in the water, none can say when and how a fish drank the water. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesars wife, must be above suspicion. | 0[ds]5. At the outset, it may be noted that maintenance of high standard of conduct and character of the judicial officers has always been a matter of great concern for this court. In C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee & Ors. (1995) 5 SCC 457, this court emphasizing the need to maintain high standard of integrity, honesty and moral vigour by the judges, observed: -Judicial office is essentially a public trust. Society is, therefore, entitled to except that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judges official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than expected of a layman and also higher than expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society.6. In Sadhna Chaudhary Vs. State of Uttar Pradesh (2020) 11 SCC 760, this court reiterated that the judicial officers must aspire and adhere to a higher standard of honesty, integrity and probity.19. It has amply been reiterated by this Court that the judicial officers must aspire and adhere to a higher standard of honesty, integrity and probity. Very recently in Shrirang Yadavrao Waghmare v. State of Maharashtra [Shrirang Yadavrao Waghmare v. State of Maharashtra, (2019) 9 SCC 144 : (2019) 2 SCC (L&S) 582] , a Division Bench of this Court very succinctly collated these principles and reiterated that: (SCC pp. 146-47, paras 5-10)5. The first and foremost quality required in a Judge is integrity. The need of integrity in the judiciary is much higher than in other institutions. The judiciary is an institution whose foundations are based on honesty and integrity. It is, therefore, necessary that judicial officers should possess the sterling quality of integrity. This Court in Tarak Singh v. Jyoti Basu [Tarak Singh v. Jyoti Basu, (2005) 1 SCC 201] held as follows: (SCC p. 203)Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary took utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justice-delivery system resulting in the failure of public confidence in the system. It must be remembered that woodpeckers inside pose a larger threat than the storm outside.6. The behaviour of a Judge has to be of an exacting standard, both inside and outside the court. This Court in Daya Shankar v. High Court of Allahabad [Daya Shankar v. High Court of Allahabad, (1987) 3 SCC 1 : 1987 SCC (L&S) 132] held thus: (SCC pp. 4-5, para 11)11. … Judicial officers cannot have two standards, one in the court and another outside the court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy.7. Judges are also public servants. A Judge should always remember that he is there to serve the public. A Judge is judged not only by his quality of judgments but also by the quality and purity of his character. Impeccable integrity should be reflected both in public and personal life of a Judge. One who stands in judgments over others should be incorruptible. That is the high standard which is expected of Judges.8. Judges must remember that they are not merely employees but hold high public office. In R.C. Chandel v. High Court of M.P. [R.C. Chandel v. High Court of M.P., (2012) 8 SCC 58 : (2012) 2 SCC (Civ) 343 : (2012) 3 SCC (Cri) 782 : (2012) 2 SCC (L&S) 469] , this Court held that the standard of conduct expected of a Judge is much higher than that of an ordinary person. The following observations of this Court are relevant: (SCC p. 70, para 29)29. Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesars wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty.9. There can be no manner of doubt that a Judge must decide the case only on the basis of the facts on record and the law applicable to the case. If a Judge decides a case for any extraneous reasons then he is not performing his duty in accordance with law.10. In our view the word gratification does not only mean monetary gratification. Gratification can be of various types. It can be gratification of money, gratification of power, gratification of lust etc., etc.10. Again, in the State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya (2011) 4 SCC 584, it was observed in para 7 as under:7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.11. Reverting to the facts of the case, it may be noted that there was a regular disciplinary proceedings conducted against the appellant after serving him the chargesheet and giving him full opportunity of hearing. Thereafter, pursuant to the enquiry report submitted by the Enquiry Officer, Full Court of the High Court had resolved on 02.09.2006 to accept the said enquiry report and punish the appellant with curtailment of 90% of pensionary benefit with immediate effect. The order of punishment passed by the respondent-State on the basis of the said recommendation made by the full court of the High Court, was challenged by the appellant by filing a writ petition in the High Court. The High Court dropped the charge nos. 1 to 3 and upheld the charge nos. 4 to 11 against the appellant, and reduced the punishment to the curtailment of 70% in place of 90% of his pensionary benefits.12. Pertinently, the appellant had not made any allegation with regard to violation of principles of natural justice or contravention of any statutory rules or regulations having occasioned during the course of enquiry proceedings or in the decision-making process. Therefore, in absence of any such allegations, the subjective satisfaction arrived at by the High Court on the administrative side, and the impugned order passed by the High Court on the judicial side did not warrant any interference of this court. When the Enquiry proceedings have been found to have been conducted in proper and legal manner, and when the High Court on administrative side as well as on judicial side, has accepted the findings recorded by the Enquiry Officer qua the charge nos. 4 to 11 levelled against the appellant as proved, holding him guilty of having committed misconduct, this court was not expected to sit as an appellate authority and revaluate the adequacy or reliability of the evidence adduced before the Enquiry Officer. Nonetheless, this court just for the sake of satisfying its conscience, had permitted the learned Senior Advocate Mr. Pradeep Kant to argue on the merits of the charges levelled against the appellant.In case of Union of India & Ors. Vs. Iqbal Singh (supra), this court was examining the right of the claimant as a legatee under the will executed by a displaced person under the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. In case of Khorshed Shapoor Chenai Mrs Vs. Assistant Controller of Estate Duty (supra), the question of legality and validity of the notices issued by the Assistant Controller of Estate Duty, Hyderabad in respect of the compensation received by the legal heirs and representatives of the deceased owner of the acquired land was under consideration. So far as the charges levelled against the appellant were concerned, it was alleged that the appellant had awarded enhanced compensation at an exorbitantly higher rate in favour of the subsequent purchasers/investors, who had no right to receive any compensation, more particularly when Section 6(e) of the Transfer of Property Act specifically prohibited the transfer of mere right to sue. The said cases were found to have been decided by the appellant in flagrant violation of the cardinal principles of law and equity, and against all judicial norms and propriety, with a view to unduly favour such subsequent purchasers who had no legal right to receive the compensation.We completely agree with the submissions made by the learned Senior Counsel for the appellant and with the ratio of judgments relied upon by him. Nonetheless, in the instant case the appellant was found to have conducted the proceedings in the manner which had reflected on his reputation and integrity. There was enough evidence and material to show that the appellant had misconducted himself while discharging his duties as a judicial officer, and had passed the judicial orders in utter disregard of the specific provisions of law, to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive. Under the circumstances, the High Court was perfectly justified in exercising its supervisory jurisdiction under Article 235 of the Constitution.15. In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration. It is often said that the public servants are like fish in the water, none can say when and how a fish drank the water. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesars wife, must be above suspicion. | 0 | 5,227 | 2,345 | ### 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:
enquiry report submitted by the Enquiry Officer, Full Court of the High Court had resolved on 02.09.2006 to accept the said enquiry report and punish the appellant with curtailment of 90% of pensionary benefit with immediate effect. The order of punishment passed by the respondent-State on the basis of the said recommendation made by the full court of the High Court, was challenged by the appellant by filing a writ petition in the High Court. The High Court dropped the charge nos. 1 to 3 and upheld the charge nos. 4 to 11 against the appellant, and reduced the punishment to the curtailment of 70% in place of 90% of his pensionary benefits. 12. Pertinently, the appellant had not made any allegation with regard to violation of principles of natural justice or contravention of any statutory rules or regulations having occasioned during the course of enquiry proceedings or in the decision-making process. Therefore, in absence of any such allegations, the subjective satisfaction arrived at by the High Court on the administrative side, and the impugned order passed by the High Court on the judicial side did not warrant any interference of this court. When the Enquiry proceedings have been found to have been conducted in proper and legal manner, and when the High Court on administrative side as well as on judicial side, has accepted the findings recorded by the Enquiry Officer qua the charge nos. 4 to 11 levelled against the appellant as proved, holding him guilty of having committed misconduct, this court was not expected to sit as an appellate authority and revaluate the adequacy or reliability of the evidence adduced before the Enquiry Officer. Nonetheless, this court just for the sake of satisfying its conscience, had permitted the learned Senior Advocate Mr. Pradeep Kant to argue on the merits of the charges levelled against the appellant. 13. The bone of contention raised by the learned Senior Advocate Mr. Kant was that the charges levelled against the appellant were not sustainable factually or legally in as much as the appellant had decided the land reference cases as per the law prevailing at the relevant time. According to him as held in Union of India & Ors. Vs. Iqbal Singh (supra), Khorshed Shapoor Chenai Mrs Vs. Assistant Controller of Estate Duty (supra), Soran Singh Vs. Collector & Ors (supra), the right to seek compensation is a property right and the same could be transferred. In the opinion of this court, the said decisions have been rendered considering the facts of each case, and have hardly any relevance to the facts of the cases decided by the appellant under the Land Acquisition Act. In case of Union of India & Ors. Vs. Iqbal Singh (supra), this court was examining the right of the claimant as a legatee under the will executed by a displaced person under the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. In case of Khorshed Shapoor Chenai Mrs Vs. Assistant Controller of Estate Duty (supra), the question of legality and validity of the notices issued by the Assistant Controller of Estate Duty, Hyderabad in respect of the compensation received by the legal heirs and representatives of the deceased owner of the acquired land was under consideration. So far as the charges levelled against the appellant were concerned, it was alleged that the appellant had awarded enhanced compensation at an exorbitantly higher rate in favour of the subsequent purchasers/investors, who had no right to receive any compensation, more particularly when Section 6(e) of the Transfer of Property Act specifically prohibited the transfer of mere right to sue. The said cases were found to have been decided by the appellant in flagrant violation of the cardinal principles of law and equity, and against all judicial norms and propriety, with a view to unduly favour such subsequent purchasers who had no legal right to receive the compensation. 14. Much reliance was placed by the learned Senior Advocate Mr. Kant for the appellant on the decision of this court in case of Krishna Prasad Singh Vs. State of Bihar (supra), Sadhna Chaudhary Vs. State of Uttar Pradesh (supra) and Abhay Jain Vs. High Court of Judicature of Rajasthan & Anr (supra) to buttress his submission that mere suspicion cannot constitute misconduct, and that any probability of misconduct needs to be supported with oral or documentary material. He also submitted that the disciplinary proceedings could not be initiated against the judicial officers merely because the judgment or orders passed by them were wrong. We completely agree with the submissions made by the learned Senior Counsel for the appellant and with the ratio of judgments relied upon by him. Nonetheless, in the instant case the appellant was found to have conducted the proceedings in the manner which had reflected on his reputation and integrity. There was enough evidence and material to show that the appellant had misconducted himself while discharging his duties as a judicial officer, and had passed the judicial orders in utter disregard of the specific provisions of law, to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive. Under the circumstances, the High Court was perfectly justified in exercising its supervisory jurisdiction under Article 235 of the Constitution. 15. In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration. It is often said that the public servants are like fish in the water, none can say when and how a fish drank the water. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesars wife, must be above suspicion.
### Response:
0
### Explanation:
of lust etc., etc.10. Again, in the State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya (2011) 4 SCC 584, it was observed in para 7 as under:7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.11. Reverting to the facts of the case, it may be noted that there was a regular disciplinary proceedings conducted against the appellant after serving him the chargesheet and giving him full opportunity of hearing. Thereafter, pursuant to the enquiry report submitted by the Enquiry Officer, Full Court of the High Court had resolved on 02.09.2006 to accept the said enquiry report and punish the appellant with curtailment of 90% of pensionary benefit with immediate effect. The order of punishment passed by the respondent-State on the basis of the said recommendation made by the full court of the High Court, was challenged by the appellant by filing a writ petition in the High Court. The High Court dropped the charge nos. 1 to 3 and upheld the charge nos. 4 to 11 against the appellant, and reduced the punishment to the curtailment of 70% in place of 90% of his pensionary benefits.12. Pertinently, the appellant had not made any allegation with regard to violation of principles of natural justice or contravention of any statutory rules or regulations having occasioned during the course of enquiry proceedings or in the decision-making process. Therefore, in absence of any such allegations, the subjective satisfaction arrived at by the High Court on the administrative side, and the impugned order passed by the High Court on the judicial side did not warrant any interference of this court. When the Enquiry proceedings have been found to have been conducted in proper and legal manner, and when the High Court on administrative side as well as on judicial side, has accepted the findings recorded by the Enquiry Officer qua the charge nos. 4 to 11 levelled against the appellant as proved, holding him guilty of having committed misconduct, this court was not expected to sit as an appellate authority and revaluate the adequacy or reliability of the evidence adduced before the Enquiry Officer. Nonetheless, this court just for the sake of satisfying its conscience, had permitted the learned Senior Advocate Mr. Pradeep Kant to argue on the merits of the charges levelled against the appellant.In case of Union of India & Ors. Vs. Iqbal Singh (supra), this court was examining the right of the claimant as a legatee under the will executed by a displaced person under the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. In case of Khorshed Shapoor Chenai Mrs Vs. Assistant Controller of Estate Duty (supra), the question of legality and validity of the notices issued by the Assistant Controller of Estate Duty, Hyderabad in respect of the compensation received by the legal heirs and representatives of the deceased owner of the acquired land was under consideration. So far as the charges levelled against the appellant were concerned, it was alleged that the appellant had awarded enhanced compensation at an exorbitantly higher rate in favour of the subsequent purchasers/investors, who had no right to receive any compensation, more particularly when Section 6(e) of the Transfer of Property Act specifically prohibited the transfer of mere right to sue. The said cases were found to have been decided by the appellant in flagrant violation of the cardinal principles of law and equity, and against all judicial norms and propriety, with a view to unduly favour such subsequent purchasers who had no legal right to receive the compensation.We completely agree with the submissions made by the learned Senior Counsel for the appellant and with the ratio of judgments relied upon by him. Nonetheless, in the instant case the appellant was found to have conducted the proceedings in the manner which had reflected on his reputation and integrity. There was enough evidence and material to show that the appellant had misconducted himself while discharging his duties as a judicial officer, and had passed the judicial orders in utter disregard of the specific provisions of law, to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive. Under the circumstances, the High Court was perfectly justified in exercising its supervisory jurisdiction under Article 235 of the Constitution.15. In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration. It is often said that the public servants are like fish in the water, none can say when and how a fish drank the water. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesars wife, must be above suspicion.
|
Burn Standard Company Limited Vs. Mcdermott International Inc. And Another | taken by the RBI as disclosed in the further affidavit of January 24, 1991 leave no doubt that the remittance was permitted only after the RBI was satisfied that all the terms and conditions were duly satisfied. To place the matter beyond the pale of doubt, the further affidavit filed on behalf of the RBI carries the following statement "As per the practice of the RBI, the permission under para 24-A. 11, that is, grant of sanction under Section 28(1) (b) as well as permission under Section 9 for allowing remittances are generally authorised by the Assistant Controller." * This statement places the question regarding the grant of permission under Section 28(1) beyond doubt. The affidavits filed on behalf of the RBI show that the RBIs approval remained to be communicated to the appellant company. Failure to discharge the ministerial duty cannot obliterate the conscious decision taken by the RBI after application of mind 13. But counsel for the appellant stressed that the facts placed on record clearly reveal that no application for permission under Section 28(1) was made in the prescribed FNC5 as contemplated by paragraph 25-A. 2 of the manual. It is indeed true that the record does not disclose making of an application in the said prescribed form by either party to the agreement. Counsel, therefore, submitted that once it is found that no application for permission was ever made in the prescribed form, the provisions of sub-sections (2) and (3) of Section 47 of FERA cannot save the agreement declared void by the statute itself. He further submitted that the case was governed by paragraph 25-A. 2 and not 24-A. 11 and hence making of an application in the prescribed FNC5 form was imperative and failure to do so raised a clear inference that the RBI had not granted permission under Section 28(1) since it had never been approached for such permission. He emphasised that the prescribed form for SIA approval under paragraph 24-A. 11 is not the same as FNC5 and hence the administrative direction in the said paragraph that it will not be necessary for the foreign collaborators to seek Reserve Bank permission under this section separately cannot override the statutory requirement of Section 28(1). The statutory duty cast on the RBI by Section 28(1) cannot be abdicated by the RBI by the deeming clause contained in paragraph 24-A. 11(i) extracted earlier. To buttress the submission counsel invited our attention to two cases viz., (i) Dhanrajamal Gobindram v. Shamji Kalidas & Co. ( 1961 (3) SCR 1020 : 1961 AIR(SC) 1285), and (ii) LIC of India v. Escorts Ltd. ( 1986 (1) SCC 264 , 318) wherein this Court held that paragraph 24-A. 1 was merely an explanatory statement of guideline for the benefit of the authorised dealers and was neither a statutory direction nor a mandatory instruction. On the other hand counsel for the respondent argued that the RBIs action in regard to grant of permission under Section 28(1) being essentially administrative. See Shri Sitaram Sugar Co. Ltd. v. Union of India ( 1990 (3) SCC 223 , 246-47) it is enough to show that the RBI had granted the permission no matter whether it had followed the procedure of paragraph 24-A.11(i) or 25-A. 2 of the manual. We think there is considerable force in this contention for the simple reason that we are concerned with the factum of permission and not the procedure followed by the RBI for granting the same. The prescription of the form is merely to aid the RBI to process the application for permission. Emphasis must be laid on substance and not on mere form. If there has been substantial compliance, as in this case, the mere lapse on the part of the RBI in failing to communicate its decision should make no difference. Paragraph 25-A. 2 is not in derogation of paragraph 24-A. 11(i) nor does it dilute the requirement of Section 28(1). In any case the facts of the present case clearly reveal that the RBI had applied its mind to the question of grant of permission and had only thereafter permitted remittance on the first instalment of the fees payable to the foreign collaborator. Merely because application for such permission was not made FNC5 form cannot cloud the fact that the decision to grant the permission was actually taken but the ministerial function of communicating the same remained to be done by oversight. This lapse cannot erase the decision already taken. We are, therefore, of the opinion that the RBI had granted the permission contemplated by Section 28(1) and hence the agreement cannot be voided by virtue of Section 28(2) of FERA. It is not the case of RBI that it at any time had second thoughts about its action. It never contemplated withdrawal of the permission at any point of time thereafter. Once the decision to grant the permission is taken, whether through the course charted by paragraph 24-A. 11(i) or 25-A. 2, that decision stands unless rescinded and the authorities are bound to act in aid thereof14. In the view that we take it is unnecessary to examine the question whether clause 12.1 of the agreement would stand or perish if the agreement is rendered void under Section 28(2) for failure to secure permission under Section 28(1). Since we have come to the conclusion that the RBI permission was in fact secured under Section 28(1), the second question recedes in the background. We, therefore, need not examine the same15. Before we part we are constrained to observe that we were pained at the attitude of the appellant company attempting to thwart a valid agreement, part performed by the payment of the first instalment, on hyper-technical grounds, an attitude which would scare away collaborators and tarnish the image and credibility of our entrepreneurs abroad. We do hope the appellant company will honour its obligations under the agreement and settle its differences with the respondent across the table in a businesslike manner rather than litigate | 0[ds]e think there is considerable force in this contention for the simple reason that we are concerned with the factum of permission and not the procedure followed by the RBI for granting the same. The prescription of the form is merely to aid the RBI to process the application for permission. Emphasis must be laid on substance and not on mere form. If there has been substantial compliance, as in this case, the mere lapse on the part of the RBI in failing to communicate its decision should make no difference. Paragraph 25-A. 2 is not in derogation of paragraph 24-A. 11(i) nor does it dilute the requirement of Section 28(1). In any case the facts of the present case clearly reveal that the RBI had applied its mind to the question of grant of permission and had only thereafter permitted remittance on the first instalment of the fees payable to the foreign collaborator. Merely because application for such permission was not made FNC5 form cannot cloud the fact that the decision to grant the permission was actually taken but the ministerial function of communicating the same remained to be done by oversight. This lapse cannot erase the decision already taken. We are, therefore, of the opinion that the RBI had granted the permission contemplated by Section 28(1) and hence the agreement cannot be voided by virtue of Section 28(2) of FERA. It is not the case of RBI that it at any time had second thoughts about its action. It never contemplated withdrawal of the permission at any point of time thereafter. Once the decision to grant the permission is taken, whether through the course charted by paragraph 24-A. 11(i) or 25-A. 2, that decision stands unless rescinded and the authorities are bound to act in aid thereof14. In the view that we take it is unnecessary to examine the question whether clause 12.1 of the agreement would stand or perish if the agreement is rendered void under Section 28(2) for failure to secure permission under Section 28(1). Since we have come to the conclusion that the RBI permission was in fact secured under Section 28(1), the second question recedes in the background. We, therefore, need not examine the same15. Before we part we are constrained to observe that we were pained at the attitude of the appellant company attempting to thwart a valid agreement, part performed by the payment of the first instalment, on hyper-technical grounds, an attitude which would scare away collaborators and tarnish the image and credibility of our entrepreneurs abroad. We do hope the appellant company will honour its obligations under the agreement and settle its differences with the respondent across the table in a businesslike manner rather than litigate | 0 | 7,627 | 518 | ### 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:
taken by the RBI as disclosed in the further affidavit of January 24, 1991 leave no doubt that the remittance was permitted only after the RBI was satisfied that all the terms and conditions were duly satisfied. To place the matter beyond the pale of doubt, the further affidavit filed on behalf of the RBI carries the following statement "As per the practice of the RBI, the permission under para 24-A. 11, that is, grant of sanction under Section 28(1) (b) as well as permission under Section 9 for allowing remittances are generally authorised by the Assistant Controller." * This statement places the question regarding the grant of permission under Section 28(1) beyond doubt. The affidavits filed on behalf of the RBI show that the RBIs approval remained to be communicated to the appellant company. Failure to discharge the ministerial duty cannot obliterate the conscious decision taken by the RBI after application of mind 13. But counsel for the appellant stressed that the facts placed on record clearly reveal that no application for permission under Section 28(1) was made in the prescribed FNC5 as contemplated by paragraph 25-A. 2 of the manual. It is indeed true that the record does not disclose making of an application in the said prescribed form by either party to the agreement. Counsel, therefore, submitted that once it is found that no application for permission was ever made in the prescribed form, the provisions of sub-sections (2) and (3) of Section 47 of FERA cannot save the agreement declared void by the statute itself. He further submitted that the case was governed by paragraph 25-A. 2 and not 24-A. 11 and hence making of an application in the prescribed FNC5 form was imperative and failure to do so raised a clear inference that the RBI had not granted permission under Section 28(1) since it had never been approached for such permission. He emphasised that the prescribed form for SIA approval under paragraph 24-A. 11 is not the same as FNC5 and hence the administrative direction in the said paragraph that it will not be necessary for the foreign collaborators to seek Reserve Bank permission under this section separately cannot override the statutory requirement of Section 28(1). The statutory duty cast on the RBI by Section 28(1) cannot be abdicated by the RBI by the deeming clause contained in paragraph 24-A. 11(i) extracted earlier. To buttress the submission counsel invited our attention to two cases viz., (i) Dhanrajamal Gobindram v. Shamji Kalidas & Co. ( 1961 (3) SCR 1020 : 1961 AIR(SC) 1285), and (ii) LIC of India v. Escorts Ltd. ( 1986 (1) SCC 264 , 318) wherein this Court held that paragraph 24-A. 1 was merely an explanatory statement of guideline for the benefit of the authorised dealers and was neither a statutory direction nor a mandatory instruction. On the other hand counsel for the respondent argued that the RBIs action in regard to grant of permission under Section 28(1) being essentially administrative. See Shri Sitaram Sugar Co. Ltd. v. Union of India ( 1990 (3) SCC 223 , 246-47) it is enough to show that the RBI had granted the permission no matter whether it had followed the procedure of paragraph 24-A.11(i) or 25-A. 2 of the manual. We think there is considerable force in this contention for the simple reason that we are concerned with the factum of permission and not the procedure followed by the RBI for granting the same. The prescription of the form is merely to aid the RBI to process the application for permission. Emphasis must be laid on substance and not on mere form. If there has been substantial compliance, as in this case, the mere lapse on the part of the RBI in failing to communicate its decision should make no difference. Paragraph 25-A. 2 is not in derogation of paragraph 24-A. 11(i) nor does it dilute the requirement of Section 28(1). In any case the facts of the present case clearly reveal that the RBI had applied its mind to the question of grant of permission and had only thereafter permitted remittance on the first instalment of the fees payable to the foreign collaborator. Merely because application for such permission was not made FNC5 form cannot cloud the fact that the decision to grant the permission was actually taken but the ministerial function of communicating the same remained to be done by oversight. This lapse cannot erase the decision already taken. We are, therefore, of the opinion that the RBI had granted the permission contemplated by Section 28(1) and hence the agreement cannot be voided by virtue of Section 28(2) of FERA. It is not the case of RBI that it at any time had second thoughts about its action. It never contemplated withdrawal of the permission at any point of time thereafter. Once the decision to grant the permission is taken, whether through the course charted by paragraph 24-A. 11(i) or 25-A. 2, that decision stands unless rescinded and the authorities are bound to act in aid thereof14. In the view that we take it is unnecessary to examine the question whether clause 12.1 of the agreement would stand or perish if the agreement is rendered void under Section 28(2) for failure to secure permission under Section 28(1). Since we have come to the conclusion that the RBI permission was in fact secured under Section 28(1), the second question recedes in the background. We, therefore, need not examine the same15. Before we part we are constrained to observe that we were pained at the attitude of the appellant company attempting to thwart a valid agreement, part performed by the payment of the first instalment, on hyper-technical grounds, an attitude which would scare away collaborators and tarnish the image and credibility of our entrepreneurs abroad. We do hope the appellant company will honour its obligations under the agreement and settle its differences with the respondent across the table in a businesslike manner rather than litigate
### Response:
0
### Explanation:
e think there is considerable force in this contention for the simple reason that we are concerned with the factum of permission and not the procedure followed by the RBI for granting the same. The prescription of the form is merely to aid the RBI to process the application for permission. Emphasis must be laid on substance and not on mere form. If there has been substantial compliance, as in this case, the mere lapse on the part of the RBI in failing to communicate its decision should make no difference. Paragraph 25-A. 2 is not in derogation of paragraph 24-A. 11(i) nor does it dilute the requirement of Section 28(1). In any case the facts of the present case clearly reveal that the RBI had applied its mind to the question of grant of permission and had only thereafter permitted remittance on the first instalment of the fees payable to the foreign collaborator. Merely because application for such permission was not made FNC5 form cannot cloud the fact that the decision to grant the permission was actually taken but the ministerial function of communicating the same remained to be done by oversight. This lapse cannot erase the decision already taken. We are, therefore, of the opinion that the RBI had granted the permission contemplated by Section 28(1) and hence the agreement cannot be voided by virtue of Section 28(2) of FERA. It is not the case of RBI that it at any time had second thoughts about its action. It never contemplated withdrawal of the permission at any point of time thereafter. Once the decision to grant the permission is taken, whether through the course charted by paragraph 24-A. 11(i) or 25-A. 2, that decision stands unless rescinded and the authorities are bound to act in aid thereof14. In the view that we take it is unnecessary to examine the question whether clause 12.1 of the agreement would stand or perish if the agreement is rendered void under Section 28(2) for failure to secure permission under Section 28(1). Since we have come to the conclusion that the RBI permission was in fact secured under Section 28(1), the second question recedes in the background. We, therefore, need not examine the same15. Before we part we are constrained to observe that we were pained at the attitude of the appellant company attempting to thwart a valid agreement, part performed by the payment of the first instalment, on hyper-technical grounds, an attitude which would scare away collaborators and tarnish the image and credibility of our entrepreneurs abroad. We do hope the appellant company will honour its obligations under the agreement and settle its differences with the respondent across the table in a businesslike manner rather than litigate
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Board Of The Trustees,Port Of Kolkata Vs. Efclon Tie-Up Pvt. Ltd. | Company. Any adverse orders passed by this Court, at this stage, would affect the right and interest of the members of the union. The Company was directed to be wound up and the Official Liquidator was directed to take charge of the assets and properties. The assets and properties thereof were put up for sale in terms of a sale notice made and published on 05.09.1997. In these circumstances, in an attempt to protect the livelihood of its members, the union entered into an agreement with respondent No.1 providing, inter alia, that respondent No.1 would take necessary steps in Court to purchase the assets and properties of the Company and also would assure employment to all the eligible workers of the Company in phase-wise manner. There are other conditions with which we are not now concerned. In terms of the commitment made, respondent No.1 participated in the sale of the assets and properties of the Company and was declared the successful purchaser in respect thereof by an order dated 16.01.1989. Several other proceedings were taken by both the parties with which also we are not concerned. It is stated that in terms of the order, respondent No.1 has made payment of the entire consideration to the Official Liquidator. The intention of the High Court while passing the orders dated 16.01.1998 and 09.04.2003 is manifest from the fact that while confirming the order dated 16.01.1998 for sale of the assets and properties of the Company, the High Court made the same free from encumbrances and without any liabilities on account of any other dues. With the revival and rehabilitation of the Company in mind, the High Court directed that the properties where the factories of the Company are situate be provided to respondent No.1. The High Court also directed that a fresh lease in respect thereof be granted to Respondent No.1 presently in possession of the factory premises. Respondent No.1 is also in possession of the assets and properties located therein. It is also not in dispute that respondent No.1 is not operating the factory for want of former renewal of the lease. As a result, the right of the members of the workers of the union has been put in jeopardy. The Port Trust itself allowed the erstwhile lessee to continue to occupy the property even after the expiry of the original terms of the lease. 34. In our view, the workmen of the Company have a right to earn their livelihood. The workmen are as such vitally interested in the renewal of the lease in respect of the property in question. The Port Trust, by its conduct, accepted the right of the Company to obtain renewal of the lease. The Port Trust has never called upon the Company or the official liquidator to vacate the property. The act of the Port Trust in allowing the respondent to continue is only a benevolent act of the Port Trust keeping in view the consequences that can arise if this was not allowed for the large number of workmen of the company. As such, the lease of the property has been renewed or must be deemed to have been renewed as the workmen being interested in the renewal of the lease of the property. They were also heard through their senior counsel. 35. Social justice demands that the lease in respect of the factory premises be renewed by the Port Trust in favour of respondent No.1 so that the operation of the factory thereof can be commenced. However, the lease can be renewed only subject to the payment of all the arrears and dues together with interest. We are, therefore, inclined in the larger interest of the industry as also the workmen and of the Port Trust to direct the Port Trust to grant a fresh lease to respondent No.1 herein subject to the respondent No.1 complying with the terms relating to the payment of the arrears/dues together with interest at the rate of 15% p.a. as suggested by the Kolkata Port Trust in its letters dated 07.03.1992 and 13.04.1995. The Port Trust shall also grant a fresh lease in favour of respondent No.1 on the basis of the scheduled rate from the date of possession i.e. 04.08.2003. In conclusion, we order a fresh lease indenture to be drawn from the date the company came into possession of the land (i.e.04.08.2003) between the Port Trust and the Respondent No.1 (Efclon) with regard to the premises situated at P-10, Taratola Road, Kolkata at the rental rates contained in the present Schedule of the Kolkata Port Trust Act as soon as the dues of the liquidated company are discharged with by the respondents. 36. We are, therefore, directing the Port Trust to inform the Efclon Tie-up Private Limited; respondent No.1 herein of the rental arrears together with interest as suggested by the Port Trust in its letters dated 07.03.1992 and 13.04.1995 within four weeks from the date of this order. In other words, the Port Trust shall inform the first respondent herein of the rental arrears from the date of expiry of the earlier lease (21.01.1992) till the date of the execution of the fresh lease at the old rate together with interest at the rate of 15% p.a. within 4 weeks from the date and upon such intimation the said dues are to be cleared by the first respondent within 2 weeks thereafter and upon such dues being cleared, the Port Trust shall grant a fresh lease from 04.08.2003 i.e. the date on which the first respondent was to be in possession of the property by the official liquidator on the basis of the scheduled rate as now prevalent. The rate fixed by the Kolkata Port Trust as per the scheduled rate will be effective from 04.08.2003. We are inclined to grant the lease in favour of the respondent No.1 who sought renewal of the lease with the sole object of reviving and rehabilitating its units and to re-employ its workmen thereof. 37. | 1[ds]We are of the opinion that:1. There is no right over the property of the Port Trust existing with the respondent No.1 (Efclon) as claimed by them. In the present case only the assets of the company which was liquidated has been bought by the respondents, the land belonged to the Port Trust. Even according to the original indenture of lease between the Port Trust and the liquidated company, there were clauses which very clearly stated that, the Port Trust had the option of renewing the lease for such further period, provided the covenant conditions are duly performed. It was also clearly stipulated in the Lease deed that, if the company goes into liquidation or is wound up compulsorily or voluntarily, the Port Trust would re-enter possession and the lease would be brought to an end. In the present fact situation, the company in liquidation was clearly in breach of the covenant conditions by having outstanding rental dues and tax liability with interest. Also the company did go into liquidation and therefore as the lease indenture says, the original lease has come to an end and the Port Trust is presumed to have automatically come into possession of the land in questionTherefore we hold that, there is no lease that is subsisting between the Port Trust and the liquidated company and hence the respondent No.1 (Efclon) claim that the original lease deed is subsisting thereby giving them an automatic right to the land in question is untenable and has no merit2. To the question as to whether the High Court was correct in granting a fresh lease to the respondent No.1 (Efclon) in accordance with the clause stipulated in the original lease agreement, we are of the opinion that the High Court is correct as far as the grant of fresh lease is concerned. Coming to the second part of the question as to whether the rental amount should be based on the stipulation mentioned in original lease deed is concerned; we believe that the rates that are present in the current Schedule of the Port Trust Act in Kolkata should apply. We are of the view that, the claim of the respondent that they should be allowed to pay the rates in accordance to the clause in the original lease indenture of 1962 is not fair on the Port Trust. Also we are satisfied that the prices that are prevalent in the schedules of the Port Trust Act are not based on profiteering, but on inflationary tendencies3. With regard to the respondent No.1s (Efclon) claim of, if Das Reprographics had not gone into liquidation, while renewing the lease, the company would have only had to pay 25% over and above the last rent paid under the original lease for the period of renewal of the same, does not hold good in our view, as such a renewal need not be contemplated at this point, as the company itself is not in existence and also the clause in the original lease indenture will come in the way which specifically mentions that if the company goes into liquidation or is wound up compulsorily or voluntarily, the Port Trust would re-enter possession and the lease would be brought to an endIn our view, the workmen of the Company have a right to earn their livelihood. The workmen are as such vitally interested in the renewal of the lease in respect of the property in question. The Port Trust, by its conduct, accepted the right of the Company to obtain renewal of the lease. The Port Trust has never called upon the Company or the official liquidator to vacate the property. The act of the Port Trust in allowing the respondent to continue is only a benevolent act of the Port Trust keeping in view the consequences that can arise if this was not allowed for the large number of workmen of the company. As such, the lease of the property has been renewed or must be deemed to have been renewed as the workmen being interested in the renewal of the lease of the property. They were also heard through their senior counselSocial justice demands that the lease in respect of the factory premises be renewed by the Port Trust in favour of respondent No.1 so that the operation of the factory thereof can be commenced. However, the lease can be renewed only subject to the payment of all the arrears and dues together with interest. We are, therefore, inclined in the larger interest of the industry as also the workmen and of the Port Trust to direct the Port Trust to grant a fresh lease to respondent No.1 herein subject to the respondent No.1 complying with the terms relating to the payment of the arrears/dues together with interest at the rate of 15% p.a. as suggested by the Kolkata Port Trust in its letters dated 07.03.1992 and 13.04.1995. The Port Trust shall also grant a fresh lease in favour of respondent No.1 on the basis of the scheduled rate from the date of possession i.e. 04.08.2003. In conclusion, we order a fresh lease indenture to be drawn from the date the company came into possession of the land (i.e.04.08.2003) between the Port Trust and the Respondent No.1 (Efclon) with regard to the premises situated at P-10, Taratola Road, Kolkata at the rental rates contained in the present Schedule of the Kolkata Port Trust Act as soon as the dues of the liquidated company are discharged with by the respondentsWe are, therefore, directing the Port Trust to inform the Efclon Tie-up Private Limited; respondent No.1 herein of the rental arrears together with interest as suggested by the Port Trust in its letters dated 07.03.1992 and 13.04.1995 within four weeks from the date of this order. In other words, the Port Trust shall inform the first respondent herein of the rental arrears from the date of expiry of the earlier lease (21.01.1992) till the date of the execution of the fresh lease at the old rate together with interest at the rate of 15% p.a. within 4 weeks from the date and upon such intimation the said dues are to be cleared by the first respondent within 2 weeks thereafter and upon such dues being cleared, the Port Trust shall grant a fresh lease from 04.08.2003 i.e. the date on which the first respondent was to be in possession of the property by the official liquidator on the basis of the scheduled rate as now prevalent. The rate fixed by the Kolkata Port Trust as per the scheduled rate will be effective from 04.08.2003. We are inclined to grant the lease in favour of the respondent No.1 who sought renewal of the lease with the sole object of reviving and rehabilitating its units and to re-employ its workmen thereof. | 1 | 4,526 | 1,221 | ### Instruction:
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### Input:
Company. Any adverse orders passed by this Court, at this stage, would affect the right and interest of the members of the union. The Company was directed to be wound up and the Official Liquidator was directed to take charge of the assets and properties. The assets and properties thereof were put up for sale in terms of a sale notice made and published on 05.09.1997. In these circumstances, in an attempt to protect the livelihood of its members, the union entered into an agreement with respondent No.1 providing, inter alia, that respondent No.1 would take necessary steps in Court to purchase the assets and properties of the Company and also would assure employment to all the eligible workers of the Company in phase-wise manner. There are other conditions with which we are not now concerned. In terms of the commitment made, respondent No.1 participated in the sale of the assets and properties of the Company and was declared the successful purchaser in respect thereof by an order dated 16.01.1989. Several other proceedings were taken by both the parties with which also we are not concerned. It is stated that in terms of the order, respondent No.1 has made payment of the entire consideration to the Official Liquidator. The intention of the High Court while passing the orders dated 16.01.1998 and 09.04.2003 is manifest from the fact that while confirming the order dated 16.01.1998 for sale of the assets and properties of the Company, the High Court made the same free from encumbrances and without any liabilities on account of any other dues. With the revival and rehabilitation of the Company in mind, the High Court directed that the properties where the factories of the Company are situate be provided to respondent No.1. The High Court also directed that a fresh lease in respect thereof be granted to Respondent No.1 presently in possession of the factory premises. Respondent No.1 is also in possession of the assets and properties located therein. It is also not in dispute that respondent No.1 is not operating the factory for want of former renewal of the lease. As a result, the right of the members of the workers of the union has been put in jeopardy. The Port Trust itself allowed the erstwhile lessee to continue to occupy the property even after the expiry of the original terms of the lease. 34. In our view, the workmen of the Company have a right to earn their livelihood. The workmen are as such vitally interested in the renewal of the lease in respect of the property in question. The Port Trust, by its conduct, accepted the right of the Company to obtain renewal of the lease. The Port Trust has never called upon the Company or the official liquidator to vacate the property. The act of the Port Trust in allowing the respondent to continue is only a benevolent act of the Port Trust keeping in view the consequences that can arise if this was not allowed for the large number of workmen of the company. As such, the lease of the property has been renewed or must be deemed to have been renewed as the workmen being interested in the renewal of the lease of the property. They were also heard through their senior counsel. 35. Social justice demands that the lease in respect of the factory premises be renewed by the Port Trust in favour of respondent No.1 so that the operation of the factory thereof can be commenced. However, the lease can be renewed only subject to the payment of all the arrears and dues together with interest. We are, therefore, inclined in the larger interest of the industry as also the workmen and of the Port Trust to direct the Port Trust to grant a fresh lease to respondent No.1 herein subject to the respondent No.1 complying with the terms relating to the payment of the arrears/dues together with interest at the rate of 15% p.a. as suggested by the Kolkata Port Trust in its letters dated 07.03.1992 and 13.04.1995. The Port Trust shall also grant a fresh lease in favour of respondent No.1 on the basis of the scheduled rate from the date of possession i.e. 04.08.2003. In conclusion, we order a fresh lease indenture to be drawn from the date the company came into possession of the land (i.e.04.08.2003) between the Port Trust and the Respondent No.1 (Efclon) with regard to the premises situated at P-10, Taratola Road, Kolkata at the rental rates contained in the present Schedule of the Kolkata Port Trust Act as soon as the dues of the liquidated company are discharged with by the respondents. 36. We are, therefore, directing the Port Trust to inform the Efclon Tie-up Private Limited; respondent No.1 herein of the rental arrears together with interest as suggested by the Port Trust in its letters dated 07.03.1992 and 13.04.1995 within four weeks from the date of this order. In other words, the Port Trust shall inform the first respondent herein of the rental arrears from the date of expiry of the earlier lease (21.01.1992) till the date of the execution of the fresh lease at the old rate together with interest at the rate of 15% p.a. within 4 weeks from the date and upon such intimation the said dues are to be cleared by the first respondent within 2 weeks thereafter and upon such dues being cleared, the Port Trust shall grant a fresh lease from 04.08.2003 i.e. the date on which the first respondent was to be in possession of the property by the official liquidator on the basis of the scheduled rate as now prevalent. The rate fixed by the Kolkata Port Trust as per the scheduled rate will be effective from 04.08.2003. We are inclined to grant the lease in favour of the respondent No.1 who sought renewal of the lease with the sole object of reviving and rehabilitating its units and to re-employ its workmen thereof. 37.
### Response:
1
### Explanation:
In the present fact situation, the company in liquidation was clearly in breach of the covenant conditions by having outstanding rental dues and tax liability with interest. Also the company did go into liquidation and therefore as the lease indenture says, the original lease has come to an end and the Port Trust is presumed to have automatically come into possession of the land in questionTherefore we hold that, there is no lease that is subsisting between the Port Trust and the liquidated company and hence the respondent No.1 (Efclon) claim that the original lease deed is subsisting thereby giving them an automatic right to the land in question is untenable and has no merit2. To the question as to whether the High Court was correct in granting a fresh lease to the respondent No.1 (Efclon) in accordance with the clause stipulated in the original lease agreement, we are of the opinion that the High Court is correct as far as the grant of fresh lease is concerned. Coming to the second part of the question as to whether the rental amount should be based on the stipulation mentioned in original lease deed is concerned; we believe that the rates that are present in the current Schedule of the Port Trust Act in Kolkata should apply. We are of the view that, the claim of the respondent that they should be allowed to pay the rates in accordance to the clause in the original lease indenture of 1962 is not fair on the Port Trust. Also we are satisfied that the prices that are prevalent in the schedules of the Port Trust Act are not based on profiteering, but on inflationary tendencies3. With regard to the respondent No.1s (Efclon) claim of, if Das Reprographics had not gone into liquidation, while renewing the lease, the company would have only had to pay 25% over and above the last rent paid under the original lease for the period of renewal of the same, does not hold good in our view, as such a renewal need not be contemplated at this point, as the company itself is not in existence and also the clause in the original lease indenture will come in the way which specifically mentions that if the company goes into liquidation or is wound up compulsorily or voluntarily, the Port Trust would re-enter possession and the lease would be brought to an endIn our view, the workmen of the Company have a right to earn their livelihood. The workmen are as such vitally interested in the renewal of the lease in respect of the property in question. The Port Trust, by its conduct, accepted the right of the Company to obtain renewal of the lease. The Port Trust has never called upon the Company or the official liquidator to vacate the property. The act of the Port Trust in allowing the respondent to continue is only a benevolent act of the Port Trust keeping in view the consequences that can arise if this was not allowed for the large number of workmen of the company. As such, the lease of the property has been renewed or must be deemed to have been renewed as the workmen being interested in the renewal of the lease of the property. They were also heard through their senior counselSocial justice demands that the lease in respect of the factory premises be renewed by the Port Trust in favour of respondent No.1 so that the operation of the factory thereof can be commenced. However, the lease can be renewed only subject to the payment of all the arrears and dues together with interest. We are, therefore, inclined in the larger interest of the industry as also the workmen and of the Port Trust to direct the Port Trust to grant a fresh lease to respondent No.1 herein subject to the respondent No.1 complying with the terms relating to the payment of the arrears/dues together with interest at the rate of 15% p.a. as suggested by the Kolkata Port Trust in its letters dated 07.03.1992 and 13.04.1995. The Port Trust shall also grant a fresh lease in favour of respondent No.1 on the basis of the scheduled rate from the date of possession i.e. 04.08.2003. In conclusion, we order a fresh lease indenture to be drawn from the date the company came into possession of the land (i.e.04.08.2003) between the Port Trust and the Respondent No.1 (Efclon) with regard to the premises situated at P-10, Taratola Road, Kolkata at the rental rates contained in the present Schedule of the Kolkata Port Trust Act as soon as the dues of the liquidated company are discharged with by the respondentsWe are, therefore, directing the Port Trust to inform the Efclon Tie-up Private Limited; respondent No.1 herein of the rental arrears together with interest as suggested by the Port Trust in its letters dated 07.03.1992 and 13.04.1995 within four weeks from the date of this order. In other words, the Port Trust shall inform the first respondent herein of the rental arrears from the date of expiry of the earlier lease (21.01.1992) till the date of the execution of the fresh lease at the old rate together with interest at the rate of 15% p.a. within 4 weeks from the date and upon such intimation the said dues are to be cleared by the first respondent within 2 weeks thereafter and upon such dues being cleared, the Port Trust shall grant a fresh lease from 04.08.2003 i.e. the date on which the first respondent was to be in possession of the property by the official liquidator on the basis of the scheduled rate as now prevalent. The rate fixed by the Kolkata Port Trust as per the scheduled rate will be effective from 04.08.2003. We are inclined to grant the lease in favour of the respondent No.1 who sought renewal of the lease with the sole object of reviving and rehabilitating its units and to re-employ its workmen thereof.
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Deputy Commissioner of Agricultural Income Tax and Sales Tax, Central Zone, Ernakulam Vs. Kotak and Co | the price was subject to variation depending upon the import duty, freight rate, insurance premium and exchange rate, that it was specifically provided that the sale was subject to import licence to be provided by the mills, that the contract was irrevocable and that any difference between the parties had to be resolved through the arbitration machinery provided in the contract itself, that under the import control regulations, the importer is the mill, the authorisation and the import licence are issued to the mills only, that even under the letter of authority although the firm was authorised to import the goods the mills remained the importer and they were liable as importer, that the particulars necessary for inclusion in the bill of lading are furnished by the firm to the foreign suppliers before the shipment is effected, that after the goods were shipped at the foreign port the bill of lading is forwarded along with the invoice and other connected documents of title through their Bank to India, that these documents are received by the firm after due payment of the value to the Agent Bank, that after receiving this document, information is given to the mill when they made the payment in accordance with the contract, that thereafter the goods were cleared and delivered to the mills by clearing agents at Cochin and forward to the mills."3. In another portion of its order the Tribunal stated that the goods could not in any circumstances be diverted from its determined destination, once it is shipped from the foreign country.4. The facts set out by the Tribunal, quoted above, are stated by the Tribunal as admitted facts. Hence we cannot go into the correctness of those facts. Dr. Sayed Mohammed, the learned counsel for the department contended that the observation of the High Court that "one of the conditions in the con" tract is that the goods imported should not in any circumstance be diverted from its determined destination, i.e. the mills"is incorrect as there is no such term in the contract entered into between the respondents and the mills. This submission, though in a technical sense may be correct, has really no substance because as -could be seen from the letter of authority issued by the Government that one of the conditions of the letter of authority was, to quote the words of that letter,"the person or firm in whose favour it has been issued, will act purely as an agent of the licensee and the goods imported will be the property of the licence holder both at the time of clearance through the Customs and subsequent thereto. The licenceholder will have to ensure that the goods on importation will be delivered to him and shall not be disposed of otherwise. The licensee shall not cause or permit the holder of the letter of authority to dispose of the goods."5. This clause must be read as a part of the contract entered into between the respondents and the mills. Even if this clause had not been there, there would have been no difficulty in coming to the conclusion thatthe respondents were precluded from selling the goods to anybody other than the mills to whom the users import licence had been granted. From the facts set out above it is obvious that the respondents could not have sold the goods to anybody other than the licence-holders.6.From the facts set out above it is clear that this case clearly falls within the rule laid down by this Court in K. G. Khosla and Co. v. Deputy Commr. of Commercial Taxes (l966) 3 SCR 352 =(AIR 1966 SC 1216 ). The appellant therein imported certain goods from Belgium in order to fulfill a contract with certain buyers in India. The question arose whether the sale effected in this country occasioned the import. This court came to the conclusion that the sale in question occasioned the import and as such it is exempt under Section 5 (2) of the Central Sales Tax Act, 1956, which says."A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India".7. Dr. Sayed Mohammed tried to distinguish Khoslas case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ) from the present case on the plea that in Khoslas case there was only one sale whereas in the present case there were two sales. We are unable to accept this contention as correct. From the facts set out above, it is clear that the facts of this case are similar to those found in Khoslas case, (1970) SCR 352 = (AIR 1966 SC 1216).8. Reliance was placed by Dr. Sayed Mohammed on the decision of this court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras, (1970) 3 SCR 147 = (AIR 1971 SC 870 ). The facts of that case briefly stated, are as follows:The Coffee Board auctioned certain quantities of coffee for the purpose of being sold in foreign countries. The purchasers of those lots were required to export that quantity of coffee to one or the other of the foreign countries mentioned in the sale notice. They were precluded from selling the same inside India. The question arose whether the purchases made by them occasioned export. This court came to the conclusion that the purchases in question were purchases for the purpose of export and the same did not occasion export. This court did not differ from the view taken in Khoslas case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ). On the other hand it distinguished that decision. Hence the rule laid down in the Coffee Boards case, (1970) 3 SCR 147 = (AIR 1971 SC 870 ) is inapplicable to the present case. | 0[ds]6.From the facts set out above it is clear that this case clearly falls within the rule laid down by this Court in K. G. Khosla and Co. v. Deputy Commr. of Commercial Taxes (l966) 3 SCR 352 =(AIR 1966 SC 1216 ). The appellant therein imported certain goods from Belgium in order to fulfill a contract with certain buyers in India. The question arose whether the sale effected in this country occasioned the import. This court came to the conclusion that the sale in question occasioned the import and as such it is exempt under Section 5 (2) of the Central Sales Tax Act,the facts set out above, it is clear that the facts of this case are similar to those found in Khoslas case, (1970) SCR 352 = (AIR 1966 SCcourt did not differ from the view taken in Khoslas case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ). On the other hand it distinguished that decision. Hence the rule laid down in the Coffee Boards case, (1970) 3 SCR 147 = (AIR 1971 SC 870 ) is inapplicable to theare unable to accept this contention as correct. Fromthe facts set out above, it is clear that the facts of this case are similar to those found in Khoslas case, (1970) SCR 352 = (AIR 1966 SCthe other hand it distinguished that decision. Hence the rule laid down in the Coffee Boards case, (1970) 3 SCR 147 = (AIR 1971 SC 870 ) is inapplicable to the | 0 | 1,974 | 293 | ### Instruction:
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### Input:
the price was subject to variation depending upon the import duty, freight rate, insurance premium and exchange rate, that it was specifically provided that the sale was subject to import licence to be provided by the mills, that the contract was irrevocable and that any difference between the parties had to be resolved through the arbitration machinery provided in the contract itself, that under the import control regulations, the importer is the mill, the authorisation and the import licence are issued to the mills only, that even under the letter of authority although the firm was authorised to import the goods the mills remained the importer and they were liable as importer, that the particulars necessary for inclusion in the bill of lading are furnished by the firm to the foreign suppliers before the shipment is effected, that after the goods were shipped at the foreign port the bill of lading is forwarded along with the invoice and other connected documents of title through their Bank to India, that these documents are received by the firm after due payment of the value to the Agent Bank, that after receiving this document, information is given to the mill when they made the payment in accordance with the contract, that thereafter the goods were cleared and delivered to the mills by clearing agents at Cochin and forward to the mills."3. In another portion of its order the Tribunal stated that the goods could not in any circumstances be diverted from its determined destination, once it is shipped from the foreign country.4. The facts set out by the Tribunal, quoted above, are stated by the Tribunal as admitted facts. Hence we cannot go into the correctness of those facts. Dr. Sayed Mohammed, the learned counsel for the department contended that the observation of the High Court that "one of the conditions in the con" tract is that the goods imported should not in any circumstance be diverted from its determined destination, i.e. the mills"is incorrect as there is no such term in the contract entered into between the respondents and the mills. This submission, though in a technical sense may be correct, has really no substance because as -could be seen from the letter of authority issued by the Government that one of the conditions of the letter of authority was, to quote the words of that letter,"the person or firm in whose favour it has been issued, will act purely as an agent of the licensee and the goods imported will be the property of the licence holder both at the time of clearance through the Customs and subsequent thereto. The licenceholder will have to ensure that the goods on importation will be delivered to him and shall not be disposed of otherwise. The licensee shall not cause or permit the holder of the letter of authority to dispose of the goods."5. This clause must be read as a part of the contract entered into between the respondents and the mills. Even if this clause had not been there, there would have been no difficulty in coming to the conclusion thatthe respondents were precluded from selling the goods to anybody other than the mills to whom the users import licence had been granted. From the facts set out above it is obvious that the respondents could not have sold the goods to anybody other than the licence-holders.6.From the facts set out above it is clear that this case clearly falls within the rule laid down by this Court in K. G. Khosla and Co. v. Deputy Commr. of Commercial Taxes (l966) 3 SCR 352 =(AIR 1966 SC 1216 ). The appellant therein imported certain goods from Belgium in order to fulfill a contract with certain buyers in India. The question arose whether the sale effected in this country occasioned the import. This court came to the conclusion that the sale in question occasioned the import and as such it is exempt under Section 5 (2) of the Central Sales Tax Act, 1956, which says."A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India".7. Dr. Sayed Mohammed tried to distinguish Khoslas case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ) from the present case on the plea that in Khoslas case there was only one sale whereas in the present case there were two sales. We are unable to accept this contention as correct. From the facts set out above, it is clear that the facts of this case are similar to those found in Khoslas case, (1970) SCR 352 = (AIR 1966 SC 1216).8. Reliance was placed by Dr. Sayed Mohammed on the decision of this court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras, (1970) 3 SCR 147 = (AIR 1971 SC 870 ). The facts of that case briefly stated, are as follows:The Coffee Board auctioned certain quantities of coffee for the purpose of being sold in foreign countries. The purchasers of those lots were required to export that quantity of coffee to one or the other of the foreign countries mentioned in the sale notice. They were precluded from selling the same inside India. The question arose whether the purchases made by them occasioned export. This court came to the conclusion that the purchases in question were purchases for the purpose of export and the same did not occasion export. This court did not differ from the view taken in Khoslas case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ). On the other hand it distinguished that decision. Hence the rule laid down in the Coffee Boards case, (1970) 3 SCR 147 = (AIR 1971 SC 870 ) is inapplicable to the present case.
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6.From the facts set out above it is clear that this case clearly falls within the rule laid down by this Court in K. G. Khosla and Co. v. Deputy Commr. of Commercial Taxes (l966) 3 SCR 352 =(AIR 1966 SC 1216 ). The appellant therein imported certain goods from Belgium in order to fulfill a contract with certain buyers in India. The question arose whether the sale effected in this country occasioned the import. This court came to the conclusion that the sale in question occasioned the import and as such it is exempt under Section 5 (2) of the Central Sales Tax Act,the facts set out above, it is clear that the facts of this case are similar to those found in Khoslas case, (1970) SCR 352 = (AIR 1966 SCcourt did not differ from the view taken in Khoslas case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ). On the other hand it distinguished that decision. Hence the rule laid down in the Coffee Boards case, (1970) 3 SCR 147 = (AIR 1971 SC 870 ) is inapplicable to theare unable to accept this contention as correct. Fromthe facts set out above, it is clear that the facts of this case are similar to those found in Khoslas case, (1970) SCR 352 = (AIR 1966 SCthe other hand it distinguished that decision. Hence the rule laid down in the Coffee Boards case, (1970) 3 SCR 147 = (AIR 1971 SC 870 ) is inapplicable to the
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Management Hotel Imperial, New Delhi Vs. Hotel Workers' Union | being itself referred in express terms.23. The, next question is as to, how the tribunal should proceed in the matter if it decides to grant interim relief. The definition of the word "award" shows that it can be either an interim or final determination either of the whole of the dispute referred to the tribunal or of any question relating thereto. Thus it is open to the tribunal to give an award about the entire dispute at the end of all proceeding. This will be final determination of the industrial dispute referred to it. It is also open to the tribunal to make an award about some of the matters referred to it whilst some others still remain to be decided. This will be an interim determination of any question relating thereto, In either case it will have to be published as required by S. 17.Such awards are however not in the nature of intent relief for they decide the industrial dispute or some question relating thereto. Interim relief, on the other hand is granted under the power conferred on the tribunal under S. 10 (4) with respect to matters incidental to the points of dispute for adjudication.24. It is however urged on behalf of the appellants that even if the tribunal has power under S. 10 (4) of the Act to grant interim relief of the nature granted in these cases it can only do so by submitting an award under S. 15 to the appropriate government. Reference in this connection is made to sections 15, 17 and 17-A of the Act.It is submitted that as soon as the tribunal makes a determination whether interim or final, it must submit that determination to government which has to publish it as an award under S. 17 and thereafter the provisions of S. 17- A will apply. In reply the respondents rely on a decision of the Labour Appellate Tribunal in Allen Berry and Co. Ltd. v. Their Workmen, 1951-1 Lab LJ 228 (LAT-Cal), where it was held that an interim award had not to be sent like a final award to the government for publication and that it would take effect from the date of the order.We do not think it necessary to decide for present purposes whether an order granting interim relief of this kind is an award within the meaning of S. 2(b) and must therefore be published under S. 17. We shall assume that the interim order passed by the Tribunal on December 5,1955, could not be enforced as it was in the nature of an award and should have been submitted to the government and published under S. 17 to become enforceable under S. 17-A.It is, however, still open to us to consider whether we should pass an order giving interim relief in view of this alleged technical defect in the order of the Industrial Tribunal. We have the power to grant interim relief in the same manner as the Industrial Tribunal could do and our order need not be sent to government for publication,for Ss. 15, 17 and 17-A do not apply to the order of this Court just as they did not apply to the decision of the Appellate Tribunal which was governed by the Industrial Disputes (Appellate Tribunal) Act, 1950 (No. XLVIII of 1950), (since repealed).We have already mentioned that this Court passed an order on June 5, 1956, laying down conditions on which it stayed the operation of the order of December 5, 1955, made by the Industrial Tribunal. We are of opinion that that order is the right order to pass in the matter of granting interim relief to the workmen in these cases. Ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. In fairness to the Industrial Tribunal and the Appellate Tribunal we must say that they granted the entire wages plus Rs. 25 per mensem per head in lieu of food on the view that no suspension was possible at all in those cases and therefore the contract of service continued and full wages must be paid. Their orders might have been different if they had held otherwise. It seems to us just and fair in the circumstances therefore to under that the appellants shall pay to their respective workmen concerned half the amount adjudged payable by the order dated December 5, 1955, with respect to the entire period, as the case may be, from October 1, 1955 to December 10, 1955. or July 15, 1956, by which date, as we have already pointed out, practically all the workmen were taken back in service. We, therefore, order accordingly.25. Lastly, it is urged on behalf of the respondents that as all the workmen concerned were taken back in service they should be paid full wages for the interim period as their re-employment means that the decision to dismiss them and the consequent order of suspension were waved. This is a matter on which we do not propose to express any opinion. The proceedings are so far at the initial stage and the effect of re-employment, in the absence of full facts, on the question of waiver cannot be determined at this stage. It is enough to point out that the order we have passed above is an interim relief and it will be liable to be modified one way or the other, when the Industrial Tribunal proceeds to make the final determination of the questions referred to it in the light of the observations we have made on the matter of suspension. The appeals are partly allowed and the order dated December 5, 1955, granting interim relief is modified in the manner indicated above. In the circumstances, we order the parties to bear their own costs of this Court. As more than three years have gone by in these preliminaries since the references were made, we trust that the Industrial Tribunal will now dispose of the matter as expeditiously as possible.26. | 1[ds]17. We shall assume that the interim order passed by the Tribunal on December 5,1955, could not be enforced as it was in the nature of an award and should have been submitted to the government and published under S. 17 to become enforceable under S. 17-A.It is, however, still open to us to consider whether we should pass an order giving interim relief in view of this alleged technical defect in the order of the Industrial Tribunal. We have the power to grant interim relief in the same manner as the Industrial Tribunal could do and our order need not be sent to government for publication,for Ss. 15, 17 and 17-A do not apply to the order of this Court just as they did not apply to the decision of the Appellate Tribunal which was governed by the Industrial Disputes (Appellate Tribunal) Act, 1950 (No. XLVIII of 1950), (since repealed).We have already mentioned that this Court passed an order on June 5, 1956, laying down conditions on which it stayed the operation of the order of December 5, 1955, made by the Industrial Tribunal. We are of opinion that that order is the right order to pass in the matter of granting interim relief to the workmen in these cases. Ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. In fairness to the Industrial Tribunal and the Appellate Tribunal we must say that they granted the entire wages plus Rs. 25 per mensem per head in lieu of food on the view that no suspension was possible at all in those cases and therefore the contract of service continued and full wages must be paid. Their orders might have been different if they had held otherwise. It seems to us just and fair in the circumstances therefore to under that the appellants shall pay to their respective workmen concerned half the amount adjudged payable by the order dated December 5, 1955, with respect to the entire period, as the case may be, from October 1, 1955 to December 10, 1955. or July 15, 1956, by which date, as we have already pointed out, practically all the workmen were taken back in service. We, therefore, order accordingly. | 1 | 6,025 | 424 | ### Instruction:
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being itself referred in express terms.23. The, next question is as to, how the tribunal should proceed in the matter if it decides to grant interim relief. The definition of the word "award" shows that it can be either an interim or final determination either of the whole of the dispute referred to the tribunal or of any question relating thereto. Thus it is open to the tribunal to give an award about the entire dispute at the end of all proceeding. This will be final determination of the industrial dispute referred to it. It is also open to the tribunal to make an award about some of the matters referred to it whilst some others still remain to be decided. This will be an interim determination of any question relating thereto, In either case it will have to be published as required by S. 17.Such awards are however not in the nature of intent relief for they decide the industrial dispute or some question relating thereto. Interim relief, on the other hand is granted under the power conferred on the tribunal under S. 10 (4) with respect to matters incidental to the points of dispute for adjudication.24. It is however urged on behalf of the appellants that even if the tribunal has power under S. 10 (4) of the Act to grant interim relief of the nature granted in these cases it can only do so by submitting an award under S. 15 to the appropriate government. Reference in this connection is made to sections 15, 17 and 17-A of the Act.It is submitted that as soon as the tribunal makes a determination whether interim or final, it must submit that determination to government which has to publish it as an award under S. 17 and thereafter the provisions of S. 17- A will apply. In reply the respondents rely on a decision of the Labour Appellate Tribunal in Allen Berry and Co. Ltd. v. Their Workmen, 1951-1 Lab LJ 228 (LAT-Cal), where it was held that an interim award had not to be sent like a final award to the government for publication and that it would take effect from the date of the order.We do not think it necessary to decide for present purposes whether an order granting interim relief of this kind is an award within the meaning of S. 2(b) and must therefore be published under S. 17. We shall assume that the interim order passed by the Tribunal on December 5,1955, could not be enforced as it was in the nature of an award and should have been submitted to the government and published under S. 17 to become enforceable under S. 17-A.It is, however, still open to us to consider whether we should pass an order giving interim relief in view of this alleged technical defect in the order of the Industrial Tribunal. We have the power to grant interim relief in the same manner as the Industrial Tribunal could do and our order need not be sent to government for publication,for Ss. 15, 17 and 17-A do not apply to the order of this Court just as they did not apply to the decision of the Appellate Tribunal which was governed by the Industrial Disputes (Appellate Tribunal) Act, 1950 (No. XLVIII of 1950), (since repealed).We have already mentioned that this Court passed an order on June 5, 1956, laying down conditions on which it stayed the operation of the order of December 5, 1955, made by the Industrial Tribunal. We are of opinion that that order is the right order to pass in the matter of granting interim relief to the workmen in these cases. Ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. In fairness to the Industrial Tribunal and the Appellate Tribunal we must say that they granted the entire wages plus Rs. 25 per mensem per head in lieu of food on the view that no suspension was possible at all in those cases and therefore the contract of service continued and full wages must be paid. Their orders might have been different if they had held otherwise. It seems to us just and fair in the circumstances therefore to under that the appellants shall pay to their respective workmen concerned half the amount adjudged payable by the order dated December 5, 1955, with respect to the entire period, as the case may be, from October 1, 1955 to December 10, 1955. or July 15, 1956, by which date, as we have already pointed out, practically all the workmen were taken back in service. We, therefore, order accordingly.25. Lastly, it is urged on behalf of the respondents that as all the workmen concerned were taken back in service they should be paid full wages for the interim period as their re-employment means that the decision to dismiss them and the consequent order of suspension were waved. This is a matter on which we do not propose to express any opinion. The proceedings are so far at the initial stage and the effect of re-employment, in the absence of full facts, on the question of waiver cannot be determined at this stage. It is enough to point out that the order we have passed above is an interim relief and it will be liable to be modified one way or the other, when the Industrial Tribunal proceeds to make the final determination of the questions referred to it in the light of the observations we have made on the matter of suspension. The appeals are partly allowed and the order dated December 5, 1955, granting interim relief is modified in the manner indicated above. In the circumstances, we order the parties to bear their own costs of this Court. As more than three years have gone by in these preliminaries since the references were made, we trust that the Industrial Tribunal will now dispose of the matter as expeditiously as possible.26.
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17. We shall assume that the interim order passed by the Tribunal on December 5,1955, could not be enforced as it was in the nature of an award and should have been submitted to the government and published under S. 17 to become enforceable under S. 17-A.It is, however, still open to us to consider whether we should pass an order giving interim relief in view of this alleged technical defect in the order of the Industrial Tribunal. We have the power to grant interim relief in the same manner as the Industrial Tribunal could do and our order need not be sent to government for publication,for Ss. 15, 17 and 17-A do not apply to the order of this Court just as they did not apply to the decision of the Appellate Tribunal which was governed by the Industrial Disputes (Appellate Tribunal) Act, 1950 (No. XLVIII of 1950), (since repealed).We have already mentioned that this Court passed an order on June 5, 1956, laying down conditions on which it stayed the operation of the order of December 5, 1955, made by the Industrial Tribunal. We are of opinion that that order is the right order to pass in the matter of granting interim relief to the workmen in these cases. Ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. In fairness to the Industrial Tribunal and the Appellate Tribunal we must say that they granted the entire wages plus Rs. 25 per mensem per head in lieu of food on the view that no suspension was possible at all in those cases and therefore the contract of service continued and full wages must be paid. Their orders might have been different if they had held otherwise. It seems to us just and fair in the circumstances therefore to under that the appellants shall pay to their respective workmen concerned half the amount adjudged payable by the order dated December 5, 1955, with respect to the entire period, as the case may be, from October 1, 1955 to December 10, 1955. or July 15, 1956, by which date, as we have already pointed out, practically all the workmen were taken back in service. We, therefore, order accordingly.
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The Commissioner Of Income-Tax,West Bengal, Calcutta Vs. Raja Benoy Kumar Sahas Roy | position. In the first instance, it is defined as rent or revenue derived from land which is used for agricultural purposes; and it is next defined as income derived from such land by agriculture or by the activities described in clauses (ii) and (iii) of section 2(1)(b) of the Act. These activities are postulated to be performed by the cultivator or receiver of rent-in- kind of such land in regard to the products raised or received by him which necessarily means the produce raised on the land either by himself or by the actual cultivator of the land who pays such rent-in- kind to him. If produce raised or received by the cultivator or receiver of rent-in-kind is thus made the subject-matter of clauses(ii) and (iii) in section 2(1)(b) of the Act, the term "agriculture" used in clause (i) of section 2(1)(b) must also be similarly restricted to the performance of the basic operations on the still wider sense indicated above. 101. If the term "agriculture" is thus understood as comprising within its scope the basic as well as subsequent operations in the process of agriculture and the raising on the land of products which have some utility either for consumption or for trade and commerce, it will be seen that the term "agriculture" receives a wider interpretation both in regard to its operations as well as the results of the same. Nevertheless there is present all throughout the basic idea that there must be at the bottom of it cultivation of land in the sense of tilling of the land, sowing of the seeds, planting, and similar work done on the land itself. This basic conception is the essential sine qua non of any operation performed on the land constituting agricultural operation performed on the land constituting agricultural operation. If the basic operations are there, the rest of the operations found themselves upon the same. But if these basic operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations. 102. All these operations no doubt require the expenditure of human labour and skill but the human labour and skill spent in the performance of subsequent operations cannot be said to have been spent upon the land. The human labour and skill spent in the performance of subsequent operations cannot be said to have been spent on the land itself, though it may have the effect of preserving, fostering and regenerating the products of the land. 103. This distinction is not so important in cases where the agriculturist performs these operations as a part of his integrated activity in cultivation of the land. Where, however, the products of the land are of spontaneous growth, unassisted by human skill and labour, and human skill and labour are spent merely in fostering the growth, preservation and regeneration of such products of land, the question falls to be considered whether these subsequent and enjoy the characteristic of agricultural operations. 104. It is agreed on all hands that products which grow wild on the land or are of spontaneous growth not involving any human labour or skill upon the land are not products of agriculture and the income derived there from is not agricultural income. There is no process of agriculture involved in the raising of these products from the land. There are no agricultural operations performed by the assessee in respect of the same, and the only work which the assessee performs here is that of collecting the produce and consuming and marketing the same. No agricultural operations have been performed and there is no question at all of the income derived there from being agricultural income within the definition given in section 2(1) of the Indian Income-tax Act. Where, however, the assessee performs subsequent operations on these products of land which are of wild or spontaneous growth, the nature of those operations would have to be determined in the light of the principles enunciated above. 105. Applying these principles to the facts of the present case, we no doubt start with the finding that the forest in question was of spontaneous growth. If there were no other facts found, that would entail the conclusion that the income is not agricultural income. But then, it has also been found by the Tribunal that the forest is more than 150 years old, though portions of the forest have from time to time been denuded, that is to say, trees have completely fallen and the proprietors have planted fresh trees in those areas, and they have performed operations for the purpose of nursing the trees planted by them. It cannot be denied that so far as those trees are concerned, the income derived there from would be agricultural income. In view of the fact that the forest is more than 150 year old, the areas which had thus become denuded and replanted cannot be considered to be negligible. The position therefore is that the whole of the income derived from the forest cannot be treated as non-agricultural income. If the enquiry had been directed on proper lines, it would have been possible for the Income-tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors. But no such enquiry had been directed, and in view of the long lapse of time, we do not consider it desirable to direct any such enquiry now. The expenditure shown by the assessee for the maintenance of the forest is about Rs. 17,000 as against a total income of about Rs. 51,000. Having regard to the magnitude of this figure, we think that a substantial portion of the income must have been derived from trees planted by the proprietors themselves. As no attempt has been made by the Department to establish which portion of the income is attributable to forest of spontaneous growth, there are no materials on which we could say that the judgment of the Court below is wrong. | 0[ds]An argument based on entries 14 and 19 of List II of the Seventh Schedule to the Constitution may be disposed of at once.It was urged that entry No. 14 referred to agriculture including agricultural education and research, protection against pests and prevention of plant diseases while entry No. 19 referred to forestand there wasa clear line of demarcation between agriculture and forestwith the result that forestry could not be comprised within agriculture.If forestry was thus not comprised within agriculture, any income from forestry could not be agricultural income and the income derived by the assessee from the sale of the forest trees could not be agricultural income at all, as it was not derived from land by agriculture within the meaning of the definition of agricultural income given in the Indians argument, however, does not take account of the fact that the entries in theof the Seventh Schedule to the Constitution are heads of legislation which are to be interpreted in a liberal manner comprising within their scope all matters incidental thereto.They are not mutually exclusive. If the assessee plants on a vacant site trees with a view that they should grow into a forest, as, casuarina plantationss labour and skill for that purpose, the income from such trees would clearly be. It hasto be remembered that even though this demarcation between agricultureforestry was available in the Lists contained in the Seventh Schedule to the Government of India Act1935, no such demarcation existed in the Devolution Rules made under the Government of India Act, 1919, and in any event the definition of agricultural income with which we are concerned was incorporated in the IndianActs as early as 1886, if not earlier; videof the IndianAct, 1886 (II ofso to be remembered that in spite of this demarcation between agriculture and forests in the Constitution, taxes on agricultural income are a separate head under entry 46 of List II of the Seventh Schedule and would comprise within their scope even income from forestry operations provided it falls within the definition of agricultural income which according to the definition given under1) means agricultural income as defined for the purposes of the enactments relating to Indian. It was urgedon behalf of the assessee that the Court should accept the wider significance of the term and include forestry operations also within its connotation even though they did not involve tilling of the land, sowing of seedsplanting, or similar work on the land. The argument was that tilling of the land, sowing of the seedsplanting or similar work on the land were no doubt agricultural operations and if they were part of the forestry operations carried on by the assessee the subsequent operations would certainly be a continuation of the same and would therefore acquire the characteristic of agricultural operations.But the absence of these basic operations would not necessarily make any difference to the character of the subsequent operations and would not divest them of their character of agricultural operations, so that if in a particular case one found that the forest was of spontaneous growth, even so if forestry operations were carried on in such forests for the purpose of furthering the growth of forest trees, these operations would also enjoy the character of agricultural operations.If breeding and rearing of live, butter andetc., could be comprised within the term "agriculture", it was asked, why should these also be notile recognizing the force of the above expressions of opinion we cannot press them into service in favour of the assessee for the simple reason that "agricultural income" has been defined in the Constitution itself in1) to mean agricultural income as defined for the purposes of enactments relating to Indian incometax and there is a definition of "agricultural income" to be found in1) of thee have therefore got to look to the terms of the definition itself and construe the same regardless of any other consideration, though, in so far as the terms "agriculture" and "agriculturalare concerned, we feel freein view of the same not having been defined in the Act itself, to consider the various meanings which have been ascribed to the same in the legal and other dictionaries.The cases above noted all of them interpret the term "agriculture" in its narrower sense, though there is a marked progress fromthe extremely narrow construction put upon it by Bhashyam Ayyangar, J., in Murugesa Chettiat p.) anda Sastri, J., inat p.at p.. It is interesting to notethat all throughthese cases runs the central idea of either tillage of the land or sowing of seeds or planting or similar work on the land which invests the operation with the characteristic of agricultural operations and wheneverl idea is fulfilled there is the user of land for agricultural purposes and the income derived there from becomes agricultural income.The cases above noted all of them involve some expenditure of human skill and labour either on the land or the produce of the land, for without such expenditure there would be no question of the income derived from such land being agricultural income. Where, however, the products of the land are ofor spontaneous growth involving no expenditure of humanand skill there is unanimity of opinion that no agricultural operations were at all involved and there is no agricultural income. In such cases, it would be the absence of any such operations rather than the performance thereof which would be the prime cause of growth of such products.fa Ali Khan v. Commissioner of, which went up to the Privy Council, the Oudh Chief Court held that income from the sale of forest trees growing on land naturally and without the intervention of human agency, evenif the land was assessed to landrevenue, was not agricultural income within the meaning of(a) of theAct. The Courtfollowed an earlier decision given by it in the case of Maharaja of Kapurthala v. Commissioner of Incomeand Cat p., in which thehad discussed the meaning to be ascribed to the term "agriculture" and observed atof I"A fiscal statute should nodoubt be construedand, if there be any doubt about its construction, the subject must be given the benefit. But we do not feel any doubt that the expression"land used for agricultural purposes"in the Incometax Act does not extend to forests of spontaneous growth, where nothing is done to prepare the soil for trees to be planted therein, and where the growth of the trees is not fostered by tillage. We should not be justified in giving the taxpayer the benefit of the dictionary definition when it is not disputed that the meaning of the term"agricultural" cannot beextended for the purpose of theAct to all the secondarytherein suggested. We therefore construe the term in its primary sense. Wed that income from the sale of forest treesof spontaneous growthgrowing on land which is assessed to land revenue is not agricultural income within the meaning of(a) of the0. It may benoted at the outset that the definition of "agricultural income" given in1) of thex Act is in identical terms with the definitions of that term as given in the various AgriculturalActs passed by the several States. It will be idle therefore to treat "Taxes on Agricultural Income" which fall within the legislative competence of the Stateas having no relation at all to the corresponding provisionsof the Indiance it is determined that the income in question is derived from land used for agricultural purposes by agriculture, it would be agricultural income and as such exempt from tax under) of thex Act and would fall within the purview of the relevant provisions of the several AgriculturalActs passed by the various States.The result of this determination would be that the assessee would not be liable to assessment under the IndianAct but he would have to pay thex which would be levied upon him under the relative Agricultural. In order that an income derived by the assessee should fall within the definition of agricultural income two conditions are necessary to be satisfied and they(i) that the land from which it is derived should be used for agricultural purposes and is either assessed for land revenuethe taxable territories or is subject to local rates assessed and collected by the officers of the Government as such; and (ii) that the income should be derived from such land by agriculture or by one or the other of the operations described in(b) of. It was at one time thought that the assessment of the land to land revenue in the taxable territories was intended to exempt the income derived from that land from liability for payment ofaltogether and that theory was based on the assumption that an assessee who was subject to payment of land revenue should not further be subjected to the payment of incometax, because if he was so subjected he would be liable to pay double taxation.Whatever may have been the genesisexemption of agricultural income fromthe liability to pay land revenue or fixed peishkush under Regulation XXV of 1802 was not considered by Rankin, J. | 0 | 21,967 | 1,621 | ### Instruction:
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position. In the first instance, it is defined as rent or revenue derived from land which is used for agricultural purposes; and it is next defined as income derived from such land by agriculture or by the activities described in clauses (ii) and (iii) of section 2(1)(b) of the Act. These activities are postulated to be performed by the cultivator or receiver of rent-in- kind of such land in regard to the products raised or received by him which necessarily means the produce raised on the land either by himself or by the actual cultivator of the land who pays such rent-in- kind to him. If produce raised or received by the cultivator or receiver of rent-in-kind is thus made the subject-matter of clauses(ii) and (iii) in section 2(1)(b) of the Act, the term "agriculture" used in clause (i) of section 2(1)(b) must also be similarly restricted to the performance of the basic operations on the still wider sense indicated above. 101. If the term "agriculture" is thus understood as comprising within its scope the basic as well as subsequent operations in the process of agriculture and the raising on the land of products which have some utility either for consumption or for trade and commerce, it will be seen that the term "agriculture" receives a wider interpretation both in regard to its operations as well as the results of the same. Nevertheless there is present all throughout the basic idea that there must be at the bottom of it cultivation of land in the sense of tilling of the land, sowing of the seeds, planting, and similar work done on the land itself. This basic conception is the essential sine qua non of any operation performed on the land constituting agricultural operation performed on the land constituting agricultural operation. If the basic operations are there, the rest of the operations found themselves upon the same. But if these basic operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations. 102. All these operations no doubt require the expenditure of human labour and skill but the human labour and skill spent in the performance of subsequent operations cannot be said to have been spent upon the land. The human labour and skill spent in the performance of subsequent operations cannot be said to have been spent on the land itself, though it may have the effect of preserving, fostering and regenerating the products of the land. 103. This distinction is not so important in cases where the agriculturist performs these operations as a part of his integrated activity in cultivation of the land. Where, however, the products of the land are of spontaneous growth, unassisted by human skill and labour, and human skill and labour are spent merely in fostering the growth, preservation and regeneration of such products of land, the question falls to be considered whether these subsequent and enjoy the characteristic of agricultural operations. 104. It is agreed on all hands that products which grow wild on the land or are of spontaneous growth not involving any human labour or skill upon the land are not products of agriculture and the income derived there from is not agricultural income. There is no process of agriculture involved in the raising of these products from the land. There are no agricultural operations performed by the assessee in respect of the same, and the only work which the assessee performs here is that of collecting the produce and consuming and marketing the same. No agricultural operations have been performed and there is no question at all of the income derived there from being agricultural income within the definition given in section 2(1) of the Indian Income-tax Act. Where, however, the assessee performs subsequent operations on these products of land which are of wild or spontaneous growth, the nature of those operations would have to be determined in the light of the principles enunciated above. 105. Applying these principles to the facts of the present case, we no doubt start with the finding that the forest in question was of spontaneous growth. If there were no other facts found, that would entail the conclusion that the income is not agricultural income. But then, it has also been found by the Tribunal that the forest is more than 150 years old, though portions of the forest have from time to time been denuded, that is to say, trees have completely fallen and the proprietors have planted fresh trees in those areas, and they have performed operations for the purpose of nursing the trees planted by them. It cannot be denied that so far as those trees are concerned, the income derived there from would be agricultural income. In view of the fact that the forest is more than 150 year old, the areas which had thus become denuded and replanted cannot be considered to be negligible. The position therefore is that the whole of the income derived from the forest cannot be treated as non-agricultural income. If the enquiry had been directed on proper lines, it would have been possible for the Income-tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors. But no such enquiry had been directed, and in view of the long lapse of time, we do not consider it desirable to direct any such enquiry now. The expenditure shown by the assessee for the maintenance of the forest is about Rs. 17,000 as against a total income of about Rs. 51,000. Having regard to the magnitude of this figure, we think that a substantial portion of the income must have been derived from trees planted by the proprietors themselves. As no attempt has been made by the Department to establish which portion of the income is attributable to forest of spontaneous growth, there are no materials on which we could say that the judgment of the Court below is wrong.
### Response:
0
### Explanation:
that if in a particular case one found that the forest was of spontaneous growth, even so if forestry operations were carried on in such forests for the purpose of furthering the growth of forest trees, these operations would also enjoy the character of agricultural operations.If breeding and rearing of live, butter andetc., could be comprised within the term "agriculture", it was asked, why should these also be notile recognizing the force of the above expressions of opinion we cannot press them into service in favour of the assessee for the simple reason that "agricultural income" has been defined in the Constitution itself in1) to mean agricultural income as defined for the purposes of enactments relating to Indian incometax and there is a definition of "agricultural income" to be found in1) of thee have therefore got to look to the terms of the definition itself and construe the same regardless of any other consideration, though, in so far as the terms "agriculture" and "agriculturalare concerned, we feel freein view of the same not having been defined in the Act itself, to consider the various meanings which have been ascribed to the same in the legal and other dictionaries.The cases above noted all of them interpret the term "agriculture" in its narrower sense, though there is a marked progress fromthe extremely narrow construction put upon it by Bhashyam Ayyangar, J., in Murugesa Chettiat p.) anda Sastri, J., inat p.at p.. It is interesting to notethat all throughthese cases runs the central idea of either tillage of the land or sowing of seeds or planting or similar work on the land which invests the operation with the characteristic of agricultural operations and wheneverl idea is fulfilled there is the user of land for agricultural purposes and the income derived there from becomes agricultural income.The cases above noted all of them involve some expenditure of human skill and labour either on the land or the produce of the land, for without such expenditure there would be no question of the income derived from such land being agricultural income. Where, however, the products of the land are ofor spontaneous growth involving no expenditure of humanand skill there is unanimity of opinion that no agricultural operations were at all involved and there is no agricultural income. In such cases, it would be the absence of any such operations rather than the performance thereof which would be the prime cause of growth of such products.fa Ali Khan v. Commissioner of, which went up to the Privy Council, the Oudh Chief Court held that income from the sale of forest trees growing on land naturally and without the intervention of human agency, evenif the land was assessed to landrevenue, was not agricultural income within the meaning of(a) of theAct. The Courtfollowed an earlier decision given by it in the case of Maharaja of Kapurthala v. Commissioner of Incomeand Cat p., in which thehad discussed the meaning to be ascribed to the term "agriculture" and observed atof I"A fiscal statute should nodoubt be construedand, if there be any doubt about its construction, the subject must be given the benefit. But we do not feel any doubt that the expression"land used for agricultural purposes"in the Incometax Act does not extend to forests of spontaneous growth, where nothing is done to prepare the soil for trees to be planted therein, and where the growth of the trees is not fostered by tillage. We should not be justified in giving the taxpayer the benefit of the dictionary definition when it is not disputed that the meaning of the term"agricultural" cannot beextended for the purpose of theAct to all the secondarytherein suggested. We therefore construe the term in its primary sense. Wed that income from the sale of forest treesof spontaneous growthgrowing on land which is assessed to land revenue is not agricultural income within the meaning of(a) of the0. It may benoted at the outset that the definition of "agricultural income" given in1) of thex Act is in identical terms with the definitions of that term as given in the various AgriculturalActs passed by the several States. It will be idle therefore to treat "Taxes on Agricultural Income" which fall within the legislative competence of the Stateas having no relation at all to the corresponding provisionsof the Indiance it is determined that the income in question is derived from land used for agricultural purposes by agriculture, it would be agricultural income and as such exempt from tax under) of thex Act and would fall within the purview of the relevant provisions of the several AgriculturalActs passed by the various States.The result of this determination would be that the assessee would not be liable to assessment under the IndianAct but he would have to pay thex which would be levied upon him under the relative Agricultural. In order that an income derived by the assessee should fall within the definition of agricultural income two conditions are necessary to be satisfied and they(i) that the land from which it is derived should be used for agricultural purposes and is either assessed for land revenuethe taxable territories or is subject to local rates assessed and collected by the officers of the Government as such; and (ii) that the income should be derived from such land by agriculture or by one or the other of the operations described in(b) of. It was at one time thought that the assessment of the land to land revenue in the taxable territories was intended to exempt the income derived from that land from liability for payment ofaltogether and that theory was based on the assumption that an assessee who was subject to payment of land revenue should not further be subjected to the payment of incometax, because if he was so subjected he would be liable to pay double taxation.Whatever may have been the genesisexemption of agricultural income fromthe liability to pay land revenue or fixed peishkush under Regulation XXV of 1802 was not considered by Rankin, J.
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Vishwa Development Sharma Vs. State of Rajasthan | KULDIP SINGH, J.Vishwa Dev Sharma and Anand Dev Sharma were convicted under the Contempt of Courts Act, 1971 (for short the Act) by the Rajasthan High Court. They were sentenced to undergo simple imprisonment for a period of two months. This appeal under section 19 of the Act has been filed by Vishwa Dev Sharma against the judgment of the High Court dated September 8, 19922. The appellant is the editor of a Hindi daily newspaper called "Nyaya" which is published in three editions from Ajmer, Jaipur and Alwar. An article titled "From the Court precincts" was published on October 6, 1987 in the Jaipur edition of the paper. The article was written be a freelance journalist Anand Sharma. The English version of the article is reproduced in the impugned judgment of the High Court. We have been taken through the judgment of the High Court including the contents of the article. We are, of the view that the contents of the article are on the face of it contemptuous and, as such, the High Court was justified in convicting the appellant under the Act. The High Court in its judgment commented upon the article in the following terms :- "The article in question makes its start in a very sarcastic manner by pin-pointing Justice Vinod Shanker Dave against whose impartiality and judicial integrity fingers are said to be raised. Even the company of a Judge with Justice Dave is stated to be a starting point of degradation of that Judge. What can be more contemptuous and outrageous than mentioning in the article that company of Justice Dave can convert even a godly man into a "devil" within a short span of time. Anand Sharma further wrote that on account of justice S.C. Agarwal acting on the indications of Justice Dave, the judgeship of Supreme Court which was at the door-step of Justice Agarwal has now become only a dreamIt has next been said that Justice Dave become ready to accept the interim bail application of Mohan Lal accused because his junior Shri Biri Singh, Advocate, was conducting the case on behalf of Mohan Lal There is further the allegation in the article that as Justice Guman Mal Lodha was acquiring fame on account of his various steps to make available cheap and quick justice, a Full Bench of Justice Agarwal, Justice Kasliwal and Justice Dave issued a restraint order against the treating of a letter as writ petition by any Judge. It is said that there was politics in the High Court and its polarisation." The High Court finally observed as under :- "The whole trend, tenor and content of the article tend to shake the confidence of the public in the High Court and leads the public to believe that even the High Court, one is highly doubtful of getting justice." * 3. The appellant in his reply filed before the High Court, stated that he was aged about 70 years and was suffering from heart problems. Due to his illness he was confined to the city of Ajmer and had not been going out of Ajmer except for unavoidable reasons. The article was published in the Jaipur edition and, as such, he was unaware about the same as he was residing most of the time at Ajmer. He further stated that Anand Sharma was not an employee of the newspaper. The appellant regretted the publication of the article and tendered unconditional apology before the High Court 4. Mr. Shanti Bhushan, learned senior counsel appearing for the appellant has contended that the appellant is a heart patient and has undergone coronary bypass surgery. He has further stated that since 1952 when he started the newspaper it is only the present instance where an objectionable article has been published in the newspaper. Due to the appellants ill-health he has not been able to look after the day-to-day running and publishing of the newspaper for several years and the same is being done by various sub-editors in the three cities from where it is published 5. We are not inclined to interfere with the conviction of the appellant and, as such, we uphold the judgment of the High Court to that extent. Keeping in view the age, health and other facts and circumstances of this case, we are of the view that the ends of justice would be met if instead of sentence of imprisonment, the appellant is awarded the sentence of fine. | 1[ds]5. We are not inclined to interfere with the conviction of the appellant and, as such, we uphold the judgment of the High Court to that extent. Keeping in view the age, health and other facts and circumstances of this case, we are of the view that the ends of justice would be met if instead of sentence of imprisonment, the appellant is awarded the sentence of fine. | 1 | 807 | 80 | ### 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:
KULDIP SINGH, J.Vishwa Dev Sharma and Anand Dev Sharma were convicted under the Contempt of Courts Act, 1971 (for short the Act) by the Rajasthan High Court. They were sentenced to undergo simple imprisonment for a period of two months. This appeal under section 19 of the Act has been filed by Vishwa Dev Sharma against the judgment of the High Court dated September 8, 19922. The appellant is the editor of a Hindi daily newspaper called "Nyaya" which is published in three editions from Ajmer, Jaipur and Alwar. An article titled "From the Court precincts" was published on October 6, 1987 in the Jaipur edition of the paper. The article was written be a freelance journalist Anand Sharma. The English version of the article is reproduced in the impugned judgment of the High Court. We have been taken through the judgment of the High Court including the contents of the article. We are, of the view that the contents of the article are on the face of it contemptuous and, as such, the High Court was justified in convicting the appellant under the Act. The High Court in its judgment commented upon the article in the following terms :- "The article in question makes its start in a very sarcastic manner by pin-pointing Justice Vinod Shanker Dave against whose impartiality and judicial integrity fingers are said to be raised. Even the company of a Judge with Justice Dave is stated to be a starting point of degradation of that Judge. What can be more contemptuous and outrageous than mentioning in the article that company of Justice Dave can convert even a godly man into a "devil" within a short span of time. Anand Sharma further wrote that on account of justice S.C. Agarwal acting on the indications of Justice Dave, the judgeship of Supreme Court which was at the door-step of Justice Agarwal has now become only a dreamIt has next been said that Justice Dave become ready to accept the interim bail application of Mohan Lal accused because his junior Shri Biri Singh, Advocate, was conducting the case on behalf of Mohan Lal There is further the allegation in the article that as Justice Guman Mal Lodha was acquiring fame on account of his various steps to make available cheap and quick justice, a Full Bench of Justice Agarwal, Justice Kasliwal and Justice Dave issued a restraint order against the treating of a letter as writ petition by any Judge. It is said that there was politics in the High Court and its polarisation." The High Court finally observed as under :- "The whole trend, tenor and content of the article tend to shake the confidence of the public in the High Court and leads the public to believe that even the High Court, one is highly doubtful of getting justice." * 3. The appellant in his reply filed before the High Court, stated that he was aged about 70 years and was suffering from heart problems. Due to his illness he was confined to the city of Ajmer and had not been going out of Ajmer except for unavoidable reasons. The article was published in the Jaipur edition and, as such, he was unaware about the same as he was residing most of the time at Ajmer. He further stated that Anand Sharma was not an employee of the newspaper. The appellant regretted the publication of the article and tendered unconditional apology before the High Court 4. Mr. Shanti Bhushan, learned senior counsel appearing for the appellant has contended that the appellant is a heart patient and has undergone coronary bypass surgery. He has further stated that since 1952 when he started the newspaper it is only the present instance where an objectionable article has been published in the newspaper. Due to the appellants ill-health he has not been able to look after the day-to-day running and publishing of the newspaper for several years and the same is being done by various sub-editors in the three cities from where it is published 5. We are not inclined to interfere with the conviction of the appellant and, as such, we uphold the judgment of the High Court to that extent. Keeping in view the age, health and other facts and circumstances of this case, we are of the view that the ends of justice would be met if instead of sentence of imprisonment, the appellant is awarded the sentence of fine.
### Response:
1
### Explanation:
5. We are not inclined to interfere with the conviction of the appellant and, as such, we uphold the judgment of the High Court to that extent. Keeping in view the age, health and other facts and circumstances of this case, we are of the view that the ends of justice would be met if instead of sentence of imprisonment, the appellant is awarded the sentence of fine.
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Commnr. Of Income Tax, Bangalore Vs. M/S. Century Building Industries Pvt.Ltd | a banking company to which the Banking Regulation Act, 1949 (10 of 1949) applies (including any bank or banking institution referred to in section 51 of that Act); or (b) time deposits with a co-operative society engaged in carrying on the business of banking; (c) deposits with a public company which is formed and registered in India with the main object of carrying on the business of providing long-term finance for construction or purchase of houses in India for residential purposes and which is eligible for deduction under clause (viii) of sub-section (1) of section 36 [***], [* * *] the aforesaid amount shall be computed with reference to the income credited or paid by a branch of the banking company or the co-operative society or the public company, as the case may be;] (ii) [***] (iii) to such income credited or paid to- (a) any banking company to which the Banking Regulation Act, 1949 (10 of 1949), applies, or any co-operative society engaged in carrying on the business of banking (including a co-operative land mortgage bank), or (b) any financial corporation established by or under a Central, State or Provincial Act, or (c) the Life Insurance Corporation of India established under the Life Insurance Corporation Act, 1956 (31 of 1956), or (d) the Unit Trust of India established under the Unit Trust of India Act, 1963 (52 of 1963), or (e) any company or co-operative society carrying on the business of insurance, or (f) such other institution, association or body [or class of institutions, associations or bodies] which the Central Government may, for reasons to be recorded in writing, notify in this behalf in the Official Gazette; (iv) to such income credited or paid by a firm to a partner of the firm; (v) to such income credited or paid by a co-operative society [to a member thereof or] to any other co-operative society;] (vi) to such income credited or paid in respect of deposits under any scheme framed by the Central Government and notified by it in this behalf in the Official Gazette; (vii) to such income credited or paid in respect of deposits (other than time deposits made on or after the 1st day of July, 1995) with a banking company to which the Banking Regulation Act, 1949 (10 of 1949) applies (including any bank or banking institution referred to in section 51 of that Act); (viii) to such income credited or paid in respect of,- (a) deposits with a primary agricultural credit society or a primary credit society or a co-operative land mortgage bank or a co-operative land development bank; (b) deposits (other than time deposits made on or after the 1st day of July, 1995) with a co-operative society, other than a co-operative society or bank referred to in sub-clause (a), engaged in carrying on the business of banking;] (ix) to such income credited or paid by the Central Government under any provision of this Act or the Indian Income-tax Act, 1922 (11 of 1922), or the Estate Duty Act, 1953 (34 of 1953), or the Wealth-tax Act, 1957 (27 of 1957), or the Gift-tax Act, 1958 (18 of 1958), or the Super Profits Tax Act, 1963 (14 of 1963), or the Companies (Profits) Surtax Act, 1964 (7 of 1964), or the Interest-tax Act, 1974 (45 of 1974);] (x) to such income credited or paid by way of interest on the compensation amount awarded by the Motor Accidents Claims Tribunal where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid during the financial year does not exceed fifty thousand rupees;] (xi) to such income which is paid or payable by an infrastructure capital company or infrastructure capital fund or a public sector company in relation to a zero coupon bond issued on or after the 1st day of June, 2005 by such company or fund or public sector company.] Explanation 1.-For the purposes of clauses (i), (vii) and (viia), "time deposits" means deposits (excluding recurring deposits) repayable on the expiry of fixed periods. Explanation.-2 - Omitted. (4) The person responsible for making the payment referred to in sub-section (1) may, at the time of making any deduction, increase or reduce the amount to be deducted under this section for the purpose of adjusting any excess or deficiency arising out of any previous deduction or failure to deduct during the financial year.” (emphasis supplied) 7. The material expression in Section 194A(1) of the Act is “at the time of credit of such income to the account of the payee”. When interest is debited to “Interest Account” the debit is for a specific amount calculated with reference to the liability of the deductor to a particular creditor in accordance with the terms and conditions of the loan. Therefore, whenever interest is credited to the account of the payee the payer has to deduct the TDS. The crux of the matter is that the debit is for a specific amount calculated with reference to the deductor’s liability to a particular creditor in accordance with the terms and conditions of the loan. In the present case, the lender had advanced the loan to the assessee-company. Debit was made by the assessee-company to the “Interest Account” for a specific amount calculated with reference to the deductor’s liability to a creditor. There is no resolution of the assessee-company placed before the A.O. whereby the company has agreed to act as a medium for routing the borrowings and repayments. In the circumstances it cannot be said that the assessee-company was in charge of disbursing the repayments made by directors in their individual capacities.8. Consequently, Department was right in invoking the provisions of Sections 201 and 201(1A) of the Act. However, on facts we are of the view that in the first instance over the years the Department should have not allowed non-deduction of TDS by the company and nothing prevented the A.O. from raising the objection to such practice. | 1[ds]7. The material expression in Section 194A(1) of the Act isthe time of credit of such income to the account of theWhen interest is debited tohe debit is for a specific amount calculated with reference to the liability of the deductor to a particular creditor in accordance with the terms and conditions of the loan. Therefore, whenever interest is credited to the account of the payee the payer has to deduct the TDS. The crux of the matter is that the debit is for a specific amount calculated with reference to theliability to a particular creditor in accordance with the terms and conditions of the loan. In the present case, the lender had advanced the loan to the assessee-company. Debit was made by the assessee-company to theor a specific amount calculated with reference to theliability to a creditor. There is no resolution of the assessee-company placed before the A.O. whereby the company has agreed to act as a medium for routing the borrowings and repayments. In the circumstances it cannot be said that the assessee-company was in charge of disbursing the repayments made by directors in their individual capacities.8. Consequently, Department was right in invoking the provisions of Sections 201 and 201(1A) of the Act. However, on facts we are of the view that in the first instance over the years the Department should have not allowed non-deduction of TDS by the company and nothing prevented the A.O. from raising the objection to such practice. | 1 | 2,726 | 272 | ### 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:
a banking company to which the Banking Regulation Act, 1949 (10 of 1949) applies (including any bank or banking institution referred to in section 51 of that Act); or (b) time deposits with a co-operative society engaged in carrying on the business of banking; (c) deposits with a public company which is formed and registered in India with the main object of carrying on the business of providing long-term finance for construction or purchase of houses in India for residential purposes and which is eligible for deduction under clause (viii) of sub-section (1) of section 36 [***], [* * *] the aforesaid amount shall be computed with reference to the income credited or paid by a branch of the banking company or the co-operative society or the public company, as the case may be;] (ii) [***] (iii) to such income credited or paid to- (a) any banking company to which the Banking Regulation Act, 1949 (10 of 1949), applies, or any co-operative society engaged in carrying on the business of banking (including a co-operative land mortgage bank), or (b) any financial corporation established by or under a Central, State or Provincial Act, or (c) the Life Insurance Corporation of India established under the Life Insurance Corporation Act, 1956 (31 of 1956), or (d) the Unit Trust of India established under the Unit Trust of India Act, 1963 (52 of 1963), or (e) any company or co-operative society carrying on the business of insurance, or (f) such other institution, association or body [or class of institutions, associations or bodies] which the Central Government may, for reasons to be recorded in writing, notify in this behalf in the Official Gazette; (iv) to such income credited or paid by a firm to a partner of the firm; (v) to such income credited or paid by a co-operative society [to a member thereof or] to any other co-operative society;] (vi) to such income credited or paid in respect of deposits under any scheme framed by the Central Government and notified by it in this behalf in the Official Gazette; (vii) to such income credited or paid in respect of deposits (other than time deposits made on or after the 1st day of July, 1995) with a banking company to which the Banking Regulation Act, 1949 (10 of 1949) applies (including any bank or banking institution referred to in section 51 of that Act); (viii) to such income credited or paid in respect of,- (a) deposits with a primary agricultural credit society or a primary credit society or a co-operative land mortgage bank or a co-operative land development bank; (b) deposits (other than time deposits made on or after the 1st day of July, 1995) with a co-operative society, other than a co-operative society or bank referred to in sub-clause (a), engaged in carrying on the business of banking;] (ix) to such income credited or paid by the Central Government under any provision of this Act or the Indian Income-tax Act, 1922 (11 of 1922), or the Estate Duty Act, 1953 (34 of 1953), or the Wealth-tax Act, 1957 (27 of 1957), or the Gift-tax Act, 1958 (18 of 1958), or the Super Profits Tax Act, 1963 (14 of 1963), or the Companies (Profits) Surtax Act, 1964 (7 of 1964), or the Interest-tax Act, 1974 (45 of 1974);] (x) to such income credited or paid by way of interest on the compensation amount awarded by the Motor Accidents Claims Tribunal where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid during the financial year does not exceed fifty thousand rupees;] (xi) to such income which is paid or payable by an infrastructure capital company or infrastructure capital fund or a public sector company in relation to a zero coupon bond issued on or after the 1st day of June, 2005 by such company or fund or public sector company.] Explanation 1.-For the purposes of clauses (i), (vii) and (viia), "time deposits" means deposits (excluding recurring deposits) repayable on the expiry of fixed periods. Explanation.-2 - Omitted. (4) The person responsible for making the payment referred to in sub-section (1) may, at the time of making any deduction, increase or reduce the amount to be deducted under this section for the purpose of adjusting any excess or deficiency arising out of any previous deduction or failure to deduct during the financial year.” (emphasis supplied) 7. The material expression in Section 194A(1) of the Act is “at the time of credit of such income to the account of the payee”. When interest is debited to “Interest Account” the debit is for a specific amount calculated with reference to the liability of the deductor to a particular creditor in accordance with the terms and conditions of the loan. Therefore, whenever interest is credited to the account of the payee the payer has to deduct the TDS. The crux of the matter is that the debit is for a specific amount calculated with reference to the deductor’s liability to a particular creditor in accordance with the terms and conditions of the loan. In the present case, the lender had advanced the loan to the assessee-company. Debit was made by the assessee-company to the “Interest Account” for a specific amount calculated with reference to the deductor’s liability to a creditor. There is no resolution of the assessee-company placed before the A.O. whereby the company has agreed to act as a medium for routing the borrowings and repayments. In the circumstances it cannot be said that the assessee-company was in charge of disbursing the repayments made by directors in their individual capacities.8. Consequently, Department was right in invoking the provisions of Sections 201 and 201(1A) of the Act. However, on facts we are of the view that in the first instance over the years the Department should have not allowed non-deduction of TDS by the company and nothing prevented the A.O. from raising the objection to such practice.
### Response:
1
### Explanation:
7. The material expression in Section 194A(1) of the Act isthe time of credit of such income to the account of theWhen interest is debited tohe debit is for a specific amount calculated with reference to the liability of the deductor to a particular creditor in accordance with the terms and conditions of the loan. Therefore, whenever interest is credited to the account of the payee the payer has to deduct the TDS. The crux of the matter is that the debit is for a specific amount calculated with reference to theliability to a particular creditor in accordance with the terms and conditions of the loan. In the present case, the lender had advanced the loan to the assessee-company. Debit was made by the assessee-company to theor a specific amount calculated with reference to theliability to a creditor. There is no resolution of the assessee-company placed before the A.O. whereby the company has agreed to act as a medium for routing the borrowings and repayments. In the circumstances it cannot be said that the assessee-company was in charge of disbursing the repayments made by directors in their individual capacities.8. Consequently, Department was right in invoking the provisions of Sections 201 and 201(1A) of the Act. However, on facts we are of the view that in the first instance over the years the Department should have not allowed non-deduction of TDS by the company and nothing prevented the A.O. from raising the objection to such practice.
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